80 in a 60, disclosure not very helpful

So happy to have stumbled across this site! I have been looking for a while for a site as useful as this with updated info as every other site I have come across has posts and info that is over 4 years old.

I have quite the record of speeding (6+ convictions in 12 years driving) and only recently understood that by accepting a guilty plea with reduced fine and demerit points I was admitting my guilt. This time around I'd like to go to court to dispute my charge as I disagree the speed I was going and I don't think the reading on the radar was accurate.

I got a ticket a couple months ago for speeding, 80 km in a 60 km zone, and I was very surprised he said I was going 80, he showed me the reading. I was coming toward him down a hill and he was standing on the sidewalk. I was going EB on Steeles after having turned from Islington, and moved over to pass the car in front of me. I requested my disclosure and it was ready for me 3 days later, which I was surprised about, but once I saw what was given to me, I am confused as it is not very helpful to me in any way. I requested officer notes, documentation of the model of device used, and any witness statements. As with some other posts, all I got was a computer copy of the front of my ticket and 5 photocopied pages from the UltraLyte user's manual on testing the device. Now I would like to know the following:

- Based on the instruction manual, it states that to test the device, NONE of the following conditions should be present DURING TESTING (which I also would assume is necessary during use):

- "make sure there is nothing behind the target that the instrument might detect" -- there was a car beside me on the right (the side the officer was on) a car behind me and a bridge above me

- during scope alignment, a tripod is recommended and the target should be reflective and at least 200 M away -- no tripod was used

- Delta Distance Test results (which I believe was the type of reading taken) indicate that based on the difference output by the device, that is the distance that you required to be at to obtain an accurate reading (with a differential range of 0.3 M) -- impossible for him to prove that my speed was recorded at EXACTLY that distance and within the discrepancy range as I was on a different vector than him

- He informed me that I was being recorded (audio) -- I was not provided with a transcript of what was said (audio only, no video, noted on the disclosure)

Based on the above, plus the photograph I have taken of the area where I was ticketed and where the officer was standing in comparison, do I stand a chance to have my ticket quashed? I am not rich and cannot afford a paralegal or representation and I believe that I am capable of defending myself and the facts I have noted above seem to indicate that my ticket is not "accurate". Should I be requesting further disclosure to show the testing results from the machine from that day as well as my audio transcript? I would also like to know what the little abbreviations he has at the top of the ticket copy mean...if anyone knows

fd ID3 mpp3, grey ford h/b, 80 @ 238.8 L2, s c d, ULLRB

The red part I obviously know is my car, but other than that I'm not sure.

Any and all advice is welcomed and I thank you in advance for reading this!!

bee_bee wrote:

fd ID3 mpp3, grey ford h/b, 80 @ 238.8 L2, s c d, ULLRB

The red part I obviously know is my car, but other than that I'm not sure.

80 @ 238.8 = Speed and distance. I'd assume it's in metres.

L2 = Lane 2

S C D = Probably Sunny, Clear, Dry

Using the device on a hill/turn/etc benefits the driver. The speed will read lower than you're moving so arguing it's inaccuracy would be arguing that you were going even faster than recorded.

They don't need to provide you with the entire manual, they usually just give you the testing portion. Also, i'm not sure what witness statements you were expecting. I'm also not sure what you were saying with the police audio, whether you received anything or were expecting transcripts. IF there is an audio recording available, it should be provided. If you received a recording and are expecting a written transcript, you're not going to get that.

If you are unclear about anything in your disclosure, you can always make a second request for clarification.

Thanks for the reply @bend I will clarify some of the things you mentioned.

I did not want the whole manual, I didn't even think they were going to let me have a copy, I was just expecting a bit more DISCLOSURE...it was weird to me that I had to drive allll the way there only to pick up 5 photocopied pages, one of which was a copy of my ticket, and that to me, isn't really proof of anything...that's the point of obtaining the disclosure right? To see the proof they have that I was speeding OTHER than what the officer says?

I will ask for further disclosure for the testing of the unit, which is really the only other thing I was expecting to see. Also, the "witness statements" was the passenger also said a few words to the officer, ("hey, hows it going"), so I was just curious if he would be considered a witness, but for a speeding case it's obviously not necessary. So that means the statements I made to the officer when it was recording my speech are not going to be used in court, otherwise they would have had to provide me with a copy of what was said, so that's fine.

