OHTA.ca

Hi guys

Please bear with me, this is almost like a novel which I hope you read. Could you please offer some feedback, advice, suggestions, as Ill need all the help I can get! Please help me out if you can! This post is for the legal and procedural minded on this forum (TicketCombat , Radar identified ). Hopefully the information here and the responses will help others as well.

So I received this ticket back in December 31st at 12:41 in the morning. I was coming back from hockey and apparently I was speeding on Allen Rd, close to the end of Eglinton. The cop pulled me over for speeding 89 km in a 60km zone. Im not sure what exactly to do, but I checked out Ticket Combat and filed for disclosure back in early June. I didnt receive anything so I requested it again at the end of June. This time I received it August 12th, but it was dated for July 29th. When I asked for disclosure I asked for the following:

- a full copy of police officers notes

- a copy of both sides of the officers copy of the ticket (Notice of Offence);

- a type version of any hand written notes;

- witness will say statements;

- witness statements;

- any statements made by the defendant;

- copies of the original notes of such statements; and

- the name and address, occupation and criminal record of the persons providing such information

From that I only received a copy of notes from the officer. They were just a photocopy of his notes and not typed out.

I typed the notes out myself but there are some abbreviations I dont understand or know what they mean. If you can explain that would be great. I put comments in brackets

------Officers Notes:-------

Test Ultralyte Laser at 10:15 pm as per manufactures specifications and TPS Training. QLO since August 2009

1. Check for signs of damage – None

2. Display Integrity test

3. Scope Alignment test 6/m (Im assuming within 6 months)

4. Fix distance test 6/m

Speed measuring device in good working order

Weather +5 Celsius, warm winter night – clear visibility, roads dry, traffic light at 12:00 am - check signs ( I cant really make it out, it could say "system" instead of "signs" but not sure)

Then he drew a picture which I will post at the bottom

At 12:41 am

- standing at my position facing southbound and traffic – no obstructions, I see a dark m/v (guessing Moving vehicle) in L2 (Lane 2) pass M/V in L1, quickly

- m/v coming at me quickly, believe m/v going faster than 60 km/hr

- Act. (Activate?) laser, place red dot on front of m/v, flash light reflective front plate

- Pull trigger confirm visual obs (??) 89 @ 3/5ih (??)

- Pull m/v over – introduce myself – reason for stop – der demand (???)

- Driver ID with ONT Photo IO brearing true likeness of driver ID

- Insurance present, Permit Present

- Never lost sight of moving vehicle, no moving vehicle corssed my path, issue (POT , or POI not sure)

- Retest 4:11 am (ALO)

- City of Toronto

-----end of notes------

So the things I want to ask or find out from you guys is

1. I heard that they must conduct a test before and after a reading has been made. I notice in his notes that this test was done 4 hours after the ticket was issued.

2. On the ticket combat site there is an example of speeding (Cawartha Rd in Missisauga) which is quite similar to the Allen rd & Eglinton where they have the speed trap. My question is could I use those arguments in court like the one used in ticket combat? I also took pictures at night to make sure the judge would have a chance to see them and how difficult it would be even on a clear night to catch a moving vehicle at that point. Could I use this as well?

3. The only thing I received was the officer notes. Is there anything else I should request? Ive read that I should be asking for an additional disclosure request for the stuff I didnt get and maybe ask for other things such as the radar gun information. Im just not sure if the officers notes provide the best thorough information.

4. Is there anything else I can argue or challenge from the notes above? Have I missed anything? Im trying to look at all the irregularities so that I can request a stay in the end of it. Do you think this is possible?

5. Am I on the right track here or am I way off on what Im doing?

Thanks for your help….Im a noob that wants to learn!

Seoulkid

1) While radar is tested before and after each stop, laser only requires a test at the start and end of each shift.

2) I know the example you're talking about, but I don't really understand it. When a vehicle isn't travelling directly towards a radar/laser, it does cause what's known as a cosine error, meaning the speed reading isn't as accurate as it could be. The problem is that the cosine error works in your favour, by always reducing the speed. The greater the angle of offset, the greater the difference between your speed and the reading (but again always in your favour). In my opinion, it doesn't compromise the validity of the reading, and I'm not aware of any case law supporting cosine error rendering readings invalid.

