I want to get some help with a speeding ticket i'm fighting.
On Jun 23, 2012 I was charged with speeding 106 in an 80 zone. I filed my ticket for trial on Jun 27, 2012. Late July i received my 'notice of trial' indicating a trial date for Jan 8, 2013. On August 1, 2012 I requested for disclosure asking for:
*officer's notes, if short-form writing is used... to have the officer explain them
*full copy of lidar manual
On Nov 1, 2012 i received legible handwritten notes but no explanation for short-form writing, and only received a few pages of the lidar manual.
On Dec 20, 2012 i re-requested for short-form writing explanations + fully copy of manual.
On Jan 2, 2012 i received a full electronic copy of the manual, but the prosecutor's office had the officer transcribe his notes rather than explain the short-form writing.
On Jan 8, 2013 the prosecutor did not understand the short-form writing either; we call the officer and he explains it. But the prosecutor says that the short-form writing was not relevant to the charge (i disagree) and that I should be prepared to go to trial today and that the adjournment would be my fault; prosecutor offered two dates for the adjournment Jun 10 & Jun 17, 2013; i picked the 17th.
Now the delay from the offense date to the new trial date is 11mths 24days. We could subtract 3 days between the offense date and the date i filed the ticket. Lets say we subtract another 7 days, because the courts were available on Jun 10, 2012. That would still leave us with a delay of 11mths and 13days.
What i'm worried about is, will the stay of proceedings be tossed out simply because i picked the 17th and not the 10th?
Here are the notes that I received from the officer, i'm planning on a defense with two main points
1) missing the exact time the lidar was tested
2) officer lost sight of the vehicle
1) missing the exact time the lidar was tested. i agree that the officer appears to have written in chronological order, he is very specific about times as to when he issued offense notices' and when arrives on site to different locations. however, he does not indicate the exact time that the lidar was tested before and after. is this fatal for the prosecution's case?R. v. Niewiadomski,  O.J. No. 478
uses a judgment made in Manitoba R. v. Lounsbury  M.J. No. 510
(cases are clickable and .pdf are linked to my dropbox)R. v. Schlesinger, 2007 ONCJ 266 (CanLII)
also talks about the Manitoba decision
Manitoba R. v. Lounsbury  M.J. No. 510
2 The radar operator testified at the trial. In his direct testimony, he said that he had done tests on the device both
before and after issuing the offence notice. However, in cross-examination, he acknowledged that he had no
independent recollection of performing the tests. He did say that prior to operating any radar unit he conducts a test to
see if it is in working order and after issuing of an offence notice he rechecks to make sure that the machine is still in
working order. I take that to be evidence as to his usual practice. He also said that, in this case, he made a note in his
notebook that he had performed a test or tests but he did not note the time of the test or tests. (I say test or tests, because
the transcript does not make it clear whether the notes indicated the making of one test or more than one test. At one
point the operator agreed that there were no indications in his notes of how many times the radar was tested, but just the
results of a test.)
3 Evidence as to a particular practice or a standard practice is not proof beyond a reasonable doubt. See...
4 In the instant case there is something more than the evidence of the operator's usual practice: There is an indication
in his notes that he did, in fact, perform a test or tests, although the time or times of the tests were not noted and are not
5 In my opinion, all that can be safely inferred from the evidence is that the officer did test the radar device and found
it to be in good working order at some point or points during the relevant shift. In my opinion that is not enough proof
to demonstrate beyond a reasonable doubt that the device was working at the time of the alleged offence.
6 Some cases have suggested that there must be evidence that the radar device was tested and found to be in good
working order, both prior to and after an alleged offence. See R. v. Lennon (April 6, 1992) (Man. Q.B.) (unreported), a
decision of Darichuk J. and R. v. Kraemer (supra). These decisions are certainly consistent with the standard practice of
the operator here, which was indeed to check both before and after using the device. There might be situations where
the court could be satisfied of the accuracy of the device where the test was done, either immediately before or
immediately after its use, but I need not decide this. In this case, there was no evidence as to when the checks were done
-- that is to say whether they were done both prior to and after the alleged speeding or whether they were done before or
whether they were done after. There was no evidence as to when they were done in relation to the alleged offence. They
might as easily have been done at the very beginning of the operator's shift and long before the alleged offence, with the
result that there would not have been a sufficiently reasonable assurance that the unit was still working properly at the
7 In the result, the appeal is allowed and the conviction is quashed.
I feel in this Manitoba case, the officer appears to have made a note that the test were completed but did not indicate the time it was tested. The justice in this case wanted to know when it was tested in relation to the offense.
In my case, is it still necessary for the officer to indicate the time he tested the lidar device? It appears that RADAR have to be tested several times throughout the day, whereas lidar are just tested at the beginning and end of each shift.
Would simply writing down that the test was down fall under "usual practice"? In my case the test could have been done sometime between the start of the shift and 0932 where he indicates that he's "in service, vehicle ok and shotgun ok" (learned abbreviations from officer). Also the lidar test at the end of the shift was done exactly at 1500hrs?
R. v. Schlesinger, 2007 ONCJ 266 (CanLII)
17 The standards that would satisfy this court are:
a) Evidence that the laser tests had been done by a qualified officer according to the manufacturer’s specifications and that the device passed the tests and
b) Evidence of a specific time when the tests were done both before and after a speed enforcement stop .
No time was provided in Officer Brazier’s testimony for his testing of the laser device prior to the stop of Mr Schlesinger.
Therefore, this court declines to accept the officer’s statement that it is his usual practice to test a laser device before a speed enforcement stop, as proof that he did so.
2) my understanding is that the officer must not loose sight of the vehicle prior to using the LIDAR device. i believe the officer lost sight of the vehicle in a deep grade in the road. i shot video from the officer's perspective, he was facing vehicles that were traveling east (towards him): http://youtu.be/H5SiUNxejXY
In the officer's notes he wrote that he locked in the speed from 230m away which is just as vehicles come up from the grade. This is from google maps: http://goo.gl/N6eCA
this is a photostream of pictures i took from the officer's location: http://www.flickr.com/photos/96730565@N03/
the officer was standing from where the cameras were placed.
I have asked York Region for a plan & profile diagram of the road depicting elevations; i've been advised that they have been drawn but not scanned and imported into the database. The geomatics manager that i spoke with said that she was busy, but will get it for me when she's free.
Interestingly only one offense notice was issued at this particular location. I genuinely feel that was because of this grade... The officer also indicates that road is straight... although it really isn't.
Do i have a leg to stand on with these two defenses? I have also have the by-law for that particular 80kph zone sign, and plan to possibly accept a plea-bargain for a municipal by-law charge for it.