Regional Municipality of Durham Vs Zhu
The allegation is 109 km/h in a posted 60 km/h zone – but there are three major points of law to be decided flowing from the trial held February 7, 2011.
2) Those three major points include the use of electronic notes to refresh memory; arguing amending of speed upward to reflect evidence of the actual speed captured by a speed measuring device rather than the reduced-at roadside-speed; and whether ‘usual practice’ meets the test of proof beyond a reasonable doubt.
Use of ‘electronic’ notes to refresh memory
3) Defence agent, T.J. McKinnon, objected to the use of electronic notes by investigating officer, Durham Regional Police Constable Robert McQuat.
4) Prior to electronic ticketing all of the officer’s notes would have been done in their own handwriting in their own memo book.
5) The court, after hearing extensive submissions, made the decision to allow the officer to use his ‘electronic’ notes which may be defined as notes that were typewritten on a computer and submitted electronically upon completion, as compared to hand-written notes in a memo book.
6) There does not appear to be any case law on the subject of use of ‘electronic’ notes but there is considerable case law on the subject in a general way.
7) R. v. High  O.J. No. 3735saw Justice of the Peace R. Sculthorpe grant the investigating officer permission to use his electronic notes to refresh his memory in a trial held in Ottawa last year. The agent in that matter did not oppose the use of the electronic notes.
8) Mr. McKinnon, after cross-examination, made submissions as per R. v. Hartley,  O.J. No. 6072 (Ont. C.J.) , saying the court should reject the request to allow the officer to use the ‘electronic’ notes given there is insufficient evidence to believe these are the officer’s actual notes; that because they were not in his personal possession the court could not be sure there hasn’t been any additions, deletions or alterations given he does not know how they’ve been stored and that they are not in his handwriting; that Const. McQuat only received a copy of the notes on the day of trial from the prosecutor; and that there is no explanation as to how the Durham Regional Police Service maintains continuity over the electronic notes.
9) In terms of refreshing the witness’ memory it is standard everyday practice in a Provincial Offences Court to qualify an officer’s notes, and barring objections, to allow them to use the notes to refresh their memory while in the witness stand.
10) The notes were at one time considered a simple ‘aid memoire’ and are not an exhibit, nor do they become evidence at the trial. The notes are to assist a witness to trigger a recollection of events and the resulting oral testimony becomes evidence for the court to give appropriate weight in reaching a decision.
11) Prosecutor Trish Armstrong asked the officer when the notes were made; whether there were changes, additions, alterations or deletions since the notes were made; whether Const. McQuat had an independent recollection; and the purpose for using the notes as required per R. v. Mahaney,  O.J. No. 3840 (Ont. C.J.)
12) The officer said he had an independent recollection of the events with regard to the charge before the court, that he had not made alterations or deletions – in fact the notes become ‘locked after electronic submission, allowing the officer only to ‘read’ them after they are sent – and he said required the notes to refresh his memory.
13) Const. McQuat said he recognized the notes as being his, given they were written in a “specific manner.” The officer said he also has a memo book for handwritten notes, but these would not contain the type of detail to be found in the ‘electronic’ notes.
14) There is no requirement as per R. v. Kassam,  O.J. No. 2104 (Ont. C.J.) and R. v. Colangelo, 2007 ONCJ 489 (CanLII) ,  O.J. No. 4070 (Ont. C.J.) that the officer has an independent recollection prior to reviewing his notes.
15) Mr. McKinnon says the concern in R. v. Zhu is the fact that the ‘electronic’ notes are maintained by someone in the Durham Regional Police Service other than the officer who wrote them, and therefore their pedigree should be suspect.
16) There is case law that allows use of notes to refresh memory above and beyond the garden variety handwritten memo book-type notes. In R. v. Mahaney it was determined a police officer could refresh his memory from notes he wrote on a template he had created in response to complaints about his handwriting; R. v. Fliss, 2002 SCC 16 (CanLII) ,  S.C.J. No. 15 allowed an officer to use a transcript of an electronic wiretap; and R. v. Thom, 2010 ONCJ 492 (CanLII) was an appeal that overturned a decision barring a police officer from using photocopies of his notes to refresh his memory.
17) Certainly there is case law supporting the long-held practice of using notes to refresh memory. Mississauga (City) v. Vattiata, 2010 ONCJ 588 (CanLII) goes so far as to say “it is understandable that police officers ask to refer to their notes to refresh their memory, given they are called upon to give precisely detailed evidence that, at the same time, can be repetitive. “They (police) cannot possibly recall all of the details of each and every case and so they make notes to trigger their recollection of the events. … There would be certain similarities in each of these cases but there would also be differences. Constable Williams would need to have a superhuman memory if he was required to give his evidence with respect to one particular case without the assistance of his notes.”
