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Ontario Highway Traffic Act

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136 on QEW Westbound near Gray's Rd
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PostPosted: Mon May 23, 2011 5:00 pm 
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While the world did not end on 21-May-2011, I got pulled over around 3:36PM for speeding @ 136 in a posted 100 zone on QEW Westbound near Gray's Rd.

The cop was in an un-marked black car in the center lane. There was another vehicle behind him which made it a bit difficult to see the cop car. The QEW westbound was fairly busy and had other cars in the left lane.

I was passing in the left lane at approx 126 and as I came along side I saw the *hidden* blue lights mounted in the back window. I passed both cars and the cop moved into the left lane with his flashing blue lights on.

The cop presented the ticked and did not show the radar. My passenger and I questioned the 136 to which the cop said he clocked me on his radar from way back and it was that speed not when I saw him. These were the only words we said, the cop explained the ticket and told us to drive safe.

I read some of the posts here and the information on TicketCombat.com.

I live in the London area and these are the steps I plan on taking :-

---------------------
1. Go to the Hamilton POA on Wed, 25-May-2011 and file a "Notice of Intention to Appear"

Hamilton POA --> http://www.hamilton.ca/CityDepartments/ ... ration.htm
Notice of Intention to Appear --> http://www.hamilton.ca/NR/rdonlyres/373 ... ed0109.pdf

2. Do not accept/request a "First Attendance" meeting since the prosecutor will mostly like only reduce it down to 129 (3 demerit points).

3. Submit the disclosure request. Add the following to the TicketCombat Dislosure request --> http://www.ticketcombat.com/step4/sampledisclosure.doc

- Calibration Certificate for the Radar
- Calibration Certificate for any calibration equipment (may sound stupid, but in a proper calibration, you should be able to trace the equipment back to the standard)
- Certificate of Conformance (a written record indicating that the unit was manufactured to standard, and more importantly calibrated properly, available from all ISO9000 companies)
- Industry Canada certificate certifying that the unit has been approved for use in Canada

Thanks to z24guy for this info. --> topic3398.html
---------------------

Questions

Q1. Does anyone have any experience/knowledge in dealing with the Hamilton POA. ?
Q2. Would Wed be a *good* day to file a "Notice of Intention to Appear" ? (considering Tues is right after a along weekend ?)
Q3. What sort of defense should I use for speeding ? (considering Staton's comment here --> topic3424.html#p20335) (as well any speed over 100 would be an offense by default)
Q4. What are the consequences if it goes to trial and I don't win ? What are the charges, costs or consequences ?
Q5. Should I accept the "First Attendance" meeting and beg for 115 over with no demerit points ? (this reduction is acceptable to me)
Q6. Should I wait for trial day and hope to get a better plea offer from the prosecutor ? (similar to 5)
Q7. Can I have a lawyer or para-legal take over after the trial date is set or any point after ?

Any help is much appreciated.

Fear is the mind killer.

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Mon May 23, 2011 6:22 pm 
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Q3. What sort of defense should I use for speeding ? there is no defence (other than necessity/duress) that you can use -it's an absolute liability offence. All you can do is try to raise reasonable doubt by attacking the prosecutor's evidence.
Q4. What are the consequences if it goes to trial and I don't win ? What are the charges, costs or consequences ? Fine is set by the HTA for speeding, + customary costs and surchage (depends on the amount)
Q5. Should I accept the "First Attendance" meeting and beg for 115 over with no demerit points ? (this reduction is acceptable to me) It can't hurt, but in my experience a 21 km/hr reduction would be a tough sell.
Q6. Should I wait for trial day and hope to get a better plea offer from the prosecutor ? (similar to 5) You can, but if you take it that far and they've gone through the trouble of bringing the officer to court it's unlikely that they'll be inclined to give you much of a deal. On the other hand, if you take it that far and the officer doesn't attend, there's a good chance it will be dismissed.
Q7. Can I have a lawyer or para-legal take over after the trial date is set or any point after ? Yes.

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Mon May 23, 2011 7:29 pm 
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A3. there is no defence (other than necessity/duress) that you can use -it's an absolute liability offence. All you can do is try to raise reasonable doubt by attacking the prosecutor's evidence.

>> In this case one would want the someone with experience to conduct the defense.

A4. What are the charges, costs or consequences ? Fine is set by the HTA for speeding, + customary costs and surchage (depends on the amount)

>> The ticket was written for $271.

Q8. Will respect to Q4, will the costs be more than original ticket of $271 ? If yes, what would this be ($100,$200,$1000) ?

Q9. Did anybody have success with one these firms or another firm ?

