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Case Law- Disclosure of only testing pages of radar manual
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PostPosted: Sat Jul 09, 2016 3:36 pm 
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I am looking for the case law that is commonly used when the prosecution says they only need to disclose the testing pages of a radar manual or laser manual.

I am only interested in the binding decisions (appeals court or higher?), and not in the non-binding Justice of the Peace decisions.

The most recent that I can find is:
Thunder Bay (City) v. Millar, 2009 ONCJ 485 http://canlii.ca/t/264d2

This case is an appeal, but is by a Justice of the Peace. Is it still binding on other Justice of the Peace because it was an appeal? Or are all JP decisions in ONCJ non-binding on other JP's, regardless of trial or appeal?

Thanks

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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Sat Jul 09, 2016 9:02 pm 
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That case isnt an appeal. A JP can't hear an appeal as they are the lowest court. Any decision made by a JP in Ontario isn't binding on other JP's but they can take their decisions into consideration.

I'll look in my files tomorrow to see if i can locate any Ontario Coutrt of Appeal decisions.


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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Sun Jul 10, 2016 12:00 am 
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Yes that case was confusing me because I did not think a JP could hear an appeal. But it lists those involved as "Applicants/Respondent" which is what you usually see at an appeal as opposed to a "Defendant".

Thanks for looking. :)

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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Sun Jul 10, 2016 2:25 am 
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The case above only orders the disclosure of the testing pages, not the whole manual as you would like:

"Therefore, it is hereby ordered that the prosecutor provide by way of disclosure in the matters of Mr. Rose and Mr. Millar, photocopies of the pages of the Genesis II User’s and Installation Manual relating to testing procedures and operation of that model of radar unit."

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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Sun Jul 10, 2016 8:46 am 
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It actually orders the disclosure of the testing pages AND the operation of unit pages. And I am aware that there are not any cases ordering the whole manual. What I want to know is what binding cases are out there with regards to what sections need to be provided.

This case mentioned above is not binding anyways, however if you read it closely, you will see that the reason the whole manual was not provided is because there was no succesful argument made as to it's relevancy:
- "The Court reasoned the appellant did not lay a rational basis or factual foundation for his request before the trial judge, and therefore was not entitled to the disclosure request."
- "the defendant had failed to demonstrate why the requested documents were relevant to his defence"
- "There has been no affidavit evidence led by the defence on this motion relating to any of the applicants that leads this Court to conclude that the OPP’s Radar Basic Operator’s Manual would be relevant and therefore subject to an order for disclosure."
- "The only reference to the relevancy of the OPP manual was in Mr. Paddon’s oral argument, which the Court did not find compelling."
- "The application for production either whole or in part, however, must have some material basis. The Justice of the Peace may then be in a position to determine the question of relevancy. If there is no relevance then no order is appropriate. If there is relevance relating only to a part of the manual, then only a part of the manual should be ordered. The onus, however, is on the applicant. And the decision, if necessary, must be made on the side of inclusion."
- "Because this Court has not been satisfied on the evidence before it that the entire Genesis II radar manual requested is relevant for the purposes of making full answer and defence, it will only consider making an order for disclosure of the parts of that manual relating to the testing and operation of the unit."

So I will be doing some research now on definition of "relevant".

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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Sun Jul 10, 2016 5:50 pm 
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So far I've found no binding cases with regards to the production of the entire manual. It appears that in a vast majority of the cases I've seen, the JP's deciision is such that the defendant does not convince them of the relevancy of the entire manual being disclosed.


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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Sun Jul 10, 2016 7:44 pm 
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I was searching CANLII and I can not find any binding ONCA court of appeal cases either. Only ONCJ level with JP decisions.

I had been led to believe that there were some binding cases out there. Anyways if you come across one, post it here.

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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Mon Jul 11, 2016 11:30 am 
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So here is my new motion that I will be submitting before trial when I don't get the whole manual. Could probably be used with a section 7 Stay request when you don't get what you asked for as well. Comments welcome.

