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Ineligible disclosure

SLaP said:
Did the JP adjourn the case prior to or after the closing submissions?
If prior to the closing submissions, then during your closing submissions you will want to point out that the officer did not do the tests properly. Make sure to have three copies of the manual page that explains the proper testing procedure.

http://www.ontariocourts.ca/ocj/sel...efendants-in-provincial-offences-cases/guide/
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He'll also want to have a copy of any relevant case law, that supports his position that the testing was improperly done. Remember; JPs don't necessarily know the law and cases specific to a decision. You need to present them with the evidence.

Clue: OP, you're looking for copies of R. v. Bourne (2001) and R. v. Sourlis (1998 ). Sourlis may have been superseded, however, by the advent of internal testing technology in the gun specified in this case.
 
iFly55 said:
This is the only board where people have shared successful experiences of getting their charges stayed due to improper disclosure; i can understand it getting stayed because the new adjournment dates could trigger an 11b.

But improper disclosure by itself is not worthy of a S.24 Charter Stay; the remedy is an easy & simple one: the defendant gets proper disclosure.

The moment you say, "i'm ready to proceed" all pre-trial motions and conflicts are thrown out the window.

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Regarding the radar detector test, did you specifically ask the officer whether he performed the 'road test'? Did you ask him about the 'small stuff' he missed under the self test?

Did he respond to the effect that he did not perform them at all? Or is his silence being used against him?

Was the manual for radar detector submitted as an exhibit for the JP to examine?

In your closing submissions, what did you say?
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I got proper disclosure, but the 20 minutes I was given was not enough to prepare a defense.

I asked him to describe the calibration procedure. I am far from nitpicking on small stuff. He omitted half of the calibration procedure. I did not inquire about it, in case he knew the procedure but he forgot to mention it.

Like I said after I questioned the cop, the JP adjourned the case, before the final submissions. I will submit the manual I got in my disclosure an exhibit.
 
Rob MacLennan said:
He'll also want to have a copy of any relevant case law, that supports his position that the testing was improperly done. Remember; JPs don't necessarily know the law and cases specific to a decision. You need to present them with the evidence.

Clue: OP, you're looking for copies of R. v. Bourne (2001) and R. v. Sourlis (1998 ). Sourlis may have been superseded, however, by the advent of internal testing technology in the gun specified in this case.
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You're correct both Bourne & Sourlis have been superceded, they discuss how laser readings should be verified with radar detectors.

R. v. Bourne [2001] O.J. No. 2869

Appeal by the accused driver from her conviction for speeding. Her speed had been measured by an L.T.I. 20-20 Marksman Laser Speed Detection Device. She argued that the Crown's evidence was insufficient to establish the accuracy and reliability of the device. The device had been operated by a properly qualified laser operator. Prior to its use, the device had been tested in accordance with the manufacturer's instructions. However, the operator did not perform an independent test by comparing the results of the device with the results of a conventional radar device.

HELD: Appeal allowed. At this point in time, it was essential that there be scientific and technological evidence presented to the trial justice that the device was tested within some reasonable period of time against an independent and acceptable conventional speed measuring instrument, such as a radar device, and that the device was found to be accurate.

R. v. Sourlis [1998] O.J. No. 6274

Appeal by the accused Sourlis from his conviction for speeding. The evidence consisted of results obtained with a laser LTI 20-20. At issue was whether the officer was required to produce independent proof of the technology.

HELD: Appeal allowed. Some independent method of testing the technology, namely testing by radar, was paramount to ensuring the accuracy of the device. Such testing could be done within 30 days prior to and after the charge was laid. In this instance, there was no comparison test done and for that reason the charge was dismissed.
 
iFly55 said:
You're correct both Bourne & Sourlis have been superceded, they discuss how laser readings should be verified with radar detectors.

