Truly was not speeding

Hi all. First post here. Appears to be a great resource. Here is the story in broad detail just to get some of my initial questions out there. I can follow up with minute details later. Don't want to write a novel on my first post.

Fact: I was charged with 72 in a 50.

Fact: I know I wasn't doing 72 because I checked my speedometer. I might have been doing 60

Fact: I verified my speedo with GPS.

Fact: I passed in front of the officer while he was waiting at a stop sign, he fell in behind me and followed me 4 km through town and pulled me over approx 1 km into the subsequent 80 zone, after I had already brought my vehicle back up to 80.

Fact: I rejected two offers from the crown to lower the fine to 64 in a 50, no points.

Fact: I was late for my trial and was convicted because I wasn't there. An officer in the court asked the crown if he would recall my name. Crown said no and told me to appeal.

Fact: I filed a request for appeal explaining that some last minute things came up in my business that AM and I was late as a result. Appeal was granted.

Q1: Does the crown still have the burden of proof in the appeal?

Q2: Must I provide disclosure to the crown in order to enter evidence at appeal?

Q3: I am not really "appealing" anything since I didn't present any evidence. Am I allowed to present all my evidence as though this was the original trial?

Q4: I would like to question the officer. Must I request that the officer is in the court?

Thanks

The appeal is not a re-trial and the only evidence reviewed at an appeal is what was brought forward at the original trial. No new evidence can be entered at an appeal.

Since the crown would not re-call your name at the court house, you have been found guilty and convicted of the charge and you will receive the notice in the mail and you MUST pay the fine even with an appeal in the works. The officer will not be there since the trial is over and done with. An appeal is not a new trial.

What you have done is filed an appeal of the conviction.

There are two things you can do at an appeal:

(1) You can ask the Judge to review the evidence presented at the trial and because you believe there was an error of some kind, the chrage should be dropped (this option does NOT apply to you.).

(2) You can ask for a re-trial for reasons XYZ.

Option 2 is what you are after. You are asking the Judge to set aside the conviction and allow you to have a new trial. You do not need to provide anything to the prosecutor ahead of time. You just need to have some really good reasons why you were late for court.

There are only two outcomes to this, being that (i) the Judge will agree with your reasons for being late and will set aside the conviction and give you a new trial, or (ii) the Judge will not agree with your reasons for being late which means the conviction will stand.

Hmmm. I see. I kind of thought the appeal was my new trial. Drat. So I've already pulled a rabbit out of a hat to get the appeal, now when I appear before the judge in 2 weeks, I need to pull another one out to get the new trial. I suppose it's to my advantage that the crown told me to appeal....suggesting that they won't object to a new trial.

If I am granted a new trial, is it likely to be held the same day?

Well an appeal will pretty much always be granted. I have never heard of anybody not getting their appeal request approved (as far as provincial offences go).

It could be an entirely different prosecutor at the appeal, and yes they very much could object to the new trial.

However along with your reasons for being late, you should also include the fact that an officer of the court asked the crown if they would re-call your name, and the crown said no and that you should appeal. It won't hurt you to mention that information.

The new trial, if granted, will not be the same day.

Most likely you were convicted under section 9.1 of the Provincial Offences Act. When you fail to attend Court its deemed that youre no longer disputing your charge. If thats the case there wouldnt have been any trial and therefore no evidence entered against you. It sounds like you simply need to request that the matter reopened, not appealed. Can you confirm if you actually requested an appeal versus a reopening?

Note that for a reopening you only have 15 days upon learning of your conviction to make the request. If the request is granted, theyll schedule a new date for a trial. Check with the Courts, but I dont believe you need to pay your fine if the request is granted.

FYI if you do get a new trial your argument that you were only going 10 over versus 20 will result in you being convicted. Do some research on speeding offences on these forums to get some ideas on how to defend yourself.

Thanks for the replies.

Yes, I can confirm that the form I filled out is titled "Notice of Appeal under Section 135 of the POA". I was contacted by the clerk last week by phone and she said the Judge has said the appeal can go ahead if I pay the fine so I went on that same day and paid it.