The hill thing I pointed out above is more for determining accuracy of the reading. Why does the manual not state to test on a hill? Or a curve? Because it's not going to be accurate when testing in these situations, so therefore should NOT be used as an accurate speed measurement device to determine speeds on these types of terrain. Whether it is to the benefit of the driver or officer, these devices shouldn't be used to test speeds on hills. Just my opinion, which will not change anything.

Thanks again for your help!!

That is a VERY popular speed enforcement point for TPS: https://goo.gl/maps/7om1P

I see them there almost every single day, i'm surprised you were able to speed up that quickly after making a left turn. It's best to drive at or below the speed limit here at all times especially going eastbound.

As for your hill argument, it's a pretty shallow grade there so doubtful whether you have a leg to stand on.

You're describing how the unit should be tested, not how the unit should be used. Those are both independent of each other. The speed measuring devices are designed to be used in handheld mode.

Did they give you the officer's notes where he recorded that he tested the unit?

iFly55 wrote:

That is a VERY popular speed enforcement point for TPS: https://goo.gl/maps/7om1P

I see them there almost every single day, i'm surprised you were able to speed up that quickly after making a left turn. It's best to drive at or below the speed limit here at all times especially going eastbound.

As for your hill argument, it's a pretty shallow grade there so doubtful whether you have a leg to stand on.

You're describing how the unit should be tested, not how the unit should be used. Those are both independent of each other. The speed measuring devices are designed to be used in handheld mode.

Did they give you the officer's notes where he recorded that he tested the unit?

YES!!!! I used to drive that way almost every day (now take the 407) and I know that spot....that's why I am saying I KNOW I wasn't going 80, I never drive faster than 70 along Steeles, especially during the daytime.

I get it now....once it's been calibrated to 0 the unit is ready to measure at any given distance, it doesn't have to be at that exact specification to determine accurate speeds. I thought that since you have to test at that distance, it can only be accurate at that distance or within a small margin of differential. Now I understand it though

No, they did not, I am sending in my request for further disclosure today to request the unit testing from that day. Once I get it, I will see what it says he did or didn't do.

Also maybe check the CanLII sight (www.canlii.org) for case law regarding disclosure of the officer's notes where the unit was tested.

In some cases where it wasn't included, the charges were dismissed or stayed. However, the officer does have the option of testifying that it is his/her "usual practice" to test the device before/after. It does, though, make the Prosecutor's case just a little bit harder (not a slam dunk for you, though, just a small issue for them).

bee_bee wrote:

I get it now....once it's been calibrated to 0 the unit is ready to measure at any given distance, it doesn't have to be at that exact specification to determine accurate speeds. I thought that since you have to test at that distance, it can only be accurate at that distance or within a small margin of differential. Now I understand it though

On right track.

Since this is lidar, it calculates speed using time and distance (radar is different).

In general terms, in testing, you shoot a fixed object at a known distance which was measured by tape, the lidar will measure that distance and should show the operator the same distance or very close to it, therefore we can tell the lidar is measuring distance correctly. The lidar beam goes out at a constant frequency and strikes a stationary object during the test, reflects back at the same frequency and should be 0 km/hr. Hence, the lidar has now measured a distance, it knows how long (time)the beam took to go out and return.. Once time and distance are known speed can be calculated

Radar Identified wrote:

Also maybe check the CanLII sight (http://www.canlii.org) for case law regarding disclosure of the officer's notes where the unit was tested.

In some cases where it wasn't included, the charges were dismissed or stayed. However, the officer does have the option of testifying that it is his/her "usual practice" to test the device before/after. It does, though, make the Prosecutor's case just a little bit harder (not a slam dunk for you, though, just a small issue for them).

wow!!!! This is one of the most amazing sites I have ever been referred to!!! Thank you! I LOVE reading case law stuff!!!!!

Also, still waiting on the 2nd disclosure to be ready

iFly55 wrote:

That is a VERY popular speed enforcement point for TPS: https://goo.gl/maps/7om1P

I see them there almost every single day, i'm surprised you were able to speed up that quickly after making a left turn. It's best to drive at or below the speed limit here at all times especially going eastbound.

