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Speeding charge - Do I qualify for 11(b) - Need advice
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PostPosted: Wed Jan 15, 2014 11:41 pm 
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Joined: Wed Jan 15, 2014 10:34 pm
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Here is a summary of my story

Dec. 29, 2012 - was charged 23 over on a 50km/h zone. Requested trial. Received Notice of Trial 6 months later
Trial Date: 10 months later. Requested disclosure 2 months in advance.
- officers notes, font and back, and typed
- make model and serial number and manual of the radar
- Repair history
- Officer training record.
- any other documents, crown may rely on at trial.

As suggested here and ticketcombat, did not put down my telephone. On the trial date, received the disclosure, just the officers notes and nothing else. Prosecutor argued that nothing else was relevant and officer's training record will be presented at the trial. Prosecutor argued that I did not put my number so they could not call me. JP suggested that I talk to the officer to understand the notes and go to the office to look up on the manual. Case adjourned and got a new date 2 months later which is now 12.5 months from the date of offence.

4 weeks before the 2nd trial date, sent another disclosure requesting for remaining information and additionally,
- typed notes
- sitting to review the manual
- repair history
- calibration logs
- official procedure for equipment testing and operator training standards
- any non-disclosed docs.. If not, reason why it cannot be disclosed.

A week later, filed for 11(b) - Huge thanks to diehard for putting together easy-to-follow procedure.

Trial date: Jan 14, 2015. Prosecutor was going over my application in front of JP step by step. Said I requested disclosure once before, it was provided and another disclosure 4 weeks ago and the disclosure is ready (hands over to me). JP asked why was not provided earlier. He said that not enough time and no contact number provided. JP told me to include the phone number next time to speed up the process. I said that want to move with the 11(b). JP said that if the 11(b) is denied, then I would have to proceed with the trial and since I just received the disclosure, he gave me new date. The disclosure contains the officer's notes (again) and tests section of the manual (which they did not provide the first time). According to the prosecutor, calibration logs & repair history are not available and training record will be provide at trial. Once again JP suggested that I go through the notes with the officer outside the court. New court date is Feb 19 (3rd trial). (almost 14 months from date of offence). I ended up saying that I''m not waiving my right for 11(b) and the delay will be on the Crown. JP said that the next judge will make a decision on that.

1) File for 11(b) again? Do I still qualify?
2) Request another disclosure for testing procedure and training standards? - This time put my phone number???


HELP!


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Fri Jan 17, 2014 5:42 pm 
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BUMP!!! Looking for some suggestion.. Thanks


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Fri Jan 17, 2014 6:14 pm 
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Joined: Wed Mar 30, 2011 1:08 pm
Posts: 536
Location: Ontario
You should resubmit your 11b and be prepared to solidly argue why the delay should be attributed to the prosecutors office. I personally see nothing wrong with not including a phone number but I would be prepared to argue why you feel it is not necessary.

If you don't receive the disclosure you want, you will also have to argue that why you feel your disclosure is incomplete and how being denied that information will hurt your ability to make a full answer and defense.


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Fri Jan 17, 2014 10:17 pm 
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Posts: 1062
ynotp wrote:
You should resubmit your 11b and be prepared to solidly argue why the delay should be attributed to the prosecutors office. I personally see nothing wrong with not including a phone number but I would be prepared to argue why you feel it is not necessary.

If you don't receive the disclosure you want, you will also have to argue that why you feel your disclosure is incomplete and how being denied that information will hurt your ability to make a full answer and defense.


I'd agree with this.

Also, they may bring up the fact that you were given the opportunity to go over the officers notes with the officer himself at your first trial. It doesn't sound like you followed through with it and ended up requesting typed notes during another disclosure request down the road. You can't just deny opportunities like this. Officer is not required to give you typed notes, just something that is legible for yourself so you can fairly defend yourself. It may be used against you to show you're the side causing delays.


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Sat Jan 18, 2014 1:05 pm 
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Joined: Wed Jan 15, 2014 10:34 pm
Posts: 7
Thanks a lot guys...

While going over the notes & the test pages of the manual I received, I found below discrepancies.