18) “Clearly, he does not have to do so,” the Vattiata jurist said. “Neither does any other police officer nor any other witness who has made notes. On the contrary, nearly every one of them will be questioned as to when and how they made their notes and the court will be asked to rule on whether they may refer to those notes in order to refresh their memory. Almost invariably, the court will allow the police officer or other witness to do so.”
19) The authority to refer to one’s notes to refresh one’s memory is also found in a case that occurred at a time when any thought of ‘electronic’ notes would have been decried as science fiction, the typewriter roughly as we know it having been invented just 40 years earlier. The jurist in Fleming v. Toronto R.W. Co.,  O.J. No. 40 (Ont. C.A.) wrote, “The law on the subject is, I consider, correctly laid down in Phipson on Evidence, 5th ed., p. 466, as follows: ‘A witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with the facts to which he testifies. … The writing may have been made either by the witness himself, or by others, providing in the latter case that it was read by him when the facts were fresh in his memory, and he knew the statement to be correct’.”
20) In R. v. Fliss, 2002 SCC 16 (CanLII) ,  S.C.J. No. 15, Arbour J. said, “A witness may refresh his or her memory prior to testifying, as long as he or she testifies from present memory revived by the instrument that refreshed it, whatever that instrument may be.”
21) Binnie J., also in Fliss, stated, “There is also no doubt that the officer was entitled to refresh his memory by any means that would rekindle his recollection, whether or not the stimulus itself constituted admissible evidence. This is because it is his recollection, not the stimulus, which becomes evidence. The stimulus may be hearsay, it may itself be largely inaccurate, it may be nothing more than the sight of someone who had been present or hearing some music that had played in the background. If the recollection here had been stimulated by hearing a tape of his conversation with the accused, even if the tape was made without valid authorization, the officer’s recollection — not the tape — would be admissible.
22) Based on all of the above this court agrees with the case law which states a great deal of leeway given to allow witnesses to refresh their memory. It is incumbent upon the trier of fact to determine what weight should be given to the evidence.
23) It would seem there is no reasonable basis for Mr. McKinnon’s concern about the continuity of the notes. The onus of proving such a breach would be borne by the defence on a balance of probabilities. Mr. McKinnon’s concern about the continuity of the notes does not meet that test.
24) Modern times require modern ways. There was initially a challenge to the issuance of electronically-generated tickets and more specifically to the ‘electronic signature’ of the investigating officer. Both matters have been disposed of by way of case law, and today electronically-generated ‘tickets’ are common-place. So too are electronic notes here to stay. It would seem the writing is on the wall so to speak, of the days of being unable to read an officer’s handwritten notes in disclosure packages all across the province.
The Evidence for Speeding
25) Jialin Zhu stands charged with speeding contrary to s. 128 of the Highway Traffic Act by traveling at a speed of 109 km/h in a posted 60 km/h zone.
26) Const. McQuat testified he was on duty in an assigned general patrol area of Scuggog in Durham township on June 30, 2010 at about 1:35 a.m. He was operating a Python mobile radar unit on Island Road, which is one lane in each direction running north and south. The speed limit on that stretch of road was reduced from 80 km/h to a posted 60 km/h zone due to construction and the road in that area is described as straight and level.
27) The officer said he is trained and qualified – as recently as February 2010 — to use the Python mobile radar which is designed to accurately measure the speed of a moving vehicle.
28) The officer said he conducted tests of the unit when he began his shift at 5 p.m. on June 29 – both a start up test which takes place automatically upon power-up of the unit, and a function test. Both tests indicated the radar unit was functioning properly.
29) The officer said he tested the radar unit periodically throughout his shift using the self-test mode. It’s common practice to compare the speed indicated on the radar unit against the speed indicated by the vehicle’s speedometer, he added.
30) Const. McQuat said he tested the radar unit at the end of his shift at about 3:30 a.m. on June 30 — again using the self-test — as part of his “usual practice.”
31) The officer said he has never failed to test a radar unit at the end of his shift. He denied any malfunction with the radar unit in his vehicle on the day in question.
32) The officer said he was southbound on Island Road when he visually observed a northbound vehicle which appeared to be moving at faster than the posted speed limit.
33) At almost the same time the radar unit provided a tone which spiked, and a speed of 112 km/h. was locked in, Const. McQuat said. There were no other vehicles in the area at the time; the officer said he had a clear view; and he said he never lost sight of the suspect vehicle. The officer conducted a traffic stop and the driver – the lone individual in the vehicle — provided a valid Ontario photo driver’s licence in the name of Jialin Zhu.
34) Const. McQuat said he used his discretion to reduce the ticket to 49 km/h over the posted speed limit, and that he informed Jialin Zhu of the original rate of speed prior at the time of the traffic stop.
