R. v. Gagetek, 2012 ONCJ 614 (CanLII) – ONTARIO COURT OF JUSTICE

Requirement for the officer to have recorded his estimation of the actual speed of the appellant’s vehicle when he first observed it and before he clocked it on the radar device.



R. v. Gagetek, 2012 ONCJ 614 (CanLII)

BETWEEN: Wojciech GAGETEK

Appellant

— AND —

Her Majesty the Queen

Respondent

Before Justice F. L. Forsyth

Heard on July 6, 2012

Reasons for Judgment released on October 10, 2012

Ms. A. Senkus ………………………………………………………………………………………. for the Prosecution

Ms. Pankou ………………………………………………………………….. for the Defendant Wojciech Gagetek

On appeal from a conviction by Justice of the Peace Her Worship D. Huston on August 17, 2011 at Milton Provincial Offences Court.

FORSYTH J.:
[1] The appellant, Mr. Gagetek appeals from his conviction on a charge of speeding contrary to s.128 of the Highway Traffic Act R.S.O. 1990 ch.h.8. The appellant’s appeal is brought under s.135(1) of the Provincial Offence Act R.S.O. 1990 c.P.33, as amended, from the conviction entered by the learned justice of the peace on August 17, 2011. The appellant appeals both his conviction and also his sentence which was a fine in the amount of $259 with costs and Victim Fine Surcharge.

Evidence at Trial
[2] The Crown called P.C. Adam Marshall of the Halton Regional Police Service as its only witness on the trial. He testified in chief that he had been a member of the Halton Regional Police Service since 2009. He also testified that he had made notes of this particular incident with Mr. Gagetek both during the offence of the alleged speeding infraction and immediately thereafter. He also testified that he had an independent recollection of his interaction with Mr. Gagetek.

[3] The officer testified that he had been on uniform patrol on January 14, 2011. At approximately 12:27 a.m. he was conducting a speeding timing exercise in the area of Regional Road 25 in Halton. He said that he was a qualified radar operator and that he had been last qualified in January 2011. He described the instrument that he was using as a Decatur Genesis handheld device with a serial number of 03248. He described it as a device that was used to accurately measure the speed of a moving motor vehicle. Although he did not specifically testify to this effect, I am presuming that the device was a laser radar detection device. The appellant’s factum seemed to be treating it as such.

[4] The officer then testified that he had tested this radar device at 11:45 a.m. and also at 12:50 p.m. which was after he had stopped and charged the appellant.

[5] P.C. Marshall testified that he had observed a vehicle driving northbound on that particular road at a speed that appeared to him to be higher than the posted speed limit of 80 kilometres per hour at that location. He therefore aimed his radar device antennae at that vehicle and obtained the reading of 117 kilometres an hour. He stopped the vehicle and it turned out to be driven by Mr. Gagetek. He obtained the usual driver’s licence information from the appellant and recorded the spelling of his surname as “Gagatek”.

[6] He was asked how he had determined that the radar device had been working properly. He said that he hit “the test button” and it had gone through its functions and read “pass” at the end of the self-diagnostic process. He was asked how he knew what test he should administer to determine the operability of the device and he said, “As per training”.

[7] Mr. Larsen, the prosecutor at trial, pursued this area of questioning and asked the officer to describe what sort of training he had received to come to the conclusion about which button he should press to test the unit. P.C. Marshall said that he had been trained to hit the test button and that the test button goes through a series of pitches and numbers, 25, 50, 75, and 100. He said that it then flashes “pass” a few times and then at that point he said that if the unit goes though all of its sequences and comes up with a “pass” flashing then he and his fellow officers were led to believe that the radar device was functioning properly. He was asked what type of person would have told him that that was the case and he said that he had been instructed to watch the sequence of events on the screen.

[8] He was then asked how he could be certain that the vehicle that he had stopped was the actual vehicle which he had targeted and with respect to which he had obtained the speed reading on his radar device of 117 kilometres per hour. P.C. Marshal said that the appellant’s vehicle had been the only vehicle on the road at that location coming northbound. He said that as he recalled he did not think that there was another vehicle going southbound and in any event it would not have registered on the radar because he always has the radar button set to “towards” when is about to target the vehicle.

