Represented a friend and got speeding 75 in a 50 charge withdrawn.
First trial date was in May and had only received disclosure the day before and got an adjournment to July 14th. Was also succesful in getting JP to "suggest" that the prosecutor should also get me the maintenance records for the radar device that the OPP keep. Notice that I said "suggest"... it was a very interesting exchange! The normal JP was apparently on holidays and this JP was just sitting in for this one week until the other one came back. I asked the JP for an "order" for the prosecutor to get those documents and his comment was along the lines of "I am not making any orders here today as the trial has not started. I am only suggesting what should happen. You can make another request at your next trial date." I asked JP "When does the trial start?" and he said not until the defendant is arraigned (asked how they are pleading to charge). So this JP really did not want to make any decisions since he knew he was probably not going to be there for the next one.
The second trial date was Thursday and I was totally prepared to go to trial. I had submitted a couple Notice of Motion the week before and was prepared to deal with those first of course. They went thru about 5 or 6 quick cases that just needed new dates set and then called my friends name. I was a little surprised as I expected to be called last since they usually deal with the full trials last. I went up and the prosecutor launched into a 5 minute rant about me practicing law without a license. His main concern was "the motions I submitted were of paralegal quality". I was pretty upset and the JP could tell and he was actually pretty nice and calmed me down and basically said "I am not suggesting you are practising without a license. I just want you to aware, for future reference, that it is not allowed. Do you understand?" I said yes, and then I said I am totally prepared to proceed with the trial today. Then the prosecutor says "Well actually we forgot to schedule the officer to be here and we are not prepared to proceed and will be withdrawing the charge."
Charge withdrawn! Win accepted!
As a side note, I had a good defense for the officers not doing testing procedure properly. The officer had noted the radar had passed its test both before and after, had also noted the times of the tests, and had noted the road test results (speedometer 60, rear antenna 60, front antenna 60). However the device is an older one (Genesis II Directional Users and Installation Manual - Rev 02/05) and this is what the manual says under Road Test in the last paragraph of Section 9.2:
"In addition to this road test, as part of the tracking history for any violation in which enforcement action is to be taken, it is mandatory requirement that there be this correlation between patrol speed of the police vehicle and the patrol speed displayed on the radar unit at that time. Without this correlation no enforcement action shall be taken."
This type of requirement is not in the newer manuals, but since it is in this manual then they must do it. And the officer did not have any notes on doing this.
So cross-examination questions would have looked something like this:
- At the time you allegedly saw Mr Addleys speed to be 75 on the radar device, what was your vehicle speed displayed on the device?
- At the time you allegedly saw Mr Addleys speed to be 75 on the radar device, what was your vehicle speed displayed on your speedometer?
- Are you required to follow the testing procedure in the manual?
- Did you follow the testing procedure in the manual?
(Ask for permission to approach officer with testing procedure they gave me in disclosure)
- Does this appear to be a copy of the testing procedure that you submitted to me in disclosure?
- There are 3 parapgraphs under section 9.2 ROAD TEST. Can you please read the first paragraph.
- Do you believe you complied with this paragraph?
- Can you please read the second paragraph?
- Do you believe you complied with this paragraph?
- Can you please read the third paragraph?
- You answered earlier that you did not know what your vehicle speed was at the time you allegedly say Mr Addleys speed to be 75 on the radar device?
- And do you agree that this third paragraph says that you MUST do that?
- But you did not do that portion of the test did you?
I do get why you consider it a win but really you get the result you want by being a bigger pain than the crown is prepared to deal with. Certainly you get the result you want but it isn't that you actually win your arguments.
By the way, jsherk, I have noticed you do a very good job of avoiding getting into 'flame wars' in threads and that is admirable. But know that if I disagree with you, it is on a factual basis and nothing personal. I do and have always enjoyed discussion of differing opinions so don't be shy to come back at me - I won't take it personally. We all learn by disagreement.
A withdrawn charge is a win, even if I did not get to present any of my arguments.
But I actually do present a lot of my arguments thru motions that I file before the trial date, so the prosecutor knows that I know more than most people and even complained to the JP that my motions were of a high quality... I think that says something about my arguments!
I thought you could represent a friend or family member without being a registered paralegal so long as you were not being compensated? Did something change?
Nothing changed. That is still true.
I just posted this thread with what the law says:http://www.ontariohighwaytrafficact.com/topic7691.html
Nicely done jsherk.. congrats on the win.
I agree, a win is a win, in a courtroom both sides play all kinds of games to get the win, the question is which one is more effective?
Thanks for sharing
Big bully steals lunch money from little kid. The little kid says it's not fair but the big bully challenges him to a fight at recess. Recess comes and the little kid shows up to fight. The big bully realizes he has picked a fight with the wrong kid and he is better off making up some excuse about why he can't fight than to be embarrassed in front of his homies. Even worse, when word gets out HOW the little guy took down the big bully, then all the little guys will be using that trick. Reality is the big bully is afraid to lose so he always walks away. Big bully loses by forfeit. Jsherk wins by default. Big bully doesn't care because there are plenty of other little kids willing to give up their lunch money without a fight.
Is Jsherk still on the board?
Have not seen any of his replies past 2017..
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