Prosecution refused disclosure for speeding charge.

Hi all,

Need advice on how to handle refusal to disclose the following

1. Device purchase, calibration, test and repair history

2. Policies and instructions relating to laying of charges and operation of the radar.

3. Officer's training records

The reason stated was that the information is not in the possession of the prosecution and if it exists it is not relevant to the case.

If the reliability of the device and the training of the operator is not relevant I don't see how anyone can ever win a speeding case. As for the possession, shouldn't the prosecutor obtain the information if they don't have it?

Comments please!

I know for #3, training records do NOT need to be produced for disclosure. You can certainly question the officer about his/her training at trial, but it doesn't need to be disclosed ahead of time. Not sure how likely you are to get the other two items. #1 probably more likely then #2.

Thanks for your reply Stanton.

Alright, I can question the training but how do I know whether it was sufficient if I don't know what was required in the first place? isn't #2 necessary to prove deficiencies? Same goes for #1, the radar could be a lemon, in and out of repair and I would have no way of knowing that. Another question I have, sorry about my ignorance but I am totally new at this, should I argue with the prosecution now or should I do wait till court and present my objections to the judge? At this point, other than requesting another disclosure and stating that I believe this information is very relevant and ask for it again is all I can think of and somehow I don't think it will be an effective strategy

Help please!

2 & 3 are one and the same, officer has to be a trained radar operator. The operator has to have received training from a radar instructor, and to have been requalified as an operator within the past 2 years.

thanks hwybear. well, that's exactly what i mean, you'd just stated some requirements for training which I can only assume are documented somewhere. Without knowing that the policy calls for re-qualification every 2 years I wouldn't question the training if for example the officer said he was re-qualified 3 years ago. Comments please?

There is no documentation of the training, other than would be in a notebook on whatever date and would be very minimal (ie: radar training and for some of us "radar instructing") and that is it. I do not know any officer that would jeopardize credibility by not being current in training.

The 2 years is being extended to 3 years in near future or/as been sometime this year.

It has been changed already to "at least every 36 months"

can #1 & 2 be obtained through a FOI request?

Thanks everyone. There are specific guidelines for training in radar operation http://www.docstoc.com/docs/66799986/On ... or-Devices so I would think records should exist. I am sure no individual officer would knowingly omit required training but if the requirement wasn't there in the first place that's a different story. I would think the prosecution would be more than happy to provide this info if everything was done by the book.

iFly55, yes I believe I can get all 3 items via Freedom of info and looks like I will have to go that route. I was surprised to learn that you have to pay for FOI, it's not much but still... I guess freedom isn't free after all;)

That document has been replaced in 2011 by an updated version and is no longer in force. Those guidelines are also exactly that. Guides. They hold no force in law. If you read them, they use words like "should" and "may". As for the officers training, ask them on the stand when he/she was originally trained and the last requal date. Problem solved.

According to this it is a requirement to have procedures in place " Every chief of police shall establish procedures on traffic management, traffic law enforcement and road safety. O. Reg. 3/99, s. 8."

http://www.e-laws.gov.on.ca/html/regs/e ... 0003_e.htm

That makes sense, I certainly hope that officer's are not just given a radar gun and left to train on motorists.

As for questioning the officer on training it doesn't solve the problem at all. I need to know if training taken = training required and questioning the officer will only give me training taken.

Those are two totally different documents. The last one is part of the Police Services Act and is an actual Provincial law. The first document is a "guidline" There is some case law that speaks to "training" I just can't seem to find it at the moment but will be able to access it tomorrow. Will repost at that time. You may have to use a Freedom of Information Act request for policies and procedures that cover, traffic management, traffic law enforcement and road safety.

Thanks Decatur. Did you manage to find anything?

I grabbed the wrong binder and am not back in until Thursday. In the mean time, try http://www.canlii.org/en/ Do a search on radar training. Just be aware that some of the decisions listed many be from lower courts and are not binding on others.

I'll try to grab it on Thursday.

pepsi,

i am going to jump into this discussion too as I did the same as you and prosecution did not give me the disclosure too.

here is a case law that should help.

http://www.canlii.org/eliisa/highlight. ... 50669.html

I also had requested the certificate of conformance for Lidar as the laser used on general public should be certified as safe and not making people blind. any thoughts on that?

One more question, how can we get info through a FOI request?

Can we file for a stay for not disclosing all of these items? thanks

You're not likely to get a certificate of conformance/compliance from the police. I've never seen on included ith a new radar or lidar. The only documents usually included are a copy of the manual, warranty information and the original certificate of calibration. You may have to try Industry Canada for this.

