I Won !!! :)

[Leviticus]

Officer Location Questions:

Q. Where did you park your cruiser? GUELPH CURLING CLUB PARKING LOT
Q. In the north or south entrance? SOUTH
Q. Are you certain? YES
Q. Where specifically in the laneway did you park your cruiser? 20 METERS BACK
Q. Were you inside or outside of your cruiser when you took your speed reading? OUTSIDE
Q. Approximately how many meters wide is the laneway? 14 M
Q. How many meters from the roadway were you standing when you took your reading? 3 FEET
Q. What was the distance from your laser to my vehicle when you took your reading? 240 M


No big surprises here except the officer didn’t remember that he had parked his cruiser just five meters back from the road, in the laneway, not the parking lot, and that it was a marked vehicle. He testified that it was an unmarked vehicle.


Laser Questions:

Q. Would you say you rely quite heavily on the accuracy of the laser in your duties in traffic enforcement? YES
Q. You received official training with lasers and I trust you received training with the UltraLyte LR100. Is that correct? YES
Q. While you are not expected to be an expert with the unit, nor be familiar with the internal electronic workings of the unit, you are expected to be familiar with the operation, testing and maintenance of the unit. Is that correct? YES
Q. Did you receive official training on the operation of the UltraLyte LR100? YES
Q. Did you receive official training on the testing of the UltraLyte LR100? YES
Q. Did you receive official training on the maintenance of the UltraLyte LR100? NO

I was so caught up in the drama at this point that I didn’t run with this admission. I had prepared a slew of questions on the LR100 maintenance but didn’t ask them.

"As I'm sure you are aware the UltraLyte LR100 is a sophisticated piece of equipment that requires frequent testing to ensure it is running accurately in all aspects."
Q. Given that you rely heavily on its accuracy, would it be safe to say that you test the unit often for its accuracy? YES
Q. You tested the unit twice on Sept. 19, 2005, at 7:15 a.m. and 4:00 p.m., is that correct? YES
Q. Could you please tell the court what test or tests you performed? SELF-TEST, ALIGNMENT, DISTANCE TEST

I skipped a whole bunch of questions on the distance and alignment tests.

Q. Did you perform the Battery Voltage Test? YES
Q. Did you perform the Reference Frequency Test? NO
“This measures the instrument's internal time base.
The internal time base accuracy is critical to the overall accuracy of the unit.”
Q. Are you sure you didn't perform this test? YES I’M SURE
Q. Did you test the laser's accuracy for measuring a speed of 92 km/hr? NO
Q. Did you test the laser's accuracy for measuring any speed? NO

He hesitated for these last two questions, as he didn’t seem to understand them.
I pointed out that the distance test measures distance not velocity. I asked if he tested the speed of a moving vehicle. He said he did not.

There was one big surprise in this section of questioning. The officer stated that he usually tests the laser at the police station using a target that is 30 meters away.
I should have pounced on this one right away, but I left it until closing arguments.
Probably because I didn’t want him to come back with a response.

The discovery sheet showing his laser testing for that day had him at a public school doing the tests.
He also mentioned that he’s been training officers for two years on laser use.
I decided not to pursue this angle any further given that information.

That ended my cross-examination.

 

[sukharev]

Fascinating story, keep it coming

 

[Leviticus]

Fascinating story, keep it coming

Thanks. Yes it was quite a memorable experience

During the course of my cross-examining the officer the prosecutor raised several objections. One objection was to my line of questions testing the officer’s independent recollection.
During my testimony the prosecutor continued making objections. It’s funny because I had prepared many objections in anticipation of the officer’s testimony and the prosecutor’s cross-examination of me. In the end, I did not make a single objection whereas the prosecutor must have made a half dozen or more.

And now for the main event…


My testimony:

Your Worship, I knew I was not driving a motor vehicle at 92 km/hr in a 70 km/hr zone on Woolwich St. in the Municipality of Guelph, on Sept. 19, 2005 as I have been charged. However it was not until I received disclosure from the prosecution, that I obtained evidence to prove this.

OBJECTION, SUBMISSION!