I wish someone told me this before my trial. This is exactly where they accused me of speeding... they just wait under a hill and claim they are enforcing 'safety' by hiding behind the bridge while the cars momentum takes them past the speed limit.

Now, 18 months later... I may finally get that charge dismissed...

For your non-test issue, it is probable that he didn't 'record' any of his tests. So you can use the following case laws (however, it is not guaranteed the JP will accept it)

R. v. Schlesinger, 2007 ONCJ 266 (CanLII)

https://www.canlii.org/en/on/oncj/doc/2 ... pletePos=1

And if you're feeling lucky, the one that will REALLY help your case is R v Niewiadomski [2004] OJ No 478. It's hard to find online, at least via free resources probably due to the fact that if we had open access to a Justice saying that test times are required, a significant portion of speeding tickets would get thrown out.

"Justice Schnalls ruling indicates that notations of the tests done are required for proof beyond a reasonable doubt."

Also, when they argue (which they most certainly will) that 'usual practice' is sufficient. Make the statement... "Saying that the devices were tested because it is 'usual practice' is the equivalent to me going under oath and saying I do not believe I was speeding because it is my 'usual practice' to go under the speed limit. It may very well be 100% true but cannot prove, beyond a reasonable doubt that the device was working on a particular day."

Then, continue to argue that the law should be consistent and transparent, and if usual practice would suffice for a murder trial to ensure the gun was not tampered with after being placed in evidence - hint: It won't. They try to treat it as if it's less of an issue because the offence is minor, but the law is the law - and you can't twist it for the offence. Don't let them try to fool you and impose the balance of probabilities of a civil case, with the 'beyond a reasonable doubt' of a criminal case. The prosecution has a significantly higher burden in criminal/provincial offences - such as speeding tickets.

Good luck, I would suggest finding R. V. Niewiadomski (2004) because no matter how bias the JP, he cannot simply ignore the decisions of a Justice, especially without case law from the prosecutor.

found this

Question 2) Can this court accept the officers statement that it is his usual practice to test a laser device before a speed enforcement stop, as proof that he did so?

In R v Lounsbury [1993] MJ No 510, Manitoba Court of Queens Bench Justice Jewers commented on the issue of usual practices. At paragraph 2 the court, when referencing the practises of the police officer who conducted that speed enforcement stop, stated:

"He did say that prior to operating any radar unit he conducts a test to see if it is in working order and after issuing of an offence notice he rechecks to make sure that the machine is still in working order. I take that to be evidence as to his usual practice. He also said that, in this case, he made a note in his notebook that he had performed a test or tests but he did not note the time of the test or tests."

The court continued:

3 "Evidence as to a particular practice or a standard practice is not proof beyond a reasonable doubt. See the decisions of Kroft J. (as he then was) in the cases of R. v. Jabs (November 19, 1991) (Man. Q.B.) (unreported) and R. v. Wolf (December 8, 1992) (Man. Q.B.) (unreported) and the decision of Beard J. in R. v. Kraemer (February 17, 1993) (Man. Q.B.) (unreported). In Wolf, Kroft J. stated in part:

• "Nonetheless, if we have a situation where testing is a prerequisite, and if the officer, and only witness, obviously cannot say any more than what his common practice is, I cannot take that as a proof of testing. ..."

4 In the instant case there is something more than the evidence of the operator's usual practice: There is an indication in his notes that he did, in fact, perform a test or tests, although the time or times of the tests were not noted and are not known.

5 In my opinion, all that can be safely inferred from the evidence is that the officer did test the radar device and found it to be in good working order at some point or points during the relevant shift. In my opinion that is not enough proof to demonstrate beyond a reasonable doubt that the device was working at the time of the alleged offence."

In my view, these findings apply equally to laser devices, in Ontario.

Cheers

Stripe

You guys are awesome!!! I've read a few on CanLII that have the same as above noted, so I will definitely be using these cases at my trial

It's also been 3 weeks since I requested the additional disclosure and haven't gotten anything yet (first disclosure was ready 4 days after my request), so I'm thinking there are no notes for me

THANK YOU THANK YOU THANK YOU!!!!!!

Update!!

So I had my trial today, first time ever representing myself and I'm very proud of what I learned and how much more I understand how this whole process works.

