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Case Law – Lounsbury

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Regina Vs Lounsbury

Appeal from Summary Conviction for Speeding

The officer testified as to his usual practice of checking to make sure the radar device was in good working condition both before and after operating it.

The police officer could not say precisely whether these tests were performed in respect to the appellants particular radar operation

Held, Appeal allowed and speeding ticket conviction quashed. The officer’s usual practice was not proof beyond a reasonable doubt that the device s was, in fact, tested and working at the time of the alleged offence.

The accused was clocked on radar and the Act provides that the court must be satisfied that the radar device was in good working order at the time.

The issue here is whether that was proved beyond a reasonable doubt.

The Radar Operator Testified at the Trial

In his direct testimony, the police officer said that he did tests on the device both before and after issuing the offences notice.

However in cross-examinations, he acknowledged that he had no independent recollection of performing the tests.

He did say that prior to operating any radar unit he conducts a test to see if it is in working order and after issuing of an offence notice he rechecks to make sure that the machine is till in working order.

I take that to be evidence as to his usual practice.

He also said that, in this case, he made a note in his notebook that the had performed a test or tests but he did not note the time of the test or tests. ( I say test or tests, because the transcript does not make it clear whether the notes indicated the making of one test or more than one test. At one point the operator agreed that there were no indications in his notes of how many times the radar was tested, but just the results of a test.)

3. Evidence as to a particular practice or a standard practices is not proof beyond a reasonable doubt.

Nonetheless, if we have a situation where testing is a prerequisite, and if the officer, and only witness, obviously cannot say an more than what his common practice is, I cannot take that as a proof of testing.

In the instant case there is something more than the evidence of the police officer’s usual practice. There is a indication in his notes that he did, in fact, perform a test or tests, although the time or times of the tests were not noted and are not known.

5. In my opinion, all that can be safely 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 relevant shift.

In my opinion that is not enough proof to demonstrate beyond a reasonable doubt that the speed measuring device was working at the time of the alleged offence.

6. Some cases have suggested that there must be evidence that the radar device was tested and found to be in good working order, both prior to and after an alleged offences.

These decisions are certainly consistent with the standard practice of the operator here, which was indeed checked both before and after using the device.

There might be situations where the court could be satisfied of the accuracy of the device where the test was done, either immediately before or immediately after its use, but I need not decide this.

In this case, there was no evidence as to when the checks were done, that is to say whether they were done both prior to and after the alleged speeding or whether they were done before or whether the were done after.

There was no evidence as to when they were done in relation to the alleged offence.

They might as easily have been done at the very beginning of the operator’s shift and long before the alleged offence, with the result that there would not have been a sufficiently reasonable assurance that the unit was still working properly at the critical moment.

7. In the result, the speeding appeal is allowed and the conviction is quashed.