R v Proctor

R. v. Larry C. Proctor

Inform. No. 999 00 22079903-00
Ontario Court (Provincial Division) — His Honour Judge H.E. Zimmerman | February 6, 1997, at Newmarket, Ontario

Background

Larry Proctor was charged with speeding under section 128 of the Highway Traffic Act. At trial, the police officer testified that he had tested the radar "before and after the incident" but provided no specific information about when these tests occurred. Defence counsel Mr. Dullege argued that the case of Ziara required more specific evidence about the timing of radar testing — and he told the Justice of the Peace that he had argued this same case before her recently.

After hearing submissions, the Justice of the Peace convicted Proctor. In her reasons for judgment, she stated that she didn't know the Ziara case that defence counsel had referenced. Proctor appealed the conviction.

Issues

1. Was the evidence about radar testing sufficient without specific timing details?
2. Did the Justice of the Peace err by failing to consider the Ziara case law?

The Radar Testing Evidence

The officer's evidence was that he "tested it before and after the incident." But as Judge Zimmerman noted, this could mean anything — the same day, the same week, or even the same month. The Ziara case established that there must be evidence of "reasonable proximity" between the testing and the actual use of the radar device.

Judge Zimmerman found this vague testimony created "that element of doubt" and was not sufficient evidence to resolve the timing question "in the mind of the Justice of the Peace." Without knowing when the radar was actually tested, the court couldn't determine if it was accurate when used to catch Proctor speeding.

The Justice of the Peace's Error

More troubling was what happened after the legal arguments. Defence counsel had specifically told the Justice of the Peace that he had argued Ziara before her recently, and that it was a Provincial Court of Appeal decision requiring reasonable proximity for radar testing. Instead of asking for clarification or requesting a copy of the case, the Justice of the Peace simply stated in her judgment that she didn't know the case — and then convicted anyway.

Judge Zimmerman found this was legal error. The Justice of the Peace was bound by the Ziara decision and should have either refreshed her memory or obtained a copy of the case before rendering judgment. Her failure to consider binding case law, combined with the insufficient radar evidence, made the conviction unsafe.

Key Takeaway

Vague police testimony about radar testing "before and after" an incident is not enough — you need specific timing evidence.

If an officer can't say when they tested their radar equipment, there's reasonable doubt about whether it was accurate when they caught you speeding. And if you cite binding case law to a Justice of the Peace, they can't simply ignore it because they don't remember the decision.