Here are the details of my upcoming court appearance to defend a speeding charge. This is a freakin book, so I’ll give you sticker if you actually read all of it. Hopefully you do, and you can provide feedback, advice, suggestions, as I’ll need all the help I can get! This post is for the legal and procedural minded on this forum (Radar Identified, TicketCombat, Reflections, hint, hint). Hopefully the information here and the responses will help others as well.
Charge: Speeding 139 km/h on Hwy407 EB on January 17, 2009 by OPP
Sent fax for disclosure on March12 asking for the following:
1. both sides of the officer's copy of the ticket;
2. the make, model, and serial number of the radar unit, and its owner's manual;
3. the officer's training record specific to the said radar unit;
4. the calibration record, service record and repair history of the said radar unit;
5. the records of any calibration equipment such as tuning forks;
6. the officer's notes and log on the alleged offence day, including all tickets he/he had written on that day,
and any document the Crown may rely on at trial.
Disclosure received on April 15:
officer’s hand written notes
- notes from beginning of shift (5am) say that he’s in a fully marked vehicle, clear/snow -18C
- cruiser check: ok, Alcotest:yes, Radar:yes / the rest is blocked out
- at 9am: shows stationary speed enforcement at hwy407 EB at Keele ramp
- hand held Radar Genesis VP Directional Decatur
- at 9:05am: tested radar – working properly – pass
- rest is blocked out until 10:58
- at 10:58am shows: observed m/v going at high rate of speed, confirmed with radar at 148 in lane1
- followed and stopped at bull nose of Bathurst
- was going to pickup his son from skiing lesson
- -charged speeding 139 km/h ® sec:128 HTA
- Vehicle: Huyn Son 2003 4D grey RO=NO then my licence plate number
- Rest of notes blocked out
note that the officer’s notes do not show that he tested the radar AFTER the incident (he may have, but it does not appear in the notes disclosed to me).
Also received 2 pages of radar manual for Genesis Handheld Directional (GHD) which show details of testing the device
- note that this is not the radar he used (he used Genesis VP Directional)
End of Disclosure.
On April29, I faxed another disclosure request asking for the rest of the details that were not addressed in the first disclosure plus additional disclosure of the following:
1. “will say” statement from the officer.
2. Any oral evidence to be presented by Crown witnesses that are not contained in the notes provided.
3. Copies of any written instructions/procedures/guidelines/policies held by any division of The Regional Municipality of York regarding the use of radar units
4. Copies of any written instructions/procedures/guidelines/policies held by any division of the Ontario Provincial Police regarding the use of radar units
and any other documents the Crown may rely on at trial.
I received nothing in response. On the day of the trial (May25), the following transpired:
Officer was present. Checked in with prosecution in the courtroom and told them I did not receive full disclosure, plus did not get response on 2nd disclosure request. Prosecutor said, yes they DID send letter that disclosure was ready for pickup on May13. I did not receive this, but he allowed me to quickly view the 2nd disclosure package. He also offered me a deal to reduce the charge to a 2pt demerit (failure to obey sign). I turned down the deal and proceeded with trial. I told the judge that I did not receive full disclosure. Prosecutor offered me to view the 2nd disclosure again and proceed. I refused as this was not enough time and because disclosure was still deficient. Judge adjourned the case. They tried to give me December date, I refused asking for speedy trial (hoping they would not be able to give me an earlier day). Prosecutor comes back from the court scheduler and surprisingly gives me an earlier day: June10 and hand delivers a copy of 2nd disclosure.
Next case is called (speeding charge with same police officer) and is VERY INTERESTING
. Prosecutor calls same officer. Officer is asked about using notes to refresh memory. Judge asks defense if they have questions about officer using notes. Defence asks officer, “Do you have a independent recollection of the events of the day and this particular event”. Officer says “NO”, this is why he needs his notes. Defence objects to officer using notes as he has no independent recollection of the events. Judge agrees. Prosecutor withdraws charges. (I WONDER IF I CAN SOMEHOW USE THIS WHEN I GO TO COURT??)
I reviewed 2nd disclosure package which contained
Front and back copy of ticket
Letter states, “We do not supply the radar manual”
“Officer training was in Orillia at OPP GHQ in August 2008
“The unit has an internal testing procedure, so there is no calibration record. “There has been no service on that unit”.
“This radar unit does not use calibration forks.”
“We do not disclose the information in regard to the tickets he wrote that date. This is against the privacy of the other people that he may have charged that date.
There is also a document of typed notes that I assume are the officer’s will say statement:
- observation of m/v travelling at a high rate of speed.
- m/v was in lane 1
- m/v was passing other vehicles (note that this was not in the officer’s handwritten notes)
- confirmed speed with radar at 148
- hwy 407 EB at Keele St.
- driver on his way to way to pick up his son from skiing lesson and drive was in a hurry (note that I did not say I was in a hurry and the hurry part was not in the officer’s notes)
- speed was reduced to 139
Statement that there is no other evidence (in reply to any other oral evidence by witnesses that are not contained in the officer’s notes)
“None that I know of” (in response to procedure policies of York region)
“The only guideline is that the speed measuring device must be used by a qualified operator of the equipment” (in response to procedures, policies of OPP)
End of disclosure.
