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I Won !!! :)

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Leviticus

Member
Yippeeeeeeeee !!!!!!!!!!!!!!!!
Just a quick note for now to all my good friends here;

seniorjudge
Poohmantbb
Litigation
Curt581...

I just wished you guys were in court today to witness the dismissal.

More details to follow...
 


seniorjudge

Senior Member
Leviticus said:
Yippeeeeeeeee !!!!!!!!!!!!!!!!
Just a quick note for now to all my good friends here;

seniorjudge
Poohmantbb
Litigation
Curt581...

I just wished you guys were in court today to witness the dismissal.

More details to follow...
Your certificate is in the mail....:D
 

Leviticus

Member
seniorjudge said:
Your certificate is in the mail....:D
Thanks, that's so kind of you. :)

It was a hard-fought battle, both out of court preparing, and in court.
The prosecutor was the only lawyer in court and so he obviously knew his 'law stuff' better than anyone else there. He raised many objections, several on 'submissions' that I was apparently making during my testimony, but didn't know about.

The nail-biter came at the end when the Justice of Peace went through the important details of the case starting with the prosecution's side. He had a way of going through item by item where it sounded like it was all over for me, then he threw in something positive for my side, and on and on he went for 5-10 minutes.
The trial was adjourned for lunch and took approx. 1.25 hrs. in total.
 

sukharev

Member
Congratulations, well deserved and hard fought win! Please, do tell us what exactly tipped the balance in your direction.

Indeed, Yippeeeeeeeee !!!!!!!!!!!!!!!! :)
 

Leviticus

Member
sukharev said:
Congratulations, well deserved and hard fought win! Please, do tell us what exactly tipped the balance in your direction.

Indeed, Yippeeeeeeeee !!!!!!!!!!!!!!!! :)
Thanks very much Sukharev, for your support in this group and “offline” as well. I really appreciate it.

I’m going to be savoring my victory, so I will let a little bit out with each post here.

The prosecution’s case went pretty much to the tee as I had expected.
I was a little afraid that the officer would mention a different street/location than what was written on the ticket. Had he done so, it would have been pretty much game over for me.
But he stuck to the information he wrote on the ticket, thankfully.

I scored pretty well in my cross-examination of the officer. I got him to admit many things that he couldn’t recall, despite his assertion that he had an ‘independent recollection’ of the event.
The key in my cross was that I didn’t touch on my main arsenal for the case.

I took the stand and was quickly subjected to a series of objections by the prosecutor.
Apparently I was making ‘submissions’. I didn’t get more than a few minutes into my testimony when the prosecutor suggested we break for lunch (at 1:00 p.m.)

I can’t say for sure what ultimately tipped the balance in my favor but one item where I scored big-time, was with the one and only case law that I cited. The facts were essentially the same as in our case. I broke down the case law into its four essential parts, going through each, one by one, making sure everyone could see the parallels.

Much more detail on the prosecution’s case, my cross, my testimony and pros’s cross and summary statements will be coming.
 

Leviticus

Member
I’m sure you’re going to enjoy the unfolding of this case, as it was far from conventional.
I must say that I’m greatly relieved that it is finally over. I was quite emotionally and physically drained by the end of the trial. I still can’t believe that I actually won.
Going into the trial I was giving myself a 30-50% chance of winning. And given that I had not seen one successful dismissal in the 10+ cases argued by defendants the times I was in court, my self-assigned odds were probably a bit unrealistic.

So I will start at the very beginning, with the offence notice.
You will see right away that the alleged offence took place in Ontario, Canada.
I must confess now that I’m a Canadian, but my father, stepmother and two younger brothers are Americans (does that count for anything? :) ).

