DATE: March 4, 2021
ONTARIO COURT OF JUSTICE Central West Region Halton (Regional Municipality)
-and-
Enrico Tatangelo
Proceedings: January 17, 2020 Decision issued: March 4, 2021
Appearances: P. Riley, for the prosecution T. Brown, for the defendant
Statutes Considered or Cited:
Cases Considered:
- R. v. Mills, [1986] S.C.J. No. 39
- R. v. S. (R.D.), [1997] 3 S.C.R. 484
- York (Regional Municipality) v. McGuigan, 2018 ONCA 1062
Background and Facts
[1] Mr. Tatangelo is charged with speeding fifteen kilometers per hour above the posted speed limit. Mr. Tatangelo is a P1 licensee ^1 of the Law Society of Ontario.
[2] At the start of his trial, his legal representative brought two motions.
[3] The first invited me to recuse myself from consideration of the matter, on the basis that I am known to and would know the defendant, and that there may arise a concern as to whether I could act as an impartial and independent decider in his case. In furtherance of this position, he expressed concerns that he may appear before me in the future, and that he may need to disclose such an appearance and the outcome to any client, which may influence their decision to retain him.
[4] The second issue was a properly filed motion for relief pursuant to the Charter, seeking one or both of the following: a. An Order for the Prosecution to provide certain requested disclosure, and/or b. A stay of proceedings based on S. 24 of the Charter, based on his claim that the defendant’s right have been breached, sections 7 and 11(d).
[5] As a practical matter, the Court was asked to consider the motion pursuant to the Charter prior to the entering of a plea. Defence relied on the wording set out in R. v. Mills, in which he found the words “For the purpose of a pre-trial motion for s. 24(1) relief, the claimant may institute his motion at any time before plea and at any time after he has received or become entitled to receive the indictment or information.”
[6] In order not to further belabour the question of whether a plea is required to proceed with consideration of the Charter application, I directed that a plea of not guilty be entered on behalf of the defendant.
[7] On further review, I would observe that the quote set out above must be considered in context. The beginning of the paragraph in which those words are found include the following: “The pre-trial motion and its near relative, the preliminary motion or preliminary objection, are well known in the law and may be employed in seeking s. 24(1) relief once an indictment has been preferred.” It then goes on to enumerate a number of pre-trial matters, such as motions to quash, for particulars and for severance. It concludes with the observation that “Where a court has not been ascertained for trial by committal, election, summons, preferment or arraignment, the application could be made to the superior court for prerogative relief.” Since I am not sitting as a Superior Court, in my view it would be premature to conduct the inquiry being requested prior to arraignment and plea.
[8] In relation to the first issue, after some reflection, I ruled orally against the motion. In brief, I relied upon the guidance of the Supreme Court of Canada in R. v. S. (R.D.), in which the Court focussed on a “predisposition to decide an issue or a cause in a certain way”. The defence pointed to no prior rulings or comments of this Court to that would suggest an inclination to decide the issue in a certain way. There was no suggestion that the Court held any unfavourable views of the defendant (indeed, the defendant’s representative conceded that the most recent appearance by the defendant resulted in a dismissal of his client’s matter).
[9] Further, the Court noted that the issue in hand would not depend on findings of credibility or other assessments in relation to the defendant himself. The Charter motion is based on pure law, and the charge is generally considered to be absolute liability. As a consequence, the Court would not be called upon to assess credibility.
[10] Now we turn to the heart of the matter before me, the Charter application. The applicant seeks orders in relation to three issues: a. Disclosure of the officer’s training and qualifications b. Disclosure of specific tests performed on the device in question on the day of the alleged infraction, and c. Standing orders promulgated by the police service of which the investigating officer is a member, that govern speed enforcement.
[11] The application also refers to an effort to obtain the relevant portions of the RADAR manual, however, those were in fact provided by the prosecution prior to the motion date to the satisfaction of the defence.
[12] On the issue of Standing orders, defence points out that s.8 of O.Reg. 3/99 directs that “Every chief of police shall establish procedures on traffic management, traffic law enforcement and road safety.” Without specific evidence, the defence asserts that “the HRP [Halton Regional Police] contains testing requirements for speed measuring devices that the officer must follow that are independent of the manufacturer’s required tests. The protocol also defines who is a “qualified” radar operator, and it outlines the requirements for certification and recertification for officers in the use of speed measurement devices.”
[13] This information is necessary in order to assess any evidence proffered by the Prosecution and specifically whether its witness is qualified to operate any speed measurement device and the standards to be met in doing so, and for the Court to then receive any evidence based on such standards.
[14] The Prosecution points out that there are a number of cases in which the Courts have found consistently that manufacturer’s manuals are not vested with any statutory weight and any deviation from what a manufacturer provides by way of guidance or requirements cannot per se result in a dismissal of charges; it is clear that there must be some nexus to show that any deviation from the manufacturer’s operation manual should lead to the results not be treated as reliable.
[15] The issue of officers’ training and qualifications turns on the decision in York (Regional Municipality) v. McGuigan. It would appear that the Court of Appeal differentially refers to “technicians” who operate approved instruments for measuring blood alcohol content and “operators” who deploy speed measurement devices [^2]. The Prosecution concedes that qualifications for technicians are required in relevant cases and holds that the decision in York (Regional Municipality) v. McGuigan establishes that qualification records for operators must be disclosed as a matter of course.