R. v. Bourne [2001] O.J. No. 2869

Appeal by the accused driver from her conviction for speeding. Her speed had been measured by an L.T.I. 20-20 Marksman Laser Speed Detection Device. She argued that the Crown's evidence was insufficient to establish the accuracy and reliability of the device. The device had been operated by a properly qualified laser operator. Prior to its use, the device had been tested in accordance with the manufacturer's instructions. However, the operator did not perform an independent test by comparing the results of the device with the results of a conventional radar device.

HELD: Appeal allowed. At this point in time, it was essential that there be scientific and technological evidence presented to the trial justice that the device was tested within some reasonable period of time against an independent and acceptable conventional speed measuring instrument, such as a radar device, and that the device was found to be accurate.

R. v. Sourlis [1998] O.J. No. 6274

Appeal by the accused Sourlis from his conviction for speeding. The evidence consisted of results obtained with a laser LTI 20-20. At issue was whether the officer was required to produce independent proof of the technology.

HELD: Appeal allowed. Some independent method of testing the technology, namely testing by radar, was paramount to ensuring the accuracy of the device. Such testing could be done within 30 days prior to and after the charge was laid. In this instance, there was no comparison test done and for that reason the charge was dismissed.
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In my case the radar was was NOT tested in accordance with the manufacturer's instructions.


Thanks for the case Rob but it seems outdated.

[18] At one time some judges in the Ontario Court of Justice treated laser devices as “novel technology” and therefore concluded that, in addition to the manufacturer’s recommended tests the laser device must be tested independently through a “comparison test” with an older technology, a radar device. This was the conclusion in R. v. Wong [2000] O.J. No. 1442 and R. v. Bourne [2001] O.J. No. 2869 where Justices Terry O’Hara and James Karswick decided that the prosecution needed to provide scientific evidence of the independent verification of the accuracy of the laser device. A notable dissent from this view was articulated by Justice Gregory Pockele in R. v. Mukasa; R. v. Spinosa; R. v. O’Brien [2001] O.J. No. 262, where Justice Pockele concluded that laser speed detection was no longer a novel form of technology and did not need to be tested scientifically against older and proven technology. In Bourne, Justice Karswick specifically relied on the decision of Justice Kathryn Feldman of the Ontario Court of Appeal in R. v. Vancrey [2000] O.J. No. 3033 in concluding that there needed to be evidence of independent “comparison” testing.
[19] In a subsequent decision which reviewed the earlier cases, R. v. Le [2002] O.J. No. 894, Justice David Fairgrieve of this court concluded that Justice Pockele’s view was the correct one, and ruled that it was no longer necessary for the prosecution to lead evidence of “comparison” testing with an accurate radar unit or other device. In so doing, Justice Fairgrieve specifically addressed the reasoning of Madam Justice Feldman in Vancrey and in his view the decision in Vancrey does not require testing against older technology, as Justice Karswick concluded. On this point I prefer Justice Fairgrieve’s interpretation to that of Justice Karswick.
[20] Justice Fairgrieve’s decision is that, because of the consistent and regular use of the laser speed technology, we have now reached a time in Ontario and elsewhere in Canada that trial judges may take judicial notice of the fact that the laser speed device is settled technology and that the manufacturer’s recommended procedures to test the accuracy of the machine are sufficient. Justice Fairgrieve’s view has been followed by at least three other judges in this court in reported cases, Justice Marion Lane in R. v. Odusanya [2002] O.J. No. 3209, Justice Joseph Kenkel in R. v. Sepiashvili [2003] O.J. No. 3996 and Justice Jeff Casey in R. v. Khalatbari [2004] O. J. No. 4167.
[21] In my view it can now be stated with certainty that the laser technology is no longer “novel” and may be received in evidence in Ontario without expert evidence, where the laser operator can testify that he has been trained in the use of the device and has followed the manufacturer’s recommended testing procedures both before and after using the device.
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Comparison testing is not required but testing by the manufacturer's specified methods, at the specified times, is ;)

Remember, even losing cases set precedent for winning later cases. The decisions still state what SHOULD be done.
 
http://www.canlii.org/en/on/oncj/doc/2006/2006oncj318/2006oncj318.html

Considering

[21] In my view it can now be stated with certainty that the laser technology is no longer “novel” and may be received in evidence in Ontario without expert evidence, where the laser operator can testify that he has been trained in the use of the device and has followed the manufacturer’s recommended testing procedures both before and after using the device.
[22] In his reasons, at page 21 of the transcript, after finding as a fact that the officer had properly tested the machine on the day of its use and therefore had a basis in fact to testify that it was working properly, Justice Robinson stated:
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I take it this is exactly what I need, but these cases are for LIDAR. Are they be relevant(to the JP)?
 