35) Under cross examination the officer said the radar unit tests he performs are to manufacturer’s specifications. He said he would not use the radar unit if tests showed it was not functioning properly.
36) “How do I know I tested it afterwards? Because that is what I do,” Const. McQuat said. “Before I turn it off at the end of every shift, which I have to or otherwise I would drain the battery on the car. I push the little button beside the power button to ensure it is still functioning properly. This is how I do it every day. Can I tell you what happened on June 30 at 3:30 (a.m.) ? No I cannot.”
37) Const. McQuat, with regard to a question under cross-examination as to independent recollection of performing the radar test at the end of the shift that day, said, “The actual test, no I do not (have any actual memory) .My notes are made at the time of the traffic stop. Once I send those (electronically) I cannot add to them. I do not make another (handwritten) note (in a memo book) to this incident saying I tested the radar at 3:30 in the morning. I don’t do that. I test it at the end of every shift. That’s what I do. That’s what I’m telling you.
38) “If I would have a test fail at the end of a shift I would add a report to this ticket,” Const. McQuat said. “I’ve never had this happen to me. It has never failed at the end of a shift. If it did fail I would document it.”
39) Memo book notes are a diary of what the officer does throughout the day. There are no memo book notes about testing the radar unit during, or at the end of Const. McQuat’s shift on the day in question.
40) “I don’t feel it’s important to add that (that the radar was tested and was working properly) at the end of my shift to my notes,” he said. “It’s what I do. I can go under oath and say I do that at the end of every shift.”
41) Const. McQuat said the typewritten notes made at the time or shortly after the traffic stop were submitted ‘electronically’, and could not be added to with the results of the additional radar testing.
42) This was the case for the prosecution.
43) The defence chose not to call any evidence.
44) R. v. Noble (1997, 1997 CanLII 388 (SCC) , 114 C.C.C. (3d) 385 (S.C.C.) , saw Sopinka J., describing the evidentiary significance of the failure of an accused to testify at trial, as “the silence of an accused person at trial is neither inculpatory nor exculpatory evidence”. He expressed three basic rules regarding the appropriateness of a trial judge noting the silence of an accused person.
45) The first of those rules describes the silence of the accused as evidence of the absence of an explanation which could raise reasonable doubt in a case where the trial justice has determined the Crown has proven its case beyond a reasonable doubt, the silence of an accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt
46) The second, where the Crown falls shy of proof beyond a reasonable doubt, says the silence of an accused may not be referred to as bridging any part of that burden.
47) Thirdly, the use of the word “inference” can be taken to indicate that the trier of fact used silence to help establish the case for guilt beyond a reasonable doubt, and as such, courts should avoid using the term in discussing the silence of an accused. And so this court will refrain from any inference, beyond noting Mr. McKinnon chose not to have his witness present at the trial.
Amendment Requested for Rate of Speed
48) Ms. Armstrong asked the court to amend the speed, based on the evidence presented by Const. McQuat, to reflect a speed of 112 km/h as recorded by the officer’s speed measuring device.
49) Ms. Armstrong submitted the appropriate case law to apply is York (Regional Municipality) v. Winlow, 2009 ONCA 643 (CanLII) in order to make finding of how fast vehicle was traveling. Ms. Armstrong said the defendant was made aware of his original rate of speed; that the defendant was aware of the prosecution’s decision to ask for the amendment at trial; and that there is evidence on oath to show the defendant’s original rate of speed was 112 km/h. in a posted 60 km/h zone. The prosecutor said Const. McQuat provided evidence on the essential elements of speeding, and that the court has no evidence to the contrary. The amendment can be granted without prejudice to the defendant, and without an injustice being done.
50) Mr. McKinnon submits that while section 34 of the Provincial Offences Act allows the court wide latitude to amend as a curative power, there is no defect on the certificate, nor has the officer made any mistakes on the certificate which he sought to clarify during his viva voce evidence. Mr. McKinnon said there is no clear answer from the prosecution as to why an amendment should be granted and he refers to it as a punitive motion in the event someone sought a trial on a speeding charge.
51) “There is no clear answer as to why it is necessary to do this,” Mr. McKinnon said “…It comes to mind of course that this is a punitive motion. ‘If you don’t plead guilty we’ll seek higher penalty.’ That would prejudice someone to be held to that kind of ultimatum.”
52) Again there is considerable case law with regard to the prosecution request.
53) York (Regional Municipality) v. Winlow, supra determined that it is not inappropriate for a police officer to use their discretion roadside to reduce the speed, nor is in inappropriate for the prosecution to ask the rate of speed be amended upward to reflect the original rate of speed. Winlow says plea bargaining is as essential to the provincial regulatory system as it is to the criminal justice system.
