Procedural Question - When (if?) Motion To Dismiss Based On Contradicting Disclosures.

Moderators: hwybear, Radar Identified, Reflections, admin, bend, Decatur

CalgaryHelp
Newbie
Newbie
Posts: 3
Joined: Thu Feb 21, 2019 1:51 am

Procedural Question - When (if?) Motion To Dismiss Based On Contradicting Disclosures.

by: CalgaryHelp on
Thu Feb 21, 2019 2:40 am

TL;DR - Skip the bolded words. Both crown and officer provided typed notes on the ticket, one says officer traveling north, the other says he's traveling south.


Hi,


I'm in Alberta, but our local forums are just hearsay on Hockey forums and such, and I've learned so much from this website I thought I'd post out of province instead. My questions are basic enough the knowledge should transfer.


I'm a first timer in court. I'm really nervous about this.


I have a speeding ticket for 28 over the limit in Alberta. My trial is on the 22nd (tomorrow, Friday).


The officer's notes were hard to read, almost non-stop abbreviations and hard to read words, so in disclosure I asked for them to be clarified and abbreviations explained, and for the make and model of the radar unit.


The crown prosecutor sent me typed notes, describing me traveling northbound and the officer traveling southbound (towards each other), at a distance of at 400m from an intersection (plus the distance the officer was from the intersection on his side).


The crown then forwarded my request for the radar model to the officer, who replied, and then the crown forwarded his reply to me. He didn't just give the make and model of the radar, he wrote his interpretation of his notes too. In his notes, he describes his vehicle traveling Northbound (both vehicles Northbound), contrary to what the prosecutor sent me.


Am I likely to succeed in some kind of motion to dismiss the charges based on the crown's typed interpretation of the officer's notes, and the officer's typed interpretation of their own notes giving opposite directions the officer's vehicle was supposedly traveling?


If so, when should I make that motion, and how? What do I say, and what is that called?


Do I approach the crown before the trial and point that out?

Do I make the motion as the case is called but before the crown begins?

Do I wait until cross-examination of the officer?

Do I wait until the crown has rested their case?


Do I have to make a case based on the inconsistency of the two note interpretations and can't (or shouldn't) make a direct motion to dismiss (or stay, or, some other term I don't know of)?


(Or is the judge likely to just roll their eyes and tell me that it's obviously a typo?)


How do I otherwise prepare for the 3 situations all at the same time?:

1 - Officer and I are headed towards each other.

2 - Officer and I are headed in the same direction, Officer is behind me.

3 - Officer and I are headed in the same direction, Officer is ahead of me.


What if the officer claims on the stand one of the situations that didn't happen?


Also, I don't have Alberta case law, but, at 400+ meters (500+ in time for the officer to stop on his side of the intersection), that's 1650 feet away, in-line, (not perpendicular, arrow-straight road) that the officer claims he accurately estimated my speed (within 3%) before activating his Radar. Does anyone know of some literature or scientific studies to demonstrate that this is beyond human ability? (The officer likely had his radar sweeping, beeped some vehicle, then pulled over the next vehicle he saw, then said he "estimated speed at..." prior to engaging the radar). I don't know about Alberta Case law to pull up any limitations like I know they have in other jurisdictions about any distances in excess of 1000 feet requiring expert testimony, nor of any police procedure requiring that he estimate speed before activating radar... so I might have to build that from scratch.


I have some other sundry items to bring up if a motion to dismiss does not work:


1 - The officer wrote the intersection wrong (rd 275 instead of 284, for example), and the scribbled over it with the correct one. He was parked directly next to the sign. Either his vision is bad or his memory is bad.


2 - It was a hot July day, (officer wrote 21'c), at extreme range there would be mirage distortion on the asphalt from the heated air rising.


3 - The sun was somewhat in his eyes if he was traveling Southbound, and there was a round white silo the same distance away (round buildings scatter light in every direction like a disco ball).