1) The officer notes has test time before he clocked me and also beginning of the shift. There is no indication that he had tested AFTER or at the ENDof his shift. If it is, it was not provided in the disclosure. (Do I have to ask for this specifically??)
2) As per the Lidar manual there are 5 tests to verify the unit's mechanism. 2 test are factory-defined. Of the remaining three tests, display test, scope alignment, Fixed Distance test, the notes had only 2. Display test was not done.
3) There were 5 passengers in the car. He has only 4 on his notes. He did not mention the baby at the back seat. How could he miscount the number of people in the car?
4) He had the temperature on his notes but it is off by 1 deg. as compared to the weather report (very minor)

Do you think any of the above stand a good chance for the case to be dismissed in case my 11(b) is denied?

Is there any training and testing procedures by HQ or local branch other than the manual? Asking for another disclosure may sound like I'm causing unnecessary delay.

TIA


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Sat Jan 18, 2014 4:27 pm 
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Joined: Wed Mar 30, 2011 1:08 pm
Posts: 536
Location: Ontario
Testing is important or they wouldn't do it.....I would ask if he tested the unit at the end of his shift and if he says yes ask why it was not in the notes you received. If it is in the notes elsewhere but not provided to you ask for an dismissal or adjournment based on improper disclosure to the fault of the prosecution. At the next hearing you would try the 11b again. Just make sure that it is really missing you don't want to go that route and look like a tool.

The baby is considered cargo.

If you plan to question him about the temperature and then introduce evidence showing he was off by 1 degree please let me know where this is going to happen because I need to be in the courtroom.


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Sun Jan 19, 2014 8:31 pm 
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Thanks ynotp,

I did look at the notes (1 page) and there is no mention of test time after the incident. Having said that, I did not SPECIFICALLY ask for the test log BEFORE and AFTER the incident. I did ask for officer's any notes pertaining to the case.

Should I send another disclosure request asking for this info?


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Wed Jan 22, 2014 8:49 pm 
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Joined: Wed Jan 15, 2014 10:34 pm
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Can someone advise if it's good idea to send another disclosure requesting for the test logs before and after the incident or no need? I'm worried if it will become my fault for not specifically asking for it. I've asked for any notes pertaining to this case, so does this mean that officer should have provided it to me?

Thanks...


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Mon Feb 10, 2014 5:17 pm 
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Joined: Wed Jan 15, 2014 10:34 pm
Posts: 7
Hi,

I filed for 11(b) two weeks ago. Last week, I received a call to pick up my disclosure. Picked up my disclosure . It contained absolutely nothing more than what was provided previously - one page notes and test section of the radar manual.

None of below items requested were provided
- both sides of the ticket
- complete manual
- officer's training records
- calibration & repair history
- test log on the offence day
- guidelines/policies of OPP & the city.

Should I send another request for disclosure or go to trial and say I did not receive full disclosure? Court date is in two weeks.

Thanks,

P.S. From the notes, I did not find a test time anytime after the offence time. Although I specifically asked for test logs for that day.


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Mon Feb 10, 2014 6:07 pm 
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Joined: Mon Nov 29, 2010 8:08 pm
Posts: 550
Unfortunately the crown can only give you what they have in their possession. Additional items they do not have will require a Freedom of Information Request at the relevant police station/service.

With respect to speeding offences ON prosecutors at the most give a full copy of the manual (by e-mail) and typed notes if they're not legible. You won't get training records, calibration & repair history. It depends on the department and the officer, but I don't believe they have separate test logs... they write test information in their notes. Guidelines is most likely something that would be available through a Freedom of Information Request.

Most importantly you'll have to argue why these items are relevant and necessary for you to mount a defence and make a full answer. It may be in your best interest to find case law where the crown was required to disclose these items.