54) The court of appeal in Winlow noted many offending drivers welcome the roadside reduction since they don’t have to go to court to obtain it, thus allowing cases to be disposed of without the need for a trial. Winlow says different considerations come into play when a driver exercises their right to a trial, adding it’s the prosecutor’s discretion to manage the matter in accordance with the statute.
55) Winlow notes the legislature has expressly authorized the court to amend a charge to conform to the evidence disclosed at trial (s. 34(2) of the Provincial Offences Act) .
56) Defendants have no vested right to insist on a trial only on the charge listed on the certificate of offence and the prosecutor may exercise their discretion asking the court to“amend up” the certificate. The courts should not interfere with the exercise of prosecutorial discretion except in cases of flagrant impropriety, as per Krieger v. The Law Society of Alberta, 2002 SCC 65 (CanLII) ,  3 S.C.R. 372.
57) Winlow says the court must consider the four requirements of s. 34(4) – before granting an amendment upward. The word “shall” makes the court’s consideration of such an amendment request mandatory. Winlow says these requirements are intended to ensure that the court’s amendment power, while broad, is exercised fairly.
58) Section 34(4) of the Provincial Offences Act says the court shall, in considering whether or not an amendment should be made, consider:the evidence taken on the trial;the circumstances of the case;whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
59) R. v. Antunes, 2004 ONCJ 352  O.J. No. 4898 (Ont. C.J.) agrees an amendment can be made when evidence given during the trial supports the requested amendment and there is no prejudice. Antunes says the defence is to the charge of speeding, and not to the rate of speed itself. There cannot be any evidence that the defendant was misled by the officer at the scene as to the final disposition of the charge, and there cannot be any evidence the defendant will suffer an injustice by the amendment.
60) Antunes says the submission that the amendment results in punishment for electing to have a trial is discernible only if one assumes the defendant was unaware of the law and the options available to the prosecutor under s. 34. Each citizen is presumed to know the law and must be presumed to know the risks of going to trial where evidence could result in an amendment to the charge as originally laid.
61) R. v. Wannamaker  O.J. No. 1581 (Ont. C.J.) upheld a decision to amend to the original rate of speed, noting the defendant knew prior to trial the amendment would be sought. It would have been open to request an adjournment rather than risk proceeding to trial on the certificate that would inevitably be amended to accord with the evidence.
62) R. v. Vanier 2005 ONCJ 318 (CanLII) ,  O.J. No. 5466 (Ont. C.J.) held the focus of amendment analysis can only be the potential of prejudice or injustice to the defendant. The legislation directs the justice to consider the criteria in s. 34(4) . Each amendment is to be decided on the facts of the particular case. The concern for the prosecution’s course of conduct in these matters must be addressed on a case by case basis. Here while alluding to Antunes, the trial justice provided no insight into her consideration of the s. 34(4) criteria. A failure to consider the criteria amounts to an error in law pursuant to s. 34(5) .
63) This court, applying case law — particularly as outlined in the leading case of Winlow — finds there is evidence of the higher rate of speed; that the circumstances of the case are such that the defendant was properly identified as driving at a rate that was nearly twice as fast at the posted speed limit, at night on a road that was under construction at the time though there were no workers present.
64) The court takes into consideration that the prosecution has provided the defendant with advance notice that the amendment would be sought, and therefore the defendant has not been misled or prejudiced. Winlow says being misled or prejudiced does not include the prospect of facing more significant consequences – an increase in fine or demerit points or insurance rates, for example. Winlow says these potential consequences are not reason enough in and of themselves to otherwise refuse to amend a certificate.
65) In R. v. Jamieson (1981) , 64 C.C.C. (2d) 550McKinnon A.C.J.O.said “the Provincial Offences Act is not intended as a trap for the unskilled or unwary.” The defendant in this matter is represented by competent paralegal agent, sanctioned by the Law Society of Upper Canada to practice in Ontario’s courts.
66) The court is satisfied Mr. Zhu, through his agent, understands the amendment, understands the consequences of the amendment,and was provided reasonable opportunity to make submissions on why the amendment should not be granted.
67) Addressing the fourth and final test in Winlow, the court determines that the amendment can be made without an injustice being done to the defendant
68) Therefore the court, having applied the appropriate case law, grants the prosecution’s request to amend the speed to 112 km/h.
Usual practice for Speed Measuring Devices
69) R. v. Vancrey, 2000 CanLII 26961 (ON CA) , 2000 CanLII 26961 (ON C.A.) determined the leading authority on radar in Ontario is R. v. Grainger (1958) , 120 C.C.C. 321 (Ont. C.A.) in which it was determined the Crown must first prove the radar device was capable of measuring speed and that the device was in good working condition at the time. The officer’s evidence was that he recorded the appellant’s speed using the radar speedometer. The officer acknowledged that he was not an expert, but testified that the radar unit was well-maintained by police technicians and that they were simple to operate. He had spent two weeks observing their operation and on the day in question, calibrated the machine using a tuning fork. He believed that the data furnished by his radar speedometer was accurate and that it was accurate for the appellant’s vehicle.
