Options in my Trial for 28km/h over

EDIT: CORRECTION: Note that for my last response, before the prosecutor makes their closing statements, you will be asked if you want to call any witnesses. So this is where you may get on the stand and give your side of the story, and/or call a witness for your side and ask them questions (this is your examination in chief, so no leading questions here). Then the prosecutor gets to cross examine you and/or your witness with leading questions. Most of the time you should probably NOT testify as you will most likely only hurt your case and help theirs (this is your right not to testify against yourself). The only times you should testify is if you truly believe you are completely innocent of the charge (well there are a few other reasons, but for absolute liability offences like speeding you need to either believe you are completely innocent, or that your life was in danger, otherwise keep your mouth shut).

Now back to your last question...

Nothing YOU say in cross examination is evidence.

But cross examination is very tricky because what the officer answers IS evidence. So if you ask the wrong question the wrong way, then it can actually strengthen their case against you instead of helping. There are some good links on cross examination in this thread:

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

Leading questions are usually the better choice but not always. It depends on what you are trying to achieve. And good rule of thumb is to NOT ask a question, you do not already know the answer to. So "How far from the overpass was it when you stopped my vehicle" would probably be a bad question if the distance is not in the officers notes, because he could say 500 meters or 5km but you don't know. So the better question might be "Would you say you stopped my vehicle about 1km from the overpass?" If he says YES then you ar good. But what if he says "NO IT WAS ABOUT 500m"? Well now what do you do? Did this help you or hurt you?

Anyways read those articles!

Thanks very much !!, I have no intention on taking the stand or giving evidence.

In court tomorrow, ill let you know how it goes.

Never got to my case, got bumped to February.

Prosecution tried twice to get me to resolve with lesser charge, which I respectfully declined. I did offer to plead "not guilty" and she could not present any evidence...."Not gonna happen" was her answer

interesting to see how they try to strong arm and intimidate you to resolve. Only 2 of us out of 29 cases that day were insisting on going to trial, the rest entered a lesser plea. She was obviously aggravated by those that wanted to go to trial.

T the end of the day when I was getting bumped due to lack of time, Officers tried to get prosecution to drop the charge too, she declined.

If you read paragraph 51 of this case, it seems to suggest that even for laser/lidar, they must do a test both before and after.

R. v. Ko, 2013 ONCJ 451

http://canlii.ca/t/g0658

[51] In considering the issue of the evidentiary threshold needed to determine whether a rate of speed measurement obtained through the operation of a laser device was both accurate and reliable, Feldman J.A. made the following comments in paragraphs 21 and 22 of her decision in Regina v. Vancrey, [2000] O.J. No. 3033 (Ont. C.A.):

…

The Crown seeks to uphold the conviction on the basis that there was led at trial prima facie evidence of the accuracy and reliability of the particular laser unit, consisting of the performance of manufacturers tests for good working order both before and after the use of the device, together with the earlier verification of the accuracy of the laser unit for measuring the velocity of moving vehicles on a highway, when compared with an accurate radar unit by a qualified laser and radar operator.

In my view, the position of the Crown is correct. The court received evidence that the officer who operated the laser device was trained and experienced and that he tested the device both before and after its use in accordance with manufacturers instructions to ensure that it was operating properly on the date in question.

…

In my view, the foregoing paragraphs read in the context of the balance of Madam Justice Feldmans decision in Regina v. Vancrey, supra, stand for the proposition that in order to establish on a prima facie basis, the accuracy and reliability of a rate of speed measurement obtained through the use of a laser or radar speed-measuring device, the Crown must prove that at the material time the particular device was being operated by a qualified operator, and that the operator tested the device both before and after its use in accordance with manufacturers instructions or specifications, and thereby determined that the device was in good working order.

And here is another case confirming the testing radar before and after ... I think it could be successfully argued that it applies to LIDAR as well.

Durham (Regional Municipality) v. Zhu, 2011 ONCJ 193

http://canlii.ca/t/fl3wg

[108] It would appear R. v. Vancrey supra sets out the tests necessary to secure a conviction using a speed measuring device. The Crown must prove the radar device was capable of measuring speed and that the device was in good working condition at the time. DAstous, upon which Vancrey was written, states the Crown must prove the particular radar device used was operated accurately by showing the operator is trained and qualified; that the device was tested before and after the operation; and that the device was working properly. Evidence demonstrating those facts becomes prima facie evidence of the speed of the vehicle, subject to evidence to the contrary.

