So I had my appeal Thursday August 25th.
Stated to judge the officer testified she first saw me at 75m, did the visual estimation at between 70-60 and had the lock at 50m.
The officer stated the first visual happened at just before the blue house and when she maintained line of sight it was as I was passing the blue house immediately to her right. I found GPS coordinates of those two locations by tagging them in Google on the Westbound lane of Huron street and compared the distance to entrance of Haysville community centre. Verified distances were 77m and 65 for start of visual estimation. Therefore no reason to think further 50 metre lock estimation is a bad one. I told the judge the officer stated visual estimation took 1-2 seconds and clarified 2 seconds on follow-up. We know V=d/t. I will give the benefit to the prosecutor for both time and distance estimations even though presumption of innocence is mine and we have V=(65-45)/1.5 and 48km/hr calculation, which is below the speed limit and severely contradicting the radar gun reading of 81k/hr and immediately casting into doubt the radar gun reading.
I then told judge lower courts are just using prima facie evidence of self-test of radar gun and officer's testimony of radar gun reading as a rubber stamp for convictions.
Judge agreed that machines aren't infallible and that he read there are 50,000 lines of algorithms which are sometimes 10 percent wrong. He asked prosecutor is there a law in place that could break the infallibility of the prima facie testimony of the radar gun. The prosecutor stated no since it is strictly a prima facie case (which in my mind is another way of saying you are guilty no matter what since we desperately need to protect our revenue stream and only pretend to have presumption of innocence for defendant.) There was a lot of back and forth with the judge telling David Dyer to lower his voice and not get angry a couple of times. The judge turns to me and states this is a very interesting case but he needs evidence to dispute officer and that I should have taken the stand at original trial. I asked if I could take the stand now. Judge answers no. I stated math is the ultimate witness and is the absolute truth and even though the officer didn't testify against her own radar gun reading her underlying observations and estimations backed with math and corroborated with GPS calculations of referenced objects is evidence that gives reason to doubt the radar gun's accuracy. Judge stated math can't be used while I was thinking our system of law in Ontario is a joke and has been designed top down to protect a revenue tax stream if system of justice now diverges with math.
I then try to introduce case law (for different Genesis gun - Ontario currently uses both).
Ontario Court of Justice R. v. Russell L. Hawkins 20090106 p 3
"6.4 Tracking History
For each enforcement action taken by the police with respect to a speeding offence arising out of the use of this radar unit a tracking history shall consist of:
1) A visual observation of an approaching or receding vehicle...
2) Having made the visual observation and estimate of the rate of speed, the radar unit will be placed in operational mode
3) Note, that the target displayed on the radar unit is consistent and confirms the officer's initial observations and estimate, and that the audio tracking tome emitted by the radar unit is consistent with the visual observations and the target speed displayed.
4) Absence of any one of the above tracking history components and NO ENFORCEMENT ACTION shall be undertaken."
Prosecutor looked up the case and stated it was for the different radar gun. I stated it was for the same manufacturer and was required operating procedures for their radar guns and that NO ENFORCEMENT ACTION should have been taken by officer.
I told the Judge I tried to enter the original radar gun manual as evidence which shows that section 11.3 "Tuning Fork Test" had been purposefully dropped in Ontario. It is obvious from other provinces that the tuning fork test is still a requirement and the same radar gun cant operate differently in Ontario. Judge stated I need to learn how to enter evidence into court properly and that I was asking very interesting questions.
I then quoted the case of R. v. Andrianov, 2015 ONCJ 197 [section 8]
"It is not an essential element of the offence that the officer who observed a speeding offence and wrote the ticket be 'qualified' in any particular manner according to Ontario law; however it would appear in the Alberta [case of] R. v. Werenka, [1981, 11 M.V.R. 280 (Alta, Q.B] the Crown is required to prove that the operator of a speed detection device is qualified by virtue of (i) following a course, (ii) passing an exam successfully, (iii) having several months of required experience. It would appear that the issue of being ‘qualified in Ontario must be proven beyond a reasonable doubt on a standard less defined than it is in Alberta...
A reasonable doubt might be raised regarding the accuracy of a speed measurement where the operator is not qualified...Similarly, where a speed detection device is utilized, the prosecution may wish to call evidence, although it is not necessary to do so, that the device has been properly maintained... Certainly these questions would be asked by the defence if not explored by the prosecution, the defence attempting to raise a ‘reasonable doubt as to the accuracy of the rate of speed indicated."
I stated for training a standard less defined for Ontario doesnt imply a standard less strict and that is why judge used Alberta definition. The officer was only trained once in the last 14 years and I had not been provided proof that she passed a radar gun test even though I asked for it repeatedly during disclosure and while she was on the stand. I also requested it under the Freedom of Information act and was denied. <I also asked David Dyer for it before the appeal for her training records via email and told him that he lacked integrity and that he was suppressing evidence and if this wasnt the case give me a plausible reason for not providing the officers training records which he couldnt –didnt mention that though in the appeal ïŠ>
I asked for the maintenance log for the radar gun and asked officer if she had maintained the gun. The officer stated no to question and that waterloo regional police didnt maintain gun. This is reasonable doubt according to case law.
The judge started to argue with prosecutor about responsibility of radar gun maintenance. Prosecutor stated it was 3rd party and that I needed to get 3rd party records. The judge then declared he would make a ruling and to come back in 3 hours (I am always the last case to go in my 3Abs this year).
Judge came back and stated the prosecutor was right. I needed to testify in order to have evidence to the contrary of radar gun for him to be able to take my mathematical evidence into account and would have probably won if I had testified to my innocence during original trial. He repeated that I asked very interesting questions but needed to get lawyer to introduce expert witnesses since it is a very complicated process. Judge then allowed me to go on my tirade and I did.
I stated a system of law that diverges from mathematical evidence which is absolute truth is just a system of rules and not justice. How can the radar gun operate in Ontario without needing to be externally calibrated but in other provinces it does need to be calibrated? Everyone is this court knows the radar gun reading was disproven by the V=d/t test which is an external test which should be all the evidence required to dispute the radar gun reading. The reason Ontario dropped the tuning fork test from the user manual was to get false convictions and all this has come out in the papers. I turned to the prosecutor and his assistant and stated the next ticket I get I will get expert testimony and blow through prima facie precedent.
Judge told me not to be so cynical, that he understood the question about the radar gun and how the user manual is different across provinces and that it is relevant question, and not to wish for another ticket. He then upheld the conviction and I walked out of court.
Through all this I still dont understand why I need to testify to have evidence that contradicted the radar gun reading. If the officer claimed that my car was going 300km/hr and that the radar gun self-tested positively could I not claim the mathematically impossibility of the claim since my car doesnt go that fast without my testimony of innocence? I proved a mathematical impossibility from the officers testimony and her distance estimations were pinned to objects and validated as accurate through GPS coordinates and calculations.
How would this case play out in the court of public opinion? What if I took it to the Kitchener Record with my court transcript? Will the appeal get published at some point so that there is transparency (I dont want to pay another $400 for transcripts)?