70) In D’Astous v. Baie-Comeau (Ville) 1992 CanLII 2956 (QC CA) , 1992 CanLII 2956 (QC C.A.) , (1992) , 74 C.C.C. (3d) 73, the Quebec Court of Appeal addressed the radar evidence required to secure a conviction for speeding, saying judicial notice can be taken of the fact radar is used to measure the speed of automobiles given the principle behind it can be found in an encyclopedia.
71) D’Astous also states the Crown must prove the particular radar device used was operated accurately by showing the operator is trained and qualified; that the device was tested before and after the operation; and that the device was working properly. Evidence demonstrating those facts becomes prima facie evidence of the speed of the vehicle, subject to evidence to the contrary.
72) In submissions Mr. McKinnon says the officer’s usual practice of testing the radar unit at the end of his shift – in the absence of any notes to support such a test was carried out on the day in question — is insufficient to prove the case beyond a reasonable doubt. Mr. McKinnon asks the court to find evidence of testing at the end of the shift unreliable given Const. McQuat doesn’t have any recollection of doing so.
73) In rebuttal Ms. Armstrong says issue comes down to testing of speed measuring device after the traffic stop. R. v. Thompson 2001 CanLII 24186 (ON CA) , 52 O.R. (3d) 779  O.J. No. 449 docket no. C32509 has determined that usual practice is sufficient to underpin an assertion made in evidence. There’s no memo note and no independent recollection but usual practice to say the radar unit is tested at the beginning and end of a shift, and that it was working accurately. The officer provided the time of the end of his shift and it would appear by Const. McQuat’s testimony that he has a standard operating practice.
4) Durham’s own appellate court in R. v. Roshani-Kalkhoran, supra, allows R. v. Thompson, supra, to be used in a case involving a speed measuring device. Here the officer said it is his usual practice to test the radar unit at the end of the shift, and that he’s never had one fail, which is straightforward and definite evidence.
75) Both parties provided the court with case law, and the court undertook to further educate itself on the subject.
76) Standing for the proposition that ‘usual practice’ is sufficient to prove guilt beyond a reasonable doubt are the cases of R. v. Antoniak,  O.J. No. 4816 (Ont. S.C.) ; R. v. Heywood  O.J. No. 3392 38 M.V.R. (5th) 117 70 W.C.B. (2d) 472 2006 Carswell Ont 5119; R v Roshani-Kalkhoran, supra, and R. v. Thompson, supra.
77) Standing for the proposition that ‘usual practice’ is not sufficient to establish proof beyond a reasonable doubt are R. v. Odgers, 2009 ONCJ 287 (CanLII) ; R. v. Lounsbury M.J. No. 510 90 Man. R. (2d) 57 50 M.V.R. (2d) 283 21 W.C.B. (2d) ; R. v. Hayes  O.J. No. 5057; and R. v. Schlesinger, 2007 ONCJ 266 (CanLII)
78) R. v. Odgers supra saw Fournier R.N. note that as per R. v. Graat 1982 CanLII 33 (SCC) ,  2 C.C.C. (3d) 365, the views of police officers are not to be afforded any greater weight than might be attributed to the evidence of ordinary persons – but absolutely not less!
79) Fournier R.N. said an officer’s notebook entries have grown beyond a simple aide-mémoire to refresh memory and today are considered an important investigative tool, evolving into a fairly significant evidentiary document and source of reference playing a significant role in a court’s assessment of the evidence.
80) Record keeping quality can have far reaching consequences and courts recognized an inherent duty in having police officers preparing complete and accurate notes. Defence counsel will rely on them, even more so since R. v. Stinchcombe v. The Queen 1937 CanLII 77 (ON CA) , 68 C.C.C. 1 (S.C.C.)
81) Events or observations of obvious relevance and importance that are omitted or not adequately documented by officers are cause for concern and courts have a heightened awareness that deficient notes present a concern to a trier of fact. An officer’s credibility can be discounted when serious inadequacies in note taking is demonstrated as per R. v. Fisher  O.J. No. 1899 (Ont C.A.)
82) As a result, Fournier R.N. said courts are sometimes reluctant — without corroborating notes — to attribute much weight to viva voce evidence. It comes down to “a matter of common sense and as usual each case, must be determined on its merits.”
83) Justice Wright, P., in R. v. Hayes, supra — a case provided by Mr. McKinnon — says “…I don’t find it acceptable for the police to say on matters of significant importance that they don’t make a note of it simply because something didn’t go wrong; that was good enough for them.
