I went to court for 81km in a 50km zone. Ticketed for 70km. Advised by prosecutor he would raise to 81km if I plead innocent.
I plead innocent. During trial it was established officer self-tested gun before and after with negative interference. She stated she made a visual estimation of my speed at 75m and that I appeared to be speeding. Radar lock at approximately 50m.
In my cross examination I asked why she had only been radar gun trained once in the last 15 years. Officer claimed she had been doing other types of police work. I asked her how long to make a visual estimation of speed. She claimed 1 to 2 seconds. I introduced satellite photos showing major obstructions in terms of trees, electrical poles, electrical power lines running both adjacent and diagonally to her and a house with a front porch. The satellite photographs were from Google and had scaling factor at bottom. I had officer mark her location and distance where she first made visual estimation. She marked her location in the entrance of community centre which I immediately questioned since she was in the parking lot in reality and would've been blocking the entrance. Where she marked her initial visual estimation of my speed was less than 75m away.
At this point I jumped on her testimony stating it was mathematically inconsistent with reality. A car travelling 80km/hr is going approximately 22m/s. Even if she could make a true visual estimation of speed in 1 second she still needs to aim the gun through all kinds of obstacles and get a lock which couldn't possibly happen at 50 metres out which happens at approximately 1 second after the start of her visual estimation. Asked officer if gun had ever been externally validated with tuning fork or maintained by her according to missing ontario sections of operating manual. She answered no and didn't know if gun had been maintained by anyone.
In closing I mentioned that I was calling into question the officer's lack of training and the accuracy of the gun. Not only had this gun never been maintained or externally verified through tuning fork of known frequency none of Ontario provincial radar guns had been. I stated I was specifically calling into question the accuracy of the gun meaning the whole gun including the self-testing feature of the gun which is internal to the gun itself. I stated that the radar gun couldn't verify it's own accuracy and that according to auditing and mathematical concepts there needs to be external verification sampling to establish odds, certainty and therefore the whole concept of reasonable doubt couldn't be established. I also stated her observation of appeared to be speeding isn't consistent with 80 in a 50 and her distance observations regarding visual estimation of speed and radar lock were mathematically impossible.
The judge addressed none of the mathematical proofs or auditing and mathematical concepts in terms of being a requirement to establish reasonable doubt. I think the judge was mathematically challenged and didn't understand the scientific realities of the situation.
How should I appeal. The whole court system is a tax based joke that I still want to fight.
If it was radar as opposed to lidar then there is no aiming involved. She sees your car and hits a button and gets a reading.
It was a ghd radar gun.
A visual estimation of a car going 80km/hr through all kinds of trees, electrical poles and a Crest in a hill would take more than a second,would it not? She originally said 2 seconds and then modified to 1 to 2 seconds. You still have to point radar gun in general direction of my car, observe that my car is lone vehicle in beam, press a button, and get a radar lock. Just the pressing of the button takes time not to mention moving the gun in direction of my car. Even if radar lock is instantaneous (i'm doubtfull that there is such a thing as instantaneous radar lock) at least another second has passed. So now we are adding at least another second on to the 1 to 2 seconds for visual estimation which is another very aggressive estimation. So we are talking 2 to 3 seconds at the very least. At 80km/hr my car would have travelled 45m at 2 seconds and over 65m at the 3 second mark. She claimed this sequence of events happened in 25m or approximately 1 second. Math and common sense don't support her testimony.
Personally I would definitely appeal this!
Just a point of clarification... this would have been in front of Justice of the Peace and not a Judge. If you go to appeal, it will be in front of Judge. Judge's have more training/understanding of the law, so this is a good thing.
I agree with your issue about radar not being externally verified, however the courts do not agree with us on this, and have stated that the officer simply needs to test the device according to the manufacturers procedure. Did you have the portion of the manual with this test procedure in it? If you did, then this is probably not going to help you at appeal (but never hurts to try). If you did NOT have the test procedure portion of the manual but asked for it, then this would be good point to raise at appeal on not being able to properly question officer on their knowledge of test procedure.
I believe that there is case law somewhere saying that officers need to be re-certified every couple of years. So you could definitely challenge this issue. Improper training should bring reasonable doubt to the radar reading.
And of course the math is another area I would definitely challenge as well which will help.
If the courts don't agree with you then you'd better have the wallet to go to the Supreme Court.
Your timings don't make sense. Car is seen to be exceeding the limit. Courts have held that exact estimate is not needed. Button is pushed, reading obtained. You don't have to be the only car in the beam, there is no aiming required (if she's running radar then the instrument is already pointed your way) and reading is obtained in a split second. One second tops for the whole event.
I wish you luck but I wouldn't be spending any money on the arguments you present here.
