R v He

R. v. He

[2003] O.J. No. 2257
Ontario Court of Appeal — Armstrong J.A. (In Chambers) | May 26, 2003

Background

Li He was pulled over by Ontario Provincial Police Officer John Ritchie and charged with speeding under section 128 of the Highway Traffic Act. The officer testified that he clocked He travelling at 122 kilometres per hour in an 80 km/h zone using a Genesis II radar gun. Justice of the Peace B. Brown convicted He on June 20, 2002, finding him guilty of travelling 114 km/h in the 80 km/h zone (interestingly, a lower speed than what the officer originally testified to).

He wasn't satisfied with this result and appealed his conviction to the Ontario Court of Justice, where Justice Bellefontaine heard his case. When that appeal was dismissed, He sought leave (permission) to appeal to the Ontario Court of Appeal — the highest level of appeal available for Provincial Offences Act matters.

Issues

1. Was Officer Ritchie qualified to operate the Genesis II radar gun?
2. Did Justice Bellefontaine make an error of law in upholding the conviction?

The Radar Qualification Challenge

He's defence strategy focused entirely on attacking Officer Ritchie's qualifications to operate the specific radar device — a Genesis II. This is a common defence tactic in speeding cases because the Crown must prove that the officer operating the radar device was properly trained and qualified to use that specific model.

The justice of the peace was satisfied that Officer Ritchie was qualified to operate the Genesis II radar gun. On appeal, Justice Bellefontaine found there was a factual foundation for this conclusion, stating: "In my view there was factual foundation upon which it was open to her worship to find as she did specifically factually find that the officer was trained and qualified officer... I'm satisfied that there was a factual basis for her to find that he was in fact a trained and qualified operator."

At the Court of Appeal level, Armstrong J.A. applied section 139 of the Provincial Offences Act, which requires an error of law for leave to appeal to be granted. The court found no legal error in how Justice Bellefontaine handled the qualification issue.

Key Takeaway

Challenging an officer's radar qualifications requires more than just asking the question — you need evidence that the officer wasn't properly trained.

While questioning radar operator qualifications is a legitimate defence strategy, courts will generally defer to trial judges' findings of fact about officer qualifications unless there's a clear legal error in how the evidence was evaluated.