His Majesty the King v. Giorgio Garofalo, 2026 ONCJ 3

ONTARIO COURT OF JUSTICE

CITATION: R. v. Garofalo, 2026 ONCJ 3

DATE: January 5, 2026

BETWEEN:

HIS MAJESTY THE KING

RESPONDENT

— AND —

GIORGIO GAROFALO

APPLICANT

Before Justice of the Peace V. Fisher-Grant

Heard on October 8, 2025

Reasons for Judgment on Disclosure and Evidence Admissibility Motion

released on January 5, 2026

Ms. D. Mikec agent for the prosecution

Mr. G. Garofalo...................................................................... appearing on his own behalf

1Mr. Garofalo is charged with speeding on September 20, 2024.

2He has brought several motions related to the admissibility of evidence and disclosure of certain items. I dismissed the motions with brief verbal reasons on October 8, 2025 indicating written reasons would follow in advance of the trial date. These are those reasons. The trial is now scheduled to be heard January 20, 2026.

Disclosure of Maintenance Records

3The applicant seeks disclosure of maintenance records of the Lidar speed measuring device indicating, in part, that it is needed to “permit independent forensic analysis” and to “test reliability and to prepare meaningful expert opinion or cross-examination.”

4The prosecution has provided the make, model, serial number of the device used as well as a link to the manual related to the device¹. It has responded to the request for maintenance records that there are “no maintenance records for this device.”²

5While the prosecution has responded that the records do not exist, that is not the end of the enquiry. The enquiry with respect to these types of records is whether the applicant has established a basis for the disclosure of same.

6The prosecution has the obligation to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory pursuant to R. v. Stinchcombe.³ However, this duty is not absolute. The Crown does not refer to “all Crown entities. … all other Crown entities, including police, are third parties for the purposes of disclosure.” ⁴

7Where a record is third party disclosure it is then subject to the O’Connor process. To obtain such disclosure, an accused must make an application. The burden is on the accused to show that first the record is “likely relevant” and once the relevance burden is discharged the Court will examine the record to determine whether and to what extent the record should be produced.⁵

8Likely relevance will be satisfied if there “is a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify.” This threshold has been described as significant but not onerous to allow courts to act as “gatekeepers” to prevent “’speculative, fanciful, disruptive, unmeritorious, obstructive, and time consuming’ requests for production.”⁶

9The Supreme Court of Canada in R. v. Gubbins,⁷ reviewed whether requests for maintenance records of the instrument in an impaired driving prosecution were subject to disclosure. The court held that the records were third party disclosure and that while maintenance records are “certainly relevant to whether the instrument is properly maintained, … maintenance of the instrument on a given day is not material to the instrument’s functioning or proper operating at the time of testing. Thus, the requested records are not obviously relevant to a material issue in the present case.”⁸

10The court continued that without “expert opinion on how maintenance records might be relevant to the key material issue in this case: determining whether an instrument was malfunctioning or operated improperly” the maintenance records are not relevant.⁹

11The test for “likely relevance” will not be satisfied on a “mere assertion that the record is relevant to credibility”. As the Ontario Court of Appeal explained in R. v. Batte,¹⁰ the applicant must point to some “case specific evidence or information” to justify such an assertion.¹¹

12While several paragraphs are consumed in Mr. Garofalo’s application asserting that the manuals are necessary, there is no factual foundation or evidence underlying the basis for his submission. Therefore, he has not established any likely relevance, and his motion is dismissed in this regard.

Voir Dire Necessity to Determine Admissibility of Evidence related to Speed Device

13The applicant submits that there should be a voir dire held to determine whether the evidence obtained by the officer through the use of the Lidar device should be admitted. The case of York (Regional Municipality) v. Iagolnik¹² speaks to this issue. Therein, the prosecution proceeded via certificate evidence in the speeding trial, and therefore did not call the police officer as a witness. In dismissing the defendant’s appeal from conviction, the court held in part:

Are There Pre-Conditions to the Admissibility of Speed Measurement Evidence?

19The appellant submits that the courts have established pre-conditions to the admissibility of speed measurement evidence for RADAR (Radio Detection and Ranging), and LIDAR (Light Detection and Ranging – LASER) and for speed measurement by vehicle pace. Where the prosecution does not call an officer to testify, there is no evidence that meets the pre-conditions for the admissibility of the speed evidence. The statutory amendment notwithstanding, the prosecution cannot circumvent the established requirements and must call viva voce evidence in every case.

