Court File and Parties

Court File No.: Regional Municipality of Durham 999 11 3746-00

Date: 2012-06-11

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Brian DePoe

Before: Justice of the Peace R. J. Le Blanc

Heard on: November 30, 2011

Reasons for Judgment released on: June 11, 2012

Counsel:

Ms. McGuire for the Crown

Mr. Tierney for the defendant Brian DePoe

Facts

[1] Agent Mr. Tierney pleaded not guilty on behalf of client Brian DePoe on November 30, 2011 in Whitby's courtroom 101 to a charge of speeding, 115 km/h in a posted 80 km/h zone on the 26th of September 2010 in the eastbound lanes of Hwy. 7, west of Salem Road in Pickering in Durham Region.

[2] Fully qualified Atlanta laser operator, OPP Const. Charmaine Tomlinson said she tested the unit at 2 p.m. that day to manufacturer's specifications, and again at the end of her shift and determined the speed measuring device was working properly.

[3] Const. Tomlinson said she visually observed a motor vehicle travelling faster than the posted 80 km/h speed limit, and she activated the laser, resulting in a reading of 115 km/h. There are two through lanes and a turn lane at this location. The roads were dry, conditions clear and sunny and traffic light at the time.

[4] Const. Tomlinson said she had a clear, unobstructed view of a silver Ford Fusion, Ontario licence plate number BKBB733. She stopped the motor vehicle and demanded documents from the driver, receiving a valid Ontario photo driver's licence in the name of Brian DePoe, date of birth February 24, 1958. Const. Tomlinson said she was satisfied she was dealing with the individual before the courts and issued summons for speeding and driving without a valid contract of automobile insurance. The latter charge was later withdrawn.

[5] Under cross examination Const. Tomlinson said she conducted a self-test on the laser unit in addition to a scope alignment – both vertical and horizontal with two distance tests, some three meters and nine meters respectively, measured with a tape measure from the rear of her vehicle. The officer reaffirmed the device was working properly on the date and at the time in question.

Legal Arguments

[6] The court became mired in a series of legal arguments. Mr. Tierney argued he was entitled to the radar manual for use in cross-examination, and that the manual's recommendations call for vertical and horizontal scope alignment tests to be conducted from a distance of 45 m.

[7] Crown Ms. McGuire argued the defence was not entitled to the radar manual, essentially because of copyright concerns, and because the author of the document would not be available for cross examination. This court offered to strike the plea given it would not available for trial continuation, due to conference and telewarrant commitments, until June 11, 2012. Both parties declined and the court ordered deadlines by which Mr. Tierney would provide written arguments and Ms. McGuire would respond.

[8] The court received a letter from Ms. McGuire in April apologizing for being unable to meet her court-appointment deadline given she had not, and presumably has still not received written arguments from Mr. Tierney. The court has not received any documentation from Mr. Tierney.

[9] Mr. Tierney appeared before this Justice of the Peace on Friday, June 8, 2011 on another matter. The agent's failure to meet court appointed deadlines was brought to his attention, on the record, with prosecutor Karen Miller in attendance. Mr. Tierney, as an officer of the court, apologized for his misunderstanding of the court's orders, and for his failure to file submissions within the court-ordered time frame. Presumably Mr. Tierney has also apologized to Ms. McGuire for this oversight.

[10] That said, the three major points to be determined by the court include the use of issuance of all or a part of a radar manual as part of disclosure, whether all or part of the radar manual can be put to a witness given the author is not present to be cross-examined and given copy-right concerns, and whether strict adherence to the radar manual is necessary.

Case Law Analysis

[11] There is well-established case law for each argument. The court has taken it upon itself to gather this case law in the absence of submissions from the Crown or agent in the case, with an eye to forestalling similar arguments in the Whitby Provincial Offences Courts in the future.

Evidence Required for Speeding Conviction

[12] R. v. Dattomo, 2009 ONCJ 539 cites R. v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.) which follows D'Astous v. Baie Comeau, (1992) 74 C.C.C. (3d) 73 (Que. C.A.) in respect of the evidence required for a speeding conviction.

