1. Case Name:
R. v. Cuccarolo
Between
Regina, and
Bruno Cuccarolo
[2008] O.J. No. 5589
Certificate No. 85762445
Ontario Court of Justice
Woodstock, Ontario
G.W. McMahon J.P.
Heard: July 30, 2008.
Oral judgment: July 30, 2008.
(8 paras.)
Charge: S. 128 Highway Traffic Act - Speeding.
Counsel:
K. McHugh Counsel for the Crown.
M. Riddell Agent for Bruno Cuccarolo.
RULING ON NON SUIT MOTION
1 G.W. McMAHON J.P. (orally):-- The motion suggested that the prosecutor's, the prosecutor
failed to make a prima facie case against, specifically as it related to the testing performed on the
laser unit by Officer Deyo.
2 In this trial, the officer testified that he tested the unit according to the manufacturer's
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2. specifications and found it to be working properly. Officer Deyo is an experienced officer of 13
years at least. He presented himself well.
3 However, the defence has a right to question the officer and his testimony regarding his testing
procedures and what was entered into evidence suggests that while stating that he tested the unit
according to the manufacturer's specifications, Officer Deyo was vague about the number of tests he
performed, and the service history of the unit, especially as it relates to calibration of the particular
unit.
4 The officer, stated he is trained to operate this unit, but could not state clearly the number of
tests as outlined in the manual by the manufacturer. The court would expect an experienced and
trained officer to be able to state the number of tests that were required, the name and procedure for
each test. Officer Deyo could not.
5 The prima facie evidence regarding the essential elements of this speed measuring device was
not made, and after reviewing the case caw presented by the defence, and also considering the
Sheppard case in the Supreme Court of Canada in May of '76, which invites the court to look at
evidence in motions of non suit, in line with the Sheppard case, as mentioned, from the Supreme
Court of Canada, the court, and I quote:
"A finding that evidence is manifestly unreliable or dubious does of course
necessarily involve some sort of weighing process, not however for the purpose
of determining whether such evidence approves the charge, but rather for the
purpose of determining whether it has any weight at all which could prove the
charge."
6 The court then today is ruling that Officer Deyo's testimony on March 5th, 2008, was
manifestly unreliable with respect to the essential element of testing procedures. Therefore, the case
against Bruno Cuccarolo is dismissed.
7 MR. RIDDELL: Thank you, Your Worship.
8 MR. MCHUGH: Thank you, Your Worship.
qp/s/qlbxm/qlcnt
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