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29km/hr over reduced to 10km/hr over
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PostPosted: Mon Dec 14, 2015 11:28 pm 
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Hello everyone, I have a traffic court date coming up and I'm deciding if I should fight the ticket or pay it.

Here's what happened: I was driving between 110km/h and 115km/h on a 100km/hr limit highway (I know, I'm a rebel). The highway was busy but not congested and I was (unsurprisingly given my speed) basically within the flow of traffic. I was in the left lane. It was dusk and when I saw the officer's lights behind me I assumed the emergency vehicle (I thought it was an ambulance...I didn't realize how big OPP cruisers are) wanted to pass me as I was moving basically the same speed as the two vehicles (one in front of the other) in the right lane (so I was blocking any faster vehicles from passing as I was passing the two on the right quite slowly, not wanting to exceed 15 over as a general rule). So I changed lanes and that was when I realized that it was a) a police cruiser and not an ambulance and b) he wasn't charging ahead so I guess he wanted me to pull over.

The officer didn't mention anything about the time it took me to pull over (I estimate at least 30 seconds to a minute from when his lights went on), so that's good. But he said his partner clocked me going at 129km/hr (there was no way I was going that fast), but served me a reduced ticket of only 110km/hr, without stating the reason why (possibly relevant: I have a completely clean record). It should go without saying that if I go to court and lose I eat the fine for the 129km/hr infraction (and points...though they don't matter because i won't get 6-12 more for hearing/suspension). I didn't argue with the officer about the speed at the time because I was pretty shell-shocked.

I'm in a tricky spot because while I believe I could, on cross examining the officer, create sufficient doubt I was traveling at 129km/hr, there is really no way (even if I was willing to lie in court) that I could argue I wasn't going above the limit (since EVERYONE DOES). I'd just pay the $40 for 10 over but it'll kill my insurance (my current company will cancel, it's a company plan and they don't tolerate ANY convictions), and I'd be looking at my rates going up by about $50 a month with the cheapest provider I can find with a minor conviction...$1800 more over 3 years than my current rate. So other than the officer not showing up, I don't think I have a whole lot of hope with this one, except one possible defense:

I requested disclosure, the first request was likely pre-prepared as it came very fast and ignored most of my requests. I sent a second request and most of what I requested was presented. Enough was sent that any omissions could be reasonably interpreted by me as indication of their non-existence (such as: are there any other witnesses, if so what will they stay, and does the crown have any other information that will incriminate or exonerate me).

Here's my possible out: I have a copy of the police officer's notes, the page from the lidar manual describing the tests involved, and a typed copy of the officer's notes (from the second request). The lidar manual clearly indicates that the testing must be completed by the officer prior to enforcement and at the end of the officer's tour of duty. The notes provided by the officer show that the lidar was tested at the beginning of his shift, but no notes from the end of his shift are provided to show if it was tested at the end of shift or not. Further, the officer who served me the ticket was not the officer who actually used the lidar unit that night (this information is in the notes and the witness will stay statement from the officer who served my ticket). So my thought is I can mount a defense that the officer has no proof the device was tested after his shift, and without proof that the device was tested after the shift we have no way to know if the reading was accurate (which it wasn't, but that's my word against his). Here is my question: If the officer/prosecutor was to present evidence from the officer's notes showing the device was tested at the end of his shift, since this information is not in my disclosure, would I be able to then request a stay of charges based on incomplete disclosure, or is it too late once the trial has started?

As an aside, I am aware that in the above scenario it's possible the prosecutor might request the JP just adjourn my case until a later date now that I have the full disclosure. I requested a trial (option 3) but was send a letter for option 2 (plea bargain). I took a day off of work and drove 1hr to the courthouse (and 1hr home afterwords) for the option 2, and the worst bit was the prosecutor didn't/couldn't offer me a deal because the officer had already reduced my ticket. So the prosecutor straight up cost me $25 in gas, an afternoon, and a day's worth of lost wages for no real reason. Assuming the JP was inclined to give the prosecution an adjournment I would leverage this previous prejudice and argue that for such a minor charge 2 days of lost wages and 2 days of time, not to mention 4 hours of commuting, is too much and the only reasonable response is a stay of the charge.

