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125km/h in a 80km/h zone - Interesting Day at Trial
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PostPosted: Wed Apr 14, 2010 5:22 pm 
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Here's the story:

Oct 1 2009: charged with Speeding
Nov 19 2009: requested for a court date
Dec 22 2009: received a court date for Apr 11 2010
Dec 30 2009: Requested Disclosure
Feb 2 2010: requested follow-up on Disclosure
Feb 12 2010: recieved disclosure pickup
Feb 14 2010: pickup disclosure
Mar 4 2010: requested on the missing disclosure. Including Officer's train, Certification, Proceedure of the Lazer use, typed verion of notes, criminal record of the persons providing information.
Mar 22 2010: Filed a Stay for incomplete disclosure

On date of trial:

- the officer was there
- Crown claimed that they send a letter on Mar 19 2010 for the pickup
- I aruged that I didn't recieve the letter and I was in the Crown's office on Mar 22 2010 when I was filing the stay but the clerk didn't advise me that disclosure was ready for pickup.
- Crown agrued that Section 7 doesn't apply to me
- Worship didn't accept the stay
- Adjoured to another date.
- Crown gave me two dates one in June and Oct.
- I picked Oct. because I didn't want to miss work within short period of time.
- Crown pointed out to the Worship that it was me that didn't choose June (closing the door on delayed trial)
- Crown also stated that "If there are any missing disclosure, speak to the Crown's office and don't bring it to court at the last moment."

Got the disclosure package and the information I asked for are still missing!!! (Gave me the package after the date is adjoured)

Question is, what should I do now?

1. Request for the missing disclosure?

2. Can I still file 11b for unreasonable delay? (even the Crown gave a June date but he said I declined and picked Oct?)

Thanks for all the help so far, I wouldn't have gone this far without all of you guys.


Last edited by yamahaR6 on Wed Apr 14, 2010 8:34 pm, edited 1 time in total.

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PostPosted: Wed Apr 14, 2010 8:25 pm 
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I'm pretty sure that the delay is now attributable to you as a result of the JP's decision...so 11b no longer applies.


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PostPosted: Wed Apr 14, 2010 10:27 pm 
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Yep, delay charged to defendant...

yamahaR6 wrote:
requested on the missing disclosure. Including Officer's train, Certification, Proceedure of the Lazer use, typed verion of notes, criminal record of the persons providing information.


What disclosure did you get? Did it include the officer's notes and the portions of the manual pertaining to testing/use of device? (I'm going to guess the manual wasn't included.) As for the rest of the stuff:

- Typed notes. Can you read the hand-written notes you got? If not, then making the request for the typed notes is perfectly reasonable, but you must tell the Crown that you are unable to read the notes. If you could read the notes, then this will absolutely not be granted.
- Officer's training & certification. The officer will testify to this at trial. Proof of it is not required to be disclosed to the defendant in advance of the trial.
- Criminal record of persons providing information. This will not be disclosed. A Criminal Code Impaired Operation trial, maybe. But HTA speeding, no.

Disclosure is to enable you to make a full answer and defence to the charge. A mountain of evidence is not required. Speeding is an absolute liability offence and, as such, there are only a few avenues of defence. Really, only failure to disclose the notes or the relevant parts of the manual (if you can articulate a reason for needing the manual) will ever get a stay in these cases.

If the manual is not included, there's lots of case law out there that could back up a stay request... but you'll have to show that you made a reasonable effort to obtain it...

_________________
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


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PostPosted: Thu Apr 15, 2010 12:28 am 
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The missing disclosure I requested are:

1. The officer's training record and certification related to use of radar units.

2. Calibration record of laser unit.

3. Copies of written instructions/procedures held by any divsion of the Ontario Provincial Police.

I specifically requested them and it's the reason I filed for a stay.

Thanks RI for the quick response.


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PostPosted: Thu Apr 15, 2010 9:07 am 
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yamahaR6 wrote:
Copies of written instructions/procedures held by any divsion of the Ontario Provincial Police.


