REQUESTING DISCLOSURE OF RADAR/LIDAR MANUAL

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jsherk
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REQUESTING DISCLOSURE OF RADAR/LIDAR MANUAL

Unread post by jsherk on

REQUESTING DISCLOSURE OF RADAR/LIDAR MANUAL

The courts have decided that when you ask for a copy of the manual for the speed measuring device used, that the prosecution only has to provide you with part of it and not the whole thing, unless you can give reasons why you need the whole thing.

So my suggestion is that when you request disclosure of the manual you use something like this:

- A copy of the entire manual for this speed measuring device. I require the full manual in order to properly prepare and cross-examine the officer on their knowledge, understanding, training and use of the device, as well as all other information about the device, including (but not limited to) installation, display unit, remote control, communication systems, operatiing the unit, modes and settings, performance, how radar works, interference, testing, care, cleaning, storage, specifications, legal requirements, and all other sections of the manual.


I am not sure if this will work or not, and there may be better ways to write it up but just a suggestion for improving the chances of getting the whole thing.

Any suggestions on how to improve the request would be helpful.

EDIT: I have succesfully received a full copy of the OPP Genesis II Select Directional radar manual by making a Freedom Of Information Request for it. Of course this takes a while so you need to make an FOIR as soon as you find out what make/model they are using if you want to get it this way.
+++ This is not legal advice, only my opinion +++


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Decatur
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Unread post by Decatur on

The problem with this is that the "court" will not see your disclosure request. Only the prosecutor will and they will likely only give you the testing procedure. In order to get the entire manual, you may have to justify the request in front of the JP and of course, the prosecutor will also have a chance to say why they don't have to give it to you. In the end the decision will be up to the JP.


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Unread post by rank on

Speaking of FOIR, did you ever get any info on whether the OPP may have requested that tuning forks be removed from the manual?


jsherk
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Unread post by jsherk on

+++ This is not legal advice, only my opinion +++


Observer135
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Unread post by Observer135 on

I seem to recall reading transcript of a case where the prosecution argues exactly that, why the can not make a full copy available to everyone asking for it.
Decatur is right, but you can word your request as you have, then you can use it in court to try and justify why you need the manual in its entirety. What differentiates a good attorney from an average one is his/her ability to convince a judge to see things their way. Since you will need to argue your point before a JP, that is what you will need to do.


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Unread post by bend on

Even if you convince a JP that you need the whole manual and the prosecutor doesn't put up much of a fight, they probably aren't going to print or scan the thing for your convenience. They'll offer to book you an appointment and you can take a look at the manual at their offices. Your case will be adjourned and now you have to set aside another 2 days on top of the day you've already wasted.


jsherk
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Unread post by jsherk on

I am sure some will disagree with how I request disclosure, but my most recent disclosure request is below.

I do NOT recommend direct copy and paste... you need to understand each item and know why you are asking for it. If you don't know why you are asking for something then do not ask for it. Also, this request has some specific items that only apply to OPP, so do not ask for those items either if you are dealing with a municipal police force.

DISCLOSURE REQUEST

With regards to the charge of _______________ against _________________ (ticket# __________________ ), and with respect to the guidelines established by R. v. Stinchcombe [1991] 3 SCR 326, R. v. Egger [1993] 2 SCR 451, R. v. Chaplin [1995] 1 SCR 727, R. v. B. (K.G.) [1993] 1 SCR 740, R. v. Collins [1987] 1 SCR 265, Brouillard also known as Chatel v. The Queen [1985] 1 SCR 39 and subsequent cases, which state that the Crown has the burden to prove why an item should not be disclosed, but must err on the side of inclusion if the item has a reasonable possibility of being useful to the accused in making full answer and defense. Please provide the following disclosure in order to properly prepare a defense, and be able to make full answer to the charge:

1. HTA Section 128 contains 45 possible sub-sections and sub-sub-sections. Provide details of which specific sub-sections or sub-sub-sections defendant is being charged with;