84) Wright continues in R. v. Hayes supra, “the decisions of this court in R. v. Zack  O.J. No. 5747, decision of Justice Duncan, a decision of mine in R. v. Burrows 2004 ONCJ 357 (CanLII) ,  O.J. No. 5377 and R. v. Makhota,,  O.J. No. 5415 make it quite clear that the absence in the police officer’s notes of specific recollection of the important information have allowed me to conclude that the information, that evidence is not reliable.
85) “In other words for an officer to come to court and simply say I have an independent recollection doesn’t cut it in this court,” Wright P. Says. “Not in front of me. Not in front of Justice Duncan and I suspect probably not in front of very many judges any more. The Court of Appeal has made it clear that judges in the Sheppard decision 2002 SCC 26 (CanLII) ,  1 S.C.R. 869 …. that judges are required to give detailed explanations of their reason for judgment … and acquittals so there’s a proper record of what’s going on in the court proceedings. And consistent with that view it’s my thought and it’s shared by many members of this bench that it’s important that the police have in their notebook accurate, complete information about specific issues that are called into play by the prosecution.”
86) R. v. Lounsbury supra saw Jewers J. rule on an appeal from a summary conviction for speeding on Oct.31, 1993. In that matter testimony was given that it was the investigating officer’s usual practice to check to ensure the radar device was in good working condition, both before and after operating it. The investigating officer was unable to say whether these tests were performed in respect of the matter before the court. The court rules this is not considered proof beyond a reasonable doubt that the device was in fact tested and working at the time of the alleged offence.
87) An unreported decision, R. v. Wolf (December 8, 1992) (Man. Q.B.) saw Kroft J. say, “Nonetheless, if we have a situation where testing is a prerequisite, and if the officer, and only witness, obviously cannot say any more than what his common practice is, I cannot take that as a proof of testing. …”
88) R. v. Lounsbury supra determines that all that can safely be inferred from the evidence is that the officer did test the radar device and found it to be in good working order at some point or points during the shift but this remain insufficient to demonstrate beyond a reasonable doubt that the device was working at the time of the alleged offence.
89) R. v. Bayik 2010 CarswellOnt 687 reversing R. v. Bayik (2009) Carswell Ontario 8430 (Ont. C.J.) saw Libman E.N. acquit the defendant on consent of speeding because a transcript of the trial showed “that it’s clear that with respect to the officer’s evidence, throughout, the officer was not in a position to indicate when he tested the device. He was not aware of the exact period of his shift, nor did he say that he specifically recalled testing the device.”
90) R. v. Schlesinger supra, is a case on point. Justice of the Peace Cuthbertson was told an OPP officer using a laser speed monitoring device observed a motor vehicle traveling at 132 km/h in a posted 80 km/h zone. He stopped the vehicle and using his discretion, charged the driver with speeding at 129 km/h in a posted 80 km/h zone
91) The investigating officer stated he tested the device before and after he stopped the defendant’s vehicle. The officer then stated that it was his usual practice to test the device prior to all speed enforcement stops and therefore he must have done so on that day. Subsequent testimony indicated that the officer tested the laser again at 7:55 p.m. as per manufacturer’s instructions. He found the laser device to be working correctly after each test.
92) His Worship Cuthbertson said the testing of a high tech electronic device differs from removing a mouthpiece to conduct a breath sample as is cited in much of the case law supporting ‘usual practice.’ Testing a high tech electronic device should involve strict adherence to a manufacturer’s instructions. His Worship Cuthbertson said the tests are not trivial nor can they be done by way of cursory examination; it takes a conscious and explicit effort to follow the proper procedures. A sophisticated electronic device’s internal workings are not self-evident to an observer.
93) “As a result, the standards which I believe that I need to apply in being satisfied that the tests have been properly done and the results of those tests verify the device’s accuracy, must be correspondingly higher than those applied to a mouthpiece that is to be affixed to a breathalyser prior to its use,” His Worship Cuthbertson said. “The standards that would satisfy this court are: (a) evidence that the laser tests had been done by a qualified officer according to the manufacturer’s specifications and that the device passed the tests and (b) Evidence of a specific time when the tests were done both before and after a speed enforcement stop.
94) R. v. Sanders, 2009 ONCJ 646 (CanLII) before Justice of the Peace Bonas P. on May 11, 2009 in Milton, said the Crown bears the burden of proving the allegation beyond a reasonable doubt. A restatement of the term ‘reasonable doubt’ is perhaps, helpful. Reasonable doubt is an honest and fair doubt based on reason and common sense. It is a real doubt, not an imaginary or frivolous doubt, which might be conceived by an irresponsible juror to avoid his or her plain duty. The source for the definition was taken from the well known case of R. v. W (D) .
