“Catching A Break?”

As I wait for the inevitable back-and-forth over my additional disclosure request, I've been thinking about what I may be able to do, particularly with respect to point 5 and any other cross-examination I may need.

Radar unit in good working order

"Officer, are you the only member of your police service who uses this particular radar unit?" Chances are the answer will be no. "When one of your colleagues uses it, how do you know it has been returned in good working condition?" He will probably say it passes the test. The test only shows that internal circuitry and all LED elements work, and that the radar corresponds to simulated speeds. He may say officers have to report damage. "How do you know there is no undisclosed damage that would still allow the device to pass the test, but could affect proper operation?" I'm guessing he'll go on about reporting damage, having damage fixed, some kind of damage log, etc. Perhaps he'll say "the maintenance person tells us the device has been repaired" or "the device would not be returned to the rack if it were damaged." I could challenge him on whether someone could make a mistake or whether someone who had damaged the device might not report the damage for fear of reprisal. Perhaps he would say so-and-so told him the unit has been fixed or hasn't been damaged. Any such statement is, of course, hearsay and would be inadmissible. If he says there's a repair log or some kind of book/log that shows devices are in good working order, I would go after the fact that said book or log has not been disclosed and any testimony based on it should be inadmissible.

Maintenance History

"Officer, at what intervals must the device be maintained?" He may give a correct or incorrect answer (I assume the manual will tell me, so I can verify). If he's wrong, that would go to his training and certification (and, ultimately, credibility). If he gets that answer correct: "Officer, are you the person responsible for maintaining the device?" The answer will obviously be no. "Who does the maintenance?" I'm sure there's a maintenance person or team. "How do you know that required maintenance has been performed?" Again, there would probably be discussion about there being a maintenance log or report. If the maintenance person simply states that the device has been properly maintained, any such assertion by the officer is hearsay. If the officer says he checks the log, non-disclosure of the log works in my favour. I could, of course, also approach the idea that someone could have erred, could have inadvertently entered incorrect information, etc. Either way, getting him to talk could be helpful.

Calibration History

Same approach as with maintenance. How does the officer know the device has been properly calibrated? Where is the confirmation it left the factory properly calibrated? Where is the proof that calibration has been checked? Bring up my analogy of a sticker on the scale at the store or on the gas pump. Again, my thinking is unless the officer calibrates the device himself (and I HIGHLY doubt he does), any "proof" of calibration would be either hearsay or contained in some form of log that won't have been disclosed.

I know it's not quite as easy as I'm suggesting it is here, but unless I'm unaware of some case law or the officer has a zinger or two hiding up his sleeve, I should be able to raise doubt as to the reliability of the radar evidence.

Any thoughts?

It all depends on whether the justice will accept that the test is sufficient. If he does then you can go on until the cows come home and you'll still be found guilty. If he agrees with you then you get off..........but so does every other person charged with a speeding offence.

So if I use an analogy such as "I turn the key in my car and no warnings lights come on, so I assume it's running fine, but it turns out the tires are overinflated and are about to explode" to show that a simple test may not diagnose everything, or use, perhaps, a medical analogy (the doctor listens to my heart with a stethoscope but that can't diagnose tonsillitis), the JP may still have it in his or her head that a simple one-button test can trump all logic and won't care about my arguments or analogies?

If a JP rules that way, especially if I show that the officer's satisfaction is the result of hearsay or non-disclosed information, would I likely win an appeal?

Same answer, I'm afraid. Depends on if the judge agrees with you. The officer is basing his satisfaction on his training. It is up to you to demonstrate that the police universe's training is inadequate. It could get expensive because the crown will appeal a loss rather than have every speeding ticket in the province thrown out.

Or they might decide you're more trouble than it's worth and just withdraw the charge. It's the jsherk defence and it's worked for him but I think you need a couple of charter arguments to boost your pain-in-the-backside factor.

I'm not against wearing people down or being a thorn in people's sides when either of those is necessary.

Realistically, I would only roll the dice on a trial if I had reason to believe I'd win. The points on my daughter's record and the higher fine are not worth the risk unless it's really low.

Given that I will likely wind up pleading guilty unless procedural matters really go my way, I do have a question about the fine. The ticket shows a fine, including costs and Victim Fine Surcharge, of $95.00. The Notice of Trial shows $52.50. Which would apply?

I would absolutely use all your arguments and questions, but be prepared to lose as Justice of the Peace's tend to say: "if the officer says he is trained and that it passed the test then that is all that matters".

However it will all have a better chance of working at an appeal with a real Judge, so this is all good ground work for the appeal. Remember you can NOT add anything new at an appeal... the Judge at an appeal is only allowed to look at what was said at the the original trial, so get everything in that you think is important at the original trial.

Real Judge...cute! I knew you'd show up sooner or later.

My fear is exactly what you and argyll have said. The JP could ignore everything I bring up and I'd have to convince the "real judge" that the JP had erred in not considering the evidence, etc. The other fear is that the officer could actually prove what I would be getting at and would close any holes I may have managed to open.

I'm not ready to give in just yet, though.