Pointts --> http://www.pointts.com/
Road Warriors Paralegal Services --> http://www.roadwarriors.ca/

Q10. What's the typical cost charged by one of these firms ?

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Mon May 23, 2011 8:15 pm 
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Location: Ontario
Your speeding fine may be somewhat higher if found guilty at Court since set fines (what's on your ticket) are less then Court fines. For 36 over you'd be looking at a total fine of $317 ($252 fine, $60 surcharge, $5 court fee). Sometimes they stick with the set fine, but no guarantee.

Paralegal costs will depend on services provided. If you insist on a trial, you'll likely pay more then if you just want a reduction. Their services usually cost more then the fine itself, so you have to decide how much it's worth for you to fight the charge.


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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Tue May 24, 2011 12:05 am 
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Also - please do NOT use everything Ticketcombat recommends on the disclosure request form. For speeding, you should ask for the officer's notes, the radar manual, and the stuff that "z24guy" suggested (Certificate of Conformance, etc). The lack of a Certificate of Conformance may prove to be a temporary wrench into prosecuting speeding tickets. (They'll fix it sooner or later.) Can't hurt to give it a shot in the mean time. Also, you should look up Industry Canada's regulations and requirements with respect to radio transmitting and receiving devices, as a radar falls into that category. I'm not sure it will work, given that is a "novel defence," but you can certainly try if you're willing to take the risk.

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Tue May 24, 2011 9:58 am 
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Firstly, thanks for the prompt response and advice.

The risk appears to be $200-$500 + 4 demerit points , if I pay now or go to trial. There is no *jail* time or other extreme consequence, correct me if I'm wrong.

The offense was issued based on a measuring device and the presumption that it is calibarted properly to provide a true/accurate measure. I work in Cancer Treatment industry and you would not believe the standards, testing, calibration, acceptance and daily quality checks required. Blind trust should not be given and only absolute proof accepted once provided.

Admiralty law (also referred to as maritime law) is basically an offer and acceptance system. The ticket is the offer (the officer's claim) and the acceptance would be the payment of said ticket.

ATM, the defence is:

1. No IC Certificates (high probablility)
2. Improper Calibration (average probability)
3. Officer does not show up (average probability)
4. Problem with Officer notes
5. Canadian radiation safety regulations (more research required)
6. Plead guilty to a lesser or original charge, if the above are in order

Here's the modified disclosure request :

- 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;
- Calibration Certificate for the Radar;
- Calibration Certificate for any Calibration Equipment;
- Certificate of Conformance;
- Industry Canada Certificate certifying that the unit has been approved for use in Canada;

These items were removed :

- 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.

Questions

Q11. Does anyone have manuals for the Radar model(s) being used in Ontario ? Maybe I can start my research sooner and get prepared.
Q12. Do I send the disclosure request before the trial date is set ?
Q13. Do I have to use/submit this disclosure form provided by the Hamilton POA ? (http://www.hamilton.ca/NR/rdonlyres/C7E ... losure.pdf)

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Tue May 24, 2011 3:53 pm 
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Plasmator wrote:
Admiralty law (also referred to as maritime law) is basically an offer and acceptance system. The ticket is the offer (the officer's claim) and the acceptance would be the payment of said ticket.


I'm not sure what admiralty law has to do with the Highway Traffic Act. Also, the problem with analogizing tickets to a contractual model of offer and acceptance is that contract theory generally requires agreement of both parties to be contractually bound, whereas it doesn't matter whether you agree with the ticket or not; if it is substantiated, you are bound.

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Tue May 24, 2011 5:39 pm 
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Your modified disclosure request looks complete and relevant, given the angle you're trying to pursue. If they are not able to produce an Industry Canada Certificate of Conformance, then it is worthwhile explaining why this is required. The courts have accepted calibrated speedometers, radar and laser as being valid speed measuring devices, however they did not specifically say that they accept any specific make/model, to my knowledge. It may work, it may not.

You are correct, there is no jail time with this offence. Worst-case scenario would be a conviction with the statutory fine administered instead of the set fine, plus four demerit points. Your insurance would probably go up as well.

Admirality Law does not apply to your case.

Plasmator wrote:
I work in Cancer Treatment industry and you would not believe the standards, testing, calibration, acceptance and daily quality checks required.


Actually, I would. (Holder of an Industry Canada Restricted Radio Telephone Operator's Permit.)

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Thu May 26, 2011 7:39 pm 
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Sounds like this cop needed to meet his quota! LOL

If you were speeding, which has been admitted, you'll be subject to some form of penalty.I don't see the ticket being thrown out. If your driving record is decent go to a first appearance meeting, explain what happened and ask for 115KM in 100KM. If it's refused take what ever deal they offer. Sorry about your luck.