As I was at the court, I immediately filed my 3rd disclosure request and got a stamped copy. I write that I have still not received full disclosure of items requested in my 1st request of March12. I asked for:
1. ENTIRE owner’s manual.
2. Officer’s TRAINING RECORD and certification for operation of said radar unit. Stating the place of training is not sufficient. Copies and records are requested.
3. Calibration Record of Radar Unit, or Certificate of Accuracy, please provide copies
4. Copies of written instructions, procedures, guidelines, policies held by any division of York region or OPP regarding the use of radar units.
I receive phone call from prosecutor’s office on May27 saying they will email me copy of radar manual to save me at trip to pick up. I agree and receive pdf copy of Genesis VP Directional User’s Manual (53 pages).
I replied to the email on the same day with the following (which constitutes my 4th disclosure request):
“I confirm receipt of your email with the attached radar manual. However, Please confirm that I in fact received the entire manual from front to back. The attachment you sent has 53 pages. Does the original manual have 53 pages or are there more pages?
Also, my disclosure request is still incomplete. I still require the following for disclosure such that I may make a full answer and defense to the charge:
1. The officer's training record and certification related to use of radar units. May13 disclosure revealed that "training was in Orillia at OPP GHQ, in August 2008.". However no copies or records of training was disclosed as requested. This is required to assess the officer's qualification and training to operate radar units.
2. Calibration record of radar unit/certificate of accuracy for radar unit used. Please also indicate when this unit was purchased. This is required to assess that the radar unit was functioning properly and accurately during its use.
3. Copies of written instructions/procedures/guidelines/policies held by any division of the Regional Municipality of York or Ontario Provincial Police regarding the use of radar. One guideline was disclosed on May13, 2009 as "The only guideline is that the speed measuring device must be used by a qualified operator of the equipment". Obviously, guidelines, operating procedures, etc exist, but no copies or records have been disclosed. Please provide copies. This is required to assess if the officer followed guidelines, policies, and procedures mandated by the OPP and/or Regional Municipality of York.
I look forward to your response.”
end of email.
Prosecution clerk replies to me via email on May28 with this:
“Yes, there are 53 pages in the original manual. You will find the answer to your other questions in the officer's reply. This can be found in the additional notes (May 13) which the prosecutor provided to you in court on May 25.
end of email.
I immediately reply back to them with this (which constitutes my 5th disclosure request)::
“Thank you for your reply. However, the officer's reply in the additional notes (May13) do not answer my questions and do not satisfy disclosure. In my email earlier today, I outlined what I received from the May13 disclosure and why it was still deficient. I will paste it below for you convenience. If for any reason, you are not providing disclosure for any of the above items, please provide an explanation or reason for the non-disclosure.”
The reason I sent this email is because I am after the officer’s training record (copies or records) and some kind of certificate attesting to the accuracy of the radar unit. I am also wanting policies, procedures or guidelines of York region or OPP. They did disclose in a written statement that “The only guideline is that the speed measuring device must be used by a qualified operator of the equipment” So obviously they have policies, but they did not disclose copies of those policies or procedures. I believe the OPP MUST a have a policy, procedure, and or standard for the use of radar.
No response on my last email.
So this is where I stand on the disclosure front.
The question is, Do I have a case for charter stay of proceedings based on non-disclosure?
I have made 5 timely disclosure requests (3 “official” by letters and in person, 2 by email). They have not disclosed officer training record or policies and procedures for use of radar in York region and/or OPP. They have also not disclosed proof of accuracy of the radar unit in terms of calibration records or certificates.
I believe case law is on my side for these 3 items. The basic principles of disclosure are covered by The Queen v. Stinchcombe, The Queen v. Egger, The Queen v. Chaplin, and The Queen v. Dixon.
In terms of training, qualification on radar use, D'Astous v. Baie-Comeau requires that “The operator was qualified: he followed a course, he passed an exam, he has several months' experience”. Thus training record and certification on radar use is relevant.
In terms of obtaining policies, procedures, guidelines from York region and OPP, this is needed to determine if the officer followed those guidelines or polices/procedures during the enforcement action. The following case law is relevant:
R. v. Lorna bourget, 2007 NWTTC 13
Here is a quote for the decision: “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. However, the prosecution has already previously advised Ms. Bourget that there are no policies or guidelines. The prosecution has already adequately responded to the request for the third item.”
R. v. Wheeler, 2007 CanLII 14854
http://www.canlii.org/en/nl/nlpc/doc/20 ... 14854.html
Here is a quote from that decision:
“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. Therefore, the Crown is hereby ordered to determine if operational standards exist and if so, to disclose them to Mr. Wheeler no later than June 30, 2007. The fact that they might be in the possession of the police rather than the Crown is irrelevant (see R. v. Vokey reflex, (1992), 102 Nfld. P.E.I.R. 275 (N.L.C.A.)).”
