Shall I go to trial or make a deal if offered ?

Can any one kindly give me some advice on this?

I was charged doing 78 in a 50 zone, $135 fine. This is my first ticket ever. I decided to go for a trial. I asked for disclosure after the court date was given. I received the OPP officer's note and a few pages of Tests and Tracking History and Care , Clearing of Genesis ll Directional Manual (not the type of radar the officer claimed in his note that he used to clock me).

The note reads:

-male diver wanted no ticket, saying he was testing new veh tire.

-stationary patrol on xxxx street.

-handheld Genesis VP Direct. Ser # xxxxxx.

-clear unobstructed view.

-no conflicting readings

-2 lane paved.

-clear roads dry.

-veh xx-xx fully marked.

-light traffic.

My questions are:

1) The note does not say anything about testing the radar before and after he took my speed. Maybe he did test the unit before and after but he just did not write it down in his note. Can I challenge the officer in front of JP that if it is not in the note then the officer can not prove beyond the reasonable doubt that the radar worked properly at the time he clocked my speed?

2) The note does not say anything about the officer followed the mandatory request of Tracking History. The Genesis ll Directional manual included in the disclosure says the Tracking History must be conduced when enforcement action is undertaken. I do not have the Tracking History information for Genesis VP Directional handheld radar but I seem to read somewhere that it is the same as Genesis ll radar. Again, maybe he did it but just did not write it down in his note. Can I challenge the officer in front of JP that if it is not in the note then the officer can not prove beyond the reasonable doubt that he followed the procedure of Tracking History and the radar worked properly at the time he clocked my speeding?

3) Do I stand a good chance if I challenge the office's testimony in front of JP on above 1) and 2)? If so, when the Crown offers me deal before the trial shall I take it or not?

4) Shall I ask for additional disclosure such as the officer's radar training or exam records, or I have already got enough "bullets" ?

I still have a few weeks before the trial date. Any advice would be much appreciated!

Thanks.

Decatur wrote:

#1 This link to the manual is for the US manual and should not be relied upon for use in Canada. They are quite different.

#2 The Genesis II SD can not display the speed of more than one target at a time. They can track and indicate whether the vehicle is travelling towards or away from the police vehicle from both front and rear antennaa(if equipped)

Do you have a link to the manual for Genesis VP Directional handheld for use in Canada?

thanks.

gar wrote:

4) Shall I ask for additional disclosure such as the officer's radar training or exam records, or I have already got enough "bullets" ?

Will not get any of that, officer will testify as to his/her training on the date of trial.

Any advice on those questions?

Anyone knows the link to download the manual for Genesis VP Directional?

thanks a lot.

gar- Please remove my comments from this post as they are from another un-related post.

Decatur wrote:

gar- Please remove my comments from this post as they are from another un-related post.

How to remove it ? I do not know what to do.

I actually asked this question under a different topic but it turned out to be here.

gar wrote:

Decatur wrote:

gar- Please remove my comments from this post as they are from another un-related post.

How to remove it ? I do not know what to do.

I actually asked this question under a different topic but it turned out to be here.

gar - I moved the above post from the other thread to here as you are to keep your incident isolated to yours only, this prevents cross-contaminantion of information

hwybear wrote:

gar wrote:

Decatur wrote:

gar- Please remove my comments from this post as they are from another un-related post.

How to remove it ? I do not know what to do.

I actually asked this question under a different topic but it turned out to be here.

gar - I moved the above post from the other thread to here as you are to keep your incident isolated to yours only, this prevents cross-contaminantion of information

hwybear- Now I understand, thanks for doing that. Any advice on my case? I have never been to a courtroom and English is not my native language. Hope I can get some help from this forum.

1) If the radar was not tested, the readings should be excluded as it raises reasonable doubt that the device was operating correctly. The only problem is that the officer may have notes in regards to testing, but failed to disclose them (they tend to copy the notes relating to the stop but sometimes forget the separate testing times). If there are no notes, that should be sufficient for reasonable doubt.

2) I was under the impression that the requirement for tracking history has been eliminated. It was briefly added to the operator manuals in Canada and quickly removed a few months later. You may have been provided with a copy of an out of date manual.

3) I'd say #1 is very strong argument, but obviously trial outcomes can't be guaranteed.

