R. v. Chair
The appeal is allowed and the conviction restored because the evidence that the radar device was tested before and after use and that the operator was qualified satisfied the Bigioni standard of a prima facie case, and the appeal judge erred in substituting a factual finding the justice of the peace was entitled to...
Source-derived case information.
- Citation
- 2015 ONCA 868
- Parties
- Appellant: Her Majesty the Queen ex rel. the Regional Municipality of York; Respondent: Wai-On A. Chair
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 9 December 2015
- Procedural Posture
- Criminal / Court of Appeal Decision on Appeal From Ontario Court of Justice Order Setting Aside Conviction and Ordering a New Trial
- Outcome
- Appeal allowed; conviction restored
- Legal Topics
- Radar Evidence, Presumption of Accuracy, Prima Facie Case, Appellate Review of Factual Findings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen ex rel. the Regional Municipality of York
Appellant
Wai-On A. Chair
Respondent
Procedural Posture
Criminal / Court of Appeal Decision on Appeal From Ontario Court of Justice Order Setting Aside Conviction and Ordering a New Trial
Legal Issues
- 1 Whether evidence of pre‑ and post‑use testing and a qualified operator establishes a prima facie case for radar readings under R. v. Bigioni
- 2 Whether the appeal judge erred in substituting a factual finding the justice of the peace was entitled to make
- 3 Whether a presumption of accuracy should be created for radar guns (not decided)
Ratio Decidendi
The appeal is allowed and the conviction restored because the evidence that the radar device was tested before and after use and that the operator was qualified satisfied the Bigioni standard of a prima facie case, and the appeal judge erred in substituting a factual finding the justice of the peace was entitled to make.
Court Disposition
Appeal allowed; conviction restored
Orders
- Appeal allowed
- Conviction restored
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Chair Collection Decisions of the Court of Appeal Date 2015-12-09 Neutral citation 2015 ONCA 868 Docket numbers C59667 Judges Doherty, David H.; Pepall, Sarah E.; Tulloch, Michael H. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Chair, 2015 ONCA 868 DATE: 20151209 DOCKET: C59667 Doherty, Pepall and Tulloch JJ.A. BETWEEN Her Majesty the Queen Ex Rel. the Regional Municipality of York Appellant and Wai-On A. Chair Respondent Hans J. Saamen, for the appellant Arvin Ross, for the respondent Heard: December 8, 2015 On appeal from the order of Justice W. Gorewich of the Ontario Court of Justice, dated August 8, 2014, setting aside a conviction and ordering a new trial. APPEAL BOOK ENDORSEMENT [1] The parties acknowledge that the law as stated in R. v. Bigioni, [1988] O.J. No. 2220 stands. We agree. Nothing in the subsequent case law should be taken as diminishing that authority. [2] In this case, there was evidence that the officer tested the device before and after its use in accordance with the procedure set out in the manual. There was also evidence that the officer was a qualified operator. The trial judge accepted the evidence. As indicated in Bigioni, that evidence was “sufficient to evidence of a prima facie case”. [3] The appeal judge, therefore, erred in finding that “the Justice of the Peace erred in law by making a finding on the facts that he was not entitled to make”. The appeal must be allowed on that basis. [4] We do not reach the broader question posed by the appellant. In our view, the record does not permit the kind of examination necessary to a determination of whether the court should create a presumption of accuracy in respect of the readings registered by radar “guns”. [5] Appeal allowed and conviction restored.