OHTA.ca

Hi all. First post here. Appears to be a great resource. Here is the story in broad detail just to get some of my initial questions out there. I can follow up with minute details later. Don't want to write a novel on my first post.

Fact: I was charged with 72 in a 50.

Fact: I know I wasn't doing 72 because I checked my speedometer. I might have been doing 60

Fact: I verified my speedo with GPS.

Fact: I passed in front of the officer while he was waiting at a stop sign, he fell in behind me and followed me 4 km through town and pulled me over approx 1 km into the subsequent 80 zone, after I had already brought my vehicle back up to 80.

Fact: I rejected two offers from the crown to lower the fine to 64 in a 50, no points.

Fact: I was late for my trial and was convicted because I wasn't there. An officer in the court asked the crown if he would recall my name. Crown said no and told me to appeal.

Fact: I filed a request for appeal explaining that some last minute things came up in my business that AM and I was late as a result. Appeal was granted.

Q1: Does the crown still have the burden of proof in the appeal?

Q2: Must I provide disclosure to the crown in order to enter evidence at appeal?

Q3: I am not really "appealing" anything since I didn't present any evidence. Am I allowed to present all my evidence as though this was the original trial?

Q4: I would like to question the officer. Must I request that the officer is in the court?

Thanks

The appeal is not a re-trial and the only evidence reviewed at an appeal is what was brought forward at the original trial. No new evidence can be entered at an appeal.

Since the crown would not re-call your name at the court house, you have been found guilty and convicted of the charge and you will receive the notice in the mail and you MUST pay the fine even with an appeal in the works. The officer will not be there since the trial is over and done with. An appeal is not a new trial.

What you have done is filed an appeal of the conviction.

There are two things you can do at an appeal:

(1) You can ask the Judge to review the evidence presented at the trial and because you believe there was an error of some kind, the chrage should be dropped (this option does NOT apply to you.).

(2) You can ask for a re-trial for reasons XYZ.

Option 2 is what you are after. You are asking the Judge to set aside the conviction and allow you to have a new trial. You do not need to provide anything to the prosecutor ahead of time. You just need to have some really good reasons why you were late for court.

There are only two outcomes to this, being that (i) the Judge will agree with your reasons for being late and will set aside the conviction and give you a new trial, or (ii) the Judge will not agree with your reasons for being late which means the conviction will stand.

Hmmm. I see. I kind of thought the appeal was my new trial. Drat. So I've already pulled a rabbit out of a hat to get the appeal, now when I appear before the judge in 2 weeks, I need to pull another one out to get the new trial. I suppose it's to my advantage that the crown told me to appeal....suggesting that they won't object to a new trial.

If I am granted a new trial, is it likely to be held the same day?

Well an appeal will pretty much always be granted. I have never heard of anybody not getting their appeal request approved (as far as provincial offences go).

It could be an entirely different prosecutor at the appeal, and yes they very much could object to the new trial.

However along with your reasons for being late, you should also include the fact that an officer of the court asked the crown if they would re-call your name, and the crown said no and that you should appeal. It won't hurt you to mention that information.

The new trial, if granted, will not be the same day.

Most likely you were convicted under section 9.1 of the Provincial Offences Act. When you fail to attend Court its deemed that youre no longer disputing your charge. If thats the case there wouldnt have been any trial and therefore no evidence entered against you. It sounds like you simply need to request that the matter reopened, not appealed. Can you confirm if you actually requested an appeal versus a reopening?

Note that for a reopening you only have 15 days upon learning of your conviction to make the request. If the request is granted, theyll schedule a new date for a trial. Check with the Courts, but I dont believe you need to pay your fine if the request is granted.

FYI if you do get a new trial your argument that you were only going 10 over versus 20 will result in you being convicted. Do some research on speeding offences on these forums to get some ideas on how to defend yourself.

Thanks for the replies.

Yes, I can confirm that the form I filled out is titled "Notice of Appeal under Section 135 of the POA". I was contacted by the clerk last week by phone and she said the Judge has said the appeal can go ahead if I pay the fine so I went on that same day and paid it.

