R v Black

R. v. Black

[2004] O.J. No. 6235
Ontario Court of Justice — B.G. Thomas J. | December 1, 2004

Background

Michael Black was charged with speeding 134 km/h in a 100 km/h zone under section 128 of the Highway Traffic Act. At trial, Officer Bell testified about using radar equipment to detect Black's speed. During cross-examination by the defence, Officer Bell was questioned about the testing procedures for the radar device. When he couldn't remember the procedures, the prosecution asked if he could refer to the manufacturer's manual. Despite defence objections, the Justice of the Peace allowed Bell to use a photocopied portion of the manual.

The problem was that Officer Bell didn't just glance at the manual to refresh his memory — he had to refer to it for every single question about testing procedures and read his answers verbatim from the text. This occurred despite Bell having testified earlier that he was trained and qualified on the radar device and had passed a test on its operation. Black was convicted at trial and appealed to the Ontario Court of Justice.

Issues

1. Whether the Justice of the Peace properly allowed Officer Bell to refresh his memory using the manufacturer's manual
2. Whether the document was properly qualified before being used

The Memory Refreshing Error

Justice Thomas found multiple fatal flaws in how the manual was used. First, the document was never properly qualified — unlike Bell's memo book notes, which were qualified with questions about who made them, when they were made, whether they were in ink, and whether there were any changes. None of these foundational questions were asked about the manufacturer's manual.

Second, it was only a photocopy with no evidence it was certified as a true copy of the original or that the original was available. Third, there was no evidence the manual had been disclosed to the defence, violating disclosure obligations. Most importantly, Bell wasn't actually refreshing his memory — he was reading answers verbatim because he genuinely didn't know the information. The court noted that "it is only where a present memory is actually revived that it can be said to be 'refreshed'" (citing R. v. K.G.B.).

The court emphasized that Bell had testified he was trained and qualified on the device, suggesting he should have known the testing procedures. When an officer has to constantly rely on a manual and read answers word-for-word, it raises concerns about whether they were properly trained or qualified to operate the device according to manufacturer specifications.

Key Takeaway

Police officers can't read prosecution evidence straight from unqualified documents when they claim to have independent knowledge.

If you're facing a radar or speed detection case, pay attention to how the officer testifies about testing procedures. If they claim training and qualifications but then need to read everything from a manual, this creates a serious credibility issue that could undermine the entire prosecution case.