Ontariohighwaytrafficact.com

Hello, seeking some guidance.

I was issued a speeding ticket for 28km over the limit (128 in a 100).

I have chosen option 3 for Trial

Once i get my trial date, ill request discolsure.

When i was pulled over, the ticket issuing officer immediately told me that it was his seargent in a seperate loaction that "got you doing 128 coming up the previous hilll"

There was an off ramp between where I was apparently clocked and the place where the persuit car was parked (the on ramp)

if i pick the middle of "the prevous hill" as a starting point it was 2km to the off ramp, 3km to the persuit car, and 4km to where I got pulled over. I never saw any car except the persuit vehicle

I was behind 2 other vehicles doing 103km/h when we passed the persuit car ( i looked)

Fine is $135 dollars, 3 points - im not interested in a reduction in the charge Im looking to avoid conviction. This is only my second ticket, first one was over 25 yrs ago

I see no obvious errors on the ticket

so...

what are my options and tactics here ?

I assume both the issuing officer and the radar operating officer have to show up to effect a conviction ?

I also assume I can argue the fact that there was an off ramp between the point of radar reading and the parked persuit car to suggest that a vehicle as common as mine could have easily exited the busy highway and they did in fact pull over the wrong vehicle ?

Thanks in advance forany guidance

I believe that both officers would need to be there because one officer will testify to speed and other will testify to identification.

In your request for disclosure, make sure you request the notes of ALL officers involved. You will need to see both officers notes before you can really make a determination as to how to fight the ticket.

Thanks, I will definitely ask for notes from any and all officers involved

Got my trial date of October 15, and have requested diclosure.

odd that the disclosure form says it takes 4- 6 weeks to get disclosure and the Trial is 5 weeks away....

if i dont get it before trial date, ill be requesting adjournment/stop to allow myself time to prepare. whats a reasonable amount of time to prepare ? ie would i get a Stop/Adjournment if i only get the info a few days before ?

I would suggest that even if you got it a week in advance that is not enough time to prepare.

Approximately 21 days before the trial date, you could file a From 4F Stay request if you have not received the disclosure by then. Having your charge Stayed is basically the same as dropped. Most likely the JP will not approve the Stay request, in which case you can definitely ask for adjournment, but it is one extra opportunity and I usually like to take every opportunity possible.

Thanks Will Do. Where do I locate an F4 stay request form ?

google "ontario 4f stay request"

Read the first 4 or 5 articles listed and you should find everything you need to know.

Personally I recommend the Fax method as opposed to the In Person method as it is much faster. You just need to print out the Fax "Sent Report" so you have proof of faxing it.

thanks, found it.

you recommend 21 days prior, is there a legal reason for that ? ie what if i pick 14 days, is there a down side to that ?

OK, I screwed up.

I was out of town on business and I missed the 15 days before the trial deadline for the Form 4F.

I have not yet received disclosure evidence, i am 12 days from Trial and heading away on business again a few times in the next 12 days.

So... What can I do now, ask for an Adjournment ? if so what exactly does that get me ?

thanks

Well all it really means is that you cannot make an "official request" to STAY the charge because of lack of disclosure. But most of the time, even with proper stay request filed at proper time, they will not stay the charge anyways and they will just tell prosecutor to get it to you.

So when they call you up you can just say "I have not received disclosure yet and requested X number of times on X dates, and would like it as soon as possible and would like to adjourn until I have had time to review it." Remember you should not plead guilty or not guilty before you get disclosure. So if they call you up and read the charge and say "how do you plead" you can just say "I cannot plead yet because I have not received disclosure"

Well, oddly, I got disclosure today (sunday) .

Both officers notes, the constable that pulled me over and the Sgt that got me on LIDAR. Driver record and Vehicle record. No LIDAR manual provided as aasked

Sgt with LIDAR was on top of the overpass, the constable was below, and in pursuit car.

Constables notes say I didnt dispute the speed, which i guess is technically true, but he did say to me "from the look on your face you seem surprised at 28 over" which I acknowledged i was surprised.

Constables notes also say "He was hurrying to get to the customs office before it closed", I did indicate I was heading for an appointment at the customs office before it closed at 4pm, I dont recall using the words "hurrying". I was pulled for speeding at 3:17, i was 10 minutes from the customs office, I still made it on time after being pulled and issued a ticket.

Aside form the speed dispute 128km/h at a distance of 523.52 meters, I dont see any errors.

what are my options, just hope one of the officers doesnt show up ? I know they both have to appear to give testimony.

If no manual as asked, then make a 2nd disclosure request and fax it to the clerk of the court AND the prosecutor as well.

Say something like "Thanks for the disclosure, however you did not provide me with a copy of the manual for the speed measuring device used. Please provide ASAP. You can mail to me at address below, or email to me if easier at my@email.com"

If you do not get the manual before trial (or they give it to you on the day of trial) I would ask for adjournment until you have had time to review the manual.

