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Appealing after guilty plea?
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PostPosted: Mon Jul 21, 2014 3:55 am 
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Okay, so long story short...

Edit: Or not. Believe it or not I still left a lot of things out.. To try and make it shorter...

I asked for disclosure, the officer sent me disclosure. I sent an additional request for more disclosure (officers logs), I was told I had all the disclosure related to the offence. At this point I was ecstatic because the officer only had one test time listed in regards to the LIDAR. Anyway, I go to court and point that out to the officer before the trial and he decides to tell me NOW - that the system was new but he remembers testing it that day.. (7 months Ago at this point). I bite the bullet and say oh well, fair enough.. I'll request an adjournment as I did not have time to review my full disclosure and make a full and complete answer as outlined in R. V. Stinchcombe. Which outlines that disclosure must be reviewed in a TIMELY MANNER, or it impedes the constitutional right to a fair trail.

Anyway, I go up to the JP and ask for an adjournment because I did not receive my disclosure in a timely manner and am not able to make a complete defence. The prosecutor says the testing has nothing to do with disclosure, and the JP agrees and asks what I plead...

I told him I'm not ready as I didn't receive my disclosure. (I made the mistake of believing the JP knew the law and didn't bring case law assuming it was going to be dismissed for no second test.) I said well I'm not here to plead guilty, and we proceed to trial...

So I felt forced into a trial I wasn't prepared for due to lack of disclosure. I told him that, and he said "It's not a part of disclosure, the first test wasn't on the disclosure either." And I said "Yes it was." At this point I realized both the JP & prosecutor didn't know what they were doing. So during trial the officer testifies that he didn't get a visual estimation of the speed and that the speed was determined by the laser device. I was cross examining the officer to create reasonable doubt whether there was a second test done and how he "independently recollects" (his words) doing the test that day 7 months ago. The JP stopped my questioning and said "He said he tested it under oath, that means he tested it." So at this point I wasn't even allowed to create reasonable doubt. Anyway.. After a while of my questioning.. The JP stops the trial and says "Look, I can let you continue but if you plea guilty you'll only have to pay $100 something. Right now it looks like I'm going to find you guilty." So he literally stopped my trial to tell me it looks like I'm going to be found guilty! Afterwards he mouthed to me "take the deal." - I'm not 100% sure if he mouthed this to me or said it outright; so I don't know if it'll show in the transcript.. But he did verbally say "I'm not allowed to do this." At some point so he was knowingly stepping out of his boundaries to make me plead guilty...

Anyway, after the JP basically telling me I'm going to be found guilty - I pleaded guilty to the lesser charge. Which sucks because I'm pretty sure the prosecutor was new as they never actually asked about the officers qualifications to use the device.. Which would have allowed me to appeal to overturn the decision rather than plea for a new trial.. I dropped the ball on that after seemingly ending up in an ignorant room. Anyway afterwards he asked the typical questions "Is this voluntary?" "You know you're waiving your right to a trial?" In which case I said yes... At that point it just felt like a not very fair trial at all.

Anyway, I ordered the transcripts and filed the appeal for a new trial due to improper disclosure and my right to a fair trial violated (did not get timely disclosure) and was forced to go to court without having time to review the disclosure)...

I was just wondering how solid do you think my case is? I'm 99% sure the prosecutor will initially argue that the testing is not part of disclosure as they were arguing all trial.. Even though they convicted me on that alone... (Or would have had I not plead guilty) & then they will argue that I voluntarily pleaded guilty and waived my right to a trial so I have no right for the appeal, or no basis or whatever.)

What do you guys think my chances are? Considering I think it is a part of disclosure and I clearly stated not guilty three times and it wasn't until the JP stopped the trial and basically said I'll be found guilty than I took the lesser charge. How binding is his voluntary plea/waiving rights to a trial in this situation and what do you guys think I should do/how are my chances?

Thanks in advance guys, great forum.


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Re: Appealing after guilty plea?
PostPosted: Mon Jul 21, 2014 8:15 am 
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It is VERY difficult to get a new trial after pleading guilty and I would not expect to win. Remember he asked you if it was voluntary to which you said yes.
Not getting an adjournment for incomplete disclosure is a very real possibility that you should have been prepared for, if you saw that as your get out of jail free card then you should have completed the trial and been found guilty and appealed.
In my view the JP did you a favor. He essentially saw you were unable to effectively represent yourself and told you that your case was going nowhere gave you another chance to take the plea deal.
You could have ignored his advice, insisted on completing the trial, been found guilty and if you found errors in law could have appealed.


