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Ontario Highway Traffic Act

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PostPosted: Wed Dec 31, 2008 12:50 pm 
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Cosine errors will only make the speed of your car slower, not faster. Your checklist is what the officer will testify to.

Do not believe the internet hype that you can easily win a speeding ticket. Its one of the tougher offences to have thrown out.

Based on where you are going with your wife's defence you'd be better off meeting with the Crown and taking a plea, if thats available to you.


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PostPosted: Wed Dec 31, 2008 2:34 pm 
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If the Crown does not disclose the requested evidence, that is often sufficient to stay the charge. The evidence must be relevant and the "applicant" (jimp2061) must have a reason for needing it so that he can provide a full answer and defence. Couple of excerpts from the R. v Vanier case:

Quote:
It was obvious that the use and accuracy of the instrument was fundamental to the Crown’s case. The photocopying of a portion of the unit manual and the offer of access to the balance was enough to minimally satisfy the prosecution obligation regarding the manual disclosure. To contend that a request for repair records was irrelevant because the officer’s evidence would be that it was operating properly, was clearly wrong.


Also

Quote:
Clearly, the prosecution in the proceedings has a duty to disclose relevant information to the defence, to enable full answer and defence. While there is no duty to produce the irrelevant, the prosecution must err on the side of inclusion and produce all information that has a reasonable possibility of assisting the defence ( R. v. Chaplin 1995 CanLII 126 (S.C.C.)


http://www.canlii.org/en/on/oncj/doc/20 ... cj318.html

If the defence does not provide a reason for requesting the manual or access to it, the Crown may have a valid reason for not disclosing it. (R. v Sequin, 2007) However, I'm sure ticketcombat, DynamicLegal or lawmen can outline where and when this would be the case. At this point there is nothing to lose by continuing to trial. On the day of the trial, a plea-bargain can still be used if you want to go that route. The JP can also order the Crown to disclose the evidence. If they show up with the evidence, a motion for an adjournment to allow you to review it would be appropriate.


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PostPosted: Wed Dec 31, 2008 2:54 pm 
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What about the proof of service and calibration. I'm still a little confused with this. From what I understand the OPP no longer test the calibration with tuning forks, and they have not disclosed any repair or bench testing documents. Would this be a credible defence?


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PostPosted: Wed Dec 31, 2008 4:02 pm 
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At this point there is nothing to lose by continuing to trial. On the day of the trial, a plea-bargain can still be used if you want to go that route


He does have something to lose. Typically Crown's will not take a deal on the day of the trial. They've set aside court time, called officer(s) in (possibly on OT) and prepared for the trial. Not to mention the fine will be higher than if he just paid it.

Testing on most radar units consists of pressing a button and the unit says "passed". Done. Unit working properly. Tuning forks are old school and unless you have an old radar unit they are not used.

Case law is great but what is your reason for seeing the manual. Remember officers are not radar experts but radar operators. Big diference.

BTW was your wife speeding or not?


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PostPosted: Wed Dec 31, 2008 4:35 pm 
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My wife still insists that she was not doing the speed that the officer says she was...


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PostPosted: Wed Dec 31, 2008 6:54 pm 
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jimp2061 wrote:
From what I understand the OPP no longer test the calibration with tuning forks


Never ever ever have police checked the calibration. Tuning forks do NOT calibrate radar.

Quote:
Has anyone heard of the "tracking history check list"?

For stationary radar the checklist is:
1. Was a visual speed estimate made of the suspect vehicle?
2. Was the speed reading displayed consistent with the visual estimate?
3. Did the audio doppler tone match the speed reading and visual estimate?
4. Was the suspect vehicle out front and by itself when the speed readings were made?
For moving radar operations, add
5. Did the radar displayed patrol speed match the vehicle’s speedometer reading at the time the suspect vehicle was tracked


Tracking history is common use of radar, no big deal.
#4 does not make a difference
#5 some radar units have VIP attached, therefore this will always be proper...(ie genesis II select and directional)

_________________
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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PostPosted: Wed Dec 31, 2008 7:52 pm 
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Ok Bear, I hear ya. Man, you're good. I think I know what your answer will be to this one...

