ONTARIO COURT OF JUSTICE
IN THE MATTER OF an appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;
BETWEEN:
United Counties of S.D.G. Appellant
— AND —
Okeve LAING Respondent
Before Justice J.R. Lalande
Heard on February 27 2026
Reasons for Judgment released on March 3 2026
J. Carrier..................................................................................... counsel for the prosecution I. Chalmiev.................................................................................... counsel for the defendant
On appeal from acquittal by Justice of the Peace Dibblee on December 3 2025.
Overview
1Mr. Laing was acquitted at trial on a charge of stunt driving by way of excessive speed. The Crown appeals the acquittal.
2Essentially, the facts found at trial include that the accused was observed by PC Spaiou driving in a 2017 Acura on Highway 401 around 02h37. PC Spaiou clocked the accused with his radar at 160km/h in a 100km/h zone.
3After grappling with the various issues in his judgment, the Justice of the Peace concluded that the evidence failed to show that the radar device relied on by the officer was functioning properly. As a result, His Worship was not satisfied that the Crown had established the speed of the accused’s vehicle.
Positions of the Parties
4The Crown argues that two errors of law were committed by the Justice of the Peace. The first is by way of a misapprehension of the evidence (Morrissey, 1995 3498 ONCA at para 83; G.G., 1995 8922 ONCA at para 60). The evidence in question relates to the officer’s testimony on the testing of the radar device. The second is that the Court misapplied the law. That error is alleged in relation to the proof required with respect to the testing of radar devices. The Crown argues that His Worship’s judgment has the effect of expanding the requirements that need to be established by the prosecution to prove that the device was properly functioning.
5The Respondent resists the appeal, characterizing the findings of the Justice of the Peace as sound and devoid of any legal error.
Discussion
6The stunt driving allegation was particularized as excessive speed. As a result, the Crown was tasked with proving the following elements beyond a reasonable doubt: (1) the date of the offence, (2) the jurisdiction where the offence was committed; (3) the posted speed; (4) identification of the driver; and, (5) the rate of speed of the moving motor vehicle as being in excess of 50km/h over the posted limit of 100km/h or in excess of 150km/h (Williams, [2008] OJ No 1078 (OCJ); Races, Contests, Stuns, O. Reg. 455/07).
7Here, the trial turned on the last element, being the rate of speed. The evidence was clear that the radar detected the Respondent’s speed as 160km/h. This speed is in excess of 150km/h and more than 50km/h over the posted limit of 100km/h. However, the reliability of the speed detection device was the key issue.
8The Court of Appeal has indicated that, where the Crown relies on a speed detection device, some prima facie evidence concerning the reliability of the device should be tendered (Vancrey, 2000 26961 (ONCA)). A review of the caselaw suggests that this evidence often includes the officer’s training and experience, that the device was tested before and after the reading in question, and that the accuracy of the device was verified by the testing (Vancrey, Knabe, 2017 ONCJ 35, Anghel, 2010 ONCJ 652, Pappas, 2005 OJ No 764 (OCJ)). The failure to use or test precisely in accordance with the manufacturer’s guidelines is not always fatal (Knabe, at para 33, Volfson, 2009 OJ No 1978 (OCJ), Pappas, at paras 1-2).
9In this case, the evidence was that the officer was properly trained with respect to speed detection as well as the device he employed. It was also clear that the officer used it regularly without issue and that some form of testing of the device was performed at the beginning (00h02) and end (04h00) of his shift.
10Importantly, the record at trial suggested that there are two ways to test the radar. The first involves a self-test of the device. The second involves mobile tests where the radar is used on a stationary item or structure from the police cruiser, while the vehicle is in motion. The readings can be compared to the police cruiser’s speedometer to ensure that it is accurate.
11In chief, the officer did not provide significant detail in terms of the testing but indicated that he pressed the button to engage the self-test and that “all the tests passed and there was no issues”. Later, in cross-examination, he elaborated to say that he completed both the self test and mobile tests at 00h02. He explained that the result of the self test showed the device to be in normal working order and commented that the results of the mobile tests corresponded his speedometer.
Misapprehension of Evidence
12I am not persuaded that an error of law occurred with respect to a misapprehension of evidence, such that it rendered the verdict unreasonable or occasioned a miscarriage of justice by rendering the trial unfair. Having reviewed the Justice of the Peace’s reasons in full and in the context of the issues at trial, it is apparent that His Worship was reluctant to accept the officer’s evidence on the issue of mobile testing and was also concerned that the evidence was lacking in detail.
13To explain, the Justice of the Peace acknowledged in his reasons the officer’s testimony that he tested the device during his examination-in-chief as well as his answers in cross-examination describing a mobile test at 00h02. Thus, there is no doubt that His Worship was aware of the specifics of the evidence and considered them.