As for an FOI request, you have to go to the agency itself and fill out some forms. Be prepared to pay for it though, it's not free like disclosure.

Hello ejadoo!

Thanks for the link. Yes, that is helpful if I were to go FOI way. Problem is, the police have 30 days to respond to the request and the prosecution waited till the trail date was less than a month away to say 'no' . I saw somewhere that the prosecution and the courts are required to help lay people with the process. I don't have it handy right now but will post it later. This prosecutor was anything but and I suspect yours was the same. Did you look at the option to ask for stay on those basis and incomplete disclosure?

As for your Lidar, I think you might have something there. I saw a post somewhere on radar compliance with Industry Canada. Again, don't have the link to the post handy but will post later. Did you check if your device is listed here? http://www.ic.gc.ca/eic/site/icgc.nsf/eng/h_00029.html

Did the laser blind you? interesting..unfortunately if those writing the standards decided that this is acceptable you're out of luck. Law is law and justice is justice, let's not confuse the two;)

I still haven't decided on the exact sequence of defence strategies for myself but I will be fighting tooth and nail, that is certain. This is the first time I am taking a close look at our legal system and what I see is so pathetic that I don't know if I should laugh or cry.

Just consider: the police officer who gave you the ticket is paid by your tax dollars. The prosecutor and the judge are paid by your tax dollars. The court clerk, premises, stationary, etc is paid by your tax dollars. The taxes they pay come from their pay which you paid for so in effect you pay their taxes. And here you are, fighting your own tax dollars on your vacation days because the courts are not flexible enough to allow you time off from the very job which you need to pay taxes which allow them to prosecute you. Talking of digging your own grave;)

It's likely that any device purchased in Canada for speed measurement has conformed to IC standards or they wouldn't be allowed in the country to begin with. I wouldn't spend too much time on this.

Hi pepsi,

Thanks for the ic link. I tried to search industry canada but couldn't find this lidar. if this device is being sold in canada it does not automatically mean that it is approved by IC. i know this is not a dollar store item, but there are thousands of items being sold at canadian stores they are not approved by any canadian standard or they meet canada requirements.

I am also less than 30 days away from my trial so FOI is not an option for me right now. I am thinking about filing a motion for Stay I am still more than 15 days away from trial. The other thing i was thinking that I should request a stay just before plea. I have seen a case law where JP granted a stay on the day of trial before pleading. How about you?

well laser did not blind me but depending on its class it can leave some long term effects on my body. He might have shot my head with the laser. Do i not have a right to ask how much someone hurt me with a laser and i think JP should understand this. These governments running on our taxes are suppose to make things safer for tax payer (although they are only concerned about the taxes nothing else)

I agree with you on standard decision. thats why our case and arguments has to be completely different otherwise we will get the same standard decision. Its my first time as well to try to fight a speeding ticket in great detail and i will exhaust all my options too in this case. I was not speeding and i knew he was standing there but i still got ticket.

what do you think about the speed stops the police conduct at the end of every month to meet their monthly quotas? How can we use it as an argument? You will never see these speed stop through the month. but as soon as it is 28-30th of the month, they are out there to issue 100-200 tickets catching every possible driver and making their own numbers.

Thanks

Hi ejadoo,

I remember typing a reply but I guess I forgot to hit the submit button because it ain't here! I'll try a shorter version. Here is a better link to IC http://www.ic.gc.ca/app/sitt/reltel/src ... o?lang=eng, just type in manufacturer name, e.g. decatur and presto, all certified equipment for that company is displayed. I haven't heard of requesting a stay motion just before the plea without having at least Form 4F submitted. Seeing that you're more than 15 days away I think you should file away, it costs nothing. Ticket combat has the details here http://www.ticketcombat.com/step4/paperwork.php but make sure to go to http://www.ontariocourtforms.on.ca/forms/civil/04f/ to get the latest form as the one he has is dated 2007. The fax numbers are different on the newest one but everything else seems the same so you can safely use the filled out sample ticketcombat provides. Another thing I'll be looking at is conformity with NHTSA as Ontario laws refer to it. Weird isn't it? I wonder what kind of gaps I'll find there. Canadian radar manuals are a barebone version of the US and European version, basically no requirements at all as far as testing, maintenance, tracking history. Tuning forks non existent. Whoever worked on this made sure challenging the accuracy of radar's speed reading based on the manual is made impossible. I'll let you know what I find.

yes, you are right, i must serve the notice 15 days before. I misunderstood that case law. He had served the notice before he asked for stay in the court. I think i will go for the fax method. The only thing is i am spending so much time to prepare for the case that i started to hate it. If the cop does not show up, i don't want to loose that opportunity as well to get the case dismissed in his absence instead of getting a stay. any thoughts.

