We have a lot of trials where the officer testifies to completing the manufacturer's test but fails to include the times he did the tests and whether they passed in his notes; therefore, resulting in not-guilty verdicts.
In your case, the officer fails to recite the manufacturer's tests in his testimony. This is very unique, because you're interpreting this omission as a sign that the tests were not completed at all.
Usually when test items are forgotten or stated incorrectly, the defence would ask the officer about those items. Even have the officer read those items from the manual aloud so that it is entered into the record in an unbiased manner.
The courts may believe you used a strategic manoeuvre not to pursue your line of questioning, in the event the officer did in fact conduct those tests.
Ultimately, I personally just don't know where to put your decision... On the outside it looks good, but will the JP see through it?
I asked him to describe the calibration procedure. I am far from nitpicking on small stuff. He omitted half of the calibration procedure. I did not inquire about it, in case he knew the procedure but he forgot to mention it.
From a perspective POV, the decisions you'll see below if read in full... you'll see that the defence extensively questioned the officer on missing/improper test criterion.
Some cases that may work against you:
R. v. Volfson [2009] O.J. No. 1978
20 Courts should look to the practical effect of the requirements set out by the manufacturer. Practically they operate as a scheme or a checklist to ensure the accuracy and reliability of the radar device. They are meant to be complied with as part of this scheme or checklist. Slavish adherence to these directions is not required if it does not practically affect the accuracy or reliability of the results obtained' by the radar device. To hold otherwise could and would result in absurd findings.
Officers may not be expected to recall items from the test by memory, some courts even require the officer to have the operating manual in front of them prior to answering questions.
R. v. Anghel [2010] O.J. No. 5813
37 In my view, the court should not consider the radar device to be unreliable just because an officer does not recite step-by-step a procedure that takes only seconds and is largely an automatic sequence for an experienced radar operator.
R. v. DePoe [2012] O.J. No. 2751
26 R. v. Anghel, [2010] O.J. No. 5813, 2010 ONCJ 652, referring to R. v. James Troy says a radar manual can be produced to a witness without the necessity for the author of the manual to be present for cross-examination by the Crown. Justice Wake: "I rule that manuals and written material ought to have been placed before Const. O'Connor in cross-examination as a means of testing the weight to be given to his expertise and qualifications as an operator of a radar device."
R. v. Pappas [2005] O.J. No. 764
1 R.A. MINARD J. (orally):— It's not a condition - precedent to a finding of guilt that an officer followed to the letter recommended testing procedures, with respect to laser devices. I've not been provided with any case that makes that finding.
2 I've reviewed the judge's reasons. The officer's attention was drawn to this vehicle because of what he visually observed was a high rate of speed that he then, in his own mind, confirmed with the application of the laser device to the vehicle indicating a speed of 121 in an 80, and he has given and I have reviewed his evidence with respect to the setup that he did and the testing that he did on the instrument at 10:40 a.m. that day which, it's true, did not follow to the letter what is recommended by the manufacturer, but that doesn't necessarily, in law, automatically give a defence to the charge.
3 It's an issue of whether or not there is a reasonable body of evidence that would permit a trier of fact to conclude that the offence has been committed to the exclusion of a reasonable doubt.
4 Here the officer was a highly experienced officer in the application of this instrument and applied it - he got a reading that appeared to confirm his visual observations, and the judge was satisfied - the trial judge was satisfied that the case had been met to the exclusion of the reasonable doubt. The accused is not obligated to testify. Here there was no other evidence to the contrary for which the trial judge could consider. So, if I were to accept your position, it would be that the Court begins with the presumption that the laser device is not operating properly, and it's up to the Crown to prove that it is. I don't believe that's the law.
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Cases that may be favourable to you:
R. v. Niewiadomski [2004] O.J. No. 478
29 It can be assumed that the absence of full compliance with the testing and operational process should make the reading suspect. There would be no reason for the device manufacturer to set out specifications and directions if it mattered not whether these were complied with.
R. v. Martin, [2008] O.J. No. 1803
23 Apart from stating that the device was set up correctly, Officer Zarrello provided no specific evidence to support that statement. He could not recall the manufacturer's specification in the manual, he agreed that he did not use the manufacturer's manual and only vaguely spoke of some elements of the testing he performed. In short, Officer Zarrello's evidence was more in the nature of his opinion, rather than any instructions that he followed from training or from a manual. It can be concluded that in the absence of full compliance with the testing and operation process of the "laser" device being complied with, the readings obtained by Officer Zarrello of the speed of the Appellant's vehicle are highly suspect.
24 The evidence of Officer Zarrello in totality should have raised a reasonable doubt in the mind of the learned Justice of the Peace. Officer Zarrello's lack of demonstrable training or qualifications, his faulty memory, his lack of notes or record keeping, his failure to refer to and use the manufacturer's manual, which he evidently had in the very box which contained the "laser" device that he used, his inability to recall the testing procedure, if any, that he performed on the "laser" device and his bald unsupported "opinion" that he simply would not have used the "laser" device if it were not working cause the court to conclude that it would be dangerous to rely upon the evidence of Officer Zarrello or to give his evidence any weight in these proceedings.
