33 km/h over in a 60 km/h zone - after I already saw the cop

In November 2014 I got pulled over for going 33 km/h over the limit (60 km/h).

My trial date has been delayed twice (due to non-disclosure) and it will finally take place on June 19.

The police car was backed into a driveway, hidden from sight. It was parked about 200 meters away from an intersection where I had stopped for red light. I wasn't rushing anywhere, but I may have gone over 60 km/h. I don't think I was going 93 km/h for sure, but that's besides the point.

I drove by the police car, saw him, slowed down AND warned incoming traffic. Some 45 seconds to a minute later I see the car in my rear-view, signaling me to stop. I got the usual questions - "what's the rush", "do you know you were going 33 km/h over", "do you know the speed limit" ... to which I just say "no comment". I give him my documents, he writes me a ticket, done deal. I thought he must have caught me while I was driving towards him.

I now received disclosure, and in his notes he says that as he was writing notes for the car he previously pulled over I "flew by" (literally), so he picked up a radar and measured me at 93 km/h. Even if I was going 93 km/h before I saw him, there is no way I was still going that fast AFTER I saw him, and from his notes he must have measured my speed after I saw him. I dropped down to ~65 km/h immediately after seeing him.

Isn't there a police manual that says they have to estimate speed first, then measure to confirm? This guy wasn't even looking at the road. Also, he pulled me over much later (some 500 meters away from where he was parked at least). I'm sure he didn't maintain a line of sight with my car throughout - he had to cross the road, so he had to at least look the other way.

I'm new at this, and the two things above are just from what I've picked up by reading this forum and other stuff online. If there is anything anyone sees that I can use in trial, it'll be greatly appreciated!

Thank you so much!

Below are his notes:

0800 - Monday, 12 November, 2014
	On duty 11 Division, Paid Duty, traffic enforcement, sign in at Staff Sergeant -- name of the sergeant --, -- vehicle information for his police cruiser --

	Radar #: 8862
	tested at commencement of shift - good working order on all functions

0830 - Setup
	Traffic enforcement @ 9th Line southbound, Dundas & Burnhamthorpe, 60 km/h zone posted for southbound traffic at Burnmanthorpe and two times northbound on Dundas and again between my location at 3448 (across) and lot sign - also 1 at White Oaks for southbound.

	Rural/Residential with daycare south of my location.

	Road condition - wet/drying from previous rain. 

	Temperature - approximately 8 degrees

	Plug in radar #8862 Genesis VP Directional Decateur, tested and in proper working order

1102 - while doing notes from last traffic stop a red mazda goes flying past me southbound on 9th 
	
	pickup radar and measure speed of lone southbound vehicle

	Radar displays 93 'A

	Stop vehicle north of Dundas

	2005 Mazda 3 4 Dr -- license plate --

	Approach driver side of vehicle

	Lone male occupant 

	When asked if he knows it was a 60 zone, he says 'no comment

	When asked if he knows he was traveling 33 km/hr over he says "I cant comment on that"

	Request drivers license / permit / insurance card.
	
	IDs with valid drivers license

bigbadwolf wrote:

Isn't there a police manual that says they have to estimate speed first, then measure to confirm?

The officer already confirms in his notes that he notices a vehicle traveling at a high rate of speed before using the device. There's no need for him to calculate a specific speed down to the km before using other measures, if that's what you're asking..

bigbadwolf wrote:

This guy wasn't even looking at the road. Also, he pulled me over much later (some 500 meters away from where he was parked at least). I'm sure he didn't maintain a line of sight with my car throughout - he had to cross the road, so he had to at least look the other way.

He doesn't have to keep a perfect line of sight. He is allowed to look away or momentarily lose sight (let's say you made a turn into a side road). He also mentions you're the lone southbound vehicle, which doesn't help.

bend wrote:

bigbadwolf wrote:

Isn't there a police manual that says they have to estimate speed first, then measure to confirm?

The officer already confirms in his notes that he notices a vehicle traveling at a high rate of speed before using the device. There's no need for him to calculate a specific speed down to the km before using other measures, if that's what you're asking..

bigbadwolf wrote:

This guy wasn't even looking at the road. Also, he pulled me over much later (some 500 meters away from where he was parked at least). I'm sure he didn't maintain a line of sight with my car throughout - he had to cross the road, so he had to at least look the other way.

