“Genesis Ii Select-testing Before And After Stop?”

RI, thanks for your valuable input. Can you clarify a couple points:

Radar Identified wrote:If the Crown did not disclose notes of the time where the device was tested, you could very well argue that you were misled into believing the device was not tested and mounted a defence based upon incomplete disclosure by the Crown. The note about testing need not be lengthy: "tested per manufacturer's specs, ok @ 9:55 PM" would be enough.

1. What would be the likely result of this argument? Stay or adjournment?

2. Do the notes have to say "tested per manufacturer's specs" or is tested at 9:55pm sufficient?

3. What is the significance of Schnall being an appellate justice? Does her decision therefore carry greater weight?

Too bad the Niewiadomski case isn't available on CanLII!!!!

neo333 wrote:1. What would be the likely result of this argument? Stay or adjournment?

If the defendant specifically said in the disclosure request: "I want the officer's notes showing when the tests were done," probably a stay. Otherwise, I'd bet on an adjournment.

neo333 wrote:. Do the notes have to say "tested per manufacturer's specs" or is tested at 9:55pm sufficient?

"Test ok @ 9:55" should do it. What the officer did to test it can be asked at trial and compared to the manufacturer's procedures.

neo333 wrote:3. What is the significance of Schnall being an appellate justice? Does her decision therefore carry greater weight?

Yes, since she sits in a higher court, her decisions do carry greater weight. She also is a full-fledged Justice who has been to law school and has a better understanding of law than the vast majority of JPs. Some JPs take their jobs very seriously and do their research thoroughly (names like Cuthbertson and Quon stick out in my mind), but many are not as well-versed, as we all know.

neo333 wrote:Too bad the Niewiadomski case isn't available on CanLII!!!!

do we need the full Niewiadomski case to use it at trial?

or can we bring cases available on CanLII where other Justices cite Justice Schnall's decision w.r.t. Niewiadomski?

how would we go about getting the Niewiadomski case or any other case not available on CanLII?

I have Niewiadomski but can't post it to this site because it's not jpg. Can a moderator add it to this thread?

hey, sorry to resurrect an old thread, but i have a trial tomorrow and would appreciate some clarification:

the cop was on general patrol and charged me with speeding. He did not mention in his notes he tested the mounted radar unit in his moving vehicle. I received disclosure and am prepared to make a motion to not permit any other evidence suggesting that the radar was tested if it is brought up.

I was just wondering if there have been any other precedences after R v Niewiadomski [2004] OJ No 478 that would suggest that the notation is not necessary when the accurate of an instrument is in question?

Also, this was an appeal heard by Madam Justice Schnall who sits on the Court of Appeals, but this was on the ONCJ level, the same as the POA court, would this be binding because the Justice was acting in a higher capacity?

Is it generally accepted that radar units need to be tested before an after?

-How do I set that up?

-Would I have to ask for the JP to take judicial notice or thats not necessary?

greenbox wrote:hey, sorry to resurrect an old thread, but i have a trial tomorrow and would appreciate some clarification:

the cop was on general patrol and charged me with speeding. He did not mention in his notes he tested the mounted radar unit in his moving vehicle. I received disclosure and am prepared to make a motion to not permit any other evidence suggesting that the radar was tested if it is brought up.

I was just wondering if there have been any other precedences after R v Niewiadomski [2004] OJ No 478 that would suggest that the notation is not necessary when the accurate of an instrument is in question?

Also, this was an appeal heard by Madam Justice Schnall who sits on the Court of Appeals, but this was on the ONCJ level, the same as the POA court, would this be binding because the Justice was acting in a higher capacity?

Is it generally accepted that radar units need to be tested before an after?

-How do I set that up?

-Would I have to ask for the JP to take judicial notice or thats not necessary?

Reading this decision you'll quickly learn it was based surrounding the use of a mouthpiece on a breathalyzer device and not a radar/laser speed measuring device. JPs and Justices sitting at lower/higher courts may default to the Thompson decision, when defendants appeal that the officer's notes didn't have any testing times.

After Niewiadomski at the appeal level, Justice D.M. Stone in R. v. Roshani-Kalkhoran [2005] O.J. No. 2387 acknowledges Niewiadomski, but says that Thompson is binding.

13 Then there's the issue raised about whether the officer's evidence on his usual practice was sufficient to underpin an assertion he made in his evidence, about testing the laser before and after the event that gave rise to this charge. When the question was originally put to the officer-in-chief, he was quite blunt about his answer and simply said: "I did personally test this unit before and after use as per manufacturer's instructions and did find it to be working accurately both times."

