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Re: Catching a break?
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PostPosted: Sun Sep 18, 2016 8:58 am 
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Joined: Thu Jul 26, 2012 1:18 pm
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Can anybody order a subponea? Can I just make one up and send it to OPP directly myself?

This is something new for me, so I am making the assumption that it has to be ordered by JP or Judge.

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Re: Catching a break?
PostPosted: Mon Sep 19, 2016 10:04 am 
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Have you read thru the whole R. vs. Jackson [2015] ONCA 832 case?

It is actually a gold mine!

The case law does set a new higher standard for "likely relevant" with regards to Third Party O'Connor request, but there is lots of good stuff in this case too.

Basically it says that crown prosecutor is first party and police are third party. Therefore First Party Stinchombe disclsoure only applies to prosecutor, not police. However it says that things that are "obviously relevant" are considered first party even if in possession of police.

[116] In first party/Stinchcombe disclosure, “relevant” is characteristic of the material to be provided to an accused as “fruits of the investigation”. In addition, although it may not fall fairly within the ordinary sweep of “fruits of the investigation”, material that is “obviously relevant” to the defence case may need to be rustled up by the police, provided to the Crown and disclosed to the defence. Like the discipline records in McNeil. See McNeil, at para. 59.

[124] The McNeil court uses the term “obviously relevant” to describe information that would not fall within the compass of “fruits of the investigation”, but would be of importance to the defence case. In McNeil, this information was police disciplinary records in the possession of a third party, the police department. Since it was “obviously relevant” to the credibility of the arresting officer and the reliability of his evidence, which was central to the prosecution’s case, McNeil imposed an obligation on the police to obtain these records and provide them to the prosecuting Crown. It imposed a correlative duty on the Crown to disclose them to the defence as part of the Crown’s Stinchcombe disclosure duty.

So this means things like the entire radar manual should be considered obviously relevant and should fall into prsoecutor disclsoure. It also means that speedometer accuracy is also obviously relevant (if the speedometer was used to either pace or test against radar).

And notice in p [133] that for intoxilyzers, they normally give logs, diagnostic tests AND calibration checks as first party stinchombe disclosure, so it would not be unreasonable to ask for these with respect to radar/laser as well.

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Re: Catching a break?
PostPosted: Mon Sep 19, 2016 1:24 pm 
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Joined: Fri Jun 25, 2010 3:30 am
Posts: 624
jsherk wrote:
So this means things like the entire radar manual should be considered obviously relevant and should fall into prsoecutor disclsoure. It also means that speedometer accuracy is also obviously relevant (if the speedometer was used to either pace or test against radar).

And notice in p [133] that for intoxilyzers, they normally give logs, diagnostic tests AND calibration checks as first party stinchombe disclosure, so it would not be unreasonable to ask for these with respect to radar/laser as well.


You're making a leap. It's like the disciplinary records that you quote above; not all records are relevant, just certain ones. The same could be applied to radar records.

This is no golden bullet.

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Re: Catching a break?
PostPosted: Wed Sep 21, 2016 12:22 am 
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Joined: Tue Aug 16, 2016 10:09 am
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I would think things such as speed measuring device maintenance and calibration records/logs would be considered "relevant" per Jackson. The manual likely specifies regular maintenance and recalibration/verification. The officer must, then, prove that these requirements were met. Unless the officer has done the maintenance and calibration/verification himself or herself, his or her testimony is hearsay without the records/logs.


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Re: Catching a break?
PostPosted: Wed Sep 21, 2016 7:50 am 
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Actually the manuals for Decatur Genesis radar conveniently says nothing about regular maintenance or recalibration. Manual says if you press the test button and if it says PASS then the unit is in perfect working order and nothing could be wrong with it!

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Re: Catching a break?
PostPosted: Thu Sep 22, 2016 12:45 am 
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Sounds like a load of malarkey to me.


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Re: Catching a break?
PostPosted: Thu Sep 22, 2016 8:56 am 
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Yep!

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Re: Catching a break?
PostPosted: Sat Sep 24, 2016 9:59 pm 
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Joined: Sun Apr 10, 2016 10:23 pm
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The Laser Ally manual (US Version) says that the unit should be re-certified every year... the Canadian version of the same manual says "Annual Calibration is Optional".

I guess they sold higher quality devices to Canada!


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Re: Catching a break?
PostPosted: Sat Oct 01, 2016 5:34 pm 
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Of course it's optional. If it were mandatory, prosecutors would have to disclose calibration records. Imagine that...they'd actually have to do some work!


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