With regard to my defense, I don't mind being convicted but I would like to:

1) be convicted of the speed that I was actually traveling and,

2) have the judge and the crown hear what the officer did

What happened is this (disclosure in "quotes"):

The officer saw a tractor trailer (me) crest a hill in a 50 zone coming toward his stationary position in his Ford Taurus and he determined visually that I was doing "at least 85". I saw him as I crested the hill, looked at my speedometer and it said 59. I believe the officer at that time makes the decision that he is going to ticket me. I continue to slow from 59 as I approach him and pass in front of him. He leaves the stop sign, turns right and falls in behind me. He "switches his Decatur genesis II to same direction" and when he is a distance of "40 meters behind me and 40 meters from the intersection, traveling at a speed of 60 kph" he locks my speed at 72 (so he says...in actual fact his radar must have only showed ~50 at this point but he is undeterred). He then proceeds to follow me for four kms because there wasn't a "safe place to pull me over". Once outside town, he follows me for another km into the 80 zone (at which time he may have really recorded my speed at 72....or maybe the 72 was still on his radar from another vehicle).

Question is...how do I get reasonable doubt?

I've driven some 1.2 million miles and 32 years since my last at fault accident and some 400,000 of those have been in a tractor trailer. Doesn't sound like someone that would come into town at 85 KPH but hey, if that counts for nothing I guess I'll have to get technical.

If I am traveling 85 kph, that is ~22 m/sec. The officer needs to check left and right for traffic and pedestrians in this "area that is heavily traveled with vehicles and pedestrian traffic". There's a second and 22 m right there. Then he needs to accelerate his Taurus from 0 to 60 kph and get within 40 m of my bumper before I have traveled more than 40 m down range...all the while he is losing ground on me because I am allegedly still traveling between 72 and 85. It is my position that a taurus can't accelerate that fast. Certainly not without laying down rubber and squealing tires in this "highly pedestrian area."

So I request disclosure of the car's VIN, engine size, acceleration data, weight and I am rebuffed. I contact a accident reconstruction specialist and we make some assumptions about the weight of the car and he concludes that's it not impossible but he was pulling some pretty good G's.....not sure if the Taurus is up to the task. He suggests that if I can get the VIN off the car he might be able to get some data on the car. So I go to the police parking lot to jot down the vin and am told that I will be charged with trespassing unless I leave immediately. The irony is not lost on me that my tax dollars helped buy the car that I can't get info about and the property that I am trespassing on but I digress LOL.

Thanks for the help so far.

Stanton brings up a good point... you should contact the clerk of the court and tell them that you actually want a "re-opening" and not an "appeal". A re-opening would indeed be a new trial with the officer present, where as the appeal is requesting a new trial for an error at law (which really there are none). So I think the appeal is the wrong way to go. If will not give you a re-opening then you definitely want to go with the appeal, but you should try for a re-opening first.

And just so you know, in my opinion, it is a complete waste of time to "have the judge and crown hear what the officer did". Police officers do not work for the crown or the judge, and all the judge cares about is whether you were speeding or not.

Speeding is an absolute liability offence which means either "yes you were" or "no you were not" speeding. The "why" you were speeding is irrelevent (unless your life was in danger).

If you get on the witness stand to testify and give your side of the story, you will have to admit that yes you were speeding and this will guarantee a conviction against you. So unless you are willing to say 100% you absolutely were not speeding at all, you should not testify and should not give your side of the story.

So if you do not testify then the only other evidence being brought forward is what the officer says. You now need to be become an expert at cross-examination in order to bring reasonable doubt to the evidence the officer gives on the stand. Unless you can bring resonable doubt to what he says, his evidence of your speed will stand and you will be found guilty. If the officer is lying, I do not see any way you can prove he lied. Your only chance is to maybe bring reasonable doubt to the device reading. Do notes say he tested it both before AND after your stop?

You would also need to get the "accident reconstruction specialist" to come and testify as well as most likely your opinion about acceleration/etc will not be accepted as having any weight.

Now assuming you get a new trial date, if you requested disclosure of the car data and it was not given to you can file a STAY request due to Section 7 Charter violation (which needs to be done 15 days before the trial). This basically forces the JP to make a decision about whether the prosecution should have given it to you or not.

Excellent points about the re opening. I will visit the clerk tomorrow.

I understand by suggesting the Taurus cruiser couldn't be fast enough basically amounts to calling the officer a liar. I have been told never to put a judge in the position of calling a cop a liar. Unfortunately, that is what my evidence will suggest. After presenting my defense, it was my idea to offer the officer a way out by suggesting it might have been a windy day and the trees that overhang the road may have caused an erroneous reading....or that his calibration was faulty or some such feeble excuse. All he has to do is take the bait and say "maybe" and we can get out of there and save face.

