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Question regarding appeal
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PostPosted: Sun May 10, 2015 12:08 am 
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Joined: Sun Nov 10, 2013 7:35 pm
Posts: 46
Hey,

I posted here a *while* back when I first got my speeding ticket, and I've been fighting it forever. Anyway, long story short - I went and had an appeal and both the prosecutor and the Judge agree that I have valid grounds to appeal on, but what we're arguing is whether the correct remedy is a new trial or an acquittal. The trial got adjourned for the Judge to take some time to consider the evidence, so no matter what happens the appeal is successful.. I'm obviously hoping for an acquittal over a new trial.

I have two questions:

1.) Now knowing that the appeal is going to be successful no matter what, when is the appropriate time to ask for my transcript to be refunded? I am thinking of asking after the Judge 'officially' grants the appeal. I had a Charter right infringed on my first trial that everyone in the courtroom agreed on, and do not feel that I should have to pay out of my own pocket to have a fair trial... I've heard of people getting it refunded successfully, so I was wondering when the appropriate time to discuss that is?

2.) It has now been 18 months since my offence date. In the chance that a new trial is ordered, can I request a stay? This case is especially strong because the officer did not note the second test time on his notes - however, he testified in court that he had independent recollection of the second test (that was 6 months ago at that point - pure BS). Now, with a new trial - his only argument is that he has independent recollection of a test he did ****18 months ago*****, I don't think any JP can rule that an officer testifying that he has an independent recollection of a test conducted 18 months ago proves beyond a reasonable doubt that he tested it. So my stay application is strong in the sense that it severely impacts the credibility of the witness due to the time delay, etc..

What are your thoughts? Also, any case law on any independent recollection arguments, or any case law in general I can use on my appeal? My fear is that the Judge is going to rule that because he had independent recollection of testing it in the first trial, that serves that even if he does not have independent recollection if a new trial is presented, he does not need at because at a point in time, he said under oath he tested it. Would that argument hold any credibility? I think it's a bogus argument in itself because there's no way he had independent recollection in the first place, considering he couldn't even recall the conversation we had 30 minutes prior to the trial... but from my experience JP's are biased towards the prosecution and it takes overwhelming evidence to sway them...

So any thoughts/opinions? Anything may help. Thanks guys.


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Re: Question regarding appeal
PostPosted: Sun May 10, 2015 12:39 am 
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Posts: 550
On what grounds are you getting this appeal? What happened at the first trial? I'd be very surprised you were able to successfully appeal due to a missing second test time in the notes. There are prosecutors today getting convictions without any notations of testing times whatsoever. It's the trial JP's discretion as to whether he wants to see notations or not.

R. v. Roshani-Kalkhoran [2005] O.J. No. 2387
Quote:
Appeal by Roshani-Kalkhoran from a conviction for speeding. Roshani-Kalkhoran claimed that the trial judge erred by remarking that his defence was implausible, thus not giving him the chance to present his case. He argued that the judge erred in accepting the police officer's testimony that he tested the radar based on the officer's standard practice, and that the judge provided insufficient reasons for his decision.

HELD: Appeal dismissed. The court's interjection was proper. There was no evidence before the court supporting Roshani-Kalkhoran's defence. From his testimony, it appeared that the officer had a standard operating practice for testing the radar. The standard practice afforded the court some evidence upon which to found the conviction and to believe that the testing was carried out on the day of the offence. Given that there was no conflicting evidence, the court was not required to go at length into issues of credibility.

____________________________________________


14 It turned out the officer had no note as to the time that he made the test but he testified to his usual practice in saying:

"I would test it before I proceed from the office and upon my arrival at the end of shift I would again retest the unit."

16 R. v. Thompson (2001), 151 C.C.C. (3d) 339, 345, (Ontario Court of Appeal) where that Court, in what would clearly be binding authority, inconsistent with Lounsbury, indicated that the standard practice of the officer affords a Trial Court some evidence upon which a verdict can be founded, that the usual practice was carried out on the occasion in question.

