“Charge Withdrawn - Success Story”

Decatur wrote:?

Most radar units I've dealt with are sent back to the distributor and calibrated on an annual basis or when any repairs are done.

Did any of the radar/lidar units you've dealt with carry stickers showing the name of the calibration lab, the date and the inspector's stamp? Are these radar/lidar units carrying seal stickers with words to the effect of "calibration void if seal broken"? A certified calibration includes affixing stickers so any operator can quickly tell if an instrument can be legally used and seals to ensure the instrument has not been tampered with since last calibration.

While equipment self-tests and operator administered tests (eg via tuning fork tests) are an essential part of any QA scheme, these are no substitute for regular full independent certifiable calibrations. A distributor, particularly of mass-produced electronics, is not usually considered independent. Metrology history proves an operator or vendor can seldom be fully trusted to impartially test a measuring device without significant oversight, which is why there are QA inspectors and independent certified testing/calibration labs.

No matter what company does the testing, the documentation to verify these calibrations and the Standards they trace back to should be readily available in the police detachment offices, as well as at the testing lab.

I am coming to believe no independent certified calibrations are done on any radar/lidar units in use in Ontario, ever. Tuning forks, perhaps, but the actual units? Doubtful.

No document trail, no calibrations can be claimed. Ask any ISO or Industry Canada inspector.

The case law (Canlii search 'radar calibration certification') shows a tortured path used by enforcement and the Crown to avoid producing anything which may cast doubt on the absolute accuracy of any enforcement instrumentation. To the point where the judge in R. v. Robichaud, 2008 NSPC 51 actually ruled that because the police keep no radar repair/calibration records, the defendant cannot ask for them in discovery.

Similarly, in Toronto Police Services Board (Re), 2006 CanLII 50669, "With respect to item 3 of the request, the Police state that the Radar Coordinator provided all the available details for the Radar Unit, being the serial number, make and model and the Radar Units repair history. The Police quote an excerpt from Order MO-1873 in support of their contention that the Traffic Services Unit does not keep any formal calibration log or details on any calibration of the Radar Unit. "

Nice trick.

So given the firm grounding and cogent explanation of real-world calibration that z24guy was obviously prepared to submit, the prosecution chose to dismiss/bury the case rather than risk upsetting decades of carefully managed avoidance regarding speed measuring devices. But blood alcohol machines have no such luxury.

R. v. Schmidt, 1999 CanLII 12394 "[15] In summary, based on all of the foregoing, I conclude that; (1) there is a duty of Crown counsel to make full disclosure; (2) that disclosure is triggered by a request of the defence counsel; (3) it is subject to Crown discretion as to relevancy; (4) the test of relevancy, as set out in Stinchcombe and OConnor, explained and expounded in the unanimous decision of the late Mr. Justice Sopinka in R v. Egger, is that the Crown is justified in withholding disclosure only if it can show that the evidence sought is clearly irrelevant."

How can maintenance/calibration records, or the lack thereof, be irrelevant where the Crown's case rests upon that measuring device? Speed or blood alcohol, should make no difference.

you certain;y are well read Watcher........ keep up the references and some day you may be a moderator!

Reflections wrote:you certain;y are well read Watcher........ keep up the references and some day you may be a moderator!

Thanks... I think. Kinda one of those "be careful what you wish for, you just might get it" things.

Most of the credit goes to the Canlii search function. Once us average folk get the hang of that, it can pretty quickly locate the applicable cases/paragraphs. But any significant ticket defense has to go to trial beyond the routine "plead-down" strategy to make it onto Canlii so the public even has a hope of figuring out what's going on.

That is why I believe this calibration issue needed to be given some significant face time here given the Crown's decision to drop the charges. If not here, where would the public, or even the paralegal/law community find out what goes on behind the scenes, but is legally mandated and routine in so many other aspects of our lives.

In the long run, ISO standardized calibration/record-keeping would simplify enforcement and prosecution's internal and disclosure tasks. Why is there never time/money to do it right, but there's lots of time/money to keep doing it the wrong/hard way?

After having watched this thread unfold, I feel I should put my two cents in.

The central issue of a speed measuring device is not about calibration, certificates, laboratories, or anything like that. The central issue is: When the device was used, was it working properly? That is what the courts have tried to decide, and actually, have decided. They've had a long, long time to figure out what they consider to be reasonable proof that the device was working properly. They've decided that the police officer testing the device before and after the stop, and proper usage of the device (including a tracking history), etc., is sufficient proof.