He doesn't have to keep a perfect line of sight. He is allowed to look away or momentarily lose sight (let's say you made a turn into a side road). He also mentions you're the lone southbound vehicle, which doesn't help.

Thank you for the reply. So these are things I shouldn't tackle. Anything you see I should?

bigbadwolf wrote:

bend wrote:

Isn't there a police manual that says they have to estimate speed first, then measure to confirm?

The officer already confirms in his notes that he notices a vehicle traveling at a high rate of speed before using the device. There's no need for him to calculate a specific speed down to the km before using other measures, if that's what you're asking..

He doesn't have to calculate an exact speed, but he usually is 'supposed' to estimate a speed down to around 5KM +/- and use the radar/laser to confirm his observations. It's not simply enough to just say I saw a vehicle that appeared to be going fast (I believe? I could be wrong here - not too familiar with the HTA in that regard). Either way, this isn't something to target in court, he's going to testify that he thought you were going around x km/hr the limit, and the radar confirmed that. It's going to be hard to prove that he didn't actually observe that when it's in his own head without testifying and raising reasonable doubt - and once you testify, they're allowed to cross-examine you, so that's not in your best interests.

bend wrote:

bigbadwolf wrote:

This guy wasn't even looking at the road. Also, he pulled me over much later (some 500 meters away from where he was parked at least). I'm sure he didn't maintain a line of sight with my car throughout - he had to cross the road, so he had to at least look the other way.

He doesn't have to keep a perfect line of sight. He is allowed to look away or momentarily lose sight (let's say you made a turn into a side road). He also mentions you're the lone southbound vehicle, which doesn't help.

Bend is right on this regard.

bigbadwolf wrote:

Thank you for the reply. So these are things I shouldn't tackle. Anything you see I should?

There is one avenue that most people on this forum should be taking, and I don't know why they don't... I usually study/attend criminal law trials, and the HTA is held to a significantly lower standard in terms of accountability and fundamental rights than criminal law - so I may be wrong here, I have been in regards to HTA in the past... but here's what I would do.

Step 1. Go to trial with case law supporting that the device has to be tested BEFORE & AFTER the offence.

Step 2. Bring a copy of R. v. Stinchcombe with you.

Now unless I'm reading your notes wrong, there's no indication in the notes that the officer testified the device AFTER his shift - he will (in my opinion, with close to 100% certainty) testify that he DID test the device after the incident, as it's his usual practice, or that he always tests it but never records it. As soon as he says that - OBJECT IT, say that the evidence should not be allowed to be admitted because it's contrary to your right to a full answer & defence protected under Section 7 of the Charter, and subsequently reaffirmed with your right to a fair trial in section 11.

In Stinchcombe (somewhere in the case, as I read it 1000 times), it's argued that even if the Crown is not going to use a certain piece of evidence, it should be disclosed if it can help your defence. It also states the crown cannot withhold information for the purpose of securing a conviction.

Your argument is going to be on the basis that you asked for disclosure TWICE, came to trial, attended trial - and no one ever told you about the existence of a second test, so that it should not be admitted into evidence. Don't bring it up prior to the trial, because you got to play dumb a bit, go into the trial and say you believed that the disclosure you received was all the information in regards to the offence - there was no way you could bring a pre-trial motion because you didn't know of the existence of a second test. Additionally, argue that (if you did) in your disclosure, you specifically asked for all tests conducted on the radar, and in your opinion, the crown is "withholding information for the purpose of securing a conviction" in trying to mislead you and is infringing on the Charter rights mentioned earlier. Argue that you were of the belief that there was no second test, and have evidence requiring a second test - but now, mid-trial - after two separate disclosure requests, the crown decides to bring up a second test - which is a blatant infringement of your charter rights.

Now, after this happens, if it happens successfully (JP's don't usually accept arguments like this, as they're not lawyers...) the evidence will not allowed to be admitted. Without that evidence, providing you have the case law for before and after - it would be impossible for the Crown to prove beyond a reasonable device that the device was in proper working order at the time of the offence. Therefore, the cases should be dismissed... but if the JP ignores the evidence and finds you guilty anyway, appeal it.

If it comes to that, let me know... as if it goes to appeal, your chances of beating the ticket increase significantly. Once again, I could be wrong here - because I'm not that familiar with the HTA - but, I can tell you that there's case law on roadside tests, and breathalysers not being admitted in court when charter rights were infringed, and therefore, no subsequent conviction could be registered without that evidence.