V = d/t
D = 25m *
T = 2 s **
V = 25/2 = 12.5m/s or 45km/hr
The officer's statements contradict the radar gun reading.
* officer claimed visual estimation started at 75 metre and ended with a radar lock at 50 metres.
** officer claimed visual estimation took 2 seconds and then she obtained radar reading which isn't instantaneous.
I printed the manufacturer's online manual and tried to get admitted. Prosecutor claimed hearsay and justice agreed.
Also tried to get admitted cellphone photos showing cops vantage point with all the trees, power lines and poles and front porch my car had to go through between 100m to 50m. Justick insisted that if I wanted to submit cell phone photos they would confiscate my phone for 45 days and view everything on it. Seemed like bs to me but I decided to go with just satellite photos.
I really want to hear the argument refuting my argument that case law states you can't presume the accuracy of the radar gun and the self-testing mechanism is part of the gun so therefore falls under the same presumption. It goes against auditing principles too. Therefore self-testing goes against my legal rights of not having the radar gun presumed to be accurate without any external verification as to its accuracy.
To get photos admitted as evidence you need to print them out with a date stamp on at a place like walmart. However even if you can't get them admitted as evidence, you should still be able to show them to the officer while they are on the stand and ask them question about them.
Did you specifically try to get photos/manual admitted as evidence before you tried to ask questions about them? Or did you just try to ask questions about them and the prosecutor objected to that?
Did you ask for the manual in your disclosure request before the trial?
If you can get a Judge to accept your argument about needing external verification for radar, then I am all for that! It certainly won't hurt to try. You should read this thread:http://www.ontariohighwaytrafficact.com/topic7182.html
And also this thread for an appeal that was prepared by paralegal:http://www.ontariohighwaytrafficact.com/topic7286.html
I asked for electronic copy of manual before trial as part of my disclosure request. Was told by prosecutor I could only view manual by arranging appointment. I stated I had a job and didn't have time. I did view briefly though after early resolution meeting. I then asked prosecutor in follow-up to please comment on missing sections of manual and provide reasons for omissions as it was integral to my defense. Prosecutor stated he was not required to comment on that for disclosure but to feel free to arrange an appointment.
I specifically asked justice to get online copy of manual admitted as evidence during trial. I was denied upon objection by prosecutor. In spite of this I read from the manual during closing argument including section 8.3 tuning fork test and ( I think 11.3 ) radar case law stating tuning fork necessity by manufacturer as well as being an auditing requirement (external verification).
I was advised pretrial when I stated I lost my cellphone printouts on way to trial that if I wanted to use my actual cellphone gallery my phone would be confiscated for 45 days and they would have complete access to anything on it. Again to me that seemed like utter bs.
You must have had an old manual because they removed the tuning fork test requirement from all the manuals in 2010. So as far as the courts are concerned, as long as the officer does the test listed in the manual then this is prmia facia evidence it was working correctly. If the manufacture does not require a tuning fork then it is not necessary. Of course, like you, I disagree with this decision but thats what they decided.
Did you bring up the issue of disclosure at the start of the trial, complaining that you did not get a copy of the manual? They should at least have provided a copy of the front page and the testing procedure page. Again I think there is some case law saying they do not have to provide the whole manual unless you give a good reason why you should have it. My opinion (without reading the transcript of course) is that you have a good appeal argument here are well.
The other argument you might be able to make is that the Justice of the Peace (JP) did not provide you with the help that they are suppose to give to self-represented individuals.
I would file for the appeal and then you will need to order official copies of the transcript from trial (which you must pay for yourself). If you want to share it, I would be willing to read thru it and give my opinion (which is not legal advice).
As far as cellphone goes, if you bring something to court that is being admitted as evidence, then they get to keep it. Want to bring video to court? Well make sure you have copied them onto an external USB stick or they will want to keep your laptop or whatever device they are on. Same thing applies to pics... print them out at walmart or put them on USB stick that they can keep.
The manual wasn't old though. I printed it directly from manufacturer's website the day before trial. Decatur sells their manual with the tuning fork test section (section 8.3) to most every government except ontario.
I complained about disclosure pretrial. The example I gave was since the officer couldn't remember most of the specifics of her training and she only had been trained once in the last 15 years that I wanted documentation and proof of her being certified to operate ghd. Prosecutor refused my disclosure request stating it was evidentiary. I told justice disclosure wasn't satisfied and had email copies of my disclosure requests which went through his administration clerk but signed with his name.
I received testing page but testing page is incomplete. Again in disclosure with prosecutor I stated my concern that there were missing sections of the manual when compared to original online manual of Decatur manufacturer and wanted to know why as part of my defence.
Right after trial on April 26th, I asked for copies of transcripts and for paperwork for appeal request.
