Got a ticket in early March 2016 for 80KM/H in a 60 KM/H Zone on HWY 7 Eastbound after after Bayview Ave where speed limit changes from 80 KM/H to 60 KM/H. Police officer marked down to 80 KM/H from 92 KM/H.
I filed for disclosure at York Region after getting the Trial date in Late July 2016 per instructions. Finally got the disclosure last week in Early November 2016. York Region has a standard Request for Discloure form which I filled out, it did not allow you to specify exactly what you want in the disclosure.
I was actually surprised at the contents of the disclosure since it was my first time filing for one. Maybe it is York Region but everything was typed out and I even got a Dashcam DVD video clip.
Here is a summary of what was stated in the disclosure:
-Weather: Dark & Clear with artificial lighting along HWY 7
-Road: Clear & Dry
-Radar enforcement was donducted monitoring eastbound traffic on HWY 7 East in the Viva Bus Lane.
-Police had clear view of oncoming eastbound traffic with no obstructions.
-Pavement is level with slight curve to the left past Bayview Avenue.
-Posted speed limit is 60 KM/H
-Described that there were 3 speed limit warning/signs and they were all unbostructed.
-RADAR GHD #13164 was tested at 0120 hours, as per the manufacturer's specification. The GHD Radar was set to "T"
-At 0122 Hours, a motor vehicle (mine) was travelling at a rate of speed above the posted speed limit estimated at approx. 80 km/h.
-Clear view of vehicle travelling appx at the speed limit (car ahead of me) and the car (mine) was rapidly overtaking the vehicle in front.
-Radar was activated. Read of 64 km/h was obtained and 92 km/h was also obtained and locked. Speeding reading was consistent with observations of the first & second vehicle.
***On the disclosure it noted, On this date, the writer (officer) rembembers doing a after-test for the offence but failed to make a note of the test time. No other notes exist other than the TK text page.
So guys, at this point would I have a strong enough case to ask the case to be dimissed based on the fact that the officer did not note down that testing was done on the radar after and to simply say he remembers is not good enough? I mean how can you remember if you did or did not from that long ago.
When at Trial, would I first object to him referencing his notes in order to establish independent recollection of the events in case prosecution asks for it? Question the officer which lane my vehicle was in, if there were any passengers in my vehicle to see if he would remember any of it and if he doesn't I could bring up then how can he remember 100% that he tested the radar after eventhough it is not in his notes?
I am thinking about filing a second disclosure to ask for:
-The exact radar manufacturer & model as I assume RADAR GHD #13164 indicated is not really an actual model but a device number that York Region Police uses?
-Operating Manual of the Radar, specifically on the Calibration & Testing parts of the unit.
-Radar Certification/Training proof of the officer.
I hear York Region Police do not calibrate their Radar devices with Tuning Forks? So I would not be able bring that into questions I assume?
Anyone have any suggestions as to what this entails:
-RADAR GHD #13164 was tested at 0120 hours, as per the manufacturer's specification. The GHD Radar was set to "T"?
I think my strongest defence is the fact that testing of the device was not in the officer's note. Would be grateful if any of you with experience could offer me further advise.
No you wont get it dismissed just by saying he did not write down second test time. Since he is going to testify that he did it, even though he did not write it down, you need to find some case laws on that issue to help you and figure out how to cross-exmine him on this issue.
Start reading around paragraph 69 "usual practice" of Durham (Regional Municipality) v. Zhu, 2011 ONCJ 193 http://canlii.ca/t/fl3wg
You can object to officer using his notes but most likely the JP will still allow it. But you can cross-examine and ask officer tons of questions about recollection if you want to try and bring doubt to his independent recollection.
GHD is Decaturs Genesis Handheld radar. You should have at least gotten the test pages for this device. Most likely, unless you are very skilled at arguing in court, you will have a hard time convincing them to give you anything other than the test pages. But the test pages are important so you should definitely put in a request for "the whole manual" so you will at least get the test pages.
You can also mention in your request for the manual that the notes state "mode was set to T" so you would definitely like the section of the manual that explains these mode settings.
Thanks, I will be heading in to file for additional disclosure for the manual and especially the sections specified for testing.
The usual practice argument likely won't work as the officer states he recalls doing the test, just didn't note it...if he actually says something to the effect that it is his usual practice to do it, then that line of defence may work...The "T" is simply the mode the radar was in: The Towards mode-the radar will only pick up vehicles that are moving towards the radar, not away, so there can be no argument that a vehicle moving in the opposite direction gave the reading...I have never seen a JP not allow an officer refer to their notes...
A point of caution. As I understand, from what you have stated: Your current offence is 20 km/h over the posted speed limit, reduced at roadside from 32 km/h over the posted speed limit.
The roadside reduction dropped you from the second-highest bracket of speeding offences (30-40) and 4 demerit points, down to the next lower bracket (16-29) and 3 demerit points.
Should your matter proceed to trial, the Prosecutor may seek to have the rate of speed amended back to the higher, original rate of speed.
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