17 In my view then, this ground of appeal is without merit in that His Worship was entitled to - if he chose - find that the standard practice was given effect to on the occasion in question.

Justice D.M. Stone
Ontario Court of Justice


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Re: Question regarding appeal
PostPosted: Sun May 10, 2015 12:46 am 
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iFly55 wrote:
On what grounds are you getting this appeal? What happened at the first trial? I'd be very surprised you were able to successfully appeal due to a missing second test time in the notes. There are prosecutors today getting convictions without any notations of testing times whatsoever. It's the trial JP's discretion as to whether he wants to see notations or not.

R. v. Roshani-Kalkhoran [2005] O.J. No. 2387
Quote:
Appeal by Roshani-Kalkhoran from a conviction for speeding. Roshani-Kalkhoran claimed that the trial judge erred by remarking that his defence was implausible, thus not giving him the chance to present his case. He argued that the judge erred in accepting the police officer's testimony that he tested the radar based on the officer's standard practice, and that the judge provided insufficient reasons for his decision.

HELD: Appeal dismissed. The court's interjection was proper. There was no evidence before the court supporting Roshani-Kalkhoran's defence. From his testimony, it appeared that the officer had a standard operating practice for testing the radar. The standard practice afforded the court some evidence upon which to found the conviction and to believe that the testing was carried out on the day of the offence. Given that there was no conflicting evidence, the court was not required to go at length into issues of credibility.

____________________________________________


14 It turned out the officer had no note as to the time that he made the test but he testified to his usual practice in saying:

"I would test it before I proceed from the office and upon my arrival at the end of shift I would again retest the unit."

16 R. v. Thompson (2001), 151 C.C.C. (3d) 339, 345, (Ontario Court of Appeal) where that Court, in what would clearly be binding authority, inconsistent with Lounsbury, indicated that the standard practice of the officer affords a Trial Court some evidence upon which a verdict can be founded, that the usual practice was carried out on the occasion in question.

17 In my view then, this ground of appeal is without merit in that His Worship was entitled to - if he chose - find that the standard practice was given effect to on the occasion in question.

Justice D.M. Stone
Ontario Court of Justice


The second test time had nothing to do with the appeal. I appealed on a bias Judge and improper disclosure (never telling me about a second test, and arguing in court he had independent recollection of a second test as cause for conviction). Also, there's a pretty strong rebuttal to that case... which you can argue for anyone interested.

R. v. Schlesinger, 2007 ONCJ 266 (CanLII)
Quote:


Citation: R. v. Schlesinger, 2007 ONCJ 266



R v Schlesinger

Cases considered:



D’Astous v Baie-Comeau (Ville), 1992 CanLII 2956 (QC CA), 74 CCC (3d) 73

R v Amyot, 1968 CanLII 317 (ON SC), [1968] 2 OR 626-634

R v Dagenais, [1911]OJ No 170

R v Henry, 2005 SCC 76 (CanLII), [2005] SCJ No 76

R v Lounsbury, [1993] MJ No 510

R v Morin 1988 CanLII 8 (SCC), [1988] SCJ No 80

R v Niewiadomski [2004] OJ No 478

R v Norton [1996] OJ No 860

R v Roshani-Kalkhoran [2005] OJ No 2387

R v Thompson 2001 CanLII 24186 (ON CA), 151 CCC (3d) 339

R v Vancrey, 2000 CanLII 26961 (ON CA), 147 CCC (3d) 546



Statutes considered:



s. 128, Highway Traffic Act



Charge



At 11:24 AM, on 4 August 2006, Mr David Schlesinger was charged with speeding at a rate of 129 kilometres per hour in a posted 80 KPH zone, contrary to section 128 of the Highway Traffic Act.