I'm surprised this hasn't came up yet. Maybe because of your daughters age, but its relevant. Does she hold a G2 or a G license? If she has a G2, and is convicted of 30+ over, her license will be suspended for 30 days due to the novice driver escallating sanctions. Just keep that in mind when going to trial.

She's had a G since she was 18. The novice sanctions are not an issue.

I thought you'd be interested in the e-mail I received today from the prosecutor.

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Dear Mr. XXXXX,

I am the now assigned Prosecutor for Provincial Offences court on Monday September 19th in Orillia.

I have been on Holidays last week and in court all day for the last 2 business days hence my late reply to your disclosure request.

I have read the request. My position is that you have been provided all of the necessary disclosure to answer to this charge. This offence is the most commonly laid charge in Ontario. It is not a complex matter. Your lengthy list of disclosure demands with respect are in my view are largely frivolous and vexatious and do not meet the relevance test.

I have reviewed the evidence in this matter and the evidence indicates that the officer obtained a speed measurement up to 82 km/hr. in a 50 km/hr. zone. Please be advised that the prosecution will seek an amendment to have the certificate conform to the evidence in the event the matter goes to trial. Upon conviction that would result in a 4 demerit point conviction and the corresponding monetary fine of $224.00.

This practice is allowed for in law due to a decision by the Provincial Offence appeal court in the matter of Rvs. Winlow[2009] O.J. No.3691.

Additionally your other documentary requests which are outside of the norm should have been addressed by your bringing a proper motion in advance of the trial date according to the rules of practice, not on a trial date. The numerous items you request are as I indicated frivolous and perhaps I might suggest that you obtain a copy of the case of R vs.Reybroek [1998] O.J. 2586 and additionally vs. Sequin [2007] O.J. 382. Both of these cases are higher court decisions that bind a Justice of the Peace in Provincial Offences matters.

Finally with respect to the matters you are requesting I also suggest you obtain a very recent yet important Case of R. vs. Jackson [2015] ONCA 832 ( Ontario Court of appeal) which expands greatly on the role of the prosecution and its obligations respecting disclosure.

Should you desire to resolve this matter our office is content to allow the defendant to plead guilty to the charge as it is currently before the court. It at this point does not have any demerit point consequence.

Please be advised that the foregoing is not legal advice merely the Prosecutions position should the matter proceed to trial and of course subject to Judicial scrutiny.

I am available for reply up until end of business on Friday at 4:30 p.m. should you desire the opportunity.

Respectfully,

XXXXX XXXXXX

Municipal Prosecutor

City Of Barrie.

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Frivolous and vexatious??? While I wouldn't win every argument, there's no question I'm entitled to at least some of what I disclosed. That said, the calendar does not work in our favour (finding someone to get to Orillia Monday, booking an appointment to view the radar manual in Barrie and making another trip to Orillia for trial or further disclosure arguments). I suggested my daughter change her plea and simply pay it.

I would have loved to argue disclosure before the JP and to cross-examine the officer. I know there would have been a risk involved, but life without risk is boring.

That brings this ordeal to an end. Thank you to all of you for your comments, suggestions and help along the way.

PS I currently teach English. This guy would not have done well in my class.

The response above is totally expected and the norm in Ontario.

I actually have a trial next Thursday in Orillia for a friend. I have not received anything with regards to disclosure yet. I am preparing a motion that I will submit later today to argue the relevancy of all the many items I have requested. But I will of course get the same response I am sure.

And as an FYI...

Frivolous: Action brought without legal merit and/or meant to harass, delay or embarrass.

Vexatious: Action brought without sufficient grounds for winning, purely to cause annoyance.

My opinion is that if you can prove an item is likely relevant, then it is not frivolous or vexatious.

The guy was obviously playing the "let's see how little we can get away with disclosing" game. He has to know he'd lose that game on most of the points. Maybe he thinks that because he's a paralegal (yes, I looked him up in the LSUC directory) and I'm not, I'd be intimidated by his e-mail. If I'd been able to go to Orillia next Monday, I'd at least have been able to argue disclosure before the JP and would, bare minimum, have earned an adjournment attributable to the Crown. I could have continued to plot my strategy from there.

The argument over whether things like maintenance and calibration records must be disclosed will continue for some time, I imagine. I don't think the Jackson case will change that. It clearly cannot apply to EVERY disclosure argument.

On the upside, our insurance company forgives the first speeding ticket if there are no points. For that alone, it's not worth fighting this thing anymore. The time and gas will cost more than the fine.

Thanks for all your help and suggestions.

Yes so the main argument that a prosecutor can bring is that the records are not in their possession and therefore do not fall under the Stinchcombe requirement to disclose.

I am preparing for that outcome as well, although any help of suggetions would be great.

My understanding is that after my motion to get disclsoure is dealt with, if there are any items that the prosecutor says they do not have to disclose because they are not in their possesion, I will then need to make a new motion to the JP to ask for a "subpoena duces tecum" for the OPP to request those records.

Correct me if I am wrong, but I believe a JP or Judge must order the subponena, and that I can not start the process myself, so the time to start it would be right after the motion to have the items disclosed by prosecutor is rejected.

Why MUST the JP order the subpoena ?