I will start with the verdict:

Guilty

I had a notebook with questions, statements and my closing argument for 4 different scenarios, I had copies of case law and photographs for evidence.

The prosecutor looked like she had no soul and immediately tried to intimidate me. She was trying so hard to convince me I don't want to get the points, and I insisted I wasn't interested. I told her I didn't get my disclosure so I was going to request an adjournment. She told me I wasn't getting anything else bc there was nothing else to give me. I said fine and sat down. Then she calls for my officer, not there, gets lagged, walks in. They whisper and she asks if I'd like to review the officers notes. I said no and she chuckled and said, are you sure that you don't want to look them over? So I was quite rattled at that point and I scrambled through my notes to figure out which scenario I was going with. Then I started to panic and it was all downhill from there. I figured if I did the adjournment thing and she told the jp what she told me that there was nothing else, he'd say, ok we're proceeding with the trial then. Note: my first disclosure stated there was no officer notebook with evidence, so on my 2nd request I asked for the testing results from that day and an explanation what the short form he used was bc I couldn't figure out a couple of them.

So I go up, notes out and I literally forget everything. My notes were sooo clear and concise and highlighted to the points...so it started and she asked the officer a lot of questions I was going to ask, and that made me lose all remaining confidence that I had a shot at it. I went after the fact there were no testing notes. However in his testimony he was reading a fully written speech, sorry, statement. He read it as if he were reading a story to children. He didn't recall many things but he did happen to recall that he did test it before and after his shift. Not documented anywhere bc it's his "standard practice"...such was one of my scenarios. At this point I should have entered the picture of where the officer was and where he allegedly targeted me. According to the distance calculator I used, it was impossible he got me when he did, not to mention I was changing lanes when he got me, do there was a car between me and the lidar. He didn't recall. I asked a few more questions and then I was done. The jp asked if I was going to testify and I said no and he was shocked.

Then the crown said her piece, I gathered my pages to combine the closing of the lack of disclosure scenario with the violation of my charter rights scenario, I start to read, then I lost my place when I looked up. I was so upset! he takes 5 minutes to make a decision, and says that if the officer says he tested it properly and it was functional, the officer's word is enough proof for him, and he finds me guilty.

I'm not surprised, but I am disappointed. I did mess up but at the same time, I feel the jp was prejudiced. Appeal? Yes? No? Waste of time and money? Fine is $90 + $20, due in 60 days. I currently have 4 speeding convictions, plus this one, and 1 comes off July, another in October. My insurance renews in October and they haven't checked my abstract in 3 years, so I've been very lucky, but I feel my luck is running out and they'll check it this year. I also have 1 accident on file according to them which just came off, no speeding. By the time they check they'll see 4, which is bad.

Wah thank you everyone for your advice and info, it was a fun experience and I hope to never do it again. I'm a patient driver now.

bee_bee wrote:

Appeal? Yes? No? Waste of time and money?

That's entirely up to you.

That being said, appeals aren't do-overs. You'll have to provide a suitable argument during your appeal. The fact you were overwhelmed the first time around isn't going to get you another trial.

Yes, there's going to be more money involved. Your trial will be transcribed and you'll need to pay for the transcriptions. You can probably expect to pay something in the $100 range.

bee_bee wrote:

Update!!

So I had my trial today, first time ever representing myself and I'm very proud of what I learned and how much more I understand how this whole process works.

I will start with the verdict:

Guilty

I had a notebook with questions, statements and my closing argument for 4 different scenarios, I had copies of case law and photographs for evidence.

The prosecutor looked like she had no soul and immediately tried to intimidate me. She was trying so hard to convince me I don't want to get the points, and I insisted I wasn't interested. I told her I didn't get my disclosure so I was going to request an adjournment. She told me I wasn't getting anything else bc there was nothing else to give me. I said fine and sat down. Then she calls for my officer, not there, gets lagged, walks in. They whisper and she asks if I'd like to review the officers notes. I said no and she chuckled and said, are you sure that you don't want to look them over? So I was quite rattled at that point and I scrambled through my notes to figure out which scenario I was going with. Then I started to panic and it was all downhill from there. I figured if I did the adjournment thing and she told the jp what she told me that there was nothing else, he'd say, ok we're proceeding with the trial then. Note: my first disclosure stated there was no officer notebook with evidence, so on my 2nd request I asked for the testing results from that day and an explanation what the short form he used was bc I couldn't figure out a couple of them.