Now, if the lack of an Industry Canada document proves to be a sticking point, it is worthwhile exploring, but only as a novel defence and with the defendant fully aware that its use is unlikely to be successful. If anything, the courts may require that the officer simply testify that there is an IC sticker or IC number on it. However, as far as requiring calibration certificates, inspectors, etc., many devices that receive periodic calibration and have stickers etc are not tested on a daily basis to ensure that they are working correctly. For example, gas pumps are calibrated regularly, yes? But the attendant doesn't go out before and after his shift, draw a measured sample from each pump, and use a device to confirm that the pumps are, in fact, distributing the exact volume of gasoline that they should be. (They sometimes check for contamination but that's about it.) Or, weigh scales at MTO stations, while I'm sure they get calibrated, do not have calibrated weights rolled on top of them every day to ensure that their weight measurement is accurate. Or, with certain weights and measures, usually the only proof of correct operation is the time of calibration, not a daily "confidence check," if you will.

Police speed measuring devices, on the other hand, do get checked daily. This is where the "testing before and after the stop" comes in. In most cases, these require an internal circuit check to be done (press the "test" button) and an external check. For example, the Decatur Genesis II (widely used in Ontario) gets an internal circuit check, and then the officer drives down the road and verifies that the Decatur's speed readout is accurate against the patrol vehicle's calibrated speedometer. I have had an issue with any device that does not require an actual signal to be sent out and bounced back to the device to ensure correct operation, which is the case with some hand-held radar units. If the device does not actually measure some kind of external speed during its check, in my opinion, yes, it should not be used. The officer must be able to testify as to how the device was tested, when it was tested, and the results. I do not believe it is reasonable to require all kinds of other documentation of it being in proper working order, given that the tests performed by the officer were valid and reliable. I suppose you could argue that the officer could simply commit perjury, but you could also argue that the inspector's certificate, calibration certificate, etc., could have been forged, so you'd have to call the inspector to testify; but then you could argue the inspector was on the take and is also lying; and then you've turned the whole situation into a cascading Kangaroo court Gong Show. Respectfully, at some point, you have to say "this is reasonable proof." The courts have decided that standard is that the device must be tested before and after the stop, in accordance with the manufacturer's instructions.

One of the core values of justice in a free and democratic society is "innocent until proven guilty beyond a reasonable doubt." As the stakes are raised, the margin for reasonable doubt expands, but speeding is an absolute liability offence, which is the lowest level. Stunt driving 50 km/h or more over the limit is a strict liability offence, so there's opportunity for the defendant to avoid escalating sanctions with the use of a due diligence defence. Dangerous driving is mens rea. To ask for about 10 different types of proof that the device was working properly, in my opinion, is not reasonable, given the fact that the implications to society are small. From everything I've read and dealt with (2 1/2 years of being on this board and having helped over 50 people outside of it), the courts seem to agree. You're not building, say, a nuclear reactor, where the implications to society are huge. The devices are calibrated and repaired according to the manufacturer's instructions, it is just that the courts have ruled that a conviction does not turn on that documentation, so it is not required for disclosure. Even if it was calibrated, I submit that is not proof that it was working correctly on the day the offence occurred, nor is it proof that it was used correctly. It's a justice issue, not an ISO issue, in my view.

Furthermore, the device is not sole proof of the speeding. In addition to the daily tests, before the speed measuring device is activated, the officer must first observe that the vehicle is travelling above the posted speed limit, and estimate its speed. They receive training on how to estimate vehicle speeds. Once they have the estimate, they activate the speed measuring device to confirm. If there is a noticeable discrepancy, they don't stop the vehicle. In the state of Ohio, the officer's estimation of vehicle speed alone is sufficient to warrant a conviction - they don't need the speed-measuring device! What seems to be misunderstood is that it is the officer's visual observation that is the critical component, not the device. Of all speeding cases I've seen dismissed during trial, it was invariably one of three things: Improper tracking history, improper testing, or lost sight of the vehicle.

watcher wrote:That is why I believe this calibration issue needed to be given some significant face time here given the Crown's decision to drop the charges.