So in summary: If I fight it and beat the conviction (one way or the other), then it costs me only 1 day's lost wages and close to a half tank of gas. If I just pay the $40 ticket now, I save the wages for the day and gas, but will pay $50/month extra for 3 years and have a conviction on my record. But if I fight it and lose, then not only do I have the extra $50/month on my insurance but my fine will be nearly $200 instead of $40, and I lose a day's wages and almost a half tank of gas. But the most likely scenario is that the officer shows up (it's Peterborough...), and says he's sure the other officer tested the device at the end of his shift. In that case my only argument is that information wasn't in my disclosure contrary to (I believe) case law. Is this argument likely to work?

Thanks in advance :)


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Tue Dec 15, 2015 11:15 am 
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Joined: Wed Mar 30, 2011 1:08 pm
Posts: 536
Location: Ontario
The officer who issued the ticket and the officer who clocked you with the laser both have to be in attendance. Were you given notes from both officers?

Any evidence found in notes that are used in court and were not presented to you ahead of time qualifies incomplete disclosure. (You have to object) The usual remedy is the notes are provided to you and you are given time to review them pushing your trial date to another time. (Though you can ask for a stay) The notes themselves are only meant to be used as a tool for the officer to refresh their memory.

For better help you should post your disclosure here with all personal info blocked out including offence number.


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Tue Dec 15, 2015 3:39 pm 
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Yes you should have gotten notes from both officers and they both must be at the trial. One will testify as to issuing the ticket and identification and the other will testify to speed.

Remember that a 10 over (0 demerit points) and 29 over (3 demerit points) will affect your insurance exactly the same. So taking the 10 over charge will mean a lower fine and 0 demerits but may still cause your insurance to go up. Insurance does not care about demerit points or speed, they just see "speeding conviction".

Now there are two events that are seperate when you are in court... (i) cross-examining the officer while on the stand and (ii) given your testimony on the stand. Do not get these mixed up. Basically goes something like this:
- They ask how you plead, guilty or not guilty.
- 1st Officer is called to the stand and prosecutor asks a bunch of questions.
- You cross-examine 1st officer and ask a bunch of questions.
- Prosecutor gets to re-examine only about things you asked about then you get to re-cross-examine about what the prosecutor just asked.
- 2nd Officer is called to the stand and prosecutor asks a bunch of questions.
- You cross-examine 2nd officer and ask a bunch of questions.
- Prosecutor gets to re-examine only about things you asked about then you get to re-cross-examine about what the prosecutor just asked.
- You are then asked if you want to call any witnesses. Usually this would be yourself, but you have the right not to testify against yourself, so you should probably say "no witnesses".
- Prosecutor makes closing submissions.
- You make closing submissions.
- JP decides the outcome.

So when you are cross-examining the officer, you are NOT giving your side of the story and you are NOT giving your testimony. So you do have the complete opportunity to cross-examine both officers and never have to testify against yourself.

Now you need to pay very very close attention to what the officer running the LIDAR says when they get on the stand and the prosecutor is asking them questions. If they are reading from their notes, then they should say they tested before at such and such a time, but they should not say anything about testing it afterwards.

Now you need to be careful about what question you ask about testing because it could backfire. If you flat out ask "So you did not test the device after the stop?" they could answer "yes I did, I just forgot to write it down" and now the JP could take that as proof that it was tested.

If the officer does NOT mention that they tested it afterwards (during prosecutor questioning), then I would simply do this:
- Ask if you can approach the witness to give them a copy of the manual that they gave you.
- Ask officer to verify that it is the manual that they gave you in disclosure for the device they are using.
- Ask officer to read the specific sections on testing (highlight ahead of time what you want them to read).
No more questions! That's it!
So now when it gets to closing submissions you can say "The officer read the testing procedure from the manual which stated it had to be tested both before and after enforcement action. However the officer testified that he only tested it before and did not say anything about testing it after, therefore he did not follow the manufactures testing procedures and therefore this brings reasonable doubt to the reading and therefore the charge should be dismissed."
Remember that when you are done with your question, the prosecutor gets to re-ask questions about what you just asked about. Since you did not actually ask about the afterwards test, the prosecutor can not ask officer about it. If they do, then you can object and say "prosecutor is not allowed to introduce new evidence".

