Genesis II Select:
Should this unit be tested before AND after the reading/vehicle stop?
Thanks very much.
Generally, regardless of the specific radar unit, it should be tested before and after the stop. I believe it does not have to be immediately before and after the stop, so at the beginning of the shift and at the end would suffice (maybe someone can confirm this....)
The unit should also be tested in accordance with the manufacturer's specifications.
You would need to file for disclosure of the GenesisII Select radar manual to discover what the manufacturer requires for testing. How the particular officer tested the unit would be revealed in his notes. Again, you would need to file for disclosure of the officer's notes.
neo333 wrote:Generally, regardless of the specific radar unit, it should be tested before and after the stop. I believe it does not have to be immediately before and after the stop, so at the beginning of the shift and at the end would suffice (maybe someone can confirm this....)
I have reviewed the officers notes and find nothing to indicate it was tested before the stop. The notes do indicate a test afterward, but not before. I suppose it is possible the officer simply forgot to include the start of shift test information. I have requested the manual.
Does anyone know off the cuff the name of the specific caselaw regarding the testing requirements before and after shifts?
You need to remember the Officers testimony does not have to be written on the ticket. It can come from independent recollection and if the SOP for the Officer is to test the radar at the start of every shift then why bother writing it down?
What information do you plan to gather from the manual of the radar unit and how do you think it will help you?
R v Schlesinger
I would like to make note of:
3 "Evidence as to a particular practice or a standard practice is not proof beyond a reasonable doubt. See the decisions of Kroft J. (as he then was) in the cases of R. v. Jabs (November 19, 1991) (Man. Q.B.) (unreported) and R. v. Wolf (December 8, 1992) (Man. Q.B.) (unreported) and the decision of Beard J. in R. v. Kraemer (February 17, 1993) (Man. Q.B.) (unreported). In Wolf, Kroft J. stated in part:
ÃƒÂ¢Ã‚â‚¬Ã‚Â¢ "Nonetheless, if we have a situation where testing is a prerequisite, and if the officer, and only witness, obviously cannot say any more than what his common practice is, I cannot take that as a proof of testing. ..."
Reflections: This is excellent if the officer made no note of the first test.
Now could it be that the officer did indeed test the unit at the beginning of the shift, but did not provide this in the disclosure notes?? i.e he forgot to include those notes in the disclosure....
So, in court, could the officer say, "actually, I have my notes from the beginning of my shift, which say that I tested the unit at 8am, etc"? Would this evidence be admissible as it was not disclosed prior???
That is my question Neo...would the notes be allowed? Unfortunately I am short on time as the Trial is Thursday. If the notes would be allowed, I may try to amend it down. If not, I would ask the Crown to withdraw. Just trying to decide which way to go.
Thank you all for your help.
HTARep wrote:Does anyone know off the cuff the name of the specific caselaw regarding the testing requirements before and after shifts?
The main ruling is D'Astous v. Baie-Comeau
It's in french! Luckily this ruling has been applied in other cases. You can get a good overview from:
R. v. Schlesinger, 2007 ONCJ 266 (CanLII)
R. v. Vancrey, 2000 CanLII 26961 (ON C.A.)
HTARep wrote:That is my question Neo...would the notes be allowed? Unfortunately I am short on time as the Trial is Thursday.
You mentioned that you requested the radar manual. But did you get it??
If not, you can tell the judge you cannot proceed as the crown has not given you full disclosure. Hopefully you made a 2nd and 3rd attempt to get this and show you were diligent in requesting full disclosure. The judge should adjourn to give prosecution time to complete the disclosure. This delay would be charged to the crown and possibly give you a window for an 11B charter application to have the case stayed (no argument needed).
cruzmisl wrote:What information do you plan to gather from the manual of the radar unit and how do you think it will help you?
The manual will give you information on many useful things!!
- if the officer tested the unit as per manufacturer's specs
- if the officer operated the unit as per manufacturer's specs
- some genesis radar units require a specific tracking history. If this was not followed and testified to, charge will not stand.
- may give useful information on limitations and causes of error that you can take advantage of to create doubt
Also, Case law supports the position that the radar manual should be disclosed. If it is not, the case should be delayed, therefore improving your chances of a successful 11b charter challenge.
Conclusion: disclosure of radar manual is vital for a proper and full defense!
I requested it on Friday, and got a letter from the Crown today saying I could go there and see it. Of course, "there" is five hours away, so I would be seeing it just prior to Trial.
I really need to know about the before stop testing, and whether the Court would allow the officer's notes in that regard to be provided at this late date. I would think it would be not be allowed, but I am hoping someone has been through this and can tell me what their experience was.
HTARep wrote:I really need to know about the before stop testing, and whether the Court would allow the officer's notes in that regard to be provided at this late date.
The "before and after" tests are absolutely required. Now, there is some controversy, such as the R. v. Sanders case where the JP ruled that the notation of the tests are not required. However, that is against several rulings by appellate Justices and the R. v. Schlesinger case.
JP Cuthbertson released the Schlesinger decision. He articulated some key points that make it more reliable than the Sanders case. Citing the R. v. Niewiadomski case, Cuthbertson says:
Justice Schnalls ruling indicates that notations of the tests done are required for proof beyond a reasonable doubt.
Justice Schnall is an appellate Justice. There's more to it than what I posted... but hopefully it helps. If the Crown did not disclose notes of the time where the device was tested, you could very well argue that you were misled into believing the device was not tested and mounted a defence based upon incomplete disclosure by the Crown. The note about testing need not be lengthy: "tested per manufacturer's specs, ok @ 9:55 PM" would be enough.
http://www.OntarioTicket.com OR http://www.OHTA.ca
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