Respectfully disagree. This is speculation. We do not know the reason behind the withdrawal. While I support finding new ways to challenge speeding offences, as hwybear mentioned earlier, we simply do not know if the Industry Canada conformance/etc was behind it, or if there was some other issue, such as the officer going: "Um... I forgot my notebook." The fact that the Prosecutor was steaming mad prior to the trial is nothing out of the ordinary; many of them use these sort of bluster-and-intimidation tactics to try to get people to accept a plea bargain, rather than drag it out in court.

So there's my input.

Damn Radar, you made me open the full editor, .

My full 2 cents, Ahem:

1. Any measuring device for trade is calibrated regularly by an external reference be it scales or pumps etc.

2. Machines used to assemble certain products, i.e. automobiles, also get regular calibrations.

3. These items may or may not have a self-calibration/confidence check function.

4. International groups, ISO, have set minimum standards for calibration and repair and thus have standing in all industry.

5. Why not group police radar/lidar in with the above?

6. I have a certain amount of confidence in the equipement and will testify that 99/100 they are accurate, my last speeding ticket comes to mind.

7. >>However, why have the courts come to believe that a machine, a computer no less, is infallible<<. Computers are only as smart as their programmers.

8. I would expect at least a follow up check as to the proper operation of the self check, that the circuitry is not flawed. It could be a resistor here or capacitor there and unfound errors abound.

9. The software that is used for error checking is guarded by patents, so we can't see what it consists of.

10. Different jurisdictions have different limitations on the distance/circumstances in which officers may or may not use radar/lidar.

Take all of that and put it in a nut shell, I would like to see more transparency in the Crown's "evidence", each and every time a case goes before the JP. When it is possible for me to lose my license and car for a week, the gov't need to be more accountable for the inconvienience's it wishes to enact on the people it serves.

Rant off, and please enjoy the rest of your day a OHTA.COM.

This thread could have legs... any bets on whether it will go over 10 pages?

Okay back on topic...

Reflections wrote:1. Any measuring device for trade is calibrated regularly by an external reference be it scales or pumps etc.

2. Machines used to assemble certain products, i.e. automobiles, also get regular calibrations.

3. These items may or may not have a self-calibration/confidence check function.

I agree. Howeever, the police devices are also calibrated. The difference is the documentation does not need to be given to the defendant, according to the courts. Just to use an analogy, the weather radar I use at work is also bench-tested and calibrated regularly, but I don't ask the Aircraft Maintenance Engineers to come out with the tech logs to prove that it has been done. There's no sticker or label on the flight deck to prove it has been done. If there is hazardous weather, I do an internal circuit check to verify it is working properly and then a confidence check to verify it is properly painting nearby targets... not much different than the internal/external check on the Genesis II. What I'm saying is, where do we stop asking for proof that the device was functioning properly? It would also push the 11B guidelines well above what they are presently because the Prosecutors could argue that the huge volume of material required for disclosure of simple speeding offences had over-burdened their offices.

Reflections wrote:5. Why not group police radar/lidar in with the above?

It is. It's just production of the paperwork to the defendant that is "missing." If the device has both an internal circuit check and an external check where the device is activated and a comparable speed readout is given, particularly against another calibrated device (e.g. calibrated speedometer) I'd say that should be sufficient for a court to accept that the device was working properly. If, however, the only test is an internal circuit check, I agree that is not sufficient. Then again, how do we know the test was done properly? Do we need video evidence?

Reflections wrote:7. >>However, why have the courts come to believe that a machine, a computer no less, is infallible<<. Computers are only as smart as their programmers.

Agreed somewhat, but you could also have a lab or a technician improperly calibrate a device. I don't think they believe it is infallible, otherwise they wouldn't require before-and-after tests. And between calibrations, the device could be put in environmental conditions where it doesn't work as well, etc.

IMO, a sole internal check is not sufficient, like I've said before. If, however, both the internal circuit check and an external speed check shows the device is working properly, I don't see why a conviction should be quashed solely because additional information that the device was working properly was not provided to the defendant. They've got the officer's visual observation of the speed, backed up by the device. Calibration records or not, we're still relying on the testimony of the officer. How do we know the calibration is not just a bench-test and a couple of whacks of a tuning fork? Does it involve pointing the device at vehicles going a known speed? At that point, we'll need calibration documentation and the testimony of the inspector or lab technician.

Reflections wrote:When it is possible for me to lose my license and car for a week, the gov't need to be more accountable for the inconvienience's it wishes to enact on the people it serves.