I have had absolutely no luck with Decatur. Can anyone tell me if the Genesis 2 Directional is guaranteed for life for never having to be bench tested? I have heard from another site that the radar units are good for one year out of the box, then the manufacturer recommends that they be bench tested by a qualified technician.


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PostPosted: Thu Jan 01, 2009 6:18 pm 
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The best evidence that the Crown has of the 117 in an 80 is the radar reading. If the radar is not tested properly or is not used properly, the radar evidence should be excluded. All of the information regarding proper test/operation is in the manual. Being able to ask the officer exactly what he did to test it and how he used it, and compare it to the manufacturer's procedure, is central to the question of whether or not the radar reading is reliable.

Quote:
He does have something to lose. Typically Crown's will not take a deal on the day of the trial. They've set aside court time, called officer(s) in (possibly on OT) and prepared for the trial.


What are you basing this on? The Crown offers plea deals on the day of the trial as a matter of routine. The court date is scheduled usually based on the officer's availability. They set these up for rapid processing. Every time I've gone to traffic court (twice for my own purposes, 10+ times as an observer), the Crown tried to plea-bargain with the defendants in speeding cases. The Crown has already paid the money and they don't want to walk away empty-handed.

Quote:
Not to mention the fine will be higher than if he just paid it.


Not necessarily. Raising the fine to the statutory amount can happen but the JP can lower it, too. Some other provinces, such as Quebec, make you pay an additional surcharge for court time if you fight it, but not here. The max they can impose for a Part 1 offence is $500. The way to argue, upon conviction, for the set fine (or less) is here:

http://www.ticketcombat.com/step5/sentencing.php

That assumes that the Prosecutor successfully gets a conviction. Right now the disclosure is still not complete. If they do get disclosure of the relevant parts of the manual, the game changes.


Last edited by Radar Identified on Fri Jan 02, 2009 2:23 am, edited 2 times in total.

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PostPosted: Thu Jan 01, 2009 8:42 pm 
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jimp2061 wrote:
I have had absolutely no luck with Decatur. Can anyone tell me if the Genesis 2 Directional is guaranteed for life for never having to be bench tested? I have heard from another site that the radar units are good for one year out of the box, then the manufacturer recommends that they be bench tested by a qualified technician.


One has to remember that other sites and information in general on net in regards to laws is based a lot on where those people are. Such as a simple tuning fork, some places still require it, some don't. Some places don't recognize specific radar units unless they are passed through local gov't etc....think you get my drift. Some manuals are made specific to those areas as well. Some police have different procedures on use/qualifications as required by their province or state. Some go past the required and do extra stuff.
(ie. OPP requalified every 2yrs, other forces might not be....maybe certain police do send their stuff back in every year, probably internal policy)

End and short of it all. Radar is obtained certified, when/If it breaks down, it is send in for repair, fixed, calibrated and then sent back into the field.

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Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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PostPosted: Fri Jan 02, 2009 2:54 pm 
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Quote:
The best evidence that the Crown has of the 117 in an 80 is the radar reading. If the radar is not tested properly or is not used properly, the radar evidence should be excluded. All of the information regarding proper test/operation is in the manual. Being able to ask the officer exactly what he did to test it and how he used it, and compare it to the manufacturer's procedure, is central to the question of whether or not the radar reading is reliable.


True, however if the manual is a copy (which it will be) it will not be admissible. You can ask all the technical questions you want but unless the officer makes an error in his testimony, in most cases, it will be good enough for a conviction.



Quote:
What are you basing this on? The Crown offers plea deals on the day of the trial as a matter of routine. The court date is scheduled usually based on the officer's availability. They set these up for rapid processing. Every time I've gone to traffic court (twice for my own purposes, 10+ times as an observer), the Crown tried to plea-bargain with the defendants in speeding cases. The Crown has already paid the money and they don't want to walk away empty-handed.