Yes I agree, I have one of those in my Case File, Ill add the other too, thanks !

Now both those case are ONCJ (Ontario Court of Justice) which I believe are not binding on other JP's. It does however push things in your direction but the JP you get does not necessarily have to listen to non-binding case law. But it is definitely worthwhile trying.

Here is an Ontario Court of Appeal case, so this has higher authority and is binding on all Justice of the Peace. I am not sure that it specifically says laser must be tested before or after but it can be inferred:

R. v. Vancrey, 2000 CanLII 26961 (ON CA)

http://canlii.ca/t/2329z

And here is another lower Ontario Court of Justice case that references Vancrey and specifically says "Therefore, I find that it is necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop."

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

http://canlii.ca/t/1rsg6

Thanks

one question, the LIDAR officer's notes only referenced a test before the ticket was issued (with no time listed), and there was no evidence/notes disclosed as to if/when the unit was tested after the ticket was issued.

if he has it in his notes but on later pages, because he tested at the end of the shift, but he didnt disclose it as evidence, and he states under oath that he did test it after the shift does that become inadmissible ? ie he cannot prove he tested it after ?

what do I have to work with there ?

How many pages of the notebook are there in disclosure? When officer first takes the stand, there will be a few questions before the officer can use his notes like "are they in your handwriting" and "when did you write them". You should be given an opportunity to ask about these notes before the officer is allowed to use them. So you could say something like "I receieved a copy 4 pages out of your notebook. How many pages will you be refering to out of your notebook?"

Or if prosecutor starts with the questions and he appears to be reading something out of his that he did not provide to you in disclosure, then you would object say he appears to be reading that from notes that you did not receive in disclosure.

Now if he does not mention the second test at all then that is good. In then case, do NOT ask any questions about it in cross-examination. Just ignore it. Then when you are making your closing arguments you can say "The officer said he tested the unit before, but did not say anything about testing the unit after. Per R. v. Vancrey, 2000 court of appeal case and [other case law], the unit must be tested both before and after, and therefore the unit can not be considered reliable as it was not tested properly which brings reasonable dounbt to the reading. I have copies of the relevant case law here."

Now if he does mention the second test, but is not reading from notes, then you ask one simple question about it during cross-examination. "You stated that you tested the device after you wrote me the ticket? YES. But you did not make a note of that in your notes, correct? CORRECT." So in this case your closing arguments need to mention that he noted the first test but did not note the second test. So you now need to break out all the case law on "usual practice" that supports your view that "usual practice of testing without writing it in notes" means there is reasonable doubt as to the reading.

Excellent, thank you

I just got a notice in the mail that one officer cant make the re-scheduled date so Prosecutor is making a motion to get trial pushed out again, likely to spring 2016. I guess the further its pushed the more likely I am to be able to used the "no speedy trial" argument.

Yes when they want to change the date, then that works in your favor.

End of March now.. 8 months after the ticket was issued

Well, my case went back to trial yesterday after 2 adjournments by the crown (Oct to feb, then Feb to march).

It got adjourned again yesterday to end of May. I hired a Traffic Ticket Rep this time (I couldnt attend) and Prosecution refused to accept/admit the evidence we filed (in advance) because I wasnt there to certify it was me that took the photos from the actual locations.

The photos are key to showing the lidar officer had no line of sight from where they allegedly got me on Lidar to where I was pulled over, nor to where the pursuit officer put his light on.

Anyway, Im wondering if this qualifies as a "Forced Adjournment" if prosecution refuses to accept defender argument and evidence ?

i'm not quite at 11 months, but I'm wanting to build an 11B case if possible. because we had to ask for adjournment, technically it was our ask to push it out, but I thought there are cases where this is considered "forced"

My representative feels we have a very solid case on several fronts, but Id like as many avenues as possible

thanks !!

This adjournment would probably be counted against you. Probably.

Thanks, Yea, thats what I figured, and thats what my rep said too, but Im trying to find case law to the contrary.

Well the prosecutors arguments are valid... evidence like photos or anything in writing can be objected to when the photographer/writer is not there to be cross examined.