R v Bourne

R. v. Bourne

[2001] O.J. No. 2869
Ontario Court of Justice — Justice Karswick | June 15, 2001

Background

Tracy Bourne was caught speeding and ticketed under section 128 of the Highway Traffic Act. Her speed was measured using an L.T.I. 20-20 Marksman Laser Speed Detection Device (L.S.D.D.). The officer operating the device was properly qualified and had performed all four manufacturer-recommended tests before using it: the "self-test", "display test", "scope test" and "distance-velocity test". Both parties agreed the officer was qualified and the device had been tested according to manufacturer instructions.

However, there was one thing missing. The officer had not performed an independent verification test by comparing the laser device's readings against a conventional radar device on moving vehicles. Bourne appealed her conviction, arguing this missing test made the laser evidence unreliable.

Issues

1. Was the evidence of the laser device's accuracy and reliability adequate without independent verification testing against radar?
2. What standard of testing is required to make laser speed detection evidence admissible in court?

The Laser Evidence Battle

Justice Karswick had to navigate conflicting decisions from other Ontario judges about laser evidence. In R. v. Vancrey, the Court of Appeal had upheld a conviction where the officer did perform comparison testing between the laser and radar devices (even though it was done 3-4 weeks before the traffic stop). The Court of Appeal found this "radar test" provided "the independent guarantee of the accuracy of the particular laser unit to measure the speed of a moving vehicle."

But in R. v. Wong, Justice O'Hara had found that without dynamic testing against radar, "there is no adequate testing of the error trapping mechanisms" built into laser devices. He required comparison testing as part of proving reliability.

A third judge, Justice Pockele in R. v. Mukasa, had gone the opposite direction, ruling that laser technology was no longer "new and novel" and didn't require comparison testing with radar. Justice Karswick firmly rejected this approach, noting that Justice Pockele had no scientific or technological evidence before him to support such broad conclusions about laser reliability.

The Court's Decision

Justice Karswick sided with the Court of Appeal's approach in Vancrey and Justice O'Hara's analysis in Wong. He ruled that laser evidence requires independent verification through comparison testing with conventional radar devices within a reasonable time period. The manufacturer's four tests alone are not sufficient because they don't test the "error trapping mechanisms" that prevent unreliable speed measurements.

Since the Crown failed to present any evidence of comparison testing between the laser device and radar, the laser evidence was unreliable and inadmissible.

Key Takeaway

Laser speeding tickets can be successfully challenged if the officer didn't perform comparison testing against radar devices.

If you're facing a laser-based speeding charge, ask the Crown whether the officer conducted independent verification by testing the laser device against a conventional radar unit on moving vehicles. If they can't prove this testing happened within a reasonable time before your ticket, the laser evidence may be inadmissible and your charge should be dismissed.