NOTICE OF MOTION ASKING FOR ORDER AS FOLLOWS:

ORDER FOR PROSECUTOR TO DISCLOSE REQUESTED ITEMS

ITEMS REQUESTED & RELEVANCY

ITEM #1 - A full digital copy of the entire manual for the speed measuring device used, sent by email.
RELEVANCY: The defence plans to cross-examine the officer on their knowledge, understanding, training and use of all aspects of the radar unit, therefore all sections of the manual are likely relevant. Even if a section of the manual that was disclosed is proven to be irrelevant after the fact, this would not bring the administration of justice into disrepute, as the fairness of the trial is unaffected by providing the irrelevant section. It is also impossible to specifically know a section of the manual is not relevant, without being able to review it first. At the very least, the front cover and table of contents needs to be included to confirm the manual is for the correct device and to determine how many pages any provided section should contain. Other sections that are definitely relevant (as they can be used to cross-examine officer and bring reasonable doubt to the proper functioning of the device), are any that relate to operating the unit, modes and settings, testing procedures, tracking history, tuning forks, how radar works, interference, specifications and legal requirements. I would suggest that in this day and age of technology, it would take the Prosecutor less than 5 minutes to attach a digital version of the manual to an email and send it. Again, even if a section of the manual that was disclosed is proven to be irrelevant after the fact, this would not bring the administration of justice into disrepute, as the fairness of the trial is unaffected by providing the irrelevant section. Think how much time it would save the court to not be arguing about which sections of the manual should be disclosed, by simply disclosing the whole thing quickly and easily. I believe this outweighs the argument that the manual can be viewed at the prosecutors office or police station, as the defendant is the one already having to take time off work to come to court on their trial date, and now they have to take another day off work to go view the manual that could have just been emailed to them in less than 5 minutes. Perhaps those people that do not want to accept a digital copy should still have to go view the manual to save on copying costs, but for anybody that is willing to receive a digital copy, the ease and cost to both the Prosecutor and Defendant should be given the greatest weight. The prosecution is required to err on the side of inclusion when an item has a reasonable possibility of being useful, and should provide the whole manual, which also eliminates any potential arguments on an appeal that it affected the defendants right to make full answer and defence, and would therefore again save the courts time and money. The whole manual is likely useful, and failure to disclose will result in the defendant not being able to make full answer and defence to the charge.

REASONS WHY ORDER SHOULD BE GRANTED

1) The Crown has the burden to prove a requested item should not be disclosed:
R. v. Egger, [1993] 2 S.C.R. 451 says:
"The Crown's disclosure obligation is subject to a discretion, the burden of justifying the exercise of which lies on the Crown..."

2) The Crown must err on the side of inclusion of requested items, unless it has clearly proven an item is irrelevant:
R. v. Stinchcombe, [1991] 3 S.C.R. 326 says:
"While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to be gained from the civil side of the practice is that counsel, as officers of the court and acting responsibly, can be relied upon not to withhold pertinent information. Transgressions with respect to this duty constitute a very serious breach of legal ethics."

3) The defendant has the right to make full answer and defence to the charge:
R. v. Stinchcombe, [1991] 3 S.C.R. 326 says:
"The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted."

4) The defence has shown all requested items are potentially relevant:
R. v. Chaplin, [1995] 1 S.C.R. 727 says:
"The defence, therefore, must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant."

5) Definition of 'relevant' means that the requested items may be of some use to the defence, or that the requested items have a reasonable possibility of being useful to the accused in making full answer and defense:
R. v. Chaplin, [1995] 1 S.C.R. 727 says:
"One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed."
"Relevance means that there is a reasonable possibility of being useful to the accused in making full answer and defence."

6) The defendant does not need to prove relevance to the higher standard of 'beyond a reasonable doubt':
R. v. B. (K.G.), [1993] 1 S.C.R. 740 says:
"...the trial judge should be satisfied that these indicia of reliability are established on the balance of probabilities, the normal burden resting upon a party seeking to admit evidence."

7) There is a reasonable possibility that withholding any of the requested items will impair the ability of the defendant to make full answer and defense, as the defence has already shown all requested items are potentially relevant:
R. v. Stinchcombe, [1991] 3 S.C.R. 326 says:
"…there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence."
"The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence."
"The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege."

8 ) The trial Judge or Justice of the Peace needs to ensure the defendants right to make full answer and defence is not violated:
R. v. Stinchcombe, [1991] 3 S.C.R. 326 says:
"The trial judge may also review the Crown's exercise of discretion as to relevance and interference with the investigation to ensure that the right to make full answer and defence is not violated."

9) When the fairness of the trial is affected, this brings the administration of justice into disrepute:
R. v. Collins, [1987] 1 S.C.R. 265 at paragraph 36:
"If the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute..."

10) If the defendants right to make full answer and defence is violated, this would affect the fairness of the trial and would bring the administration of justice into disrepute.

11) Failure to disclose requested items that have been shown to be potentially relevant, would affect the fairness of the trial and would bring the administration of justice into disrepute.

