Following too close due to deer in lane-court May 4 2010

Bluegirl
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Unread post by Bluegirl »

2 Days till court date.
On examination of the witnesses can I ask them what they said in their statements? Can I ask them if they were "stopped at the time", "did you "feel a bang" and did you witness the "bang" as it occurred? The wording in quotation marks is directly from my disclosure statements. How do I handle it if what is said on the stand is a contradiction to what is in the disclosure?
Also just wondering how to word closing statements in order to show respect for the courts and summarize the points that I think show my innocence. Any advice?
Giving it her all to get through this. I'm taking all of it as a learning experience and am definitely more aware of my driving surroundings.
Thanks for all your help,
Bluegirl


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Simon Borys
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Unread post by Simon Borys »

You can question them on why their evidence in court contradicts their written statements, but be aware that the court will take what they say in court as their evidence. You might be able to discredit a witness by showing that their verbal evidence significantly contradicts their written statement, but it doesn't have to match exactly. The evidence they give in court might expand upon or clarify what they wrote at the scene.


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Keroba
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Unread post by Keroba »

Bluegirl, no doubt I’m too late with this, but here goes:

As Radar pointed out, you will be arraigned first, you will plead “not guilty”, then the trial will begin. Prosecutor is first up with their witnesses. You could ask for an exclusion order, so that the prosecution’s witnesses are kept outside of the courtroom until it is their turn to testify. That way, they can’t tailor their testimony to match (even if it’s unconscious on their part) any previous testimony. If then there are any discrepancies between the witnesses’ testimony, those are holes that you can exploit in your cross-examinations. After the prosecutor is done their examination-in-chief (i.e. no leading questions allowed, other than fluff stuff that is obvious and not weighty, such as “I understand you’re a police officer; is that correct?”), you will get to cross-examine them. You will attempt to create reasonable doubt in their testimony. You are allowed to lead the witnesses in your questions, and you want to make sure you frame your questions in such a way that it’s a yes/no answer, and preferably you know the answer to your question before you give it. I would ask every witness “did you see my car at any time following yours?” if they say “yes”, remind them of their notes wherein they say they did not see your car following, and then ask them to clarify the discrepancy. Obviously the officer cannot have seen your car following, so that’s a gimme question to ask the officer.

After your cross-examination, the prosecutor will be able to re-examine their witnesses (with the same proviso of no leading questions allowed), but only to rebut lines of questioning that you led (i.e. they can’t bring up entirely new topics, etc.).

If they introduce any evidence that is new to you, such as stop-time charts that haven’t been previously disclosed to you, I would of course object and let the JP know that this new material was never disclosed and that it has unfairly hurt your ability to make full answer and defence, which is your right under s.7 of the Charter and s.46(2) of the Provincial Offences Act. The JP will likely order an adjournment, which shouldn’t be counted against you in terms of s.11(b) waiver – for good measure ask that it be noted on the adjournment order that it was as a result of non-disclosure on the part of the prosecution. The Crown has an ongoing responsibility to provide full and complete disclosure all the way through any proceedings. There should be "no surprises".

After they’re done with their witnesses, they will rest their case. It is then your turn to call witnesses. At this time too, you can make a motion for a non-suit, saying that the prosecution has failed to establish a prima facie case against you for the charge as listed, and point to the various caselaw (R. v. Haddad, and more specifically the R. v. Borg decision that is referenced within). If you call witnesses, then it’s the reverse from when the prosecution called them. You will have to go first, with an examination-in-chief, the prosecution will then get to cross-examine, and then you will be able to re-examine to rebut or clarify areas where the prosecutor touched on in their cross-examination. After you’re done, you will rest your case.

I’m not sure if I agree with Radar that we have protection from self-incrimination once you take the witness stand. Anything you say cannot be used to incriminate you in any future separate proceeding, but I believe that once you’ve elected to take the witness stand, you cannot “take the 5th” as it were (“take the 5th” being an American concept). You cannot be compelled to testify, but that's encapsulated in your right not to take the witness stand.

Afterwards, it’s closing arguments. You cannot try to introduce any new evidence here, you can only talk about how any evidence already given shows that you are not guilty of the offence. Your defence is reasonable doubt, and also previous caselaw saying that the Crown needs to lead objective, rather than just subjective, evidence showing that you were following too close. As you’ve said, if the cars ahead were stopped, there can be no following. You could talk about the definition of “follow” or of “headway”, as it’s written in the HTA. Refer to a specific dictionary or bring one with you. Both words connotate the concept of two moving objects, instead of one vehicle coming onto another stopped vehicle (which would be better termed “leaving a proper allowance”).

Please let us know how you got on today, and Good Luck!!!


Bluegirl
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Unread post by Bluegirl »

Wow Keroba,
Me thinks that would have worked, but alas she wasn't thinking that day. Ended up coming down with the flu the day before and just wanted to get it overwith. I think I went wrong because I couldn't get what I wanted out of the witness and then I ended up testifying and hanging myself with that. Now driving like a gramma.
Thanks to all of you who at least gave me the feeling that I could come out on top of this one. Live and learn. Ready for the next time yet hoping for no next time.
Bluegirl






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