14However, the Justice of the Peace concluded that, owing to some concerns with the evidence, he was not prepared to find that the device was working properly based on the officer’s testimony. The passages at issue include the following:
…I have some concerns with the testimony…on whether or not that portion of the test was completed for the accuracy of the device. At no point did the officer say with any certainty that the mobile test was fully done that day…
…you do that at more than one speed to ensure that this is functioning. That, I do not believe I can say with all certainty, occurred on this date…
…I have some doubt as to whether or not the full proper testing procedures were conducted on that time and date by the officer prior to the use of the unit, and on that technicality, I am finding Mr. Laing not guilty.
15Read in context, the concerns in question appear to relate to the quality of the officer’s evidence as well as the level of detail provided with respect to the testing. That is, the officer’s evidence in chief was extremely brief on the issue of testing and the subject of mobile testing was not mentioned. In cross-examination, the mobile testing was referred to briefly, but the Justice of the Peace was not satisfied, based on that evidence, that the mobile test was in fact properly performed at 00h02. The record does not expressly indicate any mobile test performed in the 04h00 timeframe. His Worship went on to highlight two other examples of inconsistencies with the officer’s testimony that concerned the Court, including on the issue of his time of observation of the vehicle as well as the posted speed limit to support his conclusion as to the officer’s testimony.
16In my view, when taken in context, the reasons of the Justice of the Peace do not suggest that he misapprehended the evidence. Rather, His Worship did not accept the officer’s evidence on this point or found it lacking in detail such that he was unable to make a finding. As he was not persuaded that the device was properly tested, he was not persuaded that it was reliable. Therefore, the Court could not find beyond a reasonable doubt that the accused was speeding at the level indicated on the detection device.
17While I may not have come to the same conclusion, in an appeal under section 116 of the POA, it is not my role to substitute my view over that of the Justice of the Peace in the absence of a legal error. His Worship was entitled to accept all, some or none of the officer’s evidence. His findings on the issue of the witness’ credibility and reliability, as well as his findings of fact, are entitled to significant deference (Saleh, 2022 ONCA 735 at para 22; Scharf, 2017 ONCA 794 at para 7). Here, those findings clearly support the Court’s conclusions. This ground of appeal must be dismissed.
Misapplication of the Law
18My conclusion from the first ground of appeal also resolves this issue. When read as a whole and in context, the Justice of the Peace did not accept the evidence of the officer on the point of the mobile testing or found it lacking.
19To be sure, I do not read the reasons as having the effect of expanding the requirements that need to be established by the prosecution to prove that the device was properly functioning. I appreciate that His Worship explained his conclusion on the issue of mobile testing with reference to the terms ‘doubt’ and ‘certainty’. When the phrases are read in isolation, these use of these terms may suggest that the criminal standard of proof beyond a reasonable doubt was applied to the issue of the mobile testing. This would be a misapplication of the law as only the elements of the offence – here the actual speed of the accused – require proof of such a high degree of certainty. The evidence of the device’s reliability is not required to be proven beyond a reasonable doubt.
20However, to be fairly considered, the Court’s reasons must be read as a whole, in the context of the evidence and submissions, and with an appreciation of the fact that His Worship delivered an oral judgment at the conclusion of the trial. I am of the view that, when approached from this perspective, the reasons of the Justice of the Peace indicate that he had concerns with the officer’s evidence on the issue of mobile testing. These concerns are supported by the fact that the evidence emerged in a piecemeal fashion on this issue, lacked detail and, when considered along with other inconsistencies, left the Court unable to make the necessary findings to support a conviction.
21For the sake of clarity, the requirements to establish the offence of speeding or stunt driving by way of excessive speed remain undisturbed. Unless and until the legislature enacts a prescribed schedule of devices or conditions precedent to the admissibility of the results of approved speed detection devices, the Court of Appeal’s guidance in Vancrey remains the controlling law. It should be applied with any necessary modifications to accommodate the evolving technology of speed detection devices.
22Those requirements include what the Court of Appeal referred to as prima facie evidence which provides a circumstantial guarantee that the speed detection provided accurate readings, subject to evidence to the contrary. In Vancrey, the Court of Appeal relied on evidence that the officer was trained and experienced with the device, that the device was tested before and after the reading in question, as well as comparison readings with an independent device. The Court of Appeal held that the cumulative effect of that evidence was to provide a sufficient guarantee of trustworthiness such that the speed detection device’s result was considered reliable.
23Here, as I’ve explained, the Justice of the Peace was unable to draw a similar conclusion given that, based on the evidence that the Court accepted, it could not make a finding that the device’s accuracy was verified by an independent source.
Disposition
24The appeal is dismissed.
25Finally, I wish to thank Mr. Carrier for his excellent materials and presentation on the appeal.
Released: March 3 2026
Signed: Justice J.R. Lalande