[13] Judicial notice may be taken of the fact radar or laser is used to measure the speed of motor vehicles, however the Crown must prove the particular radar or laser device was operated by a trained and qualified individual, and that it was used accurately at the time by way of testing the device before and after a traffic stop. Evidence to that effect is said to be prima facie evidence of the speed of a motor vehicle, subject to evidence to the contrary.

[14] The Ontario Court of Appeal established the principle that the device be tested in accordance with manufacturer's specifications as per R. v. Williams, 2008 CarswellOnt 1504 (Ont. C.J.).

[15] "The only 'essential elements of the offence' in a speeding charge are the date, place, posted speed, identification of the vehicle operator and the speed of the motor vehicle. The Highway Traffic Act leaves it open to the prosecution as to how the rate of speed is established in court.

[16] The evidence must meet the test of demonstrating a circumstantial guarantee of trustworthiness and accuracy and that without any weight to the contrary, evidence was admissible and entitled to weight."

Operator Qualifications

[17] It is not an essential element that the radar officer be 'qualified' in any particular manner but R. v. Werenka (1981), 11 M.V.R. 280 (Alta. Q.B.) stands for the premise the Crown is required to prove the operator is qualified by virtue of a course, passing an exam, and several months experience.

[18] R. v. Skimming-Quesnel [2011] O.J. No. 3799 2011 ONCJ 376: the defence indicated the prosecution had not provided evidence of training, and that his qualifications were never entered. There is no requirement in the HTA that the radar operator achieve a certain level of qualification as prerequisite to accepting the operator's evidence of rate of speed, even though the Court routinely hears such evidence.

[19] R. v. He, [2003] O.J. No. 2254: In my view, it then becomes a factual issue for the presiding justice of the peace to determine whether or not any given individual officer is, in fact, trained and qualified.

Disclosure of Radar Manual

[20] The obligation rests on the applicant to show items sought through disclosure are relevant. It is not enough to merely ask and there is no absolute right to disclosure of an entire radar manual R. v. Longmire [1993] N.S.J. No. 15 (N.S.C.A.) speaks of a defendant failing to lay a rational or factual foundation for disclosure requested," and as such had not been deprived of their right to a fair trial and to make full answer and defence. This is supported in R. v. Reybroek [1998] O.J. No. 2586 (O.C.J.).

[21] R. v. Irwin [2007] O.J. No. 3840 2007 ONCJ 440 59 M.V.R. (5th) 145 CarswellOnt 6423 75 W.C.B. (2d) 572 says there is no automatic right to the production of the manual; the justice of the peace did not see the relevance in the entire manual, as it related to making full answer and defence and the lack of the entire manual did not impact upon the ability to make full answer and defence.

[22] R. v. Oosterman, [1998] O.J. No. 5785: Is the material sought reasonable and useful to the defendant in making full answer and defence? The radar manual sought was relevant in that it contains information relating to specifications referred by the officer. The defendant's ability to make full answer and defence may be adversely affected were it not provided.

[23] R. v. Sequin [2007] O.J. No. 382: The justice of the peace has the discretion to order that the radar unit manual or part of the radar manual be produced if there is some material basis to do so. They determine relevancy. If there is no relevance then no order is appropriate. If there is relevance relating only to a part of the manual, then only a part of the manual should be ordered. The onus is on the applicant. A decision, if necessary, must be made on the side of inclusion.

[24] R. v. Vanier 2005 ONCJ 318, [2005] O.J. No. 5466 paragraph 16 says, "The photocopy of a portion of the unit manual and the offer of access to the balance was enough to minimally satisfy the prosecution's obligation regarding the manual disclosure."