I think you know where I stand on the stunt driving law. However, we're still back to the issue of "what if" the officer misuses the calibrated device and a vehicle that was going 48 over registers at 51 over, or if the officer happens to be someone like Dennis Mahoney-Bruer and gets a reading of 135, but says the driver was going 155. Any sort of up-front penalty except, maybe, a 24-hour roadside licence suspension to get a drunk off the road, or impounding of an uninsured vehicle, or a vehicle being driven by an unlicensed/suspended driver, is something I do not support. It's too open to abuse. Calibration of the device, to me, doesn't solve that problem.

Well, Bear said it over there in another thread, the FCC/IC is in the manual............ why would the Crown not simply produce the manual, hell have the officer bring them into the courtroom. From what I see in the devices I use, the calibration sets forth a "few" calculations on which the entire measurement process is based. We have yet to see a straight forward case where posturing and courtroom BS is not invovled. Just one case where you can sit down with all the parties, police, gun manufacturer's, JP, a couple of independant engineer's and show the entire paper trail. What throws the monkey wrench into the calibration issue is that there is not 1 single case, start to finish, that explores all the aspects of radar/lidar and the possible error's that can be attributed to calibration. Plus the calibrated speedometer should be requalified if there is a change to the vehicle, i.e. snow tires installed.

There is a term in the engineering world called "Stacked Tolerances". If all the parts in a process are to the high side of their limits, or low side, then there could be issues trying to assemble them. Now, what the world depends upon is the law of averages and it "usually" works out in the long run. Let's say that there is a gun that always reads "a little" high, most of the time...... law of averages. There is always that 1 time out of 100 that there could be an error that goes beyond "manufacturers spec" and should be examined. The simple fact that the court system treats speed measuring devices with the unquestionable standards it does opens the door for errors to precipitate. Isn't it the courts main function to remove doubt? It seems it does nothing more then add to it in this case....

Waiting for rebutle,

Reflections.

The point of ensuring proper INDEPENDENT calibrations are done and documentation is maintained to police speed measurement devices is to remove any question on that issue. If these were always done and readily available upon request, the courts would soon blanket stipulate that unless there was concrete evidence to the contrary, the speed measuring devices would be taken as accurate. No more fishing expedition disclosure requests for manuals/calibration/measurement documentation, the officer would simply note the last calibration date shown on the unit sticker, and their own daily testing. Get it all out in the open, including the "patented" software algorithms and it's DONE.

Just because the courts have been "making do" with the haphazard and piecemeal information they have been given so far doesn't make those rulings correct.

Glad someone else floated Mahoney-Breur, as it seems this is not the only case where officers are being found to have badly abused the HTA172 roadside powers. I am personally aware of a pending case where the officer laid stunt charges that were totally 100% bogus, and there is independent video and other physical evidence to prove it. To read the officer's notes, you'd think the driver was a total scoff-law. The officer accused the driver of doing what the officer himself did.

Calibrations/documentation can't fix outright fraud, but the regimen that an ISO-type system imposes reduces the ability for operators to fake results or the tendency fall prey to observational bias. Good cops should want as many safeguards as possible in place to prevent the "bad apples" from despoiling a noble calling.

Stacked tolerances seldom enter into calibration, particularly where only a single measurement is involved. The measured speed doesn't have to physically "fit" to another quantity or item. Whenever possible, calibration is done under the Rule of Ten. For example, for radar/lidar with a read out accurate/precise to +/- 1.0 kph, the instrument used to calibrate it should be proven accurate/precise to +/- 0.1 kph.

and i want to ensure that any draft that i purchase is exactly 20oz too....and i have a pack of portebella mushrooms in the fridge and says 680gms, which was the same as the pack beside, i want to know who ensures those are accurate also, like who puts in the small mushroom or the larger one to make it that amount and when what their qualifications are....this will never end

Ah yes, the "ad absurdium" tactic. OK, I'll play...

When you the mushroom consumer stands a chance of paying a hefty fine or even going to jail because the person weighing your fungi has his/her finger on the scale and enjoys defacto legal immunity, maybe you'll be singing another tune.

My 2 cents:

Radar cops in Toronto have their gun pointed before the car comes.

I guess they visualize it through the lens.

I listen to and watch a lot of baseball games.

The announcers will say "the radar gun here is juiced"

With this they mean a pitchers throw speed is higher (or lower) in this park then what is shown on the radar gun.

I don't know if they use the same gun but they know how to change the result.