Also, for future reference - in cases of speeding, when the cop asks if you know the speed limit, just say yes... When he asks if you knew if you were travelling _____, just say no. Don't say no comment because that tips them off that you're going to take it to court and consequently, they will take more detailed notes and be more likely to remember the incident in court. It's better to play dumb.

Sonic wrote:

There is one avenue that most people on this forum should be taking, and I don't know why they don't... I usually study/attend criminal law trials, and the HTA is held to a significantly lower standard in terms of accountability and fundamental rights than criminal law - so I may be wrong here, I have been in regards to HTA in the past... but here's what I would do.

Step 1. Go to trial with case law supporting that the device has to be tested BEFORE & AFTER the offence.

Step 2. Bring a copy of R. v. Stinchcombe with you.

Now unless I'm reading your notes wrong, there's no indication in the notes that the officer testified the device AFTER his shift - he will (in my opinion, with close to 100% certainty) testify that he DID test the device after the incident, as it's his usual practice, or that he always tests it but never records it. As soon as he says that - OBJECT IT, say that the evidence should not be allowed to be admitted because it's contrary to your right to a full answer & defence protected under Section 7 of the Charter, and subsequently reaffirmed with your right to a fair trial in section 11.

In Stinchcombe (somewhere in the case, as I read it 1000 times), it's argued that even if the Crown is not going to use a certain piece of evidence, it should be disclosed if it can help your defence. It also states the crown cannot withhold information for the purpose of securing a conviction.

Your argument is going to be on the basis that you asked for disclosure TWICE, came to trial, attended trial - and no one ever told you about the existence of a second test, so that it should not be admitted into evidence. Don't bring it up prior to the trial, because you got to play dumb a bit, go into the trial and say you believed that the disclosure you received was all the information in regards to the offence - there was no way you could bring a pre-trial motion because you didn't know of the existence of a second test. Additionally, argue that (if you did) in your disclosure, you specifically asked for all tests conducted on the radar, and in your opinion, the crown is "withholding information for the purpose of securing a conviction" in trying to mislead you and is infringing on the Charter rights mentioned earlier. Argue that you were of the belief that there was no second test, and have evidence requiring a second test - but now, mid-trial - after two separate disclosure requests, the crown decides to bring up a second test - which is a blatant infringement of your charter rights.

Now, after this happens, if it happens successfully (JP's don't usually accept arguments like this, as they're not lawyers...) the evidence will not allowed to be admitted. Without that evidence, providing you have the case law for before and after - it would be impossible for the Crown to prove beyond a reasonable device that the device was in proper working order at the time of the offence. Therefore, the cases should be dismissed... but if the JP ignores the evidence and finds you guilty anyway, appeal it.

If it comes to that, let me know... as if it goes to appeal, your chances of beating the ticket increase significantly. Once again, I could be wrong here - because I'm not that familiar with the HTA - but, I can tell you that there's case law on roadside tests, and breathalysers not being admitted in court when charter rights were infringed, and therefore, no subsequent conviction could be registered without that evidence.

Also, for future reference - in cases of speeding, when the cop asks if you know the speed limit, just say yes... When he asks if you knew if you were travelling _____, just say no. Don't say no comment because that tips them off that you're going to take it to court and consequently, they will take more detailed notes and be more likely to remember the incident in court. It's better to play dumb.

Thank you for a very smart and well written reply.

I read on R v. Stinchcombe on the Canadian Legal Information Institute's website (http://www.canlii.org/en/ca/scc/doc/199 ... lii45.html#, https://en.wikipedia.org/wiki/R_v_Stinchcombe), and from what I understand, what you are saying makes complete sense to me. I'll try to prepare enough so that I can use this it in court effectively and not sound like a fool :)

This may be a stupid question, but I'm not in the legal field professionally - is there an online database for case law? Is CANLII the place to look? Also, how would I go about finding relevant case law supporting the testing procedures of devices used when I was pulled over? There must be something other than Google.

Again, thank you for your reply!

bigbadwolf wrote:

Sonic wrote:

There is one avenue that most people on this forum should be taking, and I don't know why they don't... I usually study/attend criminal law trials, and the HTA is held to a significantly lower standard in terms of accountability and fundamental rights than criminal law - so I may be wrong here, I have been in regards to HTA in the past... but here's what I would do.

Step 1. Go to trial with case law supporting that the device has to be tested BEFORE & AFTER the offence.

Step 2. Bring a copy of R. v. Stinchcombe with you.

