R v Kololgi

R. v. Kololgi

[2009] O.J. No. 5742
Ontario Court of Justice — Justice A. Hourigan | December 14, 2009

Background

On January 12, 2009, Constable Roman Santos was operating radar when he spotted Shilpa Kololgi driving what he considered to be a high rate of speed. Using his mobile radar unit, he clocked her at 106 kilometres per hour in a posted 60 km/h zone — a whopping 46 km/h over the limit. Under Ontario's stunt driving laws, anything over 49 km/h above the posted limit triggers the serious charge under section 172(1) of the Highway Traffic Act.

Kololgi was convicted at trial by a Justice of the Peace, but she appealed to the Ontario Court of Justice. Her defence was simple: the officer hadn't followed the manufacturer's instructions for operating the radar device, so the speed reading shouldn't be trusted. She testified that she was confident she wasn't going more than 50 km/h and kept her eye on the speedometer, though she couldn't recall her exact speed.

Issues

1. Did the officer's failure to follow the manufacturer's radar operating instructions create reasonable doubt about the accuracy of the speed reading?
2. Should police be required to strictly comply with manufacturer directions before using radar evidence for enforcement?

The Radar Manual Requirements

The case turned on Section 9.1 of the Genesis 2 Radar Device manual, which requires officers to compile a "tracking history" for each enforcement action. This includes making a visual estimate of the vehicle's speed and correlating the patrol speed of the police vehicle with the speed displayed on the radar unit. If any of these components aren't completed, the manual says "no enforcement action shall be undertaken."

Constable Santos admitted he did neither: he made no speed estimate beyond observing Kololgi was going "at a high rate of speed," and he never correlated his patrol car's actual speed with what the radar was showing. While he tested the device at the beginning and end of his shift (which showed it was working), he ignored these operational requirements during the actual traffic stop.

Justice Hourigan rejected the Crown's argument that police can follow their own policies instead of manufacturer directions. He relied on several recent cases, including R. v. Cormier and R. v. Niewiadomski, which held that "there could be no reason for the device manufacture to set out specifications and directions if it mattered not whether they were complied with." The judge emphasized that stunt driving is one of the most serious charges under the Highway Traffic Act, with severe consequences, so the evidence must be rock-solid.

Key Takeaway

Police officers must follow manufacturer instructions when operating radar devices, or the speed reading becomes unreliable evidence.

If you're facing a radar-based speeding or stunt driving charge, demand disclosure of the radar manual and the officer's notes to see if proper procedures were followed. Even small procedural shortcuts can create the reasonable doubt needed for an acquittal.