“Speeding Defenses + 11b Q”

I want to get some help with a speeding ticket i'm fighting.

On Jun 23, 2012 I was charged with speeding 106 in an 80 zone. I filed my ticket for trial on Jun 27, 2012. Late July i received my 'notice of trial' indicating a trial date for Jan 8, 2013. On August 1, 2012 I requested for disclosure asking for:

*officer's notes, if short-form writing is used... to have the officer explain them

*full copy of lidar manual

On Nov 1, 2012 i received legible handwritten notes but no explanation for short-form writing, and only received a few pages of the lidar manual.

On Dec 20, 2012 i re-requested for short-form writing explanations + fully copy of manual.

On Jan 2, 2012 i received a full electronic copy of the manual, but the prosecutor's office had the officer transcribe his notes rather than explain the short-form writing.

On Jan 8, 2013 the prosecutor did not understand the short-form writing either; we call the officer and he explains it. But the prosecutor says that the short-form writing was not relevant to the charge (i disagree) and that I should be prepared to go to trial today and that the adjournment would be my fault; prosecutor offered two dates for the adjournment Jun 10 & Jun 17, 2013; i picked the 17th.

Now the delay from the offense date to the new trial date is 11mths 24days. We could subtract 3 days between the offense date and the date i filed the ticket. Lets say we subtract another 7 days, because the courts were available on Jun 10, 2012. That would still leave us with a delay of 11mths and 13days.

What i'm worried about is, will the stay of proceedings be tossed out simply because i picked the 17th and not the 10th?

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Here are the notes that I received from the officer, i'm planning on a defense with two main points

1) missing the exact time the lidar was tested

2) officer lost sight of the vehicle

1) missing the exact time the lidar was tested. i agree that the officer appears to have written in chronological order, he is very specific about times as to when he issued offense notices' and when arrives on site to different locations. however, he does not indicate the exact time that the lidar was tested before and after. is this fatal for the prosecution's case?

R. v. Niewiadomski, [2004] O.J. No. 478 uses a judgment made in Manitoba R. v. Lounsbury [1993] M.J. No. 510 (cases are clickable and .pdf are linked to my dropbox)

R. v. Schlesinger, 2007 ONCJ 266 (CanLII) also talks about the Manitoba decision

Manitoba R. v. Lounsbury [1993] M.J. No. 510

2 The radar operator testified at the trial. In his direct testimony, he said that he had done tests on the device both

before and after issuing the offence notice. However, in cross-examination, he acknowledged that he had no

independent recollection of performing the tests. He did say that prior to operating any radar unit he conducts a test to

see if it is in working order and after issuing of an offence notice he rechecks to make sure that the machine is still in

working order. I take that to be evidence as to his usual practice. He also said that, in this case, he made a note in his

notebook that he had performed a test or tests but he did not note the time of the test or tests. (I say test or tests, because

the transcript does not make it clear whether the notes indicated the making of one test or more than one test. At one

point the operator agreed that there were no indications in his notes of how many times the radar was tested, but just the

results of a test.)

3 Evidence as to a particular practice or a standard practice is not proof beyond a reasonable doubt. See...

4 In the instant case there is something more than the evidence of the operator's usual practice: There is an indication

in his notes that he did, in fact, perform a test or tests, although the time or times of the tests were not noted and are not

known.

5 In my opinion, all that can be safely inferred from the evidence is that the officer did test the radar device and found

it to be in good working order at some point or points during the relevant shift. In my opinion that is not enough proof

to demonstrate beyond a reasonable doubt that the device was working at the time of the alleged offence.

6 Some cases have suggested that there must be evidence that the radar device was tested and found to be in good

working order, both prior to and after an alleged offence. See R. v. Lennon (April 6, 1992) (Man. Q.B.) (unreported), a

decision of Darichuk J. and R. v. Kraemer (supra). These decisions are certainly consistent with the standard practice of

the operator here, which was indeed to check both before and after using the device. There might be situations where

the court could be satisfied of the accuracy of the device where the test was done, either immediately before or

immediately after its use, but I need not decide this. In this case, there was no evidence as to when the checks were done

-- that is to say whether they were done both prior to and after the alleged speeding or whether they were done before or

whether they were done after. There was no evidence as to when they were done in relation to the alleged offence. They

might as easily have been done at the very beginning of the operator's shift and long before the alleged offence, with the

result that there would not have been a sufficiently reasonable assurance that the unit was still working properly at the

critical moment.