[16] I note that the Court in York (Regional Municipality) v. McGuigan acknowledges the following in relation to readings from instruments for measuring blood alcohol content … the readings approved instruments generate are presumed by statute to be accurate by Criminal Code, s. 258(1) (c), that presumption can be rebutted by showing that the approved instrument was “operated improperly”, in other words, not in compliance with testing and operating procedures. Not surprisingly, cross-examination of qualified technicians about their compliance with testing and operating procedures is commonplace in blood alcohol cases, without expert evidence about the significance of a failure to comply.
[17] The Court goes on to acknowledge how standards for blood alcohol measurement devices are set independently of the manufacturer(s).
[18] Clearly, the cases acknowledge that speed measurement devices attract no statutory authorization. The history of this issue is canvassed extensively in York (Regional Municipality) v. McGuigan.
[19] Finally, the defence seeks disclosure of the specific steps taken by the investigating officer to test the device in question in relation to this investigation. Defence argues that there are no notes on point. Prosecution made no comments in relation to this.
[20] Both parties rely on the decision of the Court of Appeal in York (Regional Municipality) v. McGuigan. No other cases were relied upon expressly by either party.
Analysis and Decision
[21] Obviously, this is at once a novel and not-so-novel issue. The issue of the weight to be given to the manufacturer’s manuals in relation to testing procedures has been well canvassed. The defence argues that there has been one case which refers to the impact of s.8 of O.Reg 3/99, and the Prosecutor was unable to point to any cases which were decided in relation to that section of the Regulation. This is confirmed by a quick search of legal data bases.
[22] Specifically, the relationship between any Standing Order promulgated pursuant to O.Reg. 3/99 and how or by whom speed measurement devices is/are operated has not been canvassed in any case.
[23] At paragraphs 99 and 100 of York (Regional Municipality) v. McGuigan, the Court states
- … In our view, a manufacturer’s testing and operating procedures for a speed measuring device are relevant and must be disclosed. By presenting the results obtained by a speed measuring device, the prosecutor is necessarily representing that those results are a reliable measure of vehicle speed. Evidence that has a logical tendency to cast doubt on that claim is therefore relevant. The question is whether information about the manufacturer’s testing and operating procedures is relevant in challenging the prosecutor’s necessary and implicit claim that the speed measurement is reliable.
[100] In our view, this cannot reasonably be contested. Testing and operating procedures are provided precisely so that users can accomplish what the device is designed to accomplish, in this case, to provide an accurate measure of speed. If testing and operating procedures are not complied with, it may cast doubt on the integrity of the results. Naturally, compliance with testing and operating procedures cannot be determined unless those testing and operating procedures are known. Hence, the relevance for disclosure and production purposes of the manufacturer’s testing and operating procedures for a speed measuring device that is relied on in the prosecution of a case.
[24] In my view, if there is a Standing Order promulgated by Halton Regional Police pursuant to O.Reg.3/99 with subject matter as described by the defence, then it is similarly relevant for disclosure purposes.
[25] In making my determination in the preceding paragraph, I am obviously making something of a leap, specifically, that such a Protocol has been put in place. I believe it is reasonable to start with the proposition that the Police Service is in fact in compliance with its obligations pursuant to the Regulation. The defence has set out an understanding, based on either specific knowledge (but not established in evidence) or knowledge of similar protocols issued by other police services. Further, the Prosecution has been made aware of the defence request for some four months and has never intimated that such a protocol does not exist. In response to a direct question by the Court, the Prosecution professed to not knowing specifically. Were it the case that no Protocol exists, or that any existing Protocol does not address the points suggested by the defence, it would have been a much simpler matter to put that information to the defence and before the Court, and the matter may have concluded at that point, or further steps may have been taken by the defence to establish its existence.
[26] I do not mean to suggest at this point that it was so obviously relevant that any such Protocol should have been disclosed as a matter of course. However, once the request was made with the appropriate foundation as set out by the defence, I believe that it became “obviously relevant” as contemplated in York (Regional Municipality) v. McGuigan, and it should have been produced.
[27] The remaining disclosure issues are logically connected to the issue just addressed. First of all, I am not persuaded that by referring to those qualified to operate blood alcohol measurement devices as “technicians” while those operating speed measurement devices as “operators” is sufficiently meaningful as to render disclosure of the officer’s qualifications not disclosable.
[28] Further, and anticipating that the Protocol exists and specifies who can operate a speed measurement device and under what conditions, then the officer’s qualification status and history is similarly disclosable. This would allow the defence to assess whether the officer’s qualification status on the day of the investigation complies with the Protocol. While it does not lead necessarily to a conclusion that if the officer was not qualified on the date of the investigation that any evidence flowing from an investigation relying upon its use would be inadmissible or unreliable, it certainly goes to an argument that the defence would seek to make.
[29] Further, again presuming that the Protocol describes the HRP expectations regarding when a speed measurement device could be used for enforcement purposes (including, for example, any testing protocols to be followed), any information as to whether or how the officer complied with these requirements is arguably relevant. To this end, notes regarding how and when the officer conducted any tests should be noted and disclosed.
[30] I accept that, prior to receipt of the request by the defence for the disclosure requested, the itemized items might not have been obviously relevant. However, once the request was received by the Prosecution, it strikes me that the (articulated) basis makes the information sought arguably relevant and therefore disclosable.
[31] I reserve for the purpose of sorting out any additional difficulties that may arise in complying with this direction.
His Worship Donald Dudar Justice of the Peace in and for the Province of Ontario
[^2]: See paragraphs 107 and 109.