29km/hr over reduced to 10km/hr over

jsherk
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Re: 29km/hr over reduced to 10km/hr over

by: jsherk on
Thu Dec 17, 2015 10:14 pm

Objection: Yes, just interrupt and say "I object to that because..."

Whatever the officer says on the stand is evidence unless you can either (i) get him to admit he said something that was in error, or (ii) have a witness that can testify something different. But what side of the road the officer pulled you over on is really irrelevent. If he answers "I don't remember" then this may help you in proving he does not have independent recollection. But if he says "left side" or "right side" then you could ask "are you sure?" but if he says "yes" then you might as well move on because that was his testimony so it is a fact in the case now and there is nothing you can really do to change it or correct it. All your reasons as to the reason you were speeding are irrelevant because it is an absolute liability charge. If you take the stand, all the prosecutor has to do is say "were you speeding?" and you say "yes" and you have incriminated yourself. It does not matter how busy the road was, it does not matter that you were not doing something unsafe and it does not matter that the other cars were going the same speed as you. I personally do not agree with absolute liability offences, however that is how they work. Either "yes you were speeding" or "no you were not speeding". The only reason that is acceptable for speeding is that your life was in danger which does not apply in your situation.

Essential elements of a charge are found by actually reading the act and picking them out.
http://www.ontario.ca/laws/statute/90h08
So if you are charged under 128 I think this would be relevant sections:
128. (1) No person shall drive a motor vehicle at a rate of speed greater than,
(d) the rate of speed prescribed for motor vehicles on a highway in accordance with subsection (2), (5), (6), (6.1) or (7);
(7) The Minister may make regulations prescribing a rate of speed for,
(b) any class or classes of motor vehicles driven on the King’s Highway or portion of the King’s Highway whether or not the King’s Highway is within a municipality, and the rate of speed may be different for any period or periods of the day or night or direction of travel;


So elements they need to prove are:
- a person (you)
- was driving
- a motor vehicle (as defined by the HTA)
- on a highway (as defined by the HTA)
- with a posted limit of 100 km/h
- at a speed of XYZ km/h
+++ This is not legal advice, only my opinion +++


CTKShadow
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by: CTKShadow on
Thu Dec 17, 2015 10:52 pm

Just to clarify, I want to establish the road was busy to suggest that the RADAR operator may have measured the speed of the wrong vehicle, since RADAR ordinarily picks up the largest vehicle and I drive a small vehicle. I would not attempt to justify speeding because "everyone else was doing it."


jsherk
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by: jsherk on
Fri Dec 18, 2015 7:58 am

Okay so you can probably ask the officer about the amount of traffic on the road, but if the officer says something like "very few vehicles" or "yours was the only one" then there is really nothing else you can do. Officer said it, so that is a fact now unless you have other evidence to prove it is not a fact. You could testify that there was a lot of other traffic but now it is your word against officers word and unfortuntately the JP will usually take officers word over your word (so don't testify).
+++ This is not legal advice, only my opinion +++


screeech
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by: screeech on
Fri Dec 18, 2015 10:14 am

Although you drive a small vehicle, it becomes a stronger reflected signal the closer it gets to the radar unit. Yes, if your little car is beside a pickup truck at 200m, at the same rate of speed, the radar will produce the pickup trucks speed. However, if the truck is at 200 m, and you are at 100m, you now may become the stronger reflected signal as you are closer and are taking up more signal.


Stanton
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by: Stanton on
Fri Dec 18, 2015 12:50 pm

Also keep in mind that most radar units can be set to measure the speed of the fastest vehicle even if it's not the strongest signal (i.e. so it would give the speed of the fast motorcycle overtaking the large, slower transport truck).

Regardless though, the officer is saying your speed was measured with a laser, not a radar, so it's kind of irrelevant. I'm guessing the Crown simply saw the officer mentioned he tested a radar at the start of shift in his notes and incorrectly assumed that's how your speed was measured.


ynotp
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by: ynotp on
Fri Dec 18, 2015 1:57 pm

If you testify that you weren't speeding and the officers contradict one another your chances are good.