7 In the result, the appeal is allowed and the conviction is quashed.

In my case, is it still necessary for the officer to indicate the time he tested the lidar device? It appears that RADAR have to be tested several times throughout the day, whereas lidar are just tested at the beginning and end of each shift.

Would simply writing down that the test was down fall under "usual practice"? In my case the test could have been done sometime between the start of the shift and 0932 where he indicates that he's "in service, vehicle ok and shotgun ok" (learned abbreviations from officer). Also the lidar test at the end of the shift was done exactly at 1500hrs?

R. v. Schlesinger, 2007 ONCJ 266 (CanLII)

17 The standards that would satisfy this court are:

a) Evidence that the laser tests had been done by a qualified officer according to the manufacturers specifications and that the device passed the tests and

b) Evidence of a specific time when the tests were done both before and after a speed enforcement stop .

No time was provided in Officer Braziers testimony for his testing of the laser device prior to the stop of Mr Schlesinger.

Therefore, this court declines to accept the officers statement that it is his usual practice to test a laser device before a speed enforcement stop, as proof that he did so.

2) my understanding is that the officer must not loose sight of the vehicle prior to using the LIDAR device. i believe the officer lost sight of the vehicle in a deep grade in the road. i shot video from the officer's perspective, he was facing vehicles that were traveling east (towards him): http://youtu.be/H5SiUNxejXY

In the officer's notes he wrote that he locked in the speed from 230m away which is just as vehicles come up from the grade. This is from google maps: http://goo.gl/N6eCA this is a photostream of pictures i took from the officer's location: http://www.flickr.com/photos/96730565@N03/ the officer was standing from where the cameras were placed.

I have asked York Region for a plan & profile diagram of the road depicting elevations; i've been advised that they have been drawn but not scanned and imported into the database. The geomatics manager that i spoke with said that she was busy, but will get it for me when she's free.

Interestingly only one offense notice was issued at this particular location. I genuinely feel that was because of this grade... The officer also indicates that road is straight... although it really isn't.

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Do i have a leg to stand on with these two defenses? I have also have the by-law for that particular 80kph zone sign, and plan to possibly accept a plea-bargain for a municipal by-law charge for it.

Good luck with your case,

I see you have done a lot of research for your case, not a lot of people do that. Just remember though that the officer does this for a living and when you go to trial that it is an all or nothing proposition. You could probably take a deal at 0 points with the speed you were going.

The practice of testing the device is to show that it was working, however there is nothing in law that states the maximum amount of time between these tests. The problem lies with the further between the test times the less likely the Justice will accept the device as qualified and working. Even if the Justice accepts that the device was tested the moment the officer walked in the door that day it would still be within the time of his shift and is noted that way in his notes. It is NOT listed at the end of his notes that he "Tested before and after shift" which leaves a much larger grey area of test times. With his notes in the chronological order he has them in it shows the due diligence of the test at the start of his shift. Ultimately it is still up to the Justice and how you argue your case law to them on how they will rule on this. Your defense of, "The officer couldn't see me/Lost sight of me" is weak at best. You said though that it would be PRIOR to using the Laser, this wouldn't be a problem at all as there has been no confirmation of offense yet, I think you meant AFTER getting the speed reading. Without very strong evidence to discredit the officer the Court will take judicial notice that a trained officer will not set him/herself up in such a way as to not be able to effectively conduct the enforcement they are doing. The video evidence you took will likely be ineffective. It will not show what the officer saw that day, it will show what you THINK the officer saw or want the court to BELIEVE the officer saw that day. You can not testify to what someone else saw. In addition to that I have won many cases where I have lost sight of a vehicle before stopping it. There are many ways to qualify to the court that the vehicle is the same one.