I reviewed the NHTSA as well, I didn't find anything there that can be used against a speeding case. Not sure what you are thinking about. But as far as Lidar, for the best interest of public interest, this must be proved a compliant and legal devise and it must be legally proved that the laser used in Lidar is safe and in compliance with Canadian laser regulations. any thoughts ?

thanks

Don't delay because the 15 days seems a complicated calculation http://www.ticketcombat.com/step4/section_109.php and it's better to be early than late. RE hating the preparation, I am somewhat different, I hated it from the very beginning

Regarding the officer not showing up. The way I see it, if he is a no-show, the prosecutor won't make you argue your stay motion because even if it is refused the next step will be the trial and she'll have to withdraw the charges so what's the point? She wouldn't want to waste her time and I'm sure the JP wouldn't be happy about such an approach either. True, your preparation for the stay motion would have been for nothing in that case but I'd think that's a small price to pay if it saves you from going to trial in case the officer does show up.

Yes, I also think law enforcement devices should be certified. This is not some ebay electronic for personal use but an instrument used to serve the legal system. But, no guarantees the JP will think so. So, is your lidar on the IC list? Does the manual have an IC # listed?

Re NHTSA, there is something called Provincial Adequacy Standard AI-013 which unfortunately I cannot find a copy of on any govt site but which is referred to several individual police boards such as brantford http://www.brantfordpolice.ca/documents ... evices.pdf where it states that they must "comply with the current Model Minimum Performance Specifications for Police Traffic Radar Devices DOT HS 808-069 and/or the current Model Minimum Performance Specifications for Lidar Speed Measurement Devices DOT HS 809 239" (Seems in 2012 that was replaced by DOT HS 809-812 and DOT HS 809-239). The AI-013 is supposed to be covered in Ontario's Policing Standards manual but the according to the Ontario Police College, as of 2004 those are only distributed on CD and the 2000 version available online stops at AI-011. I think I will abandon this for now but if need be I will ask for an adjournment to obtain this info. The regulations regarding radars are shrouded in secrecy, not open like in the US. Quite convenient I think.

I wouldn`t get too caught up in the NHTSA Specifications. They are simply what is used to produce the IACP (International Association of Chiefs of Police) Conforming Product List. The IACP produces a list of both LIDAR and speed measuring devices that are in compliance with those specifications. These lists are available online.

I am quite a lazy ass. I was in US for 4 days and I forgot my correct court date as well. When I checked my court date again, i was already too late to file a motion for stay. I really regret that I couldn't file stay but thats OK, I will ask for adjournment. Did you or are you filing for stay? please share your outcome if you do. I just found a very useful NHTSA document DOT HS 809 812. I am thinking to use few of the things from this document as I am an engineer and I understand a number of items are technically very important. please have a look at it. http://www.nhtsa.gov/people/injury/spee ... dures.html

Unless the judge is not willing to accept any technical argument.

Any thoughts or ideas on this? http://www.ticketcombat.com/step3/lookaround.php The same scenario applies to me as well. But this doesn't seems much helpful to me as the laser is very pointed with almost no divergence like radar. the downhill road is somewhat helpful depending on how accurately the officer kept the laser dot on the car. any opinion is highly appreciated.

Ohh never mind, you are already way ahead of me. You had already mentioned about DOT HS 809 812. Credit goes to you for that document . Lazy me...., . But I find this document very useful and will use it. Thanks very much for sharing all the information.

I think AI-13 is a useful document except is expired one. Can this be used to argue to disclose the latest version of this document as the court and prosecution are suppose to help lay person to prepare for their trial instead of creating obstacles and particularly if some information is not available publicly.

any thoughts on this advisory by health canada. http://www.hc-sc.gc.ca/ahc-asc/media/ad ... 02-eng.php These devises suppose to be compliance with RED act. They must prove it in the best interest of general public.

Not sure if you like or not, can I come to see your trial or if you would be interested to come see mine.??????

