Thunder Bay (City) v. Millar

Thunder Bay (City) v. Millar

2009 ONCJ 485
Ontario Court of Justice — Justice of the Peace Bruce I. Leaman | July 30, 2009

Background

Six defendants — Sean Millar, Miranda Tulin, Kristopher Rose, Bonnie-Lynn Ketchum, Zaker Hussain, and Timothy Pile — were all charged with speeding offences by the City of Thunder Bay. Their lawyer, Mr. Paddon, brought a joint motion demanding the prosecution hand over the complete Genesis II radar device manual and the OPP's Basic Operator Manual used for training officers. The prosecution refused, arguing the documents weren't relevant and that at least one manual was protected by copyright.

The case hinged on police officers' notes that referenced testing their radar devices "in accordance with manufacturer's specifications." The defendants wanted to see exactly what those specifications were, but the Crown said they could just buy the manuals themselves if they really wanted them.

Issues

1. Does a justice of the peace have jurisdiction to order disclosure, or must it be the trial judge?
2. Are radar device manuals relevant to defending speeding charges?
3. Can copyright restrictions prevent disclosure of evidence?

The Disclosure Battle

Justice Leaman first tackled jurisdiction, noting that requiring only trial judges to hear disclosure motions would create massive delays. Under section 5(2) of the Provincial Offences Act, defendants get a trial notice with no information about requesting disclosure, forcing them to deal with it on trial day. This would mean "lengthy motion for disclosure, an adjournment of the matter on the scheduled trial date if the disclosure was ordered by the Court, and the inconvenience to witnesses."

On relevance, the court applied the test from R. v. Oosterman: "Is the material being sought reasonably possible of being useful to the defendant in making full answer and defence?" Since the officers' notes specifically mentioned testing "in accordance with manufacturer's specifications," the Genesis II manual was clearly relevant for defendants Rose and Millar (who were actually clocked by that device). However, the court found no evidence that the OPP training manual was relevant.

The court rejected the prosecution's argument that defendants should just buy the manuals themselves, calling it an "unnecessary financial burden." On copyright, Justice Leaman was blunt: "The underlying principle is the defendant's right to make full answer and defence, and in this particular case, that right is paramount to any interest that the owner of the manual may have in the copyright over the manual."

Key Takeaway

When police notes reference "manufacturer's specifications" for radar testing, you have a right to see those specifications — and copyright can't stop you.

If you're fighting a radar-based speeding ticket, request disclosure of the specific device manual used in your case. The prosecution can't make you buy it yourself, and they can't hide behind copyright claims when your right to make full answer and defence is at stake.