Recently, a BC Provincial Court decision showed just how difficult it can be to succeed in these cases.
It might seem like a small issue but questions like this raise serious concerns. If police fail to keep clear notes in synch with their use of equipment, how do we know they did everything correctly? If there is a problem with a device they use to calibrate their equipment, how reliable are those devices? Can we really trust police to be honest about how they checked their equipment without proper documentation?
Of course, most of this can be challenged with a skillful cross-examination. But it also shows the importance of an officer following proper procedure in traffic court.
Officers need to verify their equipment is working properly before issuing tickets. If there is a problem with one of their devices or the way police verified that device, it could impact the validity of any tickets issued by that officer. In this case, the officer did not keep record of the serial number of the tuning fork he used to check the calibration of the radar device. The officer confirmed the correct speeds were obtained in the course of the calibration checks and if there’d been an issue, it would have impacted the results the officer got on his radar device.
The problem, of course, is that “would have” is not evidence of what did occur. All too often police rely on the “coulda shoulda woulda” to explain that they did something correctly, despite the fact that it was not recorded correctly or, as in this case, at all. This is particularly troubling in the context of a traffic officer who is doing speed enforcement so frequently that the checking of a radar device at the commencement of each shift is likely to be an unimportant memory, long since faded by trial time.
In Mr. Duplisse’s case, defence pointed out the officer failed to record the serial numbers of the radar device and the tuning forks used to substantiate its accuracy. Crown maintained the tuning forks are kept in the vehicle where the radar device was mounted and so therefore the correct tuning forks had to have been used. Given that police do not have sole custody of vehicles and an officer has no idea what goes on inside a vehicle when they are not there, I cannot fathom how this evidence was considered acceptable.
The judge, however, dismissed these claims, finding that the officer’s testimony, fourteen years of policing experience, and the fact that the radar had been tested and found to be in working order was enough to justify not worrying about the lack of proper documentation.
The BC Supreme Court, however, has already established officers should not rely on testimony alone and need to keep accurate notes. In one case, the Court deemed the loss of officer notes so significant it overcame even the evidence of physical objects. There, the judge concluded a stay of proceedings must be granted.
Now, it seems like there is a double standard for the reliability of an officer’s testimony. If an officer can fail to record all of the information about the devices he or she uses in an investigation, at what point does a judge stop trusting what they say? That question will likely only be answered in another case.
Curiously, in this case, the officer testified that his radar produced reliable speeds because it was “hard wired” into the vehicle. He testified that it is not necessary, with moving radar, to compare the patrol vehicle speed displayed on the radar device with the speed on the vehicle speedometer. This is contrary to the manufacturer’s operation instructions. A moving radar device is not and cannot be hardwired into a vehicle.
However, it does not appear that this avenue of cross-examination was pursued. Had the officer been presented with the manual or an actual moving radar instrument, it would have been impossible for his testimony to have been believed. And this is why I say that traffic tickets, including those for speeding, require a very high level of skill and preparation.
As a dedicated driving lawyer, I am prepared to handle driving-related cases, including speeding and excessive speeding tickets. I have operated the police radar and laser devices, and I know the elements that can go wrong in a measurement of speed
