Inconsistent radar testing casts doubt on validity of millions of speeding tickets
'I think a lot of people got convicted when they shouldn't have been convicted,' one lawyer says
Canadian speeders might be getting measured differently, depending on where they're caught, CBC News has found.
Police forces using the same radar equipment have different testing routines.
The finding throws into question the validity of millions of fines, demerit points and higher insurance premiums that result from speeding tickets.
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Radar equipment is commonly tested for accuracy using tuning forks — two-pronged metal devices which vibrate when tapped, creating a frequency that mimics a set speed. That speed should be reflected in the radar unit's reading to make sure it's working properly. If not, it's recommended the radar unit be taken out of service and not used for speed enforcement.
While the majority of jurisdictions insist police use tuning forks to ensure radar devices are properly calibrated, CBC News has learned that the Ontario Provincial Police dropped the test more than a decade ago, in part over doubts about its necessity.
In Saskatchewan, the Regina Police Service stopped using tuning forks in 2009, while RCMP operating in other parts of the province still require the test at the start of each officer's shift.
RCMP throughout the rest of Canada also require tuning-fork use, as do the Sûreté du Quebec.
An inconsistent mix of court rulings, manufacturer instructions and police standards appears to dictate whether the test is required.
In Saskatchewan and the Northwest Territories, some speeding tickets have been challenged in court and dismissed based on problems with tuning-fork evidence.
"I honestly believe that this is a huge fraud," said Toronto lawyer Dannial Baker, referring to police-issued traffic tickets based on devices not tested with a tuning fork.
"I think a lot of people got convicted when they shouldn't have been convicted."
Baker wants the tuning-fork test reinstated in Ontario and is calling for an investigation into why it was dropped by the OPP.
While Ontario's Ministry of the Attorney General could not provide a breakdown of the types of speed-tracking devices used by police, more than six million speeding fines were issued under the province's Highway Traffic Act over the past decade.
John McNall, a former OPP speed-management co-ordinator, said he asked U.S. radar manufacturer Decatur Electronics to take the test out of its operating manuals in 2004. He cited concerns officers were "fudging their evidence" by testifying under oath that they had correctly used tuning forks when, in fact, they often didn't do the test, misunderstood it, or couldn't find the forks, he said.
"The officer would give evidence that he tested it in accordance with manufacturer's instructions and technically would be perjuring himself," McNall told CBC News.
Test still a legal requirement in U.S.
He said the manufacturer agreed the test was redundant and removed it from operating manuals sent to OPP, explaining it was not legally required in Canada. The test is still a legal requirement in the U.S.
"I was very surprised when I heard that they had taken it out of the manual because it is a vital test," said radar specialist Donald Sawicki, who gives expert testimony in traffic-related court cases in the U.S.
"The tuning fork is the only one that tests the entire system all at once — from end to end," he said, noting radar devices have a two-kilometre margin of error.
OPP spokesperson Sgt. Kerry Schmidt said the department was given "support from the manufacturers that indicate the testing procedure" is no longer required.
"It's essentially redundant," he said.
Sawicki said such a decision should not be left to those who make and sell the radar units.
In his opinion, "you need an unbiased source to make that judgment … because the manufacturers are going to want to go along with the police officers to make them happy so they can sell more units."
'No engineering reason'
Kevin Morrison — a veteran U.S. police sergeant who has trained Canadian officers on how to operate radar and laser devices — told CBC News he's been anticipating a fallout from testing inconsistency for more than a decade.
"I could see if you have some people doing something, and other people aren't doing it the same way, that's a controversy," he said.
Many officers consider the tuning-fork test to be a hassle, he added.
Morrison was hired by Decatur Electronics in 2007. He estimates the manufacturer's contract to supply the OPP with about 1,000 radar units was worth more than $160,000 when he joined.
He agreed with Decatur's engineers who determined there was "basically no engineering reason" for the tuning-fork test. But he suggests there was another motivation for dropping the test.
"If we take it out, we can make sales. That's why they did it," according to Morrison.
Laser tests gaining ground
Radar is still used by most police departments in North America, although many are increasingly turning to laser devices — considered more accurate and less cumbersome, and they don't require tuning-fork tests.
Outside of Ontario and Regina, RCMP divisions in every other province told CBC News they still require officers to do tuning-fork tests, including those in regions using the same Decatur-manufactured Genesis radar models used by the OPP.
"If they had a very onerous test that they could take out, and no longer have as a necessity in their manual, wouldn't they take it out for all of their jurisdictions?" said Baker.
'The tuning fork is the only one that tests the entire system all at once — from end to end.' - David Sawicki, radar specialist
According to RCMP in New Brunswick, manufacturers have never indicated the tuning-fork test is unnecessary.
Neither Decatur Electronics, nor its Canadian distributor, Davtech Analytical Services, responded to CBC's questions and repeated requests for copies of the manuals provided to Canadian police departments.
As for claims that advances in technology have rendered the tuning-fork test obsolete, Sawicki is skeptical and disagrees with the OPP's decision to drop the test.
"That's not cutting-edge, that's sloppy, in my opinion," he said.
Paul Haines, a former senior consultant on remote sensing systems for U.S. and Canadian peacekeeping forces, shares Sawicki's concerns.
"Unfortunately, there are some manufacturers of police radar equipment who convey the notion that ... external calibration by a tuning fork is not necessary. This is absolutely false," he wrote in the 2008 Canadian edition of The Law on Speeding & Speed Detection Devices.
South of the border, the Virginia-based International Association of Chiefs of Police is currently working with several U.S. government agencies on a review of radar to ensure manufacturers are following clear standards.
The U.S. National Highway Traffic Safety Administration told CBC News in an email that tuning-forks tests are "good standard practice" and that the public should be assured that radar devices "meet or exceed technical standards."
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