R v Dattomo

R. v. Dattomo

2009 ONCJ 539
Ontario Court of Justice — Justice of the Peace Kenneth W. Dechert | October 30, 2009

Background

At 2:05 a.m. on February 22, 2009, Pietro Dattomo was driving his white Ford pickup truck westbound on Speers Road in Oakville when Officer Gerry Prevost clocked him at 75 km/h in a 60 km/h zone using a Genesis VP Directional handheld radar device. Prevost was parked about 20 metres south of the roadway in a private drive, facing north with what he described as "a clear view of both eastbound and westbound lanes."

Dattomo was charged under section 128 of the Highway Traffic Act, though the prosecution reduced the offence to 70 km/h in a 60 km/h zone. He pleaded not guilty and went to trial, represented by legal counsel who challenged the reliability of the radar evidence.

Issues

1. Whether the prosecution proved all elements of the speeding offence beyond a reasonable doubt
2. Whether the radar device was operating accurately and being operated properly at the time of the alleged offence

The Radar Evidence Challenge

The defence attacked Officer Prevost's radar procedures on several fronts. Most notably, during cross-examination, Prevost admitted he couldn't name the manufacturer of the Genesis VP device he was using, and that while he'd been trained on radar generally since 1975, he'd only received training on this specific handheld device in February 2008 — making it "fairly new" to him and the police service.

The defence also challenged Prevost's interference testing methodology. The officer had conducted interior and exterior "sweeps" of his police vehicle to check for interference, but he'd set the radar's sensitivity to maximum (level 5, described as going "out to infinity") even when testing inside the confined space of his cruiser. Defence counsel argued this made no sense and suggested the testing was flawed.

However, Justice of the Peace Dechert applied the legal standard from R. v. Vancrey and D'Astous v. Baie Comeau, which requires the Crown to prove: (1) the operator was qualified, (2) the device was tested before and after operation according to manufacturer's instructions, and (3) the device was found to be accurate. The court found Prevost's training sufficient, noted he'd tested the device at 1:30 a.m. and 2:20 a.m. according to manufacturer's procedures (with both tests showing "pass"), and concluded there was no evidence the sensitivity setting during interior testing actually compromised the results.

Key Takeaway

Attacking an officer's general unfamiliarity with equipment isn't enough — you need evidence that specific procedures were actually wrong or that the device malfunctioned.

While Dattomo's counsel raised legitimate questions about the officer's expertise and testing methodology, they couldn't point to any evidence that these issues actually affected the accuracy of the speed reading. The court emphasized that speculation isn't sufficient to raise reasonable doubt about radar reliability.