Offence no. xxxxxxxxxxx
Certificate of Offence:
I _(Officer)___ believe and certify that on the day of Sept. 19, 2005,
Time: 12:21 p.m.
Name: Defendant
Address: xxxxxxx
Driver’s Lic.: xxxxxxxx
Birthdate: xxxxxxxxx
Motor Vehicle involved: Yes
At: S/B Woolwich St.
Municipality: Guelph
Did commit the offence of: Speeding, 92 km/hr. in a 70 km./hr. zone
Contrary to: Highway Traffic Act
Section: 128

Plate no.: xxxxxxx
Year: 07
Prov: ON
Make: Toyota
Collision involved: N
Witnesses: N
And I further certify that I served an offence notice personally upon the person charged, on the offence date.
Signature of issuing Provincial Offences Officer: xxxxxxxxxxx
Officer no.: xxxx
Platoon: xxx
Unit: xxxx
Set fine: $82.50
Total payable:107.50 (includes costs and applicable victim fine surcharge)


When I first received the notice I just left it be for a few days, not studying it closely.
Then I took a closer look to see if anything might stand out. Something did. The location of the alleged offence. The alleged offence took place just blocks from where I live on a major roadway. The name of the road given for the location didn’t seem right to me. Despite having lived here for about eight years now, I never paid close attention to where Woolwich St. actually ended. I had thought that it ended at an intersection approximately .25 mile to the south.

With great anticipation I made a trip to City Hall to find out for sure. Much to my dismay, I learned that the street did in fact extend beyond the intersection approx. .25 mile, at which point its name changed to King’s Hwy. 6.
So much for that argument…..
 

Leviticus

Member
seniorjudge said:
Canadian, eh?! No wonder the trial took so long....
Yeah! We're a bit slow up here. :)
Going in, I was afraid that I'd be cut short in my case. You know, time is money etc. etc. Few cases that I'd seen lasted much more than half an hour, 20 minutes was average. I was hoping for at least half an hour, but the time went by really quickly (when we were in court). I'm glad I got the 1.25 hr. because it was certainly needed.
 

Leviticus

Member
I again left the ticket for a few more days, but realised that I’d have to act soon; I had 15 days to pay the set fine or mail in a request for trial, or otherwise face an automatic conviction.

Studying the ticket again, the only thing that still stuck out for me was the location.
Yes, the street did extend to the area where the officer was located, but not a heck of a lot further. The city’s planning department had a map indicating that the officer was situated on the very last property in the City of Guelph on Woolwich St. He was facing north and ticketing cars as they came south into the City.

He was located in an ideal spot to catch speeders. There is a bend in the road approximately 325 yards from where he was situated. As drivers came around the bend he would take a reading with his laser gun.

So now I knew the last property on Woolwich St. (the Guelph Curling Club), but didn’t know the distance from where the officer was located to the end of the property. I asked the Planning Department to check their maps to find the frontage distance of the Guelph Curling Club. They claimed they didn’t have it on record.

For the time being I just relied on my car’s odometer and took readings of approximately
150 m. from the end of the property to where the officer was located. So now I started to do some calculations. He clocked me at 92 km./hr. and I was at most, approx. 150 m away from him. Any further and I was no longer on Woolwich St. in the Municipality of Guelph. That meant that if I hadn’t put on my brakes I’d have flattened him in the roadway in about 5 seconds. I thought to myself, surely officers aren’t suicidal by nature and wouldn’t subject themselves to such a danger. Let’s say I was looking to the side of the road or to a passenger and wasn’t looking straight ahead and had not started to slow down at that point. I might actually have knocked him over, as he was standing in the middle of the road.

It didn’t make sense. Soon after that I made a request for discovery and everything changed.
 

Leviticus

Member
Around the time my discovery was ready for pick-up at the prosecution’s office or just before, I made an important discovery on my own, which would prove to be extremely important in the case.

Since it was so close to home, I was able to drive by the scene of the traffic charge at least twice a day and had the opportunity to study it from all different angles. One day I was looking at the signs, or rather, for the signs. I was charged for speeding in a 70 km./hr. zone on Woolwich St.. I couldn’t see a sign for 70 km./hr. though. At some point I drove along the entire street (several miles) just for fun, and there was not a single 70 km./hr. sign in either direction, on that street.

