Court of Appeal for Ontario
JUDGES: Doherty, Pepall and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen Ex Rel. the Regional Municipality of York
Appellant
and
Wai-On A. Chair
Respondent
COUNSEL:
Hans J. Saamen, for the appellant
Arvin Ross, for the respondent
HEARD: December 8, 2015
On appeal from the order of Justice W. Gorewich of the Ontario Court of Justice, dated August 8, 2014, setting aside a conviction and ordering a new trial.
APPEAL BOOK ENDORSEMENT
1The 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.
2In 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”.
3The 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.
4We 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”.
5Appeal allowed and conviction restored.