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110km/h in an 80km/hr zone
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PostPosted: Thu Oct 08, 2009 12:58 pm 
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My husband was driving on Hwy 15 near Lyndhurst a couple of days ago. There were two large work trucks in front of him (a dump and a floater... wow does that ever sound nasty :lol:) going about 60km/hr. He decided to pass them, as did another car in front of him, as he did not feel it was safe to stay behind them any longer.

As soon as he and the other car had passed an OPP pulled out from a side street and threw on his lights. Both he and the car in front of him pulled over, but the cop never bothered with the other car. He approached my husband's vehicle and when my husband rolled down the window he proceeded to ask my husband "Do you mind telling me why you were doing 110 in an 80 zone" to which he simply responded "I don't think it's possible I was going that fast". Cop takes his license and ownership and tells him that he didn't even have time to use his radar gun, goes back to the car and writes him out his ticket.

He admitted to me that he was going around 90km/hr. while passing, but then immediately reduced his speed to 80km/hr. as did the car in front of him once they were past the other two vehicles. I realize that speeding is speeding, and passing is not an excuse. Does the fact that the two work trucks were going an unsafe speed make any difference?

Also, the police officer never told him the offense carried demerit points. I was just curious if this is common?

Since no radar was used, what specific things should we ask for in disclosure? I know it will be more difficult to discredit the officer than a piece of equipment.

He intends to fight this as far as he can take it. It's his first offence, and even 1km less on the ticket would have meant 1 point less and a large difference in fine. Any advice on what his best approach might be? Different options he could pursue in terms of a defense? I have already been through the entire ticketcombat site but I'm just finding this whole situation fairly overwhelming.

Sorry for such a long-winded post but we're a young family with a baby still in diapers and on formula and this $220 will put us in a really dire position.


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PostPosted: Thu Oct 08, 2009 3:04 pm 
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Have no fear the Greatest Canadian is here.

You still might be convicted though.

The trunks were doing 60kph in a 80 zone. That's not unsafe.

TCs website that you read is fan-ticket-tastic. Read it a few times.

What city did you get the ticket in?

You say near Lyndhurst , I have no clue where that is. Where is the courthouse you have to file with? It will tell you on the ticket.

Is the ticket fully filled out properly?

The cop doesn't have to tell you about demerit points, but this is a legal issue I have brought up before. The offence notice and certificate do not inform people that points are invloved upon a conviction. The person pleading guilty must be made aware of ALL consequences of pleading guilty as points might affect insurance rates etc. Therefore, in my view, the offence notice is not complete and regular on its face and is not incompliance with court decisions claiming people pleading guilty must be made aware of ALL consequences of pleading guilty.

Since the cop didn't use radar, I'm already convinced he falisied the ticket to read 110 to get you into a higher ticket fine range.


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PostPosted: Thu Oct 08, 2009 3:31 pm 
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You say near Lyndhurst , I have no clue where that is. Where is the courthouse you have to file with? It will tell you on the ticket.

Ticket was received in Kingston on Hwy 15. Offences office and court house listed are in Brockville. Everything is filled out properly; there are no errors fatal or otherwise.

I am also convinced the ticket is (not necessarily purposely) false. My husband went in to speak to a JP today at the court house to see what he had to say about the matter - JP was surprised there was no reduction of the ticket as this was a first offence and noted (as I already had to my husband) that a 1km/hr. difference would make a substantial difference. He suggested he take the ticket to trial. Ticket has now been filed with the provincial offences office with a request for trial, and a request for the officer to appear in court.

Quote:
The cop doesn't have to tell you about demerit points, but this is a legal issue I have brought up before. The offence notice and certificate do not inform people that points are invloved upon a conviction. The person pleading guilty must be made aware of ALL consequences of pleading guilty as points might affect insurance rates etc. Therefore, in my view, the offence notice is not complete and regular on its face and is not incompliance with court decisions claiming people pleading guilty must be made aware of ALL consequences of pleading guilty.


How would this relate to contesting the ticket in court? Is there any precident I should look at in terms of this being tried in court?