Background



On 4 August 2006, OPP Officer Brazier was conducting speed enforcement on highway 6 north, in Puslinch township. The officer was a qualified laser operator and instructor for the device he was operating. He observed a motor vehicle traveling at what he thought was a high rate of speed. He locked the laser on the motor vehicle at a distance of 404.8 metres and found it to be traveling at 132 kilometres per hour in a posted 80 kilometre per hour zone. He subsequently stopped the vehicle without losing sight of it and found that Mr Schlesinger was the driver. Using his discretion, he charged Mr Schlesinger at only 129 kilometres per hour.



Under examination-in-chief by Mr Murray, the officer stated that he tested the device before and after he stopped the defendant’s vehicle. Initially, the officer testified that he tested it first at 11:25 AM. That testing time was problematic as it was one minute after the time of 11:24 AM when the officer locked the laser on Mr Schlesinger’s vehicle. The officer could not accurately read his notes as to testing times while giving his testimony. The officer then stated that it was his usual practice to test the device prior to all speed enforcement stops and therefore he must have done so on that day too. Subsequent testimony indicated that the officer tested the laser again at 7:55 PM. The tests were as per manufacturer’s instructions. He found the laser device to be working correctly after each test.



Mr Schlesinger in his evidence stated that he was speeding but ‘probably’ at only 100 to 110 kilometres per hour. He did not look at his speedometer immediately prior to being stopped.



Mr Murray in his request for a conviction, relied on the officer’s subsequent testing of the laser device at 7:55 PM as proof that it was operating correctly. He also asked me to accept that the officer had tested the laser before he stopped Mr Schlesinger, since this was his usual practice. As well, he asked the court to consider the defendant’s admission as proof that the prosecution’s case was made out.



Analysis



There are three issues that this court needs to consider in this matter.



Question 1) Is it necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop?



In R v Vancrey 2000 CanLII 26961 (ON CA), 147 CCC (3d) 546, the Ontario Court of Appeal (OCA) ruled on this issue. The OCA considered an earlier ruling of the Quebec Court of Appeal in D'Astous v. Baie-Comeau (Ville) (1992), 1992 CanLII 2956 (QC CA), 74 C.C.C. (3d) 73.



In Vancrey, the court adopted from D’Astous that in order to provide an



“evidentiary basis necessary for a conviction for speeding based on a radar reading”

that

“the Crown must still prove that the particular radar device used was operated accurately at the time.”



One of the tests established by the Quebec Court of Appeal to establish such proof was:

“The device was tested before and after the operation”.



The OCA having accepted this ruling then continued at para 21:

“The Crown seeks to uphold the conviction on the basis that there was led at trial prima facie evidence of the accuracy and reliability of the particular laser unit, consisting of the performance of the manufacturer's tests for good working order both before and after the use of the device”

The court then held at para 22:

“In my view, the position of the Crown is correct.”

Therefore, I find that it is necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop.



Question 2) Can this court accept the officer’s statement that it is his usual practice to test a laser device before a speed enforcement stop, as proof that he did so?



In R v Lounsbury [1993] MJ No 510, Manitoba Court of Queen’s Bench Justice Jewers commented on the issue of usual practices. At paragraph 2 the court, when referencing the practises of the police officer who conducted that speed enforcement stop, stated:



“He did say that prior to operating any radar unit he conducts a test to see if it is in working order and after issuing of an offence notice he rechecks to make sure that the machine is still in working order. I take that to be evidence as to his usual practice. He also said that, in this case, he made a note in his notebook that he had performed a test or tests but he did not note the time of the test or tests.”

The court continued:

3 “Evidence as to a particular practice or a standard practice is not proof beyond a reasonable doubt. See the decisions of Kroft J. (as he then was) in the cases of R. v. Jabs (November 19, 1991) (Man. Q.B.) (unreported) and R. v. Wolf (December 8, 1992) (Man. Q.B.) (unreported) and the decision of Beard J. in R. v. Kraemer (February 17, 1993) (Man. Q.B.) (unreported). In Wolf, Kroft J. stated in part:

• "Nonetheless, if we have a situation where testing is a prerequisite, and if the officer, and only witness, obviously cannot say any more than what his common practice is, I cannot take that as a proof of testing. ..."

