R v Newbury

R. v. Newbury

[2008] O.J. No. 5700
Ontario Court of Justice — J.R. Cottrell J.P. | September 22, 2008

Background

Timothy Newbury was caught doing 84 km/h in a 50 km/h zone on eastbound Danforth Avenue in Toronto on July 8, 2007. A police officer used a laser device to clock his speed and pulled him over. The officer identified Newbury by his valid Ontario driver's license and never lost sight of the vehicle from the time he took the reading until the traffic stop.

Newbury pleaded not guilty and took it to trial. What seemed like a straightforward speeding case quickly unraveled when his agent, Mr. Riddell, started digging into how the officer actually tested his laser device and what he bothered to write down in his notes.

Issues

1. Did the officer properly test the laser device according to manufacturer specifications?
2. Were the officer's notes so inadequate that they violated the defendant's Charter rights to disclosure and full answer and defence?

The Laser Testing Failure

The officer testified that he was trained and qualified to use the laser, and that he tested it before and after use according to "manufacturer's specifications." Problem was, when defence counsel showed him the actual manufacturer's manual (which had been provided in disclosure), it became clear the officer was doing many of the tests completely wrong.

The court relied on three POA appeal decisions — R. v. Niewiadomski, R. v. Wilkins, and R. v. Martin — all holding that when officers don't fully comply with testing and operational procedures, the laser reading becomes suspect. The judge found the officer's non-compliance with manufacturer specifications created reasonable doubt about the accuracy and reliability of the device.

The Disclosure Problem

The officer's notes were pathetic — "very brief and quite sparse," only about two and a half sentences long, described by the judge as "little more than cryptic jottings." Virtually everything the officer testified to in court wasn't in his notes and hadn't been disclosed to the defence.

The defence argued this violated Newbury's section 7 Charter rights, citing R. v. Karunakaran where Justice Armstrong said officers were essentially "disclosing the case during examination-in-chief" when their notes were inadequate. The judge agreed, noting that in this era of full disclosure, it's unacceptable for officers to say "I didn't note it because I would remember it." As Justice Feldman put it in R. v. Lozanovski: "significant facts be recorded by police and not left to the whim of memory."

Key Takeaway

Sloppy police work on two fronts — improper device testing and inadequate note-taking — can destroy even a straightforward speeding case.

Always request full disclosure and carefully review the manufacturer's manual for any technical device used against you. If the officer's notes are sparse and his testimony goes well beyond what's written down, you may have a Charter argument that your right to make full answer and defence has been violated.