OHTA.ca

Have a ticket in which the radar used was a Genesis VP Directional. I had downloaded the manual for a Genesis VP but I now realize that the unit is not the same so it is the wrong manual. My trial is very soon so I do not have time to ask for disclosure of the manual.

Does anyone have access to an electronic version of the manual for Genesis VP Directional?

I want to see if it specifies a tuning fork test. I see that they sell tuning forks with the unit but I have read lately that police in Ontario do not perform the tuning fork test.

Thanks in advance for any assistance!

Tuning forks are NOT required to test the device in Ontario. The officer only needs to press a test button on the device, which runs a set of internal tests (display, circuitry and speed simulation) which the officer verifies.

Thanks for the reply. Is there case law that establishes this? The older manual I have describes the tuning fork test and other references state that it is a necessary external test to prove the unit is working. Further in D'Astous v. Baie-Comeau (Ville) the Quebec Court of Appeal established the tuning fork test is required. I realize that that is an older Quebec case but if the manual lists a tuning fork test then what legal basis does Ontario ignore it?

Is there an Ontario precedent that says they do not need to do an external test? Or perhaps the newer Genesis VP Directional has a new fangled internal tuning fork test?

Thanks again.

R. v. Howse, 2012 ONCJ 517 (CanLII): http://canlii.ca/t/fs99v

9. In cross-examination P. C. Rosa was questioned as to the tests he performed to assure himself that the radar unit was in proper operating condition when he used it to clock the Appellants speed. A copy of the radar devices operating manual was filed as exhibit 2 at the trial. In summary, the officer extensively tested the device before and after use. P. C. Rosa was asked about using a tuning fork test in the past to test the radar device. He advised that he had done so years before but that this test had not been required by the manufacturer since 2005. The officer agreed that in other provinces and states the tuning fork test is still used to test this radar device. The manual that was current at the time of the trial reflected the amended procedure, and P. C. Rosa had used that procedure established by the manufacturer to test the device here. That procedure did not require the tuning fork test. In fact the tuning forks had been collected up and removed from the cruisers by the O.P.P. in 2005.

13. In wide ranging submissions at trial the Appellant alleged: (a) that "theres possibly a huge fraud being conferred upon the citizens of Ontario with regards to Decatur" – that is the radar manufacturer – "in this." The thesis of this submission, made again on appeal, is that because Ontario doesnt require tuning fork tests and other jurisdictions do so, the prosecution bears an onus to explain why, failing which a reasonable doubt has been created as to the guilt of the Appellant; (b) that the evidence of the police officer as to the geographical boundaries of the courts jurisdiction was hearsay and could not be accepted, leaving the court without jurisdiction over the Certificate of Offence; (c) that the speed certified by the officer was incorrect because of the margin of error of the device, and that, added up over the many thousands of tickets issued each year this was the source of countless wrongful convictions, higher points and increased fines. The only correct way to certify the speed on the ticket, it was submitted, is by incorporating the margin of error in favour of the Appellant.

25. Third, the radar tests. The Appellant alleges that only in Ontario is the Genesis II Select radar not tested with a tuning fork. At the trial the Appellants counsel stopped just short of alleging a fraud perpetrated by the government against the people of Ontario. The Appellant submits that the mere fact that the manual does not call for the use of a tuning fork test in Ontario requires that the prosecution explain this omission or else the charge cannot be proven beyond a reasonable doubt. The Appellant brings no expert evidence as to any effect of such an omission on the accuracy of the radar device, only making broad sweeping submissions that if the manual is different in Ontario this must be explained by the prosecution. With respect the learned justice of the peace below properly stated and applied the applicable test here: did the officer properly test and operate the device according to the manufacturers specifications. Quite properly she answered this question in the affirmative on the evidence before her.

27. Plainly put, the fact that a tuning fork is used in other jurisdictions to test this device is irrelevant provided that the device is, as here, operated in accordance with the manual.