There is also another tidbit or two;

1. there is no "50 ahead" sign coming into town. I understand there is no requirement for there to be a warning but it can't hurt to mention it.

2. the distance between the 1st and 2nd "50 kph" signs is .9 km. I understand this is much farther than what is allowed by law.

3. Officer checked the AM box in the ticket instead of PM. Crown will no doubt be allowed to ammend that but the point is how could an experienced, competent officer who has written hundreds of tickets possibly mistake 12:30 PM for 12:30 AM? I am actually intrigued by this error. If he was in such a hurry that he made a mistake like that, perhaps it cast doubt upon his testing procedure.

Regarding me wanting the judge and crown to hear what the officer did. All I have to say is, that if enough people bring this officer to trial claiming the same thing, maybe sooner or later someone will figure him out. If he would have charged me with 59 in a 50....or 55 in a 50, I would have plead guilty but sometimes it has to be about the truth. And I will have no problem cross examining him. I am looking forward to it. I only hope I get the chance.

Regarding the point about admitting to speeding resulting in a conviction. If, during the course of my testimony, I admit to 59 in a 50 will I be convicted of 72 in a 50? That doesn't seem quite right. Seems like I should be guilty or innocent of the charge at hand, which is 72 in a 50. At the very least, it seems reasonable that the judge may find me guilty of the lesser charge....I am fine with that. Even though I rejected that plea offer twice, I would take it after I've told my story. I absolutely was not traveling 72 when he saw me and will not admit to that. The officer intentionally charged me with the higher number believing that I would plead it down to 64 and he would still get a conviction.

Thanks again to all that have replied

Your testimony that you were speeding will still get you the 72 in a 50 charge unless you can bring reasonable doubt to the officers testimony.

The JP will say you admitted to speeding and the officer also said you were speeding and the radar evidence at 72 is stronger than your evidence of saying you were going 59.

I can not emphasize enough that you should NOT get on the witness and should NOT testify. Just my opinion, but don't do it! Learn the cross-examine techniques and challenge officer that way.

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

http://www.ontariohighwaytrafficact.com/topic7032.html

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

http://www.ontariohighwaytrafficact.com/topic7284.html

At roadside, I told the officer that I was doing 59 when he first saw me crest the hill. Is my roadside statement admissable?

Not without a voire dire. So if officer starts to say anything that you said you can object and say "I object. Statements are not admissable unless proven voluntary." And then if the prosecutor really wants to get it in (which usually they don't) then he will ask for a voire dire and you will have a mini trial to decide if you volunteered the statement or not. If JP agrees that what you said was voluntary then it will be admissable.

They will typically have enough evidence against you that they don't need your statement anyways.

jsherk wrote:

If the officer is lying, I do not see any way you can prove he lied. Your only chance is to maybe bring reasonable doubt to the device reading. Do notes say he tested it both before AND after your stop.

I was pulled over at 12:42 pm

Radar evidence rec'd from crown as part of disclosure states that "the radar was tested at 0930 hrs prior to the commencement of my enforcement action and at 1306 hrs upon the completion of my enforcement activity"

Officer's notes state "1306 - tested radar"

So the officers notes themselves do not show that it was tested at 9:30 prior to commencement of enforcement action? Only in the summary from the prosecutor?

If the officer has told that to the prosecutor but it is not in his notes then that is one area to go after.

Also the fact that he says "tested radar" but does not say the outcome of the test (pass/fail) is another area to go after.

Not guaranteed wins but part of bringing reasonable doubt.

jsherk wrote:

So the officers notes themselves do not show that it was tested at 9:30 prior to commencement of enforcement action? Only in the summary from the prosecutor?

I can't be sure what's in officer's notes prior to the time of my ticket. All notes prior to the time of my stop at 12:42 pm have been redacted or were not provided. Notes after the stop say only "1306 - tested radar" all notes after 1306 are redacted/not provided.

jsherk wrote:

Also the fact that he says "tested radar" but does not say the outcome of the test (pass/fail) is another area to go after..

Radar evidence states that unit was (paraphrasing here) tested IAW mfg guidlelines, LED test, internal test and operational field test...in mobile mode the car speed was constant 60 kph and matched the speedometer.....the unit "was found to be in order and working properly."

Well it's important to figure out what we are looking at. Can you scan and post the officers notes as well as this other document with the 9:30 test time and the "was founf to be in order and working properly".

