“114 In 80; No Notes For The "after" Radar Test; Please Help”

First of all a BIG THANK YOU to all the contributors to this forum! There is a lot of very good information here.

Overall background:

Charged with speeding at 114 km/h in an 80 km/h zone. Officer dropped it to 95 km/h. The officer marked the time of the radar test in his notes at the beginning of his shift but there is no mention of any other tests in the officer's notes (no mention of the after use test). The ticket was issued about 7 hours after the radar test that was noted in the officer's notes.

During the trial the officer testified that he did test the radar throughout the day because he always does it. I introduced Schlesinger 2007 ONCJ 266. At this point in time the trial is adjourned and is to be continued later. Could you please answer to my questions below? Also, please offer any advice you may have. A big thank you in advance.

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1. Can a prosecutor drop the charges at any point during the trial?

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2. What is the legal weigh of case laws? I assume that case laws are strong but not necessarily the silver bullet and that even if I have a case law supporting my case I should still try to make as many holes in the prosecution's case as possible. Any comments on this?

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3. Background: At the beginning of my trial I asked for an explanation as to why the prosecution amended the original charge. The prosecutor did not give a reason but he introduced Durham v. Zhu 2011 ONCJ 193 stating that this case law showed that the prosecution could amend the charge.

Like I said before, later on in the trial I introduced Schlesinger 2007 ONCJ 266 (most of you likely know it) that treats about 3 different aspects related to a speeding ticket. In this case law, the most relevant part to my situation was that because the officer did not mark one of the before or after times when the radar was tested the justice ruled that just the recollection of the officer that he had tested the radar before and after use was not enough to prove without a reasonable doubt that he did do the tests and that the radar worked properly.

At some point later the justice adjourned the trial and ordered it to resume at a later date. After getting home I read Durham v. Zhu 2011 ONCJ 193 introduced by the prosecutor and discovered that in addition to treating about the amendment of the charge there was a second aspect of that case law that discussed the very same subject as the case law I introduced as my defense (different trials, different justices but both about speeding and both about missing notes on the radar test times). So, in short, the prosecutor introduced a case law that actually argues my case.

Please advice what I could do with this gift when my trial resumes?

- Can I, for example, motion for the charges to be dropped because the prosecution appears to agree with me and hence there is no reason to continue with the trial? This seems to be asking for a lot but I do not know...

- Or, should I try to bring it up with the justice at which point the prosecutor will likely be forced to admit that he made a mistake and was not careful or did not read the test case?

- How far do you think I can go with this both legally and as a tool to discredit the prosecution?

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4. Background: The officer said/testified something like this: "I noticed (or observed) the car of the accused and I activated the radar."

Could I treat this as a testimony that there was no visual speed estimation performed?

Is the visual speed estimation something that the officer must/should do? If it did not take place how could I use this information?

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5. Background: During my examination of the officer I asked if the officer could show a proof that the radar was certified. The answer (I do not remember exact words) was something like "I do not understand what you are asking about." I explained that I meant a certification proving that the radar had been tested by an independent lab and was shown to function properly. I added that a typical proof of such certification would be a label affixed to the device. The officer answered "I do not have anything like that" and appeared to be surprised with my question.

I am very puzzled that the officer did not offer any proof of radar certification. Beyond questioning the proper working condition of the radar what else could I do with this? Any relevant case laws?

1: Yes

2: It certainly can be the silver bullet or the wooden stake. Lower courts must follow ruling from higher courts: Stare Decisis principle

4: The officer does not have to say he made a speed estimation. All that is required is that he says he observed your vehicle which appeared to be going at a rate of speed higher than the posted speed limit. There was a time when speed estimations were done, that is no longer the case and case law supports that.

5: There are no certifications required by an independant lab. It is enough for the officer to say he tested the radar according to the manufacturers instructions and found it to be working properly and able to accurately measure the speeds of motor vehicles.

