R v DiGiuseppe

R. v. DiGiuseppe

[1991] O.J. No. 2514
Ontario Court of Justice - Provincial Division — Fraser Prov. Div. J. | November 14, 1991

Background

Dino DiGiuseppe was charged with speeding after being clocked by radar equipment operated by a police officer. At trial, the Crown presented evidence that the radar equipment was tested before and after measuring the defendant's speed using tuning forks. The radar operator testified that the equipment was working accurately and that it was found to be working accurately after the testing.

DiGiuseppe appealed his conviction, arguing that the Crown failed to establish a proper foundation for the radar evidence. Specifically, he claimed the Crown hadn't proven that the tuning forks themselves were accurate and suitable for testing the radar equipment.

Issues

1. What evidence must the Crown present to establish the accuracy of radar equipment?
2. Is it sufficient to prove the radar worked accurately, or must the Crown also prove the testing devices themselves were accurate?

The Radar Accuracy Requirements

The court dismissed the appeal, but not before clarifying an important principle about radar evidence. Fraser J. ruled that the Crown was only required to prove that the radar equipment was tested before and after measuring the defendant's speed, and that it worked accurately during those tests.

Crucially, the court referenced two key precedents: R. v. Bourque and R. v. Meyer. In Bourque, the court established that radar is an instrument which accurately measures the speed of moving vehicles, and operators don't need to testify that "radar is an instrument." The court noted that if it's necessary to prove the accuracy of tuning forks, then surely it becomes necessary to prove the accuracy of whatever devices are used to measure or test those forks — creating an "impossible evidentiary treadmill."

Key Takeaway

The Crown doesn't need to prove that tuning forks themselves are accurate — only that the radar equipment tested accurately when the tuning forks were used.

For self-represented defendants, this means you can't simply challenge radar evidence by questioning whether the tuning forks were properly calibrated. The court will accept that tuning forks are reliable testing devices, and you'll need to find other weaknesses in the Crown's case to mount a successful defence.