“Caught Doing 138 In An 80 Zone”

I was following a Black Jeep for about 15 minutes on County Road 503 in the Township of Minden with the cruise control set at 87Km/hr

I didn't feel comfortable driving behind the Black Jeep since it limits my view of the road up ahead (at around 7PM on a Sunday)

I decided to pass when safe (just outside of Gooderham and before Irondale),

I was travelling eastbound downhill on Hwy 503 and passed the black Jeep and then was looking back so I can merge back onto the lane safely.

When I looked ahead again, I noticed the OPP cruiser travelling westbound downhill and saw his flashing lights and signalled me over.

The OPP officer said he clocked me at 138 km (58 over) and the black Jeep at 97km (but he did not pull him over, can I use this as defence as well)

Right at the start he told me that my car is impounded and my license suspended for 7 days.

I mentioned to him that I was only passing the Black Jeep so I can see what's ahead of me and maybe only doing 100 km tops.

I was more concerned about passing safely rather checking how fast I was going.

While we were waiting for the tow truck, I had a chance to talk to the officer (very nice gentlemen). He soon realized that I actually was just telling the truth that my intent was just to pass and they cruise again at 87Km (flow of the traffic). That's when he mentioned that in cases of speeding over 50, he has no choice but he did comment that he will not attend court. (fingers crossed-I think he felt bad the he gave me the 50 over ticket).

1. A full copy of the police officers notes.

2. A copy of both sides of the officers copy of the ticket (Notice of Offence).

3. A typed version of any hand written notes.

4. "will say" statement from the officer.

5. Witness statements.

6. Any statements made by the defendant.

7. Copies of the original notes of such statements.

8. The make, model and serial number of the radar unit and its owner's manual.

9. The officer's training record specific to the said radar.

10. The calibration record, calibration sticker reading affixed on the said radar, service record and repair history of the said radar unit.

11. The records of any calibration equipment such as tuning forks.

12. Any additional documents the Crown may rely on at trial.

13. Any oral evidence to be presented by Crown witnesses that are not contained in the notes provided.

14. Copies of any written instructions/procedures/guidelines/policies held by any division of the Ontario Provincial Police regarding the use of radar units.

15. The names and address, occupation and criminal record of the persons providing such information.

As for the officers independent recollection of the events of the day and this particular event. Specifically the terrain where I was caught (we were both moving on a downhill)

Next, I want to question his training records regarding the use of the radar. Also details regarding the training, using it in different scenarios

Did he perform a test on the radar before and after he clocked me.

Next, question the calibration and testing of the radar... when was it last calibrated, does the radar have a sticker that corresponds to the record date.

R v. Vancrey

D'Astous v. Baie-Comeau

R. v. Schlesinger, 2007 ONCJ 266

Here is a quote from that decisions :

Question 1) Is it necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop?

In R v Vancrey 147 CCC (3d) 546, the Ontario Court of Appeal (OCA) ruled on this issue. The OCA considered an earlier ruling of the Quebec Court of Appeal in D'Astous v. Baie-Comeau (Ville) 1992 CanLII 2956 (QC C.A.), (1992), 74 C.C.C. (3d) 73.

In Vancrey, the court adopted from DAstous that in order to provide an "evidentiary basis necessary for a conviction for speeding based on a radar reading" that "the Crown must still prove that the particular radar device used was operated accurately at the time."

One of the tests established by the Quebec Court of Appeal to establish such proof was:

"The device was tested before and after the operation".

The OCA having accepted this ruling then continued at para 21:

"The Crown seeks to uphold the conviction on the basis that there was led at trial prima facie evidence of the accuracy and reliability of the particular laser unit, consisting of the performance of the manufacturer's tests for good working order both before and after the use of the device"

The court then held at para 22:

"In my view, the position of the Crown is correct."

Therefore, I find that it is necessary for a laser device to be tested by a police officer both before and after a speed enforcement stop."

The radar beam travels in a straight line, neither bending around curves nor following the contour of hilly terrain. If the antenna is not properly positioned, it may seem to clock an approaching car when, in fact, it's clocking another car in the background.

Even if the operator aims his antenna properly, radar is still subject to "look-past" error. This is caused by the radar looking past a small reflection in the foreground to read a larger reflection behind. This error is all the more insidious because poorly-trained operators assume it can't happen.

Texas instructors warn, "It is a widely-held misconception that the reflected target signal received by the radar antenna will always be that of the closest vehicle to the antenna. There are times, due to traffic conditions, that the closest vehicle is not returning the strongest signal."

Evidence of the potential size of this error appeared in Car and Driver (October, 1979). The author measured the effective range of a Kustom Signals KR11 traffic radar against various vehicles. The typical small sedan did not show up on the radar until it was less than 1200 feet away from the antenna, but the same radar unit locked on to a Ford 9000 semi at 7600 feet. This shows how common vehicles reflect microwaves differently.