Cheers

Viper1

baseball - they can't change the result. Sure speed of pitches have lots of factors also, humidity, the 1st pitch and not warmed up, 110th pitch where running out of steam, 57th pitch where just didnt grip the ball just right or put the exact spin on the ball etc.. 80th pitch with all perfect technique etc

hwybear wrote:baseball - they can't change the result. Sure speed of pitches have lots of factors also, humidity, the 1st pitch and not warmed up, 110th pitch where running out of steam, 57th pitch where just didnt grip the ball just right or put the exact spin on the ball etc.. 80th pitch with all perfect technique etc

It is not the result I mean it is the gun reading I am talking about.

X player throws at EG: 160 kph with gun from toronto

Same player throws in another park and can only get 155 or gets 165 with same motion.

I am going to call and double check this after tonight's game.

Cheers

Viper1

viper: the gun is effected by cosine law, same as traffic radar..... same goes for hardest shot in hockey, shoot at the gun directly = more accurate reading

Anywho, the transparentcy of the "entire" testing and calibration process could be improved and thus the "fishing" expeditions would end.

K Reflections, here's the rebuttal...

Reflections wrote:Well, Bear said it over there in another thread, the FCC/IC is in the manual

If the courts find it fit to require disclosure of the entire manual, so be it. However, posturing and courtroom BS is entirely what the courtroom consists of. We have an adversarial-style justice system rather than an inquisitional one... not ideal, but anyway...

The courts looked at what they take as the baseline requirements for conviction. The testing of the device before and after the stop is what the courts consider to be reasonable, going back over 50 years. This includes cases like R. v. Grainger (1958), D'Astous v. Baie-Comeau, R. v. Vancrey, etc. Even if the courts were to agree, the device is still subject to the human error/biases/whatever of the operator. Furthermore, it may actually work against defendants. Sounds strange, but just bear with me for a second.

Right now, they require the officers to test the device before and after the stop. If they require the disclosure of the certificates (which are already available), it could make it harder for a defendant to advance a defence that the device was not properly working at the time. JP: "The device was calibrated, you've got the record, the officer says it was working correctly... what is YOUR problem?" Defendant: "But your Worship, the officer did not test it in accordance with the procedures established by the manufacturer, and did not use it in accordance with the procedures..." JP, dismissively: "It was calibrated, the record is out there, so its reading was reliable. I don't need to hear anything more. Finding of guilty." Actually, come to think of it, some states require the calibration records but don't require the "before and after" testing, which is a road I do NOT want to see Canada go down.

Reflections wrote:What throws the monkey wrench into the calibration issue is that there is not 1 single case, start to finish, that explores all the aspects of radar/lidar and the possible error's that can be attributed to calibration.

That may be true, however, if the device has had both an internal and (particularly) external test that shows a valid reading, that's more important than calibration, in my opinion. And we're looking at cases all the way back to R. v. Grainger (1958). To me, the external check is the most critical component. If two devices, both measuring speed, do not show the same result, one of them is malfunctioning. Both of them are calibrated (speedometer and radar/lidar). So if the reading is out, the device is not usable. And yes, I agree that when a cruiser gets new tires or whatever, the speedometer should be re-calibrated. I believe that they are, but cannot say with certainty.

Reflections wrote:

There is a term in the engineering world called "Stacked Tolerances". If all the parts in a process are to the high side of their limits, or low side, then there could be issues trying to assemble them. Now, what the world depends upon is the law of averages and it "usually" works out in the long run. Let's say that there is a gun that always reads "a little" high, most of the time...... law of averages. There is always that 1 time out of 100 that there could be an error that goes beyond "manufacturers spec" and should be examined. The simple fact that the court system treats speed measuring devices with the unquestionable standards it does opens the door for errors to precipitate. Isn't it the courts main function to remove doubt? It seems it does nothing more then add to it in this case....

Remove reasonable doubt, yes. But the devices are calibrated. They have the records at the detachments. The production of that paperwork in court, to me, is a minor detail, if anything. As far as honesty goes, the inclusion of the certificate of calibration in a disclosure package does not answer any of my questions in a speeding case. We're getting into "beyond a shadow of a doubt" territory there. I'm still far more concerned about the device's performance "the day of." For that, the officer has to have an appropriate level of knowledge and be able to properly use the device. In my opinion, the calibration record doesn't touch the core of the case: Did the device work on the day in question, did the officer take the visual observation first, and did the officer use the device properly and stop the correct vehicle?