[9] After he was questioned further by the prosecutor about how he would know that the word “pass” on the screen of the radar device indicated that it would be in proper working order P.C. Marshal said that the manufacturer of the radar device gives information to that effect and he learned about that in his training. He said “That’s how we were trained when we had training. I was trained back in January of 2010. It was a course we took.”

[10] He was then asked what materials he had read, if any, as an enhancement to his training on the device. He stated that the Halton Regional Police Service provides a handout of material. He also said that there were slides that they covered and they also have the owner’s operation manual issued to them as police officers. He was asked who produces the manual and he said that it was his understanding that the manufacturer of the device, Decatur produces it. Again, he was asked in accordance with what directions he had conducted his tests on the device on the day in question and he said that he had tested the device in accordance with the directions of the company’s instruction manual.

[11] In cross-examination by Ms. Linda Carter at the trial the officer conceded that he had not read the manufacturer’s manual from “front to back”. However, he did say that he had “gone through it”. Ms. Carter asked him if he had made any notes in his notebook about the actual speed of the appellant’s vehicle when he had take up observation of it and he said that he had not. She challenged him and suggested that making a note of that speed is part of the tracking history that was required according to the radar device company’s manual. However, P.C. Marshall said that it was not as far as he was concerned from anything that he had read but of course again, he conceded that he had not read the entire manual.

[12] Ms. Carter then pointed out to him that although he had pulled over the appellant and recorded his surname as “Gagatek” he had issued the speeding infraction ticket in the surname of “Gagetek”. The officer agreed that it was possible that he had made a mistake with the appellant’s last name in the spelling with that single letter difference, but he believed it was certainly the same person whom he had stopped in the vehicle to whom he gave that ticket.

[13] Ms. Carter then demonstrated to the officer that he had issued a speeding ticket under a number 334817A and he agreed and said that was the number he had recorded in his notes. However, he then had to agree that the ticket that was placed before the court during the trial in the first instance was 3348178A. Confronted with that anomaly he admitted to Ms. Carter that it was possible that he had made another mistake. She then capitalized on this answer by asking him if it was possible that he had made any more mistakes in his notes and the officer said that “there very well could be”.

[14] Ms. Carter then asked him again to tell the court when he had tested the unit. The officer said that the first time was probably at the scene because that’s the way he usually does it before he begins to use it on patrol. He really did not recall particularly whether he had gone back to the very spot where he had set up his radar check in order to continue doing radar checks or whether he had gone directly back to #10 Division after he issued the ticket to the appellant. In other words, he was testifying that he was not exactly certain whether the test that he had conducted on the unit after he charged the appellant had been conducted at the scene or at the station. This concluded the cross-examination at trial by Ms. Carter.

[15] The prosecutor, Mr Larson, re-examined the officer and referred him to his evidence wherein he had stated that he had covered some of the manufacturer’s manual but he had not read it page for page. P.C. Marshall agreed with that suggestion. Mr. Larsen asked him specifically what he could recall with respect to the testing procedures that were recommended by the manufacturer’s manual and in particular how much of those instructions he had read. P.C. Marshall answered:

I don’t recall. I can’t say word for word. I’m going to say our services training is very good, it’s very complete and we have an instructor in our class. They go over all the procedures. They go over all the functions of it. Part of their presentation is taken from the manual itself, I believe, and I’m sure the testing procedures are as well. It’s a pretty in-depth course.

He then continued to say that he had been very satisfied that the radar device had been operating properly at the time and that he is very familiar with all of the functions of the unit with respect to the beeps and tones and “pass” mode and to him everything seemed to be working correctly.

[16] The Crown then closed the case against Mr. Gagetek at trial and Ms. Carter did not call any evidence on behalf of the appellant at trial.