It's similar technology, and so should be relevant. If you keep digging I think that you'll find other cases that reference that decision, and involve RADAR. Check the other cases that are referenced in that decision and, if you look at the top of the page you posted, you'll see a search for cases that reference that decision.
 
We have a lot of trials where the officer testifies to completing the manufacturer's test but fails to include the times he did the tests and whether they passed in his notes; therefore, resulting in not-guilty verdicts.

In your case, the officer fails to recite the manufacturer's tests in his testimony. This is very unique, because you're interpreting this omission as a sign that the tests were not completed at all.

Usually when test items are forgotten or stated incorrectly, the defence would ask the officer about those items. Even have the officer read those items from the manual aloud so that it is entered into the record in an unbiased manner.

The courts may believe you used a strategic manoeuvre not to pursue your line of questioning, in the event the officer did in fact conduct those tests.

Ultimately, I personally just don't know where to put your decision... On the outside it looks good, but will the JP see through it?
daught said:
I asked him to describe the calibration procedure. I am far from nitpicking on small stuff. He omitted half of the calibration procedure. I did not inquire about it, in case he knew the procedure but he forgot to mention it.
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From a perspective POV, the decisions you'll see below if read in full... you'll see that the defence extensively questioned the officer on missing/improper test criterion.

Some cases that may work against you:

R. v. Volfson [2009] O.J. No. 1978
20 Courts should look to the practical effect of the requirements set out by the manufacturer. Practically they operate as a scheme or a checklist to ensure the accuracy and reliability of the radar device. They are meant to be complied with as part of this scheme or checklist. Slavish adherence to these directions is not required if it does not practically affect the accuracy or reliability of the results obtained' by the radar device. To hold otherwise could and would result in absurd findings.​

Officers may not be expected to recall items from the test by memory, some courts even require the officer to have the operating manual in front of them prior to answering questions.

R. v. Anghel [2010] O.J. No. 5813
37 In my view, the court should not consider the radar device to be unreliable just because an officer does not recite step-by-step a procedure that takes only seconds and is largely an automatic sequence for an experienced radar operator.​

R. v. DePoe [2012] O.J. No. 2751
26 R. v. Anghel, [2010] O.J. No. 5813, 2010 ONCJ 652, referring to R. v. James Troy says a radar manual can be produced to a witness without the necessity for the author of the manual to be present for cross-examination by the Crown. Justice Wake: "I rule that manuals and written material ought to have been placed before Const. O'Connor in cross-examination as a means of testing the weight to be given to his expertise and qualifications as an operator of a radar device."​

R. v. Pappas [2005] O.J. No. 764
1 R.A. MINARD J. (orally):— It's not a condition - precedent to a finding of guilt that an officer followed to the letter recommended testing procedures, with respect to laser devices. I've not been provided with any case that makes that finding.

2 I've reviewed the judge's reasons. The officer's attention was drawn to this vehicle because of what he visually observed was a high rate of speed that he then, in his own mind, confirmed with the application of the laser device to the vehicle indicating a speed of 121 in an 80, and he has given and I have reviewed his evidence with respect to the setup that he did and the testing that he did on the instrument at 10:40 a.m. that day which, it's true, did not follow to the letter what is recommended by the manufacturer, but that doesn't necessarily, in law, automatically give a defence to the charge.

3 It's an issue of whether or not there is a reasonable body of evidence that would permit a trier of fact to conclude that the offence has been committed to the exclusion of a reasonable doubt.