Second, arguing difficulty in seeing your vehicle may be difficult. Laser guns have sights on them, sometimes with magnification. While you just point radar in the general direction, laser is pretty darn accurate if used correctly.

3) Most of your disclosure list isn't applicable to your charge. Really all that's reasonable to ask for is his notes and manual for laser (at least calibration steps). If there is short form you don't understand, it's now somewhat more reasonable to again request typed notes that clarify abbreviations.

Thanks for the reply!

I'm guessing I can't use the gun going on a downward slope as a reason for an inaccurate reading, even if its in my favour?

What do you think my options are here. I'm feeling like I could maybe get disclosure on the notes being typed, as well as more info about the calibration of the device and how its supposed to be used? Maybe his records on when he did his certification on this device?

Could I be onto something here?

In Ontario, radar is only required to be tested at the start and end of shift.

Seoulkid wrote:Thanks for the reply!

I'm guessing I can't use the gun going on a downward slope as a reason for an inaccurate reading, even if its in my favour?

What do you think my options are here. I'm feeling like I could maybe get disclosure on the notes being typed, as well as more info about the calibration of the device and how its supposed to be used? Maybe his records on when he did his certification on this device?

Could I be onto something here?

You could probably make a request for typed notes or at least some clarification on abbreviations used. A copy of the testing procedure for the device is also a reasonable request.

As for proof of certification, you can question the officer about it at trial, but there is no requirement for disclosure to be provided.

Decatur wrote:In Ontario, radar is only required to be tested at the start and end of shift.

Radar or laser? In my experience some jurisdictions insist on testing radar after every stop.

Case law says before and after the stop but does not specify a time frame... so it could be before and after the stop itself, or beginning and end of the shift.

Seoulkid wrote:I'm guessing I can't use the gun going on a downward slope as a reason for an inaccurate reading, even if its in my favour?

Unless there's something in the manual that says not to use the device on a downward slope or at a certain angle to the roadway... not likely.

Seoulkid wrote:

What do you think my options are here. I'm feeling like I could maybe get disclosure on the notes being typed, as well as more info about the calibration of the device and how its supposed to be used? Maybe his records on when he did his certification on this device?

I think Stanton pointed you in the right direction when he said to get a copy of the manual. As far as the officer's records, his testimony as to when he was trained is considered sufficient proof of his training. They don't have to produce any records.

@seoulkid :

thts ironic... i got the same ticket 89km in a 60km at the exact location (allen south, just before eglinton) pretty much the same time as u.. 12:51 am just a few days back.. would be great to know wht u finally decide to do with the ticket... i just got it.. so havent looked into it much.. but again, the road is 80 and then turns to 60 and the cop basically got me rite after the sign when i was anyways slowing down to make a left...

will let u know wht i decide to do with it or find out about it, if u care to know..

later

Hey Guys

So just an update on what I have done.

I filed for a 2nd disclosure statement with the following attached to it

o The rest of the details from my previous disclosure request that were not addressed, plus the addition of the following:

o Clarification on the abbreviations provided from the officers notes.

o A typed copy of the officers notes

o the make, model, and serial number of the radar unit, and its owners manual;

o officers training record specific to the said radar unit;

o the calibration record, service record and repair

o the records of any calibration equipment such as tuning forks

o the officers notes and log on the alleged offence day, including all tickets he had written on that day and any document the Crown may rely on at trial.

o "will say" statement from the officer.

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

o Copies of any written instructions/procedures/guidelines/policies held by any division of the Regional Municipality of Toronto regarding the use of radar units

o Copies of any written instruction/procedures/ guidelines/ policies held by any division of the Ontario Provincial Police regarding the use of radar units and any other documents the Crown may rely on at trial.

Before I go on, thanks to Stanton and Radar for all your help so far.

Radar do you think it's still possible to provide those records? I mean, not that he would lie or anything but just so I know he has certification on the particular unit is important? I could also find out if the unit that he used and the certification that he had are compatible with the notes.

I'm hoping to build a case around improper use of the Gun, as well as maybe questioning the testing grounds of the gun.

