jsherk wrote:The fact that the officer got your car wrong is irrelevent. The fact that the no standing zone is in the morning only is irrelevent. The amount of traffic is irrelevent. This has nothing to do with parking so whether you turned your engine off or not is irrelevent.
The officer notes you had a device that illuminated your face and later in the notes he says it was a Black Samsung... again this is very very very hard to beat. The ONLY two ways you can beat this are if (1) the officer does not show up to trial (very very rare), or (2) under cross-examination you can get officer to admit that it could have been a MEDIA device like an iPod and not a COMMUNICATIONS device.
Questions would be something like this:
- You say the device you saw me using illuminated my face? (officer will say yes)
- Is it possible then that it could have been an iPod MP3 player instead of a cell phone?
If officer answers, "yes it is possible" then great news for you... you say "no more questions" and in closing submissions you point out that the officer agreed that it may have been an ipod and not a cell phone and therefore it brings reasonable doubt to the charge of 78.1(1) as the proper charge should have been 78.1(2) using handheld entertainment device instead.
If officer answers, "no I am sure it was a cell phone" then you have to ask "why are you so sure it was a cell phone and not an ipod?" Again, you are trying to get him to admit it may not have been a cell phone.
The fact that the officer notes it as being a Black Samsung is not good for you as most likely he will say he is sure it was a cell phone and saw the device beside you on the seat or cupholder and it was the same one you were holding.
Anyways read this case on CanLII as it shows this example of how you might be able to bring doubt and win:
R. v . Marujo 2015 ONCJ 717 http://canlii.ca/t/gmlbd
Thanks you for your advise. Indeed i do have an Ipod Classic
Lets say i denied i was holding my phone and instead it's an ipod then the officer brought up that he has a body cam that have me admitted so, Would I be able to reject it as it was not in the disclosure that i receive so disclosure is inadequate?
Also his note was not saying how he links me holding a device to my Samsung, only when he came and see the cupholder it was there. Obviously it was dark enough not to see it when i was holding it. (Can i use this as well?)
Another thing is how he can be so sure that i was holding it with my left hand?
Just another quick question. Who would be asking question first?
You are correct that the officers notes only link the samsung to being in the cupholder after he comes to the window. So you can make this comment in closing submissions that the officer did not identify the device you were holding, but instead identified a device in your cupholder.
As a side note, you NEVER want to lie to police or at a trial when under oath. But unless you take the witness stand, you do not have to answer any questions at all. You will be cross-examining the police officer while they are on the stand and trying to cring doubt to what they said... this has nothing to do with your side of the story and you are not required to say anything at this time (if the prosecutor asks you any questions at this point, you can say "I don't need to answer that as I am not on the witness stand"). When the officer is done, the JP will ask if you want to call any witnesses.
It is your right to NOT testify against yourself. Unless you are 100% sure you are not guilty and are 100% able to say you were not holding a cell phone, you should not take the witness stand and should not give your side of the story. Most people get on the witness stand and end up convicting themselves, so it is best to say nothing and challenge the officers testimony instead.
HOW IT WORKS
- You will be called up and the charge will be read and you will be asked how you plead, guilty or not guilty.
- The officer will be called to the witness stand, give his testimony (using notes) and prosecutor will ask questions to make sure all points are covered.
- You will then get to cross-examine officer and try to bring doubt to what the officer said (the key area being to bring doubt to the fact that you were holding a cell phone).
- When officer is done, you will be asked if you have any witnesses.
- If yes, you or your witness would take the stand and give their testimony and then prosecutor would ask you questions afterwards. Just my opinion, but I recommend you do not take the stand and do not testify.
- Next JP will ask for closing submissions, so prosecutor will say all the points they covered and why you should be found guilty, and then you will make all your points about how you brought a reasonable doubt to the officers testimony and should be found not guilty.
- JP will then make decision about guilty or not guilty.
- If guilty, JP will ask for submissions as to penalty, and you can then go on about how poor you are and have no money and bla bla bla, in hopes the JP might reduce the fine. You can also ask for extended period to pay like 90 days or 6 months.
+++ This is not legal advice, only my opinion +++
- You say the device you saw me holding a cellphone on my left hand that illuminated my face?
- Is it possible then that it could have been an iPod MP3 player instead of a cell phone?
- How can you saw me holding the device w my left hand?
- It was midnight and dark, my window is tinted, the officer pulled over on my left side, which mean I'm on the near side of the door, all officer could see is my shoulder.
- It is impossible to see if i was holding anything. Only indicator was something lighted up my face which could be anything (Ipod Classic). (I can take a picture of a sample demonstration of how the view of the officer if he pulled up next to my car)
- Only scenario is i was calling someone and have my phone over my shoulder. I have a cellphone record from my carrier indicate i wasn't texting or calling anyone.
- The officer obtain the information that the device is BLACK SAMSUNG is after he pulled me over and asked what phone i have.
