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?