Court File and Parties

Ontario Court of Justice

Date: 2019-05-10

Court File No.: Newmarket 4960-9183147Z

Between:

Jeffrey Kirshen Appellant

— And —

The Regional Municipality of York Respondent

Provincial Offence Appeal

Heard: May 10, 2019

Released: May 10, 2019

Counsel

Ms. Janet Gallin — counsel for the Respondent

Mr. Brett Lockwood — agent for the Appellant

Decision

KENKEL J.:

Introduction

[1] Mr. Kirshen was convicted at trial of speeding 100km in a 60km zone contrary to s 128 of the Highway Traffic Act RSO 1990 c H8.

[2] The officer testified that he measured the accused's speed at 100km/hr in a posted 60km/hr zone using a BEE III mobile radar device. (p.6) He tested the device shortly before that. He first had the device conduct its cycle of internal tests. After that he conducted a road test of the device against the speed displayed on the speedometer of his vehicle to ensure they matched +/- 3km/hour. The device also confirmed the external antennas were working. Based on the internal tests and the test of the device against his car's speedometer he was satisfied the BEE III device was in working order. He did a further successful test cycle after this traffic stop. The officer was trained to operate the device by the York Regional Police but he is not an instructor so he didn't know the inner workings of the device.

[3] The issue on this appeal – whether the trial court erred in finding the radar device used in this case was operated properly where a step in the manual directed at the calibration and accuracy of the device was not followed.

The Accuracy/Reliability of Speed Measurement

[4] As discussed in R v Sepiashvili [2003] OJ No 3996 (CJ) reference to accuracy and reliability in these cases may refer to:

• The general reliability of the technology to measure speed
• The reliability of the type of device or model used
• The specific functioning of the actual device used

[5] This appeal considers a challenge to the specific functioning of the device used in this case and whether that device was operated properly.

Reliability of Radar Generally – Judicial Notice

[6] Radar (RAdio Detection And Ranging) was developed during the Second World War. It has been used to measure the speed of vehicles for almost 70 years. The ability of radar technology generally to accurately detect vehicle speed at this point is properly the subject of judicial notice. « … Je crois que le radar, comme instrument de détection et de mesure, est de connaissance judiciaire. » Baie-Comeau (Ville) c D'Astous [1992] JQ no 475 (CA), R v Vancrey [2000] OJ No 3033 (CA) (citing Baie on this point at para 18). The appellant agrees that the general ability of radar to measure speed is not an issue.

Reliability of a Particular Device/Model

[7] The province has not seen fit to designate any particular speed measurement device as an approved device. That doesn't mean that an extensive voir dire with expert evidence must be held in each case to determine the ability of a particular device or model to measure speed. I agree with the appellant that there is no presumption in that regard and a court cannot take judicial notice that a particular device was functioning properly. Typically this requirement is satisfied by evidence from the officer who operated the device that it was capable of measuring speed, that it was in working order and that it passed tests before and after the measurement of the accused's speed to ensure that it was performing its function correctly.

[8] The BEE III has been considered as a reliable device to measure speed in several cases – R v Kee 2015 ONCA 730 and R v Goonoo 2009 ONCJ 248. The evidence before the court that the officer was qualified to operate the device, that the device was tested before and after use and that the tests showed the device was accurate were sufficient to establish the reliability of the particular device and a prima facie case with respect to the offence. «En somme, la démonstration que l'opérateur est qualifié, que son appareil fut testé avant et après son usage et que le test démontre que l'instrument est précis, établit une preuve prima facie … » Baie-Comeau (Ville) c D'Astous [1992] JQ no 475 (CA), R v Bigioni [1988] OJ No 2220 (CA).

[9] Of course a prima facie case is always subject to consideration of evidence that may leave a reasonable doubt.