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PostPosted: Thu Oct 08, 2009 5:56 pm 
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The cop had the discretion to reduce the ticket. He didn't do so which tells me he falisified the speed up to get a higher fine. The ticket has a spot where the cop checks it off or adds a code to indicate he has reduced the speed, so the judge will see that the cop did not reduce the speed. The cop is not required to reduce the speed and you can never win an agrument that he should've, but in my view, it raises doubt that your hubby was not going exactly 110.

The city of Kingston requires all communications be in both languages, French and English.

http://www.e-laws.gov.on.ca/html/statut ... 0f32_e.htm

This means, the street your hubby was ticketed on must have a street sign in both languages, the speed limit sign (the word maximum) must be in both languages, and ALL text the cop added to the certificate and offence notice must be in both languages. The cop must also speak to your husband in both languages.

ALL of this must occur whether you speak both languages yourself.

I already know he didn't do this did he?

He also didn't ask for your hubby's consent not to speak to him in both languages, right?

The ticket is not complete and regualr on its face because the text the cop entered is not in both languages.

What is the exact fine and what is the exact set fine written on the ticket?

Also if you were to settle out of court, you are only required to pay the set fine, but read the ticket, it falsely tells you that you must pay the total payable.

The total payable includes two other fines, the victim fine surcharge and court cot fine.

In other words, the government is ripping people off.

If you have not filed the attention to appear notice yet (you say you did) don't do it yet. At trial all of these errors can be amended. But they canot be amended if you just ignore the ticket all together. You would win on appeal.

However, even if you already filed, they still cannot change the street sign name and speed limit sign. Go get a picture of that to prove its not in both languages. In court, you can get the cop to speak French, he's in Kingston so the chances are he's not French so he'll never be able to speak French. Hahaha!

Also, I'll post a case where the court says the accused must be made aware of ALL consequences of pleading guilty. The points are a factor here yet they are not noted on the certificate or the offence notice, and in my view they must be.


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PostPosted: Thu Oct 08, 2009 6:40 pm 
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Are you sure that Kingston is included in the French Languages Services Act? The list of regions on ticketcombat did not include Kingston or Brockville, so I had discounted that as a possibility. I am under the impression that all the signs say "maximum" which is bilingual, but we will certainly be going out to check. The cop did not speak to him in French whatsoever. No consent was asked for not to do this.

Fine on ticket is $180, fine with victim surcharge is etc. is $220.

Attention to appear has already been filed.

Cop is actually in Brockville (offence took place technically in Kingston but on Hwy 15; OPP officer works out of Brockville so that's where trial will be). Your saying we can request he speak both French and English at the trial?

Quote:
Also, I'll post a case where the court says the accused must be made aware of ALL consequences of pleading guilty. The points are a factor here yet they are not noted on the certificate or the offence notice, and in my view they must be.


I couldn't agree more with you on this one. It shouldn't fall to me to inform people of how many demerits their offence carries.


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PostPosted: Thu Oct 08, 2009 7:35 pm 
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According to the FLSA the County of Frontenac and City of Kingston
are on th list. Scroll down on this link and you're see for yourself.

http://www.e-laws.gov.on.ca/html/statut ... 0f32_e.htm

The city will have passed a by-law so request a certified copy of it in your disclosure request to the crown.

Even if the city had not passed a by-law, because the offence involved demerit points, it makes it a provincial matter, and ALL provincial agencies must provide services in both French and English.


I'll have to check the HTA sign regualtion regarding "maximum" as being bilingual, you maybe right.

No, you cannot make him speak both French and English at trial, but you can prove he doesn't speak French in court, which means you proven he didn't speak French to your hubby when he made the stop and gave him the ticket.

Maybe the cop does speak French, we don't know yet.

Did the cop sign his name on the ticket or only place his initals?

The total payable says $220. This is bogus, which means the ticket is not complete or regular on its face. You're only required to pay the set fine but the ticket is telling you to pay the total payable.

However, you filed a notice to appear and once you're in court bringing up this issues they can now all be fixed in court. However, the court cannot fix the bogus ticket telling you to pay the total payable.

Had you not filed a notice to appear, the judge would've convicted you, but you would've won the case on appeal.


