On what grounds are you getting this appeal? What happened at the first trial? I'd be very surprised you were able to successfully appeal due to a missing second test time in the notes. There are prosecutors today getting convictions without any notations of testing times whatsoever. It's the trial JP's discretion as to whether he wants to see notations or not.
R. v. Roshani-Kalkhoran  O.J. No. 2387
Appeal by Roshani-Kalkhoran from a conviction for speeding. Roshani-Kalkhoran claimed that the trial judge erred by remarking that his defence was implausible, thus not giving him the chance to present his case. He argued that the judge erred in accepting the police officer's testimony that he tested the radar based on the officer's standard practice, and that the judge provided insufficient reasons for his decision.
HELD: Appeal dismissed. The court's interjection was proper. There was no evidence before the court supporting Roshani-Kalkhoran's defence. From his testimony, it appeared that the officer had a standard operating practice for testing the radar. The standard practice afforded the court some evidence upon which to found the conviction and to believe that the testing was carried out on the day of the offence. Given that there was no conflicting evidence, the court was not required to go at length into issues of credibility.
14 It turned out the officer had no note as to the time that he made the test but he testified to his usual practice in saying:
"I would test it before I proceed from the office and upon my arrival at the end of shift I would again retest the unit."
16 R. v. Thompson (2001), 151 C.C.C. (3d) 339, 345, (Ontario Court of Appeal) where that Court, in what would clearly be binding authority, inconsistent with Lounsbury, indicated that the standard practice of the officer affords a Trial Court some evidence upon which a verdict can be founded, that the usual practice was carried out on the occasion in question.
17 In my view then, this ground of appeal is without merit in that His Worship was entitled to - if he chose - find that the standard practice was given effect to on the occasion in question.
Justice D.M. Stone
Ontario Court of Justice
The second test time had nothing to do with the appeal. I appealed on a bias Judge and improper disclosure (never telling me about a second test, and arguing in court he had independent recollection of a second test as cause for conviction). Also, there's a pretty strong rebuttal to that case... which you can argue for anyone interested.
R. v. Schlesinger, 2007 ONCJ 266 (CanLII)
Citation: R. v. Schlesinger, 2007 ONCJ 266
R v Schlesinger
D’Astous v Baie-Comeau (Ville), 1992 CanLII 2956 (QC CA), 74 CCC (3d) 73
R v Amyot, 1968 CanLII 317 (ON SC),  2 OR 626-634
R v Dagenais, OJ No 170
R v Henry, 2005 SCC 76 (CanLII),  SCJ No 76
R v Lounsbury,  MJ No 510
R v Morin 1988 CanLII 8 (SCC),  SCJ No 80
R v Niewiadomski  OJ No 478
R v Norton  OJ No 860
R v Roshani-Kalkhoran  OJ No 2387
R v Thompson 2001 CanLII 24186 (ON CA), 151 CCC (3d) 339
R v Vancrey, 2000 CanLII 26961 (ON CA), 147 CCC (3d) 546
s. 128, Highway Traffic Act
At 11:24 AM, on 4 August 2006, Mr David Schlesinger was charged with speeding at a rate of 129 kilometres per hour in a posted 80 KPH zone, contrary to section 128 of the Highway Traffic Act.
On 4 August 2006, OPP Officer Brazier was conducting speed enforcement on highway 6 north, in Puslinch township. The officer was a qualified laser operator and instructor for the device he was operating. He observed a motor vehicle traveling at what he thought was a high rate of speed. He locked the laser on the motor vehicle at a distance of 404.8 metres and found it to be traveling at 132 kilometres per hour in a posted 80 kilometre per hour zone. He subsequently stopped the vehicle without losing sight of it and found that Mr Schlesinger was the driver. Using his discretion, he charged Mr Schlesinger at only 129 kilometres per hour.
Under examination-in-chief by Mr Murray, the officer stated that he tested the device before and after he stopped the defendant’s vehicle. Initially, the officer testified that he tested it first at 11:25 AM. That testing time was problematic as it was one minute after the time of 11:24 AM when the officer locked the laser on Mr Schlesinger’s vehicle. The officer could not accurately read his notes as to testing times while giving his testimony. The officer then stated that it was his usual practice to test the device prior to all speed enforcement stops and therefore he must have done so on that day too. Subsequent testimony indicated that the officer tested the laser again at 7:55 PM. The tests were as per manufacturer’s instructions. He found the laser device to be working correctly after each test.