4 In the instant case there is something more than the evidence of the operator's usual practice: There is an indication in his notes that he did, in fact, perform a test or tests, although the time or times of the tests were not noted and are not known.

5 In my opinion, all that can be safely inferred from the evidence is that the officer did test the radar device and found it to be in good working order at some point or points during the relevant shift. In my opinion that is not enough proof to demonstrate beyond a reasonable doubt that the device was working at the time of the alleged offence.”

In my view, these findings apply equally to laser devices, in Ontario.



In R v Niewiadomski [2004] OJ No 478, Madam Justice Schnall sitting as an appellate court considered a similar set of circumstances to those before this court. Specifically, that court considered the issue of whether it is sufficient for the court to rely on an officer’s assertions that the ‘usual’ tests were done to test a radar device. She stated at paragraph 8:



“Constable Arnett testified to the following:

• He had no notations of the tests he performed on the device prior to using it on that day, to ensure that it was working properly; he could only say that he did the usual' tests that he always performs.”



The court then held:



9 “Evidence that the usual' test was done, is not sufficient evidence to determine that the necessary test or tests were actually performed and thus enable the court to determine beyond a reasonable doubt that the device was working properly at the time of the offence. (R. v. Lounsbury [1993] M.J. No. 510, (Man. Q.B.).”



Justice Schnall’s ruling indicates that notations of the tests done are required for proof beyond a reasonable doubt.



However, there is another line of cases that must be considered in the matter before this court. In R v Thompson, 2001 CanLII 24186 (ON CA), 151 CCC (3d) 339 the OCA considered whether an officer’s evidence that since her standard practice is to check a breathalyzer mouthpiece for obstructions when she unwraps it, this statement can be accepted by a court as sufficient proof of the action.



Morden, JA stated for the court:



[8] “In his reasons the trial judge said: Counsel for the accused argues that one of the necessary elements of the charge is that the machine be in good working order, free from obstruction and that the Crown has failed to satisfy that beyond a reasonable doubt. He points out [page346] that the police officer could not be sure -- in fact had no memory at all of having done that but was relying on her ordinary practice. My view of her evidence is that matters transpired as she related them, that she simply followed her usual practice in connection with unwrapping and certification of the mouthpieces and that there was no need to make a note to that effect. Notes are only made to assist the recollection. I find that on this occasion she did not depart from her usual practice, indeed there is nothing to suggest otherwise.

[9] The trial judge did not misapprehend the evidence. If he accepted P.C. Shields' evidence that it was her standard practice to check the mouthpiece and that she must have done so on the occasion in question, it was reasonably open to him to find, as he did, that she had checked it on the occasion in question. I would not give effect to this ground of appeal.”



In R v Roshani-Kalkhoran [2005] OJ No 2387, D M Stone J, sitting as an appellate court considered the OCA’s decision in Thompson, supra, as it applied to laser testing. At trial, the justice of the peace had accepted the officer’s statement that he had tested the laser device based on the officer’s standard practice of doing so before a stop, despite his lack of notes as to time. That trial justice held that this was sufficient proof of the test having being done.

D M Stone, J in considering this position, stated:

17 “In my view then, this ground of appeal is without merit in that His Worship was entitled to - if he chose - find that the standard practice was given effect to on the occasion in question.”



Therefore, I accept that it is within the purview of the trial justice to decide whether to accept ‘standard or usual practices’ as proof of a test being done.



While this option is open to this court, in my view I must approach it with some caution. An analysis of the issues is helpful.