31. The Appellants trial was fair and his conviction and sentence are entirely supported by the evidence. The justice of the peace at trial made no error on this record and, rather, showed tact and skill and reached the proper result. The appeal is dismissed.

___________________________________

Justice Bruce E. Pugsley

Ontario Court of Justice at Orangeville

Thanks for posting the cases.

I have not been able to find the English PDF of the manual but I was able to find the Spanish version at http://www.medicaltesting.com.mx/Radar% ... suario.pdf

In the manual (though my Spanish is not very good) it is quite clear that there is a section on the tuning fork test. However, perhaps the manual is out of date (it has a date of 2001 - 2005 on it) and later versions of the manual have taken that section out.

So if I cannot find a more recent manual, I guess I will just ask the Constable if the tuning fork test is in the manual and if he says no then I will give up on that line of defense.

Thanks

Just to confirm what I posted above is from the 2010 Canadian manual for the Genesis VP Directional. That is the entire testing procedure for the handheld unit. It must be performed once before use and once again at the end of the shift (or enforcement).

Stanton wrote:Just to confirm what I posted above is from the 2010 Canadian manual for the Genesis VP Directional. That is the entire testing procedure for the handheld unit. It must be performed once before use and once again at the end of the shift (or enforcement).

I contacted the distributors of the Genesis VP Directional (in the U.S.) and was sent the English PDF of the Rev 11/01 which states Copyright 2000, 2001, 2002. It lists the tuning fork tests. I still have a hard time believing that there is a "Canadian 2010 version" that does not list the test. It would not make any sense for the manufacturer to produce a version removing the test since the test is based on how the unit works and not on any legal ramifications. There is no way that the models sold in the U.S. and the ones sold in Canada are different.

Do you have a PDF of it that you could share?

Thanks.

I don't have an electronic version to share.

Here's the testing section (hopefully verbatim barring any typos) from a 2010 manual:

6. Testing the Device

6.1 Operator Requested Self Test

Pressing the TEST button initiates a comprehensive system self test, which checks the numeric displays and runs a target speed simulation.

The self test checks:

DISPLAY TEST:

Allows the operator to verify that the digit segments and status LED lights are working correctly and that none of the pixels in the number segments are burned out.

CIRCUITRY TEST:

The system checks the internal circuitry. If the unit passes all internal checks, the messages PASS will be displayed. If an error should occur then FAIL will appear in the display window .

SPEED SIMULATION TEST:

The radar verifies speed accuracy using synthesized Doppler frequencies corresponding to a series of four simulated speeds: 25, 50, 75, and 100 km/h .

Section 6.1 must be completed by the officer prior to enforcement and at the conclusion of the officer's tour of duty (if any enforcement action was taken).

I can confirm that there is no requirement in the Canadian manual for the use of tuning forks with any Decatur radar.

Curiouser and curiouser! So the "Canadian" manual has a smaller section on testing? The above section is quite curious in that if it was really written by the manufacturer as a different document then there would be no heading for section 6.1 if no section 6.2 exists. You don't create a single subsection in a document. So it looks like someone (maybe Decatur) took the manual and removed sections 6.2/6.3 and 6.4. I have copied them below from the manual from the distributor. Even curiouser is the phrase about what the officer must do. Nowhere else in the manual sections on how to use the device does the word "officer" appear. The manual is a document to describe how to use a device, it is not a police procedural document!

If I had to guess I would say that someone took the manufacturer's manual, removed some of the testing sections, added some procedural instructions to create the "Canadian" manual.

Question: does the manual have a Table of Contents? If so, do the sections 6 match? Or did the entity that changed the manual simply remove the ToC?

6.2 Mini-Test

The tSt option sets the system to automatically perform

a "mini" self test every 10 minutes, which is required in

some states.

6.3 Master Reset

To reset all parameters to default values (except the tSt

setting), press and hold the SEL button while you turn on

the gun. The system will generate a long tone, reset all

the parameters to the default values, and continue

powering up.