So I go up, notes out and I literally forget everything. My notes were sooo clear and concise and highlighted to the points...so it started and she asked the officer a lot of questions I was going to ask, and that made me lose all remaining confidence that I had a shot at it. I went after the fact there were no testing notes. However in his testimony he was reading a fully written speech, sorry, statement. He read it as if he were reading a story to children. He didn't recall many things but he did happen to recall that he did test it before and after his shift. Not documented anywhere bc it's his "standard practice"...such was one of my scenarios. At this point I should have entered the picture of where the officer was and where he allegedly targeted me. According to the distance calculator I used, it was impossible he got me when he did, not to mention I was changing lanes when he got me, do there was a car between me and the lidar. He didn't recall. I asked a few more questions and then I was done. The jp asked if I was going to testify and I said no and he was shocked.

Then the crown said her piece, I gathered my pages to combine the closing of the lack of disclosure scenario with the violation of my charter rights scenario, I start to read, then I lost my place when I looked up. I was so upset! he takes 5 minutes to make a decision, and says that if the officer says he tested it properly and it was functional, the officer's word is enough proof for him, and he finds me guilty.

I'm not surprised, but I am disappointed. I did mess up but at the same time, I feel the jp was prejudiced. Appeal? Yes? No? Waste of time and money? Fine is $90 + $20, due in 60 days. I currently have 4 speeding convictions, plus this one, and 1 comes off July, another in October. My insurance renews in October and they haven't checked my abstract in 3 years, so I've been very lucky, but I feel my luck is running out and they'll check it this year. I also have 1 accident on file according to them which just came off, no speeding. By the time they check they'll see 4, which is bad.

Wah thank you everyone for your advice and info, it was a fun experience and I hope to never do it again. I'm a patient driver now.

You can appeal on the basis of lack of incomplete disclosure which caused you to be mislead at trial. I don't know how strong of an argument it will be in the appeal, but if you do your research and cite the proper case laws, you may stand a chance. When you appeal, you're infront of a real judge, and not a JP. I've already cited this in length, so I don't want to go over the whole argument again, but here's the post: http://www.ontariohighwaytrafficact.com/topic7073.html

Read it, and you can understand the argument you're making at appeal. It's obviously going to be a little different, because your argument isn't going to be to exclude the test times during the trial - you're going to have to argue that you were mislead, and the crown purposely tried to mislead you with the lack of disclosure. You can also argue that the evidence should be excluded (as mentioned on that link) but it's going to be harder to get evidence excluded for a new trial, it's much easier if the trial is immediate, or, in that case, the trial had already commenced when they attempted to disclose 'new evidence'. Lastly, you can cite the POA regarding appeals, and argue (as is done in the Mangov decision) that significant course resources and time has already been consumed, and it would not satisfy the ends of justice to order a new trial. There's a case to be made here, how strong? I'll leave that up to you. Read the previous comments I made, and decide if you want to appeal. Remember - appeals cost money, you have to pay for transcripts... but that's about it... it's pretty time consuming too, but if you're motivated, it shouldn't be an issue. Good legal experience too, appeals have always been good to me.

So one very very important thing I hope you take away is that you MUST see the officers notes. This is where you can bring reasonable doubt into the case based on what the officer says happened versus what is actually written in their notes.

If they failed to provide you with any disclosure prior to the day of court, this is definitely a reason to ask for an adjournment so you have time to review the disclosure and understand it.

If the officer read from a prepared statement, then questions like "when did you write the statement" and anything related to "individual recollection" about the day/event are important.

The best way to learn how to play our "game of court" is to actually go and do it, so good job learning about the system and standing up for your right to a trial.

If you can afford the additional cost of appeal fees and cost of court transcripts then it is worth a shot at appealing it.

Read these for your future reference:

http://www.ontariohighwaytrafficact.com/topic7039.html

http://www.ontariohighwaytrafficact.com/topic7041.html

Thank you again everyone...I'm still deciding on the appeal route and if I will take it. I'm writing up the stuff I would need to submit so if I do choose appeal, I will be ready. I think I will prepare everything then get a consult from a professional and see what they think, if it's worth it or not. I cannot thank you enough for your help from the beginning of this whole process!!