R. v. Robichaud, 2008 NSPC 51
This recent judgment provides an excellent review of case law on disclosure specific to radar enforcement.
“The applicant referred to the Crown brief where he said it indicates that Constable Dykstra performed the radar function test at the start of his shift in accordance with RCMP policy for radar operators. That policy should be disclosed, and that is ordered. In that regard, I refer again to the judgment in Wheeler where the Court says, in paragraph 28, part way through the paragraph, and I quote: “However, if the Royal Newfoundland Constabulary have operations standards which its officers are expected to follow when using a radar device then these are sufficiently relevant to be disclosed.”
So here is my plan of defence for my 2nd court date (June10). Please comment or provide advice on the following:
Ask for stay based on non disclosure (or at least adjournment and order for disclosure by judge). I have made 5 timely disclosure requests.
If that fails, then proceed with trial….
DISQUALIFY OFFICERS NOTES
Attempt to disqualify officer’s notes based on independent recollection. I will quiz the officers on events of that day and this particular charge. I will also bring up that the officer had already testified in another case (same offence day) that I witnessed that they did not have an independent recollection of that day and the events of that day.
- any advice on how to grill the officer to get the notes disqualified??
- If successful, I assume the prosecution would dismiss the charge
MOTION TO REMOVE OFFICER BASED ON QUALIFICATION AND TRAINING
Disclosure provides no evidence of officer training, qualification, or certification on use of radar. Can I have the officer removed based on this? What if they try to produce a certificate at the trial. Can I object and ask that the certificate be not admissible based on the fact that it was not disclosed?
TESTING OF RADAR BEFORE AND AFTER
Officer’s notes that were disclosed only reveal that he tested the radar before enforcement. There is no evidence in the disclosure that he tested after the stop. I believe case law requires testing before and after an enforcement stop.
R v. Vancrey
D'Astous v. Baie-Comeau
R. v. Schlesinger, 2007 ONCJ 266
Here is a quote from that decisions :
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 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 CanLII 2956 (QC C.A.), (1992), 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.”
What if the prosecution and officer try to introduce evidence that he has in his notes that he tested the device sometime later in the day. Can I object as this was not disclosed and therefore inadmissible?
TESTING OF RADAR USING INTERNAL TESTS ONLY (WITHOUT TUNING FORKS)
Case law dictates testing of radar to prove that it was functioning properly during the enforcement.
I will try to argue that internal testing alone is not sufficient. An external test (i.e. tuning forks) should be required to prove the accuracy of the radar unit.
It is interesting however, that the brochure for this particular radar from the manufacturer’s website confirms that the unit is sold with 2 tuning forks. So it is strange that most officer’s do not use them and they are not mentioned in the manual???? They must be used for something, otherwise, why are they included in the package. See here: http://www.decaturradar.com/uploads/file/159_Genesis%20VersaPak%20series%20brochure%20rev%2012-22-08.pdf
Further to this point, on the same website, there is a section for accessories. Again, there are tuning forks specifically for the Genesis VP Directional Radar.
TRACKING HISTORY DEFENSE
The radar manual goes into great detail about the “tracking history”, specifically mentioning that if any element of the tracking history is left out, no enforcement can be taken.
I will grill the officer on the tracking history. First I’ll quiz his knowledge of it, so if he stumbles, then obviously the charge should be thrown out. One of the key elements of the tracking history is an estimation of speed before using the radar to confirm. There was no mention of tracking history or an estimation of speed in the officer’s notes disclosure. Nor was there mention of the audible tone in the notes (another requirement of tracking history).
This is supported by the following case law:
R. v. Hawkins, 2009
VEHICLE IGNITION INTERFERENCE
The radar manual specifically mentions this saying, “some vehicles exhibit excessive alternator noise at the lighter receptacle. In these rare cases, the radar can exhibit erratic readings, especially when the electrical system is operated under heavy load. Wiring an accessory outlet directly to the battery minimizes the effect.”
Maybe I can use this to cast more reasonable doubt. Hopefully the officer plugged it into the receptacle and wasn’t using the battery instead.
ATMOSPHERIC AND ENVIRONMENTAL CONDITIONS
In the back of the radar manual, there is a summary of case law regarding radar enforcement. One of the cases, R. vs. Joudrey (1992, Nova Scotia Prov Court), the defense referenced a textbook called “The Law on Speeding and Radar. The defense questioned the officer on specific passages stating that certain atmospheric and environmental conditions could give spurious readings. The court took judicial notice of the passages and the accused was acquitted.
I have yet to go to the library to find this book and copy those passages. Again, I will try to cast more reasonable doubt and maybe get the same outcome. It would help if I had the text of the decision, but CanLII does not have this in its database. I called the Nova Scotia court, and they said the decision is to old to be in its archives. Anyone have knowledge of this case or advice on how to play this?
General Question: If I refer to case law, do I need to bring a copy with me to court?
Well, thanks for reading this textbook of a case. It took forever to get all this down, hopefully it will help others in the future. Again, any feedback, suggestions, or help of any kind would be greatly appreciated! Thanks in advance...