This case involves a laser speed measuring operation and a team of observer and interceptor. During the trial the accused's lawyer raised the issue of the operator not making written notes on the testing of the laser for accuracy both at the start and the end of the officer's shift.
Circumstances of the Offence
Marlen Gjoka was travelling eastbound on the Trans Canada Highway entering the posted 50 km/h speed zone that begins near the Harriet Road intersection.
Constable Klear of the Saanich police department was stationed 350 meters into the zone observing and measuring the speeds of approaching traffic. He estimated Mr. Gjoka's speed at 100 km/h and using an UltraLyte LRB laser device he measured the speed at 99 km/h.
Constable Klear radioed to Sergeant Stewart directing him to stop Mr. Gjoka for the speeding offence.
Mr. Gjoka's vehicle was impounded for the excessive speeding offence.
Location of the Offence
The Trial
Mr. Gjoka disputed the violation ticket and retained a lawyer to represent him at trial. The defence centred around the fact that Constable Klear had no written notes concerning the testing of the laser speed measuring device and that his recollection of his speed as being between 65 and 70 km/h does not match Constable Klear's measurement of 99 km/h.
Standard Practice to Test the Laser
Judicial Justice Gordon convicted Mr. Gjoka, accepting Constable Klear's testimony that it is his practice to check the accuracy of the laser at the beginning and end of every shift and finding that Mr. Gjoka's estimate of his own speed was not accurate or credible.
[38] Cst. Klear has been a police officer with the Saanich Police Department since 1991 and for a number of years, at least since 2011, he has been assigned to traffic enforcement.
[39] He has had training in the use of radar and laser. He uses the laser instrument on a frequent basis.
[40] Primarily for those reasons, I give significant weight to his testimony that he tests such instrument at the beginning and the end of each shift on which he uses it. In my view, this evidence was not shaken on cross-examination, it is logical and there is no evidence to the contrary. On the evidence as a whole, I am satisfied beyond a reasonable doubt that Cst. Klear tested the laser on February 4, 2016.
Speeds Not Matching
Mr. Gjoka told the court that his speed was 65 to 70 km/h at the time and that he was following the surrounding traffic. This does not match the speed measured by Cst. Klear.
[45] His recollection suffers from the same difficulty of many drivers stopped and charged with a traffic infraction; that difficulty being the driver does not always know precisely where the officer made his or her observation and, more significantly, the first time the driver has had to recollect what happened is a minute or two after the time of the alleged offence when the officer stops the vehicle and tells the driver why the vehicle was stopped. It is a reconstruction of the event, albeit only a few minutes later.
[46] I do not believe Mr. Gjoka’s testimony of the speed of his vehicle is accurate or credible.
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Comments
That's a logical judgment I reckon, and there's no doubt in my mind that Mr Gjoka was guilty as charged.
But inasmuch as the outcome was reliant on the officer having tested his device prior to using it, then subsequently testing it again at the end of the day, it leaves one wondering how he would have dealt with things had the unit failed the end of day test? Would he have had all the tickets issued that day cancelled?
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I would have done that had it have ever occurred to me. It would be the proper thing to do.
Fortunately, these devices proved very reliable in my experience and I only had to deal with it once that I can recall. Fortunately, it occurred at the outset and I didn't have to do more than box it up and send it in for repair.
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What If?