“Catching A Break?”

I sent my disclosure request August 17. Having heard nothing so far (not surprisingly), I just sent a second request. The trial date is three weeks from today. It looks like I'll have to go up there to set a new date while I keep pushing for disclosure.

Two weeks before the trial, make a phone call and ask if it is ready. I would suggest that if you get it less than two weeks from the trial date, this is a good argument to adjourn it to a new date because you have not had sufficient time to prepare.

I had an e-mail reply 32 minutes after I sent the follow-up. The prosecution clerk who replied thanked me for my request and said disclosure would be e-mailed to me in approximately four to six weeks.

The trial date is three weeks from today. There's no way I'll have disclosure in time. I can probably play nice and request an adjournment now or, perhaps, next week, on the basis disclosure will not be ready. If, instead, I decide to go, is it possible the prosecutor will say that I knew disclosure wouldn't be ready and argue that the appearance shouldn't "count"?

I very much doubt it. The Criwn's office knows the same as you when the court date is. You could always reply to the email pointing out the date discrepancy.

Usually if you try to get an adjournment, they will tell you that you have to show up on the trial date anyways to do it.

I thought there might be a procedure to arrange an adjournment by agreement without having to make an appearance. When I worked in Small Claims Court, we used to be able to request adjournments if both parties jointly submitted a request or if one submitted a request evidencing the consent of the other party.

So September 19 will be "Strike 1" against the prosecution. From there, we'll see how much disclosure we get before the return date. That could be "Strike 2," which I've always found to be "Strike 3" as well. Any time I've seen the prosecution unable to proceed by the second appearance (including one of my own tickets last year when disclosure wasn't provided), the charge was withdrawn.

Technical question: In POA proceedings, is the correct reference "Crown" or "Prosecution"? I've seen both used and want to make sure I use the right term when I refer to the lack of disclosure in Court.

Either will work. Crown Counsel, Prosecution.....doesn't matter. Personally I use Crown Counsel, Crown for short obviously.

Then Crown it is. Thanks, Argyll.

So much for 4-6 weeks. I actually received an eight-page disclosure 45 minutes ago. No, I didn't get everything I asked for (not that I expected to get all of that), but what I did get is enough to make me forget about the rest. Here's what I received:

Page 1: Copy of Notice of Trial, with our last name and the officer's last name handwritten in large letters at the top and a "DISCLOSURE" stamp dated 22/08/16 with the clerk's initials

Page 2: Copy of e-mail from City of Barrie Prosecutors' Office to OPP requesting disclosure

Page 3: Cover page from Rama Police Service saying "Officer Notes," the officer's name and number, "R. v. xxx," the notebook number and the page numbers

Page 4: Officer's mostly legible notes: First entry: 0943: Genesis-VP Handheld Stationary Directional (circled plus sign) (something that looks like MODE or MODEL) serial number #00000; Display - Pass; Circuitry - Pass; Speed Simulation - Pass; second entry: 0944: Radar in good working order; conducting point and pull (I think) radar outside of police vehicle; monitoring traffic N/B + S/B Rama Rd (County Rd #44) @ (unintelligible name of crossroad, but I know where he was stationed), First Nation of Rama; wearing yellow police traffic vest; (on next notebook page) focused on 50 kph Community Safety Zone; rest of page covered. Beside notebook page is the officer's card

Page 5: (Also with officer's card) top page of notebook covered; most of bottom page covered; only visible entry: 1644: observed a M/V N/B County Rd #44 travelling @ high rate of speed activated my radar unit (circled plus sign) (looks like MODE); locked speed 82 kph