I don't see how it would hurt to ask for a stay in court. After all, it is the JP's call and in the worst case, asking for an adjournment would be a reasonable 2nd choice imho. You should however be prepared to explain why you deem the information missing from disclosure relevant or the JP might just not see it your way. That's why I'm looking at requirements in line with AI-013 and agree with you those should be available and yes, this is what I will be asking for. If I don't know what the training and procedures are I cannot judge if the officer operated the radar according to those requirements. It' very noble to think that every officer is properly trained but this is a profession like any other and they may just not know what they don't know. The prosecution will likely build a case that all the officer has to do is operate the device according to the manual. By that argument, anything that is critical but omitted from the manual, e.g training, calibration, and any statement that guarantees internal test is the only test needed to ensure the device will display correct speed when used is deemed irrelevant. I can'tt see any officer willing to swear that he can guarantee correct results if he was given the radar and the manual and sent out issue speeding tickets without any other training (any policemen out there, comment please?) So prepare strong arguments as to why the info you requested IS relevant.

Interesting about the laser being accurate. There is surprisingly little official info, ok, make that nonexistent info, on radar accuracy. Here is a link, that states (very bottom) that there was a ruling in 1996 barring the use of a laser over 1000 feet because there is a divergence. http://www.radarbusters.com/mistakesarticle.cfm . Did you hear of the radar clocking a palm tree? State v. Aquilera, No. 711-1015, 48 Fla http://stmaryslawjournal.org/pdfs/Cox_II.pdf

You're an engineer you say? I have a question for you then: Radar uses a microwave beam. The way I understand the beam will get wider with distance and a radar with a 12 degree beam width will end up being ~40m wide 200m away which is several lanes of traffic. How can the officer tell which car he's capturing? The hill should also pose an issue since the beam travels in a straight line. I too read the ticketcombat link you sent and I am working on that very scenario for my case. I only researched radar but if the distance was short you would you have a case in examining the reaction time?

Your health link is interesting and I would print it and show it in court although I still don't think the JP will link that advisory with your ticket because the fact that the laser is a health hazard doesn't mean it registered your speed incorrectly. Also, the advisory was issued in June 2012 and I assume your ticket was issued before that. You may want to take the police to court if you were hurt by the laser but that would be a separate case. Again, imho only.

Thanks Decatur. Yes, I found the lists but the police documents I found online don't mention them, only the DOT documents. They are pretty consistent, every police board I found online is referring to DOTs and quoting AI-013 like the bible. The compliant devices lists are based on certain product requirements documented in the DOT documents but the devices don't come with the same equipment or manuals in Canada as in the US and Europe. So if a device was compliant based on how it is sold in the US is the Canadian stripped down version be compliant as well? It is those differences that I think should make an interesting discussions in court.

You may want to do a search on Tuning Forks on the Canlii website. There are numerous cases including appeals which hold up the testing procedures used here in Ontario. I woudn't say that the Ontario versions are "stripped down" at all. They never even come with tuning forks. The bottom line when it comes to most radar is that if the officer does the test according to the manufacturers instructions (and it passes) it's accurate. It's the actual practical use on the road that needs some experience. The caselaw and the article mentioned by Pepsi are both US documents/decisions and would hold very little water in a Canadian court. As far as the radar beam being about 12 degrees, that's pretty close, but it's not a flat beam. It's more like a beam of a flashlight so it's 12 degrees in all directions. When trying to determine which vehicle you are reading, it comes down to range to the target, size of the target and in some cases the speed of the target.

Great. Its alot easier to toss radar's reading than a Lidar. If you had the same scenario as the picture on ticketcombat. way too many interference may cause wrong readings on a radar. in yur case even if we decrease the angle by half to 6 degree and distance to half i.e. 100M. even then the beam will be 10.5 meter wide. if one lane is 2.5M wide, this beam will cover 4 lanes and traffic on all sides. No one can certainly say that which vehicle caused that reading. If there are two lanes east bound and two lanes west bound, the radar can pickup a reading of the far lane traffic going in the opposite direction, but the direction can be technically detected. two objects side by side, No way. Here is the formula to calculate the width of the beam at any distance with any angle.

Width~=2XdistanceX TAN(angle/2)

For certain and accurate reading, the distance and angle (divergence) needs to be very minimal. Any object, bridge, railway line, powerlines will cause interference and doubt the readings. I omitted one item from the above formula to keep it simple, so calculation is 10-15 cm higher (the size of the radar aperture) . You should go back to the site and take all the measurement and distances from where the cop was standing to all the object in the area like bridge, powerlines, railways, etc. If the fall within the calculated range they are causing interference, means unreliable reading.

Doppler effect of Radar will produce different readings for different kind of objects for example plastic car (Honda pilot) versus big all metal car (like Hummer) also different size like a difference between a small car like smart or a big truck or a bus.