[25] Oosterman, supra says the ability to make full answer and defence is paramount to any interest the owner of the manual may have in the copyright. Thunder Bay (City) v. Millar, 2009 ONCJ 485: It is not reasonable to take the position that the radar manual or relevant parts may be purchased. That would impose an unnecessary financial burden on any defendant. Err on the side of inclusion on disclosure. The expense to the state in disclosing these extra is surely outweighed by fairness to the defendant and the enhancement of justice."

Use of Manual in Cross-Examination

[26] R. v. Anghel 2010 ONCJ 652 referring to R. v. James Troy says a radar manual can be produced to a witness without the necessity for the author of the manual to be present for cross-examination by the Crown. Justice Wake: "I rule that manuals and written material ought to have been placed before Const. O'Connor in cross-examination as a means of testing the weight to be given to his expertise and qualifications as an operator of a radar device."

[27] Thunder Bay (City) v. Miller supra refers to s. 46(2) of the POA which says it is fundamental that full answer and defence be available and this right depends on disclosure relevant to the charge as per R. v. Stinchcombe (1991) 68 C.C.C. (3d) 1 which requires disclosure of 'relevant items.' Case law has developed to suggest the extent of disclosure may depend on the seriousness of the charge and consequences of a conviction.

[28] It is within the Crown's discretion as to what should be disclosed. R. v. Foote [2006] ONCJ 369 and R. v. Shannon [1992] O.J. No. 2652 say a trial Justice of the Peace has the jurisdiction to order disclosure be provided.

Strict Compliance with Manufacturer's Specifications

[29] R. v. Pappas [2005] O.J. No. 764 says, "It's not a condition precedent to a finding of guilt that an officer followed to the letter the testing procedures. The officer's attention was drawn ... because he visually observed a high rate of speed. ... It's true he did not follow to the letter the manufacturer's recommendations, but that doesn't necessarily, in law, automatically give a defence to the charge. It's an issue of whether there is a reasonable body of evidence that would permit a trier of fact to conclude the offence has been committed to the exclusion of a reasonable doubt."

[30] R. v. Anghel supra, "The court should not consider the radar device to be unreliable just because an officer does not recite step-by-step a procedure that takes seconds and is largely automatic for an experienced operator. ... The court has to look at the totality of evidence to determine reliability of the device, based on testing procedures, training and experience, and the circumstances of the case.

[31] R. v. Niewiadomski, [2004] O.J. No. 478 (Ont. C.J.) says a court may infer evidence of the rate of speed of a motor vehicle obtained through the use of radar or laser is reliable provided that the evidence before the court as to the use and working order of the device and the qualifications of the operator are not contradicted.

[32] R. v. Richard Tozer, (2008, unreported Ont. C.J.), Evidence adduced at trial established the officer using a radar device conducted all mandatory tests as stated in the manufacturer's instruction manual despite failing to perform some additional tests considered to be optional. Failure to perform "additional", "unspecified" tests did not raise a reasonable doubt as to the accuracy of the unit at the material time. "There is an absence of any evidence to suggest tests performed by the qualified radar operator, in accordance with his training ... were in any way inadequate. The test that the performed is the self test which performs internal diagnostic tests and displays results indicating whether the unit is working properly. ... The highest point reached by the evidence from the defendant is that there are additional tests set out in the manufacturer's manual that could be done. There is no evidence; however, to suggest that these tests are required to be performed before the operator could reach the conclusion that the radar unit was in proper working order.... the cross-examination of the qualified radar operator does not support a reasonable doubt.

[33] R. v. Volfson, [2009] OJ No. 1978 says, "Manufacturer's directions are not statutory requirements and should not be elevated to that status. They are not written for that purpose nor have they been adopted as such. ... Courts should look to the practical effect of the requirements set out by the manufacturer. Practically they operate as a scheme or a checklist to ensure the accuracy and reliability of the radar device. They are meant to be complied with as part of this scheme or checklist. Slavish adherence to these directions is not required if it does not practically affect the accuracy or reliability of the results obtained by the radar device. To hold otherwise could and would result in absurd findings. ... Simply put, there are times when it mattered not and this is one of them when examined in a purposeful and practical fashion".

