CASE LAW - R v Scherbey
In the case of R v Griffith we find ourselves in the Supreme Court at an appeal of a conviction for speeding. Edward Scherbey was driving out of a 30 km/h school zone travelling at 54 km/h. Constable Sabulsky made both a visual estimate of his vehicle's speed and measured it with a Stalker Dual DSR radar device before issuing the speeding ticket. At the conclusion of the trial in Provincial Court, a conviction was entered.
Mr. Scherbey had requested a copy of the radar manual as part of Crown's disclosure. This was refused as the manual is copyrighted material and Mr. Scherbey had been directed to the manufacturer to obtain the manual.The appeal was made on four grounds:
- The JJP erred in finding that the operating manual for the radar equipment was not relevant and necessary disclosure.
- The JJP erred in finding that “the radar unit was performing accurately”.
- The JJP erred in finding that the speed limit was “exceeded by 21 to 40 km/h in circumstances where the officer’s visual estimate was within the margin of error.”
- The JJP erred in convicting the Appellant on the basis of a prima facie case.
Mr. Scherbey was able to obtain a manual for a related radar instrument, the Stalker DSR 2X which he referred to at his trial. At the appeal Associate Chief Justice Cullen observed that:
Although the Appellant sought the manual from the officer, the Appellant did not seek an order for disclosure from the JJP or seek an adjournment of the hearing to otherwise attempt to obtain the manual for the device used in the present case.
From this it may be inferred that if the defence requests a copy of the manual and the police fail to provide it, the accused must make attempts to find it through a different source or make a request of the JJP to order disclosure before this avenue can be considered on appeal.
The third ground based on the visual estimate by the officer was not addressed.
Grounds two and four were dealt with together and ultimately succeeded in having the conviction set aside and a new trial ordered. The justice said:
I agree with the JJP's conclusion in the present case there was a prima facie case established by the evidence, but it was still incumbent on her to determine if the evidence comprising the prima facie case met the stringent test of proof beyond a reasonable doubt. It does not appear she undertook that analysis, in particular with respect to whether the speed measuring device was performing correctly.