Prosecutor appealing my dismissal

Hi all,

I have utilized some of the information provided by this forum to successfully get a dismissal for a speeding ticket last year. The ticket was for 134 in a 100, and the dismissal was granted based on a lack of training & qualification of the officer. The justice agreed that the prosecution did not disclose any documentation to suport the qualifications of the officer to operate the device.

I now have been notified the prosecution is appealing the dismissal.

Any thoughts on how I can defend? If so can you provide some detail please.

Thanks in advance for any info or advise.

Appeals are a funny thing. If you go you will have to defend your position again but by the sounds of it you'll need to argue legal facts.

The crown is most likely going to attack the JP's decision and this may be difficult for you as a civilian. You may want to seek legal council to go to court for you.

How did you prove that the officer's training was inadequate or invalid? This may shed some light on this.

I had asked for a copy of the officers training records in my disclosure, and they did not provide it. At the trial I cross examined the officer and asked if he was qualified, and where is the documentation to support the qualification. He replied he was qualified, and he had proof in his file. The justice agreed that there was nothing presented to support he was qualified to operate the device, and dismissed the charge.

So it looks as if the JP quashed the charge based on improper disclosure.....anyone get that impression?

I think they're appealing because previously most courts accepted the sworn testimony of the officer confirming that they were qualified proof enough that they were qualified.

I don't know about you, but I sure feel great knowing that money is being to have this prosecutor go to appeals court over this case. Why even waste the resources fighting this even further from the city's perspective? You must have made that prosecutor look really dumb in court or maybe you looked at him the wrong way...

It is most likely that the prosecutor is appealing the dismissal of the charge only out of principle. Probably the prosecutor will not proceed with the charge against you.

You may contact the prosecutor and ask if they will be looking for a) a new trial, b) a conviction or c) just a court order.

In any event, for what you disclose the chances of successful prosecution appeal are very very remote and you should not worry about it.

As part of the appeal process, the prosecutor must serve upon you (provide you with) a copy of the transcript of proceeding.

Once you get the transcript, feel free to contact me for a more educated opinion.

Cheers.

I have to agree with fortec_man's assessment here:

I think they're appealing because previously most courts accepted the sworn testimony of the officer confirming that they were qualified proof enough that they were qualified.

mdevo, this case could set a precedent. I'd strongly recommend some professional legal help.

Thanks for all the reply's.

I am still trying to figure out what path to follow & doing some research.

I will contact the prosecutor as suggested, maybe this will shed some light.

I remember how nasty she was at the trial, and I'm not looking forward to another confrontation.

I have until June 23rd so keep the suggestions comming......

Cheers

Biron wrote:

It is most likely that the prosecutor is appealing the dismissal of the charge only out of principle. Probably the prosecutor will not proceed with the charge against you.

You may contact the prosecutor and ask if they will be looking for a) a new trial, b) a conviction or c) just a court order.

In any event, for what you disclose the chances of successful prosecution appeal are very very remote and you should not worry about it.

As part of the appeal process, the prosecutor must serve upon you (provide you with) a copy of the transcript of proceeding.

Once you get the transcript, feel free to contact me for a more educated opinion.

Cheers.

_________________________

Thank you for your interest Biron.

I have recieved the transcript, and would appreciate any educated opinions or suggestions you may have.

I have not found much information on appeal court procedure, so what do you mean by: "Probably the prosecutor will not proceed with the charge against you."

If this is true, why the appeal then?

Cheers, mdevo.

mdevo wrote:

so what do you mean by: "Probably the prosecutor will not proceed with the charge against you."

If this is true, why the appeal then?

Answer:

Radar Identified wrote:

mdevo, this case could set a precedent. I'd strongly recommend some professional legal help.

No doubt that some people within the Crown Prosecutor's office (and possibly the Ministry of the Attorney General) had a cow when the JP ruled in mdevo's favour and word got out. Also, I'd be willing to bet a few people who fight traffic tickets for a living may be quite interested in this particular outcome.