If the officer DOES mentions that they did test it afterwards (during initial prosecutor questioning), I would object because you were not provided with that information in disclosure. The cat is already out of the bag at this point, so whether you bring it up during cross examination would be up to you.

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


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Tue Dec 15, 2015 7:30 pm 
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jsherk wrote:

Now you need to pay very very close attention to what the officer running the LIDAR says when they get on the stand and the prosecutor is asking them questions. If they are reading from their notes, then they should say they tested before at such and such a time, but they should not say anything about testing it afterwards.

Now you need to be careful about what question you ask about testing because it could backfire. If you flat out ask "So you did not test the device after the stop?" they could answer "yes I did, I just forgot to write it down" and now the JP could take that as proof that it was tested.

If the officer does NOT mention that they tested it afterwards (during prosecutor questioning), then I would simply do this:
- Ask if you can approach the witness to give them a copy of the manual that they gave you.
- Ask officer to verify that it is the manual that they gave you in disclosure for the device they are using.
- Ask officer to read the specific sections on testing (highlight ahead of time what you want them to read).
No more questions! That's it!


Can the officer, when reading the section on testing during cross-examination, say "oh, I forgot to mention but I did also test it at the end of my shift", or is he not allowed to introduce new evidence during cross examination?

Also, how exactly does one go about objecting if the need arises?

I'll include the disclosure I've received. There is more but a limit of 3 per post.


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Tue Dec 15, 2015 7:32 pm 
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Note that in all of these, the card is for the same officer, who is the one who served me the ticket. He was not the one who used the lidar and I don't have notes from the officer who used the lidar.


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Tue Dec 15, 2015 7:46 pm 
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For my orignial disclosure, in addition to the images I've provided I also received the following message from the prosecutor:

"Disclosure as requested for trial -trial date redacted-.
Please advise if you have any questions.
Thank you.
-Prosecutor's name redacted-, Municipal Prosecutor.

I replied with:

"Hello -Prosecutor name redacted-,

I have a few questions and requests.

As requested in my original request for disclosure, please provide the following which have not been supplied with no explanation as to their exclusion:

A copy of both sides of the officer's copy of the ticket (Notice of Offence)
A typed version of any hand written notes
Any statements made by the officer (if not in the notes - I can't tell because I can't read the officer's writing)
Any statements made by the defendant (if not in the notes)
Witness will say statements
Witness statements
Please also confirm that there is no other information in the Crown's possession which is being withheld

Also, based on the notes provided (which are very difficult to read) it appears that the officer used a lot of jargon shorthand. For example "T.S. Hwy 115. ?? OMT -license plate redacted-" I know what Hwy 115 is and recognize my licence plate number (else I would have read it -my plate with a typo redacted- due to the handwriting). I am guessing T.S. means traffic stop, please confirm. What does OMT mean? I put ?? where there are two letters I can't make out...maybe NB? What are the letters and what do they mean?

On a separate page (which includes ticket number on it), I see DI (or D1?) = DL = RO. What does this line mean?
On a separate page the same DI = DL = RO is repeated, with a scratch besides it...I at first thought the scratch was the officer's signature but it doesn't match the signature on my notice of offense.
I may have further questions (including regarding the log from what I presume is the start of the officer's shift) once I have a typed (legible) copy of the officer's notes.

Thank you for your time,
-My name redacted-"

The officer forwarded my request to the officer who served me a ticket with the following comment:

"PC -officer name redacted-, could you please type your notes including abbreviations for this trial scheduled on -date redacted-.
Defendant -my name redacted-, offence date -redacted-, PON -redacted-, speeding 110/100 R129.
Thanks,
-Prosecutor's first name only redacted-"

The officer replied:

"PON- back side, the cross on the top left with the letters D1, denotes that number of passengers including position in the vehicle. D1-Driver
D1=DL=RO Driver1=Drivers licence (valid)=Registered owner, this denotes that the driver provided a valid digitalized drivers licence and was also the register owner of the vehicle being operated

Line1- alerted to speeder
Line2-Lane 1- Red MV (MV stands for motor vehicle)
Line3- 129 km/h- confirmed
Line4 directly behind same
Line5- Vehicle
Line6- issued explained reduced
Line7- PON (provincial offences notice)