[My bad. I didn’t know exactly how I should start my testimony so I thought that a bold statement asserting my innocence might be appropriate.
I was mistakenly under the assumption that I could say pretty much whatever I wanted to say during my testimony, provided it was relevant to the case. Wrong! Now I know better. I was told that I could make ‘submissions’ later on in the case, but wasn’t told exactly when. Had I known that submissions are part of your closing arguments/statements I would have been better prepared.]


A: The first part of my evidence deals with Signage:
The Officer gave evidence that I was driving a motor vehicle 92 km/hr in a **70 km/hr zone**, travelling S/B on Woolwich St. in Mun. of Guelph. This is impossible, as there is no 70 km/hr. zone on Woolwich St.. From its southern most extreme to its northern most extreme you will not find a *single sign* posted on Woolwich St., in either direction, for this speed limit.

EXHIBIT A (photo). I would like to introduce Exhibit A, at this point in time.

[At this stage the trial had been in progress for 30 minutes and the prosecutor suggested to the JP that we adjourn for a lunch break. The trial resumed 1.25 hours later.
I didn’t really mind the break. It gave me an opportunity to assess the first 30 minutes and make a few adjustments to my notes.
When I returned from lunch and sat down in the foyer waiting a few minutes before court resumed, the officer was standing across from me and looking at me. He seemed a little disturbed. I didn’t want to engage in any communication with him so I just kept my eyes on my notes until we entered the courtroom.]


Exhibit A faces south just as you enter Guelph's city limit.
-Woolwich St. *begins* where the big sign is in the foreground.
-The property to the right and beyond the sign belongs to the Guelph Curling Club.
-The Guelph Curling Club is the last property in the Municipality of Guelph as you travel *north* along Woolwich St.
-As you can see from this evidence there is no posted 70 km/hr. zone at this location on Woolwich St..
-I have driven many times since receiving this ticket, from Woolwich St.'s northern most extreme to its southern most extreme and have confirmed that there is *not a single sign* posted for 70 km/hr.

This is crucial because of what is stated in H.T.A. Section 128, the section under which I have been charged:

OBJECTION, SUBMISSION! (Highway Traffic Act)

[Holy crap Batman! I had no idea this would have to be left out as well for now. This is a very powerful piece of information in my case, which I thought was evidence, but apparently not. It was to have sealed the foregoing argument.]

 

[CdwJava]

Interesting ... but of little relevance to US laws.

- Carl

 

[seniorjudge]

Interesting ... but of little relevance to US laws.

- Carl

I am beginning to suspect that Leviticus found a script for a television show somewhere.

But, hey, I suspect everyone of something....

 

[Leviticus]

Interesting ... but of little relevance to US laws.

- Carl

I guess it's best I end the case here then.

 

[sukharev]

Hey, don't stop, I clearly do see relevance to US laws, and relevance is: Canadian laws are pretty much the same. The only difference I've seen so far is that distance is measured in km, not miles

 

[Leviticus]

Court is back in session. All rise please for the Justice of the Peace. Please be seated.

B: Officer's conflicting testimony:

-As I mentioned, the Officer testified that I was driving S/B on Woolwich St. in the Municipality of Guelph when he took his reading.
-The officer also testified that he was standing in the south laneway to the Guelph Curling Club when he took his reading.
-The distance from where the officer was standing when he took his reading, to where Woolwich St. ends, is approximately 162 m.
-There are 18 dividing lines along Woolwich St. between where the officer was standing and its northern most limit. The distance from one line to the next is 9 m. 9 x 18 yields 162 m.
-This distance has also been confirmed using two additional means.
-I checked a map from the City of Guelph's Engineering Department and learned that the distance between two catch basins near the Guelph Curling Club is 138.5 m. The number of roadway lines between these two catch basins is 15. At 9 m per line, 15 x 9 = 135 m, or a difference of just 3.5 m from the Engineering map distance. This means that measuring distances on that stretch of road by the lines on the road is accurate to 3.5 m over a distance of 138 m.
-Finally I used my vehicle's odometer numerous times to measure the distance and always arrived at the same figure of approximately 162 m.
-This means that I had to be a *maximum* of 162 m away from the officer when he took his reading, as he testified I was travelling S/B on Woolwich St. in the Municipality of Guelph.
-But the Officer's additional testimony says his laser found me *240m* away from him when the reading was taken. This would place me on King's Hwy. 6 in another Municipality; the Municipality of Guelph-Eramosa Township.
-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.