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PostPosted: Fri Oct 09, 2009 2:07 pm 
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I’ve read this and I’ll make a few comments:

1 – I don’t think that there is a French defense here. The cop doesn’t need to speak French to you, in fact other than asking for your documents he really doesn’t need to say a word. If your husband has responded “Parle vous France” when asked for his papers there might be a defense for not producing his Drivers Licence etc. but that’s not the case here. The speed limit sign was bilingual, and I assume the ticket was as well, thus no French defense.

2 – As to informing people of how many demerits their offence carries. Demerit points are not controlled by the police or the courts. The MTO control the points system, and prior to receiving your drivers license you where informed that a driving ticket would result in points against your drivers license. It’s like trying to get out of a ticket because the cop didn’t inform you that your “daddy was going to take your T-Bird away”.

3 – Your best course of action is what you’ve done. File for trial and get disclosure. If the cops notes don’t indicate that he used radar determine the speed then you’ve got a good chance. On the other hand if notes indicate radar use it going to be very hard to beat, best try to plead it down.


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PostPosted: Fri Oct 09, 2009 3:16 pm 
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Frozenover wrote:
Your best course of action is what you’ve done. File for trial and get disclosure. If the cops notes don’t indicate that he used radar determine the speed then you’ve got a good chance. On the other hand if notes indicate radar use it going to be very hard to beat, best try to plead it down.


I agree with that... just one minor point... if the officer indicates he did use radar at trial and in the notes, that could lead to some interesting cross-examination by the defence (credibility).


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PostPosted: Fri Oct 09, 2009 3:33 pm 
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Thank you for the additional responses. I think our best defense is to poke holes in the officer's ability to estimate that accurately from roadside.

And it certainly would make for an interesting cross if there is radar use in the notes or testimony. If there IS radar in the notes, should we approach this from two angles? Credibility of the officer and try to poke holes in the reliability of the radar at the same time? Or are we better off to focus on one.

Realistically I am hoping for no/incomplete disclosure and a motion to stay. Hubby is very nervous about the whle trial process.


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PostPosted: Fri Oct 09, 2009 4:11 pm 
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The French Services Language Act requires ALL communications be in both languages regardless of whether or not you actually speak both languages.

All communications includes the cop speaking to you in both languages, the street and speed limit signs must be in both languages, and any text the cop adds to the ticket must be in both languages.

You hubby was stopped in a 80 kph zone. Before reaching the 80 zone, the same road could've had a speed limit of 90 or 70 kph. When the speed limit changed from 70 or 90 to 80, the sign must say 80 BEGINS. The word "begins" must be in both languages.

The MTO does control the point system and points are part of the penalty upon being found guilty. The points affect your insurance rates and driving record.

Section 12(2) of the POA articulates that if you proceed to trial, and are found guilty after a trial, you are facing all other consequences under the HTA.

To me, this is why the points are not displayed on the ticket. Because it only applies if you proceed to trial.

Upon a plain read of the provision, if you settle out of court you are not facing points, despite you plea of guilty.

But I bet you the government is applying points to those who settle out of court, too.

Moreover, according to s. 12(a) points only apply upon a conviction after a trial, but only if you are served an offence notice. If you are served a summons, points cannot apply even upon being found guilty at trial.

But I bet you the government is applying points to those who are served a summons, too.

http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK16

Other consequences of conviction

(2) Where a person is convicted of an offence in a proceeding initiated by an offence notice,

(a) a provision in or under any other Act that provides for an action or result following upon a conviction of an offence does not apply to the conviction, except,

(i) for the purpose of carrying out the sentence imposed,

(ii) for the purpose of recording and proving the conviction,

(iii) for the purposes of giving effect to any action or result provided for under the Highway Traffic Act,


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PostPosted: Fri Oct 09, 2009 7:59 pm 
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Radar Identified wrote:
I agree with that... just one minor point... if the officer indicates he did use radar at trial and in the notes, that could lead to some interesting cross-examination by the defence (credibility).


I understand your point however, JP's tend to give credibility to the cops, so using a "DID NOT" defense will always lose to the cops "DID TOO".

If the cop's notes indicates he used radar and he testifies he used radar then the JP is going to believe he used radar. In this case you will not succeed if you base your defense on your husband say that the "cop told him that he didn't even have time to use his radar gun". As the cop needs to say is either "I never said that" or "he miss understood me, I said I didn't have time to use the radar gun on the other car" and the defense falls apart.

Hopefully the disclosure comes back indicating that no radar gun was used.


