For people who receive a speeding ticket, it can feel like an overwhelming process. Many people fall under the misconception that if the officer used laser or RADAR to measure their speed, there are no defences. Police tend to hold these devices out as exact, unchallengeable, and perfect instruments for measuring speed.
Even if that were true (and it’s not) that does not mean the evidence of the result, or its degree of accuracy, is automatically admissible in court.
As a criminal defence lawyer who has handled thousands of traffic ticket cases, I have seen cases where the speed reading was found not to be credible, reliable, or admissible. A recent BC Supreme Court case adds a layer of complexity to the ability of police to prove the speed reading is accurate and the margin of error.
The Margin of Error in Speed Measurement Devices
Speed measurement devices are not perfect. They have a margin of error that can affect the accuracy of the readings. Factors like device calibration, environmental conditions, and operator proficiency can influence the devices performance. The less effective any of those factors is, the less accurate the reading may be.
For instance, if a RADAR gun isn’t properly operated, it might display a higher speed than you were actually driving. Similarly, environmental factors like weather conditions or interference from other electronic devices can skew the results.
Historically, in British Columbia, police have relied on their oral testimony about the manual simply stating that there is a margin of error of +/- one kilometre per hour. This testimony has traditionally been accepted by the Judicial Justice as credible and reliable and admitted in court.
Incidentally, the manuals do not say the margin of error is +/- on kilometre per hour. It says that it is +/- on sigma of error. A sigma of error is the standard deviation from the norm plotted on a bell curve graph, separated into sections. On a standard bell curve, one sigma represents 68%. So, the accuracy of the device is actually one standard deviation from the norm – or 68% of the norm. But that’s too much math for police, so they simplify it to +/- one kilometre per hour in their training, even when that is not what it means.
Honestly though, it’s also too much math for lawyers.
In many cases, the margin of error may not make a difference. Police RADAR or laser readings are often corroborated by visual estimates. This allows their results to be found accurate through the circumstantial guarantee of reliability provided by the visual estimate. And the visual estimate is often close enough to the laser or RADAR reading that there is no room for doubt on a conviction.
But what about the case where the visual estimate would put someone at a lower-level speeding ticket, or not over the speed limit?
To address this, police started attempting to file the manuals or pages from the manuals in court to establish the margin of error of the laser or RADAR devices. After all, the manuals often detail the limitations and margins of error inherent in the devices. However, introducing these manuals as evidence isn’t as straightforward as it seems.
Why Device Manuals May Not Be Admissible in Court
Recently, a court case shed light on this very issue. In the case of R v. Sebastian, RCMP Constable Tan attempted to submit a page from the manual of a speed measurement device as evidence to establish its margin of error. He relied on a provision in the Offence Act, specifically Section 15.1, which allows certain documents to be admitted as evidence without further proof of their authenticity. The only test for their admissibility is that the Judicial Justice consider the evidence to be credible and trustworthy. So while there is a low bar, there is not no bar to admissibility. And it is a discretionary decision made by the Judicial Justice.
Constable Tan argued that the manual qualified under this provision because it was an official document related to the operation of the speed measurement device. He believed that by submitting the manual, he could demonstrate the device’s accuracy and thus strengthen the prosecution’s case.
However, the Judicial Justice ruled against this application. The court determined that the manual did not meet the criteria outlined in Section 15.1 of the Offence Act. The Judicial Justice pointed out that the manual is considered hearsay evidence—it contains statements made outside of the court by individuals who are not present to testify or be cross-examined. Without the opportunity to question the authors of the manual, admitting it as evidence could be unfair to the defence.
The Judicial Justice also considered binding case law about to the admissibility of speed measurement devices, specifically the leading case of Regina v. Khadikin. In that case, the Court determined that evidence of the officer’s qualification, coupled with a description of the tests conducted on the device, was sufficient to establish the accuracy of the reading.
Importantly, however, Khadikin did not consider Section 15.1 of the Offence Act or the admissibility of the manufacturer’s manual. It simply considered the admissibility of speed measurement devices generally.
While Section 15.1 of the Offence Act permits the admission of hearsay evidence, in this case the judicial justice found the hearsay was not admissible.
Constable Tan had met the requirements of Khadikin. He had testified that the laser device had passed all tests and that he was satisfied it was accurately measuring distances and speeds. There was no issue with this in the Judicial Justice’s mind. He also confirmed that the manual was the most current version available to the RCMP.
The accused argued that the manual, published in 2015, and the device, manufactured in 2017, were old enough that there was some doubt about their calibration since manufacture. The argument was that the RADAR or Laser might still appear to be functioning and provide readings within a plausible range even if it was not accurate to the degree stated in the manual.
Ultimately, the court considered that there was not a sufficient evidentiary basis for the Judicial Justice to find the excerpt from the manual to be credible or trustworthy evidence, and therefore admissible as an exception to the hearsay rule pursuant to Section 15.1 of the Offence Act.
How This Ruling Affects Your Defence
If the manual cannot be admitted as evidence to prove the accuracy of the speed measurement device, it becomes more challenging for the prosecution to establish beyond a reasonable doubt that you were speeding. Without evidence of the margin of error the accuracy of the Laser or RADAR device may be called into question in court.
However, we should be clear, in the vast majority of cases there is other evidence to support the speed reading. This can include the officer’s visual estimation, the speed of the vehicle relative to other traffic, pacing the vehicle in the officer’s own vehicle, or even — in extreme circumstances — the black box data from the vehicle.
Why Expertise Matters in Traffic Ticket Defence
Navigating the complexities of traffic law requires a deep understanding of legal procedures and precedents. Challenging a speeding ticket isn’t just about disputing the facts; it’s about knowing how to leverage legal issues and the rules of evidence to your benefit. The possible inadmissibility of speed measurement device manuals is a prime example of how nuanced these cases can be.
If you’re facing a speeding ticket, don’t assume that paying the fine is your only option. There are viable strategies to challenge the charges against you, especially when it comes to the accuracy of speed measurement devices. Understanding the legal issues that can arise, such as the inadmissibility of device manuals, can make a significant difference in the outcome of your case.