Now unless I'm reading your notes wrong, there's no indication in the notes that the officer testified the device AFTER his shift - he will (in my opinion, with close to 100% certainty) testify that he DID test the device after the incident, as it's his usual practice, or that he always tests it but never records it. As soon as he says that - OBJECT IT, say that the evidence should not be allowed to be admitted because it's contrary to your right to a full answer & defence protected under Section 7 of the Charter, and subsequently reaffirmed with your right to a fair trial in section 11.

In Stinchcombe (somewhere in the case, as I read it 1000 times), it's argued that even if the Crown is not going to use a certain piece of evidence, it should be disclosed if it can help your defence. It also states the crown cannot withhold information for the purpose of securing a conviction.

Your argument is going to be on the basis that you asked for disclosure TWICE, came to trial, attended trial - and no one ever told you about the existence of a second test, so that it should not be admitted into evidence. Don't bring it up prior to the trial, because you got to play dumb a bit, go into the trial and say you believed that the disclosure you received was all the information in regards to the offence - there was no way you could bring a pre-trial motion because you didn't know of the existence of a second test. Additionally, argue that (if you did) in your disclosure, you specifically asked for all tests conducted on the radar, and in your opinion, the crown is "withholding information for the purpose of securing a conviction" in trying to mislead you and is infringing on the Charter rights mentioned earlier. Argue that you were of the belief that there was no second test, and have evidence requiring a second test - but now, mid-trial - after two separate disclosure requests, the crown decides to bring up a second test - which is a blatant infringement of your charter rights.

Now, after this happens, if it happens successfully (JP's don't usually accept arguments like this, as they're not lawyers...) the evidence will not allowed to be admitted. Without that evidence, providing you have the case law for before and after - it would be impossible for the Crown to prove beyond a reasonable device that the device was in proper working order at the time of the offence. Therefore, the cases should be dismissed... but if the JP ignores the evidence and finds you guilty anyway, appeal it.

If it comes to that, let me know... as if it goes to appeal, your chances of beating the ticket increase significantly. Once again, I could be wrong here - because I'm not that familiar with the HTA - but, I can tell you that there's case law on roadside tests, and breathalysers not being admitted in court when charter rights were infringed, and therefore, no subsequent conviction could be registered without that evidence.

Also, for future reference - in cases of speeding, when the cop asks if you know the speed limit, just say yes... When he asks if you knew if you were travelling _____, just say no. Don't say no comment because that tips them off that you're going to take it to court and consequently, they will take more detailed notes and be more likely to remember the incident in court. It's better to play dumb.

Thank you for a very smart and well written reply.

I read on R v. Stinchcombe on the Canadian Legal Information Institute's website (http://www.canlii.org/en/ca/scc/doc/199 ... lii45.html#, https://en.wikipedia.org/wiki/R_v_Stinchcombe), and from what I understand, what you are saying makes complete sense to me. I'll try to prepare enough so that I can use this it in court effectively and not sound like a fool

This may be a stupid question, but I'm not in the legal field professionally - is there an online database for case law? Is CANLII the place to look? Also, how would I go about finding relevant case law supporting the testing procedures of devices used when I was pulled over? There must be something other than Google.

Again, thank you for your reply!

Canlii is the place to look as a free online resource. I usually use LexisNexis because it has case laws not available on free resources, in addition to case laws without reserved judgments, meaning when a Justice gives his judgment orally, as usual after a speeding ticket - it has those available case laws as well. Unfortunately, it's a paid resource - I don't know if you can access it through some public services (maybe through University or public libraries if they have them?). Not sure it's necessary for your case - but it helps because it says if the cases have positive/negative enforcement (meaning other cases look at it with high regard, or completely ignore it and rule the opposite/appealed against or overturned it).

For testing procedures of the device, you should ask the Crown for that in their disclosure. Ask for the manual of their device, and testing procedures and they will usually at least give you a copy of the testing procedures related to that device. In terms of before and after, a prosecutor will occasionally argue that it is not necessary, that the manual's testing procedures only apply to *before* as mentioned in the manual. You should reply to that by saying the Ontario Court System has set out the requirement of a device working *at the time of the offence*, to prove that beyond a reasonable doubt it is required that the device be tested both before and after the offence. Without the after test, there's no conclusive evidence that the device was working at the time of the offence, the manufacturer nowhere in his manual suggests that the device is guaranteed to work indefinitely for x number of hours after the testing of the device.