Stanton wrote:

1) If the radar was not tested, the readings should be excluded as it raises reasonable doubt that the device was operating correctly. The only problem is that the officer may have notes in regards to testing, but failed to disclose them (they tend to copy the notes relating to the stop but sometimes forget the separate testing times). If there are no notes, that should be sufficient for reasonable doubt.

2) I was under the impression that the requirement for tracking history has been eliminated. It was briefly added to the operator manuals in Canada and quickly removed a few months later. You may have been provided with a copy of an out of date manual.

3) I'd say #1 is very strong argument, but obviously trial outcomes can't be guaranteed.

Thanks for the advice.

a further question:

If the office produces another note at the trial to say that he did test the unit before and after he clocked me, is that admissible to the court, since he never provides me with that part of his note as the disclosure before the trial?

thanks.

gar wrote:

If the office produces another note at the trial to say that he did test the unit before and after he clocked me, is that admissible to the court, since he never provides me with that part of his note as the disclosure before the trial?

Notes are not evidence at a trial, the officer's oral testimony is. Your question should be, "Will the officer be allowed to testify about the testing since that wasn't disclosed?" If you make a stink about it, the answer is probably not. But your remedy then will likely just be an adjournment for you to review the new disclosure. You get to come back and then he can testify about the testing. So sometimes lawyers just accept the late disclosure since adjourning it isn't necessarily going to help them.

Simon Borys wrote:

gar wrote:

If the office produces another note at the trial to say that he did test the unit before and after he clocked me, is that admissible to the court, since he never provides me with that part of his note as the disclosure before the trial?

Notes are not evidence at a trial, the officer's oral testimony is. Your question should be, "Will the officer be allowed to testify about the testing since that wasn't disclosed?" If you make a stink about it, the answer is probably not. But your remedy then will likely just be an adjournment for you to review the new disclosure. You get to come back and then he can testify about the testing. So sometimes lawyers just accept the late disclosure since adjourning it isn't necessarily going to help them.

Thank you so much for the comments!

If the trial is adjourned because the officer is not allowed to testify about the tests outside the disclosure provided and then I am given a new disclosure, am I still given a change to plea bargain with the Crown right before the next trail?

thanks.

You may be, that is completely within the discretion of the crown.

Simon Borys wrote:

You may be, that is completely within the discretion of the crown.

thanks a lot!

My trial date is approaching and I want to prepare some case law to be presented at trial.

Can I print the documents from Danlii and give the copies to JP and Crown at the court?

When I print them, do I have to print the complete document or I can just print the part that concerned? Some of the case law has some 20-30 pages but only a part of them is relevant to my case. Whethere a partially printed case law is accepted at the court?

Any advice?

Thanks.

can anyone give me some advice? also, can I highlight the paragraph that I think JP should pay attention to?

For sure print the entire thing. Make 3 copis on for you to refer to one for crown and one for JP. I would high light and put tabs on where the parts you want them to look at.

paul1913 wrote:

For sure print the entire thing. Make 3 copis on for you to refer to one for crown and one for JP. I would high light and put tabs on where the parts you want them to look at.

thanks a lot! may meed to kill a small forest!

well that way you are also being transparent and fair as is expected from the crown.

For the other sections they dont use, they dont use, but at least they are there if needed.

I recently read in CanLii two cases of similar speeding offence but completely opposite verdict.

Durham (Regional Municipality) v. Galluzo, 2011 ONCJ 367 and

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

In both case the officers did not include the test(s) or testing time in their notes but testified in Court that the tests were their usual practice.

while in Durham v. Zhu the JP can not take officer's usual practice as a prove beyond the reasonable doubt that the test was done and Mr. Zhu is found not guilty; the JP in Durham v. Galluzo is satisfied that the evidence provided by Officer that she does not vary from her usual practice of testing the laser unit...... is sufficient evidence to sustain a finding that she tested the Lidar...... found the unit to be in good working order and the defendent is guilty.

Before I read those two case law, I thought I had a strong case because the officer's note I got as the disclosure did not say anything about the tests. But now I am not too sure about it because it is too convenient for Crown to argue that the tests is officers USUAL PRACTICE and therefore no need to write it down each time and they can cite Durham v. Galluzo case.