R. v. Vancrey, [2000] O.J. No. 3033
21 The Crown seeks to uphold the conviction on the basis that there was led at trial prima facie evidence of the accuracy and reliability of the particular laser unit, consisting of the performance of the manufacturer's tests for good working order both before and after the use of the device, together with the earlier verification of the accuracy of the laser unit for measuring the velocity of moving vehicles on a highway, when compared with an accurate radar unit by a qualified laser and radar operator.
22 In my view, the position of the Crown is correct. The court received evidence that the officer who operated the laser device was trained and experienced and that he tested the device both before and after its use in accordance with the manufacturer's instructions to ensure that it was operating properly on the date in question. The court also received evidence of the accuracy of the device for measuring the speed of vehicles on a highway by comparing its readings with those of an accurate radar unit. The radar test provides the independent guarantee of the accuracy of the particular laser unit to measure the speed of a moving vehicle.
R. v. Kololgi, [2009] O.J. No. 5742
17 It is the Respondent's position that the manufacturer's directions regarding testing the accuracy of the device were complied with, and that the officer ensured that the device was in proper working order. The Respondent submits, however, that usage of the device is another matter and is not subject to the same requirements.
18 In short, the Respondent submits that the police are not legally required to follow all of these instructions.
19 The Respondent relies on the decision of R. v. Volfson, [2009] O.J. No. 1978 where Justice Klein of this Court dealt with the issue of how closely police should follow manufacturer's instructions. The Court in that case held that slavish adherence to the manufacturer's directions is not required and these directions must be examined in a purposeful and practical fashion. Justin Klein then went on to disagree with Justice Schnall's comments that there would be no reason for the manufacturer to set out directions if it mattered not that they were followed. I respectfully disagree with Justice Klein's decision in this matter. I agree that the direction must be read in a purposeful and practical fashion. However, I think if this is done the only logical result would be to conclude that the requirements must be complied with in order to establish the reliability and accuracy of a radar device reading beyond a reasonable doubt.
20 The Respondent submits that the police may omit certain requirements as set out by the manufacturer, when application of those requirements is redundant on a purposeful and practical approach. In this regard the Respondent relies on Constable Santos evidence at trial wherein he testified that the manufacturer's direction should be followed to ensure that the device is in proper working order, however, the police can set there own policies regarding the usage of the equipment.
21 I am in agreement with Justice Schall's comments and with the decisions rendered by Justice Wright and Justice Griffin in the case of Martin and Cormier respectively. The provision in the Manual I find must be complied with by an officer if there is to be enforcement. The officer cannot pick and choose which requirements he will adhere to and which requirements he will ignore. If this were so, there would be an uneven application of the law on this issue, subject to the individual discretion of an officer. There is a reason for the inclusion of all of these components in the manual. A conclusion as to the accuracy and reliability of the device is founded on compliance with these requirements. This is particularly essential in a case such as this where the entire prosecution is founded on the numerical reading obtained by the officer through the operation of the device. Compliance with the manufacturer's requirement for enforcement is an essential element because only with strict compliance to the manufacturers mandatory specifications can the Court be assured of the reliability and the accuracy of reading obtained through operation of the device beyond a reasonable doubt.
22 In conclusion then, as confirmed by the Court of Appeal in the Martin case, the onus is on the Prosecution to establish this offence beyond a reasonable doubt. Keeping in mind this burden of proof, together with Constable Santos evidence of non-compliance with two of the required components of the User Manual, I have concluded that a reasonable doubt should have been raised in the mind of the Justice of the Peace as to the accuracy and reliability of the radar reading obtained by the officer and relied on by the Prosecution as the pivotal evidence against the Appellant.
R. v. Puncher [2007] O.J. No. 2510
12 One of the keys to success for the Crown then, is that the radar device is tested in 'accordance with the manufacturer's instructions'. For an officer to test the device according to the manufacturer's instructions, it is logical that the officer must know what those instructions are. However, as noted above, Officer Gray was not sure as to the speed the manufacturer required that the road test be done.
13 I find that the officer's lack of knowledge as to what testing speed is required to meet the manufacturer's specifications for the road test is fatal to the prosecution's case. The lack of specific evidence on the required speed raises a reasonable doubt as to whether the radar device was operating accurately when Officer Gray locked in the speed of the motorcycle.
R. v. Schlesinger [2007] O.J. No. 2365
18 As noted in both Niewadomski and Roshani-Kalkhoran, supra, the testing of a high tech electronic laser device involves four separate tests. These tests require strict adherence to the manufacturer's instructions. They are decidedly not trivial nor can they be done by way of cursory examination, in my view. It takes a conscious and explicit effort to follow the proper procedures. A laser's internal workings are not self-evident to an observer.
20 The standards that would satisfy this court are:
a) Evidence that the laser tests had been done by a qualified officer according to the manufacturer's specifications and that the device passed the tests and
b) Evidence of a specific time when the tests were done both before and after a speed enforcement stop.