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Re: Appealing after guilty plea?
PostPosted: Mon Jul 21, 2014 10:38 am 
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Providing exact test times is not essential for speeding offences. Recent court decisions (by judges, not JPs) have been very clear on this. If the officer testifies that they tested the device BEFORE and AFTER your reading and were qualified to operate the device, then that is sufficient. Its not an 'element' of the offence to have to provide test times or prove the device was properly functioning in order to make out a case for speeding (after all, the offence can be proven via pacing or even via speed estimation by the officer, etc.). However, without more specifics, the court can be left with reasonable doubt. That's really the law in a nutshell.

So, in your case, your argument about the lack of test times in your disclosure will undoubtedly be shot down VERY quickly. You don't need it to defend yourself. However, if the officer testified with exact test times from other notes then YES, you could successfully argue that full disclosure was not provided. However, if the officer is simply testifying based upon his recollection, then that's what the cross-examination was for. Many people think they are entitled to everything that the officer (or a witness) will say on the stand before trial----but that's not what disclosure rights are about. If that were the case then it would take away the need for trial and relying upon statements under oath. The officer (as with any other witness) may therefore say whatever they want on the stand-----you then must cross-examine them if you wish to challenge or weaken their testimony.

Now, you could likely win your appeal based upon another more fundamental issue: the actions of the JP. It seems the JP showed a bias during trial by telling you that he had already decided he was going to convict you and that you should plead guilty. After all, he is not allowed to make up his mind until the case is closed. That in itself, goes against your right to be presumed innocent. Again, there is a lot of case law in this area so do your homework. Hopefully, you properly argued such in your appeal.


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Re: Appealing after guilty plea?
PostPosted: Mon Jul 21, 2014 2:23 pm 
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highwaystar wrote:
Providing exact test times is not essential for speeding offences. Recent court decisions (by judges, not JPs) have been very clear on this. If the officer testifies that they tested the device BEFORE and AFTER your reading and were qualified to operate the device, then that is sufficient. Its not an 'element' of the offence to have to provide test times or prove the device was properly functioning in order to make out a case for speeding (after all, the offence can be proven via pacing or even via speed estimation by the officer, etc.). However, without more specifics, the court can be left with reasonable doubt. That's really the law in a nutshell.

So, in your case, your argument about the lack of test times in your disclosure will undoubtedly be shot down VERY quickly. You don't need it to defend yourself. However, if the officer testified with exact test times from other notes then YES, you could successfully argue that full disclosure was not provided. However, if the officer is simply testifying based upon his recollection, then that's what the cross-examination was for. Many people think they are entitled to everything that the officer (or a witness) will say on the stand before trial----but that's not what disclosure rights are about. If that were the case then it would take away the need for trial and relying upon statements under oath. The officer (as with any other witness) may therefore say whatever they want on the stand-----you then must cross-examine them if you wish to challenge or weaken their testimony.

Now, you could likely win your appeal based upon another more fundamental issue: the actions of the JP. It seems the JP showed a bias during trial by telling you that he had already decided he was going to convict you and that you should plead guilty. After all, he is not allowed to make up his mind until the case is closed. That in itself, goes against your right to be presumed innocent. Again, there is a lot of case law in this area so do your homework. Hopefully, you properly argued such in your appeal.


My argument wouldn't be that I was provided exact test times though, my argument is that I wasn't told there was a second test at all. According to R. v. Stinchcombe, the Supreme Court ruled that the prosecution cannot withhold disclosure for the purpose of securing a conviction, as it violated the right to make a full defence and a fair trail. That is my argument, not about there not being a second test time, but the fact they made no effort to advise me of a second test time and intentionally hid that information from me, not allowing me to make a complete defence. Therefore, infringing on my
Constitutional right.

For the guilty plea, my argument would have been the fact that I had been coerced into doing so by the threat of being of facing a harsher penalty. This argument would stem from the first argument as to whether it is constitutional to force me into trial and withholding evidence, and then telling me that it appears I'll be found guilty DURING the trial to which I plead not guilty, and was in represented coercing me into a guilty plea. I would add the fact I was not represented and essentially coerced in a guilty plea mid trial. I'm arguing this because I feel I was, I had no intention of pleading guilty until he told me to take the deal, and that I was losing the case... So the plea was obviously not voluntary without coercion from the judge. It's the same as someone having a gun to your head, did you say yes I understand? Yes, but was it voluntary? - that's where it leaves reasonable doubt.