Crowns will take a plea deal on the day of the trial however not after it has started which is what was suggested in an earlier post. He can't say that he hasn't had full disclosure, JP doesn't dismiss the charge and then ask for a plea. Once it starts he's comitted to a triel. At least that's how I interpreted the earlier post.

I have nothing to gain for my suggestions. I prefer easier, more foolproof methods. In my opinion, where he is going with his defence will not yield the intended results hence my suggestion for a plea. If her record is clean and he has a convincing argument he would likely be able to plea to 95/80, $65 and no points. Is it really worth taking a day off work, wasting hours of time on the net to beat it? Seems like a bad investment to me but if it all about the principle of the matter then I suppose it's worth it.


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PostPosted: Fri Jan 02, 2009 5:50 pm 
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Quote:
Once it starts he's comitted to a triel. At least that's how I interpreted the earlier post.


I might've not worded my earlier post clearly enough, but yes you are right. We both agree on this point. Once the trial starts, the time for a plea is over. Prior to the trial beginning, a plea-bargain can be made.

Quote:
I have nothing to gain for my suggestions. I prefer easier, more foolproof methods. In my opinion, where he is going with his defence will not yield the intended results hence my suggestion for a plea.


No one here really has anything to gain (or lose for that matter) from their suggestions. Pleading guilty to a lesser charge guarantees a lot of things. 15 km/h over yields the stuff you talked about but most importantly, for the longer term, usually will not result in an insurance increase depending on the provider. I agree with you that it is a virtually foolproof tactic, unless the Prosecutor has other things going on.

Ultimately, time will tell what the outcome is. We've all made our points, it's up to jimp2061 and his wife to decide how they want to proceed.


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PostPosted: Fri Jan 02, 2009 6:49 pm 
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I agree :)


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PostPosted: Fri Jan 02, 2009 8:41 pm 
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Wow, thanks for all the input and advice.
Likely I'll try the plea bargain route for 95/80. That might be the safest idea. Ok, I haven't had allot of experience with this. Am I best to show up with all my info, and use it to try to bargain with the Crown? I have a few previous decisions, and appeals with regard to the disclosure. Would I just be shooting myself in the foot, if I let the Prosecutor know that I have this info, or would it work to my advantage?


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PostPosted: Fri Jan 02, 2009 9:48 pm 
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I guess it depends on the Prosecutor. Since you've decided to go the route of bargaining, definitely bring all of your evidence, a BIG stack of it, notes, etc., so that if things don't go as planned you're ready. This is what I would do: Show up as early as possible, definitely in advance of 30 minutes prior to trial, and seek out the Prosecutor.

Of course the common-sense approach would apply: Dress for the occasion, be polite and respectful, show your wife has a clean or mostly clean driving record, and is apologetic and remorseful. Stuff like that. Indicate that you're willing to negotiate. If he's hesitant, then I'd show him the stack of evidence (show him the stack but if possible try not to let him read it) and in a friendly way say that you're trying to speed things up and make it quick and easy for everyone. You may find this thread helpful as it applies in your case:

http://www.ontariohighwaytrafficact.com/topic545.html

Does anyone have any experiences negotiating with the Crown that they can tell of here? Would be useful I think. I have a couple of them but they aren't that relevant here. Of course if the officer doesn't show, they'll probably drop the charge! Don't bet on the officer being absent, though, they usually show these days. Regardless, good luck with it.


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PostPosted: Fri Jan 02, 2009 9:59 pm 
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See if you can meet prior to the trial (not the day of). This way they can cancel the officer. Walk in with your wife and humbly ask to plea to a lesser charge. Use her good record and remorse as a bargaining tool and make a statement that you don't want to waste any more of the courts time than necessary (you're time isn't important). They have a job to do and aren't out to screw anyone. The more cases they get through the better for them.


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