R v Wilkins

R. v. Wilkins

[2006] O.J. No. 5366
Ontario Court of Justice — L. Klein J. | December 12, 2006

Background

On May 20, 2006, Constable Rod Roberts of the Northeast Traffic and Marine Unit was running radar on Highway 400 in Sequin Township. At 6:16 a.m., he spotted a blue Subaru speeding northbound, closing fast on the car in front of it. Roberts aimed his lidar gun and got a reading of 151 km/h in a 100 km/h zone, locking it in at a distance of 513.8 metres. He pulled over the driver, Mark Wilkins, and issued a speeding ticket under section 128 of the Highway Traffic Act.

Roberts testified that he was properly trained and qualified on the lidar equipment, having been trained in April 2003 and re-qualified in October 2004. He said he conducted the manufacturer-approved tests both before and after his shift and the equipment was working properly. Wilkins was convicted at trial and appealed to the Ontario Court of Justice.

Issues

1. Can a lidar reading be considered accurate when the officer was not trained using the original manufacturer's manual?
2. What evidence is required to establish that radar/lidar equipment was properly tested according to manufacturer specifications?

The Manual Problem

Here's where the Crown's case fell apart. In cross-examination, Constable Roberts admitted he had never seen the original manual provided by the manufacturer of the lidar device. He had only worked with a photocopy of a manual that was supplied by the Ministry of Transportation — not directly from the manufacturer. The officer could not testify that his training or testing procedures actually followed the manufacturer's specifications because he had no knowledge of what those original specifications were.

Justice Klein noted that while photocopies are generally reliable reproductions, the law requires more than just a copy when it comes to radar evidence. The Crown must prove that the operator is qualified, that the device was tested properly both before and after use, and that those tests showed the instrument was accurate. Without evidence that the testing followed the actual manufacturer's specifications, this foundation crumbled.

The judge cited R. v. Niewiadomski for the principle that "cross-examination which elicits the admission of non-compliance with the manufacturer's specifications and directions as to testing and operations should raise a reasonable doubt." That's exactly what happened here — Roberts admitted he had no way of knowing if his procedures matched what the manufacturer actually required.

Key Takeaway

Radar and lidar evidence can be challenged by questioning whether the officer actually followed the manufacturer's original testing procedures.

If you're facing a radar-based speeding charge, ask the officer in cross-examination whether they've seen the original manufacturer's manual, not just a photocopy or summary provided by their training department. The Crown must prove compliance with the actual manufacturer's specifications — educated guesses and secondhand procedures aren't enough.