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| John L. Hill |
The usual pattern is much simpler: a police officer testifies that they tested the radar or lidar device before and after the stop using approved procedures; the tuning-fork tests (for radar) or self-tests (for lidar) are accepted as sufficient to show the device was functioning properly, and courts routinely accept radar or lidar readings without expert testimony unless something about the evidence raises a technical concern. In a typical case, no expert is needed, and defendants rarely call one. A Saskatchewan driver challenged the ordinary procedure.
On Sept. 9, 2020, Constable Lindsay of the Prince Albert Police Service tested his police radar with two tuning forks calibrated for a radar frequency of 34.7 gigahertz. The tuning forks showed the expected speeds, and later that morning, he used the radar to clock Joka Bijl driving 40 kilometres per hour in a 30 kilometres per hour school zone. He stopped her and issued a ticket.
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This certificate revealed that the radar unit had two antennas: the first operated at 34.71 gigahertz, matching the tuning-fork calibration frequency, and the second operated at 34.66 gigahertz.
The tuning-fork certificates proved accurate only when used with equipment operating at 34.7 gigahertz, and no evidence showed that the forks were valid for testing a radar operating at 34.66 gigahertz. It was also unclear which antenna the radar used to measure Bijl’s speed, and whether both antennas had been tested.
The justice of the peace (JP) ruled that, because the significance of the frequency differences could not be confirmed without expert evidence and none was presented, there was reasonable doubt about the accuracy of the radar reading. The JP acquitted Bijl.
On appeal to the Court of King’s Bench, the Crown argued that expert evidence was unnecessary and that the JP failed to consider the evidence collectively (R. v. Bijl, 2024 SKKB 201). The King’s Bench judge rejected both arguments. She held that expert evidence was needed to interpret the frequency discrepancies, that the JP properly assessed the evidence as a whole, and that it was permissible for him to find reasonable doubt regarding which antenna was tested or used.
The appeal was dismissed, and the acquittal was upheld. The Crown subsequently appealed to the Saskatchewan Court of Appeal. Its decision was delivered on Nov. 13, 2025 (R. v. Bijl, 2025 SKCA 116).
The appellate court determined that the appeal judge in the summary conviction case applied the incorrect standard of review. Although she identified the issues as questions of law requiring a correctness review, she focused on whether the JP correctly found reasonable doubt instead of whether the JP properly decided the legal questions involved. Her reasons repeatedly evaluated the “correctness” of the acquittal rather than the accuracy of the JP’s legal reasoning.
The Court of King’s Bench misapplied the case of R. v. Hunchak, 2014 SKQB 257, by focusing on whether the verdict was reasonable instead of whether expert evidence was necessary to determine if the different antenna frequencies were significant.
Despite this mistake, the Court of Appeal proceeded to evaluate the JP’s decision using the correct standard.
First, the court held that the JP did not err in concluding that expert evidence was necessary. Since the radar had two antennas operating at slightly different frequencies (34.71 gigahertz and 34.66 gigahertz), and the tuning forks were certified only for a radar operating at 34.7 gigahertz, the JP could not determine, without scientific assistance, whether the frequency differences mattered. This was a technical issue beyond general knowledge and not suitable for judicial notice. Expert evidence was needed to determine whether the tuning-fork results applied equally to both antennas (R. v. Abrametz, 2014 SKCA 84).
Second, the court held that the JP did consider the cumulative effect of the evidence. He reviewed the officer’s testimony, the tuning-fork certificates, the manufacturer’s certificate, and the officer’s lay estimate of speed and weighed these together. He identified gaps in the Crown’s proof — specifically, uncertainty about which antenna was tested and which antenna generated the reading. He concluded the Crown had not proven the accuracy of the radar beyond a reasonable doubt. Nothing suggested he overlooked any evidence.
Although the summary conviction appeal judge used the wrong review framework, her final conclusions that the JP needed expert evidence and that the evidence was reviewed collectively were correct.
The Court of Appeal therefore dismissed the Crown’s appeal, keeping the acquittal in place. Sometimes it pays to question the routine.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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