Fighting speeding ticket, no discloure, Form 4F denied

Ivan
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Fighting speeding ticket, no discloure, Form 4F denied

by: Ivan on
Fri Jun 17, 2011 2:35 pm

Intro:

Speeding ticket 21km/h over.
General Argument: it is a mistake by an officer. wrong reading etc. i can elaborate on this later.
Current Argument: Form 4F was denied by the JP.

Ok, so this is what happened. I resceduled a date once with motion, got another date. Filled out the request for disclosure, a month before the trial. 14 days before the trial did not receive the disclosure, filed for Form 4f 11(b).
When i came to the trial i argued that i did not receive the disclosure and the prosection handed me the disclosure right there in the court, i signed for it, maybe i shouldn't have taken it. I tried to stay the charge and disqualify it on the grounds that there is a post delay by the prosecution. It took a while, i made the court to go into recession. But then i was denied the form 4f by the JP, and forced the adjournment.

the points from my form 4f as follows:
5. the defendant did not receive discloure until trial date;
6. the defendant moved to stay the charge due to lack of disclosure, and was denied;
7. that the defendant has been prejudiced by the post charge delay in bringing this matter to hearing.

and further take notice that the grounds for this constitutional question are as follows:
1. the Crown was given ample time to prepare for the disclosure;
2. that the Crown failed to provide disclosure for the defendant to prepare a full answer to the charge prior to trial;
3. that the trial is further delayed through no fault of the defendants's;
4. No reason was given by the Crown to explain delay in prepearing diclosure.

what do i do now? is there a way to make this reviewed by appropriate jurisdictions like attorney general of canada, and constitutional law branch? it is true that JP denied me the legitimate motion.
any thoughts would be really helphul


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by: Reflections on
Fri Jun 17, 2011 3:04 pm

File form 4F = time delay. Was your trial date more then 11 months from the date of offence? And it needs to be filed 15 days before the trial.

The adjournment is credited to the Crown, not you, so your next date, is it more then 11 months from the offence date? If it is, file the 4F 15 days prior.
As far as:
5. the defendant did not receive discloure until trial date;<-------- Covered above, crown has delayed
6. the defendant moved to stay the charge due to lack of disclosure, and was denied;<------ Crown did give you disclosure, late but did
7. that the defendant has been prejudiced by the post charge delay in bringing this matter to hearing.<------- save that for later


As for:

1. the Crown was given ample time to prepare for the disclosure;<---------- Don't worry about that
2. that the Crown failed to provide disclosure for the defendant to prepare a full answer to the charge prior to trial;<------- See above
3. that the trial is further delayed through no fault of the defendants's;<--------- 4F at your next trial
4. No reason was given by the Crown to explain delay in prepearing diclosure.<------- Not an issue before the court


Give us some timelines and we can help.
http://www.OHTA.ca OR http://www.OntarioTrafficAct.com


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by: Radar Identified on
Fri Jun 17, 2011 4:36 pm

Ivan wrote:I resceduled a date once with motion, got another date.
Just so that I am understanding this correctly, did you ask for the re-schedule? Or was this re-schedule due to lack of disclosure?
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


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by: Ivan on
Sat Jun 18, 2011 9:48 am

Thank you for your replies.

These are the dates.
Offence date september 10, 2010
First trial date February 17, 2011 (resceduled it myself, filed a motion)
Resceduled date June 17, 2011 (forced adjournment due to lack of disclosure "prosecution's fault", was issued disclosure in the court)
October 7, 2011 is the next date of trial.

almost 12 months.

is the Form 4f an official motion protected in anyway by jurisdictions that i submit it to? do i have any leverage on the JP's decision due to this form if JP denies a legitimate 4f form?
can i request to be tried by a different JP? (will this be considered my motion and my fault for delay? or maybe a technical reason?)


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by: Radar Identified on
Sat Jun 18, 2011 10:20 am

I do not think your 11B will be successful in October. The reason being, the delay of 12 months has to be entirely the fault of the courts and the Crown, in that they were either not ready on the day of trial, or they failed to disclose evidence, or whatever. When you filed a motion to re-schedule, it stopped the 11B clock during that time. If I read your post correctly, you were originally supposed to have a court date in February, but asked for a re-schedule, and you were given June. So from February through June, this delay period was charged to you. You are actually at about 9-10 months of delay that would count toward an 11B.