In terms of Case Laws, here's some good ones.

https://www.canlii.org/en/on/oncj/doc/2 ... cj217.html

R. v. Schlesinger, 2007 ONCJ 266 (CanLII)

Question 1) Is it necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop?

In R v Vancrey 2000 CanLII 26961 (ON CA), 147 CCC (3d) 546, the Ontario Court of Appeal (OCA) ruled on this issue. The OCA considered an earlier ruling of the Quebec Court of Appeal in D'Astous v. Baie-Comeau (Ville) (1992), 1992 CanLII 2956 (QC CA), 74 C.C.C. (3d) 73.

In Vancrey, the court adopted from DAstous that in order to provide an

"evidentiary basis necessary for a conviction for speeding based on a radar reading"

that

"the Crown must still prove that the particular radar device used was operated accurately at the time."

One of the tests established by the Quebec Court of Appeal to establish such proof was:

"The device was tested before and after the operation".

The OCA having accepted this ruling then continued at para 21:

"The Crown seeks to uphold the conviction on the basis that there was led at trial prima facie evidence of the accuracy and reliability of the particular laser unit, consisting of the performance of the manufacturer's tests for good working order both before and after the use of the device"

The court then held at para 22:

"In my view, the position of the Crown is correct."

Therefore, I find that it is necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop.

&

R. v. Martin, 2008 ONCJ 217

https://www.canlii.org/en/on/oncj/doc/2 ... cj217.html

[25] In R. v. Vancrey [2000] O.J. No. 3033 the Ontario Court of Appeal did an excellent and instructive overview of the evidentiary requirements to be met where speed is determined by the use of a "laser" device.

[26] First the court considered the facts in these terms:

"…there was led at trial prima facie evidence of the accuracy and liability of the particular laser unit, consisting of the performance of the manufacturers test for good working order before and after the use of the device, together with the earlier verification of the accuracy of the laser unit from entering the velocity of moving vehicles on a highway, when compared with an accurate radar unit by a qualified laser radar operator."

(R. v. Vancrey, supra para. 21)

[27] Secondly the court expressed the ratio of its decision as follows:

"The court received evidence that the officer who operated the laser device was trained and experienced and that he tested the device both before and after its use in accordance with the manufacturers instructions to ensure it was operating properly upon the date in question. The court also received evidence of the accuracy of the device for measuring the speed of vehicles on a highway by comparing its readings to those of an accurate radar unit. The radar test provides independent guarantee of the accuracy of the particular laser unit to measure the speed of a moving vehicle".

(R. v. Vancrey, supra para. 22)

[28] In the case at bar there was little or no evidence called by the Crown to allow a trier of fact to support the conclusion that Officer Zarrello was trained and experienced in the use of the laser, that he tested the laser before and after its use, or to support the conclusion that the laser was operating correctly and that measurements of the appellants speed by the laser device was accurate or reliable.

[29] Indeed, the facts in the case at bar confound the ability of the trier of fact to draw any conclusion other than that the evidence leaves the court in a state of confusion and with a reasonable doubt on these critical issues.

[30] During the trial the learned Justice of the Peace correctly set out the test in an exchange with counsel as follows:

"Theres case law that indicates that the officer doesnt have to know the technical – the technical workings of a device other than how to use it and – and that its working properly at the time when he was using it and is able to give evidence in court that in fact he – it was working properly. Thats as far as it goes. As far as any of the technical part of it, that is – theres case law that says thats not necessary, its just that the court has to be satisfied that he is qualified and that he did use it, and he tested it, and it was working properly in his opinion. Thats as far as it goes."

(Transcript February 13, 2007, page 14 lines 8-19)

[31] However after carefully reviewing the trial testimony, I do not find that the evidence meets the tests required.

&

R. v. Andrianov, 2015 ONCJ 197

http://www.canlii.org/en/on/oncj/doc/20 ... cj197.html

[7] In its decision in Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.), the Ontario Court of Appeal appeared to approve the decision of the Quebec Court of Appeal in DAstous v. Baie Comeau (1992), 1992 CanLII 2956 (QC CA), 74 C.C.C. (3d) 73 (Que. C.A.), in respect of the issue of the evidentiary basis for a conviction for speeding based on a speed measurement obtained by radar. In her decision in Vancrey, Feldman J.A. stated, in part, as follows:

…In that case [DAstous v. Baie Comeau, supra.] the court held that judicial notice could be taken of the fact that radar is used to measure the speed of automobiles and that the principle upon which it is based can be found in any encyclopedia. However, in each case, the Crown must still prove that the particular radar device was operated accurately at the time. To do that the Crown must show:

- The operator was qualified: he followed a course, he passed an exam, he has several months experience;

- The device was tested before and after the operation;

- The device was accurate as verified by a test and that the tuning fork used was accurate. Once evidence is led to demonstrate those facts, then the radar reading becomes prima facie evidence of the speed of the vehicle, subject to evidence to the contrary, if any.

