“Court Of Appeal: Officers Required To Memorize Tests?”

I wasn't able to find this on CanLII, but I can share it here if there is interest. Here's the summary:

York (Regional Municipality) v. Chair [2014] O.J. No. 5599 [Ontario Court of Appeal]

Motion by the Crown for leave to appeal a judgment allowing an appeal from a conviction for speeding. The respondent was charged with speeding after allegedly traveling at a rate of 89kph in a 50kph zone. The officer who issued the ticket testified that he used a radar handheld directional speed measuring device that he had tested before and after the offence in accordance with the manufacturer's recommendations. On cross-examination, the officer was unable to remember or describe the specific tests without reference to the manual. The Justice of the Peace entered a conviction, finding that there was no evidence contradicting the police officer's evidence. The conviction was overturned on appeal on the basis that it was not open to the Justice to find that the device was working properly given the officer's evidence he was unable to recall the specific tests employed. The Crown sought leave to appeal on the basis of conflicting decisions in the Ontario Court of Justice regarding the sufficiency of evidence required to be led by the prosecution in relation to the testing of radar devices and the public importance of knowing the evidential burden.

HELD: Motion allowed. The proposed appeal raised a question of law regarding whether there was a basis for interference with the Justice of the Peace's finding of fact regarding the radar device's working order. There was a disconcerting difference of opinion among Ontario Court of Justice judges as to what evidence constituted a prima facie case, and specifically, whether police officers were required to memorize the specifics of a manufacturer's test protocol in order to establish a prima facie case. It was essential both in the public interest and for the due administration of justice that leave to appeal be granted.

Interesting... what else was in the ruling?

Uploaded to dropbox, here are the full decisions.

Havent read the full decision but it sounds reasonable. Ive seen people get off on speeding tickets before when officers arent able to explain the testing procedure properly. Considering testing procedures are typically very simple and straightforward, I dont think its an unfair to say officers need to be able to explain it on the stand.

Thanks, iFly. Seems reasonable, hopefully we'll get some clarification from the appeals courts soon.

@iFly55 Is the original transcript from original trial available?

Also it mentions tuning forks!!! I did not think that tuning forks were used anymore. Or maybe that is for the units mounted in the vehicles only.

Thanks

jsherk wrote:Also it mentions tuning forks!!! I did not think that tuning forks were used anymore. Or maybe that is for the units mounted in the vehicles only.

You're correct. I'm not aware of any of the newer radar systems, stationary or moving, that require tuning fork tests. Either the officer was using a very old unit or the defence was maybe trying to trip him up by asking about non-existent tests.

York (Regional Municipality) v. Chair [2015] O.J. No. 6489

The following judgment was delivered by

1 THE COURT:-- The parties acknowledge that the law as stated in R. v. Bigioni, [1988] O.J. No. 2220 stands. We agree. Nothing in the subsequent case law should be taken as diminishing that authority.

2 In this case, there was evidence that the officer tested the device before and after its use in accordance with the procedure set out in the manual. There was also evidence that the officer was a qualified operator. The trial judge accepted the evidence. As indicated in Bigioni, that evidence was "sufficient to evidence of a prima facie case".

3 The appeal judge, therefore, erred in finding that "the Justice of the Peace erred in law by making a finding on the facts that he was not entitled to make". The appeal must be allowed on that basis.

4 We do not reach the broader question posed by the appellant. In our view, the record does not permit the kind of examination necessary to a determination of whether the court should create a presumption of accuracy in respect of the readings registered by radar "guns".

5 Appeal allowed and conviction restored.