Prosecution refused disclosure for speeding charge.

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Pepsi
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Prosecution refused disclosure for speeding charge.

Unread post by Pepsi on

Hi all,
Need advice on how to handle refusal to disclose the following
1. Device purchase, calibration, test and repair history
2. Policies and instructions relating to laying of charges and operation of the radar.
3. Officer's training records
The reason stated was that the information is not in the possession of the prosecution and if it exists it is not relevant to the case.
If the reliability of the device and the training of the operator is not relevant I don't see how anyone can ever win a speeding case. As for the possession, shouldn't the prosecutor obtain the information if they don't have it?
Comments please!


Stanton
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Unread post by Stanton on

I know for #3, training records do NOT need to be produced for disclosure. You can certainly question the officer about his/her training at trial, but it doesn't need to be disclosed ahead of time. Not sure how likely you are to get the other two items. #1 probably more likely then #2.


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Pepsi
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Unread post by Pepsi on

Thanks for your reply Stanton.
Alright, I can question the training but how do I know whether it was sufficient if I don't know what was required in the first place? isn't #2 necessary to prove deficiencies? Same goes for #1, the radar could be a lemon, in and out of repair and I would have no way of knowing that. Another question I have, sorry about my ignorance but I am totally new at this, should I argue with the prosecution now or should I do wait till court and present my objections to the judge? At this point, other than requesting another disclosure and stating that I believe this information is very relevant and ask for it again is all I can think of and somehow I don't think it will be an effective strategy :(
Help please!


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hwybear
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Unread post by hwybear on

2 & 3 are one and the same, officer has to be a trained radar operator. The operator has to have received training from a radar instructor, and to have been requalified as an operator within the past 2 years.
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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Pepsi
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Unread post by Pepsi on

thanks hwybear. well, that's exactly what i mean, you'd just stated some requirements for training which I can only assume are documented somewhere. Without knowing that the policy calls for re-qualification every 2 years I wouldn't question the training if for example the officer said he was re-qualified 3 years ago. Comments please?


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hwybear
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Unread post by hwybear on

There is no documentation of the training, other than would be in a notebook on whatever date and would be very minimal (ie: radar training and for some of us "radar instructing") and that is it. I do not know any officer that would jeopardize credibility by not being current in training.

The 2 years is being extended to 3 years in near future or/as been sometime this year.
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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Decatur
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Unread post by Decatur on

It has been changed already to "at least every 36 months"


iFly55
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Unread post by iFly55 on

can #1 & 2 be obtained through a FOI request?


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Pepsi
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Unread post by Pepsi on

Thanks everyone. There are specific guidelines for training in radar operation http://www.docstoc.com/docs/66799986/On ... or-Devices so I would think records should exist. I am sure no individual officer would knowingly omit required training but if the requirement wasn't there in the first place that's a different story. I would think the prosecution would be more than happy to provide this info if everything was done by the book.

iFly55, yes I believe I can get all 3 items via Freedom of info and looks like I will have to go that route. I was surprised to learn that you have to pay for FOI, it's not much but still... I guess freedom isn't free after all;)


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Decatur
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Unread post by Decatur on

That document has been replaced in 2011 by an updated version and is no longer in force. Those guidelines are also exactly that. Guides. They hold no force in law. If you read them, they use words like "should" and "may". As for the officers training, ask them on the stand when he/she was originally trained and the last requal date. Problem solved.


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Pepsi
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Unread post by Pepsi on

According to this it is a requirement to have procedures in place " Every chief of police shall establish procedures on traffic management, traffic law enforcement and road safety. O. Reg. 3/99, s. 8."
http://www.e-laws.gov.on.ca/html/regs/e ... 0003_e.htm
That makes sense, I certainly hope that officer's are not just given a radar gun and left to train on motorists.
As for questioning the officer on training it doesn't solve the problem at all. I need to know if training taken = training required and questioning the officer will only give me training taken.


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Decatur
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Unread post by Decatur on

Those are two totally different documents. The last one is part of the Police Services Act and is an actual Provincial law. The first document is a "guidline" There is some case law that speaks to "training" I just can't seem to find it at the moment but will be able to access it tomorrow. Will repost at that time. You may have to use a Freedom of Information Act request for policies and procedures that cover, traffic management, traffic law enforcement and road safety.


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Pepsi
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Unread post by Pepsi on

Thanks Decatur. Did you manage to find anything?


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Decatur
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Unread post by Decatur on

I grabbed the wrong binder and am not back in until Thursday. In the mean time, try http://www.canlii.org/en/ Do a search on radar training. Just be aware that some of the decisions listed many be from lower courts and are not binding on others.
I'll try to grab it on Thursday.


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Unread post by ejadoo on

pepsi,
i am going to jump into this discussion too as I did the same as you and prosecution did not give me the disclosure too.
here is a case law that should help.
http://www.canlii.org/eliisa/highlight. ... 50669.html

I also had requested the certificate of conformance for Lidar as the laser used on general public should be certified as safe and not making people blind. any thoughts on that?






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