1. Yes

2. Case law from Ontario Court of Justice (ONCJ) is not necessarily binding on the Justice of the Peace. They can choose to use it or not. Ontario Court of Appeal and Canada Supreme Court rullings are binding on the JP and they must follow these decisions.

3. You can not add new evidence to a trial except during the testimony/cross-examination of a witness (so the officer or yourself). however you CAN reference case laws during your closing submissions. You did not specify what part of the trial the justice adjourned it. Did you have officer testimony? Did you cross examined officer? Did you testify (or choose not to testify)? Did prosecutor present closing arguments/submissions for their case? Did you present closing arguements/submissions for your side? I need to know what point of the trial you were at before I can answer the question.

4. Visual speed estimation has been removed from the radar manuals as a requirement and it is therefore not necessary anymore.

5. In your closing arguments you can say something like "the officer testified that he did not have any proof of the radar being certified which then brings into doubt the reading, and also there is no proof he tested it afterwards which again brings more doubt to the reading ." They do not necessarily have to prove it is certified (only that they tested it) but if you can get the officer to admit that he is "not sure" about the certification then this works in your favor. It is a step in the right direction for proving reasonable doubt, and along with it "not tested afterwards" this all definitely works in your favor (although still not a guarantee)! But this is also a good setup for an appeal if JP finds you guilty!

screeetch and jsherk thank you for your comments!

To clarify. The trial was adjourned in the middle of me cross-examining the officer so, I assume, it will resume at the same stage.

The main point is that the officer testified that he remembers doing the tests but the note of the after the stop test was not made.

The two case laws introduced were:

a) (introduced by the prosecutor): Durham (Regional Municipality) v. Zhu, 2011 ONCJ 193 (CanLII)

b) (intoduced by me): R. v. Schlesinger, 2007 ONCJ 266 (CanLII)

2. Thank you for clarifying this to me. I will try to see if there is anything relevant (on the officer testifying he remembers doing the radar test but not noting it in his notes) in the Ontario Court of Appeal. If anyone knows about a case law in this area please point it out - thank you.

3. Like I mentioned above, the trial was adjourned in the middle of me cross-examining the officer and I believe it should restart with me continuing with the cross-examination. I do not plan to testify and I doubt prosecution will bring any other witnesses. I am wondering how to play the card that it was the prosecutor that brought the case law that argues my very point? I think that I should at least made the JP aware that this case law supports my case but I wonder if I could get more out of the fact the it was the prosecutor who brought it in. I have zero legal experience but the logic would indicate that if the prosecutor uses a part of the same evidence (case law) to support his case he would have to agree with the validity of the other part of that evidence, after all this is a single piece of evidence.

From the technical point of view, should I re-introduce the same case law (the one that was introduced by the prosecutor) as the evidence supporting my case? After all the prosecutor introduced that case law in the context of charge amendment and not in the context of lack of the radar test notes.

Thank you!

Read this thread (there are 3 pages):

I think on page 3 of that thread I mention three ONCJ cases that refer to both tests AND one Court of Appeal case. You will have to read the cases and make sure they are relevant, expecially the Court of Appeal case.

I think I mention ONCJ cases Zhu, Schlesinger, and Ko:

Durham (Regional Municipality) v. Zhu, 2011 ONCJ 193 http://canlii.ca/t/fl3wg

R. v. Schlesinger, 2007 ONCJ 266 (CanLII) http://canlii.ca/t/1rsg6

R. v. Ko, 2013 ONCJ 451 http://canlii.ca/t/g0658

and the court of appeal case:

R. v. Vancrey, 2000 CanLII 26961 (ON CA) http://canlii.ca/t/2329z

Since this was adjourned before you finished cross examination, this is good. You can finish your cross-examination (and could mention any case laws here if you want to especially if it is the Court of Appeal one) and then the prosecutor may ask a few more questions of the officer to clarify anything you asked about and then you get to cross-examine on anything the prosecutor asked about.