Reasons for Judgment of Justice of the Peace Huston
[17] The learned justice of the peace found that P.C. Marshall had testified that he had tested this radar device in question and that it really was not material that he could not be certain of the exact location at which he had tested the device either before or after he charged the appellant.

[18] The learned justice of the peace also found that there is no requirement for the officer to have recorded his estimation of the actual speed of the appellant’s vehicle when he first observed it and before he clocked it on the radar device. She also found that the error which he admitted making with one of the letters in the appellant’s surname was a minor spelling error and not fatal to the case for the Crown. She supported her finding by emphasising that the officer had identified Mr. Gagetek properly through photo identification from his driver’s licence and confirmation of his date of birth.

[19] Next the learned justice of the peace dealt with the obvious error made by the officer of inserting an incorrect number and letter in the ticket which he issued. She found that it was immaterial. She supported her finding by pointing out that the entire proper number of the ticket is located at the top of the certificate and so the error which he made in recording that number in the certificate was not fatal.

[20] Justice of the Peace Huston then dealt with a submission that had been made by Ms. Carter to the effect that the officer’s testimony that he had not read the manufacturer’s manual in its entirety was fatal to the prosecution’s case. Her Worship Huston stated that she did not believe that the officer had indicated that he did not look at the recommendations. She said that he had testified that there are some parts of the manual that he had not read but that in his training they had covered in depth training from the manual for the particular radar device which he had used. Having said that, the justice of the peace concluded that there was no reasonable doubt in her mind about the fact that the Crown had proven this charge beyond a reasonable doubt.

[21] She referred to the minor errors of the officer with respect to the spelling of the surname of the appellant and incorrect numerical entry in the body of the offence certificate with respect to the number of the ticket and simply said that people make minor mistakes in the course of their duties, and that on the other hand she was rather impressed with the independent recollection that the officer had shown in his testimony with respect to this event. She therefore found that the Crown had established a prima facie case on the charge and she entered a conviction. I can only presume she mentioned the term prima facie because the appellant did not testify.

Issues on appeal
[22] The appellant confined himself to one issue: Did the court err in finding that the Crown had proven beyond a reasonable doubt all elements necessary for the admission of the radar evidence? See paragraph 6 of the appellant’s factum.

POSITON OF THE APELLANT

[23] In his factum the appellant relied upon the decision of R. v. Bourne 2001 O.J. 2869 OCJ as an authority for the proposition that evidence that the radar device in question was properly calibrated is mandatory and that the calibration must be demonstrated to have been performed in accordance with the manual of instructions produced by the manufacturer and by a trained and qualified radar operator. The appellant submits that officers operating these radar devices must be trained and qualified with necessary examinations to be passed. See paragraph 7, appellant’s factum.

[24] At paragraph 8 of his factum the appellant refers the Court to the decision of R. v. Farnand 2004 O.J. No. 767 OCJ. In that case, argues the appellant, Mr. Justice Humphrey found that the officer must not only be familiar with the specific training materials for the specific radar device which he or she is operating, but the officer must also have read and used the manufacturer’s manual on a daily basis.

[25] In paragraph 9 of his factum the appellant refers the Court to the decision of R. v. Niewiadomski 2004 O.J. 478, a decision of Madam Justice Schnall of the Ontario Court of Justice. This was a fact situation where the officer who was testifying could not recall how he had tested his radar device. Madam Justice Schnall ruled that the cross examination of the officer on that point should have raised a reasonable doubt in the mind of the Justice of the Peace who tried the case that there was sufficient evidence before the Court that the radar device had been in proper working order and also whether it was being operated properly on the day in question.

[26] At paragraph 11 of his factum the appellant relies heavily upon the decision of Mr. Justice Wright of the Ontario Court of Justice in R. v. Martin 2008 O.J. 1803. The appellant submits the Martin case clearly lays down the requirements necessary for the evidence obtained by a radar device of the speed of a motor vehicle to be accepted by the Court. The appellant submits that that decision stands for the proposition that the evidence must demonstrate that the officer had been both trained and repeatedly qualified in the usage of the specific radar device and that the specific device must have been shown to have been tested both before and after its use in accordance with the manufacturer’s specifications contained in the manufacturer’s manual. The appellant submits that the Martin decision stands for the proposition that the officer must have been shown to have read the manufacturer’s manual and routinely used it during the operation of the particular device.