The act of an officer unwrapping a mouthpiece to place it on a breathalyzer prior to use affords the officer an opportunity to peruse the mouthpiece for obstructions at the same time. It takes no extra effort, in my opinion. My understanding of a mouthpiece is that it is a decidedly uncomplicated and low tech device. The device’s internal and external surfaces are visually evident to the officer unwrapping it from its sterile container and preparing it for use.



As noted in both Niewadomski and Roshani-Kalkhoran, supra, the testing of a high tech electronic laser device involves four separate tests. These tests require strict adherence to the manufacturer’s instructions. They are decidely not trivial nor can they be done by way of cursory examination, in my view. It takes a conscious and explicit effort to follow the proper procedures. A laser’s internal workings are not self-evident to an observer.



As a result, the standards which I believe that I need to apply in being satisfied that the tests have been properly done and the results of those tests verify the device’s accuracy, must be correspondingly higher than those applied to a mouthpiece that is to be affixed to a breathalyzer prior to its use.



The standards that would satisfy this court are:



a) Evidence that the laser tests had been done by a qualified officer according to the manufacturer’s specifications and that the device passed the tests and

b) Evidence of a specific time when the tests were done both before and after a speed enforcement stop .



No time was provided in Officer Brazier’s testimony for his testing of the laser device prior to the stop of Mr Schlesinger.



Therefore, this court declines to accept the officer’s statement that it is his usual practice to test a laser device before a speed enforcement stop, as proof that he did so.


The idea of 'usual practice' being considered 'beyond a reasonable doubt' when four separate tests are involved is pretty absurd. Especially when it is the only cause for a case - don't you think? I'm mainly wondering about if I have an argument for a stay due to an 18 month delay (although trials were held) - but we are now at step 1...

Also, if you want to argue it was said by a JP - you can go back into all the cases he cited and cite those.

Also, this:

http://www.ontariospeeding.com/Speeding ... sbury.html

Quote:
These decisions are certainly consistent with the standard practice of the operator here, which was indeed checked both before and after using the device.

There might be situations where the court could be satisfied of the accuracy of the device where the test was done, either immediately before or immediately after its use, but I need not decide this.

In this case, there was no evidence as to when the checks were done, that is to say whether they were done both prior to and after the alleged speeding or whether they were done before or whether the were done after.

There was no evidence as to when they were done in relation to the alleged offence.

They might as easily have been done at the very beginning of the operator's shift and long before the alleged offence, with the result that there would not have been a sufficiently reasonable assurance that the unit was still working properly at the critical moment.

7. In the result, the speeding appeal is allowed and the conviction is quashed.


It is not hard to argue 'reasonable doubt'. Prosecutors will have you believe that reasonable doubt is significantly less than what it is. Under the Presumption of Innocence in the Canadian Constitution, you are innocent until *proven* guilty. Without a second test time, there leaves doubt as to whether it was tested - specifically if your trial is further from the trial date than you can expect a reasonable person to remember. They have to prove it was working *at the time of your offence*, you can cite MULTIPLE case laws where it says immediately prior and after...

Here's the secret, if it's conflicting evidence (the prosecutor and you both have strong case laws) - it creates reasonable doubt and you *should* win the case. The problem is people get fear-mongered into thinking that test times aren't needed and don't present a strong enough argument. If you have 5-6 case laws saying they *are* needed... it's their argument getting weaker due to the presumption of innocence.


Last edited by Sonic on Sun May 10, 2015 1:14 am, edited 1 time in total.

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Re: Question regarding appeal
PostPosted: Sun May 10, 2015 1:10 am 
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Posts: 550
R. v. Schlesinger was made by Justice of Peace Cuthbertson, and although his decision was well written and persuasive it is not binding at your trial. Your trial justice of peace does not have to consider it at all.

As I said earlier, it's up to the trial justice of peace whether he/she wants testing time notations. In Cuthbertson's courthouse, prosecutor needs to provide testing time notations.