Test times is a very interesting topic, where the appeal courts have given JPs the power to decide whether they need them. Some JPs want notational evidence of the test, others are satisfied with oral testimony of a time. Most likely the officer will say something to the effect of, they tested it before the end of their shift. Some information i've gathered about the testing topic: topic1909-15.html#p30553


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Mon Feb 10, 2014 6:14 pm 
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Joined: Mon Mar 14, 2011 11:31 am
Posts: 682
Most of that disclosure request won't be supplied by the prosecution. You're going to have to justify before the JP as to why you want those items for that were not included before the prosecution will give them to you.
Asking for "test logs" may not get you the information you require about the test time after the offence because not vey many agencies use them. The times are simply in the officers notes.
I think your best best will be the 11b that you've already filed.

Appears iFly55 and are are on the same page.


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Fri Feb 21, 2014 9:52 pm 
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Joined: Wed Jan 15, 2014 10:34 pm
Posts: 7
Thank you for all your help. However, I lost the battle today. I felt like I was deprived of my rights.

Went to the court. The prosecutor asked me what I want to do. I said that I filed for 11(b). She asked if I had the transcript. I said No. She said that I should have had the transcript and asked me to wait.

I was the last one to be called. JP asked me what I want to do. I said I would like to motion for 11(b). He asked me what is the reason. I said that it has been 14 months delay from the date of charge and due to no fault of my own and that my right for being tried within reasonable time has been infringed. I went through my whole story with the dates and that I had 2 scheduled trial but was adjourned due to lack of disclosure. He asked me when was I charged. I said Dec 2012. He asked when I sent in my disclosure request. I said 9 weeks before my trial which was September 2013. He said why did I wait that long. I said that I received my notice of trial only in June and thereafter I applied for disclosure. I said that I gave 9 weeks to send me the disclosure. He said who's fault was it for waiting 9 months to request the disclosures??? I said No one's, since my first trial date was only on Nov. 15. My 11(b) was denied. He asked how do I want to plead. I said Not Guilty.

Trial began.

The officer testified with his side of story. Basically explained whats on his notes. He mentioned the tests he did before but did not mention anything after. After he finished, JP asked prosecutor if she wants to examine. She said she had one question and asked if he tested the device after the event. He said, Yes, he did at the end of the shift. She asked what time. He said he didn't know. It was my turn. I asked if he has independent recollection of this event. He said Yes. I asked what tests he did for the device to work properly. He said scope alignment, fixed dist and zero velocity. I asked if he had used the manual I received in my disclosure to do the tests. He said he is not sure what I received but he has the manual at home. I asked him to show the zero velo. test in the manual. He showed the fixed dist test and said its the same. I asked him for the calibration certificate. He said that it was already calibrated and he doesn't have access to it. he said the device is working in proper order and if wasn't he would put it in a bag and send it to the department. I asked him if he tested the device against another working radar. He said he didn't have to do that. I asked him if he has a guideline of what he is supposed to do. He said that he had to do the test as per the manual. I asked if he did the test at the location where he used for interference. He said that he doesn't need to do that. He does it at the station. To check if he had independent recollection, I asked him for the shade of my car, any cars around me, etc. He seemed to know only whats on the notes.

After I've finished. JP asked if I want to be witness. I said No. He asked if I have a witness. I said No. JP asked the prosecutor for her notes. She said that the officer was trained and that he did the test before and after, followed the manual and used the device that measure accurate speed and recommends that I should be convicted.

JP asked me for my notes: I said,
- The officer did not seem to have independent recollection of events and therefore his testimony should not be considered.
- The crown has failed to proved that the device were tested before and after the stop as required by the law - cited case laws (r.v. Schlesinger and r.v. Martin) and gave a copy to JP and Prosecutor. He asked me to read the lines and I read the relevant sections.
- No foundation that the device was in good condition since no calibration certificate. Did not prove that the device was in good condition.
- Officer did not seems to used the device in accordance with approved manufacturer manual. Officer did not conduct all the necessary tests as per manual. As such officer cannot prove to the accuracy of the reading.
- The crown has failed to prove beyond reasonable doubt that the alleged offence took place and therefore I ask that the case be dismissed.

JP asked the prosecutor if she has anything to say, She said my case law as old and that she cited another case law in 2013 (forgot the name) that he officer under oath said that he tested before and after the event. Also, the officer tested as per the manual and used a device which can accurately measure speed.