If the officer ends up testifying something that is not in their notes, then that is good reason for reasonable doubt. So need to figure out what this other document is. Sometimes they add additional information to a NOTES section of the ticket which they wrote at the same time they did the entry in their notes, and this would still be considered their notes. But if they are just saying all that information to the prosecutor, then you have a good issue to look into.

I will scan, redact and post some info. Thanks.

I found this interesting text from another thread on this forum. It seems like exactly what happened to me (i.e. the large moving object in front of the patrol car would be the tractor trailer that I was driving at 40-50 km/hr by the time he was following me). Any comments from forum members versed in radar?

"Shadowing is a problem that occurs only with moving radar, and plagues all moving radar. The radar locks onto a large moving object in front of the patrol car instead of the passing terrain and computes the difference in speeds between the two vehicles as lower than the actual patrol speed. Consequently , the radar adds the remainder of the patrol speed to the target's speed, producing an erroneously high reading."

OK so I went to see the clerk about applying for a re-opening even though I was pretty sure I had no chance. The trial/conviction date was approx 10 weeks ago. Sure enough she said:

1. You are too late. You only have 15 days to apply for a re-opening.

2. You have already applied for a new trial, and been given your appeal date therefore I have none of your documents here at the Provincial Offences office.

3. You say that you were actually in court that day but late, and you say a police officer asked the crown if he would recall your name and the crown said, "No tell him to file an appeal". Based on what you have said, I think you were correct to file the appeal rather than to file for a re-opening.

On the Notice of Appeal Form that I filled out and filed with the superior court, I checked the box that says I want a new trial. The grounds of my appeal are, in summary, I was late for court because I was busy planting wheat and dealing with employees that morning. Court date was in my calendar but the phone was on vibrate and I didn't hear the alarm. I urged the court to hear my case because I have three different pieces of evidence that the court might find interesting.

Pretty pathetic I know, but I guess, at this point I just wait to see what comes out of my appeal.

If the officer was following you, shadowing did not occur. Shadowing will only occur if you are driving your big truck and the officer is passing you. The radar establishes its patrol speed from the back of your big truck, while in motion, as opposed to the surrounding area, which is stationary. Now, the big problem with your scenario is, the shadowing, if it did actually occur, would only have an effect on traffic passing the opposite way. If you and the officer are going the same direction, shadowing will not have any effect on you. As well, most radars won't even create a shadowing effect with the more modern units. It was quite easy to do on the older units.

Ok so I paid my $10 for the 2010 manual posted (thanks) and now I have a better understanding of how it works. Having a really hard time figuring how he could have locked me in at 72.

-Decatur claims faster/slower is selected automatically.

-I thought I had something with RF interference with all the houses in the area but apparently Genesis 2 will disable the radar so no chance of a bad reading from stray RF.

-I really thought I had an explanation with the shadowing but apparently it's only an issue when passing a truck, and is reduced when properly selecting city/highway mode.....wait that's something new...what's the city/highway selection about?

Is it possible that he was acellerating so fast from 0 to 60 kph that the target speed was reading high? Are these radar units made to be used while the patrol speed is somewhat constant?

Also, I have two rear facing infra red cameras mounted on my mirrors to capture lane departures etc...could these cause a high target reading in same direction mode?

another thought;

I was pulling a 53 ft long empty flat bed trailer. It seems logical to me that part of the beam was hitting the back of the trailer 40 meters in front of the patrol car and reflecting back whilst another part of the beam was hitting the back of my truck 16 meters father ahead (i.e. 56 meters from the patrol car) and reflecting a second signal back. Is it possible that this could create an echo of sorts and confuse the radar?

There must be an explanation for this. It is impossible for him to lock in 72 km/hr from 40 meters behind my vehicle while he was traveling at 60 km/hr, when he started from 0 kph. He had to wait for me to pass in front of him, check left and right for traffic and pedestrians, turn right from the stop sign, floor the vehicle, press and hold the same direction button on the radar and then lock in 72.....all within a few seconds. If I was allegedly traveling 72, I would have been traveling at 20 m/sec and still pulling away from him when he locked me in, how can he get to within 40 metres of me?

Why did you have to pay $10 for manual? Was that on Scribd site? You can UPLOAD some kind of document and then download for free.

You will have very hard time proving anything you say (which some of it seems valid). The JP will pretty take anything the officer says as "truth" over anything you say. With the right cross-examination questions, you might be able to get officer to agree to some of things you say, so study up on cross-examination tactics! Or hire an expert witness that can give you the answers you need/want.