Whereas in JP Coopersmith's courthouse, prosecutors don't need it. It depends on the individual JPs, and R. v. Roshani-Kalkhoran protects their decisions if it's appealed.

Durham (Regional Municipality) v. Galluzo, 2011 ONCJ 367 (CanLII)

Quote:
[10] She was asked about not recording testing times, to which she stated she relied upon her standard practice before leaving the station and upon her return to the station. When Officer Firth then was asked if the elements of the offence were important enough that they required a note being made, Officer Firth responded that a note was not necessary every time.

[11] When asked why there was no reference to testing the speed measuring device after the traffic stop, she replied that she tested the unit at the end of her shift and does not make reference to that in her notes. She did not vary from her usual practice. On the day in question, she tested the unit and it was not malfunctioning.

[25] I am satisfied that the absence of notation of testing time at the end of her shift may go to the weight I give to her evidence as a whole, but is insufficient to bring all of that evidence into the realm of reasonable doubt on a balance of probabilities.

[49] On the evidence before this Court, I am satisfied beyond a reasonable doubt that Stefano Galluzo is guilty of the charge of speeding 71 kilometres per hour in a posted 50 kilometre per hour zone. There will be a conviction registered.
I strongly recommend not putting all your eggs into this one basket.

edit: I'm also speaking from experience; I have gone this route before, I threw absolutely every single existing Canadian Case available that required notations and my Newmarket JP Felix Mora had no issues with the officer's lack of notations. The prosecutor didn't even argue or provide any case-law about the testing times at all.


Last edited by iFly55 on Sun May 10, 2015 1:18 am, edited 1 time in total.

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Re: Question regarding appeal
PostPosted: Sun May 10, 2015 1:18 am 
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iFly55 wrote:
R. v. Schlesinger was made by Justice of Peace Cuthbertson, and although his decision was well written and persuasive it is not binding at your trial. Your trial justice of peace does not have to consider it at all.

As I said earlier, it's up to the trial justice of peace whether he/she wants testing time notations. In Cuthbertson's courthouse, prosecutor needs to provide testing time notations.

Whereas in JP Coopersmith's courthouse, prosecutors don't need it. It depends on the individual JPs, and R. v. Roshani-Kalkhoran protects their decisions if it's appealed.

Durham (Regional Municipality) v. Galluzo, 2011 ONCJ 367 (CanLII)

Quote:
[10] She was asked about not recording testing times, to which she stated she relied upon her standard practice before leaving the station and upon her return to the station. When Officer Firth then was asked if the elements of the offence were important enough that they required a note being made, Officer Firth responded that a note was not necessary every time.

[11] When asked why there was no reference to testing the speed measuring device after the traffic stop, she replied that she tested the unit at the end of her shift and does not make reference to that in her notes. She did not vary from her usual practice. On the day in question, she tested the unit and it was not malfunctioning.

[25] I am satisfied that the absence of notation of testing time at the end of her shift may go to the weight I give to her evidence as a whole, but is insufficient to bring all of that evidence into the realm of reasonable doubt on a balance of probabilities.

[49] On the evidence before this Court, I am satisfied beyond a reasonable doubt that Stefano Galluzo is guilty of the charge of speeding 71 kilometres per hour in a posted 50 kilometre per hour zone. There will be a conviction registered.
I strongly recommend not putting all your eggs into this one basket.



Also, if you want to argue it was said by a JP - you can go back into all the cases he cited and cite those.

Also, this:

http://www.ontariospeeding.com/Speeding ... sbury.html

Quote:
These decisions are certainly consistent with the standard practice of the operator here, which was indeed checked both before and after using the device.

There might be situations where the court could be satisfied of the accuracy of the device where the test was done, either immediately before or immediately after its use, but I need not decide this.

In this case, there was no evidence as to when the checks were done, that is to say whether they were done both prior to and after the alleged speeding or whether they were done before or whether the were done after.

There was no evidence as to when they were done in relation to the alleged offence.