It could make burden of proof for the Crown a lot more difficult.

.

..

Radar Identified wrote:

No doubt that some people within the Crown Prosecutor's office (and possibly the Ministry of the Attorney General) had a cow when the JP ruled in mdevo's favour...

I agree.

In this case it would be the city prosecutor bringing the appeal, under the Transfer Agreement, and not the Crown.

However, you would not believe the amount of support from the Office of the Attorney General and the extent of city resources available to the prosecutor, particularly in cases like this where a new point of law could be settled.

Radar Identified wrote:

... I'd be willing to bet a few people who fight traffic tickets for a living may be quite interested in this particular outcome. It could make burden of proof for the Crown a lot more difficult.

No kidding. It's 3:15 AM and I am checking case law.

Cheers.

..

.

Radar Identified wrote:

No doubt that some people within the Crown Prosecutor's office (and possibly the Ministry of the Attorney General) had a cow when the JP ruled in mdevo's favour and word got out. Also, I'd be willing to bet a few people who fight traffic tickets for a living may be quite interested in this particular outcome.

It could make burden of proof for the Crown a lot more difficult.

and yet just more BS and needless cutting of trees to throw another paper in a file so much for environmentally friendly!

same as putting in a "photocopy of the ticket" ...the defendant was given one and the original/legal one is sitting on the desk in front of the JP...so much for environmentally friendly!

Wow!

I originally decided to take this case on as a sort of science experiment, since I was curious how our justice system works. Everyone seems to cave in and just pay the fines, but I thought lets learn somthing for the cost of the fine. When the case was dismissed, I thought "oh my god" this system is a joke!

Thinking I may have bit off more than I can chew!

hwybear wrote:

and yet just more BS and needless cutting of trees to throw another paper in a file so much for environmentally friendly!

same as putting in a "photocopy of the ticket" ...the defendant was given one and the original/legal one is sitting on the desk in front of the JP...so much for environmentally friendly!

Could easily save lots of trees and simplify disclosure process by:

- In addition to a "pay tickets" website, create a "fight tickets" website so paperwork only needs to be filed on-line

- Officer submits notes from tickets via scanning/email to Prosecutor's office so it can be readily retrieved

- When disclosure request comes in, Prosecutor clicks mouse a few times to retrieve notes, copy of manual, copy of ticket, bundled together as a disclosure packet electronically

- Prosecutor e-mails defendant PDF file of disclosure packet, or defendant can go to courthouse and print it off (e-mailed copy to defendant gets cc'd to court clerk's office as proof of delivery)

As for asking for disclosure of something the defendant already has (copy of ticket), I think you know where I stand on that.

'

We'll see what the outcome of this case is, although I would suspect it would be overturned. We'll see...

Great ideas....plus we jointly re-write the HTA to make sense

Radar Identified wrote:

- In addition to a "pay tickets" website, create a "fight tickets" website so paperwork only needs to be filed on-line

Only point I disagree with is the above and it is not the ease of challenging the offence. There has to be some penalty, say $250-500 added to the fine for a "no show" at court. There are a lot that just mail in the trial notice and never show, wasting a lot of time, resources.

(IE: your website to challenge the offence notice

- choose the option 1 ,2 ,3

- if 3, next option return ask for disclosure, yes/no

- disclosure sent and have 30 days to respond, fail to respond and you are now deemed not to dispute.

- then 3 more choices:

1) pay the offence

2) resolve with prosecutor and book a resolution date. Disclaimer added that a $250 penalty will be imposed for a no show

3) trial, and book a court date. Disclaimer added that a $500 penalty will be imposed for a no show.

hwybear wrote:

Great ideas....plus we jointly re-write the HTA to make sense

mdevo wrote:

I originally decided to take this case on as a sort of science experiment, since I was curious how our justice system works.

1+1=2.