Notebook entry:
1845 hrs- Lidar enforcement hwy 115 O.S.M. TWP w PC -officer two's last name redacted- as operator -third officer's last name redacted- and -fourth officer's last name redacted- stopping MV’s- hwy is Highway, O.S.M TWP is Otonabee south Monaghan Township, MV’s is Motor vehicles
1947 hrs- T.S Hwy 115 NB ONT -my plate redacted- D1=DL=RO 129 km/h red Toyota -offence number redacted- - T.S is Traffic stop, HWY 115 is Highway 115, NB is Northbound, ONT is an Ontario plate -my plate redacted-, the -offense number redacted- is the offense number

Will say: I -officer name redacted- On the -offense date redacted- while conducting lidar enforcement on Highway 115 NB with P/C -officer two's first initial and last name redacted- was alerted to a speeding motor vehicle northbound in the township of Otonabee South Monaghan in the County of Peterborough. Highway 115 is a Highway as defined by the Highway Traffic Act. I was advised by P/C -officer two's last name redacted- that a red Toyota motor vehicle as defined by the highway traffic act was northbound in Lane 1 travelling at 129 km/h in a posted 100 km/h zone. I completed a traffic stop on the same vehicle, P/C -officer two's last name redacted- confirmed that I was stopped with the same vehicle. I approached the driver and demanded his drivers licence, ownership and proof of insurance for the vehicle. I confirmed the drivers identity with a valid Ontario digitalized photo drivers licence number -my DRL number redacted-, -my name and date of birth redacted-. The driver was also the owner of the vehicle, a red Toyota -model redacted- bearing Ontario marker -plate redacted-. I issued the driver a provincial offences notice for speeding 110 km/h in a posted 100 km/h zone, contrary to the Highway traffic act section 128. I explained to the driver that there were 3 options on the back of the offence notice and that if he chose option 3 for a trial the prosecutor would amend the ticket to the original speed of 129 km/h in a 100 km/h zone as this is what I would be testifying too.

Hope this helps.
-officer name redacted-
#12064"

The prosecutor then forwarded the above to me with the following message:

"Typed disclosure and will say as requested.
You also asked for both sides of the officer's copy of the ticket. You were served a copy of the front side at the time of the offence and a copy of the back was sent with disclosure. At the top of the page it states: "Enforcement Agency Notes"
Please advise if you have any further questions.
Thank you.
-Prosecutor's name redacted-, Municipal Prosecutor."

Thanks again for taking a look at this, I feel way in over my head.


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Tue Dec 15, 2015 8:36 pm 
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Joined: Thu Jul 26, 2012 1:18 pm
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Just an FYI that the Genesis II Select Directional is RADAR not LIDAR.

So I would immediately send another disclosure request and say something like the following:
- It has come to my attention that I have only received a copy of the notes from the officer who stopped me, but not the notes from the officer that apparently was using the speed measuring device. To clarify, I do plan on challenging the testimony of ALL officers involved and will need the notes (typed if illegible) from ALL officers involved in order to properly prepare my defense.
- It has also come to my attention that the manual you sent me is for a Genesis II Select Directional radar device, however PC OFFICER 1 refers to LIDAR enforcement as opposed to RADAR enforcement. I will need the make, model and serial number of the speed measuring device used, as well as the full manual for this device in order to properly prepare my defense.

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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Tue Dec 15, 2015 8:51 pm 
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And a couple more comments cross-examination:

When the officer that pulled you over is on the stand, he will pretty much say word for word what he wrote. When it is your turn to cross-examine him, the questions you can ask are:
- You stated that I was driving on a highway as defined by the Highway Traffic Act? (should answer yes)
- And you stated that I was driving a motor vehicle as defined by the Highway Traffic Act? (should answer yes)
- Can you tell me what the definition of Highway is in the Highway Traffic Act? (may or may not know it)
- Can you tell me what the definition of Motor Vehicle is in the Highway Traffic Act? (may or may not know it)
- The definition of Motor Vehicle specifically mentions some exclusions or things that are not included in the definition. Can you tell me what those are? (may or may not know)
At this point the prosecutor can choose to re-examine and ask more questions related to what you just asked. A good prosecutor will ask things like "but you know what a motor vehicle is, bla bla bla". If the prosecutor does this, then you get to re-cross-examine again and you should just ask:
- Just to clarify, can you tell me what the definition of Highway is in the Highway Traffic Act?
- And just to clarify, can you tell me what the definition of Motor Vehicle is in the Highway Traffic Act?
- Again, the definition of Motor Vehicle specifically mentions some exclusions or things that are not included in the definition. Just to clarify, can you tell me what those are?