I have bits and pieces to support each of these and some cross-examination and dialog prepared, but I think that I should avoid taking the stand, and rely on undermining the crown's case. I don't know how I might be trapped by the crown, who will have 100,000x as much experience as me in twisting a defendant's words. Is that foolish based on what I've said so far?


And I've left it to the last minute do to it being my first time in court and anxiety.


Any help or advice would be much appreciated. Especially with when it is appropriate (or if) to make a motion to dismiss (or whatever it would be called), based on the two bits of disclosure contradicting each other. A silver bullet would be nice.


Thanks in advance

bend
Moderator
Moderator
Posts: 1293
Joined: Wed Sep 19, 2012 1:44 am

Posting Awards

Moderator

by: bend on
Thu Feb 21, 2019 11:05 pm

In Ontario, an officers notes are mostly seen as a way to refresh memory. They are not looked upon with the same scrutiny as the front of your ticket. Even then, mistakes do happen on a ticket and it usually doesn't amount to anything depending on the error.


There are mistakes frequently in notes. In your case, it looks like the officer made an error while typing out notes for a second time. The best you can do is use those mistakes to try to prove some point in an argument during a trial, whatever that argument may be. You can question the officer during a trial about it and they'll just probably correct it and the trial will roll on. In my opinion, the significance of an error on the third set of notes is pretty low. If you bring it up before trial, they'll go over the original notes and clarify whatever issue you may have.


In this province, it's not an issue that would amount to much of anything.

CalgaryHelp
Newbie
Newbie
Posts: 3
Joined: Thu Feb 21, 2019 1:51 am

by: CalgaryHelp on
Fri Feb 22, 2019 6:39 pm

Update:


TL;DR - I lost. I probably screwed up. But I think it was shady. I don't regret trying, it forced me to learn a lot.


Many things the judge told me procedure-wise were completely different than what my research showed. So, maybe I was being bullied by an ignorant judge, or maybe I misunderstood things, or maybe Alberta is significantly different than other jurisdictions where I was doing my research.



Lots of interesting tidbits:


- I waited about 3 hours for all the other quick cases/guilty pleas to process. This court room was so small, it was also the first appearance, there wasn't a separate first appearance, you go into the actual courtroom.


- You know when you meet a person and you know instantly you'll get nowhere with them? That was this judge. Talked down to everyone from paralegals to the crown. Had an almost permanent snear on her face. Just a mean-spirited person in general.


- I seemed to be the only traffic case for trial that day, the courtroom became empty except for me and 12 officers (for the next case perhaps?).


- The very first thing that happened, the judge explained to me the basics of the trial. Then told me that I had to disclose all evidence, up front, to both the crown and the police officer witness, before the trial started, or no evidence would allowed afterwards. I asked for forgiveness for my ignorance, but I was under the impression I could present evidence as I chose, throughout the trial, and the crown could choose to accept it on a case-by-case basis. I tried rephrasing this 2 or 3 times but the judge flat out told me to share all of my evidence with the crown immediately before I even entered a plea, or she would reject it.


- I said that it was critical to my defense that I be allowed to present evidence later, and was told no. "This isn't TV, we don't do ambushes here. Disclosure is a 2-way street. They showed you their evidence, you must show them yours."


- The judge also glared at the prosecution after asking me if I rejected the crown's resolution, and I said none was offered. The crown said "He didn't seem interested." I said "I walked in, handed her my paper, she asked if it was for trial, I said yes, she told me to sit down. That's it."


- The judge said we'd take a break for me to share all my evidence with the crown and decide if I wanted their resolution.


- The crown invited the officer over. I asked if the officer could be removed from the courtroom, because items of my defense were specifically about his ability to measure things and I have pairs of photographs, one of which is the test and the other proves the answer. The crown said I was trying to entrap the officer. I said no, but it is critical to my defense to be able to get him to make estimations of the road in question, (I.e. what distances look like from his perspective), and then be able to introduce that top-down views with scale on them to measure the real distance.