4 Here the officer was a highly experienced officer in the application of this instrument and applied it - he got a reading that appeared to confirm his visual observations, and the judge was satisfied - the trial judge was satisfied that the case had been met to the exclusion of the reasonable doubt. The accused is not obligated to testify. Here there was no other evidence to the contrary for which the trial judge could consider. So, if I were to accept your position, it would be that the Court begins with the presumption that the laser device is not operating properly, and it's up to the Crown to prove that it is. I don't believe that's the law.​


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Cases that may be favourable to you:


R. v. Niewiadomski [2004] O.J. No. 478
29 It can be assumed that the absence of full compliance with the testing and operational process should make the reading suspect. There would be no reason for the device manufacturer to set out specifications and directions if it mattered not whether these were complied with.​

R. v. Martin, [2008] O.J. No. 1803
23 Apart from stating that the device was set up correctly, Officer Zarrello provided no specific evidence to support that statement. He could not recall the manufacturer's specification in the manual, he agreed that he did not use the manufacturer's manual and only vaguely spoke of some elements of the testing he performed. In short, Officer Zarrello's evidence was more in the nature of his opinion, rather than any instructions that he followed from training or from a manual. It can be concluded that in the absence of full compliance with the testing and operation process of the "laser" device being complied with, the readings obtained by Officer Zarrello of the speed of the Appellant's vehicle are highly suspect.

24 The evidence of Officer Zarrello in totality should have raised a reasonable doubt in the mind of the learned Justice of the Peace. Officer Zarrello's lack of demonstrable training or qualifications, his faulty memory, his lack of notes or record keeping, his failure to refer to and use the manufacturer's manual, which he evidently had in the very box which contained the "laser" device that he used, his inability to recall the testing procedure, if any, that he performed on the "laser" device and his bald unsupported "opinion" that he simply would not have used the "laser" device if it were not working cause the court to conclude that it would be dangerous to rely upon the evidence of Officer Zarrello or to give his evidence any weight in these proceedings.​

R. v. Vancrey, [2000] O.J. No. 3033
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, together with the earlier verification of the accuracy of the laser unit for measuring the velocity of moving vehicles on a highway, when compared with an accurate radar unit by a qualified laser and radar operator.

22 In my view, the position of the Crown is correct. The court received evidence that the officer who operated the laser device was trained and experienced and that he tested the device both before and after its use in accordance with the manufacturer's instructions to ensure that it was operating properly on the date in question. The court also received evidence of the accuracy of the device for measuring the speed of vehicles on a highway by comparing its readings with those of an accurate radar unit. The radar test provides the independent guarantee of the accuracy of the particular laser unit to measure the speed of a moving vehicle.​

R. v. Kololgi, [2009] O.J. No. 5742
17 It is the Respondent's position that the manufacturer's directions regarding testing the accuracy of the device were complied with, and that the officer ensured that the device was in proper working order. The Respondent submits, however, that usage of the device is another matter and is not subject to the same requirements.

18 In short, the Respondent submits that the police are not legally required to follow all of these instructions.

19 The Respondent relies on the decision of R. v. Volfson, [2009] O.J. No. 1978 where Justice Klein of this Court dealt with the issue of how closely police should follow manufacturer's instructions. The Court in that case held that slavish adherence to the manufacturer's directions is not required and these directions must be examined in a purposeful and practical fashion. Justin Klein then went on to disagree with Justice Schnall's comments that there would be no reason for the manufacturer to set out directions if it mattered not that they were followed. I respectfully disagree with Justice Klein's decision in this matter. I agree that the direction must be read in a purposeful and practical fashion. However, I think if this is done the only logical result would be to conclude that the requirements must be complied with in order to establish the reliability and accuracy of a radar device reading beyond a reasonable doubt.