Now of course there is a chance he may know all these definitions but there is also a chance he may not. If he can not answer one of these questions, then during your closing submissions you can say: "The officer testified that I was driving a motor vehicle as defined by the HTA on a highway as defined by the HTA, however the officer does not actually know what those definitions are and also does not know what the specific exclusions listed in the definition of a motor vehicle are. This therefore casts reasonable doubt on these elements of the defense and the charge should be dismissed."

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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Tue Dec 15, 2015 10:28 pm 
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jsherk wrote:
Just an FYI that the Genesis II Select Directional is RADAR not LIDAR.


!!!!

This is what I had assumed because of the wrong read! The highway was busy and it was dusk, and I drive a small vehicle. I am aware of the issues with RADAR accuracy (in particular picking up a specific vehicle in a group) and had assumed this was the reason the read was wrong.

But because the officer said LIDAR in his notes and because the other officer confirmed he had the "correct" vehicle, I figured it must have been some other error. As far as I know only LIDAR shows plates? Or is this incorrect? How could the officer who was using the RADAR/LIDAR confirm the other officer had the right vehicle?

And my trial is next week so I don't know if I can get more time. The date was already moved once because it was scheduled during my vacation (yes, I actually had a vacation scheduled prior to the trial being scheduled).

Edit to add: Would it not be better to say nothing about the discrepancy and then question the officer on which was actually used at the trial? No matter what, my disclosure was wrong - either it wasn't LIDAR or it wasn't a Genesis II Select Directional. Shouldn't this count as improper disclosure? Even if for some reason the JP doesn't grant a stay or dismissal due to improper disclosure (favouring the home team...), this would create huge issues for the officer's testimony. Doesn't bringing it up with the prosecution beforehand just give them a chance to fix the problem?


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Tue Dec 15, 2015 10:45 pm 
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You need to send the new request for disclosure, as you are entitled to it, even if the trial is only a week away. I would also add a request for a new trial date so that you and the officers do not need to show up to the one next week. They may or may not give it to you, and you might have to go to the trial and request an adjournment. All you can do is say that "this is all new information that you just discovered and you need it in order to properly prepare your defense so you can make full answer to the charge."

I just fax all my requests to both the Clerk of the Court office and to the Prosecutors office and I print out the "FAX SENT OK" report as proof of sending it.

The sooner you send it in the better. Worst case is you have to show up for trial next week and the JP will not allow an adjournment to a new date... you would then have an excellent chance at getting it dropped on an appeal as long as you have made the request.

And remember that both officers must be present and testify. If the officer that operated the radar/lidar is not there, and they try to proceed, then there is no proof of your speed. When the first officer is testifying that the other officer told him you were speeding you can also say "objection - that is hearsay evidence and is not admissable".

You could also complain that the prosecutor should have sent you the notes of both officers to begin with.

The evidence of the officer pulling you over saying that it was LIDAR is not really an issue because he may not know anything about radar or lidar, and does not have to know anything about. So you could not say anything about, but if it was me, I probably would. You can not question the other officer unless you get his notes and know what kind of unit they were using. I usually do not try to tell the prosecutor of any errors they have made, but in theory the JP could just blame you because you did not ask for it.