They can not say any your comments from their notes while on the witness stand. If they start saying "he said..." you immediately object and say "they need to prove any statements made were voluntary before they can enter them as evidence". If you object they will either (1) just continue and skip your comments, or (2) the prosecutor could ask for a voire dire where they will then have a mini-trial with you and the officer to determine if what you said was voluntary or compelled. In the voire dire if you say something like "I was just being friendly and co-operative" that would be a bad answer. On the other hand, a good answer would be something like "I did not volunteer that information. I told the officer that because I thought I was required, by law, to answer all his questions and be co-operative."

The last thing you should do is read ALL case law you can with LIDAR in it. Go to canlii.org and choose Ontario and type in LIDAR and start reading. You are looking for the cases that deal with the distance/measurement of lidar and the testing procedure of lidar. You can then use these to figure out how to question officer and bring reasonable doubt to their case with regards to distance and testing.

Just so you're aware, in most cases, the entire manual is not required to be produced in disclosure. Only the testing procedure. Just because you ask for something doesn't mean you get it. If you don't get it but believe that you require the entire manual, you may have to argue that to the JP and they will decide. Also, if the officer was using the Lidar from the top of an overpass, the speed indicated on the Lidar is actually less than the speed you were travelling at due to the cosine effect.

Very helpful, thanks guys.

Regarding this point "Also, if the officer was using the Lidar from the top of an overpass, the speed indicated on the Lidar is actually less than the speed you were travelling at due to the cosine effect."

is there a place to get some specifics on this ?

From googling Cosine, it would appear that the actual speed of the vehicle is faster than what appears on the LIDAR, so that would not be an argument in my favor.

Exactly the point Decatur was trying to make.

I have personally not ever dealt with LIDAR but remember reading some case laws that talked about it.

The main areas where you might be able to bring reasonable doubt to the officers testimony are:

- what do they have written in notes about testing device (when did they test, how did they test it, what was the outcome)

- testing procedure they used (ask them during cross examination) versus what is written in the manual

- something to do with the distances (I remember reading a case law where there was something about the distance when testing versus the actual distance they got you at)

Jsherk, regarding the fact that what is in his notes are not 100% accurate :

Constables notes say I didnt dispute the speed, which i guess is technically true, but he did say to me "from the look on your face you seem surprised at 28 over" which I acknowledged i was surprised.

Constables notes also say "He was hurrying to get to the customs office before it closed", I did indicate I was heading for an appointment at the customs office before it closed at 4pm, I dont recall using the words "hurrying". I was pulled for speeding at 3:17, i was 10 minutes from the customs office, I still made it on time after being pulled and issued a ticket.

how would I get the fact that this isnt true into the evidence without giving testimony myself ? the other issue is, he recorded my Licence as a G class, when in fact its a GM (not material in an of itself but I wonder if it matters that the notes have 3 areas that are not correct or dont represent the actual dialogue or words used by me. Sloppy and somewhat presumptuous

The G or GM issue does not matter.

As I said above, the officer can NOT enter your statements into evidence and you should object if he tries to do it.

There is really no way attack sloppy notes unless the issue is significant. A JP will give different "weight" to any issues you bring up, so for example with the G versus GM issue might go like this in cross examination:

YOU: Officer I notice you said in your note I have a G license? Is that correct?

OFFICER: Yes

YOU: May I approach the witness to show them my drivers license?

COURT: Yes

YOU: (give your drivers license to officer) Is this my drivers license?

OFFICER: YES

YOU: Does it say G on it?

OFFICER: No it says GM

YOU: thank you

So in this scenario you have gotten the officer to admit a mistake in his testimony/notes. But really this issue is mostly irrelevant to the issue at hand so the JP would give it very very little weight, if any at all. Now if there were dozens of issues with the notes/facts and you could get officer to admit these errors on the stand then this would start to make the officers testimony look not credible. But simply mis-quoting you (which they should not mention anyways) and putting down G instead of GM is not going to help your case at all.

Can you scan and post the officers notes here (with personal info blacked out)? I am interested in seeing the information in the notes related to testing the device.

no scanner, but here is a verbatim transcribe from the notes,XXX or 999 used to hide personal info and real names not used.

Sgt White:

(no time noted in notes but his next note after this is 14:33)

LIDAR Test Ok

Setup w/ Cst Blue and Green

15:17 - Wh Dodge Tk 128 523.52 given to Const Blue then over to Cst Green

Tk in lane 2 catching up to other slower traffic

Const Green

14:27 at Hwy 11 NB lanes at LSD

Sgt White operating LIDAR, monitoring N/B traffic

15:17

-Sgt White advised he has observed a white dodge ram pickup N/B on hwy 11 approachingLSD traveling at high rate of speed

-MV captured on LIDAR at 523.52m, traveling at 128km/h

-I observed subject MV as it passed LSD

-I conducted a traffic stop without losing sight of the MV at any time

-I advised the male of the reason for the stop & speed

-Male did not dispute speed, he stated he was hurrying to get to the customs office before it closed

- DR - MR Orange XXXXX town

-DL XXX999

Vehi - Dodge Ram xxx999.