It was time to read the Ontario Highway Traffic Act very carefully.
I was charged under Section 128 which states:

Rate of speed

128. (1) No person shall drive a motor vehicle at a rate of speed greater than,

(a) 50 kilometres per hour on a highway within a local municipality or within a built-up area;

(b) despite clause (a), 80 kilometres per hour on a highway, not within a built-up area, that is within a local municipality … or a regulation is made under subsection (2) prescribing a different rate of speed;


So in other words, by default, the speed limit on local roads in all municipalities in the province of Ontario is 50 km./hr., and 80 km./hr on all highways unless posted otherwise.

Now on to Subsection (2):
Section 128, Subsection 2, gives a municipality the power to prescribe a maximum rate of speed of 60, 70, 80, 90 km/hr. etc., however, Subsection 11 states that this rate of speed does **not** become effective until the highway or portion thereof is signed in accordance with the Act.

So basically since there is no 70 km/hr sign on Woolwich St., I can't be charged with violating this speed limit. This was to become the first of my two key arguments.
 

Leviticus

Member
When I finally picked up the discovery papers about a month after receiving my ticket everything started to make a lot more sense. There were two sheets. The first sheet simply had a photocopy of the back side of the offence notice, which contained the officer’s notes. The second sheet was a routine laser test record. Here are the contents of each:

Officer's notes:
LSR (laser)
Grey Toyota S/B
P/L lane AP2BSP (parking lot lane, appeared to be speeding)
92/70 240 m
D/L (driver's licence)
insc (insurance?)
*Caution for seatbelt


Laser Test Record sheet:

UltraLyte LR100 LTI 20-20
Laser Speed Detection System #Uxxxxxxx

Date: Sept. 19/05 Weather: Sunny & Dry
Tested: 07:15 Tested: 16:00
Location: Victoria Rd. N. – St. Pat’s School N/
Operator: xxxxxxxx

The rest of the sheet provides a place to log the tickets for the day with headings such as:
Officer, Veh. Lic., Speed, Range, Time, Lane of Travel, and Veh. Type.

But the officer didn’t use it for that purpose. He just wrote in the two locations where he issued tickets for that day.


The 240m from the officer’s notes, immediately jumped off the sheet at me.
Now I understood that the laser reading had been taken before I had entered the City of Guelph.

I was very pleased to see that number but didn’t know quite yet how I was going to use it in my testimony.

I could now see two main arguments to use. Each one was quite strong by itself, but when you tried to put them together they didn’t fit at all.

I already mentioned the first argument; how can I be speeding in a 70 km/hr zone if there wasn’t a 70 km./hr zone?

The second argument was going to go like this; You testified that I was speeding on Woolwich St. in the Municipality of Guelph, but you also testified that your laser found me 240m away from you when your reading was taken. Two hundred forty meters away would place me on King's Hwy. 6 in another Municipality, the Municpality of Guelph-Eramosa Township.

And so I reasoned: if we are to trust that the officer's independent recollection and notes are correct, that I was driving on Woolwich St. in the Municipality of Guelph, then this would mean his laser equipment, which gave a reading of 240m, was faulty and cannot be relied upon as evidence.
 

Leviticus

Member
As you can see each argument by itself is pretty solid. But when you try to use both at the same time there are problems. How could I argue about there not being a 70 km./hr. sign on Woolwich St. and then introduce evidence that showed I wasn’t on Woolwich St. when the laser reading was taken?
I wrestled with this conundrum for quite some time.
In the end, with a bit of luck, I managed to find a case law that seemed to tie these two disparate elements together.

In any event, I reasoned that it would be better to go with both of these arguments instead of just relying on the one that I thought was stronger. This way the Justice of Peace could pick whichever of the two he found introduced the most reasonable doubt.

Before arriving at court I kept trying as hard as I could to find the exact distance from where the officer was located to the end of Woolwich St..
I also tried to learn as much about court procedure/terminology as possible. You’ll recall my posts to this forum on ‘independent recollection’, credible witnesses, and reasonable doubt. I needed to get my head around those terms for I knew they were important in court.