One other thing to think about is running the 11b and loosing. There are some prosecutors who will not offer the speed reduction deal if an 11b is argued and it fails. If you are unsuccessful in the 11b you may be forced into a trial or accept the speed as is and plead guilty if you don't want to go to trial. That being said, I have not seen a prosecutor let you go into it blind either. Just ask them before you get started and they will tell you if you can still get the deal if you are unsuccessful at the 11b stage.

The problem I see with your grade argument is the 203 meters is displayed by the Lidar and not estimated by the cop. So I would suggest that the officer was standing at least 203+ meters away.

Losing sight momentarily is perfectly acceptable to the courts.

From the notes the Lidar was tested at 1500hrs. A time does not have to be written in for every line entry in the notbook.

OPS

just an update on what took place today at trial

so the prosecutor advises me that the delay is actually 5 months and 17 days; she said she was going introduce case-law during the motion; i asked her if i could have the by-law for the speed limit sign, i even produced the by-law information i got from the city; prosecutor says no, it's not fair for everyone else here... and offers 90 in a 80; i told her the consequences for 90 in a 80 are the same as 106 in 80 for me wrt insurance premiums; she tells me 90 is no points, i told her i have 15 demerit points to loose and it's already been a year since the offense -- so the points will only stay on my record for this year; she tells me to go have a seat while she and another officer laughed

I was called up, and after saying my name every one was silent; I was not even arraigned, but i said the "prior to entering a plea your worship i'd like to move these proceedings be stay on the grounds..." JP admits that he didn't review my stay application and said he needed paper and pen to take notes.

Prosecutor goes first and introduces a 2 page R. v. Hussain [2005] decision which says that the intake period should be 30-days; however, Hussain received his notice of trial 2 months after he filed his intention to appear. In my case it took 26 days for the Notice of Trial to be issued (Jul 23, 2012)... where are the imaginary extra 4 days coming from?

Intake period from my understanding is the time it takes for the courts to schedule a trial date; Justice Libman in R. v. Andrade 2011 says that intake period should be upto 30-45 days (depending on when the ticket is filed) and that the time it takes for the notice of trial to be issued should not even be an indicator of how long the courts have to schedule a trial.

So in reality the intake period for my case should be even less than 26 days (Ticket filed on Jun 27, 2012... notice of trial sent on Jul 23 2012). I didn't make a huge fuss about the intake period because the big weight came down as to who was responsible for the adjournment at the previous trial.

I was underwhelmed by the prosecutor, i guess i was hardened by the Toronto prosecutor who accused me of cheating the system during my last 11b. She tried to point out that i received my disclosure on Nov 6 and not Nov 1 like in my sworn statement. All in all, the crown did not really put up a big fight, but it could go either way.

The Justice of Peace was very patient, heard my disclosure woes and said he needed more time to make his decision. I also gave the JP a full copy of the Andrade decision. We're back in court on Jul 10 to hear the decision.

For the sake of closure, i'll share the judgments my JP handed down; JP took about a month for the 11b decision and four months for the trial.

In early July my 11b motion failed, the JP ultimately found the adjournment delay as a "neutral" one where no one was at fault. Therefore the remaining time did not infringe on my rights. Andrade decision was not considered, and he somehow calculated a 3-4mth intake period. Facts and dates were either made up, mixed up or left out.

Since this thread, i abandoned the 'losing sight of vehicle' angle. The prosecutor's office gave me the full laser atlanta manual which included pages that read

*Do not overcharge for 16hrs continuously

*Do not store in an area of high humidity

In cross examination the officer testified that he chooses battery packs that are fully charged (minimum 10-12hrs), and their charge status can be observed in the laser atlanta's test menu. When asked was it important how long the batteries were charged for? He replied it was not important. Asked whether he knew the history of the battery pack prior to his shift? Whether he knew how long it was charged it for? Could it have been charged for longer than 16hrs? He did not know; I had the officer read that part of the manual at trial.