20The appellant cited R v Vancrey, [2000] OJ No 3033 (CA) as establishing pre-conditions for the admissibility of LIDAR evidence, and R v Bland, 1974 1585 (ON SC), [1974] OJ No 2139 (CA) as setting out pre-conditions for speed evidence by vehicle pace. The case of R v Grainger, [1958] OJ No 218 (CA) discusses the admissibility of RADAR speed detection evidence. The brief endorsement in R v Bigioni, [1988] OJ No 2220(CA) mentions evidence regarding a RADAR unit that was found sufficient in that case, but note the issue at trial [1987] OJ No 2481 (Prov Ct), was whether a police officer’s evidence regarding the operation of the radar device was sufficient to answer a challenge in that regard.

21As Justice Fairgrieve explained in R v Le, [2002] OJ No 894 (CJ) at paragraph 5, the Court of Appeal in Vancrey found that the evidence in that case was sufficient to establish the accuracy and reliability of a LIDAR laser speed measurement device. LIDAR devices had been in use at least 7 years prior to that decision, but Vancrey was the first appellate challenge to such devices as novel technology. The Court of Appeal did not state that such evidence was required in every case. Decades later, the admissibility of evidence from RADAR, LIDAR and vehicle pacing is no longer the subject of reasonable dispute. A defendant may challenge the operation of a device or the functioning of a particular device, but the prosecution is no longer required to prove the general reliability of RADAR or LIDAR devices for speed measurement. [emphasis added]

22It’s important in this context to distinguish between the admissibility of speed detection evidence and the weight to be given to that evidence. Where the prosecution calls an officer to testify, they will typically establish the circumstances of testing including any steps taken to ensure the device was in working order. The prosecution calls that evidence not to prove the admissibility of that mode of speed detection (LIDAR, RADAR, Pace), but to show what weight if any should be given to the speed measurement evidence.

23The decisions cited above do not prescribe steps that must be taken in every case. They discuss steps officers took in those cases that led to a finding that the speed detection evidence was reliable. Failure to follow a particular step may or may not leave a doubt about the reliability of the speed measurement depending upon the rest of the evidence in the case. For example, failure to follow a step in a device manual does not automatically mean that the device readings were inaccurate, or the results were unreliable – R v Jennings, 2018 ONCA 260, Kirshen v. York (Regional Municipality), 2019 ONCJ 313. Evidence that may be crucial in one case may not be important in another. Upgrades in device technology over time render obsolete certain testing or calibration practices and introduce others. The task of the Justice of the Peace always remains the same – to decide on the whole of the evidence whether a reasonable doubt remains.

14The applicant’s request for a voir dire is therefore dismissed. The prosecution can call evidence, if it chooses, with respect to the speed measuring device. The applicant can cross-examine the officer in this regard within the bounds of relevance and other evidentiary rules.

Officer’s Notes

15The defendant submits that the court should be concerned regarding the reliability of the device based on the notes of the officer and what tests were conducted in contrast to the tests required by the manufacturer.

16At this stage, the applicant’s submission is not well-founded. Notes are an aide memorie for the officer. They do not have to be a verbatim or fulsome recitation of the officer’s evidence.

17In R. v. Neuman¹³, a POA appeal decision, one of the issues at appeal was with respect to the issue of whether any weight should be given to an officer’s evidence when there were no notes made regarding his testing of the radar device used. The Court in Neuman, following the reasoning in R. v. Golubentsev¹⁴, held:

16Courts have repeatedly confirmed the principle that an officer’s notes are merely testimonial aids and not evidence. Officers are expected to have an independent recollection of the events they are testifying about and the notes are there to assist with specific details. To suggest that the failure to make a notebook entry on something, particularly on something like routine procedure or practice, requires the trial judge to conclude that the event did not occur would effectively eliminate the need for an officer to have an independent recollection and result in the notes becoming the evidence.

17In this case, the officer testified that he had made an entry in his notes that he had tested the radar device at a particular time “as per manufacturer’s specifications.” At trial he elaborated on his understanding of those specifications. It is clear, therefore, that the officer had an independent recollection of his actions and was using his notes as an aid to his memory.

18Mr. Garofalo can cross-examine the officer regarding the contents of his notes, and the making thereof. He can also cross-examine the officer as to the use of and tests related to the speed measuring device. The weight to be given the officer’s evidence is a matter for trial. Mr. Garofalo’s motion at this stage is not well-founded. The parties may make submissions at the end of the trial as to the reliability of the officer’s testimony and evidence.