Page 6: (continuation of previous entry) in a 50 kph Community Safety Zone; directed M/V to stop + pull beside which it did; year, model, colour and licence plate (incorrectly identified) of my car; advised of speeding and shown reading; demand for M/V documents + driver's licence; driver (my daughter's name and D/L number); P.S. (last name) states she was running late bringing brother to camp (it was his day off and she was driving him back - my commentary; not part of officer's notes); lead M/V of 2, was noticed pulling away from rear M/V; charged PON# (number), my daughter's name, our address and her D/L number @ County Rd #44 N/B First Nation of Rama Simcoe County (circled R) speeding 65 kph in a posted 50 kph Community Safety Zone HTA s. 128; Next Entry: 1653: Radar Test - Pass

Page 7: Title Page of Genesis VP Directional User's Manual, Canada Variant, Rev 25/Aug/2010 (I've read a bunch of topics here, so I know it doesn't say anything about tuning forks)

Page 8: Testing Procedure, outlining the Display Test, Circuitry Test and Speed Simulation Test

I'm sorry for the detail, but I know the information will help whoever reads this.

It looks like the guy nabbed my daughter just as he was about to shut down for the day. It also looks like this disclosure does not bode well for her.

The only hope I can see at this point would be whether (a) the Certificate of Offence was filed within seven days as required by POA s. 4; or (b) the officer's simple notation "Radar Test - Pass" at 1653 is sufficient. I'm guessing trying to argue that he didn't document the entire test procedure, when he did so at the start of his shift, would be splitting hairs and the JP wouldn't buy it.

I know our friend jsherk has gone into great detail about Industry Canada notices, calibration, maintenance, etc. (and I asked for all of those, of course), but I don't know how much any of those angles will help when the officer's notes show he reduced my daughter's speed from 82 km/h to 65 km/h and that she admitted she was running late to bring my son back to camp.

My inclination is to tell my daughter to plead guilty. The Notice of Trial shows a total payable that's lower than the one shown on the ticket; it may not take the CSZ into account. If she does plead guilty, which will apply?

Are there any other rabbits I may be able to pull out of my hat?

If you go to trial and lose, then the charge will be raised back up to 32 over instead of 15 over. Although 15 over is 0 demerits, it has the exact same affect against insurance as the 32 over with 4 demerits.

The Certificate of Offence was most likely filed within the 7 days, as the clerk is not supposed to proceed with a Notice of Trial if it is filed after 7 days, although there is still a slight chance the clerk made a mistake, but very slim. There is also a chance the officer will not show up, but again very slim.

Can you win? If you have lots of experience in the court room AND know how to do a good cross-examination AND use every technique I have suggested, then you have a chance (probably less than 50/50) of winning.

If you lose at trial to 32 over, the fine is more expensive and 4 demerits and it will affect your insurance

If plead guilty to 15 over, the fine is cheaper and there are 0 demerits, but still affects insurance the same.

Suggestion #1 is that you continue to push for additional disclosure and get trial moved to another date, in hopes of officer eventually not showing up. You push this as far as you can, and when you know you can not push it any further, if officer shows up, then just plead guilty.

Suggestion #2 is that you show up to this first court date and hope for the slim chance the officer is not there. If he is, then just plead guilty.

Suggestion #3 is study up on cross-examination techniques and fight it with everything you have!

Thanks for confirming what I already figured.

The Certificate of Offence is a longshot, but probably worth taking. I'm generally good at cross-examination from my Small Claims days and the few trials I've done for myself. I know that the court will reinstate the speed at 82 if we do go to trial; despite my perceived skills, I don't think that's risk worth taking. My daughter doesn't need the higher fine or the points.

I'll keep pushing the disclosure issue as long as I can. It may be worth "investing" a day to get the adjournment, then roll the dice for the new date.

I think I saw somewhere here that the defendant does not actually need to be in court for a trial. Did I see that correctly? My daughter starts Med school out of town next week and it may be inconvenient to get her in given school requirements. I know...that's just one more reason not to speed, right?

For provincial offences, the defendant never has to show up, so you can represent her even if she is never there.

Thanks.