[8] In his decision in Regina v. Williams, [2008] O.J. No. 1078 (Ont. C.J.), Pockele J. made, in part, the following comments pertaining to the essential elements of the offence of speeding:

…

…The only 'essential elements of the offence in a speeding charge are the date, place, posted speed, identification of the vehicle operator and the speed of the motor vehicle. The Highway Traffic Act leaves it open to the prosecution as to how the rate of speed is established in court. There are many different ways to establish excessive speed such as - and this is not meant to be an exhaustive list – pacing a vehicle, mechanical road cables, aerial observation, radar, laser etc. Whatever method is employed by the prosecution, the burden is upon the prosecution to establish the rate of speed beyond a reasonable doubt after the evidence has been fully challenged. …

In the case of DAstous v. Baie Comeau (Que. C.A.) [supra.], the Court primarily dealt with the issue of judicial notice regarding the operation of radar speed detection devices. As a secondary point, the accuracy of such a device is not to be 'presumed but rather must be 'proven and as part of this, the prosecution must prove the qualification of the operator that the device was tested before and after operation and that the accuracy of the device was verified by a test. Specifically in this regard, the testing process must conform with the operators manual, and if a tuning fork is involved, it must be proven to be accurate. This differs from the case at hand because the operators manual, or the new suggested testing procedures no longer requires the use of a tuning fork. Baie Comeau does not stand for the proposition that it is an essential element of the offence to test every speed detection device with a tuning fork, particularly where it is not deemed necessary by the manufacturer and there is no evidence before the court casting any doubt upon the prima facie accuracy of the speed detection device.

It is not an essential element of the offence that the officer who observed a speeding offence and wrote the ticket be 'qualified in any particular manner according to Ontario law; however it would appear in the Alberta [case of] R. v. Werenka, [(1981), 11 M.V.R. 280 (Alta. Q.B.)] the Crown is required to prove that the operator of a speed detection device is qualified by virtue of (i) following a course, (ii) passing an exam successfully, (iii) having several months of required experience. It would appear that the issue of being 'qualified in Ontario must be proven beyond a reasonable doubt on a standard less defined than it is in Alberta.

However, a 'reasonable doubt might be raised regarding the accuracy of a speed measurement where an operator is not qualified or has no experience or has no training in the operation of a speed measurement device or system. Similarly, where a mechanical speed detection device is utilized, the prosecution may wish to call evidence, although it is not necessary to do so, that the device has been properly maintained and tested prior to operation. Certainly, these questions would be asked by the defence if not explored by the prosecution, the defence attempting to raise a 'reasonable doubt as to the accuracy of the rate of speed indicated.

…

[9] In her decision in Regina v. Niewiadomski, [2004] O.J. No. 478 (Ont. C.J.), Schnall J. opined that a court may infer that evidence of the rate of speed of a motor vehicle obtained through the use of radar or laser speed measuring devices is reliable, provided that the evidence before the court as to the use and working order of the device and the qualifications of the operator are uncontradicted.

[10] In that regard, Madam Justice Schnall stated, in part, as follows:

…

Where, however, as in the case before me, the defence through cross-examination challenges the training and qualifications of the operator, and the operation of the device and whether it was in proper working order, judicial notice cannot be taken of the reliability and accuracy of the readings. The court must consider whether the cross-examination of the police officer and the admissions he made raise a reasonable doubt.

I was referred to a number of cases by Ms. Charron, for the prosecution (respondent). These include: R. v. Grainger [1958] O.J. No. 218; DAstous v. Baie Comeau (Ville) (1992), 1992 CanLII 2956 (QC CA), 74 C.C.C. (3d) 73; and R. v. Giffin, [1980] N.S.J. No. 17, CH33207.

