R v Tummillo

R. v. Tummillo

[1998] M.J. No. 311
Manitoba Court of Appeal — Philp, Twaddle and Helper JJ.A. | June 17, 1998

Background

Sabino Tummillo was caught speeding by a police officer using a Laser Speed Meter LTI-20-20. When the officer aimed the device at Tummillo's vehicle, it recorded a speed well in excess of the speed limit. At trial, the Crown tried to prove the laser device was working properly by having the officer testify that he conducted three tests: a fixed-distance zero-velocity test, a scope alignment test, and a display test. The officer explained these tests were meant to satisfy him that the device was accurately measuring speed, locking onto the right target, and communicating measurements properly.

Tummillo was convicted at trial, and that conviction was upheld on summary conviction appeal. But he wasn't done fighting — he appealed to the Manitoba Court of Appeal, arguing there was no proper evidence that the speed-timing device was actually in good working order.

Issues

1. Was there sufficient evidence to prove the laser speed detection device was in good working order?
2. Can a police officer's testimony about conducting tests establish a device's accuracy without expert evidence or manufacturer approval?

The Foundation Problem

Under s. 255(1) of Manitoba's Highway Traffic Act, speed-timing device evidence is admissible if two conditions are met: the device must be approved by the Minister of Justice, and the court must be satisfied it was in good working order when the reading was taken. The first condition was clearly met — the LTI-20-20 was an approved device. But the second condition? That's where things fell apart.

The officer wasn't qualified as an expert witness, so his opinion about what the tests proved was inadmissible. More importantly, there was no evidence that these three tests were actually sufficient to establish the device was working properly. Justice Twaddle noted the logical gap: "how a test of the device's ability to record a stationary object as one that is not moving proves it to be functioning properly when measuring the speed of a moving object." Without expert evidence or proof that the manufacturer approved these specific tests, the officer's testimony proved nothing.

The court emphasized that s. 255(4) of the Act specifically provides for qualified testers to certify device accuracy — but no such tester had been appointed in Manitoba. The Crown can't simply substitute an unqualified police officer's testing without proving those tests actually work.

Key Takeaway

Police officer testimony about device testing is worthless without expert evidence or manufacturer approval of the testing procedures.

If you're facing a speeding charge based on laser or radar evidence, demand to see proof that the device testing was conducted by qualified personnel using manufacturer-approved procedures. A cop saying "I tested it and it seemed fine" isn't evidence of anything.