14 It turned out the officer had no note as to the time that he made the test but he testified to his usual practice in saying: "I would test it before I proceed from the office and upon my arrival at the end of shift I would again retest the unit."

15 Times were given as to his shift. In cross-examination the way in which that test was conducted was put to the witness. The first time he talked about the self-test, display test, zero fixed velocity test and he later got in the fourth one - the scope alignment - temporarily forgot what the other test had been, that is the display test - but covered off the four tests that were involved. In terms of whether he was bluffing as to whether he had a usual practice, that was effectively gone into indirectly in the way that Mr. Alessandro cross-examined the officer in connection with the use of the tree. It appears this officer really did have a standard operating practice.

16 I have read on a number of occasions before in the full text, R. v. Lounsbury, [1993] M.J. No. 510 (Manitoba Queen's Bench) a case relied upon by my sister Justice Schnall in R. v. Niewiadomski, [2004] O.J. No. 478, an apparently unreported decision released February 12th, 2004 by the Ontario Court of Justice at London. Her Honour was obviously referred to Lounsbury and dealt with that particular issue in one paragraph. However Her Honour does not appear to have had her attention drawn to R. v. Thompson (2001), 151 C.C.C. (3d) 339, 345, (Ontario Court of Appeal) where that Court, in what would clearly be binding authority, inconsistent with Lounsbury, indicated that the standard practice of the officer affords a Trial Court some evidence upon which a verdict can be founded, that the usual practice was carried out on the occasion in question. That Court of Appeal panel of Justices Morden, as he then was, Catzman and Austin dealt with that issue and others as a unanimous bench, and clearly Lounsbury cannot stand against Thompson where the facts are covered by both cases.

17 In my view then, this ground of appeal is without merit in that His Worship was entitled to - if he chose - find that the standard practice was given effect to on the occasion in question.

Other JPs like Coopersmith have followed suite in Durham (Regional Municipality) v. Galluzo, 2011 ONCJ 367

[24] I have carefully reviewed the submissions of both the defendants agent and the prosecutor. The Ontario case law provided by the prosecutor is from the Court of Appeal, but deals with breathalyzer devices. The case law from the defendants agent is from the Ontario Court of Justice. I am not bound by the Justice of the Peace decisions and since I am aware of conflicting Ontario Court of Justice appeal decisions on this topic, I must look to a higher court for guidance. Hence, I have relied on an Ontario Court of Justice appeal decision, R. v. Roshani-Kalkhoran, [2005] O.J. No. 2387 (O.C.J.), in which Justice Stone relied upon the Ontario Court of Appeal decision in Thompson, supra, when he determined that the standard practice of an officer testing a speed measuring device at the beginning and end of his or her shift affords a trial court some evidence upon which a verdict can be founded that the usual practice was carried out on the occasion in question. I am persuaded by this decision and its reliance of the Court of Appeal and applying the principle of stare decisis, I feel bound to follow this decision.

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Some light at the end of the tunnel especially because the Thompson decision leaves it open to JPs to find that usual/standard practice is evidence. A number of JPs have found that w.r.t. speed enforcement that notations are required.

This includes JP Cuthbertson out of Guelph, R. v. Schlesinger [2007] O.J. No. 2365; here JP Cuthbertson considers Thompson, and says

17 The act of an officer unwrapping a mouthpiece to place it on a breathalyzer prior to use affords the officer an opportunity to peruse the mouthpiece for obstructions at the same time. It takes no extra effort, in my opinion. My understanding of a mouthpiece is that it is a decidedly uncomplicated and low tech device. The device's internal and external surfaces are visually evident to the officer unwrapping it from its sterile container and preparing it for use.

18 As noted in both Niewadomski and Roshani-Kalkhoran, supra, the testing of a high tech electronic laser device involves four separate tests. These tests require strict adherence to the manufacturer's instructions. They are decidedly not trivial nor can they be done by way of cursory examination, in my view. It takes a conscious and explicit effort to follow the proper procedures. A laser's internal workings are not self-evident to an observer.

19 As a result, the standards which I believe that I need to apply in being satisfied that the tests have been properly done and the results of those tests verify the device's accuracy, must be correspondingly higher than those applied to a mouthpiece that is to be affixed to a breathalyzer prior to its use.

20 The standards that would satisfy this court are:

a) Evidence that the laser tests had been done by a qualified officer according to the manufacturer's specifications and that the device passed the tests and

b) Evidence of a specific time when the tests were done both before and after a speed

JP LeBlanc in Durham (Regional Municipality) v. Zhu, 2011 ONCJ 193 (CanLII) also considered Thompson & Schlesinger even goes onto use an analogy

115) Perhaps an analogy would be of assistance to put the matter into perspective.