With regard to my defense, I don't mind being convicted but I would like to:

1) be convicted of the speed that I was actually traveling and,

2) have the judge and the crown hear what the officer did

What happened is this (disclosure in "quotes"):

The officer saw a tractor trailer (me) crest a hill in a 50 zone coming toward his stationary position in his Ford Taurus and he determined visually that I was doing "at least 85". I saw him as I crested the hill, looked at my speedometer and it said 59. I believe the officer at that time makes the decision that he is going to ticket me. I continue to slow from 59 as I approach him and pass in front of him. He leaves the stop sign, turns right and falls in behind me. He "switches his Decatur genesis II to same direction" and when he is a distance of "40 meters behind me and 40 meters from the intersection, traveling at a speed of 60 kph" he locks my speed at 72 (so he says...in actual fact his radar must have only showed ~50 at this point but he is undeterred). He then proceeds to follow me for four kms because there wasn't a "safe place to pull me over". Once outside town, he follows me for another km into the 80 zone (at which time he may have really recorded my speed at 72....or maybe the 72 was still on his radar from another vehicle).

Question is...how do I get reasonable doubt?

I've driven some 1.2 million miles and 32 years since my last at fault accident and some 400,000 of those have been in a tractor trailer. Doesn't sound like someone that would come into town at 85 KPH but hey, if that counts for nothing I guess I'll have to get technical.

If I am traveling 85 kph, that is ~22 m/sec. The officer needs to check left and right for traffic and pedestrians in this "area that is heavily traveled with vehicles and pedestrian traffic". There's a second and 22 m right there. Then he needs to accelerate his Taurus from 0 to 60 kph and get within 40 m of my bumper before I have traveled more than 40 m down range...all the while he is losing ground on me because I am allegedly still traveling between 72 and 85. It is my position that a taurus can't accelerate that fast. Certainly not without laying down rubber and squealing tires in this "highly pedestrian area."

So I request disclosure of the car's VIN, engine size, acceleration data, weight and I am rebuffed. I contact a accident reconstruction specialist and we make some assumptions about the weight of the car and he concludes that's it not impossible but he was pulling some pretty good G's.....not sure if the Taurus is up to the task. He suggests that if I can get the VIN off the car he might be able to get some data on the car. So I go to the police parking lot to jot down the vin and am told that I will be charged with trespassing unless I leave immediately. The irony is not lost on me that my tax dollars helped buy the car that I can't get info about and the property that I am trespassing on but I digress LOL.

Thanks for the help so far.

Stanton brings up a good point... you should contact the clerk of the court and tell them that you actually want a "re-opening" and not an "appeal". A re-opening would indeed be a new trial with the officer present, where as the appeal is requesting a new trial for an error at law (which really there are none). So I think the appeal is the wrong way to go. If will not give you a re-opening then you definitely want to go with the appeal, but you should try for a re-opening first.

And just so you know, in my opinion, it is a complete waste of time to "have the judge and crown hear what the officer did". Police officers do not work for the crown or the judge, and all the judge cares about is whether you were speeding or not.

Speeding is an absolute liability offence which means either "yes you were" or "no you were not" speeding. The "why" you were speeding is irrelevent (unless your life was in danger).

If you get on the witness stand to testify and give your side of the story, you will have to admit that yes you were speeding and this will guarantee a conviction against you. So unless you are willing to say 100% you absolutely were not speeding at all, you should not testify and should not give your side of the story.

So if you do not testify then the only other evidence being brought forward is what the officer says. You now need to be become an expert at cross-examination in order to bring reasonable doubt to the evidence the officer gives on the stand. Unless you can bring resonable doubt to what he says, his evidence of your speed will stand and you will be found guilty. If the officer is lying, I do not see any way you can prove he lied. Your only chance is to maybe bring reasonable doubt to the device reading. Do notes say he tested it both before AND after your stop?

You would also need to get the "accident reconstruction specialist" to come and testify as well as most likely your opinion about acceleration/etc will not be accepted as having any weight.

Now assuming you get a new trial date, if you requested disclosure of the car data and it was not given to you can file a STAY request due to Section 7 Charter violation (which needs to be done 15 days before the trial). This basically forces the JP to make a decision about whether the prosecution should have given it to you or not.

Excellent points about the re opening. I will visit the clerk tomorrow.

I understand by suggesting the Taurus cruiser couldn't be fast enough basically amounts to calling the officer a liar. I have been told never to put a judge in the position of calling a cop a liar. Unfortunately, that is what my evidence will suggest. After presenting my defense, it was my idea to offer the officer a way out by suggesting it might have been a windy day and the trees that overhang the road may have caused an erroneous reading....or that his calibration was faulty or some such feeble excuse. All he has to do is take the bait and say "maybe" and we can get out of there and save face.

There is also another tidbit or two;

1. there is no "50 ahead" sign coming into town. I understand there is no requirement for there to be a warning but it can't hurt to mention it.

