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Failure to weigh evidence
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PostPosted: Mon May 01, 2017 12:50 pm 
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I have an appeal coming up, on a speeding ticket (HTA 128).

The reason for my appeal is that the JP in the original trial said that I've provided no evidence, whereas I've really provided plenty.

Any case law suggestions to rely upon, in my appeal?


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Re: Failure to weigh evidence
PostPosted: Mon May 01, 2017 1:03 pm 
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What are the arguments ?

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Former Ontario Police Officer. Advice will become less relevant as the time goes by !


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Re: Failure to weigh evidence
PostPosted: Mon May 01, 2017 3:08 pm 
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Joined: Thu Jul 26, 2012 1:18 pm
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You need to go thru the original transcript line by line, and highlight anything you said that you think is important, or anything the JP did/said that was incorrect and then you need to make those points known to the Judge at the appeal.

However, it is important for you to note the following:
- When the officer was on the witness stand, this is the "evidence" given by the prosecution. Any questions and comments that you brought up to the officer during cross-examination is not evidence in itself, but is simply trying to reduce the weight of the officers evidence.
- Did you take the witness stand yourself, or did you only cross-examine the officer? If you only cross-examined the officer and never took the witness stand yourself, then that means you did NOT enter evidence at all. If you did take to the witness stand, then this is your evidence.

So make sure you are making the right arguments about (1) bringing doubt to the officers testimony during cross-examination, and (2) the evidence you provided while on the witness stand.

The only case I can think of that may be helpful to you is this one:
R. v. Lifchus [1997] 3 SCR 320 http://canlii.ca/t/1fqzt

Here are a couple quotes:
"the standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, the basic premise which is fundamental to all criminal trials, and that the burden of proof rests on the prosecution throughout the trial and never shifts to the accused."

"A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty."

"Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt."


The other thing you may want to also bring up during your appeal is that the JP had a Reasonable Apprehension Of Bias.

“Reasonable Apprehension of Bias” — A reasonable apprehension of bias is the standard by which a judge or
decision maker can be removed. Bias is a predisposition to rule in favour of one side to the detriment of the other. The bias can be real or perceived.

Justice de Grandpré explained the test for reasonable apprehension of bias in his dissenting reasons in Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly.”

Related Cases:
Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817
Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259
Toronto (City) v. Mangov, 2014 ONCJ 351 (CanLII)
“A reasonable person could interpret the court’s comments as indicating a predisposed attitude towards conviction when it came to a speeding trial.”

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+++ This is not legal advice, only my opinion +++


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Re: Failure to weigh evidence
PostPosted: Mon May 01, 2017 7:08 pm 
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To answer both questions:

I took the stand, and I've offered evidence, describing the road conditions, and the events leading to the eventual stop. I was interrupted multiple times (just as I was interrupted during the cross examination), and then told that if I've nothing more to say, I can stand down. The JP also went into a lengthy rant about how laser technology is the greatest thing since sliced bread, and how its used to guide bombs and missiles, to kill people.

The argument of bias is certainly interesting - thank you very much - wonder if the appeal justice would buy it - will find out tomorrow morning :) I will definitely pursue this direction.

The exact statement statement about lack of evidence was that "you have provided no evidence to the contrary to indicate what speed you were going". I in fact clearly described what has happened, minutes earlier.

At the beginning of the trial, after an on record argument with the Crown (who claimed she offered me a deal, where no such thing took place), I was also bullied into going outside with the officer, to have him explain to me his shorthand (the explanation of which I've requested multiple times over 2 adjournments and countless disclosure request), and then I was supposed to come up with a defence in 30 seconds. I made a mistake by saying I'm ready to proceed - sucks to be me.


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Re: Failure to weigh evidence
PostPosted: Mon May 01, 2017 7:12 pm 
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Just found something interesting, by starting to re-read the transcript. After being booted out of the court room, to have the officer explain his shorthand to me, I came back in, and said what I said, but then a debate on a deal with the Crown has ensued, and the JP has said "so are you prepared to go to trial or not?" - I've never responded to this, because again he kept interrupting!

Interesting or not? (i.e. useful or not :))

Hypothetically this means I couldn't proceed, as I couldn't come up with proper defence right there and then, but was forced into doing this (?)


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Re: Failure to weigh evidence
PostPosted: Thu May 04, 2017 9:10 am 
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Joined: Fri Jan 08, 2016 1:47 pm
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avialaw wrote:
To answer both questions:

I took the stand, and I've offered evidence, describing the road conditions, and the events leading to the eventual stop. I was interrupted multiple times (just as I was interrupted during the cross examination), and then told that if I've nothing more to say, I can stand down. The JP also went into a lengthy rant about how laser technology is the greatest thing since sliced bread, and how its used to guide bombs and missiles, to kill people.

The argument of bias is certainly interesting - thank you very much - wonder if the appeal justice would buy it - will find out tomorrow morning :) I will definitely pursue this direction.

The exact statement statement about lack of evidence was that "you have provided no evidence to the contrary to indicate what speed you were going". I in fact clearly described what has happened, minutes earlier.

At the beginning of the trial, after an on record argument with the Crown (who claimed she offered me a deal, where no such thing took place), I was also bullied into going outside with the officer, to have him explain to me his shorthand (the explanation of which I've requested multiple times over 2 adjournments and countless disclosure request), and then I was supposed to come up with a defence in 30 seconds. I made a mistake by saying I'm ready to proceed - sucks to be me.


How did it go ?


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Re: Failure to weigh evidence
PostPosted: Thu May 04, 2017 10:12 am 
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So just to close this chapter - I've had my defence ready, adding to it R v. WD in terms of a three pronged test, and planning to talk about judicial interference (these were things that came up in other cases I've heard, while sitting there, and was quite fitting.

And then, I've seen the unseeable :) The judge went through my transcript, and told the Crown, that there is nothing to discuss here - that there has been a very clear miscarriage of justice in my case, and that he intends to bring the standards by which it was tried, to judicial review. I was given an acquittal, and basically didn't get to say anything.


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Re: Failure to weigh evidence
PostPosted: Thu May 04, 2017 10:35 am 
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Joined: Thu Jul 26, 2012 1:18 pm
Posts: 1722
Awesome :)

Congratulations on the win!

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Re: Failure to weigh evidence
PostPosted: Thu May 04, 2017 11:45 am 
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Joined: Sun May 22, 2016 11:51 pm
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jsherk wrote:
Awesome :)

Congratulations on the win!


Thanks :)


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