Now I think I may have 50% or even less chance to win the case, I am right?

you don't need to give anything to the prosecutor. you are not required to help them out.

There is no such thing as reasonable doubt in traffic court. It's a kangaroo court where you are presumed guilty unless you can prove you are innocent. If it's your word against the officers you will lose. The only way you can win is if you have a legal argument. ie the rule of law was not followed. Therefore make sure the actual letter of the hta was followed. And then use your case law to enforce that testing is required and hammer that home. Find the highest court possible, especially supreme court rulings.

My best advice is to plea it down to a lesser charge with lower fine and fewer points. You will be offered a deal. Negotiate hard to get the lowest charge possible.

Let us know how you did.

Also do not present the galuzo case. only present cases that help you. Show her your case law when negotiating so she gives you a better deal.

You can use cases from CanLii if you are going to refer to them in court. You can bring just the portion that you want to refer to, but if you don't have the whole case the prosecutor may object and the JP may chose not to give effect to the point you're trying to make with the case. The reason being, when you take it out of context by only presenting a portion of the case, they can't be sure that the case actually stands for the proposition that you claim it does, which I'm sure you agree is a legitimate concern.

Thank you guys!

When Crown offers me a deal of 15 over before trail, this is what I am going to do:

- I would like to read the relevant parts of the officer's Memo book notes, a diary of what the officer did throughout the day in question, to see if he wrote down anything about the radar tests at the beginning and the ending of his shift.

- If he did write down the tests, I will take the deal.

- If he did not write down the tests (means he will solely relay on his memory), or the crown's offers is 16 over, go to trial to take my 50% chance, at least to make the system works for my money.

I have not read any posts that after a lengthy discussion in this forum the defendant eventually won the case. Wish I can be the one!

I went to the court yesterday. Here is what happened.

When the Crown offered me a "no point deal", I said I would like to know if the office has any other notes relating to my case that has not been disclosed to me yet. He said not as he is aware of.

I said I could not take his offer.

Just before my trial, the JP wanted to have a recess.

I took this chance to ask the Crown to allow me to verify some information with the officer. He said OK but no to challenge the office.

I asked the officer for the question of the additional notes.

The office said yes and showed me the memo book. The radar was tested at the begging and the ending of the shift, tests times and working OK are noted down.

I asked the officer if the radar manual (tests procedure only) disclosed to me is for the same type of radar that he used to clock my speed.

He had a close look and said no, not the same type.

I went back to the Crown and said I wanted to have the additional notes and the correct radar manual test procedure.

He said yes you have the right to have those and he asked the office to get a copy of the addition notes for me and the right radar test procedure.

He asked me if I wanted to have a trial today he might be able to get these documents to me now, or I could ask for a late trial date to prepare myself with the new information.

I said I need some time to prepare.

Then the Crown found out that the correct radar manual was actually not available at the time.

The JP returned.

the Crown said to the JP that the defendant needs some additional notes and the radar information was provided wrong and therefore the defendant requests to adjourn.

JP agreed.

Afterwards someone told me that I should not ask those questions prior to the trial. I should just go ahead with the trial and challenge the incomplete disclosure of the officer note and the wrong radar manual in front of the JP and I might have won the case.

Yes, may be I made a mistake. What shall I do now?

I don't agree with what you were told. If you went to trial knowing that you had improper or incomplete disclosure, the Prosecutor would probably argue that's your problem, and that you should have taken care of it before trial.

My question: How long has it been since the date of the offence?

Radar Identified wrote:

I don't agree with what you were told. If you went to trial knowing that you had improper or incomplete disclosure, the Prosecutor would probably argue that's your problem, and that you should have taken care of it before trial.

My question: How long has it been since the date of the offence?

Thanks for that.

But do I have an argument that how did I know the office had additional notes which had not been disclosed to me?

How should I know the office's disclosed notes was incomplete ? I did not have to ask the officer to clarity it prior to trial, right? I think the same theory may apply to the wrong radar information, right?

any idea?

The offence date was late Oct, 2011.

just want to let you know that the charge was dropped by the Crown at the count today because the officer did not present. I was the first one to be called in front of JP and was told FREE TO GO. I am one of those lucky guys!