95) R. v. Antoniak supra states the fact that there was no mention of an event in an officer’s notebook did not necessitate a finding that it did not take place; its significance was to be determined by the trier of fact. There was ample evidence to support the trial judge’s inference that the officer had in fact made the breath sample demand and that he forgot to record it in his notebook. That conclusion was reasonably supported by the evidence and well within the bounds of what a reasonable trier of fact could find.
96) R. v. Shewan, 2011 ONCJ 43 (CanLII) before Harris D.A., heard on November 25, 2010 and December 2, 2010 and reasons for Judgment delivered on February 4, 2011, is a case involving a roadside breath test. In Shewan the officer “told me almost nothing about the device however or about what it was doing throughout this process. He did not tell me if he did anything to test the device and determine that it was working properly,” Harris D.A. said. “The missing evidence need not have taken very much time to present.”
97) Harris D.A., in dismissing the charge for failing to prove it beyond a reasonable doubt, said the investigating officer in Shewan needed to testify he’d received training and that he’d used the approved screening device before, and that he knew how to operate it. … Barring contradictory evidence, it would have been enough had the officer said that when he turned the approved screening device on, it did the things it needed to do to show that it was operating properly.
98) In R. v. Thompson supra, filed by Ms. Armstrong, says, the issue raised is that the trial judge erred in finding the investigating officer checked for obstructions in the breathalyser mouthpiece before the appellant’s apparent attempts to blow into it. The officer’s evidence was that, although she had no specific memory of doing so, she did check for obstructions because it is her standard practice.
99) In his reasons Morden J.A. said, “Counsel for the accused argues that one of the necessary elements of the charge is that the machine be in good working order, free from obstruction and that the Crown has failed to satisfy that beyond a reasonable doubt. He points out that the police officer could not be sure – in fact had no memory at all of having done that but was relying on her ordinary practice.
100) Morden J.A. wrote, “My view of her evidence is that matters transpired as she related them, that she simply followed her usual practice in connection with unwrapping and certification of the mouthpieces and that there was no need to make a note to that effect. Notes are only made to assist the recollection. I find that on this occasion she did not depart from her usual practice, indeed there is nothing to suggest otherwise.
101) “The trial judge did not misapprehend the evidence. If he accepted P.C. Shield’s evidence that it was her standard practice to check the mouthpiece and that she must have done so on the occasion in question, it was reasonably open to him to find, as he did, that she had checked it on the occasion in question. I would not give effect to this ground of appeal,” Morden J.A. said.
102) R. v. Heywood supra, citing Ontario Superior Court Justice Garton N.E., speaks to usual practice in a Criminal Code matter involving an allegation of impaired driving. In this matter the officer testified he had no independent recollection of asking the accused when he had consumed his last alcoholic drink, but proffers it must have been longer than 15 minutes given it is his usual practice not to test within that time period.
103) Garton N.E. noted the officer as unwavering in his evidence that he always inquires as to when the last drink was consumed prior to administering the roadside test. This information was important to the officer because he was aware of the effect that alcohol in the mouth can have on the reliability of the test. He was also aware of the protocol requiring him to wait 15 minutes from the time of the last drink. The officer explained he always notes any such delay and the reason for it. The absence in his notebook of any reference to a delay in this case indicated to the officer that the appellant advised him that his last drink had been consumed outside the 15-minute framework. This is similar in nature to the case before this court, where the officer said he would have noted any failure of the radar unit in his memo book.
104) Garton N.E. noted the officer’s notes in Heywood “may have been less than ideal” but that it was open to the trial judge, based on the evidence before him, to find the officer had satisfied himself that the appellant had not consumed alcohol for a period of 15 minutes prior to the roadside test being administered.
105) Finally, in R. v. Roshani-Kalkhoran supra, Stone D.M. speaking to an appeal of a speeding charge in which laser was used, said, “I have read on a number of occasions before in the full text, R. v. Lounsbury  M.J. No. 510 (Manitoba Queen’s bench) a case relied upon by my sister Justice Schall in R. v. Niewiadomski,  O.J. No. 478, an apparently unreported decision released February 12 2004 by the Ontario Court of Justice at London. Her Honour was obviously referred to in Lounsbury and dealt with that particular issue in one paragraph.
106) However Her Honour does not appear to have had her attention drawn to R. v. Thompson (2001) , 2001 CanLII 24186 (ON CA) , 151 C.C. C. (3d) 339, 345 (Ontario Court of Appeal) where that court, in what would clearly be the binding authority, inconsistent with Lounsbury, indicated that the standard practice of the officer affords a trial court some evidence upon which a verdict can be founded, that the usual practice was carried out on the occasion in question. That Court of Appeal panel of justices, Morden, as he was then, Catzman and Austin dealt with the issue and others as a unanimous bench, and clearly Lounsbury cannot stand against Thompson where the facts are covered by both cases.
107) In my view then, this ground of appeal is without merit in that His Worship was entitled to – if he chose – find that the standard practice was given effect on the occasion in question.”