Humidity was a tricky argument, the officer recorded the weather as being +15°C, clear skies, dry at 6AM. When asked what the weather was like at 11am (time he issued the PON) he said it was the same... he only records significant changes in weather in his notes. So i asked him whether black colours absorb more light than white, and therefore radiate more heat... he agreed. He described the vehicle he used as being a stealth black-on-black cruiser with just reflective decals. He stated he left the lidar inside the vehicle unattended at many times during his shift. He secures his vehicle by locking the doors, killing the engine so that people don't steal the valuable things inside. But he also went on to say when he returns to the vehicle he has to turn the a/c on because his uniform is black-on-black and he may get a heat-stroke, he also turns on the a/c for the electronics. So... leaving a humidity sensitive lidar inside a black vehicle in June with clear-skies... is that not storing the device in an area of high humidity? He said he didn't remember exactly what happened on the date he issued the PON and that he was just talking generally. Again, i had the officer read the humidity part from the manual. In which he replied, that's obvious... you shouldn't do that.

I asked the officer at what "specific time" he tested the lidar? He said he doesn't know the specific time but he does it 10minutes before he's paraded on duty at the start of his shift. He was well rehearsed with the testing procedure, he had specific test distances verified with measuring tape.

Finally i used the defence of necessity that arose prior to my stop; it was unique & lengthy to explain, i had to cover all the Perka elements. It was partially corroborated with the officer's testimony as well.

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My JP in his trial judgement said that the crown established a prima facie case, he was satisfied that the officer tested the lidar before and after his shift. He was satisfied that the officer was familiar with the lidar. But he claimed the officer was a qualified instructor which was not true, at no time during the officer's testimony or cross did he say he was an instructor. But my JP also confused the facts with my 11b motion as well, especially with the dates... so I wasn't too surprised. JP said he used R. v. White and found the officer's testimony to be credible.

He did not respond to the testing time, battery charging or humidity arguments whatsoever. He did not bring them up at all during his judgement. Even though I provided a plethora of cases: Lounsbury, Niewiadomski, Schlesinger...

R. v. Niewiadomski [2004] O.J. No. 478

29 It can be assumed that the absence of full compliance with the testing and operational process should make the reading suspect. There would be no reason for the device manufacturer to set out specifications and directions if it mattered not whether these were complied with.

Then he stated that the necessity defence was raised, which he found to be credible. Applying the Perka tests he found that the circumstances were one of "necessity". I should point out that at trial the prosecutor did not cross-examine me when I testified, and did not respond to my closing submissions even after I raised the "necessity defence". JP in his judgement stated that the prosecution is responsible for arguing that the actions were voluntary, my prosecutor failed to do that.

He ultimately dismissed the charge because he found that the defence of necessity applied. I guess the decision was balanced, he gave the prosecution the lidar credibility and gave me the necessity.

I don't see anywhere in your posts what the defense of "necessity" was in your case. Can you enlighten us?

In closing submissions i told the courts that I respect the HTA and understand why there are different posted limits for different areas: 60kph in residential areas, 40kph in school zones and also 80kph on country roads. I told the courts I always drive in the right lane at or below the posted limit, even on the 400-series highways I drive at 95kph because at 100kph I get overtaken by all walks of life anyway, so to save gas I lean it out by 5kph. On single lane roads on my bike I move from a defensive left tire track position to the right tire track and wave tailgating vehicles forward to pass; in order for them to do this, they're momentarily forced into oncoming traffic. Even on some occasion I've pulled over to a paved shoulder to allow a vehicle to pass.

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In cross, the officer could not recall in which lane he observed me speeding or locked the speed with his lidar. He had a good recollection of the enforcement point and described it as a commercial area (no homes, schools, sidewalks, buildings); under oath he said he was situated in an unpaved parking lot for a truck storage yard. He did however, fail to remember there was a bike lane along Langstaff. He could not recollect any information I told him after the traffic stop. He also described the traffic as light and that his view of my vehicle was unobstructed.