- I had photographs of a car on the road at a certain distance, and was planning on asking the officer to identify it as best as possible (it was tiny, as my claim is that it's deceptively far away). Then I have a zoomed in glory shot of the vehicle so I can demonstrate whether the officer was correct or not. Things like that. He got to see all of them, so I was like... well... there goes my defense.


- The crown never offered any resolution. I didn't ask but, the judge had specifically berated them for not doing it before the break, and they still didn't :P


- The crown presented their case.


- In cross-examination, I first moved for dismissal based on improper disclosure and my right to prepare a full defense. I highlighted how the officer's notes described the opposite situation (head-on vs. both same direction), and that it's critical to the defense of a speeding ticket to examine the area where the officer supposedly was so I could gather evidence and make a defense. I was told she would rule on it later. I asked for her to rule on it before we proceeded. She said no. It went back and forth a bit and then she just said she's ruling against me. She said the time to point out inconsistencies was now, in cross-examination. I tried 3 times to make the point that, it's not about inconsistencies, it's that I am entirely unprepared for the trial since I was given false disclosure. I was shut down, I don't know if they understood the difference or were just being stubborn.


- When I finally asked the officer about it, he said it was an autocorrect mistake that he later corrected and sent in his corrected notes. The crown says they sent me those corrections 3 days ago. I said I never got the email. The judge asked the crown to prove it, and for me to look at her computer and verify. The crown could only provide that some other clerk had told them that they'd sent the email to me. They tried to make it seem like that was proof it was sent. I had to stress that no, that was forwarded conversation between the two of them where one says they forwarded the email from the office to me, but my email address does not appear in there, and the other person obviously forgot to do it. The crown said that other clerk wasn't there and they didn't have access to their email.


- I moved for dismissal again, based on more conclusively false disclosure, and the judge didn't specifically rule on it, she said she'd think about it and told me to move on.


- The officer admitted that what he said was 400m could have been as far as 500m, but not as far as 550m.


- The officer said he didn't need to accurately estimate distance, as he has patrolled those roads for two decades and is very familiar with all the features on them. This was, bizarrely his defense for why he wrote down the wrong road number (20 miles to the south that doesn't intersect this road). He's so familiar with these roads, he doesn't make mistakes, and that's why he made this mistake... or something.


- The officer admitted he made a determination on speed, activated radar, confirmed speed, locked speed, turned on flashers, slowed down from 80km/h and stopped, within at most 10 seconds. (In closing I claim this is too short an amount of time to notice the size of a vehicle siloutte at that range changing size).


- The judge didn't like my line of questioning, I tried to be specific about specific elements required in determining speed from an oncoming vehicle, and the judge said I was repeating myself. I said I was not, I was breaking down separate items, and she just barked at me to move on.


- The officer at one point, being questioned about time, (I was asking about 5 factors for identifying speed of an incoming vehicle, one-by-one, and being able to accurately estimate time being critical for estimating speed). He said in his opinion that estimating time is not relevant to estimating speed. (In closing, I argued that the definition of speed is literally distance over time, and if the officer thinks time is not a component, then it is impossible for him to estimate speed).


- I made a point that, I was skipping most of the short defense I'd prepared, (my actual defense being of the opposite situation as disclosed), because the officer had already seen the answers. The judge berated me a bit and said that wasn't true, we don't entrap people, and I could just ask. So I used the analogy of showing the officer a photo of a billboard at a certain distance, and asking him what it said. And if he read it incorrectly, then I show a zoomed in photo and asked if her could read that, I could use that to demonstrate the limits of vision. But if the officer gets to see both photos, he's already seen the answer and will pass the test every time. That or I have no ability to prove what it really says because I can't bring it up. That if I can't keep the answers secret until after I've asked the questions, I cannot think of a way to demonstrate the limits of the officer's vision in the area he needed to have vision.


- I abandoned most of my cross-examination. Through the whole 45 minutes of this, even though I was needling the officer and frustrating everyone in the court room, the officer was the only one who remained civil and didn't talk down to me, despite the fact that I'm right there basically trying to demonstrate he's of limited competence. Old guy, nice guy. The crown rested their case.