The Barrie Prosecutors' Office sent me a follow-up e-mail yesterday stating that disclosure had been sent and outlining the usual conditions of privacy, etc. It also gave the procedure to use if I felt disclosure was deficient (of course it was).

I will send a second (third, really) request for the items that were not included. The follow-up e-mail states that full manuals of all speed measuring devices can be viewed by appointment. It's been stated many times here that this position is inconvenient to defendants and requires a trip from the GTA to either Barrie or Orillia. Grrrrrrrrrrrrr!

Based on the thoroughness of the officer's notes, it seems we have a snowball's chance in you-know-where of winning based on poking holes in his testimony. I think the only chance of success now will rest in some procedural error. Here are my thoughts. As always, input and suggestions are welcome and would be appreciated.

1. Ask the officer what he meant in his end-of-shift annotation "Radar Test - Pass." He did not give the full detail of Display, Circuitry and Speed Simulation passing. On the surface, it would seem he has not properly annotated following the full testing procedure. But I'm guessing that's not going to help me. If I were the JP, I'd probably rule that he had demonstrated compliance with the procedure at the beginning of his shift and simply abbreviated his notes at the end of his shift. Am I correct in assuming his shortened annotation isn't going to get me anywhere?

2. Obtain disclosure of the officer's copy of the ticket and find he didn't sign it. I understand that an officer's failure to sign his or her copy of a PON is a fatal error.

3. Obtain disclosure of the Certificate of Offence and find he didn't file it within seven days. It's been suggested the court would not have issued a Notice of Trial if he hadn't, but I'm sure stranger things have happened.

4. Learn there is dashboard cam video or some other video or audio recording that contradicts the officer's notes. I will ask again for such items, but I'm not going to hold my breath.

5. Go after the maintenance and calibration records of the radar unit. I've heard conflicting information as to whether the Crown has to disclose these items or whether I can use them. When we buy something by weight, we see a certificate on the scale; when we fill our cars, we see a certificate on the pump. Why shouldn't a driver have the right to know that the device being used to measure his or her speed has been certified as being accurate and in proper working order.

6. Discover from the manual whether the officer used the proper procedure in operating the radar and interpreting its results. I'm not holding my breath on this one either, but it's a thought.

7. Cross-examine the officer to determine when he was trained and whether he has received appropriate retraining or recertification. I understand there is case law that suggests the officer's prima facie evidence he has been trained is sufficient and that the Crown is NOT required to disclose such evidence. That obviously makes this a difficult avenue.

Has anyone had any success in getting a prosecutors' office to send a full manual (say, as a PDF)? It would be a pain to go up there to see it. But...if we get to a second court appearance and there's still crucial disclosure missing, can I use going to the office to view the manual as further evidence of my efforts and to increase the chance of having the charge withdrawn or dismissed?

1) Cross-examination is tricky. You are probably correct that JP will side with officer on this. However if you just ask the officer what he meant by it, then he will explain what he meant and that will help the prosecution and not you. I am not sure exactly how I would approach this myself. It might be useful, but it would be very hard to cross-examine in a way that makes it useful.

2) & 3) If they will not send you a copy in disclosure, when you arrive at court, you can go ask the clerk if you can see the original Certificate of Offence and then you can look for officers signature and date stamp for filing.

4) All you can do is ask!

5) Yes this is one thing I do, although you need to be very good to get a JP to listen to you about this information.

6) Yes you need to question officer on everything and try to show that they don't know what they are talking about. Of course you will need the manual to do that, which they won't give you! One thing you could do is ask prosecution to have a full copy of the manual available at the trial so you can use it to cross-examine from.

7) Yes... officer says he is trained, so it must be true... this is how your fair and impartial trial works!

Most likely you will not get them to give you the whole manual. But keep trying because it looks good on an appeal. Yes you can go and view the manual, but they will not let you make photocopies of anything, so take a note book and write the page numbers and sections that you think are relevent and why. And then I would request that they bring a copy of the manual to the trial for you to use in cross-examination.