I told the courts my exact itinerary for that day with my whole route from A to B. I took this route because it was along the way to a blu-ray rental store, the rental was due by 5PM and I also had a meeting in Markham (point B) at 1PM; both events were not time sensitive (i wasn't running late). Heading East past HWY50 the speed limit changes from 50kph to 80kph; Langstaff Road has three lanes, L1 left lane and L2 right lane for motor-vehicles but also a L3 bike lane.

I was travelling on my motorcycle on the right lane (L2) in the left tire track. I said that as a I approached huntington road it was initially a red light and that as i was downshifting gears to come to a complete stop. There were vehicles in the left lane (L1) stopped at the light. When i came closer to the intersection, the light turned green and i accelerated to the posted limit at a lower gear, and there was another vehicle following behind me - i described it as a brown honda civic. this vehicle was initially following at a safe distance.

as i approached the officer's enforcement point there was a red truck (just the rig without the trailer) that was in the right lane (L2) and abruptly the truck slammed on his brakes.. i recalled smoke billowing out of his tires. as a result i also used my brakes. vehicles in the left lane (L1), which were stopped at the light were now accelerating towards me, they were not pacing my speed. the brown honda civic that was behind me also slammed on his brakes and got closer to me, to the point he used his car horn.

when i heard the car horn along with the vehicle getting closer to me, i twisted the throttle and put out my left hand indicating i was changing lanes (no time to use bike's indicators) from the left tire track of the right lane (L2) to the right tire track of the left lane (L1)... i was able to safely merge into L1 and back into L2 infront of the truck using hand signals (making a fist to show right-lane change)... at this point, this is where the officer flagged me down. prior to twisting the throttle my speed was below the limit, however during the manoeuvre i did not know my speed... my concentration was on "not getting hit from behind" and merging at a safe speed in L1.

I told the officer what happened, and he said that i have options on the back of the ticket and he continued with his enforcement.

Langstaff Road did not have two lanes as the officer described, but had three lanes. L1 & L2 were for motor-vehicles but there was a L3 for bicycles. The L3 bike lane is closed by a 1-2ft curb and to it's right is a ditch. The bike lane was also protected by a black&white sign which read 'Bike lane only'. Technically entering that lane would violate S.182 of the HTA and also risk the safety of potential bike riders using that lane. I was riding in a defensive position in the left tire track of L2, and it was a shorter distance for me to go to the right tire track of L1 than attempt to go to the bike lane. The bike lane also had debris, garbage, car parts and was not clean. I did not have a shoulder to pull over too, my only out was the right tire track of L1.

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I introduced:

Supreme Court of Canada R. v. Perka [1984] S.C.J. No. 40

R. v. Card [2000] O.J. No. 2333

Ontario v. Kallish [2011] O.J. No. 707

R. v. Morris [1994] B.C.J. No. 125

In Perka under f) Preliminary Conclusions as to the Defence of Necessity, they write

(1) the defence of necessity could be conceptualized as either a justification or an excuse; (2) it should be recognized in Canada as an excuse, operating by virtue of s. 7(3) of the Criminal Code; (3) necessity as an excuse implies no vindication of the deeds of the actor; (4) the criterion is the moral involuntariness of the wrongful action; (5) this involuntariness is measured on the basis of society's expectation of appropriate and normal resistance to pressure; (6) negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity; (7) actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle; (8) the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law; (9) the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril; (10) where the accused places before the Court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.