Not sure if Odot has separate written instructions. If they do, and they're substantially different than the manual or require specific things to be done, then it should be disclosed to you.

_________________
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


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PostPosted: Thu Apr 15, 2010 10:13 am 
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[quote="yamahaR6"]The missing disclosure I requested are:

1. The officer's training record and certification related to use of radar units.

Won't get. Officer will testify if they are qualified or not. That is all that is required

2. Calibration record of laser unit.

Won't get. Tests of calibration are done before stop and after stop.

3. Copies of written instructions/procedures held by any divsion of the Ontario Provincial Police.

Won't get. As All our training is In accordance with manufactures manual

I specifically requested them and it's the reason I filed for a stay.

Thanks RI for the quick response.

Just because you request something does not mean you will get it or that it even exists.

OPS Copper( Now this is only for the crowns here and what I have seen)[/b]


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PostPosted: Thu Apr 15, 2010 2:24 pm 
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1. The importance of disclosure of Officer's training record and the Calibration Record of Radar Unit:

I refer to R. v. Martin, 2008 ONCJ 217 . The Defendant was charged with speeding contrary to section 128 of the Highway Traffic Act. A laser detector was used by the police and this raised the question about Officer's training record and the accuracy of the laser's measurement used. The Court stated in paragraph 19 and I quote:

"No evidence was adduced that Officer Zarrello had ever received any training in the use of the "laser" device from, by or on behalf of the manufacturer of the very device he was using."

continue to paragraph 28, and I quote:

"In the case at bar there was little or no evidence called by the Crown to allow a trier of fact to support the conclusion that Officer Zarrello was trained and experienced in the use of the laser, that he tested the laser before and after its use, or to support the conclusion that the laser was operating correctly and that measurements of the appellant’s speed by the laser device was accurate or reliable."


2. The importance of disclosure of Radar manual and instructions, procedures, guidelines and policies

I refer to R. v. Wheeler, 2007 CanLII 14854 . There the Defendant was charged with speeding and request disclosure of the radar manual and the operation standards pertaining to the radar device. The Court stated in paragraph 28, and I quote:

“if the Royal Newfoundland Constabulary have operation standards which its officers are expected to follow when using a radar device, then these are sufficiently relevant to be disclosed. "

3. Copies of written instructions/procedures held by any divsion of the Ontario Provincial Police.

I refer to The Queen v. Bourget, [2007] N.W.T.J. No.78 , a judgment of the Northwest Territories Territorial Court. There the Defendant was charged with speeding and sought disclosure of copies of any written instructions, guidelines, policies regarding the use of radar and portions of the radar unit operator's manual that outline the use and limitations of the radar unit, including but not limited to target acquisition, false readings, multiple readings, tracking and targeting. The Court stated in paragraph 12, and I quote:

"The third item requested is “Copies of any written instructions/guidelines/policies held by any division of the City of Yellowknife regarding the use of radar units by the City of Yellowknife Personnel.” If such guidelines existed, they would in my view be relevant and ought to be disclosed."


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PostPosted: Thu Apr 15, 2010 4:31 pm 
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Location: somewhere in traffic
Net sum:

Quote:
2. Calibration record of laser unit.

Won't get. Tests of calibration are done before stop and after stop.


Disclosure of officers notes. What about the alignment check?

Quote:
1. The importance of disclosure of Officer's training record and the Calibration Record of Radar Unit:
2. The importance of disclosure of Radar manual and instructions, procedures, guidelines and policies
3. Copies of written instructions/procedures held by any division of the Ontario Provincial Police.



According to OPS Copper, the manual holds the keys. Get your eyes on the manual.

