Disclosure Request

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EphOph
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Re: Disclosure Request

by: EphOph on
Fri Nov 06, 2015 6:54 am

Indeed I am looking at R. v Hawkins, wherein the requirement to visually observe the vehicle speeding is part of "tracking history" and is prescribed by the radar manual. However, I've read a bunch of lidar cases and it seems that every time without exception, the officer testifies that before activating the laser, he or she observed a vehicle either "traveling in excess of the speed limit" or "traveling at a [very] high rate of speed". I think that if this is included as part of every testimony than it must be an important point. I am definitely going to print off a large stack of these cases for the JP and make it a sticking point in submissions. Hopefully the JP will cut some slack since I don't have the manual.
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jsherk
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by: jsherk on
Fri Nov 06, 2015 8:26 am

Yep the best you can do is submit a stack of case law which supports your point.

If you can find an Ontario Court of Appeal case, then this is binding on the JP.
+++ This is not legal advice, only my opinion +++
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EphOph
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by: EphOph on
Tue Nov 10, 2015 9:46 am

So this prosecutor doesn't want to cooperate. After my request for the full manual and proof of the officer's training, they actually sent an email on Friday with a letter and some explanation.
In regards to the manual, they provided 4 pages of the testing portion only. It states that if I wish to view the entire manual I may make arrangements with the police service. I thought it is the crown's responsibility to provide disclosure, not the police. I have found this case: Thunder Bay v. Millar. The decision states that the full manual isn't required, but that the testing and operation sections are required. Since I didn't receive the portion regarding operation this definitely isn't proper disclosure.
In regards to the training records, the letter states that the prosecutor does not possess police personnel records. It further states that this information was included in the previous evidence because the officer included the year he was trained in his typed summary. I don't think I'll push this point any further; from what I've read, JPs don't seem to care about training records and simply accept the officer's testimony on this fact.

With the trial being two days away I think I won't submit any further requests but I will motion for a stay (or adjournment) because of improper disclosure. I will cite the above case as well as the prosecutor's unwillingness to cooperate.

Now here is the question: is 6 days considered long enough to prepare a full defence? I am thinking that if the JP rejects my first motion I will enter a second motion for adjournment in order to request additional disclosure and have time to prepare a full defence. I will of course make sure that the adjournment is attributed to the crown.
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jsherk
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by: jsherk on
Tue Nov 10, 2015 10:43 am

You just need to argue:
How can you prepare a proper defense and properly question the officer with respect to the operation of the unit without a copy the whole manual?
R. v. Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC)
http://www.canlii.org/en/ca/scc/doc/199 ... lii45.html

Now there is a good chance that the JP will not agree with you and will allow the trial to go ahead, so you need to be prepared to fight if you do not get stays or adjournments.

You can present all the case laws you want, but remember if they are ONCJ (Ontario Court of Justice) then they are not binding on the current JP. You still want to present them though.
Check this out and start at number 9 (Millar) and find as many that support your position.
http://www.canlii.org/en/index.html#sea ... disclosure

And personally I don't think 1 week is long enough to prepare, so that could be a reason to at least get an adjournment.
+++ This is not legal advice, only my opinion +++
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EphOph
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by: EphOph on
Fri Nov 13, 2015 6:55 am

So the trial date was yesterday and here is what happened. When we checked in the prosecutor of course tried to intimidate us with the amended speed and gave the choice of pleading guilty now or going to trial. I'm not sure if he was actually the prosecutor because it was a different person representing the crown in the courtroom. Anyway I replied I will be making a motion to dismiss for improper disclosure so he marked us down for trial.

After the first set of guilty pleas and a 15 minute recess, the officer was still nowhere in sight. A new officer came into the courtroom (before the JP returned) and spoke to the prosecutor. I couldn't hear the entire conversation but I did hear that he couldn't even remember who the laser operator was! My friend told me at the beginning of this whole thing that there was one officer running the speed trap and another sitting in the car writing tickets (never getting out to actually ID drivers). I know in this case there has to be two witnesses at trial but since there was nothing in the notes and the additional witness box wasn't checked on the ticket I decided not to pursue that. I figured maybe the guy in the car was just preparing the tickets and the actual speed trap operator was signing them.

After finishing the conversation the prosecutor called us up to the front. All she said was that she couldn't prove the charge so would be withdrawing it. She was even so kind as to let us leave and not have to wait around to hear it dismissed by the JP. It makes all the prep work feel like a bit of a waste but I won't "look a gift horse in the mouth" so to speak. The other unfortunate fact is that there were probably hundreds of improper speeding tickets given just from that one speed trap and yet ours was the only one on the docket from that officer.

As a side note: while searching for case law in support of my motion I found Toronto Police Services Board (Re), 2006 CanLII 50669 (ON IPC). I'm not sure exactly what it is but it looks to me like some sort of court order for the police to provide the full radar manual and a "final access decision" on calibration records to a defendant. Maybe this is nothing but if not I hope it helps someone. Special thanks to jsherk for your help.
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screeech
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by: screeech on
Fri Nov 13, 2015 9:19 am

Yes, an officer must say that they saw the vehicle going at a rate of speed which appeared to be faster than the posted speed limit. There is a case law on that. It was that way for years and years, then, the speed estimation thing came in, didn't last too long and the visual observation of speeding is back in (not that it ever officially left). The purpose of the radar is to corroborate the officers visual observations. So, if an officer can't say he saw the target vehicle speeding the charge should be tossed. This is the case in any speeding charge matter by any speed detection device. There are very few things a person can give opinion evidence on, speeding is one of them.
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jsherk
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by: jsherk on
Fri Nov 13, 2015 11:09 am

Congratulations on the win!

There are sometimes more than one prosecutor present so you might talk to one first, but a different one is doing the trial.

Some prosecutors are very upfront and honest and will tell you right away that a witness is not there yet, and if they do not show up they will drop it. Others will try to intimidate you right to the very end and try and get you to plead guilty. Glad you held your ground!

If everybody that got a ticket that day had plead not guilty and learned how the game is played, they would all have probably gotten off as well.

Everything you learned preparing for the case was not a waste, even though you did not need to use it. It is part of your education in how the system works. So if there is a "next time" for you (or a friend) then you already have what you learned under your belt. It always takes me a LONG time to prepare for each case, even with what I already know, because each case is different.
+++ This is not legal advice, only my opinion +++
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