2. the distance between the 1st and 2nd "50 kph" signs is .9 km. I understand this is much farther than what is allowed by law.

3. Officer checked the AM box in the ticket instead of PM. Crown will no doubt be allowed to ammend that but the point is how could an experienced, competent officer who has written hundreds of tickets possibly mistake 12:30 PM for 12:30 AM? I am actually intrigued by this error. If he was in such a hurry that he made a mistake like that, perhaps it cast doubt upon his testing procedure.

Regarding me wanting the judge and crown to hear what the officer did. All I have to say is, that if enough people bring this officer to trial claiming the same thing, maybe sooner or later someone will figure him out. If he would have charged me with 59 in a 50....or 55 in a 50, I would have plead guilty but sometimes it has to be about the truth. And I will have no problem cross examining him. I am looking forward to it. I only hope I get the chance.

Regarding the point about admitting to speeding resulting in a conviction. If, during the course of my testimony, I admit to 59 in a 50 will I be convicted of 72 in a 50? That doesn't seem quite right. Seems like I should be guilty or innocent of the charge at hand, which is 72 in a 50. At the very least, it seems reasonable that the judge may find me guilty of the lesser charge....I am fine with that. Even though I rejected that plea offer twice, I would take it after I've told my story. I absolutely was not traveling 72 when he saw me and will not admit to that. The officer intentionally charged me with the higher number believing that I would plead it down to 64 and he would still get a conviction.

Thanks again to all that have replied

Your testimony that you were speeding will still get you the 72 in a 50 charge unless you can bring reasonable doubt to the officers testimony.

The JP will say you admitted to speeding and the officer also said you were speeding and the radar evidence at 72 is stronger than your evidence of saying you were going 59.

I can not emphasize enough that you should NOT get on the witness and should NOT testify. Just my opinion, but don't do it! Learn the cross-examine techniques and challenge officer that way.

At roadside, I told the officer that I was doing 59 when he first saw me crest the hill. Is my roadside statement admissable?

Not without a voire dire. So if officer starts to say anything that you said you can object and say "I object. Statements are not admissable unless proven voluntary." And then if the prosecutor really wants to get it in (which usually they don't) then he will ask for a voire dire and you will have a mini trial to decide if you volunteered the statement or not. If JP agrees that what you said was voluntary then it will be admissable.

They will typically have enough evidence against you that they don't need your statement anyways.

jsherk wrote:If the officer is lying, I do not see any way you can prove he lied. Your only chance is to maybe bring reasonable doubt to the device reading. Do notes say he tested it both before AND after your stop.

I was pulled over at 12:42 pm

Radar evidence rec'd from crown as part of disclosure states that "the radar was tested at 0930 hrs prior to the commencement of my enforcement action and at 1306 hrs upon the completion of my enforcement activity"

Officer's notes state "1306 - tested radar"

So the officers notes themselves do not show that it was tested at 9:30 prior to commencement of enforcement action? Only in the summary from the prosecutor?

If the officer has told that to the prosecutor but it is not in his notes then that is one area to go after.

Also the fact that he says "tested radar" but does not say the outcome of the test (pass/fail) is another area to go after.

Not guaranteed wins but part of bringing reasonable doubt.

jsherk wrote:So the officers notes themselves do not show that it was tested at 9:30 prior to commencement of enforcement action? Only in the summary from the prosecutor?

I can't be sure what's in officer's notes prior to the time of my ticket. All notes prior to the time of my stop at 12:42 pm have been redacted or were not provided. Notes after the stop say only "1306 - tested radar" all notes after 1306 are redacted/not provided.

jsherk wrote:Also the fact that he says "tested radar" but does not say the outcome of the test (pass/fail) is another area to go after..

Radar evidence states that unit was (paraphrasing here) tested IAW mfg guidlelines, LED test, internal test and operational field test...in mobile mode the car speed was constant 60 kph and matched the speedometer.....the unit "was found to be in order and working properly."

Well it's important to figure out what we are looking at. Can you scan and post the officers notes as well as this other document with the 9:30 test time and the "was founf to be in order and working properly".

If the officer ends up testifying something that is not in their notes, then that is good reason for reasonable doubt. So need to figure out what this other document is. Sometimes they add additional information to a NOTES section of the ticket which they wrote at the same time they did the entry in their notes, and this would still be considered their notes. But if they are just saying all that information to the prosecutor, then you have a good issue to look into.