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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Sat May 28, 2011 1:10 pm 
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Location: In YOUR rearview mirror!
This information is very very readily available,
- Industry Canada standard is printed in the radar manual
- All calibration certificates are kept on file for each individual radar unit

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Sat May 28, 2011 5:27 pm 
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The cop does not have to show you the radar. You cannot be driving 136km/h and have any reasonable defense. You're not 10 over, 15, 20, or even 30 over. You're 36kph over the speed limit, which is not an oversight and has no defense. You will have received 4-demerit points for driving 36 over the limit, in which case you may want to spend the money for a traffic defense lawyer to try negotiating no points if it's your first offense. Even if the cop has no radar reading, they will just refer to their own speedometer as a speed reference. You have a chance of slim-to-none of winning this one. Good luck with your situation.


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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Sat May 28, 2011 10:11 pm 
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nerd wrote:
you may want to spend the money for a traffic defense lawyer to try negotiating no points if it's your first offense


You can't negotiate the points.

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Sun May 29, 2011 12:39 pm 
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nerd wrote:
You cannot be driving 136km/h and have any reasonable defense.


Incorrect. It is called "defence of necessity." If you or someone in the vehicle has a life-threatening emergency, that is a valid reason for speeding. It is a rare occurrence, but if the defendant is truthful, it is valid nonetheless. And defence of necessity is accepted by the courts.

nerd wrote:
Even if the cop has no radar reading, they will just refer to their own speedometer as a speed reference.


Speeding cases are not beaten by "defences" (unless it is defence of necessity). They are won on technicalities.
- Did the officer lose sight of the vehicle prior to the stop?
- Did the officer properly test the device before and after the stop?
- If tested properly, was the device properly used?
- Did the officer do a tracking history?
- Did the officer properly serve the defendant, and is the ticket complete and regular on its face?
- Is the trial brought forward within a reasonable period of time? (11B)
- Does the Prosecutor properly disclose the relevant evidence to the defendant?

"Slim to none chance"? I've seen more cases stayed, withdrawn or thrown out due to technicalities than people convicted of their original speed. First offence or not, in the majority of cases, the defendant pleads guilty to a lesser speed. A traffic lawyer or paralegal is not required for plea-bargaining, unless the defendant is intimidated by the process or does not have the time.

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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Sun May 29, 2011 11:20 pm 
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Simon Borys wrote:
nerd wrote:
you may want to spend the money for a traffic defense lawyer to try negotiating no points if it's your first offense


You can't negotiate the points.


Sorry, that wasn't said well. I mean negotiate a reduced or ammended charge that does not carry demerit points.


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Re: 136 on QEW Westbound near Gray's Rd
PostPosted: Sun May 29, 2011 11:55 pm 
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Radar Identified wrote:
nerd wrote:
You cannot be driving 136km/h and have any reasonable defense.


Incorrect. It is called "defence of necessity." If you or someone in the vehicle has a life-threatening emergency, that is a valid reason for speeding. It is a rare occurrence, but if the defendant is truthful, it is valid nonetheless. And defence of necessity is accepted by the courts.

nerd wrote:
Even if the cop has no radar reading, they will just refer to their own speedometer as a speed reference.


Speeding cases are not beaten by "defences" (unless it is defence of necessity). They are won on technicalities.
- Did the officer lose sight of the vehicle prior to the stop?
- Did the officer properly test the device before and after the stop?
- If tested properly, was the device properly used?
- Did the officer do a tracking history?
- Did the officer properly serve the defendant, and is the ticket complete and regular on its face?
- Is the trial brought forward within a reasonable period of time? (11B)
- Does the Prosecutor properly disclose the relevant evidence to the defendant?

"Slim to none chance"? I've seen more cases stayed, withdrawn or thrown out due to technicalities than people convicted of their original speed. First offence or not, in the majority of cases, the defendant pleads guilty to a lesser speed. A traffic lawyer or paralegal is not required for plea-bargaining, unless the defendant is intimidated by the process or does not have the time.


There may be technicalities, but most people need legal representation to explore technicalities. In my experience, even when details of the officer's notes were grossly incorrect when compared with the defendant's testemony, they were taken as an accurate account by the court nontheless. Unless you have solid evidence to show it was an emergency, the defendant could be looking at a grim outcome.

It is the prosecutor's "job" to hear you say guilty, either to the original charge or a reduced or amended charge. In my opinion, it is not wise to plead not guilty to the original charge and go to trial without representation unless you know how to proceed.


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