116) It is ones usual practice to shut off the coffee pot and lock the door before leaving for work in the morning. Quite often, particularly as the years advance, the question arises: did I turn the coffee pot off and did I remember to lock the door? Its only been a few minutes or a few hours since leaving home for work. Yet theres no clear recollection of doing so even though it is my usual practice. It would seem even less likely that theres a clear recollection that on February 7, 2011 that the door was locked and coffee pot turned off before leaving for work on June 30, 2010.

117) Clearly it could be said beyond a reasonable doubt that both the coffee pot had been turned off and the door locked had a note been written at the time both tasks were completed.

118) This court agrees with Justice of the Peace Cuthbertson in Schlesinger, surpa, that the standard to be applied is testing before and after to manufacturers specifications to ensure speed measuring devices are working properly, capable of accurately measuring the speed of a moving motor vehicle. Standards of evidence necessary to establish a prima facie case include that the speed measuring device tests have been completed according to manufacturers specifications by an officer who is both trained and; that the device passed the tests; and that there is either evidence in the officers notes or provided through viva voce that the tests were done both before and after a speed enforcement stop, and that they indicated the machine in question was functioning properly.

119) Usual practice is not necessarily best practice, and the perception that justice is done is as important as it is that justice is done.

120) It can be said that best practice would have had the officer write in his memo book at the end of his shift that the unit had been tested and was working properly. Four simple words would have sufficed: "tested radar, working properly". That did not occur here, nor did the officer have an independent recollection of doing this required test. The court is not persuaded that the officers usual practice is sufficient proof beyond a reasonable doubt that the required test was completed at the end of his shift on June 30, 2010.

121) As such the court cannot be sure that the appropriate test was conducted at the end of Const. McQuats shift that day, and the prosecution has not, as a result, proven its case beyond a reasonable doubt. Jialin Zhu will be found not guilty of the charge.

Justice P. Wright in R. v. Hayes [2005] O.J. No. 5057, where the courts said that officers can't show up with an independent recollection rather with proper notations

7 THE COURT: I must say too for the record that the other disturbing feature of this appeal was the absence in the officer's notes of any recollections of the matter going ahead.

8 And I say this so that you are aware of my view of the matter, I don't find it acceptable for the police to say on matters of significant importance that they don't make a note of it simply because something didn't go wrong, that was good enough for them.

9 The decisions of this Court R. v. Zack, [1999] O.J. No. 5747, decision of Justice Duncan, a decision of mine in R. v. Burrows, [2004] O.J. No. 5377, and R. v. Makhota, [2004] O.J. No. 5415, make it quite clear that the absence in the police officer's notes of specific recollection of the important information have allowed me to conclude that that information, that evidence is not reliable. In other words, for an officer to come to court and simply say I have an independent recollection doesn't cut it in this court. Not in front of me. Not in front of Justice Duncan and I suspect probably not in front of very many judges anymore. The Court of Appeal has made it clear that judges in the Sheppard decision of 2002, [2002] 1 S.C.R. 869, and recently just in the last week or two - and I've forgotten the name of the decision - that judges are required to give detailed explanations of their Reasons for Judgments both in terms of convictions in the Sheppard case and the most recent case - and acquittals so that there's a proper record of what's going on in the court proceedings. And consistent with that view it's my thought and it's shared by many members of this Bench that it's important that the police have in their notebook accurate, complete information about specific issues that are called into play in the prosecution.

10 In this case, the officer had absolutely no note at all about anything related to his training or what happened on this occasion. Nothing. He said simply that I don't make a note unless something goes wrong. That's not fundamentally sound. That's like a judge saying I find you guilty or I find you not guilty.

11 And I think that if the officer had made those notes he would have realized that he didn't have the training at the time and maybe should have rethought his position in the scheme of things. But I'm going to leave that for somebody else to decide because I'm only being asked to grant the motion and not hear the appeal. But I think you have my thoughts.

It really depends on the Justice of Peace you get tomorrow

wow, thanks a lot for taking the time to write that! i guess i need to sit down and review it more thoroughly as i just read it over quickly.

despite the fact it had to do with "standard practice," maybe Schnall didn't consider R. v. Thompson, 2001 CanLII 24186 because the Breathalyzer unit is a whole different beast than a radar? the other cases were likely to be more similar to the one at hand.

guess I have to do some more research.

thanks again!