Bear, you wonder why there is so much time wasting/ no shows in traffic courts and we (the common folk) wonder why there is so much paperwork behind the process?

I think there should be manditory drivers ed and law classes in high school. Think that would clear up a lot of the "I didn't knows" and "WTF is this" we see now.

hwybear wrote:

plus we jointly re-write the HTA to make sense

One can only hope...

hwybear wrote:

There has to be some penalty, say $250-500 added to the fine for a "no show" at court.

No argument there. No-show penalty should cover the cost of the officer's overtime, the Prosecutor's paperwork/filing, JP's time, etc. If there are extenuating circumstances (e.g. medical emergency), there could be exceptions granted on a case-by-case basis.

BTW, I like the "choose options" plus click for disclosure. Reduces paperwork and saves everyone time.

Reflections wrote:

I think there should be manditory drivers ed and law classes in high school. Think that would clear up a lot of the "I didn't knows" and "WTF is this" we see now.

+1

hwybear wrote:

Great ideas....plus we jointly re-write the HTA to make sense

Radar Identified wrote:

- In addition to a "pay tickets" website, create a "fight tickets" website so paperwork only needs to be filed on-line

Only point I disagree with is the above and it is not the ease of challenging the offence. There has to be some penalty, say $250-500 added to the fine for a "no show" at court. There are a lot that just mail in the trial notice and never show, wasting a lot of time, resources.

(IE: your website to challenge the offence notice

- choose the option 1 ,2 ,3

- if 3, next option return ask for disclosure, yes/no

- disclosure sent and have 30 days to respond, fail to respond and you are now deemed not to dispute.

- then 3 more choices:

1) pay the offence

2) resolve with prosecutor and book a resolution date. Disclaimer added that a $250 penalty will be imposed for a no show

3) trial, and book a court date. Disclaimer added that a $500 penalty will be imposed for a no show.

Of course to do that you must include a fine to the cop if they do not show.

Cheers

Viper1

With this type of appeal what costs are associated? I understand that if I loose I would have to pay for representation and the original ticket cost, but can there be other court imposed costs?

I'm trying to decide if it is worth while to take an offer from the prosecution, or continue with this appeal.

Thanks again.....

NOTE: Special thanks to BIRON for all the help provided.

I'd imagine the cost of the ticket and representation would be the bulk of it. I'd guess costs/court costs are tiny in comparison if levied at all. I wouldn't factor that into your decision.

What did the prosecution offer? It seems odd they would appeal and then offer you a deal where you just reverse your plea to guilty, as it would still effectively leave the points of law in the original decision not opposed.

Did you get the transcript and the crown's appeal factum? Have you hired a paralegal/lawyer? IMHO, you've gone this far - if your agent can articulate a reasonable reply to the appeal factum and thinks you might be able to get the decision held, take one for the team and keep going!

Were you able to show through cross-examination that the officer's level of knowledge on how to operate the device suffered due to a lack of training/qualifications, or was it strictly a non-disclosure issue?

What did the prosecution offer?

Reduced to no points....

Did you get the transcript and the crown's appeal factum?

YES..........

Have you hired a paralegal/lawyer?

Have recieved help from Biron.........

Were you able to show through cross-examination that the officer's level of knowledge on how to operate the device suffered due to a lack of training/qualifications, or was it strictly a non-disclosure issue?

Non disclosure, nothing was provided to show he was qualified.

I will continue if there is a glimmer of hope..............just trying to get that feeling, but my time is running out!

mdevo

FYI

I decided to take the advise & ammended ticket (from 134/100 to 115/100 ) "Biron" arranged for me with the prosecution instead of responding to the appeal. Being certin about the outcome, has relieved the burden.

I have to say thank you to all on this forum for their information and opinion. That knowledge got me this far and allowed me to experience the court system first hand.

Allthough I am relieved, I do feel dissapointment of not seeing this thru to the end.

This time I felt as if luck was not on my side.....................

Cheers