Ontariohighwaytrafficact.com

So I have a few questions for you all, and having posted here before, I know you're all a fantastic resource, so I'm hoping you'll be able to be of assistance to be once again!

A few months ago (Oct?), the gf and I were up in Algonquin. On the way back home heading WB right outside the park, we passed an OPP SUV that was going the opposite direction. Then a few minutes later he caught up with us, and pulled her over for speeding.

The main issue I have is this: when the officer passed us, he was approaching a bend in the road, so pulling a U turn wouldn't have been safe. The inside of the bend had rock formations, so once the officer went into the corner, he completely lost sign of my gf's vehicle. A few minutes later, he finally caught up to us, sat behind her for 30-ish seconds and popped the cherries. The few minutes that he had lost sight of her vehicle, can I use that in court? Can I essentially say that he has no way of being able to guarantee that it was specifically her vehicle that he saw and tagged for the speed? We also passed a few different driveways/entrances/exits to parking lots before he saw us again, so can I also use that too to state that it may have also been another car?

Many thanks in advance!

D

You can say whatever you want in court. Will it give you reasonable doubt? If you were the JP, would you have reasonable doubt? It really depends on the strength of the officers testimony and what are in his notes. Courts have held that momentarily losing sight of a vehicle is not going to get you out of a conviction.

Officer likely noted the make, model, colour, and plate or partial plate as it went by. Will also say there was no other vehicle that went by of that description. Unless it was in total darkness, even then, same headlight and taillight configuration, sometimes they can pickout colour...

It will come down to what the officer says in his notes and how clear his identification of your girl friend's vehicle is as well as when he actuality measured her speed. For example he could claim that he got a radar lock on her vehicle after he made the U turn when he puled in behind her. If that is the case then whether he lost sight of her before he made the U turn won't matter. The only way to know for sure will be to file the ticket for court and request disclosure. Once you have a copy of the officer's notes, you will be able to see whether there is any wiggle room to raise doubt.

I would plead Not Guilty and request a trial with the officer present. Once you get your Notice of Trial, then you can request disclosure (officers notes, speed measuring device manual). Once you get the disclosure, post it here and we can give better advice once we read it.

Time of day - traffic volume - vehicles ahead and behind you...

Already told her a while back to request disclosure and we have it. I've been burned previously by requesting disclosure at trial and asking for a later date in Belleville where the prosecutor gave me the disclosure and the judge told me I have an hour and a half to review it.

The officer in his statement said he tagged her when she was approaching him, so not after. There was no mention in his statement of when he identified her vehicle.

Is it worthwhile to question what markers would be identifiable for her vehicle? Is it physically possible to get a partial read on a plate at a combined speed of at least 160km/h? (Both cars approaching at 80km/h, the speed limit)

karra wrote:

Time of day - traffic volume - vehicles ahead and behind you...

None of these were mentioned in his notes.

Edit: well, time of day was because of the time of the offense, but traffic volume nor vehicles ahead or behind were.

Can you scan and post notes here so we can review? Black out any personal info.

If that ever happens again where the JP or Judge forces you to review the disclosure on the same day as the trial and will not give you another date, then that is excellent grounds to win on an appeal. You have to have adequate time to prepare your defence!

Yes it is more time and more money but still the appeal process is there for us to use.

jsherk wrote:

If that ever happens again where the JP or Judge forces you to review the disclosure on the same day as the trial and will not give you another date, then that is excellent grounds to win on an appeal. You have to have adequate time to prepare your defence!

Yes it is more time and more money but still the appeal process is there for us to use.

Hmmm, I wonder if I'd still be able to appeal that... Got convicted because I plead guilty about 2 and a half years ago.

jsherk wrote:

Can you scan and post notes here so we can review? Black out any personal info.

Give me a few minutes, I have to convert it to individual images, it was sent as a PDF.

You only have 15 (30?) days after conviction to file appeal so unfortunately it is too late.

Disclosure is here, as the file is too large to attach to the site.

https://drive.google.com/file/d/0B8wLJz ... sp=sharing

As always, the opinions and help you all provide are priceless; I've learned so much from here!

Somewhat related: I've seen a lot of people asking the question of "Do you have an independent recollection of the events...?" What's the actual purpose of this question? What's the purpose of this question if the officer is allowed to use their notes? Are the notes only supposed to be used to refresh their memory?

Exactly that. I was expected to be able to give the basics of the incident from memory but could refer to notes for specific details like verbatim statements, times, etc etc.

argyll wrote:

Exactly that. I was expected to be able to give the basics of the incident from memory but could refer to notes for specific details like verbatim statements, times, etc etc.

And what would happen if there was something you didn't recall from memory, didn't note, but the defendant/representative is bringing up? Is it then a matter of your word against there?

So looking at the disclosure, there is no mention in the officers notes of the information you gave.

So for somebody who is really good at cross-examination, this could be a good thing and they might be able to bring in reasonable doubt to officers testimony over losing sight of vehicle for several minutes. The downside is that you do not know how the officer will testify when asked about these events. If officer agrees then great, but what if the officer says "no I never lost sight", well now you have a problem because if you and girlfriend testify to refute his testimony, you must answer truthfully while on the stand so all prosecutor has to do is ask her "were you speeding?" and she has to say yes and you have pretty much lost.

I think a better strategy would be to continue your cross along the lines of getting the officer to describe the road, bend etc to see if you could introduce doubt as to the 'did lose sight' testimony. Officers may make errors but don't generally lie on the stand.

When I was instructing at the Academy, I always stressed that it is not an officer's job to get a conviction, just to relate the facts. If the facts result in someone being acquitted then so be it.

Certainly in any office I've worked someone deliberately giving false information on the stand would be a big - a HUGE - deal and that officer's career would be very short. I do read on here from time to time that officers lied on the stand but I suspect that is more that their testimony simply doesn't match exactly to the recollection of the accused. Two people being shown the same scenario and asked about it seconds later will recall it slightly differently. Lying on the stand is a big accusation. Has it happened ? Yes. Will it happen again ? Sadly I suspect yes. But it is very very far from the norm.

Many thanks! Will let you know how it goes!