2. Provide a copy of BOTH sides of the original Certificate of Offence filed with the Clerk of the Court, including the DATE the Certificate was filed;

3. Provide a full copy of the notes of all officers involved;
- Include a typed copy of any of the above notes that are hand written, since hand writing is usually very hard to decipher;
- Also provide an explanation of any short-forms or abbreviations used in the above notes;

4. Provide a copy of the driving record which may be tendered at trial;

5. Provide a copy of any audio recordings, video recordings, or photographs;

6. Provide copies of any Certified Documents, any witness statements and any witness will-say statements;

7. Provide proof of calibration and accuracy of patrol vehicle speedometer. This is relevant if officer will make any reference to the patrol vehicles speed or if speed measuring device requires testing against patrol vehicle speed;

8. Provide the make, model and serial number of any speed measuring device used;

9. OPP Policy & Procedure Orders require each OPP Detachment Commander to keep a file folder for each Speed Detection Device containing it's Certificate of Accuracy. Provide a copy of the devices Certificate of Accuracy. This is relevant as it is proof from the manufacturer that device was accurate at the time it was manufactured, and also includes the serial number of any external antenna that should be used with the device;

10. Provide the make, model and serial number of all antenna used with the speed measuring device. This is relevant as the Certificate of Accuracy for the device specifies the serial number of the specific antenna that are to be used with the device;

11. Provide the mounting location on patrol vehicle of each antenna. This is relevant as interference can occur with improperly mounted antenna;

12. Provide proof of officers training for the speed measuring device used;

13. OPP Policy & Procedure Orders require each OPP Detachment Commander to keep a file folder for each Speed Detection Device containing it's Maintenance Logs & Damage Reports, copies of all Forms submitted for warranty or other repairs, and Memos and other relevant correspondence related to each specific device. Provide a copy of all this information from this file folder. All logs, reports, forms, memos and correspondence are relevant as they will be used to determine the reliability of the device and if there has been a history of problems with the device based on the maintenance, service and repairs of the unit;

14. OPP Policy & Procedure Orders require their Communications & Technology Services Bureau (CTSB) to retain a licence, issued by Industry Canada, for the operation of radar/laser devices. Provide a copy of this license as it is relevant to prove the device is being operated legally/lawfully;

15. Industry Canada governs the use of devices, like radar and laser speed measuring devices, through the Radiocommunications Act, and requires all these devices to have a Technical Acceptance Certificate ("TAC"). Provide a copy of this TAC as it is relevant to prove the device is being operated legally/lawfully;

16. Provide a copy of the full entire manual for the speed measuring device.
Specific sections of the manual that I can request ahead of time are:
- Cover/Title page so can confirm it is correct manual for make and model of device;
- Table of Contents pages so can confirm that all pages of any provided sections are included
and/or that any unprovided sections are indeed relevant and should have been provided.
- Operation pages so I can cross-examine officer on their knowledge, understanding, training and
use of the device.
- Testing pages so can cross-examine officer on their testing of the device.
- Legal requirements so can determine whether Industry Canada legal requirements have been met.
It is impossible to know which other specific sections of the manual may or may not be relevant without knowing what each section contains, therefore the entire manual is likely relevant and should be provided in order to be able to properly prepare to cross-examine the officer.
I can accept a photocopy of the entire manual, however I would prefer and am willing to accept a digital copy of the entire manual at the email address I have listed at the bottom of this request, as this is the simplest, easiest and most cost effective method to deal with disclosure of the manual for all parties involved. Think how much time will be saved in court by not having to argue about which sections should or should not have been included. Also forcing the defendant/agent to take an additional day off work to drive to the prosecutors office to view the manual is unacceptable as it costs money in gas, they also have to take more time off to attend on the trial date as well, and they are the only ones NOT being paid to attend the trial, whereas the prosecutor, officers, judge/Justice of peace, clerk ARE all paid to be there and do not lose a days pay.
Not providing the full entire manual would bring the administration of justice into disrepute, as the fairness of the trial IS affected by the defendants right to make full answer and defence being infringed. However providing the full entire manual would not bring the administration of justice into disrepute, as the fairness of the trial is unaffected by providing the entire manual.