Mr Schlesinger in his evidence stated that he was speeding but ‘probably’ at only 100 to 110 kilometres per hour. He did not look at his speedometer immediately prior to being stopped.
Mr Murray in his request for a conviction, relied on the officer’s subsequent testing of the laser device at 7:55 PM as proof that it was operating correctly. He also asked me to accept that the officer had tested the laser before he stopped Mr Schlesinger, since this was his usual practice. As well, he asked the court to consider the defendant’s admission as proof that the prosecution’s case was made out.
There are three issues that this court needs to consider in this matter.
Question 1) Is it necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop?
In R v Vancrey 2000 CanLII 26961 (ON CA), 147 CCC (3d) 546, the Ontario Court of Appeal (OCA) ruled on this issue. The OCA considered an earlier ruling of the Quebec Court of Appeal in D'Astous v. Baie-Comeau (Ville) (1992), 1992 CanLII 2956 (QC CA), 74 C.C.C. (3d) 73.
In Vancrey, the court adopted from D’Astous that in order to provide an
“evidentiary basis necessary for a conviction for speeding based on a radar reading”
“the Crown must still prove that the particular radar device used was operated accurately at the time.”
One of the tests established by the Quebec Court of Appeal to establish such proof was:
“The device was tested before and after the operation”.
The OCA having accepted this ruling then continued at para 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”
The court then held at para 22:
“In my view, the position of the Crown is correct.”
Therefore, I find that it is necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop.
Question 2) Can this court accept the officer’s statement that it is his usual practice to test a laser device before a speed enforcement stop, as proof that he did so?
In R v Lounsbury  MJ No 510, Manitoba Court of Queen’s Bench Justice Jewers commented on the issue of usual practices. At paragraph 2 the court, when referencing the practises of the police officer who conducted that speed enforcement stop, stated:
“He did say that prior to operating any radar unit he conducts a test to see if it is in working order and after issuing of an offence notice he rechecks to make sure that the machine is still in working order. I take that to be evidence as to his usual practice. He also said that, in this case, he made a note in his notebook that he had performed a test or tests but he did not note the time of the test or tests.”
The court continued:
3 “Evidence as to a particular practice or a standard practice is not proof beyond a reasonable doubt. See the decisions of Kroft J. (as he then was) in the cases of R. v. Jabs (November 19, 1991) (Man. Q.B.) (unreported) and R. v. Wolf (December 8, 1992) (Man. Q.B.) (unreported) and the decision of Beard J. in R. v. Kraemer (February 17, 1993) (Man. Q.B.) (unreported). In Wolf, Kroft J. stated in part:
• "Nonetheless, if we have a situation where testing is a prerequisite, and if the officer, and only witness, obviously cannot say any more than what his common practice is, I cannot take that as a proof of testing. ..."
4 In the instant case there is something more than the evidence of the operator's usual practice: There is an indication in his notes that he did, in fact, perform a test or tests, although the time or times of the tests were not noted and are not known.
5 In my opinion, all that can be safely inferred from the evidence is that the officer did test the radar device and found it to be in good working order at some point or points during the relevant shift. In my opinion that is not enough proof to demonstrate beyond a reasonable doubt that the device was working at the time of the alleged offence.”
In my view, these findings apply equally to laser devices, in Ontario.
In R v Niewiadomski  OJ No 478, Madam Justice Schnall sitting as an appellate court considered a similar set of circumstances to those before this court. Specifically, that court considered the issue of whether it is sufficient for the court to rely on an officer’s assertions that the ‘usual’ tests were done to test a radar device. She stated at paragraph 8:
“Constable Arnett testified to the following:
• He had no notations of the tests he performed on the device prior to using it on that day, to ensure that it was working properly; he could only say that he did the usual' tests that he always performs.”
The court then held:
9 “Evidence that the usual' test was done, is not sufficient evidence to determine that the necessary test or tests were actually performed and thus enable the court to determine beyond a reasonable doubt that the device was working properly at the time of the offence. (R. v. Lounsbury  M.J. No. 510, (Man. Q.B.).”
Justice Schnall’s ruling indicates that notations of the tests done are required for proof beyond a reasonable doubt.
However, there is another line of cases that must be considered in the matter before this court. In R v Thompson, 2001 CanLII 24186 (ON CA), 151 CCC (3d) 339 the OCA considered whether an officer’s evidence that since her standard practice is to check a breathalyzer mouthpiece for obstructions when she unwraps it, this statement can be accepted by a court as sufficient proof of the action.