Failure to Follow the Device Manual

[10] The central focus at trial and on this appeal was the alleged failure of the officer to follow the existing manual for the BEE III which recommended the use of tuning forks to calibrate the device. The appellant submits that the requirements in manufacturer's manuals are written for a purpose and any deviation should render the results suspect. The appellant cites R v Niewiadomski [2004] OJ No 478 (CJ) at para 30 on that point. A local decision adopted that approach - R v Kololgi, [2009] OJ No 5742 (CJ). Other courts held that departures from recommended practice may, not must leave a reasonable doubt – R v Xu 2012 ONCJ 278. The latter approach is consistent with current instruction from the Court of Appeal – R v Lam 2016 ONCA 850 leave refused [2017] SCCA No 2.

[11] Failure to follow a policy or a device manual does not automatically mean that the device was inaccurate or the results unreliable – R v Jennings 2018 ONCA 260. If a car manual called for a oil change every 5000km, it's not the case that the vehicle would necessarily fail or be unsafe if driven past that point. Not all policies or steps are essential and the court must determine in each case the impact, if any, of a deviation from recommended procedure. As I will discuss further below, this case provides an example of a failure to follow a step prescribed in a manual in circumstances where that omission could not reasonably have had any effect on the reliability of the device results.

Qualified Operator

[12] There is no minimum level of qualification prescribed by statute in this province for a radar speeding device. When assessing qualification to operate a device whether expressed using that word or by reference to training, the lack of training, inexperience and any lack of familiarity with operation of the device may all be assessed by the trier of fact in determining whether the alleged speed was proved beyond a reasonable doubt – R v Williams [2008] OJ No 1078 (CJ), R v Xu 2012 ONCJ 278.

[13] The appellant submits that cross-examination showed the officer was not a qualified operator of the device and didn't follow the manual and therefore a doubt remains about the accuracy of the registered speed. The appellant points to the following deficiencies:

• The officer admitted he didn't know the inner workings of the device
• The officer relied in part on the device internal tests
• The officer did not know the exact range of the radar in metres
• The officer did not follow a York Regional Police manual from 2001-2014 for this device.

[14] The officer testified as to his training and experience with the device. The court found he was qualified to operate the device and that conclusion was supported by the evidence.

[15] The officer determined that the BEE III was in working order by ensuring the internal tests of the device indicated it was functioning properly and by conducting a speed measurement test of the device against his own vehicle speedometer. That evidence provided a sufficient basis for the court to conclude that the device was operated properly and was working properly at the time in question. Proof that the operator was qualified to operate the device and that the device was successfully tested before and after the measurement in question is sufficient to establish a prima facie case – R v Bigioni [1988] OJ No 2220 (CA)

[16] An officer operating a speed device is not required to be trained in engineering or be familiar with the specific mechanisms that operate within the device including the internal tests related to the proper functioning of the device. It is sufficient if the officer is generally aware of the steps required to properly operate the device and ensure its accuracy. The officer was not able to state at trial the precise range of the device but in this case there was only one vehicle passing by the officer and the device registered a speed for that vehicle. The failure to state the hypothetical range does not have any impact in the circumstances of this case.

[17] The failure to follow the operating manual was reasonably explained. The step at issue was the use of "tuning forks" to calibrate the device. The officer explained that tuning fork calibration applied to earlier versions of this device using K band radar. The current device does not use that type of radar and is not calibrated in that fashion. The York Regional Police do not use tuning forks and this officer was unaware of any force that still used them. The officer's evidence was un-contradicted. The dated manual may retain some currency with respect to some features of the device, but the failure to follow a step that no longer applies to the current model cannot have any impact on the assessment of the accuracy of the speed measurement in this case.

Conclusion

[18] The Justice of the Peace found that the evidence established the radar device was in working order and provided accurate measurements of speed. That finding was open to the court and reasonable on the evidence. The court considered the evidence including the circumstances referred to by the appellant but found no reasonable doubt remained. That finding was reasonable on the evidence as a whole.

[19] The appeal is dismissed.

Released: May 10, 2019

Justice Joseph F. Kenkel