As for the presumption of innocence, do you have any idea where to start looking for case law? Like do you have one case law to reference so I can start. I always assumed that meant pre-trial, so during trial the JP has reason to sway one way or another as long as he considers all the information above him during the sentencing. He never actually convicted me, because I did ultimately plea guilty so I don't know how strong the argument would be that he was swaying, but it would definitely help my argument that I was coerced, because had the trial gone on, it was my turn to give evidence & the officer was done giving the stand, there was never any indication that the officer was trained. So, it could have been a coercion tactic by the JP to register a conviction, as I feel it was.

Anyway guys, any help is appreciated. I'm not looking for a way out after a voluntary guilty plea, because I know I'd have to fight it again of I do win the appeal and risk having a worse conviction. The only reason I want to pursue this is because I actually feel like I was cheated out of having the chance to represent myself with various tactics used by the JP & prosecutor, whether intentional or not - and being that I'm not a lawyer or paralegal, I fell for them. Right now it's about fighting for my own rights more so than the speeding ticket - as this won't even affect my insurance at my current situation so it's not even a get out of a jail free card.


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Re: Appealing after guilty plea?
PostPosted: Mon Jul 21, 2014 2:47 pm 
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If you are going after this only because of principle of the JP not appearing impartial then I think you might be able to score a new trial but like you said not necessarily a better outcome. The key getting a new trial would be to find caselaw on canlii citing the Charter s. 11 (d) and making a persuasive argument (not as easy as it sounds) that although your not guilty plea was withdrawn, you subsequently plead guilty under duress. Good luck.


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Re: Appealing after guilty plea?
PostPosted: Mon Jul 21, 2014 6:04 pm 
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As previously mentioned, providing the exact test times in the notes is not always essential. Courts have accepted when an officer testifies that they always test the device at the end of their shift and would only make a note of things if the test failed. Bottom line: unless the officer referred to some documentary evidence that you didn't receive in disclosure, then your argument regarding not knowing about the second test time before trial will likely fail.

Your appeal success will therefore likely rest on your 'voluntary' plea and/or the impartiality of the JP. A good starting case on judicial impartiality is: R. v. S. (R.D.) (1997, SCC) Note up that case and you'll be lead to all the cases you need on this issue.

As for the issue of withdrawing a guilty plea, the OCA decision in R. v. T. (R.) (1992, OCA) is an excellent starting point for your research.

Good luck with your case.


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Re: Appealing after guilty plea?
PostPosted: Mon Jul 21, 2014 7:37 pm 
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highwaystar wrote:
As previously mentioned, providing the exact test times in the notes is not always essential. Courts have accepted when an officer testifies that they always test the device at the end of their shift and would only make a note of things if the test failed. Bottom line: unless the officer referred to some documentary evidence that you didn't receive in disclosure, then your argument regarding not knowing about the second test time before trial will likely fail.

Your appeal success will therefore likely rest on your 'voluntary' plea and/or the impartiality of the JP. A good starting case on judicial impartiality is: R. v. S. (R.D.) (1997, SCC) Note up that case and you'll be lead to all the cases you need on this issue.

As for the issue of withdrawing a guilty plea, the OCA decision in R. v. T. (R.) (1992, OCA) is an excellent starting point for your research.

Good luck with your case.


Thanks a lot for the case law, in terms of the testing procedure, like I've stated earlier I'm aware that the officers is not required to tell you the exact times of the test (usually, depends on JP - case law goes both ways here). I do believe not telling someone about the existance of a second test being completed at all hinders their right to make a complete defence as outlined in the Supreme Court case R. v. Stinchcombe.

My argument in regards to the test is that I made two separate disclosure requests asking for all the evidence against me and got in writing that I was given all. Then when I went to court, the officer told me just before trial when I pointed out there was no indication of a second test that he forgot to put it in the system. Therefore, I could have never known that there was a second test.

My argument on that basis would be that they deliberately hid the existence of the second test to make me come to trial and argue that there is no proof of the laser device's accuracy at the time of the offence, and then they would bring up that they tested it without ever telling me, in essence 'withholding information in an attempt to secure a conviction', contrary to the case. Also that second case works great as it states that as long as I wasn't given a fair trail (as I am arguing with the tests), them the guilty plea cannot be registered even if it is valid.

I would quote the exact phrases I'm using from R. v. Stinchcombe but I'm on mobile right now - do you believe there is a case to be made here with this argument? It's not about the time of the tests, rather the withholding the existance of this test that I'm arguing infringes my ability to make a full and complete answer and consequently infringes on my right to a fair trial.


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