I wanted to say that the Display test was never done, but JP didn't ask if I had anything to say. (missed opportunity!)

JP in his judgement said that after the hearing testimony by the officer and what the prosecutor said and since I was not a witness and I don't have a witness and listening to the questions I asked the officer, he found that the officer was trained and did his tests and based on his findings that I was going 23 km over the speed limit, and that I was found Guilty. He asked me if I had anything to say on fine. I said nothing. He reduce the fine to $70 from $86.25 and to be paid within 30 days.

Honestly, I wanted to get over this but at the same time I feel like JP just believed the officer rather than seeing fact and evidences. Perhaps, I was too nervous.

Is it worth appealing? This time seek professional help... Any suggestions?


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Wed May 07, 2014 4:51 pm 
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lesami wrote:
I said I would like to motion for 11(b). He asked me what is the reason. I said that it has been 14 months delay from the date of charge and due to no fault of my own and that my right for being tried within reasonable time has been infringed.

It is partially your fault. If I understand your info that you provided, you were not ready to proceed at trial on at least one occasion. That means that some of the delay is your responsibility.

lesami wrote:
I said that I received my notice of trial only in June and thereafter I applied for disclosure. I said that I gave 9 weeks to send me the disclosure. He said who's fault was it for waiting 9 months to request the disclosures??? I said No one's, since my first trial date was only on Nov. 15. My 11(b) was denied.

Additionally, you waited 3 months to request your disclosure. That is not the Crowns fault- that's yours.

lesami wrote:
I asked him for the calibration certificate. He said that it was already calibrated and he doesn't have access to it. he said the device is working in proper order and if wasn't he would put it in a bag and send it to the department.

He does not need to provide the calibration certificate. He tested it, in his opinion, it was operating properly. That's all he needs to prove. If you wish to prove it was NOT operating properly, it is up to YOU to prove that.

lesami wrote:
JP asked if I want to be witness. I said No. He asked if I have a witness. I said No. JP asked the prosecutor for her notes. She said that the officer was trained and that he did the test before and after, followed the manual and used the device that measure accurate speed and recommends that I should be convicted.

If you do not wish to act as a witness, that is your right. However, that leaves the JP with only one side of the story. Why wouldn't they believe the officer???

lesami wrote:
- No foundation that the device was in good condition since no calibration certificate. Did not prove that the device was in good condition.

Again...as I noted above, they only have to have the opinion that the device was working properly. If you want to prove that it wasn't, that is up to you.

lesami wrote:
JP in his judgement said that after the hearing testimony by the officer and what the prosecutor said and since I was not a witness and I don't have a witness and listening to the questions I asked the officer, he found that the officer was trained and did his tests and based on his findings that I was going 23 km over the speed limit, and that I was found Guilty.

lesami wrote:
I feel like JP just believed the officer rather than seeing fact and evidences.


These last 2 go hand in hand with what I wrote above. If you don't provide any testimony as a witness, that's your choice. But the JP can only consider what is testified to. If you don't provide reasonable doubt, then you get convicted. And rightfully so, in this case.

_________________
Do not take anything I say as legal advice. Only a lawyer can give legal advice. I am not a lawyer.


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Sun May 18, 2014 3:58 am 
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is it still required under case law that there is documentation that the unit was tested after being pulled over? you'd think the officer would just say he did test the unit afterwards and that would be the end of it then, even though the notes did not mention any testing afterwards?


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Re: Speeding charge - Do I qualify for 11(b) - Need advice
PostPosted: Fri May 23, 2014 11:41 am 
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trenchknife wrote:
He does not need to provide the calibration certificate. He tested it, in his opinion, it was operating properly. That's all he needs to prove. If you wish to prove it was NOT operating properly, it is up to YOU to prove that.


Isn't that burden of proof backwards? My understanding (admittedly limited) of Ontario law is that the accused is innocent until proven guilty beyond all reasonable doubt - shouldn't this mean that the burden to prove or disprove something is never on the accused, and that the accused needs only cast reasonable doubt? Is the burden or responsibility of proof different under the HTA?


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