Ins - XXXX co. Pol #99999

-issued Mr Orange POW#99999 for speeding 128 km/h in a posted 100 km/h zone

15:25

10-8

Do I have a case to determine if the LIDAR officer never confirmed that the Trk he clocked was the Truck Cst Green pulled over ? doesnt there have to be some sort of affirmation from one officer to the other ?

That is a possible angle to bring some reasonable doubt. Is it enough to win? I am not sure.

But what I do see is that there is only one LIDAR test at the start of the shift but no test listed after. Read this:

http://www.ontariohighwaytrafficact.com/topic7018.html

Thank you, so if its not in the notes then its one of 2 possible outcomes

1) if not in his notes at all, its not considered proof if he just testifies to such during the trial, ie independent recollection isnt proof ?

2) if its in his notes, but on later pages and I didnt get it in disclosure then I seek an adjournment ?

1) previous case laws I read said that independent recollection is not proof... so that is definitely a good one to pursue

2) if it was not disclosed then you object if he reads it from his notes because it was not dislcosed to you and therefore cannot be entered as evidence, so it's as if (1) above occured

many thanks

First, I want to say thanks for the tips and advice of the members here, I appreciate benefiting from you experience.

I have another question regarding point 1) if not in his notes at all, its not considered proof if he just testifies to such during the trial, ie independent recollection isnt proof.

If the notes are just there to jog the memory of the officer and they dont have to rely on them. Where is the line drawn between being able to recall that he tested the LIDAR at end of shift vs having to have it written in notes? is it the level of specificity ? can he say that he tested it at the end of the shift but cant say what time, or what tests he performed or where ?

So if he says something that is not in his notes, then on cross-examination you can ask a question like "You said you tested it at the end of your shift? YES. But you do not have it written down in your notes? NO I DONT, BUT IT'S MY USUAL PRACTICE."

Then in closing statements you say "The officer testified that he tested it at the end of his shift, yet it is not recorded in his notes. Case law for R. vs XYZ and R. vs ZXY and R. vs ABC say that usual practice is not sufficient to prove beyond a reasonable doubt and therefore there is reasonable doubt as to the operation of the device."

Your question about "where to draw the line" will be answered when you read the case laws. You have to pay attention to what the person testified, what question was asked in cross examination and what point was brought up during closing statements. You might ask the right question during cross examination but you also have to bring up the point you were getting at in closing statements.

Understood, thanks again

Im typing up my Trial questions etc. Can you confirm that i get to say a closing argument or closing remarks to summarize my points and link all the areas of reasonable doubt ? I would think i do.

Also, if I do, I want to close this in a professional way, after I summarize my arguments do I say something like "...as such I beleive it has been demonstrated that there are a number of areas of reasonable doubt in this case and I move that a verdict of not guilty be rendered "

is that correct/proper form or does it matter

it obviously my first time at this, but im sure it helps to be as correct as possible

Trail goes something like this:

Read the charges to you.. How do you plead? NOT GUILTY

Prosecutor calls their first witness (examination in chief).

You then can cross-examine first witness. This is NOT where you explain your side of the story. This is were you ask lots of questions to try to show doubt in what officer said. But remember you do not need to point out what the reasonable doubt was that you raised here, as you do that in the closing statements.

Prosecutor then has a chance to re-exmine their witness based on anything you brought up.

You get chance to re-cross-examine on the issue the prosecutor brought up.

Prosecutor calls their second witness (examination in chief).

You then can cross-examine second witness.

Prosecutor then has a chance to re-exmine their witness based on anything you brought up.

You get chance to re-cross-examine on the issue the prosecutor brought up.

Prosecutor makes closing statements as to why they proved their case and why you should be guilty.

You make closing statements pointing out all the issues you brought in cross examination that show reasonable doubt and reference all the case laws to support it.

JP makes decision

If found guilty, JP asks prosecutor if anything they want to say anytihgn about amount of fine, and will then ask you. This is good time say you think the the victim surcharge should be removed since there was no victim, and also how money is tight and the fine should be reduced.

Thanks jsherk, I appreciate you answering my onslaught of questions as I get close here. the other thing that im conscious of is how I ask my questions without giving evidence myself. I know i can ask leading questions, but not sure where i cross the line into giving evidence.

for example, I'd rather say " Officer Green, Isnt it true that there were 2 vehicles imemdiatley in front of my MV when I passed your location on the highway"

vs asking "Officer Green, do you recall how many vehicles were immediately in front of my vehicle..."

OR

id rather say "isnt it true that you stopped by vehicle 1km from your original position at the overpass"

vs

"How far from the overpass was it when you stopped my vehicle"

Im I ok to use the leading question approach in both cases vs leaving it open ended ?