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http://www.OHTA.ca OR http://www.OntarioTrafficAct.com


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PostPosted: Thu May 27, 2010 11:19 am 
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Joined: Thu May 28, 2009 10:55 am
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Location: Toronto, Ontario
yamahaR6 wrote:
1. The importance of disclosure of Officer's training record and the Calibration Record of Radar Unit:

I refer to R. v. Martin, 2008 ONCJ 217 . The Defendant was charged with speeding contrary to section 128 of the Highway Traffic Act. A laser detector was used by the police and this raised the question about Officer's training record and the accuracy of the laser's measurement used. The Court stated in paragraph 19 and I quote:

"No evidence was adduced that Officer Zarrello had ever received any training in the use of the "laser" device from, by or on behalf of the manufacturer of the very device he was using."

continue to paragraph 28, and I quote:

"In the case at bar there was little or no evidence called by the Crown to allow a trier of fact to support the conclusion that Officer Zarrello was trained and experienced in the use of the laser, that he tested the laser before and after its use, or to support the conclusion that the laser was operating correctly and that measurements of the appellant’s speed by the laser device was accurate or reliable."


2. The importance of disclosure of Radar manual and instructions, procedures, guidelines and policies

I refer to R. v. Wheeler, 2007 CanLII 14854 . There the Defendant was charged with speeding and request disclosure of the radar manual and the operation standards pertaining to the radar device. The Court stated in paragraph 28, and I quote:

“if the Royal Newfoundland Constabulary have operation standards which its officers are expected to follow when using a radar device, then these are sufficiently relevant to be disclosed. "

3. Copies of written instructions/procedures held by any divsion of the Ontario Provincial Police.

I refer to The Queen v. Bourget, [2007] N.W.T.J. No.78 , a judgment of the Northwest Territories Territorial Court. There the Defendant was charged with speeding and sought disclosure of copies of any written instructions, guidelines, policies regarding the use of radar and portions of the radar unit operator's manual that outline the use and limitations of the radar unit, including but not limited to target acquisition, false readings, multiple readings, tracking and targeting. The Court stated in paragraph 12, and I quote:

"The third item requested is “Copies of any written instructions/guidelines/policies held by any division of the City of Yellowknife regarding the use of radar units by the City of Yellowknife Personnel.” If such guidelines existed, they would in my view be relevant and ought to be disclosed."


Like Reflections said, The radar manual is the KEY. You need it and are entitled to it!

#1. You will not get officer's training record in disclosure. It is not required for disclosure, but crown will likely bring it out in court with officer's testimony.

#2 You will not get calibration records. They don't do tuning fork tests in Ontario. But they are required to test before and after the stop (usually at the start and end of shift). This is important and should be disclosed.
In terms of the officer's notes, did you get information on HOW and WHEN the unit was tested?? This is vital. They usually do not disclose this as they usually only give you the notes pertaining to your specific incident. As they test the unit before and after the shift, they usually dont give them to you. You must specifically ask for notes on how and when the unit was tested.

#3. Radar manual must be disclosed if requested. If you don't get it and make a repeated effort to get it, you may get a stay for improper disclosure.

Also, in my humble opinion, policies and procedures should also be disclosed as per Bourget, Wheeler, and Robichaud. I know for a fact that in Toronto, at least one policy/procedure does exist: Toronto Police Procedure No. 07-10, entitled “Speed Enforcement”. http://www.canlii.org/en/on/onipc/doc/2006/2006canlii50669/2006canlii50669.html I'm not sure about OPP.
So there is case law to support this, but I'm not sure how this would play out in terms of getting a stay if this is not disclosed. This avenue should be explored further....


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Re:
PostPosted: Fri Oct 25, 2013 2:49 pm 
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OPS Copper wrote:
yamahaR6 wrote:
The missing disclosure I requested are:

1. The officer's training record and certification related to use of radar units.

Won't get. Officer will testify if they are qualified or not. That is all that is required

2. Calibration record of laser unit.

Won't get. Tests of calibration are done before stop and after stop.

3. Copies of written instructions/procedures held by any divsion of the Ontario Provincial Police.

Won't get. As All our training is In accordance with manufactures manual
[/color]

OPS Copper( Now this is only for the crowns here and what I have seen)[/b]


The officer testified that he never read the manual -he knows only the testing part
what do we do here?


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