[27] Finally, at paragraph 12 of his factum the appellant submits that in the case at bar the decision of Justice of the Peace Huston cannot be objectively seen to be supported by the evidence before her on the trial and therefore it was unreasonable. The appellant submits that on the evidence before the Court the learned Justice of the Peace should have found that P.C. Marshall was not sufficiently qualified in the use of that particular laser radar device and that he had possessed only general knowledge as to how to operate it.

[28] In addition the appellant submits that there was no clear evidence before the Justice of the Peace on the issue of whether or not the officer had tested the unit or the manner in which he had tested it and when he had tested it. The appellant submits that P.C. Marshall himself testified that he had no recollection of the incident and had made many mistakes in his notes. As well he had no familiarity with the manual and no memory as to another car possibly interfering with the registration of the appellant’s speed on the radar device, argues Ms. Pandou.

[29] For all of these reasons the appellant respectfully requests an order from this Court quashing the conviction of the Justice of the Peace and entering an acquittal.

POSITION OF THE RESPONDENT

[30] Ms. Senkus submits that the learned Justice of the Peace was perfectly entitled to conclude that there was sufficient evidence from P.C. Marshall at the trial of the accuracy and reliability of the radar unit which he had used. She submitted that there is a plethora of evidence from P.C. Marshall about his own training on the unit and the steps that he took to actually test it both before and after he used it. She argues that there is no requirement that the officer be shown to have read the manufacturer’s manual word for word or cover to cover. What is important, she argues, is that there is evidence that he familiarized himself with the portion of the manual that pertained to the particular radar device that he was using. She submits that the Court should consider the totality of the evidence of Officer Marshall in that regard and she refers the Court to the decision of R. v. Caparelli 2008 O.J. No. 5156, a decision by Madam Justice Armstrong in the Ontario Court of Justice sitting on an appeal from a speeding conviction entered by the Justice of the Peace on January 10th, 2008.

[31] At paragraphs 9, 10 and 11 of that decision Justice Armstrong stated “

The officer did not say that he had only read sections of the operating manual of the radar unit, nor could such an inference be drawn. He said he has read the portions relating to the job he was performing with the unit. Similarly the officer did not say he had read or become familiar with the operation of the radar device through his training rather than by reading the relevant portions of the manual for the actual unit he was using. He said he received the manual for the unit in question during his training on the very same unit. He said he had read the relevant portions of it.

[32] Specifically, at paragraph 11, Madam Justice Armstrong stated

I agree with Justice Casey in R. v. Khalatbari 2004 O.J. No. 4167 at paragraph 6 that was is required is for the Justice to be satisfied that the radar device was operating properly and could do what the officer testified it could do. Put another way, I agree with Justice Kenkel in R. v. Sepiashvili 2003 O.J. No. 3996 at paragraphs 27 and 35 through 39 that it must be established by evidence at trial that a particular device is in working order on a given day. I also agree that evidence that a qualified operator tested the device in accordance with the manufacturer’s specifications and found it to be in proper working order is sufficient to establish prima facie reliability. This test was adopted by Justice Harris in R. v. Viegabatista April 12, 2006 at page 5 but the facts of that case did not satisfy the test.

[33] Ms. Senkus also reminds the Court that there was no cross- examination at trial of P.C. Marshall to challenge his qualifications as a qualified radar operator. Nor was there any cross- examination with respect to the manner in which he had tested the unit.

