OHTA.ca

Hi. I have been researching the law when it comes to introducing evidence to court. I have requested disclosure and am making a Charter challenge on the grounds that incomplete disclosure. In my research, I have discovered a book on radar use in North America, it is essentially the radar bible. Now, knowing what I know now since reading this book, I am certain that the officer did not conduct proper procedure when he conducted his stop.

My objective is to get his training manual, or his training procedure introduced as relevant evidence that Stintchombe requires. I was going to argue that in light of the information I've learned, can I admit this book as evidence, or the training of the officer? How do I go about doing that? How do I convince a judge that this information is relevant to my case?

You won't get any of that. There have been several court rulings that state that the radar manual, officer's training records, testing procedure, etc., do not have to be disclosed. I've heard that the officer's notes no longer even need to show the time at which he/she did his/her start- and end-of-shift tests; all that's required now is that the officer note that he or she performed the tests. The court will take the officer's testimony that he or she has been trained in the use of the device as sufficient.

If you want to cross examine the officer based on what you learned in the book and on what he or she did and how, go ahead. If something sounds "off" in the officer's testimony and you want to challenge him or her on it, knock your socks off. But the prosecutor or JP may object to certain questions as irrelevant in Ontario.

What have you actually received for disclosure? You're entitled to a copy of the officer's notes and the testing procedure of the speed measuring device used. A copy of the entire manual cannot be disclosed without a court order as it is a "third party record" (neither owned by the police or the Crown). That would require an O'Connor application (R v O'Connor - Supreme Court Decision).

You need to be careful referring to literature from "North America". Speed enforcement requirements vary drastically from the USA to Canada (and even within provinces). In order to submit evidence directly from the book you'd need the author present to testify. You can however, ask the officer in cross examination about certain things you may have gained from reading the book. I wouldn't even bring up the fact that you read a book.

What makes you so certain the officer did not conduct "proper procedure" as you referred to?

As per this case: https://www.canlii.org/en/on/onsc/doc/2 ... sc436.html

There is no longer a requirement to provide any portion of the manual.

I have done the calculations, and there is no way that the officer could have properly conducted procedures in the time span that he had. It was confirmed by the book "The Law on Speeding and Speed Detection Devices

Book by A. Shakoor Manraj and Paul Douglas Haines", and I want to be able to get this book introduced as evidence, or barring that, compel the judge to accept my request for the officer's training procedure or the actual trainer as a witness.

From the research that I have looked into, by introducing a Charter Challenge on the topic, I'm hoping that, with the addition of case law, the judge will have no choice but to see the probative value of the evidence. Does that make any sense?

I reveiwed that case. It seems as though the manual is still allowed, you just have to petition the police for it.

Disclosure is the responsibility of the prosecutor. The police wont give you the manual.

That book is not used in training officers on the use of radar in Ontario. Most officers have probably never even heard of it. Depending on its publication date, it may even be very outdated.

I don't understand? Why wouldn't one just use an O'Connor application and compel the police to hand it over? They simply aren't allowed to use the radar against the recommended use by the manufacturer.

Read the link provided by Decatur. It speaks specifically to O'Connor.

Yes. I did read it. It appears to me as though the manual is still available, it just has to be retrieved from the police. Which is an O'Connor application. I don't see where there is a refusal to make the manual available. It's just seems to be a jumping of more hoops. Correct me if I'm wrong.

emmeyekayeee wrote: ↑Tue Apr 10, 2018 5:42 pm

I reveiwed that case. It seems as though the manual is still allowed, you just have to petition the police for it.

[34] The position taken by the respondent is that any ruling that results in agents being required to commence an O’Connor application every time the testing procedure is sought would impair access to justice and clog up the courts with needless third party record applications, especially given the fact that the charge of speeding is the most common charge laid by the YRP. This submission disregards the fact that, in this region and others throughout the province, as is apparent from the case law, the disclosure sought is readily available for review at the prosecutor’s office. There is no impediment to an accused making full answer and defence. From a practical point of view, an O’Connor application is not needed in this region. If more significant portions of the manual are sought, then it may be appropriate to bring an O’Connor application so that the court can consider the grounds upon which production is sought from the YRP as a third party, and the relevance of the material to an issue at trial.

[35] Also from a practical point of view, the YRP is not likely to change its practice of providing a copy of the manual to the prosecutor’s office, so as not to be inundated with O’Connor applications solely to obtain the portions pertaining to the testing procedures.

I read that as the fact that you get it from the Crown, not the police.

Decatur's case law citing doesn't correlate with his/her implication that the manual isn't available. It seems to me that if I, as a new litigant, wanted to use the manual as evidence, I would have no problem getting the manual. The way I read Decatur's message was that the manual would no longer be able to be used in a trial.

So, I just got my disclosure package. I got most of the stuff that most of you thought I wouldn't get...which is pretty cool.

emmeyekayeee wrote: ↑Sat Aug 25, 2018 11:15 pm

So, I just got my disclosure package. I got most of the stuff that most of you thought I wouldn't get...which is pretty cool.

Kool, what did you end up getting / asked for?

Thanks for sharing!

I got the operator manual, technical manual, tuning forks certificate, roadside enclosure manual, the photo before and after, technical acceptance certificate, the police training PowerPoint presentation, typewritten police officer's notes, ticket producing procedure.

The expert teleconference, leave to have officers testify, judicial notice of radar resource book are going to be decided at trial.

I was denied my Section 8 motion.