They might as easily have been done at the very beginning of the operator's shift and long before the alleged offence, with the result that there would not have been a sufficiently reasonable assurance that the unit was still working properly at the critical moment.

7. In the result, the speeding appeal is allowed and the conviction is quashed.


It is not hard to argue 'reasonable doubt'. Prosecutors will have you believe that reasonable doubt is significantly less than what it is. Under the Presumption of Innocence in the Canadian Constitution, you are innocent until *proven* guilty. Without a second test time, there leaves doubt as to whether it was tested - specifically if your trial is further from the trial date than you can expect a reasonable person to remember. They have to prove it was working *at the time of your offence*, you can cite MULTIPLE case laws where it says immediately prior and after...

Here's the secret, if it's conflicting evidence (the prosecutor and you both have strong case laws) - it creates reasonable doubt and you *should* win the case. The problem is people get fear-mongered into thinking that test times aren't needed and don't present a strong enough argument. If you have 5-6 case laws saying they *are* needed... it's their argument getting weaker due to the presumption of innocence.

I made that edit, but unfortunately you replied beforehand. Don't worry, this isn't even an argument I should *ever* have to get it. I'm arguing this simply because you started the argument regarding the necessity of test times.

I have supreme court case(s) for independent recollection concerns, & case law on rights to speedy trials infringed. Also case law citing that on a successful appeal itself, a traffic ticket *should be quashed*.

https://www.canlii.org/en/on/oncj/doc/2 ... pletePos=1

R. V. Mangov, OCJ 2014.

Quote:
C. THE APPROPRIATE RELIEF

[42] The remedial powers of an appeal court hearing a provincial offences appeal under the informal ticketing process set out in Part I of the Provincial Offences Act R.S.O. 1990 c. P.33 (henceforth the “Act”) is broad. That subsection merely states:

s. 138(1) Upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial. R.S.O. 1990, c. P.33, s. 138 (1).

[43] This should be compared to the more expansive and detailed provisions dealing with appeals in cases where the proceedings were commenced by way of an information under Part III: see ss. 116 to 130.

[44] The appellant submits that in this case, the appropriate relief on a successful appeal should be an acquittal. He relies on cases where similar relief was provided: see R. v. Khan, [2008] O.J. No. 1561 (C.J.) at para. 11; R. v. Kahsay, [2011] O.J. No. 3519 at para. 10. The appellant focuses his submissions on the minor nature of the charge, the fact that this was the appellant’s second trial date, and the expense he has already gone to in hiring an agent to represent him both at the trial and the appeal. The prosecution submits that a new trial should be ordered. She argues that although the charge is minor, the legislation against speeding has important societal objectives. Further, she submits that the trial should ultimately be determined on the merits and the particular costs to the appellant should have no relevance in considering what the appropriate relief should be.

[45] Let me start with the scheme of the Act. The appellant’s charge was commenced under Part I using the most efficient and informal method under the Act. The intent of the overall legislation was to ensure that minor offences be treated efficiently but fairly. As stated in R. v. Jamieson (1981), 64 C.C.C. (2d) 550 (Ont. C.A.) at 552, the Act was intended to establish a speedy, efficient, inexpensive and convenient method of dealing with provincial offences which are, for most part, minor offences.

[46] In assessing the wording of s. 138(1), it seems clear that the majority of Part I appeals were meant to be disposed of on the appeal itself. It is only when it is “necessary to do so to satisfy the ends of justice” that a retrial should be ordered. In other words, a retrial should be the exception and not the rule. This makes sense since, given the minor nature of most of the offences, the overall proceedings should not be prolonged unnecessarily by a retrial.

[47] In exercising my discretion, I agree that both the seriousness of the charge and the nature of the legislation involved are important considerations in determining whether a retrial is necessary to satisfy the ends of justice. The more serious the offence, by definition or on the facts of the specific case, the more likely the ends of justice can only be satisfied by a retrial in order to determine the merits of the case. Further, if the objectives of the legislation would be impaired or undermined without a new trial, this would be a sufficient reason to order a retrial.