[34] In furtherance of that argument Ms. Senkus refers this Court to paragraph 28 of the decision of R. v. Guglietti 2004 O.J. No. 6218. This was a decision by this court sitting in my capacity as an appellate Court after a conviction on a charge of speeding by a Justice of the Peace after a trial. Ms. Pankou had also relied on this decision on the issue of the sufficiency of the evidence of the officer’s qualifications and training on the particular radar unit which he was operating. At paragraph 28 of the Guglietti decision I specifically found “

There was no evidence before Justice of the Peace Bonas that P.C. Michel had received any training, whether it be on the job or at the academy or at the police detachment in Port Credit on any particular radar unit, let alone the particular hand-held genesis V.P. unit that was described by Officer Michel in this case and used by that officer. There is just no evidence of that before Justice of the Peace Bonas.

[35] I specifically find that the state of the evidence from P.C. Marshall in the case at bar on the issue of his training on his particular radar unit is quite distinct, and far more extensive from the evidence that I had to consider in the Guglietti decision as indicated by paragraph 28 of that case.

[36] Ms. Senkus further submits that the manufacturer’s manual with respect to a particular radar device should not be accorded the status of a statutory requirement of proof of intimate knowledge with each and every chapter and verse of that document.

[37] Ms. Senkus then referred the Court to one of the arguments of the appellant that was concerned with a decision cited as R. v. Wilkins 2006 O.J. No. 5366. This was an appeal decided by Mr. Justice Klein of the Ontario Court of Justice in Parry Sound in December 2006. On that appeal Mr. Justice Klein found that the Justice of the Peace who had tried the case had received no evidence from the officer that he had ever received or read a manual supplied by the manufacturer of the particular radar device that he had used on Mr. Wilkins’ vehicle. Mr. Justice Klein at paragraph 9 indicated the he had actually checked the evidence in the transcript of the trial to determine whether or not the officer had ever mentioned the name of the manufacturer of the radar device or that the manual was supplied by the manufacturer of that device. In the result he found that the officer had mentioned neither of those facts.

[38] At paragraph 14 of the Wilkins decision Mr. Justice Klein found

There is no evidence in the transcript before me that indicates that training officers were using the manufacturer’s manual, nor that the manual that was provided with the machine was one that came from the manufacturer.

[39] In the final analysis Mr. Justice Klein found that the learned Justice of the Peace should have entertained a reasonable doubt with respect to the accuracy of the testing procedure and the qualifications of the officer with respect to the particular radar device in question and he therefore allowed the appeal and reversed the decision of the trial court.

[40] Ms. Senkus submits that those facts in the Wilkins case can be considerably distinguished from the case at bar because P.C. Marshall referred distinctly on at least three occasions in the transcript of his evidence to the exact description of the radar device that he was using and also stated that the manual which was used in his training program was the manual produced by that particular manufacturer for that particular device.

[41] Lastly Ms. Senkus referred the Court to the Martin decision and argued that there are obvious distinctions in the factual basis that was available to Mr.Justice Wright with respect to the qualifications and training of the officer in that case by comparison with P.C. Marshall in this case. In support of her submission she referred the Court specifically to paragraphs 16, 17 and 18 of the Martin decision.

[42] Ms. Senkus concluded by submitted that this Court should find that there was no palpable error made by the learned Justice of the Peace when she concluded that the Crown had proven beyond a reasonable doubt all of the necessary elements for the admissibility of the radar evidence that was provided in testimony by P.C. Marshall at trial. The respondent therefore asks this Court to dismiss this appeal.

ANALYSIS AND CONCLUSION

[43] Section 138 of the Provincial Offences Act governing these appeals states:

Powers of court on appeal

138. (1) Upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial. R.S.O. 1990, c. P.33, s. 138 (1).

New trial

(2) Where the court directs a new trial, it shall be held in the Ontario Court of Justice presided over by a justice other than the justice who tried the defendant in the first instance, but the appeal court may, with the consent of the parties to the appeal, direct that the new trial be held before the justice who tried the defendant in the first instance or before the judge who directs the new trial. R.S.O. 1990, c. P.33, s. 138 (2); 2000, c. 26, Sched. A, s. 13 (6).