These cases do not advance the respondents case beyond the position which I already accept; that is, that where the prosecution presents evidence as to the qualifications of the operator, as to the device being in proper working order both before and after the incident, and as to its proper operation, the Crown will have established a prima facie case. A prima facie case can support a conviction unless the defence raises a reasonable doubt through independent evidence, or through cross-examination of the Crown witness.

That should be enough, if you want - you can add the Vancrey decisions and all the decisions these are indirectly citing (that you can find on Canlii). With that evidence, you should establish, as supported by precedent that in order to develop a prima facie case - that a second test would be required, and if your objection was successful - the charges can be dismissed. Prima facie essentially means that the prosecution has established a case beyond a reasonable doubt, and therefore it can support a conviction unless you raise a reasonable doubt, either through cross-examination, expert testimony, exhibits or your own testimony. I would suggest piling together a few more arguments, just in-case the JP rejects your objection (which you can always appeal) - stuff like this would include, independent recollection of the incident, how he conducted the tests, who taught him, when he was qualified, etc. If you search these boards, you should find good information and case laws regarding that stuff, just remember you recall the incident better than him, don't let anyone tell you otherwise - you can ask him stuff not in his notes to test if he has independent recollection of the incident and try to portray him as not a credible witness. Remember, officers are trained, they know their job is to support a conviction so you have to set up your questions in a way to lead him to what you want to say. Your questions will not be considered evidence in the case, only the officers responses (because he's under oath).

If your objection is successful, right after the Crown closes it's case you can argue to have the case thrown out because it hasn't established all the requirements to set forth a prima facie case, and if the JP accepts it, the trial is over - if not, you continue and establish that again in your closing arguments.

This should be a good resource for you in terms of establishing how the procedures should be dealt with:

http://www.ontariocourts.ca/ocj/self-re ... ses/guide/

Close of prosecutors case

After the prosecutor has finished calling all of his or her evidence and has "closed" the case for the prosecution, you will have the following options:

(i) You may ask the justice of the peace to dismiss some or all of the charges at this stage because there is no evidence in relation to at least one of the essential elements of the offence that the prosecutor must prove. If you move for a directed verdict and the justice of the peace rules against you, you will then be allowed to decide whether or not to call a defence. If the justice of the peace rules for you, you will be found not guilty. OR

Good luck and let us know what happens - as long as your make that objection clear and cite all the reasons and Charter infringements, it doesn't really matter if the JP accepts it or not, as long as it's clear in the transcript - you can take it to appeal and get it dismissed. There's quite a few case laws benefiting you if it goes to an appeal - the only problem is it prolongs the case and you have to pay for transcipts - so I won't mention that unless we get there. Good luck, and be prepared!

Also, I should add - no matter how strong a case seems, there's always the chance that you can lose. I don't want to make it seem like a guaranteed win, so you should take that into consideration. When you walk into that court room, the prosecutor will offer you a deal - in your case it'll probably be either 29 over (3 points) or 15 over (0 points). Some insurance companies consider 30KM+/hr over the limit as a major infraction while considering the former 2 as a minor - in those cases, you should seriously weigh the risk vs the possibility of winning because a major infraction will increase your insurance significantly, whereas a minor may not even affect it or have a minimal impact. If you cannot afford to lose, I would usually recommend against going to trial, no matter how strong the case is, especially if you're representing yourself for the first time. If, however, your insurance company views everything from 1-49KM/hr over the limit as minor and it doesn't make a difference - then you have nothing to lose by going to trial, unless they're offering you a non-moving violation or something (which is rare, if not impossible in Ontario). So just remember to consider the possibility of losing, and weigh that option with how it may affect your licence (if you already have a few demerit points on it), or insurance and if it is worth the risk versus the deal they offer you.

Some good discussion here:

http://www.ontariohighwaytrafficact.com/topic7018.html

Just to give closure; my trial date was yesterday, and after 2 adjournments, the officer never showed up for date #3 so the case was thrown. Ultimately that's the end result I was hoping for, but considering the amount of preparation I did, I wouldn't have minded battling it out to get that result.

So thanks to Sonic's advice, I had prepared and rehearsed objections if the Crown ever brought up a second radar test, I had gone over half a dozen case laws, had them printed and highlighted relevant decisions, got familiar with the Charter of Rights and Freedoms, went through R. v. Stinchcombe several times to make sure I understand what it's saying and where in case I need to use it. In case the Crown still decided to allow the new evidence if brought up mid-trial, I had a series of "leading" questions (and expected answers) to show irregularities in the procedure/lack of training, so I want to think I was in pretty good shape going into the trial, and was somewhat looking forward to it. But all in all, I got what I was going for.

