R v Garofalo

R. v. Garofalo

April 22, 2002 (Trial) / July 2, 2003 (Appeal)
Ontario Court of Justice — Justice D. McAleer (Trial), Justice M. Hogan (Appeal) | Toronto, Ontario

Background

Arthur Garofalo was charged with speeding 95 km/h in a 50 km/h zone on Kipling Avenue in Toronto on January 3, 2001. Police Constable May used a Marksman LTI 2020 laser device to clock Garofalo's gold Nissan from 247 metres away. At trial, Garofalo was represented by agent J. Bonan, while the Crown was represented by prosecutor K. Wiedekowsky.

The case took an unusual turn when Justice McAleer convicted Garofalo but made scathing comments about the defence agent's conduct during cross-examination. The Justice of the Peace criticized the agent as acting "unprofessionally" and "unethically," leading to an appeal on the grounds of reasonable apprehension of bias.

Issues

1. Did the Justice of the Peace's comments create a reasonable apprehension of bias?
2. Were the officer's radar testing procedures adequate to prove the device was working properly?

The Bias Appeal

On appeal, Justice Hogan found that Justice McAleer's harsh criticism of the defence agent did create a reasonable apprehension of bias. The trial judge had become "very frustrated and very quickly" with the cross-examination and made "what could only be described as an overt indication" that the agent was acting unprofessionally. The appeal court noted that while the agent's cross-examination was "courteous, respectful, polite and efficient," the trial judge seemed to have prejudged the case.

This demonstrates that even minor procedural issues can derail a prosecution — judges must remain neutral, and any appearance of bias can lead to a new trial being ordered.

The Radar Evidence Problem

The case also highlighted significant issues with how police officers prove their speed-measuring devices are working. Officer May testified that he performed tests according to "manufacturer's specifications" but couldn't provide specifics about what those tests were or reference any manual. When pressed about whether he performed a "scope alignment test" — a procedure to ensure the laser beam is properly aimed — the officer admitted he didn't know if it was required and hadn't consulted the manual.

The prosecution argued this was a "fishing expedition" by the defence, but the court noted that without expert testimony about proper testing procedures, the officer's general statements about following manufacturer specifications weren't sufficient to establish the device's reliability.

Key Takeaway

Police officers must be able to explain exactly how they tested their speed-measuring equipment, not just claim they followed "manufacturer specifications."

This case shows that detailed cross-examination about testing procedures can expose weaknesses in radar evidence, and that judges who appear biased against the defence can create grounds for appeal — even in cases where the defendant is ultimately convicted.