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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Wed Dec 16, 2015 11:15 am 
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Joined: Wed Mar 30, 2011 1:08 pm
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Location: Ontario
So the story I am getting is this: (Please confirm)

1. You got a ticket that was reduced.
2. The officer who pulled you over and gave you a ticket was not the one who measured you speed and they were in hidden somewhere else.
3. You got disclosure showing that the unit was tested at the start for the shift (presumably by the officer who measured you speed).
4. You got disclosure from the officer who pulled you over and gave you the ticket (I don't see a time written on these notes that correspond to the other officer's notes). He says they were performing lidar enforcement.
5. Part of your disclosure is the testing procedure for the wrong speed measuring device. (as pointed out by Sherk)


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Wed Dec 16, 2015 5:08 pm 
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ynotp wrote:
So the story I am getting is this: (Please confirm)

1. You got a ticket that was reduced.
2. The officer who pulled you over and gave you a ticket was not the one who measured you speed and they were in hidden somewhere else.
3. You got disclosure showing that the unit was tested at the start for the shift (presumably by the officer who measured you speed).
4. You got disclosure from the officer who pulled you over and gave you the ticket (I don't see a time written on these notes that correspond to the other officer's notes). He says they were performing lidar enforcement.
5. Part of your disclosure is the testing procedure for the wrong speed measuring device. (as pointed out by Sherk)


1. Yes
2. I saw neither until I was pulled over. The officer who pulled me over asked "did you see my partner on the bridge?" I said no. He didn't ask or say anything else regarding his partner at the time.
3&4. The disclosure above is all the notes of the officer who pulled me over, not the officer who was using the radar device. There are no notes from the officer who was using the radar. Please note that I realized due to your post that the image ending in 004-opt.jpg (with the start of shift notes) might have been a different officer (as the ticketing officer who typed out the rest of the notes did not provide a typed copy of this page, and the writing is slightly more legible). But I double checked and the business card is the same as for the other pages.
5. According to the notes on the page ending in 004-opt.jpg, if you look in the section for 1725 you will see it is written that they tested a Genesis II Directional by Decatur Dual Ant...something. So I believe it was a Genesis II Directional and not actually LIDAR


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Wed Dec 16, 2015 5:45 pm 
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jsherk wrote:
You need to send the new request for disclosure, as you are entitled to it, even if the trial is only a week away. I would also add a request for a new trial date so that you and the officers do not need to show up to the one next week. They may or may not give it to you, and you might have to go to the trial and request an adjournment. All you can do is say that "this is all new information that you just discovered and you need it in order to properly prepare your defense so you can make full answer to the charge."

I just fax all my requests to both the Clerk of the Court office and to the Prosecutors office and I print out the "FAX SENT OK" report as proof of sending it.

The sooner you send it in the better. Worst case is you have to show up for trial next week and the JP will not allow an adjournment to a new date... you would then have an excellent chance at getting it dropped on an appeal as long as you have made the request.

And remember that both officers must be present and testify. If the officer that operated the radar/lidar is not there, and they try to proceed, then there is no proof of your speed. When the first officer is testifying that the other officer told him you were speeding you can also say "objection - that is hearsay evidence and is not admissable".

You could also complain that the prosecutor should have sent you the notes of both officers to begin with.

The evidence of the officer pulling you over saying that it was LIDAR is not really an issue because he may not know anything about radar or lidar, and does not have to know anything about. So you could not say anything about, but if it was me, I probably would. You can not question the other officer unless you get his notes and know what kind of unit they were using. I usually do not try to tell the prosecutor of any errors they have made, but in theory the JP could just blame you because you did not ask for it.


First of all, thank you for your detailed responses. I understand what you are saying, I think, but I don't understand the reasoning behind your advice to request more disclosure and ask for an adjournment to a later date. Rather than point out all of the mistakes the prosecution (as a whole) has made, would it not be better to go to trial next week as is?

If the officer who was using the RADAR device is not there, then there is no proof of my speed (as per above) and the charges should be dismissed since there is no case. If he is there and the prosecuation attempts to have him testify, I can argue that my disclosure specifically requested information on who the witness(es) were and as such I had incomplete disclosure which infringes on my rights. Either way as I understand the strict and literal nature of the courts, this should be the end of it with a stay as per section 7 of the charter. If the JP allows the RADAR operator's testimony, or worse if the JP accepts the hearsay evidence, then there is still a lack of evidence due to no evidence of an end of shift test (section 7 again). This should be enough to end the case, or at the very least get an adjournment, but in doing it this way the adjournment is the fault of the prosecution rather than mine, which would then allow me to seek a stay due to the same reasons that are the basis for charges being dismissed when an officer doesn't show up to trial - I need to find where I read this but I believe it's basically about how I've already - before I've even had a chance to defend myself in court - been penalized by two days of lost wages and a full tank of gas (over two trips) plus 4 hours travelling to and from the courtroom, all due to sloppy prosecution (of course I won't say it quite like that in court).