12) A reasonable person is the average person in a community.
R. v. Collins, [1987] 1 S.C.R. 265 says:
"The reasonable person is usually the average person in the community, but only when that community's current mood is reasonable."

13) The average person in a community would agree that when the fairness of the trial is affected, this brings the administration of justice into disrepute:
R. v. Collins, [1987] 1 S.C.R. 265 says:
"Since the concept of disrepute involves some element of community views, the test should be put figuratively in terms of the reasonable person: would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable person, dispassionate and fully apprised of the circumstances of the case."

14) Justice must not only be done, but must be seen to be done.
Brouillard also known as Chatel v. The Queen, [1985] 1 S.C.R. 39 at paragraph 25 says:
"In conclusion, although the judge may and must intervene for justice to be done, he must
nonetheless do so in such a way that justice is seen to be done."
Hon. J.O. Wilson in A Book for Judges on page 3 says:
"So, initially we propose to set forth a general principle governing all aspects of judicial behaviour. That principle is best stated in Lord Hewart's famous dictum in Rex v. Sussex Justices, [1924] 1 K.B. 256 at p. 259: '(It) is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.'
This pronouncement, so simply stated, so profound in its sagacity can never, how often repeated, become a cliche. On its application to judicial conduct one might say that what a judge does must not only be proper, it must appear to be proper. Justice, of course, comes first but the appearance of justice is also of major importance."

15) The average person in a community would agree that if the defendants right to make full answer and defence is violated, this would affect the fairness of the trial and would bring the administration of justice into disrepute, and justice would not be done or seen to be done.

16) The average person in a community would agree that failure to disclose requested items that have been shown to be potentially relevant, would affect the fairness of the trial and would bring the administration of justice into disrepute, and justice would not be done or seen to be done.

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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Mon Jul 11, 2016 12:02 pm 
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What if the crown/police doesn't have a digital copy but only a paper one ? You are now asking for disclosure of something that they do not have.

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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Mon Jul 11, 2016 12:11 pm 
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I will re-word with the option to give me a full paper copy if they have never asked the manufacturer for digital copy.

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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Mon Jul 11, 2016 2:34 pm 
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The onus is on the defendant to establish why something not disclosed must be disclosed; it is not for the Crown to justify its decision otherwise. The Stinchcombe obligation only states that the Crown must disclose that which is relevant and within its control to the case. For things it does not disclose, the defendant is the one who bears the onus to prove something IS material (i.e. having probative value) and relevant to the case (they're not the same thing!) AND reasonably necessary to make full answer and defence.

I personally think you've only got about a 0.01% chance of winning your argument! First off, the manual is protected by copyright. The Crown can't just disclose it. They CAN however, grant you an opportunity to read it at their office. That's the usual practice. They won't however, let you make photocopies or reproduce it in any way since that would contravene IP law. So, even if you overcome convincing the court, you're not going to get a digital copy nor are they going to reproduce it for you. The court will just allow you to review it.

That said, I also don't think you'll be able to overcome the reasonably necessary hurdle of your argument to convince the court. After all, the officer is not the manufacturer nor is he a technician of the radar---he is simply a qualified 'operator'! Therefore, so long as he's performed the testing procedures according to the manufacturer's instructions, that's all you can challenge him on. If you plan on arguing the inner workings of radar and frequency and interference, you've got the wrong witness! He's not qualified to answer those. The entire manual is therefore not needed to cross-examine the officer; only the testing pages are. If you plan on raising those other types of issues, you'll now need to bring in your own expert witnesses (e.g. engineers, physicists, etc.)---at THAT point, perhaps the entire manual is needed, but not just for a police officer's testimony. I suspect the court will teach you about that.

Bottom line: if you've got the time and want court experience, then by all means, go for the effort. However, just know that its a long shot at best! In all likelihood, they'll just let you look at the manual in their office which I'm surprised wasn't proposed to you. Its pretty standard practice.


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Re: Case Law- Disclosure of only testing pages of radar manu
PostPosted: Mon Jul 11, 2016 2:51 pm 
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There is a 0% chance of getting it if you do not ask for it!

There is case law about the copyright issue, stating that is a non-issue.

The officer needs to know how to operate it beyond just testing it. They need to know what the different modes do so they can have it on the proper setting. They need to be aware of what can cause interference and give false readings. And the fact that they do not have to give any proof they were trained to any standard, other than their own verbal testimony, makes most of the manual VERY relevant and material.

They did offer to let me view the manual in their officer, however when I got they there, they did not have any copies of that manual.

And yes I have the time and I want the court experience!

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