R v Kleiner

R. v. Kleiner

2008 ONCJ 159
Ontario Court of Justice — Lampkin J. | March 13, 2008

Background

On October 27, 2005, Luisa Kleiner was driving eastbound on Brookside Road in Richmond Hill when Constable Steven Marsh clocked her at 83 km/h in a 40 km/h zone using a hand-held Muni-Quip Tribar radar device. Marsh was positioned on Chantilly Crescent with a clear view of traffic, and he testified that Kleiner's vehicle was the only one in the radar beam when he activated the device. He had tested the radar twice that day according to manufacturer's instructions, and it functioned properly both times.

Kleiner applied for trial and was convicted by Justice of the Peace L. Wichman, who fined her $258. She appealed, arguing that the officer wasn't properly qualified to operate the radar device he used, that the Justice of the Peace relied on inconclusive evidence, and that he failed to give adequate reasons for preferring the officer's testimony over hers.

Issues

1. Was Constable Marsh qualified to operate the Muni-Quip Tribar radar device?
2. Did the Justice of the Peace err by relying on insufficient evidence?
3. Were the reasons for judgment adequate?

The Equipment Change Challenge

Kleiner's defence focused on a key fact that emerged in cross-examination: Marsh had been trained on radar in 1989 and certified as an instructor in 2002, but by the time of the offence in 2005, his police service had switched to a different radar model over a two-year period. When asked directly, Marsh admitted that "the equipment that you were trained on in 1989 and certified as an instructor in 2002 is no longer the equipment that now is being used."

However, Judge Lampkin found this argument missed the mark. The evidence showed the changeover was gradual — on the day in question, Marsh was still using the Muni-Quip Tribar he was trained on, not the newer equipment. The court distinguished this from R. v. Brewer, where an officer couldn't confirm he followed manufacturer specifications and admitted reading "absolutely nothing" from the manufacturer about proper operation.

Following the leading Ontario case R. v. Grainger, the court found that formal certification isn't required — what matters is that the operator is qualified, the device was tested before and after use, and it functioned properly. Unlike the Quebec approach in D'Astous v. Baie-Comeau, Ontario doesn't require passing an exam or proving tuning fork accuracy.

The Credibility Battle

Kleiner testified she had turned left from Shaftsbury Road onto Brookside just 37 metres before the officer's position — 14 metres on flat ground, then 23 metres downhill. She argued it was impossible to reach 83 km/h in such a short distance. However, the Justice of the Peace rejected this evidence, noting that Marsh knew the area well (he set up there frequently due to complaints) and estimated she was 100-200 metres away when first observed, not 37 metres.

On appeal, Judge Lampkin found the Justice of the Peace's reasoning adequate under R. v. Sheppard and R. v. W.(D.). The trial judge clearly preferred the officer's evidence about distances and rejected Kleiner's version of events. While the reasons were brief, they left no doubt why the prosecution succeeded.

Key Takeaway

Equipment changes don't automatically disqualify a radar operator — what matters is whether they were qualified to use the specific device on the day of the offence.

If you're challenging radar evidence, focus on whether the officer was properly trained on the actual device used, whether it was tested according to manufacturer instructions, and whether there's evidence it malfunctioned. Simply showing that police services have upgraded their equipment won't invalidate a reading from older, properly-operated equipment.