Decision of Speeding Trial
108) It would appear R. v. Vancrey supra sets out the tests necessary to secure a conviction using a speed measuring device. The Crown must prove the radar device was capable of measuring speed and that the device was in good working condition at the time. D’Astous, upon which Vancrey was written, states the Crown must prove the particular radar device used was operated accurately by showing the operator is trained and qualified; that the device was tested before and after the operation; and that the device was working properly. Evidence demonstrating those facts becomes prima facie evidence of the speed of the vehicle, subject to evidence to the contrary.
109) To that end the prosecution in R. v. Jialin Zhu has a prima facie case, which is to say the Ms. Armstrong has provided the court with at least some evidence of each of the elements of the offence.
110) The question comes down to the officer’s usual practice of testing the radar device before shutting the unit off at the end of his shift. Is this sufficient to prove Jialin Zhu’s guilt beyond a reasonable doubt? Citing R. v. Sanders, supra, reasonable doubt is defined as an honest and fair doubt based on reason and common sense. It is a real doubt, not an imaginary or frivolous doubt, which might be conceived by an irresponsible juror to avoid his or her plain duty.
111) Citing R. v. Roshani-Kalkhoran, supra, Stone D.M. says R. v. Thompson, supra is the binding authority. R. v. Thompson, supra, says the standard practice of the officer affords a trial court some evidence upon which a verdict can be founded, that the usual practice was carried out on the occasion in question. As such, Stone D.M. says this court could, if it wished, “find that the standard practice was given effect on the occasion in question.”
112) In terms of an R. v. W.(D.) analysis it could be argued that the officer’s evidence came across as clear, credible and compelling, and his use of ‘usual practice’ was backed up by an independent recollection of having ‘tested’ the radar unit several times during the shift, if not specifically at the end of the shift. It is also compelling that the officer said he tests prior to shutting the unit off so as not to drain the car’s battery, and that he has never known a radar unit to fail.
113) Usual practice can be used to form an evidentiary basis and used to determine the prosecution has made a prima facie case but in the absence of notes or an independent recollection can it be said the court can be certain that the required tests have been conducted beyond a reasonable doubt?
114) The court understands that prevailing case law allows it to find usual practice acceptable if so persuaded, but is Const. McQuat’s usual practice, when backed by compelling statements, sufficient to address the honest and fair doubt, based on reason and common sense, that he knows definitively that he tested the radar unit at the end of his shift as per R. v. Vancrey, supra, and that it was working properly according to manufacturer’s specifications? Clearly the officer’s case of usual practice may have been bolstered had he followed through on some of his compelling statements. He might have said he had tested the radar times several times after the Jialin Zhu traffic stop, and that the unit was working properly, or that he had drawn the same vehicle the next day, and the battery had not been drained because the radar unit had been left on.
115) Perhaps an analogy would be of assistance to put the matter into perspective.
116) It is one’s usual practice to shut off the coffee pot and lock the door before leaving for work in the morning. Quite often, particularly as the years advance, the question arises: did I turn the coffee pot off and did I remember to lock the door? It’s only been a few minutes or a few hours since leaving home for work. Yet there’s no clear recollection of doing so even though it is my usual practice. It would seem even less likely that there’s a clear recollection that on February 7, 2011 that the door was locked and coffee pot turned off before leaving for work on June 30, 2010.
117) Clearly it could be said beyond a reasonable doubt that both the coffee pot had been turned off and the door locked had a note been written at the time both tasks were completed.
118) This court agrees with Justice of the Peace Cuthbertson in Schlesinger, surpa, that the standard to be applied is testing before and after to manufacturer’s specifications to ensure speed measuring devices are working properly, capable of accurately measuring the speed of a moving motor vehicle. Standards of evidence necessary to establish a prima facie case include that the speed measuring device tests have been completed according to manufacturer’s specifications by an officer who is both trained and; that the device passed the tests; and that there is either evidence in the officer’s notes or provided through viva voce that the tests were done both before and after a speed enforcement stop, and that they indicated the machine in question was functioning properly.
119) Usual practice is not necessarily best practice, and the perception that justice is done is as important as it is that justice is done.
120) It can be said that best practice would have had the officer write in his memo book at the end of his shift that the unit had been tested and was working properly. Four simple words would have sufficed: “tested radar, working properly”. That did not occur here, nor did the officer have an independent recollection of doing this required test. The court is not persuaded that the officer’s usual practice is sufficient proof beyond a reasonable doubt that the required test was completed at the end of his shift on June 30, 2010.
121) As such the court cannot be sure that the appropriate test was conducted at the end of Const. McQuat’s shift that day, and the prosecution has not, as a result, proven its case beyond a reasonable doubt.
Jialin Zhu will be found not guilty of Speeding.
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