I'm preparing my defense (trial in 3 weeks) and I'm wondering how I can go about finding good case laws regarding radar gun.
I was pulled 44km over with a HANDHELD GENSIS DIRECTIONAL and I plan to attack every angle of the officer + radar gun.
I've learned a ton from this forum and plan to pay it forward to people in the future with a fairly long post of my case and what I plan to do.
The problem in Ontario is that the courts have decided that the officer only needs to say "I am a qualified operator" and that "I beleive the radar was working correctly at the time". Since there is no statuatory requirement for training or testing procedures, the courts will simply say that "I am satisfied with the officers testimony that he is qualified and the unit was working properly".
Yes you can absolutely question the officer upside down and backwards about his training and his knowledge of the use of the device, however the JP will most likely in the end just blow all that off and say "I am satisfied with the officers testimony that he is qualified and the unit was working properly".
All the case laws I read have the same flaw from a defense perspective... "The defense called no contradictory evidence"
So this means that the defense may have done a great job cross-examining the officer, however that was not enough to bring reasonable doubt. And they did not put their own expert on the stand. The defendant themselves may have testified, but their testimony is not equal to the officers (from an expertise perspective) and therefore it again did not raise enought doubt.
Read R. v. Xu, 2012 ONCJ 278 (appeal decision by Judge) http://canlii.ca/t/fr8nn
This case does a good job of explaining Essential Elements and also explains how certain things MAY (not must) bring reasonable doubt to the officers testimony. It even says that if the officer does not follow the manufactureres testing instructions this MAY (not MUST) bring doubt!
And it says "the evidence coming from the police officer who operated the specialized equipment used to detect speeding vehicles is expert testimony."
It also says "It is also important to remember that contradictory evidence is one of the most important factors to consider in weighing evidence."
Read R. v . Piacente, 2013 ONCJ 169 (appeal decision by Judge) http://canlii.ca/t/fwvg4
Now this case, comparison with R v Xu says that "It was not necessary for officer to be qualified as an expert witness".
My opinion is that cross-examination will only bring reasonable doubt if the officer actually admits that they don't have proper training or actually admits that there may be some kind of issue with the device.
The best way to beat it is to have your own expert witness take the stand as well. Of course this costs additional money, but this may still be cheaper than losing at trial and then having to go to an appeal to try and win. I lost the last trial where I was fighting a speeding ticket (trial took 4 hours). I believe I had a very high chance of winning on an appeal, however the cost for transcripts alone was $1,100.00. So with $120 fine and possible insurance increases would still be much less than that. I do tend to fight things on principle, however in this case I just did not have the money to continue with the appeal.
I am currently trainig myself up to be an expert witness because I am not aware of any in Ontario at this time.
+++ This is not legal advice, only my opinion +++
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