(1) to (3), (7) says that necessity trumps the law. (4) to (6), (8) to (9) says that it has to be involuntary, unavoidable and no legal alternative course for action; (10) if there's sufficient evidence to raise the issue, the onus is on the crown to show that it was not "involuntary"

in my closing submission, i said that there was a bike lane (L3) which was protected by an enforceable "white/black" sign which read "bike lane only". even still, the bike lane was filled with gravel, debris and road garbage (car parts); there was no shoulder available and to the right of the bike lane was a 1-2ft curb... if i were to use the bike lane, i could've lost traction, hit the curb and fly into the ditch.

more importantly, the vehicle that was behind me brown honda civic... the reason i twisted the throttle was because of the car horn along with the vehicle moving closer to me. moving from the left tire track of L2 to the right tire track of L1 was a closest route out of harms way.

i explained in a car we have seat belts, airbags, crumple zones... but on a motorcycle all I had was a helmet, jacket and gloves. I also told the JP that I was involved in a rear-end accident in Feb 2012 just a few months before the PON was issued. It happened in Mississauga at 403/HWY10 and Peel Police investigated the matter, I even had the motor vehicle accident report and my summons for the other driver's careless driving charge.

my only out on Jun 23, 2012 was changing lanes whilst accelerating to get out of harms way, and there were no other reasonable legal alternatives afforded to me.

after i closed my submissions, the prosecutor simply said, "i'm good... i have nothing further to say".

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R. v. Card written by Justice Livingstone in Ontario was made at the appeal level where the initial JP said that Mr. Card's story was not credible and that the defence of necessity doesn't apply because speeding was an absolute liability offence. Justice Livingstone said that Mr. Card's evidence was credible and that the defence of necessity applies... the initial JP made an error in law.

R. v. Morris made at the Supreme Court of British Columbia; the JP didn't consider the Morris' necessity defence; Justice Sigurdson went on to say that Morris' necessity defence would not have failed had it been considered

The reason i brought up Card and Morris was to make sure that my JP considered my defence of necessity. He couldn't simply just ignore it, and even if he disagreed with it he'd have to show me what "legal alternative" i could have used. The main problem is that if i do have evidence for a necessity defence, it's up to the crown to meet that defence... in my case, the crown didn't really care, we started trial at 1:30PM and it ended at 3:00PM without any recess or breaks... crown wanted to get it over with because the 3:00PM trial defendants showed up ready to plea-bargain.

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I also used Ontario. v. Kallish and in this case it was a decision read by JP D. Dudadar... Kallish was doing 164 in an 80 zone and even though S.172 affords defendants a due diligence defence, he successfully used one of necessity.

In his defence he said that there was a van that swerved into his lane, and when he tried to move over... the van continued to follow him and tried to hit his vehicle; he twisted his throttle and rocketed out of there... OPP pulled him over and towed his bike away.

He said he was so distraught that he sold his bike and never rode again. Interestingly in this case they introduced an expert witness Ms. Karayan who's an experienced motorcycle racer, trainer and MTO instructor who said that his actions were safe.

JP Dudar went on to say that the crown didn't do anything to rebutt the necessity defence from paragraph 40 he goes on to say

40 Had the Crown, after weighing the intended defence evidence, had sought an adjournment to prepare rebuttal evidence, it might have been able to establish beyond a reasonable doubt, that the action was excessive.

41 For example, might have had other options. For example, the speed of 164 kilometres per hour was simply un-necessary and excessive, making it disproportionate in the circumstances. Alternately, the defendant may have carried on the excessive speed for too great a distance, without justification. The defendant may have failed to pull to the side of the road and stop, possibly collecting information about the encroaching vehicle and reporting the dangerous behaviour of the driver for investigation.

42 However, no such evidence was elicited, either through rebuttal evidence of more comprehensive cross examination of the defence witnesses.

essentially here, the JP is suggesting that the crown could've asked questions as to "legal alternatives" but the crown failed to do that.

reading the entire judgement the acquittal appears to be more based on the officer's bias towards motorcyclists

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so yeah that's basically what i presented, and the JP scratched his head and said that he's now going to have to spend his entire summer reading... luckily he came back with a balanced judgement

Well just goes to show that diligence, knowledge and some hard work paid off, you really didn't want that ticket!

I am with you on the reduction of a ticket, I could care less about the fine and demerits, its the crooked insurance companies that really piss me off, and the main reason I fight any tickets at all. I don't have a problem paying a fine for something I did wrong, IF I did it, but don't penalize me for something that MIGHT happen, that is horse dung that

Anyway congrats and thanks for the detailed write up and lesson in law