At trial you can exploit that ticketing officers testimony will be that he believes a laser was used to measure your speed. If he testifies otherwise then you start to have reasonable doubt. Ask him why he believes it was a laser. Answer will be because the other officer told him (very good) or he made an assumption (that's not very professional or accurate is it?) or that they always call it Lidar enforcement regardless of how the speed is measured (which would seem like a crock).

If the other officer says he used radar as are indicated in his notes you can say that obviously there was a significant miscommunication between the officers and infer that they weren't on the same page that day...what else got missed. You can also suggest that it is possible that he was in fact using laser as the other officers notes indicate this. You can ask why his notes don't mention him test his laser. He can say "That's because I was using radar." but you can say, "That's not what the other officers observations are in his notes."

One says laser, the other says radar, I think the JP should say NOT Guilty.

Bottom line is this was a pre-planned, well rehearsed, regular and routine activity there should be absolutely no tolerance for any discrepancy between the officers. The reason it's important is that if the speed measuring device is called into question how can we be sure beyond a reasonable doubt that he tested the right one.


jsherk
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by: jsherk on
Sat Dec 19, 2015 11:14 am

Just another thought... you can ask for an Order Excluding Witnesses:
"At the beginning of the trial, you or the Crown may ask the trial judge to order all witnesses in the case to remain outside the courtroom until they testify. This is to make sure that witnesses do not change their evidence based on what they hear other witnesses say in the courtroom. Accused persons are entitled to hear all of the evidence, and you will not have to leave the courtroom when other witnesses testify even if you intend to be a witness yourself. However, you must not tell any witnesses what evidence was given in the courtroom or the questions that were asked."

This will make sure one officer does not know exactly what the other officer said or was asked which could work to your advantage.
+++ This is not legal advice, only my opinion +++


argyll
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by: argyll on
Sat Dec 19, 2015 11:50 am

Yes. This is pretty standard. I had an impaired case where I testified that I was riding double with my partner and he testified we were in separate cruisers. Oops. The accused was still convicted as the rest of the testimony was solid. Just shows that you can't pin your hopes on one small discrepancy being enough to toss the whole case.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


CTKShadow
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by: CTKShadow on
Sun Dec 20, 2015 5:41 pm

In a couple of the early posts of this thread, it was stated that both the ticketing officer and the officer who measured the speed need to be in attendance. Does anyone have a reference for this so I can correctly argue this point in court?


ynotp
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by: ynotp on
Sun Dec 20, 2015 10:32 pm

The testimony of both officers are needed to secure a conviction. Each plays a critical role in establishing elements of the offence. You will not need case law to back this up.


CTKShadow
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by: CTKShadow on
Wed Dec 23, 2015 6:47 pm

For anyone who was wondering how this wrapped up:

At the 11th hour I punched a nice (theoretical) hole in my theory...

On the back of the PON the ticketing officer noted "129km/hr - confirmed directly behind same." I was worried that once I pulled the hearsay argument to disallow the RADAR/LIDAR reading, he would say he confirmed my rate of speed independently, at which point my only defense besides discrediting the method used to verify my speed. Worse, it's at least possible in theory that the officer who ticketed me was using RADAR to verify the LIDAR reading of the other officer (which would explain the discrepancy in LIDAR/RADAR).

So when I went to court, the ticketing officer showed but not the officer who operated the "LIDAR". The officer recognized me immediately which surprises me because I had no facial hair (did at time he pulled me over), was wearing completely different clothes, and was wearing my contacts (had glasses at time he pulled me over). But apparently once the officer realized his partner wasn't coming he went and spoke to the prosecutor, then came and told me his partner "who was using the LIDAR" wasn't coming and I'd get off. In earshot, one of his colleagues asked him why his partner didn't show and he responded "Because nobody told him" "Why didn't anyone tell him?" "I don't know...*points to ticket* It's here on the ticket, and in my notes."

So it sounds like it was the prosecutor's error, and I was worrying over nothing :)




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