A side note - I sat through 2 trials, both for using a cell phone. I can't believe the amount of stupid and "unprepared" that goes through those courtrooms. The 2 paralegals that were "defending" the people had absolutely no idea what they're doing. Zero preparation. Almost as if they were colluding with the Crown to get a conviction and go get lunch as soon as possible. One of them only asked TWICE if the officer knows the brand of the cell phone... Are you kidding me?! That's it?! If you'll go like that, you may as well plead guilty and save yourself the embarrassment. Seeing that, I don't think I'll ever trust a paralegal to defend me unless they walk me in detail through how they expect the trial to go... Which they never will.

Thanks everyone for your advice! Thanks Sonic for your well written responses. While I hope to never have to use them, I'll save everything you've written in a document just in case.

bigbadwolf wrote:

Just to give closure; my trial date was yesterday, and after 2 adjournments, the officer never showed up for date #3 so the case was thrown.

Congratulations on your win!

bigbadwolf wrote:

A side note - I sat through 2 trials, both for using a cell phone. I can't believe the amount of stupid and "unprepared" that goes through those courtrooms. The 2 paralegals that were "defending" the people had absolutely no idea what they're doing. Zero preparation. Almost as if they were colluding with the Crown to get a conviction and go get lunch as soon as possible. One of them only asked TWICE if the officer knows the brand of the cell phone... Are you kidding me?! That's it?! If you'll go like that, you may as well plead guilty and save yourself the embarrassment. Seeing that, I don't think I'll ever trust a paralegal to defend me unless they walk me in detail through how they expect the trial to go... Which they never will.

This is why it is very important to call around and talk with several paralegals/lawyers before you pay one to defend you. Unfortunately, this has been my experience while observing trials as well. Again I am not saying that ALL paralegals/lawyers are like this, because you will eventually find one that is willing to prepare properly and be willing to sit down with you and walk you thru (in detail) their plan of attack.

@bigbadwolf - Are you willing to post your list of questions you had prepared? I started a new topic here: http://www.ontariohighwaytrafficact.com/post36681.html for just that purpose.

bigbadwolf wrote:

Just to give closure; my trial date was yesterday, and after 2 adjournments, the officer never showed up for date #3 so the case was thrown. Ultimately that's the end result I was hoping for, but considering the amount of preparation I did, I wouldn't have minded battling it out to get that result.

So thanks to Sonic's advice, I had prepared and rehearsed objections if the Crown ever brought up a second radar test, I had gone over half a dozen case laws, had them printed and highlighted relevant decisions, got familiar with the Charter of Rights and Freedoms, went through R. v. Stinchcombe several times to make sure I understand what it's saying and where in case I need to use it. In case the Crown still decided to allow the new evidence if brought up mid-trial, I had a series of "leading" questions (and expected answers) to show irregularities in the procedure/lack of training, so I want to think I was in pretty good shape going into the trial, and was somewhat looking forward to it. But all in all, I got what I was going for.

A side note - I sat through 2 trials, both for using a cell phone. I can't believe the amount of stupid and "unprepared" that goes through those courtrooms. The 2 paralegals that were "defending" the people had absolutely no idea what they're doing. Zero preparation. Almost as if they were colluding with the Crown to get a conviction and go get lunch as soon as possible. One of them only asked TWICE if the officer knows the brand of the cell phone... Are you kidding me?! That's it?! If you'll go like that, you may as well plead guilty and save yourself the embarrassment. Seeing that, I don't think I'll ever trust a paralegal to defend me unless they walk me in detail through how they expect the trial to go... Which they never will.

Thanks everyone for your advice! Thanks Sonic for your well written responses. While I hope to never have to use them, I'll save everything you've written in a document just in case.

A lot of paralegals have no intention to go to trial. They just go to court regularly enough to know who represents the Crown and they can get you 15 over, whereas the Crown may not offer you the same deal if you came personally. In the off chance that some of those guys had to go to trial, that's what happens. That's why if you have the time and ability to represent yourself (at least in minor matters, such as speeding) - you will usually put in significantly more effort than the paralegal or Crown would, and that gives you a distinct advantage.

Also, for future reference - although not absolutely necessary, especially for a speeding manners the section of the Charter to cite for the exclusion of evidence is section 24 (2).

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The leading case law pertaining to it is:

R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32