- I was asked if I wanted to take the stand. I said no. The judge asked if I was sure. The crown hinted that that would be the time for me to present the photos I showed earlier of the terrain (I wasn't sure if kindness or baiting). I said I didn't want to choose to take the stand at this time. Judge said "Okay, then we're moving to closing statements." I asked for a clarification of procedure, as I was under the impression that I am able to present evidence, and argue it, without taking the stand. I was told by the judge that no, you can only introduce evidence to a witness. I said I thought there was an opportunity to provide statements where you can introduce new evidence and arguments, and then closing statements would follow that and be where you cannot introduce new evidence. The judge said no, if I don't want to take the stand then all there is is legal statements, no evidence can be submitted. That if I didn't want to take the stand, I should have found a way to use the evidence I had with the officer on the stand, ask him about it, and make the case for it. At that point it was too late to call him back I presume.


- The judge emphasized that she'd confirmed that I wanted to represent myself and not take council, nor take a resolution, and said this is why. She sarcastically said the government has documents on how to proceed in traffic court and I said I read them, the don't contradict my actions and this was all a surprise to me that it was proceeding the way it was.


- Crown made closing statements.


- I asked for some time to prepare closing statements. The judge said we don't do that. It's unusual. Asked why I wasn't ready. I said this whole exercise was me winging it, having prepared a defense for the opposite circumstances, and being deprived of almost all of my evidence, so I needed to go through what the officer said to highligh my closing arguments. The judge told me fine, 5 minutes, slammed something and walked out.


- After the recess while waiting for the judge to return, the court clerk was jovial with me, I had no false hope that it would go well no matter what I said. I took the time to appologize to the officers waiting in the room and the crown too, for probably wasting everyone's time. They all shrugged it off and were good humored.


- I made closing statements emphasizing the lack of disclosure and being deprived of my Section 7 rights of the Canadian Charter of Rights and Freedoms for a full disclosure. I think I asked for a ruling on it, but she refused to rule. I argued the human impossibility of quickly determining speed, and the visual limits, at extreme ranges. I emphasized the officer's claim that time is not a component of speed. I argued that the officer admitted to having 25% unreliability in range, and thus speed, and that was the magnitude by which he thinks the vehicle was speeding, so he could not have visually identified the correct vehichle that was speeding. I argued that he overestimates his abilities, excessively beyond human ability in multiple fronts, as evidenced by his errors. I argued that there were a variety of turn-offs that speeding vehicles he detected could have left the road without being visible to him.


- I did not argue the mirage angle, the sunlight, or most of the other things because the crown said it was all heresay and I needed a meterologist, not a scientific website that tells you sun angles from time of day and date. Also I was just burnt out from talking to a wall. The judge kept telling me to move on, saying she'd noted that I was making a point about X, but, in a manner that said "You won't convince me, stop trying" when I was being specific and thorough, not "You have succeed in this point, move on" like her language seemed she was trying to convince me of.


- Judge was very much not thrilled with me and decided against me. Fine in full, no time to pay.


- The crown and the clerk chatted with me and told me some of what I did wrong afterwards. Told me it was foolish to not take the stand. I said things were going to poorly when I was in control, that she'd clearly have picked me apart regardless of how sure I was of things in cross, so, at least if I stayed off the stand I had hope. She somewhat agreed.


- Some officers said it was good to hear people challenge cops once in a while, if for nothing else than to hear their reasoning and to improve their own skills. I have a feeling that the cops felt I made some strong points and their guy might have been in trouble with a different judge. There were some murmerings on a few of my closing arguments. Also, most of them were getting double-time, so some commented on how they could afford pizza tonight because of me :P


Anyway, that's what happened.


I guess I am curious whether I was so wrong about things I'd read specifically about (like not having to take the stand but still able to introduce evidence, and not having to disclose your whole evidence bundle at the start).

Reply to Topic
  • Similar Topics

Return to “General Talk”

Who is online

Users browsing this forum: No registered users and 5 guests