Although I didn’t manage to get the distance from where the officer was located to the end of Woolwich St. from a map or the Planning Department, I did figure out two other ways to come up with this info.

So now we’re about to enter the courtroom and begin the trial. Just before I do, I must tell you about one amusing thing that happened in the morning during the first court break. A fellow approached me in the hallway and asked if I had the opportunity to speak with the prosecutor yet (to see if a plea bargain could be reached). He was dressed in a plain winter jacket and seemed to be just a helper for the prosecution’s office. Later when we entered the courtroom and he took off his jacket, I could see his police uniform. I still couldn’t recognize him though. He turned out to be the officer who had given me my ticket! :)
 

Leviticus

Member
Well we are just about to start the trial. Before I do, I'd like to
mention a few words about the Justice of the Peace (a lay magistrate) and the prosecutor.

I had been to court three or four times prior to my trial to get a feel
for what I could expect at my trial and to learn any 'trade secrets' etc..
There are two courtrooms side-by-side so I was able to see about seven
different Justices of the Peace (JP), in action. Of the seven, the one who
presided in my case would have probably been my last choice, if I had to
choose my JP.
A nice guy, but very meticulous and 'by-the-book'. He seemed to be the
sharpest of the lot and acted from his head rather than his gut. In
retrospect, it turns out this was exactly the type of JP I needed for my case.

The prosecutor was very competent. He used a well-tested script in his
speeding charges and this was how I was able to correctly 'predict' and
prepare for his questions. He could be characterized as a high-strung,
tense type of person, but very pleasant in his overall demeanor. The day
of my trial he seemed to be much more relaxed than in previous sessions.
At least at the start of the trial anyhow .

So the trial began with the prosecution's examination-in-chief of their
only witness, the police officer.
The officer took the stand, was sworn in and identified himself. He
appeared to be a fairly young officer, around 27-30 years of age.

Q. Name? xxxxxxxxx
Q. Do you have notes? YES
Q. Did you make changes to the notes? NO
Q. Would you like to refer to your notes? YES
Q. What is the purpose of referring to your notes? REFRESH MY MEMORY
Q. Do you have an independent recollection of events? YES

Prosecution asked me if I'd like to see the notes.
I wanted to check to see if there were any additional notes that weren't disclosed in discovery.
This was a very interesting part of the trial. I approached the officer on the stand and he held out his notes. I was expecting him to hand over his notes to me to look at them, but instead he clung onto them firmly and held them out. His hands were shaking like a leaf and I kind of felt sorry for him then as he was visibly nervous.

I then read this statement to the JP:
“Your Worship I have looked at the notes and there is one item that has nothing to do with the speeding charge. If that item is removed from the list and the officer has an independent recollection of events, I have no objections to the officer using his notes.”

The JP smiled and made a comment about him not knowing what was in that one item.
Then the prosecutor, who at this stage was still quite calm and had no idea what was in store for him, made a surprise move for me. He agreed to ask the officer questions and have the officer testify only to facts related to the charge.

I just scored my first victory in the case. There would be no mention of a seatbelt caution.
You’ll recall that in my post entitled “Pre-emptive strike” I asked for your advice on this very issue.
 

Leviticus

Member
Q. Date and time of offence? Sept 19, 2005 12:21 p.m.
Q. Officer location at time? WOOLWICH ST., GUELPH CURLING CLUB
Q. Were you moving or stopped? STOPPED
Q. Weather conditions? SUNNY
Q. Road condition? GOOD
Q. Make of laser? ULTRALYTE 100LR by LTI
Q. Are you qualified to operate this unit? YES
Q. Did you test the unit before/after? YES I TESTED IT 7:15 A.M.
AND 4:00 P.M.
Q. Test results? OPERATED CORRECTLY
Q. Exactly where was vehicle? S/B WOOLWICH ST.
Q. What was the speed limit? POSTED 70 km/hr.

Observations?
I observed motor vehicle travelling at what appeared to be a high rate of speed S/B on Woolwich St. I activated my laser and took a reading of 92 km/hr at a distance of 240 m.