C: Officer's independent recollection:
Your Worship, despite the Officer's declaration that he has an independent recollection of events, he has shown the court quite the contrary.
-He doesn't remember a mini-van driving in the lane adjacent to mine.
-He doesn't remember the speed limit on Woolwich St.
-He doesn't remember if he was wearing sunglasses.
-He doesn't remember if I was wearing glasses/sunglasses.
-He doesn't remember what model vehicle I was driving.
-He doesn't remember how many doors were on my vehicle.
-He doesn't remember if I left my vehicle.
-He doesn't remember where I retrieved my registration and driver's licence from.
-The officer testified he parked his unmarked cruiser 20 m. back from the road.
There was a marked cruiser parked 5 m. back from the road.
[The J.P. commented that there wasn’t a big difference between 5 or 20 m !!]
-The officer testified that he used a tripod to take his reading, yet there was no tripod anywhere in sight at the entrance to the Guelph Curling Club.
-The officer remembers virtually nothing about the incident, except for the notes that he was referring to.


[At this point I wanted to cite a case law but received yet another objection. Case laws apparently must be cited in closing statements in an Ontario Provincial Offences Court.

This ended my testimony]

 

[CdwJava]

Interesting ... but much of what the officer did not remember is irrelevent.

I remember an attorney once making the same sorrt of arguments because I did not note the hand a subject handed me his ID with, the color of his wallet, or which pocket he retrieved his wallet from. The judge rolled his eyes and said, "Nice try counselor" and then found the client guilty.

But, if it worked for you, bully for you. And if the judge found against the officer it was likely for other issues and not the small ones you noted. If not, then Canada is a lot more anal than I would have given them credit for.

- Carl

 

[seniorjudge]

...If not, then Canada is a lot more anal than I would have given them credit for....

Would you trust a nation that dips French fries into vinegar?

 

[sukharev]

Would you trust a nation that dips French fries into vinegar?

Sure, it beats renaming them...

 

[Leviticus]

CdwJava:
“Interesting ... but much of what the officer did not remember is irrelevent”

Carl, I agree that most of it was irrelevant, but when I was doing my research I heard so many officers testify that they had an independent recollection of the events. I found that to be fascinating. I knew full well that they were being untruthful. Even our very own seniorjudge conceded this is most often the case!

I just couldn’t let the officer so flippantly testify (no matter how many times he’s done it in the past) to having a memory of things that he really didn’t have, even though it would have little bearing on the outcome. I simply wanted to make a point, that’s all.


Just before I detail the prosecution’s cross-examination I’d like to mention a few words about the prosecution and my case.
A little more than a month after I received my ticket I made an application for full disclosure. A few days later I received notice that I could pick up the disclosure documents at the prosecution’s office.

Less than two weeks before the trial I made a second application for disclosure. This time requesting a viewing of the laser manual and calibration records for the laser.
By this late stage I was prepared with my case and simply looking for any bonus material that I could find. I was stalled briefly on looking at the manual, but after a few days was granted permission. As for laser calibration records; I was told that lasers are no longer calibrated. I asked to have them put that in writing and they obliged.
I didn’t really have time to follow up on the validity of this.

I kept my cards close to my vest with the prosecution, so just before the trial they only knew that I was interested in technical aspects of the laser equipment.

As I had predicted here on this forum the prosecutor was shell-shocked with my testimony.
I had prepared answers to half a dozen questions that I felt the prosecutor might ask.
He only asked three, much to my surprise and relief. To say that he was caught off guard would be an understatement. His three questions were the top three on my list.


Prosecution’s cross-examination of defendant:

Q. What is the speed limit on Hwy 6?
A. The speed limit varies on Hwy 6. Sometimes it’s 50, 60, 70 or 80 km/hr.

Q. What is the speed limit on Hwy 6, S/B, just before Woolwich St?
A. I don’t know.

Q. What was your speed on Hwy 6?
A. 70 km./hr. or less.

There were many pauses and head-scratching during cross, but this is all that the prosecutor could come up with at the time.
I had prepared many objections for the cross-examination but decided not to use any.
I was going to object to the questions he asked on the grounds that they were irrelevant.
After all, I wasn’t charged with speeding on Hwy. 6 in another municipality.

