R v Schlesinger

R. v. Schlesinger

[2007] O.J. No. 2365
Ontario Court of Justice — Justice of the Peace M.A. Cuthbertson | May 4, 2007

Background

On August 4, 2006, at 11:24 AM, OPP Officer Brazier was running laser speed enforcement on Highway 6 north in Puslinch township. He spotted David Schlesinger's vehicle travelling at what looked like a high rate of speed. The officer locked his laser device onto the vehicle from 404.8 metres away and got a reading of 132 km/h in an 80 km/h zone. Using his discretion, he charged Schlesinger with speeding at 129 km/h under section 128 of the Highway Traffic Act.

At trial, Officer Brazier testified that he was a qualified laser operator and instructor. But when asked about testing the device before the stop, things got messy. He initially said he tested it at 11:25 AM — which was impossible since that was *after* he'd already clocked Schlesinger at 11:24 AM. Unable to read his own notes properly, the officer fell back on saying it was his "usual practice" to test before enforcement stops, so he "must have" done it that day. Schlesinger admitted he was speeding, but said he was "probably" only going 100-110 km/h and hadn't checked his speedometer.

Issues

1. Is it necessary for laser devices to be tested both before and after speed enforcement stops?
2. Can a court accept an officer's "usual practice" as proof that proper testing was actually done?
3. Is a defendant's admission of speeding sufficient for conviction without proof of the specific speed?

The Laser Testing Requirements

Justice Cuthbertson was clear: following the Ontario Court of Appeal decision in R. v. Vancrey, laser devices must be tested both before and after speed enforcement operations to prove the device was working accurately "at the time." This isn't optional — it's a legal requirement for the Crown to establish an evidentiary foundation for conviction.

But here's where it gets interesting. The court distinguished between simple devices (like breathalyzer mouthpieces) and complex electronic equipment (like laser devices). While some courts have accepted "usual practice" evidence for simple visual inspections, laser testing involves "four separate tests" requiring "strict adherence to manufacturer's instructions" and "conscious and explicit effort." The court set a higher standard: officers need to provide specific evidence that tests were done at specific times, not just rely on general practices.

Why "Usual Practice" Wasn't Enough

The court examined conflicting case law on whether "usual practice" evidence can prove specific actions occurred. While some appellate decisions like R. v. Thompson and R. v. Roshani-Kalkhoran suggested trial judges could accept usual practice evidence, other cases like R. v. Lounsbury and R. v. Niewiadomski rejected it as insufficient proof beyond a reasonable doubt.

Justice Cuthbertson sided with the stricter approach, requiring: (a) evidence that tests were done by a qualified officer according to manufacturer specifications, and (b) evidence of specific times when tests were conducted both before and after the stop. Since Officer Brazier provided no specific time for his pre-stop testing, the court refused to accept his "usual practice" claim.

The Defendant's Admission Problem

Even though Schlesinger admitted to speeding, the court applied R. v. Morin from the Supreme Court of Canada: every element of an offence must be proven beyond a reasonable doubt. Schlesinger's statement that he was "probably" going 100-110 km/h was just an opinion, made more uncertain by his use of "probably" and the fact he hadn't checked his speedometer. Since the laser evidence was excluded and no other speed evidence existed, the Crown couldn't prove the actual speed — an essential element of the offence.

Key Takeaway

Police officers can't rely on "usual practice" to prove they properly tested complex speed measurement devices — they need specific evidence of actual testing at specific times.

For self-represented defendants facing laser-based speeding charges, this case shows the importance of challenging the Crown's evidence about device testing. Ask specific questions: When exactly was the device tested? What were the results? Can the officer point to notes showing specific testing times? Generic claims about "usual practice" may not be enough to prove the device was working properly when you were caught.