20 The Respondent submits that the police may omit certain requirements as set out by the manufacturer, when application of those requirements is redundant on a purposeful and practical approach. In this regard the Respondent relies on Constable Santos evidence at trial wherein he testified that the manufacturer's direction should be followed to ensure that the device is in proper working order, however, the police can set there own policies regarding the usage of the equipment.

21 I am in agreement with Justice Schall's comments and with the decisions rendered by Justice Wright and Justice Griffin in the case of Martin and Cormier respectively. The provision in the Manual I find must be complied with by an officer if there is to be enforcement. The officer cannot pick and choose which requirements he will adhere to and which requirements he will ignore. If this were so, there would be an uneven application of the law on this issue, subject to the individual discretion of an officer. There is a reason for the inclusion of all of these components in the manual. A conclusion as to the accuracy and reliability of the device is founded on compliance with these requirements. This is particularly essential in a case such as this where the entire prosecution is founded on the numerical reading obtained by the officer through the operation of the device. Compliance with the manufacturer's requirement for enforcement is an essential element because only with strict compliance to the manufacturers mandatory specifications can the Court be assured of the reliability and the accuracy of reading obtained through operation of the device beyond a reasonable doubt.

22 In conclusion then, as confirmed by the Court of Appeal in the Martin case, the onus is on the Prosecution to establish this offence beyond a reasonable doubt. Keeping in mind this burden of proof, together with Constable Santos evidence of non-compliance with two of the required components of the User Manual, I have concluded that a reasonable doubt should have been raised in the mind of the Justice of the Peace as to the accuracy and reliability of the radar reading obtained by the officer and relied on by the Prosecution as the pivotal evidence against the Appellant.​

R. v. Puncher [2007] O.J. No. 2510
12 One of the keys to success for the Crown then, is that the radar device is tested in 'accordance with the manufacturer's instructions'. For an officer to test the device according to the manufacturer's instructions, it is logical that the officer must know what those instructions are. However, as noted above, Officer Gray was not sure as to the speed the manufacturer required that the road test be done.

13 I find that the officer's lack of knowledge as to what testing speed is required to meet the manufacturer's specifications for the road test is fatal to the prosecution's case. The lack of specific evidence on the required speed raises a reasonable doubt as to whether the radar device was operating accurately when Officer Gray locked in the speed of the motorcycle.​

R. v. Schlesinger [2007] O.J. No. 2365
18 As noted in both Niewadomski and Roshani-Kalkhoran, supra, the testing of a high tech electronic laser device involves four separate tests. These tests require strict adherence to the manufacturer's instructions. They are decidedly not trivial nor can they be done by way of cursory examination, in my view. It takes a conscious and explicit effort to follow the proper procedures. A laser's internal workings are not self-evident to an observer.

20 The standards that would satisfy this court are:
a) Evidence that the laser tests had been done by a qualified officer according to the manufacturer's specifications and that the device passed the tests and
b) Evidence of a specific time when the tests were done both before and after a speed enforcement stop.​
 
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When I present these cases, do I have to bring the whole trial, or can I bring paragraphs like you posted here?
 
daught said:
When I present these cases, do I have to bring the whole trial, or can I bring paragraphs like you posted here?
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the entire trial, you yourself can print the relevant pages for yourself

but the prosecutor and the justice of peace would require the complete version

if you need help getting any of these cases, i can pm them to you
 
I'm screwed. My trial was on the 23. I thought it was supposed to be today. I noted it down right away, during my last trial. I must have misunderstood. Do I have a chance to re-open it from where I am standing?
 
daught said:
Would they actually re-open the case simply because I misunderstood the date?
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no, unless the courts read the incorrect date to you; this might require expensive transcripts from your last trial date, and ofc no guarantee that they screwed up reading the date

generally to re-open the case it would require something out of your control happening on your trial date: car accident, family/friend death, child hospitalized (sick), etc...

this is a tricky situation, because in your absence and lack of your final submissions there is a very good chance you were convicted guilty; i don't know what they're going to do for you, whether you're going to have a completely new trial (most likely) or they're going to use the transcript from your previous trial and just listen to your final submissions (doubtful).
 
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