Of course, if the JP is one of the types who isn't as impartial as might be hoped, he could find me guilty despite the fact that I can only be found guilty with evidence that is inadmissible. But in such a case aren't I more likely to win on appeal due to the fact that the JP ignored my rights (section 7 at the least)? Compared with requesting an adjournment beforehand and giving the prosecution the opportunity to fix all the mistakes. If the prosecution was to fix the two major errors above (only one officer testifying and no proof device was tested at end of shift), then my case hinges on subjective factors and basically boils down to the officer's competency, which is much more difficult to challenge.

Basically, right now I can go to court having been provided with disclosure that is either incomplete (as in, the prosecution has more evidence that wasn't provided, and neglected to tell me contrary to my requests), or complete but inadequate to prove guilt (as it is based on hearsay and even with the hearsay does not show that the device's testing requirements were fulfilled). Either way it's an objective error, and should not be ignored by the JP. If I delay and get more disclosure then the disclosure issues may be resolved and I in that case I need to cast enough doubt about the competency of the officers, something which is subjective and far from a sure thing.

What, if anything, am I missing/misunderstanding in my analysis above?


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Wed Dec 16, 2015 6:06 pm 
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Joined: Thu Jul 26, 2012 1:18 pm
Posts: 1722
There is always more than one way to do things. My advice is just my opinion and how I would probably handle it. But you are definitely thinking things thru, so I can see that you could have some success with your method as well. And you would definitely have some good reasons for appeal if the JP allows the trial to go thru as well.

I really don't see any glaring issues with what you are saying, I would just handle it differently.

I look forward to your update of how it all goes.

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


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Re: 29km/hr over reduced to 10km/hr over
PostPosted: Thu Dec 17, 2015 9:41 pm 
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Joined: Mon Dec 14, 2015 11:17 pm
Posts: 12
jsherk wrote:
There is always more than one way to do things. My advice is just my opinion and how I would probably handle it. But you are definitely thinking things thru, so I can see that you could have some success with your method as well. And you would definitely have some good reasons for appeal if the JP allows the trial to go thru as well.

I really don't see any glaring issues with what you are saying, I would just handle it differently.

I look forward to your update of how it all goes.


Okay. I'm doing my specific research and preparing my specific arguments and cross-examination questions now (I realize I probably should have done this months ago). I have a couple of questions:

1. If the prosecution attempts to do something that I object to (for example, attempts to introduce evidence not provided in my disclosure), how exactly do I go about objecting? Do I interrupt and say "Your worship, I object - this evidence was not provided in my disclosure" or do I wait?

2. If, when the officer is on the stand and I am cross-examining him, he answers a question incorrectly, how am I allowed to proceed? I know that cross-examination is not my time to present my side of the story. For example, in the officer's notes it says I was driving in lane 1, which I presume to be the left lane because that's the lane I was in when he put his lights on. If I ask the officer "did I pull over to the left or right side of the road" he won't remember, so he may guess it was the left since I was driving in lane 1. What do I do in this case? If the JP decides against me in re: to allowing the hearsay evidence with reduced weight, this will likely come up as I legitimately did not realize I was being pulled over at first, I thought the issue was I was clogging the left lane. So I pulled ahead of the two cars on my right which were traveling basically the same speed and changed to the right lane first - then when I realized he wanted me specifically and so I pulled over to the right. This is relevant because it demonstrates that the highway was reasonably busy and I was not the only car in the general vicinity. But if the officer says "you pulled over to the left" then the whole line of questioning falls apart (unless I can correct him).

3. A couple of major assumptions is making in my defense is that a) the officer who ticketed me cannot use the other officer's word that I was speeding and b) there is no proof that the radar device was tested at the end of shift. I understand these must have basis in existing case law - do you have specific cases I can cite or even better can you tell me how to find the cases on my own? Similar to this, where can I find the essential elements of what needs to be proven for a violation under 128 of the HTA? I looked up the section in the HTA and it's clear as mud...

I may have more questions once I'm further along with this...thanks again for all of your help and advice/opinions.


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