As for the Cosine Error, I found something interesting about the Gun that is being used. In a flyer they state that the slope, and horizontal distance and height are available with a "tilt" sensor. Could I use this as a means to say that the device should have had this sensor on due to the slope of the hwy? In terms of the means of it being used? If they have it, why aren't they using it kind of thing. That would give it more reason to be an innaccurate reading.

I also found some case law that calls for the testing to be done before and right after a stop. In my reading, of this, I assume that this is right after the stop has been made?

Could I use this?

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."

Thanks

Seoulkid wrote:As for the Cosine Error, I found something interesting about the Gun that is being used. In a flyer they state that the slope, and horizontal distance and height are available with a "tilt" sensor. Could I use this as a means to say that the device should have had this sensor on due to the slope of the hwy? In terms of the means of it being used? If they have it, why aren't they using it kind of thing. That would give it more reason to be an innaccurate reading.

The "tilt sensor" issue may work if you can find a way to explain how and why it would be required. The JP may be sympathetic and agree, or might not. I can't say for sure how it would go.

Seoulkid wrote:Radar do you think it's still possible to provide those records?

Some of that, I take it, comes from R. v. Lorna Bourget case in the Northwest Territories... here's what I think...

1. Abbreviation of the officer's notes: Should get that, or have the officer explain them verbally.

2. Typed copy of the officer's notes: Can you read the notes? If so, there is no reason as to why they should be typed.

3. Make, model, serial number and manual: Make/model should be in officer's notes. Serial # is not required. Manual IS required if the Crown plans to use the device "testimonially."

4. Officer's training record: Officer's testimony is sufficient. Records are not required to prove that the officer is capable and competent to operate the device. You won't get the records.

5. Calibration record, etc: Not required. The before/after tests, if they passed and were conducted in accordance with the manufacturer's instructiosn, are sufficient to prove that the device was working properly that day. (IMO: Should have both an internal and external check... but that's a different topic.)

6. Records of any calibration equipment: Not going to get it. This is not Wyoming.

7. All tickets the officer wrote that day: That would be a violation of numerous privacy laws. You have no business asking for other people's tickets to be submitted for your case.

8. "Will Say Statement": That's what the officer's notes are.

9. Any oral evidence: Probably not going to get anything else.

10. Written instructions/policies/guidelines: Cite the R. v. Bourget case and you might get something, IF they differ from the manual

I would be careful submitting such a huge disclosure request. The Prosecutor's office will probably try to argue that so many of your requests were unreasonable and extraneous that they could not possibly process it. You are then left to justify, item-by-item, why they are necessary and why you are entitled to them. Unless you can justify them, this could de-rail your case. The only "non-standard" item you requested that I can see them granting is the "written instructions/policies/guidelines."

Agreed. It looks like you're just trying to overwhelm the prosecutor with bogus disclosure requests. Stick to what you need.

As for the tilt sensor, there is no requirement for such a device. IF there was any error due to the slope, it's still in your favour as I explained earlier. In essence you'd be arguing you were going FASTER then the officer said you were. There are always newer, fancier radar/laser guns on the market. Just because the new ones have more features doesn't mean the old ones are irrelevant/inaccurate.

Hey guys

Sorry I've been away for a while....Been kind of busy getting things together and stuff. I haven't recieved my second disclosure request and its 2 weeks before my trial. If I do recieve it could I ask the crown that I need more time to look over the information as I haven't had time to look at it? Is this possible?

Also Stanton and Radar, since you guys seem to be the most knowledgeable about this, could you maybe point me in the right direction of what my next move is? Should I just take the reduce fine instead of getting myself into something that I've never done before? I'm feeling less confident after what you guys have been saying :$ Maybe I just need some encouragement...lol

Thanks again for all your help so far

You can ask the JP to compel the Prosecutor to disclose the remainder of relevant evidence. You'll have to explain why you need each item, and cite case law to do so. State that you are unable to provide full answer and defence to the charge if you do not receive proper disclosure. However... you did receive the notes. The manual should be disclosed if asked for, plus the policies of the Toronto Police Service regarding radar/laser operation if they differ from the manual. Other than that, trying to get a plea bargain may be a good idea in your case.