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Dec.18/2010 3:06pm

Yep ..... " Highway 407 City of Burlington " got a ticket 41 over.

Got home asked for disclosure and speedy trial time( Both ideas courtesy of Traffic Combat..Thanks) First disclosure received "Greek " Officers' notes with no mention of type/model of radar used and an Operating manual from MarksmenLTI20-20 4th edition 1994.

-Second disclosure requested Typed officers notes

-Type, model, purchase date of radar used

-Maintenance records of above

Trial date September 9, 2011

Typed notes state

"Passing traffic in 12 and 11

Nothing in front 13

141km/hr at 449 metres

lser iti 202 #11151

6:28ok

17:30 ok

I filed a 4F triplicate to 1) Ontario and 2) Canadian Attorney Generals, 3) plus the Burlington courthouse,

via registered mail.

My 4F request............................

Offence: Speeding; PON#:1260 999 00 5495551A 00; Offence Date: December 18, 2010; Trial Date: September 9, 2011; Time: 1:30; Courtroom: #2 Burlington Court Room.

The following are the material facts giving rise to the constitutional question: On June 28, 2011 and July 29. 2011 the defendant requested disclosure. The defendant specifically requested a copy of the radar manual and type(Model) of radar used. An obsolete ,no longer in production, manual was provided for Marksman LTI20-20 4th edition dated 1994. Disclosure police notes stated a Laser iti 202 #011151 was used.

The following is the legal basis for the constitutional question: The prosecutor has a legal duty to disclose information that is useful to the defence in order to know the evidence against them, prepare for trial and make full answer to the charge. (R. v. Stinchcombe, 1991 CanLII 45 (S.C.C.); R. v. O'Connor, 1995 CanLII 51 (S.C.C.)). The prosecutor has failed to meet its disclosure obligation and in doing so has violated the defendant's section 7 Charter right. The defendant is requesting a stay of proceedings pursuant to Section 24(1) of the Charter.

Since the beginning of radar use in Ontario and for the last 50 years (R. v. Grainger (1958), 120 C.C.C. 321 (Ont. C.A.)) in order to obtain a conviction for a speeding charge based on radar, the Crown must show that

* (1)the officer was properly trained to setup and operate a speed measuring device and

* (2) that the device was working properly.

No information has been disclosed to me about the officer's training or the working order of the radar unit.

I suspect the Crown will attempt to establish points 1 & 2 at trial without disclosing this information to me in advance.

The Crown has a duty to disclose information that is useful to the defence in order to know the evidence against them, prepare for trial and make full answer to the charge. (R. v. Stinchcombe, 1991 CanLII 45 (S.C.C.); R. v. O'Connor, 1995 CanLII 51 (S.C.C.)).

The Crown has failed to meet its disclosure obligation and in doing so has violated my section 7 Charter right.

I respectfully request an order allowing the application and granting a stay of proceedings pursuant to Section 24(1) of the Charter.

So what do you think?

Any loose ends? Gotchas?

Am I going to be visiting the "'Crowbar Motel" after this trial?

Thanks in Advance

Joe Penoso

Sounds like you got the manual for the device that the officer was using, so I'm not sure what the problem is there. Other than the fact that it's old, I'm assuming you don't actually have any information that it's NOT the device that the officer was using...

Furthermore, you normally don't bring a s. 7 application to stay the proceedings because you didn't get all the disclosure you wanted. Especially since your disclosure requests were only on June 28 and July 29 of this year and the crown has apparently responded to both. Have you made further requests? If not, you should. There is often a back and forth like this with respect to disclosure. It doesn't necessarily give rise to a charter application for a stay. Have you been denied further disclosure? If so then you should be first be bringing a Stinchcombe application to compel disclosure, not an application for a stay.

Finally, with respect to officer's training records, you normally don't get anything like that, nor do you need to, since in Ontario the case law states that an officer does NOT have to be qualified in any particular manner to use the device. Certainly you can attack their actual skill and ability in using the device at trial, but this line of case law effectively renders training records unnecessary.

Other than that, well don't on you case research, you're obviously familiar with the seminal cases, which is more than can be said for many people.

Finally, with respect to officer's training records, you normally don't get anything like that, nor do you need to, since in Ontario the case law states that an officer does NOT have to be qualified in any particular manner to use the device. Certainly you can attack their actual skill and ability in using the device at trial, but this line of case law effectively renders training records unnecessary.

I'm not sure what was said above.

You suggesting more disclosure requests?

You really think the radar unit was a Marksmen 20-20 They are out of production long ago. no date of manufacture was provided or service records.

Thanks

Joe Penoso

Just one point of clarification, Marksmen 20-20 is a laser (or lidar) device, not radar, and they are still in use. Quite simply, newer devices can take some time to be approved for use, and since the devices are expensive police services will use them until they fall apart.

-Considering the 1994 date of the lasers owners manual,,,wouldn't requesting the Lasers date of manufacture to confirm it's also a 1994 be reasonable?

-Asking for maintenance/repair history would also be reasonable?

-Pushing a button and aiming at a stationary object would show it's working but it wouldn't prove its calibrated correctly. Same as standing on a bathroom scale would show if it works but it wouldn't show accurracy .

-Supermarket weigh scales and gas station pumps are put through the same tests aren't lasers?

PS the fine was $246 and total $301 is that a correct amount?

Thanks

Joe

joepenoso wrote:-Considering the 1994 date of the lasers owners manual,,,wouldn't requesting the Lasers date of manufacture to confirm it's also a 1994 be reasonable?

I would say no. As long as the manual provided is the same as for the model used, date of manufacture is irrelevant.

joepenoso wrote:Pushing a button and aiming at a stationary object would show it's working but it wouldn't prove its calibrated correctly. Same as standing on a bathroom scale would show if it works but it wouldn't show accurracy .

I would disagree. Part of the testing process with lasers is measuring a fixed distance, which is confirmed afterwards with a tape measure, etc. There is user verification of the results, it's not all internal testing/verification like some radar units. So going by your example it would be like placing weights on bathroom scale and seeing if the reading matches the known weight.

In my third disclosure request

I asked for the full operaters manual of radar( Received 4 pages)

Date of manufacture

Service history

Officers trainig regarding the radar.

OPP official policies regarding speeding

as was requested previously

they denied request citing

R V.Rashwan(2009)

R. v. McLaughlin(2006)

So any advice for me ..maybe book a cell next to Conrad Black?

Thanks in Advance

Joe

TTT

Thanks in Advance

Joe Penoso

Anybody.... I have to go next Friday and still haven't received disclosure

Thanks

joepenoso

I went yesterday hoping to get stay for a 4F because my last request for disclosure was ignored. At trial my 4F was denied. My disclosure request was denied.( I requested manufacturing date , maintenance history, police procedures for using radar.) I was told I had to go to trial and tried questioning but couldn't produce any results. I tried to get the fine reduced ....no luck. I got hit with a $ 352.00 fine with 90 days to pay it.

It was a good effort with little to show.

joepenoso