[34] This runs contrary to R. v. Niewiadomski, supra, at paragraph 29: There would be no reason for the device manufacturer to set out specifications and directions if it mattered not whether they were complied with.

[35] R. v. Kololgi, [2009] O.J. No. 5742 (Ont. C.J.), appeal of a stunt driving conviction for speeding because the qualified radar operator failed to follow two required components of the user manual, prepared by the manufacturer elated to the proper operation of the device at the time it is to be used for enforcement action.

[36] R. v. Martin 2008 ONCJ 217, [2008 ONCJ 217] and R. v. Cormier [2008] O.J. No. 4964 (Ont. C.J.) state the manual must be complied with by an officer if there is to be enforcement.

[37] R. v. Hofland, 2011 ONCJ 40, says the officer cannot pick and choose which requirements to adhere to. A conclusion as to the accuracy and reliability of the device is founded on compliance with these requirements, essential where the entire prosecution is founded on the numerical reading obtained. Only strict compliance to mandatory specifications can assure the reliability and the accuracy of reading obtained through operation of the device beyond a reasonable doubt.

[38] R. v. Skimming-Quesnel, supra, after hearing evidence from a radar expert on the use of the Genesis II Select Directional radar device and testing procedures that manufacturer's instructions for its use are to be considered guidelines, and are not statutory requirements.

[39] At trial, the justice of the peace held the officer was a trained and had tested the equipment at the beginning of his shift and that there was no evidence it was not working properly. Defendant appealed, arguing it should have been tested at the end of his shift and specific times noted as to testing. Appeal dismissed. Officer did not follow manufacturer's instructions. Trial justice did not err in arriving at conclusion there was no evidence to suggest equipment was not working properly. R. v. Meli [2011] O.J.No. 5314 (Ont. C.J.) upholding R. v. Meli [2011] O.J. No. 5313 (Ont. C.J.).

[40] R. v. O'Reilly, [1979] A.J. No. 554 10 Alta. L.R. (2d) 199 16 A.R. 369 3 M.V.R. 228 3 W.C.B. 368 says the Crown must adduce evidence the radar is capable of accurately measuring speeds and that approved tests show it was working as per manufacturer's specifications. The instrument must be used by a trained operator but they need not have knowledge of the electronics or mechanisms of the device beyond being familiar with its use. The operator must be satisfied the machine was operating properly at the time.

[41] While prima facie evidence, it is still open to rebuttal or raising a reasonable doubt. There may be a defence in atmospheric conditions such as fog or drizzle. A defendant was acquitted when a justice took notice of such from a text book. Such was not the case in R. v. DePoe.

Court's Decision with Regard to Legal Arguments

[42] The court rules the portion of the radar manual with regard to testing procedures on the Atlanta laser is relevant to full answer and defence with regard to a speeding charge, and therefore should be produced without reservation to copyright or the need to cross-examine the author of the document. The bar for the test to establish relevance is set reasonably low and that bar has been met in this instance.

[43] The court finds itself in favour of the case law which supports the use of the relevant portion of the radar manual for the purposes of full answer and defence supersedes both arguments in favour of copyright, and in favour of having the author of the radar manual document present for cross examination purposes.

[44] Finally, the court, cognizant of the case law as it pertains to manufacturer's recommendations, finds in favour of the premise that these are simply that: recommendations to be followed as to intent, if not to the exact letter. It would appear in this case that Const. Tomlinson followed the intent of laser manufacturer's recommendations by measuring distances from the rear of her cruiser – using a tape measure to establish accuracy. That she did not use the manufacturer's recommended distance of 45 metres does not necessarily lead to the conclusion that the laser was not working properly on the date in question.

[45] And now, the court having rendered decisions on these legal arguments which presumably might have been better argued in a pre-trial rather than using precious court time and resources, resumes the trial of Brian DePoe.

Released: June 11, 2012

Signed: "Justice of the Peace R. J. Le Blanc"