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Adjournment due to improper disclosure, but only one week!
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PostPosted: Fri Jan 18, 2013 3:41 am 
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Joined: Thu Mar 01, 2012 12:47 pm
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I've got a speeding ticket (82km/h @ 60 zone) back in February 26th 2012 and got the notice of trial in August. I have since faxed three separate disclosure requests (without leaving telephone number) with no response. I had my first hearing today at Toronto East. Here's what happened.

The cop was at the room. When I checked in with the prosecutor, he tried to intimidating me by saying I have a "massive speeding charge" (!) and I was "playing nasty" by not leaving a telephone number on the disclosure request. He had the photocopy of the ticket and officier's note ready for me as disclosure and told me I had 15 minutes to review it and prepare for the trial. I told him that it's not acceptable since I would not have the ability to full answer and defence to the charge, and that I'm not obliged to provide my telephone number as long as I left a way for him to reach me (my mailing address). He said "Yes you are. Then why did you even leave your fax number (pointing the header callerID of his copy of the request, which is my company's fax number)" which made no sense to me. Then he threatened if I didn't take the it he would mark it as a refusal of disclosure. I replied I could take it now but I would complain the matter to the justice. He marked down the date and time as I took it.

When it was my turn for defence, I motioned for an adjournment and requested the delay be attributed to the Crown. The prosecutor argued that I didn't provide telephone number so he couldn't reach me even the disclosure was available since early December. I then argued that I have provided my full mailing address in all the requests and an effective channel of communication had been established. He pushed further and said that I need to provide a telephone number in my requests and insisted the trial to proceed. After I replied that there's no law pertaining the requirement of phone number in disclosure requests, and that if he really needed my telephone number, he could have written to me and asked for it. The JP chimed in, and to my surprise, asking me if there's any case law stating that without a telephone number is OK (What? I just said I have not known of any, how can you proof the absence of something? Isn't it the burden of the Crown to proof otherwise?!!), and said that it would cost tax-payers money (!) for the prosecutor to mail me asking for my phone number. The delay was attributed partially to me as the prosecuted later requested. :cry:

I was only given 7 days (Jan 24th) for the adjournment, which the prosecutor mocked that he ensured the defendant a speedy trial. When the JP asked me if I'm OK with the date, I replied I may need more time because not everything I requested was in the disclosure and I would need a follow-up request. Even before I have finished my sentence, she shouted "What?!" and go on saying a speeding charge is a straight-forward charge and 7 days is more than enough, and that "I looked like an highly-educated and smart guy" :shock:. When I finally had my chance to finish my sentence, the prosecutor offered to have the officer explaining his notes, and providing a copy of the testing chapter of the lidar.

Sorry for the long intro. Here's the officier's note and his explanation:

- Sunday mX (male driver with no passengers)
- U/81 (uniformed, on cruiser XX81)
- Stat. enf. WS traffic (stationary enforcement/facing west-bound traffic)
- posted 60 zone
- UL LRB L71 2020 UX021171 (lidar model and serial number)
- tested. Q (Tested. Qualified. When I asked him about the time, he said he didn't write it down and suggested I may use this to quash the ticket)
- a silver car leading L2 (lane 2)
- 82km @ 153.1m
- S/L pulling O/F driveway of 3190 (Cruiser at single lane pulling out of driveway of 3190 Steeles Ave E)
- silver car slowed down right away, v.s.
- v.s. [3 check marks] (Insurance, ownership and sticker are all OK)
- [my car's make, year and model]

Since my 2nd hearing is still less than 11 months (for which I honestly don't really anticipate) from filing, my only resort is the defence itself. My questions are:
- Is testing time necessary? I know of the "standard practice" counter-argument, but as an independent recollection of event isn't that it's reasonable to recall the approximate time of that particular test instance?

- From the sequence of how the testing part was written, it can't be told whether any testing at the end of the shift was done (i.e. one cannot write such during the pullover and imply that he will have the test done afterwards). Is testing at the end of the shift necessary?

- What if the officier read out from a memo book which isn't disclosed to me? Is the officier allowed to read up/memorize anything not disclosed to me (e.g. his memo) beforehand and recites them while testifying without referencing?

- In the lidar manual's instrument tests section, there's a Fixed Distance Test which recommends precisely 60m from the test target to the lidar. Is this 60m standard always observed? Is a tripod used? The reason I'm asking is that the manual states the read distance should be from 59.8m to 60.2m in order to be considered pass if the target is 60m away. As a result the tolerance of 0.33% (0.2/60). This tolerance is only as good as how accurate the lidar is placed. e.g. if a faulty lidar that would have read out 60.3m in ideal setting, it would read a passing 60.2m if the lidar were to place -0.1m from the mark. The shorter the testing distance, the less the absolute tolerance (e.g. 3.3cm for a 10m target). In such case almost any body movement from hand-holding would yield this error unless the device is put onto a stationary tripod.

Thanks!