If you still wanted to try the 11B, the 4F form is used for civil courts, and it may not be accepted by the JP for a POA matter like this one. What you actually want is a Notice of Constitutional Question form. If you go to the "Courts and Procedure" section of this website, there is a thread titled "How to file an 11B." In there, you should find some links that give you the paperwork you need. There are instructions and tips from people like "diehard" and myself who have filed 11Bs in the past.

As far as requesting a different JP, that is not likely to work. I would suggest going through your disclosure package and seeing if anything was omitted, or if the officer did not write down the critical details. If, however, the trial is again delayed in October and it is the fault of the Crown, you should be able to successfully file an 11B.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


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by: Ivan on
Sun Jun 19, 2011 10:31 am

ok, thank you. I understand now. I just thought that the form comes into action as soon as it is prosecution's fault into delaying the matter, and if it is past a certain time it becomes eligible. well, in anyways at least this form allows for the proper conversation between the parties and the JP gets involved and puts pressure on the prosecutor to respond to this form.

So now i have a disclosure read through it. I cannot read what the officer wrote clearly, some parts are ok, and some i just can't read it. Also, there is a part thats cut off from the disclosure, improper copying technique :) Does that entitle me to request another disclosure? 4 weeks before the court date? 2 weeks? 2 weeks because this is the amount of time i need to prepare for the disclosure right? or can i bring this up with a judge? if that is the delay is it a fault of the prosecution?

how do i request the radar documentation to make sure it was properly calibrated?

Also, i have prepared a defence.
Argument: it is a mistake by an officer. wrong reading, (incoming outgoing traffic, cars behind me, one lane road), radar not calibrated, an officer's car was at motion while making a reading on the radar(radar not stationary). checking the radars calibration, radar 9% +/- reading error (apparently every radar does that). will take photographs and discuss the obstructions on the road of the radar view, there are trees where the officer was hiding in the car, he's not seen from far away. he rolled out to have a better view at the time of the reading. radar not properly charged, pluged in into the socket at the time of the reading, this i have to prove through cross examination, get an officer to admit to it. (i read through the radar manual in the disclosure, it says it is improper use of the device if its pluged in at the time of the reading).

also, once i had a speeding ticket, and i requested to see a radar an officer stated that he can't do that the radar is pluged in for charging, very odd. then i told him i can come and see it myself, he said he was afraid for my safety in traffic. so he refused to do it. and officer did not show up.

any good and is anything wrong?

i really appreciate your help.


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by: Radar Identified on
Sun Jun 19, 2011 3:24 pm

Ivan wrote:Does that entitle me to request another disclosure? 4 weeks before the court date? 2 weeks? 2 weeks because this is the amount of time i need to prepare for the disclosure right? or can i bring this up with a judge? if that is the delay is it a fault of the prosecution?
You can ask for an explanation and clarification of the illegible sections. I'd file it right away. The more you look like you're trying to make an honest effort to get disclosure, the more likely a JP will be to side with you when technicalities come up, like failure to provide disclosure, 11B, etc.
Ivan wrote:how do i request the radar documentation to make sure it was properly calibrated?
They don't provide that material. The courts want to know if the device was working properly the day that the offence occurred, so they do require the officer to note the testing of the device, and what the results were. A device can go out of calibration between scheduled maintenance periods, so they need the tests to verify it was working. No tests = no conviction. You can certainly cross-examine the officer on the tests he did, what results he got, and compare them to the manual. Make sure you do ask about the device being plugged in at the time, as well, as you indicated this can cause an erroneous reading. Keep digging through the manual and see what you come up with.
Ivan wrote:radar 9% +/- reading error (apparently every radar does that)
Any modern lidar or radar won't do that. If you get a 1960s-era device that was improperly maintained and the radar antenna or magnetron has been whacked a few times or dropped in the water, it might give a grossly erroneous reading, such as clocking a moving tree. But if you got hit by lidar, one of the tests they do is a fixed distance zero velocity test, where they point the lidar at a stationary object and make sure that they get a reading of 0.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


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