[44] I find that Justice of the Peace Huston had evidence before her from P.C. Marshall to the following extent:

1. That he was a member of the Halton Regional Police Service and on January 14, 2011, he was a qualified radar device operator who had been last qualified in January 2011.

2. That the instrument which he was using was a Decater Genesis handheld device with a Serial No. 03248. He testified that that radar device was used to accurately measure the speed of a moving motor vehicle.

3. That he had tested this radar device before using it on Mr. Gagetek’s vehicle at 11:45 a.m. and that he had also tested the device after he had issued the speeding ticket to the appellant at 12:50 p.m. He testified that he had received t training and an intensive course on this device in January 2010. He also testified that the training program provided a handout of material with respect to the particular device and that the owner’s operation manual was issued to him as well. He distinctly testified that when he conducted his own test of the device he followed the directions of the company’s instruction manual.

There was no evidence at trial for Justice of the Peace Huston to consider with respect to any challenge to the qualifications of P.C. Marshall or of the instruction material and procedures on the particular Decater Genesis radar device about which he had testified.

4. That when he tested the device he followed the procedures that he had been taught at a training course by instructors and also in accordance with the instructions contained in the manufacturer’s manual for the Decater Genesis device.

[45] I find that there was no evidence for Justice of the Peace Huston to consider with respect to any challenge at trial to either the qualifications of P.C. Marshall as a radar device operator or with respect to his evidence of the instructions which he had received on his training course with respect to the device. The only cross- examination on those points was to the effect that he had not read word for word the instruction manual.

[46] I agree with Mr. Justice Wright in Martin wherein he set out at paragraphs 25, 26 and 27 the composite test of evidentiary requirements that must be met by the prosecution in a section 128 Highway Traffic Act charge where the evidence of the alleged speeding is provided by a laser radar device. I will simply set out those same paragraphs in this judgment in order to indicate that I also not only adopt them but of course am bound by the statements of principle of the Ontario Court of Appeal on these points.

[47]

In R. v. Vancrey [2000] O.J. No. 3033 the Ontario Court of Appeal did an excellent and instructive overview of the evidentiary requirements to be met where speed is determined by the use of a “laser” device.

First the court considered the facts in these terms:

“…there was led at trial prima facie evidence of the accuracy and liability of the particular laser unit, consisting of the performance of the manufacturer’s test for good working order before and after the use of the device, together with the earlier verification of the accuracy of the laser unit from entering the velocity of moving vehicles on a highway, when compared with an accurate radar unit by a qualified laser radar operator.”

(R v. Vancrey, supra para. 21)

Secondly the court expressed the ratio of it’s decision as follows:

“The court received evidence that the officer who operated the laser device was trained and experienced and that he tested the device both before and after its use in accordance with the manufacturer’s instructions to ensure it was operating properly upon the date in question. The court also received evidence of the accuracy of the device for measuring the speed of vehicle on a highway by comparing its readings to those of an accurate radar unit. The radar test provides independent guarantee of the accuracy of the particular laser unit to measure the speed of a moving vehicle”.

(R. v. Vancrey, supra para. 22)

[48] I am satisfied that Justice of the Peace Huston had ample evidence from P.C. Marshall for her to conclude that he had complied with the evidentiary requirements of R. v. Vancrey as established by the Ontario Court of Appeal.

[49] I agree with all of the Crown’s submissions with respect to the significant distinctions between all of the cases provided by the appellant on the subject of the sufficiency of the evidence at trial with respect to the particular officer’s qualifications as a radar operator and/or the sufficiency of his training and knowledge of a manufacturer’s manual with respect to the particular radar device in each case and the evidence given by P.C. Marshall in this case. In short, I find that P.C. Marshall’s evidence was far more complete and definitely in compliance with the requirements of evidentiary proof mandated by the Ontario Court of Appeal in Vancrey than was the evidence of any of the other officers in those cases.

[50] For these reasons I therefore dismiss this appeal and affirm the decision, including both conviction and sentence of Mr. Gagetek by Justice of the Peace Huston.

Released: October 10, 2012

Signed: “Justice F.L. Forsyth”