Morden, JA stated for the court:
 “In his reasons the trial judge said: Counsel for the accused argues that one of the necessary elements of the charge is that the machine be in good working order, free from obstruction and that the Crown has failed to satisfy that beyond a reasonable doubt. He points out [page346] that the police officer could not be sure -- in fact had no memory at all of having done that but was relying on her ordinary practice. My view of her evidence is that matters transpired as she related them, that she simply followed her usual practice in connection with unwrapping and certification of the mouthpieces and that there was no need to make a note to that effect. Notes are only made to assist the recollection. I find that on this occasion she did not depart from her usual practice, indeed there is nothing to suggest otherwise.
 The trial judge did not misapprehend the evidence. If he accepted P.C. Shields' evidence that it was her standard practice to check the mouthpiece and that she must have done so on the occasion in question, it was reasonably open to him to find, as he did, that she had checked it on the occasion in question. I would not give effect to this ground of appeal.”
In R v Roshani-Kalkhoran  OJ No 2387, D M Stone J, sitting as an appellate court considered the OCA’s decision in Thompson, supra, as it applied to laser testing. At trial, the justice of the peace had accepted the officer’s statement that he had tested the laser device based on the officer’s standard practice of doing so before a stop, despite his lack of notes as to time. That trial justice held that this was sufficient proof of the test having being done.
D M Stone, J in considering this position, stated:
17 “In my view then, this ground of appeal is without merit in that His Worship was entitled to - if he chose - find that the standard practice was given effect to on the occasion in question.”
Therefore, I accept that it is within the purview of the trial justice to decide whether to accept ‘standard or usual practices’ as proof of a test being done.
While this option is open to this court, in my view I must approach it with some caution. An analysis of the issues is helpful.
The act of an officer unwrapping a mouthpiece to place it on a breathalyzer prior to use affords the officer an opportunity to peruse the mouthpiece for obstructions at the same time. It takes no extra effort, in my opinion. My understanding of a mouthpiece is that it is a decidedly uncomplicated and low tech device. The device’s internal and external surfaces are visually evident to the officer unwrapping it from its sterile container and preparing it for use.
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 decidely 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.
As a result, the standards which I believe that I need to apply in being satisfied that the tests have been properly done and the results of those tests verify the device’s accuracy, must be correspondingly higher than those applied to a mouthpiece that is to be affixed to a breathalyzer prior to its use.
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 .
No time was provided in Officer Brazier’s testimony for his testing of the laser device prior to the stop of Mr Schlesinger.
Therefore, this court declines to accept the officer’s statement that it is his usual practice to test a laser device before a speed enforcement stop, as proof that he did so.
The idea of 'usual practice' being considered 'beyond a reasonable doubt' when four separate tests are involved is pretty absurd. Especially when it is the only cause for a case - don't you think? I'm mainly wondering about if I have an argument for a stay due to an 18 month delay (although trials were held) - but we are now at step 1...
Also, if you want to argue it was said by a JP - you can go back into all the cases he cited and cite those.
Also, this:http://www.ontariospeeding.com/Speeding ... sbury.html
These decisions are certainly consistent with the standard practice of the operator here, which was indeed checked both before and after using the device.
There might be situations where the court could be satisfied of the accuracy of the device where the test was done, either immediately before or immediately after its use, but I need not decide this.
In this case, there was no evidence as to when the checks were done, that is to say whether they were done both prior to and after the alleged speeding or whether they were done before or whether the were done after.
There was no evidence as to when they were done in relation to the alleged offence.
They might as easily have been done at the very beginning of the operator's shift and long before the alleged offence, with the result that there would not have been a sufficiently reasonable assurance that the unit was still working properly at the critical moment.
7. In the result, the speeding appeal is allowed and the conviction is quashed.
It is not hard to argue 'reasonable doubt'. Prosecutors will have you believe that reasonable doubt is significantly less than what it is. Under the Presumption of Innocence in the Canadian Constitution, you are innocent until *proven* guilty. Without a second test time, there leaves doubt as to whether it was tested - specifically if your trial is further from the trial date than you can expect a reasonable person to remember. They have to prove it was working *at the time of your offence*, you can cite MULTIPLE case laws where it says immediately prior and after...
Here's the secret, if it's conflicting evidence (the prosecutor and you both have strong case laws) - it creates reasonable doubt and you *should* win the case. The problem is people get fear-mongered into thinking that test times aren't needed and don't present a strong enough argument. If you have 5-6 case laws saying they *are* needed... it's their argument getting weaker due to the presumption of innocence.