Then if you do not want to testify, the prosecutor will give closing arguments and submissions and then you get to do the same. During your closing arguments and submissions you can mention any case law that is relevant to any points you are making even if you did not mention it earlier. You also want to re-mention any case laws you did mention earlier and why they are relevant and point out any issues with officers testimony that can bring reasonable doubt to what he said.

So yes you should mention the prosecutors case law in your closing arguments with something like "And I want to point out that the prosecutor submitted the case of Durham vs. Zhu last time, and that this very case that he submitted also supports the fact that the radar must be tested afterwards and that the time it was tested must be noted in officers note book. The other case laws with respect to this are R. v. Schlesinger, 2007 ONCJ 266, R. v. Ko, 2013 ONCJ 451, and the court of appeal case R. v. Vancrey, 2000 CanLII 26961 (ON CA)."

I am assuming you will read all the case laws and make sure they are relevant before submitting them in the example above.

Now it's possible the JP will try and interupt you before you can mention all your cases (because they don't want to read them all or they don't want you to win). You MUST mention the case on the record if you want it be considered. So you might have to sort of talk over the JP at some point with a quick comment like "I have not finished my closing arguements and submissions. R. v. Vancrey is a court of appeal case that is binding on this court and you must consider it with regards to the test not being in officers notes."

EDIT: Just a side note... since the ONCJ case laws are not binding on the JP, they can choose to accept part of it but not another part of it "I agree with so and so's comments about this, but I do not agree with their comments about that!". But hopefully the Court of Appeal case will have what you need.

Thank you again jsherk.

I read the thread you pointed to. Our cases appear to be similar (no notes) but it looks like my trial will be completed before the other one is. Well mine has not been scheduled yet but it will likely continue some time in January 2016 and the other one appears to be scheduled in March 2016.

I also read the two case laws you mentioned: R. v. Ko, 2013 ONCJ 451 http://canlii.ca/t/g0658 and the court of appeal one R. v. Vancrey, 2000 CanLII 26961 (ON CA) http://canlii.ca/t/2329z but, unless I missed something in these two case laws, they do not seem to apply to my case. Moreover, the first one finds the defendant guilty and in the other one the appeal is rejected.

The good thing is that the other two case laws (already entered in my trial) address the issue of no notes of radar test results very directly. I especially like the Durham (Regional Municipality) v. Zhu, 2011 ONCJ 193 (CanLII) one and in particular the following part when the JP says:

115) Perhaps an analogy would be of assistance to put the matter into perspective.

116) It is ones usual practice to shut off the coffee pot and lock the door before leaving for work in the morning. Quite often, particularly as the years advance, the question arises: did I turn the coffee pot off and did I remember to lock the door? Its only been a few minutes or a few hours since leaving home for work. Yet theres no clear recollection of doing so even though it is my usual practice. It would seem even less likely that theres a clear recollection that on February 7, 2011 that the door was locked and coffee pot turned off before leaving for work on June 30, 2010.

117) Clearly it could be said beyond a reasonable doubt that both the coffee pot had been turned off and the door locked had a note been written at the time both tasks were completed.

The prosecution knows that I base my case on this and already asked questions about officer's memory and got answers that the officer remembered doing the "after" test as he always does them (usual practice).

I am planning to ask the officer questions related to 116) above to get him to admit that he too was unsure in the past whether he did or did not lock the door, etc., and hence could have forgotten to do the radar test. Do you think it is a good idea?

Another thing I plan to do is to ask the JP in my closing statement to agree with the introduced case laws and not to lower the already very low threshold of proof for the police officer - it takes only 5 seconds to make a note about doing a test so why shouldn't the police officers be required to do it. Any comments on this?

Thank you.

Charges were dropped.

Great news!

Did you show up for trial and they dropped them right away or did you talk to prosecutor and they dropped them or did you proceed to trial and win? What happened? Details please.