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PostPosted: Fri Oct 09, 2009 9:02 pm 
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Frozenover wrote:
JP's tend to give credibility to the cops, so using a "DID NOT" defense will always lose to the cops "DID TOO".


Well, yeah, unless the defendant has some high level credentials (e.g. another cop)... which probably isn't the case here. I'd been under the impression that siobat and her husband were both in the car at the time, so there would be a witness to the "didn't have time," albeit a biased one... but, having re-read the original post, doesn't look like that was the case. So... that's out the window regardless...

Frozenover wrote:
Hopefully the disclosure comes back indicating that no radar gun was used.


Indeed. Or...

siobat wrote:
Credibility of the officer and try to poke holes in the reliability of the radar at the same time? Or are we better off to focus on one.


Given the circumstances, try to focus on the radar, if that's the case. If the notes show the radar was used, then you are entitled to get a copy of, or at least view, the radar manual. If they don't do it, you can apply for a stay of proceedings. :D

To question the reliability of the radar reading, take a look at neo333's posts. (A lot of work...) It has been very disappointing that he did not stick around. Here's the main topic link... man did he ever do his homework...

http://www.ontariohighwaytrafficact.com/topic1092.html

You can also plea-bargain, of course. This is the easiest and most reliable way of reducing the fine, if you're interested in that approach. Target 15 over, although they'll usually try for 19 over with that sort of speed. The issue then becomes the insurance. A handful of companies won't give an increase for 15-over, but many of them treat all speeding tickets from 1-49 over (some 1-44 over) the same. Depends on your provider.


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PostPosted: Tue Dec 01, 2009 2:31 pm 
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Ok...

We finally received disclosure a couple of days ago. This is what I had requested:

- a full copy of the police officer’s notes;
- a copy of both sides of the officer’s copy of the ticket (Notice of Offence);
- a typed version of any hand written notes;
- witness will say statements;
- witness statements;
- any statements made by the defendant;
- copies of the original notes of such statements; and
- the names and address, occupation and criminal record of the persons providing such information.
- the make, model, and serial number of any radar/lidar unit used, and its owner's manual;
- the officer’s training record specific to the said radar/lidar unit, and any other training received with the purpose of estimating vehicle speed;
- the calibration record, service record and repair history of the said radar unit;
- copies of any written instructions/procedures/guidelines/policies held by any division of the Ontario Provincial Police regarding the use of radar/lidar units;
- and any other documents the Crown may rely on at trial.

All we received back was a copy of the disclosure request I sent, a photocopy of the officer's notes (which aside from the fact I can tell radar use is mentioned, are damn near ineligible - he should have gone to med school instead). There is No written and circled beside our request for a typed version of the notes.

Court date is January 20th. I'm going to send another request for the missing items... do I need to mention on there that it is a second request?

I am concerned that since the date is approaching so quickly and there are a ton of holidays in between now and then, that if they do not provide us adequate disclosure with this second request, that we will not have the time necessary to file an application to stay the charge. What is the best way to proceed from here?


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PostPosted: Wed Dec 02, 2009 5:13 pm 
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The items you are entitled to get include the officer's notes and a copy of the relevant parts of the radar manual. Basically, it's the stuff that would allow you to make a "full answer and defence" to the Crown's case. In cases like this, you can ask for a "will say" statement but the odds of actually getting one are low. Definitely mention that it is a second request, and that the notes are illegible.

Since it is only a few months after the ticket, on the 20th you can ask for an adjournment to get the critical remaining item (radar manual) and also point out the notes are illegible to the JP. Mention to the JP that you need this information in advance (legible notes especially) to adequately prepare your case for trial, and cannot be reasonably expected to respond to the Crown "on the fly" during trial. Disclosure of the radar manual is required if the device is going to be used by the Crown "testimonially" in court. There's enough case law out there that if the Crown does not provide the relevant parts of the manual, it is sufficient to stay the charge.

The reason an adjournment would be in order instead of a stay is that the Crown has only responded to one disclosure request. You need to demonstrate that the Crown has deliberately deprived you of the information you need to make a full answer and defence. That said, if a response to your second disclosure request arrives and it does not include the radar manual (or at least parts of it), try to stay the charge. It just might work.


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