I think the appeal would be justice provided insufficient rational for her conclusion. I also think some of her conclosions were plain wrong. I stated that the officer's observation of appeared to be speeding wasn't a strong enough statement given the fact her gun supposedly clocked me at 80 in the 50. As well, I stated the gun's reading wasnt mathematically supported by the time frames and distances laid out that were marked on the satellite map by the officer. The justice stated officer's testimony supported reading. I truly believe the justice was probably mathematically illiterate as I stated the math case very clearly and she never addressed it in her conclusions. She was having trouble interpreting satellite photos that were clearly marked and I kept having to explain how to read them. I even had to explain there was a scaling factor at bottom of printout when asked if they were to scale. I texted my boss beforehand and made the comment that I was worried that judge/justice wasn't mathematical enough to understand math basis of my arguments. Many people are mathematically illiterate but I was hoping for more from justice. She stated my only argument could have been extenuating circumstances after guns reading but if the officer's testimony mathematically disproves the radar gun reading I think the reading has to be tossed especially considering external calibration and maintenance issues I brought up and how I demanded external verification of guns accuracy in court.
Definitely dowload the transcript and appeal that was prepared at this thread http://www.ontariohighwaytrafficact.com/topic7286.html because there are some good similarities with your case.
I do not believe we can convince the courts that tuning forks are needed until somebody can afford to bring a certified expert witness to their trial. Again you can always try, but without an expert witness to counter the manufacturers manual, it is near impossible.
The proper manual (or the manual that the courts recognize in Ontario) for the GHD is "GHD Scout User's Manual - Canada Variant Rev 25/Aug/2010" and this version of the manual has the tuning fork test removed. Again I agree with you that there should be an external test, but without an expert witness you are pretty much wasting your breath.
Read this thread as well:http://www.ontariohighwaytrafficact.com/topic7182.html
I've never seen a manual listed on the Decatur website. Could you provide us with the link where you found it?
There are quite a few copies of manuals online and I've yet to see a copy of the Canadian manual.
jsherk is correct, tuning forks have no been used for quite some time. The standard for testing is simply to follow the manufacturers instructions. The is usually a test prior to and at the end of the enforcement cycle. (Start and end of shift)
Decatur Electronics (XURSH, Inc.
Auratie 9, 67600 Kokkola, Finland
Tel: +358 207 528 508
Fax: +358 207 528 579
With regards to prima facie evidence being established I observed these cases:
Regina v. Williams 
"However a 'reasonable doubt' might be raised regarding the accuracy of a speed measurement where an operator is not qualified or has no experience or has no training in the operation of as peed measurement device or system. Similarly, where a mechanical speed detection device is utilized, the prosecutor may wish to call evidence, although it is not necessary to do so, that the device has been properly maintained and tested prior to operation. Certainly, these questions would be asked by the defense if not explored by the prosecution, the defence attempting to raise a 'reasonable doubt' as to the accuracy of the rate of speed indicated'.
I asked the officer if she has every maintained her radar gun as per manual's recommendations and section including maintenance and repair log. She answered no. I then followed up if she knew if her radar gun had ever been maintained. She answered no.
I asked for proof in cross-examination for her radar gun certification since I asked for it in disclosure and was told in was evidentiary. She couldn't provide it.
In the discussion of Baie Comeau (which I used in my conclusion):
"Baie Comeau does not stand for the proposition that it is an essential element of the offence to test every speed detection device with a tuning fork, particularly where it is not deemed necessary by the manufacturer and there is no evidence before the court casting any doubt upon the prima facie accuracy of the speed detection device."
The Justice was in over her head with regarding the basis of my argument and just stated prima facie had been established without addressing any of the reasonable doubts I had established.
1) There was no proof that the radar gun had every been maintained.
2) The radar guns had never been externally verified by a tuning fork which meant odds could not be established as to the accuracy of the testing device. I stated a radar gun's self test couldn't proof it's own accuracy and had never been externally verified. This isn't a case of establishing every speed detection device: none of the speed detection devices have been verified with a tuning fork. Huge difference. I hammered on the never being externally verified continually in my conclusion with a ton of stress and linked it back to auditing concepts.
3) The math shows the officer's observations had me doing 45km/hr casting doubt as to the 81km/hr reading.
4) Asked for officer's radar gun certification in disclosure and on stand. Was not provided it. Stated I didn't she was qualified to operate gun based on being trained only once in the last 14 years.
So I established a good deal of evidence for reasonable doubt that was never addressed. Justice needs to refute these reasonable doubt points before being able to state prima facie has been established. She didn't address any of my points because she hadn't memorized any previous cases where these types of arguments had been used so she went to her generic conviction conclusion ignoring my arguments out of fear.
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