The Texas instructors confirm this problem with radar, saying "It is not unfair to say that the reading you register could be a larger, better target three-quarters of a mile down the road."

Shadowing is a problem that occurs only with moving radar, and plagues all moving radar. The radar locks onto a large moving object in front of the patrol car instead of the passing terrain and computes the difference in speeds between the two vehicles as lower than the actual patrol speed. Consequently , the radar adds the remainder of the patrol speed to the target's speed, producing an erroneously high reading.

Terrain Error takes place when hilly or curved roadways affect radar's ability to process information. When the patrol car is at the crest of a hill, it is very easy for radar to overshoot the nearest vehicle and instead take a reading from a vehicle on the next hill. Because traffic radar is "direction blind," differences in reflectivity may cause instant-on readings to display the speed of a receding vehicle rather than of an approaching vehicle. So that vehicle "on the next hill" need not even be traveling the same direction as the supposed target vehicle.

The careful, well-trained operator can spot many of these radar errors when they occur. By constantly monitoring traffic speeds, he will notice the oddball reading or the onset of some other problem. This ongoing record of vehicle speeds and possible sources of interference is known as a traffic or tracking history.

With no traffic or tracking history, it is difficult for the operator to know which vehicle produced a particular speed reading, or whether there is some sort of interference present. When radar is used in the instant-on mode - short bursts of one or two seconds duration - the potential is great for these errors being misinterpreted as actual speed readings. Particularly troublesome are problems involving target identification, and the first three types of errors mentioned above (radio or microwave interference, mechanical interference and multi-path cancellation).

This is as far as I`ve gotten in the last couple of days (the offence only happen a couple of days ago).

I`ll provide details of the disclosure letter once I receive it.

Lastly, I also managed to find a case law where the same OPP officer attended court and the judge found the defendant guilty. I can use this information to better prepare myself.

If you have read this far, thank you in advance.

Your thoughts, inputs, guidance, critiques is appreciated

At this point you are speculating. I would wait to see disclosure before you plan a trial strategy. From what you said a defense of necessity will not work and the speed of the Jeep is irrelevant. If the officer really plans not attend court (which i sincerely doubt) then he may not have written any notes (which I also doubt). If you receive good notes then be prepared to plea bargain if the officer attends trial.

Krazyjuice wrote:The OPP officer said he clocked me at 138 km (58 over) and the black Jeep at 97km (but he did not pull him over, can I use this as defence as well)

No, the fact that you were passing another vehicle and/or it wasn't stopped isn't relevant to your defence.

Krazyjuice wrote: I've already created my disclosure request which asks for the following:

1. A full copy of the police officers notes.

2. A copy of both sides of the officers copy of the ticket (Notice of Offence).

3. A typed version of any hand written notes.

4. "will say" statement from the officer.

5. Witness statements.

6. Any statements made by the defendant.

7. Copies of the original notes of such statements.

8. The make, model and serial number of the radar unit and its owner's manual.

9. The officer's training record specific to the said radar.

10. The calibration record, calibration sticker reading affixed on the said radar, service record and repair history of the said radar unit.

11. The records of any calibration equipment such as tuning forks.

12. Any additional documents the Crown may rely on at trial.

13. Any oral evidence to be presented by Crown witnesses that are not contained in the notes provided.

14. Copies of any written instructions/procedures/guidelines/policies held by any division of the Ontario Provincial Police regarding the use of radar units.

15. The names and address, occupation and criminal record of the persons providing such information.

You'll probably get a copy of the notes and testing procedures for the radar. A lot of what you're requesting doesn't exist or simply won't be provided.

I'd agree your best bet is to review the initial disclosure and go from there.

In each of these Case Laws, it references if another vehicle is present at the time of the infraction that may have "reasonable doubt" that align to the radar errors that I've reviewed:

Antenna Positioning Error

Terrain Error

[106] While I acknowledge that a conflict in the evidence as to the location of the subject vehicles when they

passed each other might be relevant to the issue of whether or not the speed reading received was, in fact,

obtained from the defendants motor vehicle, it is important to note that there is no evidence before me that there

were any other vehicles being driven in the vicinity of Lower Base Line west of the Highway 407 overpass at the

material time.

In this case there were no other vehicles in the officers line of

sight nor were there any others in the radar beam. The officer took readings from

both directions after switching the mode of the radar device. Those readings were

consistent with each other and consistent with his visual observation of a high rate of

speed and his estimate of between 125 and 130 kilometres an hour.

The radar beam travels in a straight line, neither bending around curves nor following the contour of hilly terrain. If the antenna is not properly positioned, it may seem to clock an approaching car when, in fact, it's clocking another car in the background.

Even if the operator aims his antenna properly, radar is still subject to "look-past" error. This is caused by the radar looking past a small reflection in the foreground to read a larger reflection behind. This error is all the more insidious because poorly-trained operators assume it can't happen.