[48] In this case, without diminishing the importance of the speeding laws in this province, the offence relates to one of many laws that regulate the operation of motor vehicles. Posted or unposted speed limits cover nearly every road and highway travelled by the public. Speeding regulations are enforced frequently by the police. A speeding infraction is a common offence. When ticketed, many people pay without asking for a trial. In addition, it is not uncommon that some drivers go faster than the speed limit despite the enforcement or the penalty. In these circumstances, I find that allowing an appeal without an order for a retrial in this case would not undermine the objectives of the legislation. I doubt that one acquittal in the circumstances that this case presents would impair the objectives of the law.

[49] Secondly, the facts of this case are not egregious or even noteworthy. The appellant was allegedly going 20 kilometers per hour over the speed limit, doing 80 in a 60 zone. He was caught by a speed trap. There was no accident or other aberrant driving. There was nothing unusual about the driving, the stop, or the ticketing process.

[50] The nature of the appeal may also be a consideration under s. 138(1). Here the appellant has been successful on the basis that he did not have a trial that was reasonably apprehended to be fair or unbiased. He was entitled to one originally. Through no fault of his, he did not receive such a trial. Indeed, one of the reasons I find that he did not was due to perceived time pressures existing at the time. To send him back for another retrial in these circumstances would be contrary to the ends of justice.

[51] In this case, the appellant testified and denied he was speeding. Although he was convicted, it was done by a flawed process. The conviction cannot stand but no useful purpose will be served by having the offence decided on its merits. This would be the appellant’s third trial date in a process that was designed to be fair and expeditious. While most individuals appear unrepresented at these trials, the fact that the appellant has retained an agent on two trial dates and one appeal cannot simply be ignored. The added expense of a third trial date, one where he would have to come to court and testify yet again, is a factor that speaks against the ordering of a retrial.

[52] The final consideration is the cost to the public. Significant court resources have already been consumed on a minor speeding ticket. The ends of justice would not be served by expending even more valuable court time or resources. Further, this retrial would only contribute to the already heavy court dockets that exist in the provincial offences trial courts. Given the particular facts of this appeal, the irony of doing so has not escaped me.

[53] For these reasons, the appeal will be allowed and an acquittal entered.


Quote:
edit: I'm also speaking from experience; I have gone this route before, I threw absolutely every single existing Canadian Case available that required notations and my Newmarket JP Felix Mora had no issues with the officer's lack of notations. The prosecutor didn't even argue or provide any case-law about the testing times at all.


I can vouch for this, JP's don't give a ****. They are biased by nature, it's actually unconstitutional the stuff that goes on in the courtroom. Like the case I just provided earlier, they can have 60 trial matters in a 2 hour court session and expect everyone to plead guilty. That's why I can't stand the joke of the legal system. When you get to an actual Justice, they consider *all* the evidence in front of them and need case laws from both sides of the argument... If I go to a new trial, it'll be in front of a JP - which is complete BS in my opinion. Which is why I will be requesting a stay on an 18 month delay.


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Re: Question regarding appeal
PostPosted: Sun May 10, 2015 1:27 am 
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Sr. Member

Joined: Mon Nov 29, 2010 8:08 pm
Posts: 550
If you can convince the sitting JP that testing times are required, then yes.... you're successful. But if the same JP has been convicting drivers for the past decade without testing times, I don't believe any amount of sister/brother JP decisions will persuade them otherwise.

You can definitely recite JP Cuthbertson's R. v. Schlesinger, but that's not going to mean anything. Their brother/sister JP have no power over them, they're only beholden to appeal and higher court decisions.

Anyways, I think we'll leave the testing times alone for now. Hopefully others here can give you insight into your other questions of appeal, stays & refunds.


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