I did have one question though: in my "appeal" searches, it brought me to the POINTTS site and they have a statement there that says, "We can notify the Ministry of Transportation to have the conviction and the demerit points removed from your driving record until the appeal is finished." How is this possible if everywhere else I saw (including Government sites) that the conviction shows on your record UNTIL/UNLESS the charges are reversed, so how do these guys manage to have it disappear until the end of appeal?? That's very appealing to me, if it's true...

bee_bee wrote:

Thank you again everyone...I'm still deciding on the appeal route and if I will take it. I'm writing up the stuff I would need to submit so if I do choose appeal, I will be ready. I think I will prepare everything then get a consult from a professional and see what they think, if it's worth it or not. I cannot thank you enough for your help from the beginning of this whole process!!

I did have one question though: in my "appeal" searches, it brought me to the POINTTS site and they have a statement there that says, "We can notify the Ministry of Transportation to have the conviction and the demerit points removed from your driving record until the appeal is finished." How is this possible if everywhere else I saw (including Government sites) that the conviction shows on your record UNTIL/UNLESS the charges are reversed, so how do these guys manage to have it disappear until the end of appeal?? That's very appealing to me, if it's true...

I've received conflicting information in regards to that, as I've done been through the appeal process myself. Basically, after you file for appeal - they will usually (or at least they have to me) give you a number to call the Ministry of Transportation to let them know you're appealing. You then call that number, and they ask you to fax over your notice of appeal, and proof of payment of transcripts and fine(s). Now, after that step - I can't comment 100% what happens, because I've never been bothered to confirm. To summarize, I've heard conflicting reports - if you want the full story, read on.

Long story:

Basically, when I did it, what happened was... the lady (who worked at the court), told me to call that number and tell the ministry I'm appealing so it "doesn't show up on my record" (her exact words). I called the number (by the way, NOTE - if you do this, have a lot of free time. They've never picked up before putting me on hold for at least 25 minutes, sometimes up to an hour) and they told me, as mentioned earlier, fax them my notice of appeal, receipts for both my transcript and fine. I hung up, and did that...

I called back a few days later, after being on hold for 35-ish minutes, they pick up and I ask if they got all my documents, they said they have but they contacted the court and are waiting to confirm everything, so I left it at that. Anyway, so my insurance renewal came up around a year later, at that time my appeal was still on-going, (appeal waits are long, mine was about a year at the time). I decided to fork over the 35 minutes and call them again before renewing in case my insurance companies decided to run my records this time, after the incredibly long wait - a lady picks up and I ask her if the ticket is still on my record for insurance purposes. She told me it's there, but it says "appealing" under it. So, I asked her what I tell insurance companies if they ask if I've received a ticket? She said "I'd tell them about it, and say you're appealing because it's still on your record".

From then on, I always assumed that it meant that it's still on your record but it says appealing under it. Anyway, a few months later I won my appeal and contacted the ministry to see if it had been cleared from my record yet as I wanted to make sure it actually is erased from my record at some point. The lady told me "Yes, it's not on your record because it says you're appealing - but no, the court hasn't given us the ruling yet". So, this lady made it seem like the insurance companies cannot see it on the record and the whole appealing thing (under your conviction) is just an administrative note for the Ministry. Anyway, I never bothered to call back again and get a decisive answer - as I've heard conflicting information, but if Pointss claims that, then I would presume that it is actually off your record, but they're not doing anything special. As soon as you appeal, usually they'll give you the number to call, if they don't, just ask - and you can do the exact same thing they do for you - now whether or not insurance companies will still see it while it says appealing, or it disappears, I cannot say.

Generally, at least in Criminal law, when you appeal you have to make an order to stay the charges pending the appeal - so in that aspect it would still be on your record unless otherwise stated, but this is a provincial offence, and it would be expensive, and resource consuming for a Judge to hear every person wanting it to stay off their record for an appeal, so this may be the alternative for provincial offences... but, I can't say definitively one way or the other... but by the wording of what Pointss claims "notify the Ministry", that's exactly the same thing you do when they give you the number to call, so they're not doing anything you can't do for free - the only hassle is the 30-60 minute wait times.

Thank you Sonic!!