I also ask that you advise me of any information (whether specifically requested or not) which is not being disclosed and an explanation for such non-disclosure.

Please mail disclosure to the address below, or if it's more convenient for you, I can accept disclosure by email at: your@email.com

Thank you
(signature)
Your Name, agent for defendant
Your Address
Last edited by jsherk on Tue Aug 16, 2016 2:05 pm, edited 2 times in total.
+++ This is not legal advice, only my opinion +++


jsherk
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Unread post by jsherk on

And here are my legal arguments to backup why each item requested should be disclosed:

REASONS WHY AN ORDER TO DISCLOSE REQUESTED ITEMS SOULD 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.

CONCLUSION:

The Crown has the burden to prove why an item should not be disclosed, but must err on the side of inclusion if the item has reasonable possibility of being useful to the accused in making full answer and defence, and an order to disclose the requested items should be granted.
+++ This is not legal advice, only my opinion +++


EphOph
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Unread post by EphOph on

I don't know why prosecutors are so intent on wasting everyone's time including their own. They only have to obtain the manual electronically once and then spend a few minutes sending it to the defendant each time. The court is so stressed to complete the docket each day but they spend so much time arguing about this (at least with defendants who know their rights), causing more adjournments, 11b applications, and appeals.

In my disclosure requests I ask for it to be sent via registered mail (even though they never do), or email of course.


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Unread post by jsherk on

EphOph wrote:I don't know why prosecutors are so intent on wasting everyone's time including their own. They only have to obtain the manual electronically once and then spend a few minutes sending it to the defendant each time. The court is so stressed to complete the docket each day but they spend so much time arguing about this (at least with defendants who know their rights), causing more adjournments, 11b applications, and appeals.
+1
+++ This is not legal advice, only my opinion +++


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Unread post by argyll on

Because after that it will be something else. Of course if we didn't want to waste the courts time people could just admit to what they did and save the fights for when they actually didn't commit the offence they are accused of !

Novel concept I know.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


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Unread post by rank on

Why won't they disclose it? Because they don't want you to know what's in there and they sure don't want it to appear on the internet that's why. First I believe they will say it's irrelevant and if that fails I believe they will say its copywrite protected and if that fails i believe they will drop the charge. Jsherk I think you have zero chance in a million of getting what you asked for but i predict you won't need it because I predict they will drop the charge either in the lower court or before your appeal is heard. Let me be the first to congratulate you.


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Unread post by Nanuk on

Moreover I can't see what would be useful in the manual other than the testing and operation portion of the manual. The officer (at least in my 10 years as an operator/instructor) won't likely be able to testify to anything other than the operation of the speed measurement device. They in most cases wouldn't have installed it or anything of that sort as it's usually done by a technician off site.

IMO at least part of the reason they don't disclose the entire manuals is to save the court time as the defendant would be asking countless questions that the officer couldn't testify to turning a 15 minute speeding ticket trial into a 2 hour trial, in the end having he same evidence admitted.


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Unread post by jsherk on

argyll wrote:Of course if we didn't want to waste the courts time people could just admit to what they did and save the fights for when they actually didn't commit the offence they are accused of!
Of course if they (police/government) didn't waste our time charging us for things when there was no harm, no injury, no damage then they could just admit it was all a money grab and this would stop wasting a lot of the courts time!

Novel concept I know.
+++ This is not legal advice, only my opinion +++


argyll
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Unread post by argyll on

That is back to your Freeman on the Land nonsense I'm afraid. So everyone should be allowed to speed all they want and only be charged when they hit something ?

I do agree that some tickets are fishing hole type tickets where there is little public benefit derived from their application but to say that no-one should be charged unless they hurt someone is crazy. Enforcement is the only reason that some people drive in a semi-reasonable manner. Do you really want everyone to be able to drive however they want and so long as they don't hit someone it's OK ?




Former Ontario Police Officer. Advice will become less relevant as the time goes by !


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