(I'm right handed, if i'm holding my cellphone i would be holding it with my right hand)
Please let me know if i need to add or rephrase something.
weather = overcast, cool
roads = dry
on yonge n/b just north of Alexander st enforcing no standing zone.. I ovserve a wht honda just north of alexander st in no standing zone.
traffic is heavy re: halloween night parties and church st closed from wood st to dundonald st.
veh moves to s/b yonge st, which is also a no standing zone. I pull up next to wht honda and observe driver on his c phone w his left hand. screen of cell phone lights up driver's face. Driver waves me off to signal he is moving on but is still on his cell phone. i activate roof lights/icc. veh pulls over. I inv driver. I make demands for docs. I confirm driver's id through his DL. I issue POA ticket for cell phone. Black Samsung
Former Ontario Police Officer. Advice will become less relevant as the time goes by !
My Trial was on May 25th. I was pretty nervous as it's my first time.
They have everyone line up and talk to the prosecutor, he will indicate if you plead guilty your fine will be reduce to whatever amount. My case he didn't offer me anything. I plead not guilty. Then Officer shows up and talked to me that i can either plead guilty they might reduce it, reschedule the trailed so i can seek legal advise, or fight and loose. But i insisted i would go to trial.
They put everyone that plead guilty up first, reduce the fine (probably to put more pressure on whoever is trying to fight)
Some cases officer doesn't show up (very rare), some cases the charge is withdrawn (not sure why)
At the end there were only 5 people that's fighting. I was 3rd but when it got to me it was 3:45 so the judge adjourned other cases to a later date due to not enough time.
I pleaded not guilty, officer on the stand, i agree to let him use his notes. He basically repated what was on his notes:
He indicated he was "on the other side of the road" (opposite direction)
Officer started describing how he see me "holding up my phone with my left hand" calling someone, "cell phone lights up my face", "lips moving", "driving a white HONDA"
Then i notice him and "waving to indicate i will move with my right hand". He pulled me over and asked for my phone, black samsung.
I started to cross-examine:
Q: You said i was holding my phone to my ear, lights up my face. Did you know that when you put your phone up your ear the screen will turn off?
A: Yes (Later he said i was pulling my phone up like i just started a call)
Q: How do you rate your vision?
Q: Did you know that my vehicle is a white Kia instead of a Honda as you stated
A: It might have been a white Kia
Q: Was this dark at the time?
A: Yes, it was just past midnight
Q: Do you recall if the vehicle windows are tinted?
A: No i do not recall
Q: You said i was holding the phone with my left hand, then i was waiving you with my right hand?
Q: How are you being able to see it when it's dark and the screen has been turned off when i put it up my ear?
A: You were holding the phone with your left hand, and waving me with your right hand (He started to describe it to the judge and prosecutor)
---- So far so good until -----------
The judge started to ask me a long question if i agree with the gesture that the officer describe for the record.
I wanted to make sure that i heard the question clearly and didn't miss any key point. So i asked if he can repeat the question.
**When i met with the prosecutor there was a translator that speaks my language, when he called my name she freaked out and thought she's doing my case. Very important thing to note is her English is very bad, worse that mine.
Then when the judge asked me if i needed her assistance i said no.**
So when i asked him to repeat the question he got mad and said i said i didn't want the translator and now i can't understand his question. He said that he tried to asked me multiple time without me understanding it????
I didn't say anything. He called the translator up, she didn't understand, the prosecutor call again, she got up, then the prosecutor explained that there were a misunderstanding that they thought she was appointed to my case.
The judge asked her something i forgot but the lady didn't understand again, then she started answering something completely irrelevant.......
The judge struck the case and appoint a new trial date with translation service. He even yelled at the prosecutor when he interrupted when he was talking.
I was thinking that i was the last one so he wanted to go early?
I wanted to save time by not choosing the translator because i know it will take forever for her to translate...
Or if i was doing well and he don't want the officer to loose?
Nevertheless, I will have to come back, i won't request the interaction video disclosure, it won't help anything unless i take the stand which no one recommended.
Can i request the trial record to use that if next time the officer is saying something else?
The JP would not have adjourned based solely on how you were doing. JPs don't "protect" officers and try to keep them from losing. Remember, it's the Crown who's trying to prove the case against you, not the officer. The officer is simply the Crown's witness. Did you have trouble understand the JP's question because of your English skills or because the JP was asking in a way that confused you? I'm sure the JP would appreciate that you were trying to save time (it's true that trials with interpreters take longer), but if you had trouble understanding proceedings for language issues, no one will be happy. If the interpreter didn't understand the JP either, perhaps the JP simply wasn't being clear. Certified interpreters have excellent command of both English and the language(s) for which they are certified.
I don't think you can request a transcript of the proceedings to this point as the trial is not over (anyone can correct me on this point if I am wrong). But you should keep your own record (notes, etc.) of what the officer said in case he does change his story somewhat next time. He won't lie, of course, but there's always the possibility, given the questions you'd been asking and the additional time for him to think things through, he may tell a few things somewhat differently next time. If he does, you can take him to task on that: "Last time we were here, did you not say _________________ instead?" It's not likely to happen, but it's good to be prepared for it, just in case.
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