6.4 Tuning Fork Test

In addition to the system test, you can verify signal

processing accuracy by using a tuning fork, which

comes with the Genesis-VPD.

GENESIS-VPD™ USERS MANUAL

30

To begin the test, tap the tines of the fork on a firm,

non-metallic surface. The tuning fork will ring audibly.

Then place the tuning fork that you tapped with the

narrow side facing about 3 inches directly in front of the

antenna. Pull the trigger and compare the speed in the

display window to the speed stamped on the fork. If the

difference is within ±1 display unit, the radar gun is

working properly.

Figure

( .... )

That "someone" is the manufacturer.

All of their devices come with a copy of the manufacturer manual. There is no mention nor a requirement to use tuning forks when testing.

Decatur wrote:That "someone" is the manufacturer.

All of their devices come with a copy of the manufacturer manual. There is no mention nor a requirement to use tuning forks when testing.

So in summary, the U.S. manual for the exact same unit recommends the tuning fork test while the Canadian manual does not. Now why would the manufacturer remove the recommendation from the Canadian manual? It cannot be based on science or reason or geography since those factors have not changed. So perhaps the manufacturer has stopped putting the test in because in Ontario they have stopped doing the test!

If that is the case, then the standard used in R. v. Howse is no longer acceptable. To state that the testing standard is based on the manufacturer's recommendations if those recommendations are themselves influenced by the testing that is performed is circular and unjust.

So I will try and admit the manual I have into evidence. If I am successful then perhaps I can prevail since the officer will not have performed the tests as recommended in "the manual."

Since we are just talking about speeding fines there is no financial incentive for someone to dig into why Decatur has chosen to remove the tuning fork test section from manuals sent to Ontario.

There is a 6.2 section identical to what you posted. I left it out since it isn't actually part of the testing process that the officer performs.

Don't get too hung up on different testing between the U.S. and Canada. Procedures that the manual describes are not simply to ensure proper operation of the equipment, but also to ensure the process meets relevant legal requirements where it's being used. Legal requirements and technical requirements aren't always in agreement. What may be required to satisfy an Ontario Court might not be sufficient in some States. I see no real benefit for the manufacturer to leave out a tuning fork test if its truly required since it would be an additional product for them to sell. Tuning forks certainly used to be a necessity with radars since older models had no self-test, etc. Does a self-test ensure absolute certainty? No. But it appears to meet the threshold of beyond a reasonable doubt to satisfy the Courts.

You're going to need something concrete to show the testing process is flawed if that's the argument you're going to try and make. As you can see in the posted case law, simply suggesting tuning forks should still be used as been tried before without success. The U.S. manual will not be admissible in Court since it's for a different device. While the hardware is basically the same, software between US/Canadian versions is slightly different.

The bottom line is that the courts in Ontario are using the manual as the basis for what is required but you are saying that the manual is to a certain extent reflective of what the courts require. This is a problem in logic as each is passing the buck to the other.

I was able to get a copy of the Canadian many in PDF. The Canadian manual and the U.S. manual are identical except for one table they converted to km/h and the testing section which has the Tuning Fork test removed.

Here is some of the text in the Tuning Fork section of the U.S. manual:

"In addition to the system test, you can verify signal

processing accuracy by using a tuning fork...

If the device does not display the expected speed,

contact Decatur Electronics Customer Service at

800.428.4315 to arrange for service."

So the manufacturer is saying that operators in the U.S. should test with the tuning fork and if the test fails to call them to service their unit. Yet the manual in Canada does not even recommend the test.

This means we are to believe that somehow Decatur developed a special unit just for Canada which does not need the Tuning Fork test. Again, it is more likely that Decatur noted that Canada stopped performing the tuning fork test and so took it out of the manual for them (keep the customer happy.) The problem is that R. v. Howse requires the standard for what tests to do to be what the manufacturer recommends and not the other way around.

It might be a long shot but I plan on trying to introduce both manuals and make the above argument.