Q. Did you lose sight of the vehicle? NO
Q. Did you observe any other vehicles? NO
Q. Where did you aim the laser? AT THE FRONT CENTRE OF VEHICLE
Q. Did you lock in your reading? YES
Q. Were you using a tripod? YES
Q. Did you use the viewfinder? YES
Q. Did you place a red dot on the target? YES
Q. Can you place it on any object? YES
Q. Can more than one vehicle be targeted at a time? NO
Q. I.D. shown? YES, VALID DRIVER'S LIC. WITH PHOTO ID
Q. Did you identify yourself? YES
Q. Did you tell him the reason you stopped him? YES
Q. Vehicle ID? YES


There were no surprises in the questioning by the prosecutor.
At one point in direct the officer mentioned that he has been a laser instructor for two years. He also mentioned that he had used a tripod to take his reading. I made a note of this because I remember very well turning into the driveway, as directed by the officer, and there was no tripod anywhere in sight. Just his police vehicle, that’s it.

So that ended the prosecution's examination-in-chief.
Everything so far was pretty standard.
 

Leviticus

Member
As I was preparing for the case initially, I had no idea about how court procedures worked. When I learned that I’d have to testify to introduce my evidence, I focused my attention on my testimony. Later I learned that it couldn’t hurt to try to discredit the officer’s testimony by showing a lack of independent recollection. The aim would be to build a reasonable doubt towards the witness' testimony

So after I completed preparing my testimony I focused my attention on my cross-examination of the officer. Within a short period of time my cross-examination became the lengthiest part of my preparations, with laser-related questions being the most dominant.

With days to go before the trial I decided to cut in half my cross questions, slicing off most of my laser-related questions. In retrospect it was a wise move on my part, especially when I learned that the officer actually taught courses on laser use.
I reasoned that I likely would have more than enough ammunition without having to delve too far into this subject. I was also concerned that the JP would become impatient with all of my technical questions.

I was listening very closely to the officer’s testimony. Once he had committed himself to a location of the offence and a distance from him to my motor vehicle when he took his laser reading, I was happy. I knew I didn’t need to cross-examine him; that it would just be icing on the cake.

Independent Recollection Questions:
Establishing foundation for credibility issue.

Q. Officer, you stated that you have an independent recollection of the facts related to this charge and that your notes were being used simply to refresh your memory. If we leave aside your notes, and the offence notice itself, can you please tell the court what other facts you have an independent recollection of, related to this charge?

The officer really had little to answer to this question. He said he remembers setting up his laser and taking a reading and that’s about it.

Q. An item in your notes says simply "appeared to be speeding." Can you please tell the court what you estimated my speed to be?

I had read that officers are supposed to not only take notice visually of vehicles that appear to be speeding but also give an estimate of the speed. I was hoping he’d either say he didn’t remember the speed or even better, give a particular speed.
He replied that he doesn’t take laser readings unless the vehicle appears to be speeding more than 20 km./hr. above the speed limit. I lost a few points on this one.


Q. Did you take a second speed reading to confirm your first reading? NO
Q. Was I wearing sunglasses when you pulled me over? DON’T RECALL
Q. Was I wearing glasses when you pulled me over? DON’T RECALL
Q. Do you recall where I retrieved my registration and driver's licence from? DON’T RECALL
Q. Was it windy the time you issued my ticket?
He said that he usually doesn’t set up his laser on days that are windy.
Q. Do you recall if you were wearing sunglasses? DON’T RECALL
Q. Do you recall seeing a dark green minivan travelling S/B in the lane adjacent to me? DON’T RECALL
Q. How would you describe the traffic flow when you took your reading? NORMAL
Q. Do you recall if I left my automobile? DON’T RECALL
Q. Do you recall how many doors were on my vehicle? DON’T RECALL
Q. Do you recall what model vehicle I was driving? DON’T RECALL
Q. Do you recall how many tickets you issued that day? DON’T RECALL

Coming up… Officer location questions and Laser questions.
At this point in time the prosecution still had no idea what I had in store for them.
 

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