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Re: Adjournment due to improper disclosure, but only one wee
PostPosted: Fri Jan 18, 2013 9:02 pm 
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Joined: Wed Sep 19, 2012 1:44 am
Posts: 1062
erlkonig wrote:
When it was my turn for defence, I motioned for an adjournment and requested the delay be attributed to the Crown. The prosecutor argued that I didn't provide telephone number so he couldn't reach me even the disclosure was available since early December. I then argued that I have provided my full mailing address in all the requests and an effective channel of communication had been established. He pushed further and said that I need to provide a telephone number in my requests and insisted the trial to proceed. After I replied that there's no law pertaining the requirement of phone number in disclosure requests, and that if he really needed my telephone number, he could have written to me and asked for it. The JP chimed in, and to my surprise, asking me if there's any case law stating that without a telephone number is OK (What? I just said I have not known of any, how can you proof the absence of something? Isn't it the burden of the Crown to proof otherwise?!!), and said that it would cost tax-payers money (!) for the prosecutor to mail me asking for my phone number. The delay was attributed partially to me as the prosecuted later requested. :cry:


You really got suckered into this one. You should have explained that there was no need for the prosecutor to make contact with you. Did he even explain what the reason was for needing to contact you by phone? You were not interested in having a conversation with him, nor or you obliged to. You requested disclosure and that is that. Either they have it, or they don't. If there is a discrepancy in what is to be provided, it's a Judge that will make the decision on whether its to be provided, not the prosecutor. What other reason do they have to make contact with you? To pick up your disclosure? You didn't pick up your ticket nor did you pick up your notice of trial. Everything up to that point has been done by mail. Why would it be unreasonable to have the prosecutor mail you some papers? It's only a burden on taxpayers up to the point where you try to defend yourself? Should we start requesting to be sent disclosure via email and converted to PDF? It's up to you to find case law that says why a phone number isn't sufficient? That's like me trying to send an elephant with a note up his butt and telling the courts "well, you find case law that says I can't". Mail is perfectly sufficient and it isn't up to you to prove why other means are not. Why on earth is it unreasonable to expect COPIES of notes sent through mail? What purpose does the phone serve?

Sorry, I really can't add much more. Hopefully others will chime in and help you out before your trial in the next couple days.


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Re: Adjournment due to improper disclosure, but only one wee
PostPosted: Thu Jan 24, 2013 6:58 pm 
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Joined: Thu Mar 01, 2012 12:47 pm
Posts: 4
So this is what happened during the 2nd hearing:

I did my homework for the full defence - mainly pinpointing on the fact that the officer didn't write on his note the specific time of testing nor any tests done after the stop. I printed out about 100 pages of case laws (notably R v. Schlesinger, R v. Zhu, and R v. Martin) and prepared a list of cross-examination questions.

I was there for the 3pm session. The previous 1:30pm session was running late. The cop shown up (later I found out he's here just for my case as we left right after my case :( ). When I checked in with the prosecutor, she offered me 15km/h over. I asked if she could offer me a non-moving violation but she couldn't do it for a speeding charge. I told her I was up for the trial.

Everything was behind schedule and the JP didn't come in until 3:30pm. After most of the guilty pleas and one (successful) 11(b) applications, my name was called. I was a bit surprised because there're still a few more guilty pleads to be done. Apparently the prosecutor misread the docket thinking I had 2 charges and going to pleaded guilty for a reduced charge. After noticing her error and realizing that I'm there only for one charge and up for a trial, she motioned the trial be adjourned to a later date because "we're running out of time".

Seeing the JP was sympathetic along the way (he gave a suspended sentence to a pregnant lady's failure to obey police instruction charge because she had no job, and was going to China in 2 months for a few years; he also slashed the reduced fine in half for a student on OSAP), I took a long shot and object.

I told the JP that it's already my 2nd hearing there, and went on explaining the whole improper disclosure fiasco I endured last time. The JP then questioned the prosecutor "how come I'm not learned about that. When did you submitted your first disclosure request again?". The prosecutor flipped through my requests "He.... did... submitted his request on Oct... 5th... and... he received... the disclosure on... um... Jan... 16th". "That was the date of the first hearing, my Worship" I said. I went on to say "As a professional engineer, the financial loss I'm suffering by skipping work and going to trial three times would way exceed the face of the ticket. In my opinion, the only remedy is a stay of the proceeding." The JP cut me short and said "OK." I really thought it was a long shot anyhow and prepared to listen carefully how long they're going to adjourn me.

"I order that the charge be dismissed" :shock: For a brief moment, I couldn't belief what I was hearing and frozen still. "Yes, you're free to go," the JP gave me a big smile. I bowed and thanked him and while on my way out of the courtroom, I felt like I was eye-saluted by the fellow defendants and paralegals (whom I met again since my first hearing). :mrgreen:

Guess I got myself lucky. If the trial were to be adjourned, I would have to go there again for the defence, or spend a whole good day filing 11(b). It's my first time to fight a ticket and it was well worth it! (Well, as for "court training" if you're up for it. Nonetheless the best thing to do is to avoid traffic tickets at all cost to begin with :wink: )


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Re: Adjournment due to improper disclosure, but only one wee
PostPosted: Thu Jan 24, 2013 7:40 pm 
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Joined: Wed Sep 19, 2012 1:44 am
Posts: 1062
Congratulations. You really got a raw deal the first time around. It's good to see everything worked out in the end.

Your best move was interjecting before another date was set and explaining how both adjournments were not due to anything you had done. Had you kept quiet, you would have been doing it all over again. Good move.


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