Location and observations made by the officer

19Mr. Garofalo requests particulars on where the officer was situated at the time of his observations. He has been provided with a copy of the officer’s notes, the certificate of offence, as well as an additional will-say statement indicating “I was on the right shoulder of the roadway, vehicle was facing south and I was observing traffic in the westbound lanes.”

20Mr. Garofalo has been provided sufficient information to mount a defence to the charge through the officer’s notes, certificate and the additional will-say statement. He can cross-examine the officer on his observations, ability to observe, location during the course of the trial.

Prior Cases and testimony of the Officer

21The applicant submits that the officer’s training appears to have been completed just weeks before the traffic stop, as such there may be concerns about his practical experience and reliability. Additionally, he seeks the credentials of the instructors who trained the officer, the officer’s certification and his exam results.

22The applicant has been provided with a will-say related to the officer’s initial qualification date and requalification.

23Courts have repeatedly held that what matters is what an officer did. While “how the officers were trained may or may not have affected how they did their jobs, … what matters is what they did… .”¹⁵ The relevance of such materials and evidence is to be assessed on a case specific basis, and whether the material sought is likely relevant at the applicant’s trial.

24There is no likely relevance to this inquiry or request for disclosure. It is therefore denied. It is speculative and a fishing expedition. There is nothing in the applicant’s materials that suggests any probative value to a specific issue in this case. It is speculative to suggest that the officer being recently trained leads to an inference that he is less reliable. Simply because something might assist in cross-examination, does not equate to likely relevance such that material should be disclosed or, by extension, allowed¹⁶.

Costs

25Mr. Garofalo seeks costs of his motion submitting the various requests he has made for disclosure.

26A costs award is only appropriate where the Crown's conduct constitutes "a marked and unacceptable departure from the reasonable standards of the prosecution" and amounts to serious Crown misconduct.¹⁷ An adjournment is the most common remedy for non-disclosure. When non-disclosure occurs at trial, this is the appropriate remedy.¹⁸ The Prosecution in this matter responded to Mr. Garofalo’s requests for disclosure after the first trial date of June 18, 2025, on July 28, 2025, and again on October 8, 2025. The trial was adjourned on June 18 to facilitate the disclosure requests. On October 8 the disclosure motion was heard. The matter then was adjourned, due to time constraints, so the trial to be accommodated. In an effort to facilitate the parties’ preparation for trial the court gave brief oral reasons regarding this motion on October 3 and indicated a written decision would be release in advance of the hearing of the trial.

27In this matter, the conduct of the Prosecution is not akin to misconduct nor serious misconduct. The materials have been provided as above and/or dealt with in this application. There is no reason to conclude that this matter arises to the level of an abuse of process wherein a costs award would be warranted.

28Matter is remitted to the trial date.

Footnotes

1. 1See York (Regional Municipality) v. McGuigan, 2018 ONCA 1062 where the user manual of a speed measuring device relied on by the prosecutor in speeding prosecution is first party disclosure. Held; prosecution can post manual online and provide URL to defendant to satisfy disclosure obligation.
2. 2Email from Prosecution on July 28, 2025 to the applicant contained in his application record
3. 3R. v. Stinchcombe 1991 45 (SCC), [1991] 3 S.C.R. 326
4. 4R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, paras. 19-20
5. 5Ibid., para. 25
6. 6Ibid., para 26
7. 7Ibid. Note 4
8. 8Ibid., para. 49
9. 9Ibid., para. 57
10. 10[10] R. v. Batte (2000) 2000 5751 (ON CA), 145 C.C.C. (3d) 449, paras. 75-77
11. 11See also the discussion in R. v. Bailey, 2023 ONSC 7113
12. 12York (Regional Municipality) v. Iagolnik[12], 2022 ONCJ 318, paras. 19-23
13. 13R. v. Neuman, 2017 ONCJ 688
14. 14R. v. Golubentsev, [2007] O.J. No. 4608, paras. 16-17
15. 15See R. v. Beaver, 2016 ONSC 664, paras. 40-41
16. 16Batte, supra, at para. 77
17. 17R. v. Sault Sainte Marie, [2007] O.J. No. 4356 (Ont. S.C.) at para. 44
18. 18See R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244; R. v. Bjelland, 2009 SCC 38