Our great Canadian justice system works great for all that can afford to hire expert lawyers and witnesses!

Never been to that site before I thought it was pay for download...... Actually I thought you were getting a cut that's why you linked me there. $8.99 US for 24 hr access. I thought it uncouth to look a gift horse in the mouth so I ponied up so to speak.

I hear you on the legal system. A while back I dropped over $5k on a accident reconstruction guy because a PC refused to call in the OPP specialist to look at tire marks. So I had to pay the guy to it right. Aquitted of course but come on.

I understand that you are upset about this but I fail to see what you hope to gain. You say you are prepared to pay for the speed you think you were doing (10km/her over) and yet you've been offered 14km/hr over and turned that down.

It appears to me that you just want your day if court and for you to demonstrate to all that you believe the police officer to have lied. You are going to be sadly disappointed. Neither the crown nor the judge will be interested in anything but the question of whether you were speeding which, if you testify, you will have to say you were doing. Mathematical analysis and an examination of rates of acceleration etc will be destroyed simply by the crown asking the police officer if perhaps he was a bit further away from the intersection than 40m. If he replies 'maybe' then that will unravel all your experts testimony and will not be seen as proof of lying by the officer.

I have seen many people who went to court just to let the judge hear how they felt they had been mistreated and all of them left more frustrated than when they entered.

You are putting yourself through the wringer for the sake of maybe 20 bucks. Hey it's your time but I've not read anything that will bring you a successful outcome in this. Sometimes it's better just to move on.

Just my $0.02

Thanks Argyll, I appreciate the input.

I am well aware that my chances are slim, which is why I am representing myself rather than throw good money after bad by hiring counsel. However, as a truck driver and owner of a trucking company, I have been to court more times than I care to remember various counties in ON, NY, PA, QC for various so called offences and it has been my experience that all judges appreciate a logical argument. Furthermore, they can smell a rat. The smell test wins the day more often than not. I once appeared before a Pennsylvania JP for 10 safety violations. After overuling the ADA's objection to a video, because he was "enjoying this too much", the JP told me I did a great job and he dismissed half the charges after hearing only 7 of them because he had to go to lunch.

In the end, there will be enough for reasonable doubt....the common sense math tells us that. Then there is also the fact that the 50 signs are placed too far apart. As always, it will come down to the judge and if he likes me or the officer better that day. I just need to give the judge a way to acquit without calling the officer a liar, and I will do that....RF signal, IR signal, no 50 ahead sign, shadowing, confused signal of the back of my truck/ trailer, blah, blah and blah. After all, the officer will be before him next week with another potential victim whereas I will carry this on my C.V.O.R for 5 years.

And yes, your analysis of the situation is correct. I want my day in court...Kangaroo court tho it may be. As citizens, we have a responsibility to each other to bring these situations to light. The law is the law and officers of the law don't get to make the rules.

Well I guess you have to get the appeal judge to grant a re-trial first before any of this matters!

But I am similar in that I will go to court and fight everything to the bitter end because if you do not fight it then you are found guilty for sure!

yes Jsherk, this is the biggest hurdle I think

Do keep us posted. It will be interesting to see how this one develops. Cheers.

rank wrote:

Then there is also the fact that the 50 signs are placed too far apart.

Just on this point, keep in mind that the HTA sets a default speed limit of 50 km/hr within a municipality or built up area and 80 km/hr elsewhere. Improper signage wouldn't be a defence unless the limit was different then the default speed set by the HTA. It sounds from your initial post that you were stopped in town in which case the limit would be 50 regardless of signage spacing.

Yes Stanton, it appear I've misinterpreted the law again. I thought the law was "50 km/hr in a built up area unless otherwise posted". Since this particular town is posted 50, I (incorrectly) interpreted that this rule applies:

2. (1) Subject to section 4, where a maximum rate of speed other than that prescribed by subsection 128 (1) of the Act is prescribed for a highway in a local municipality or built-up area, speed limit signs shall be erected on the highway, in each direction of travel,

(a) not more than 600 metres apart where the speed limit prescribed is 60 kilometres per hour or less; and

You're right. Thanks

Received my "notice of time and place of hearing of appeal" in the mail yesterday. What exactly will take place at this hearing?

1.Is it me in front of the judge asking for a new trial?

2. Is it me in front of the judge explaining that I want to appeal that there was an error of law made in the first trial (I hope not).

3. Will the crown be there to object?