R v Bigioni

R. v. Bigioni

[1986] O.J. No. 2753
Ontario Provincial Offences Court — Sturch J.P. | September 17, 1986

Background

At 1:01 a.m. on June 21, 1986, P.C. Anthony Ironside was parked in an unmarked car on Warden Avenue in Scarborough, watching for speeders. He observed Denis Bigioni's Ford travelling southbound in the second of two lanes, appearing to speed. Ironside pointed his hand-held Muniquip radar device at the vehicle and got a reading of 94 km/h in a posted 60 km/h zone.

Ironside stopped the vehicle and identified Bigioni as the driver. The weather was clear, roads were dry, and Ironside testified that he was qualified in radar use and had "tested" the radar unit at the start of his shift, at the location, and after finishing his shift at 3:00 a.m., finding it "in accurate working order." Bigioni was charged under Highway Traffic Act section 109 and pleaded not guilty.

Issues

1. Whether the Crown proved beyond a reasonable doubt that the radar device was capable of accurately measuring speeds
2. Whether the officer's evidence about testing the radar unit met the legal requirements for admissibility

The Radar Evidence Requirements

Bigioni, representing himself, argued that the Crown failed to prove the radar device's accuracy. He cited several cases, including Regina v. O'Reilly from Alberta, which established that radar readings can only be accepted as evidence when: (a) the instrument is operated by someone trained in its operation, and (b) the operator gives evidence that he conducted an "approved test" of the instrument and that the test satisfied him the instrument was operating properly and capable of accurately measuring speeds.

The defence pointed out critical gaps in the Crown's evidence. While Ironside claimed to be "qualified," there was no evidence about his specific training. More importantly, while he said he "tested" the unit, there was no evidence about what type of tests he conducted (tuning fork or otherwise), whether those tests were approved in the operating manual for that particular device, or any details about the testing procedure. The defence cited Ontario Provincial Offences Appeal Court decisions that followed the O'Reilly standard, including a recent case involving another Bigioni where identical evidence was found insufficient on appeal.

The Court's Decision

Despite the defence arguments, Justice of the Peace Sturch convicted Bigioni. The court reasoned that the officer's testimony that he tested the machine and found it working accurately was sufficient, and that it wasn't necessary for the officer to detail his testing methods every time. The court found there was a prima facie case and imposed a $40 fine with 30 days to pay.

This decision appears to conflict with the higher court authorities cited by the defence, which required more detailed evidence about testing procedures and operator qualifications.

Key Takeaway

Radar evidence requires proof of proper testing and operator qualifications — vague claims about being "trained" and having "tested" the device may not be enough.

While this particular court accepted minimal evidence, the cases cited by the defence suggest that challenging radar evidence on the basis of insufficient proof of testing procedures and operator qualifications can be a viable defence strategy, especially when the officer provides only conclusory statements without specific details.