Texas instructors warn, "It is a widely-held misconception that the reflected target signal received by the radar antenna will always be that of the closest vehicle to the antenna. There are times, due to traffic conditions, that the closest vehicle is not returning the strongest signal."

Evidence of the potential size of this error appeared in Car and Driver (October, 1979). The author measured the effective range of a Kustom Signals KR11 traffic radar against various vehicles. The typical small sedan did not show up on the radar until it was less than 1200 feet away from the antenna, but the same radar unit locked on to a Ford 9000 semi at 7600 feet. This shows how common vehicles reflect microwaves differently.

The Texas instructors confirm this problem with radar, saying "It is not unfair to say that the reading you register could be a larger, better target three-quarters of a mile down the road."

Shadowing is a problem that occurs only with moving radar, and plagues all moving radar. The radar locks onto a large moving object in front of the patrol car instead of the passing terrain and computes the difference in speeds between the two vehicles as lower than the actual patrol speed. Consequently , the radar adds the remainder of the patrol speed to the target's speed, producing an erroneously high reading.

Terrain Error takes place when hilly or curved roadways affect radar's ability to process information. When the patrol car is at the crest of a hill, it is very easy for radar to overshoot the nearest vehicle and instead take a reading from a vehicle on the next hill. Because traffic radar is "direction blind," differences in reflectivity may cause instant-on readings to display the speed of a receding vehicle rather than of an approaching vehicle. So that vehicle "on the next hill" need not even be traveling the same direction as the supposed target vehicle.

ynotp wrote:At this point you are speculating. I would wait to see disclosure before you plan a trial strategy. From what you said a defense of necessity will not work and the speed of the Jeep is irrelevant. If the officer really plans not attend court (which i sincerely doubt) then he may not have written any notes (which I also doubt). If you receive good notes then be prepared to plea bargain if the officer attends trial.

Thanks in advance for the comment

Just to clarify the officers statement of not attending court:

I believe that he wrote up the notes since he initially didn't believe me that I was passing the Jeep merely for defensive driving reasons (failed to mention in my details the Black Jeep had cargo on the roof). Also, when I talked to the impound owner, he had mentioned that the officer is very by the book but fair at the same time.

We were waiting for the tow truck driver for quite some time and so we spent a bit of time talking... where I was coming from and about my family, I asked him about his family, etc.

It was about 30 mins after the incident is when he made a comment that he typically doesn't got to court.

This doesn't mean that I will not be going to court prepared.. I've been reading the forums on this site as well as reviewing case laws that I may be able to use. Again, things may possibly change depending on the officers notes. I'm banking on that he is detailed in his notes and has mentioned that I was passing the Jeep, and that I stated that I was only doing so to put myself in a more defensive driving position - Mens rea

Definitely count on the officer attending Court regardless of what he said at the side of the road. Police are required to attend Court and failing to do so without reason can result in them being charged under the Police Services Act.

Also dont bank on the strategy of arguing you were passing the other vehicle to increase safety. Courts consider speeding to be the greatest sin known to man. The Crown will simply argue you should have increased your following. As there was no imminent peril, you have no defence of necessity which could justify your speed. Furthermore, as speeding is an absolute liability offence, mens rea wont come into play.

Your best chance probably remains in trying to raise reasonable doubt over the accuracy of the radar reading.

Stanton wrote:Courts consider speeding to be the greatest sin known to man. The Crown will simply argue you should have increased your following.

Ain't that the truth... yowzers.

Krazyjuice wrote:Next, question the calibration and testing of the radar... when was it last calibrated, does the radar have a sticker that corresponds to the record date.

Calibration sticker is not required and the courts have ruled that, although the radar units are calibrated by an independent lab regularly, this evidence does not need to be supplied in court as evidence that the device was reliable.

As far as to whether the radar was accurate or not: The problem is, the officer is not solely relying on the radar as proof that you were exceeding the speed limit, at least if he's doing his job properly. You briefly referenced "tracking history" above. The officer is required to take a tracking history, that is, observe the vehicle exceeding the speed limit by visual observation before activating and using the speed-measuring device to CONFIRM the same observation. Modern police radars have much better processors than those tested 35 years ago... the one you referenced in the Car & Driver article. You'd need the radar manual to determine if any of the possible errors have any application with that particular device. You'd then have to provide some relevant information as to how it would have applied to your particular situation, such as were you on a significant hill, was there a massive stationary object nearby, etc. Radar accuracy is challenged dozens of times per month in Ontario courts and there has yet to be a significant finding of unreliability.

There have been cases where officers have admitted that they were randomly shooting radar or laser at traffic and got a high reading instead of taking the tracking history, and that's resulted in cases being dismissed. If the officer's notes reflect tests before & after the stop, tracking history, identifying you as the driver etc., then you might want to also consider a plea bargain.

My $0.02.