Just because a police officer measures your speed using a RADAR or Laser device, does not mean that the reading will automatically be admissible, nor will it be proof beyond a reasonable doubt that you were speeding. Challenging Radar and Laser speed readings is possible. But the law on this is complex and the pathway to successfully challenge it is difficult.
R v Geraghty is a BC Court of Appeal decision that lays the groundwork for the admissibility of radar guns as evidence. For radar evidence to be admitted, Geraghty requires that the device was properly operated by a qualified person, that the device was properly tested using whichever tests were required or suggested for it, that the tests demonstrated that the equipment was operating properly, and that the tests demonstrated that the equipment was able to accurately register the speed of an offending vehicle.
R v Khadikin modified this test, shortening the required elements from four to three. Under Khadikin, there must be evidence that the officer was a qualified radar operator, evidence that the officer was operating a radar unit, and evidence that the unit was tested and found to be working correctly.
Khadikin makes it clear that unchallenged, the assertion of qualification alongside evidence of testing the device will found a conviction. The new test removes the requirement that the radar can accurately register the speed of an offending vehicle.
The reason for removing this requirement is demonstrated in R v Prediger, where the Judicial Justice takes judicial notice of the fact that a radar that has been tested and operated by someone certified to do so would be able to accurately measure speed. Essentially, the fourth element from Geraghty is encapsulated in the three elements preceding it.
It is important to note that the test from Geraghty is still binding law in BC, as affirmed in R v Drewcock. However, for practical purposes, the modified test from Khadikin can be applied with no error to the analysis of admissibility. By applying Khadikin, the missing requirement from Geraghty (evidence that the device can accurately measure speed) is met when an officer confirms that they tested the device and were satisfied with the results.
In Khadikin, the requirements for each element of the test are briefly discussed, but not fully applied. Justice McEwan states that an “assertion of qualification” is sufficient to demonstrate that a qualified officer operated the device. It is also stated in Khadikin that different models of radar guns do not require different levels of training or experience; evidence of qualification for the type of device (a radar gun) is sufficient. Referring to the second element regarding testing, Justice McEwan states that a “description” of the tests undertaken is sufficient. In Khadikin, there was evidence of both qualification and testing, and therefore the radar evidence could be admitted.
The modified version of the Geraghty test from Khadikin is applied in Tschampa. In Tschampa, the appellant (driver) contested that the Judicial Justice in the decision below misinterpreted the test in Khadikin. During cross-examination, counsel for the appellant questioned the officer who operated the radar gun on what testing was done. Counsel asked for the officer to recite the specific test listed by the radar’s manual from memory. When the officer was unable to do this, counsel argued that the officer was “unsure about the proper testing requirements.” Counsel for the appellant submitted that lack of a detailed explanation of the testing requirements falls short of the required foundation for accepting radar evidence set out in Khadikin.
However, extensive evidence on device testing is not required. R v Drewcock is another BC Supreme Court case that looks at whether a Judicial Justice properly applied the test in Khadikin. In Drewcock, the officer only provided the name of the device, that they were trained, that the device was tested personally by the officer before his shift, and that the officer was satisfied of the radar’s accuracy. Justice Tindale found that the Judicial Justice was open to use this evidence and draw the inference that the officer personally tested the device and that the device was accurate.
Unlike Drewcock, evidence of testing was challenged in Tschampa. However, the same result was reached in both cases. In Tschampa, Justice Church held that an accurate description of testing requirements is not required to prove the device was tested. The cross-examination by the appellant actually provided more evidence that testing was done; having the officer recite parts of the testing process from memory gave more weight to his explanations of testing requirements that he gave in direct examination.
Ultimately, Justice Church held that applying Khadikin over Geraghty was not the same as failing to apply Geraghty, and therefore the handling of the radar evidence in the decision below was not misapprehended.
Justice Church briefly mentions in Tschampa that the appellant never challenged whether the officer had conducted the test properly or in accordance with the manual. While not directly addressed in Tschampa, we can infer that an officer admitting during cross-examination to not testing the device in accordance with the manual would prevent the evidence from being admitted.
However, even if the test in Khadikin and Geraghty is met, it does not guarantee a conviction. Khadikin merely states that it is “open” to a Justice to convict when the test is met. This means that there is only a prima facie case to convict that is still subject to reasonable doubt.
R v Scherbey demonstrates that reasonable doubt can prevent the admissibility of otherwise valid radar gun evidence. In Scherbey, the appellant sought to overturn a conviction from a Judicial Justice for speeding in a school zone. All of the elements of the Khadkin test were met. The appellant adduced a manual for a similar model of radar gun that the officer used. This manual called for the “regular verification” using “targets of known speed.”
While the Judicial Justice did not accept using a similar model’s manual as an argument, Justice Cullen took the manual into consideration, stating that the Judicial Justice provided no explanation as to why it would not be helpful. The accused demonstrated that the tuning forks (the “targets of known speed”) used to calibrate the officers device had not been calibrated in 40 months. Tuning fork certificates are not required to be verified in BC. However, the stark contrast between when the officer said the tuning forks were calibrated and the manual of a similar device requiring “regular testing” called into question the calibration of the officer’s device, and the conviction was overturned.
These cases all demonstrate that the pathway to the admissibility of Radar and Laser speed measurement reading admissibility in British Columbia is far from simple, and the burden on the accused to raise doubts is far from easy.