That ended cross-examination. It was time for the closing statements.

 

[CdwJava]

Well, I can have sufficient recall of the events of the night without remembering where he retrieved the paperwork.

Heck, I can recall the last movie I saw, but I can't recall what I was wearing when I went. It does not follow that I did not go to the movie or I am making up what I saw.

Obviously, I cannot speak to what the officer in your case knew, didn't know, made up, forgot, remembered, or was in error on. All I can say is that not recalling insignificant detail is of no consequence.

- Carl

 

[Leviticus]

Oops. I almost forgot. The prosecution re-called its witness!
I had seen the prosecutor use this ploy once before a few weeks ago and was actually expecting it for my trial. He was pretty much forced to because he had introduced no evidence about the speed limit on Hwy 6 ! I certainly didn’t supply him with this evidence.

So the officer gets back up on the stand and is asked what the speed limit is on Hwy 6 just before Guelph City limit. The officer says 70 km,/hr. but isn’t exactly sure where the sign is located for this speed limit. He offers a distance of around 250 m from the Guelph City limit. Then he mentions that it’s around the location of a Jesuit Retreat Centre, which he says is the first property outside Guelph City.
I’m allowed cross-examination so I ask the officer if he is aware of a huge cemetery and a small house in between the Retreat Centre and the Guelph City limit. He says he’s not aware of this.


Now it’s time for closing statements/submissions.
Usually the defendant is first up with closing statements and then the prosecution, but in some cases the prosecution is given the opportunity to go first with approval by the defendant. I had no objections when I was asked.

So the prosecutor got up and began a five-minute plus tirade on just a few issues.
He had a tendency to ramble just a bit in his delivery and at this stage in the trial he was true to form as well as being visibly agitated.
For some strange reason he committed a tactical blunder, a fatal error, at this juncture.

He started talking about boundaries and jurisdictions and at one point actually informed the JP (contrary to his prior knowledge) that the police officer had the authority to issue an offence notice for an offence outside of the Municipality of Guelph.
He then went on to say that he wasn’t going to ask for permission to change the location on the offence notice. This was his blunder!

He either decided not to ask for permission because he knew that I would be objecting vehemently and/or he might have to resort to writing another offence notice, or he felt that his next argument would be sufficient to win the case for him.

Whatever the reason, I’m thankful that he didn’t go down that road and breathed a huge sigh of relief when I heard him decline to make any changes to the ticket.
At this point my mind was turning to mush and couldn’t concentrate very well on his ramblings about jurisdiction and other matters. Whatever he was talking about didn’t seem to concern me that much and he eventually petered out after a few minutes.
Of course he didn’t end until he asked the JP to find me guilty of the offence.

Next it was my turn.

 

[Leviticus]

Now I finally had the opportunity to not only summarize my case, but also introduce what I had previously thought was evidence; citations from the Ontario Highway Traffic Act and Ontario case law. These were two of my strongest weapons in the case.

There is a short section on the professional duties of a police officer. I added this just a few days before the trial. My intention was not to sermonize or ridicule the police officer.
I simply wanted to point out to the JP all of the reasons that led to the ticket being defective, not on its face, but on its merit.

You will also note that in the case law that I cite the speed limit is in miles per hour. That is not a typo. Way back in the 1970’s Canada was still in the Dark Ages and using the British Imperial System of measurement. Some may argue that although we have since changed over to the Metric System we are still in the Dark Ages


My closing statements/submissions

Your Worship, the prosecution has insufficient evidence to prove their case.
They have not, and cannot, provide any evidence whatsoever, that I was speeding on Woolwich St. in Guelph, which is what I was charged with.

Your Worship, the Prosecution has failed to establish a Prima facie case:
- Prosecution has not established the speed limit, as they attempted to do in questioning their witness (a 70 km/hr. speed limit does NOT exist on Woolwich St.)
- Prosecution has not established the location at which the alleged offence took place; the officer testifies that I was driving in the Municipality of Guelph yet his laser reading of 240 m places me in another Municipality.
- Prosecution has not established the speed of my motor vehicle on Woolwich St. where the alleged offence took place.

Ontario Highway Traffic Act:
As I have proven with the evidence brought forward in this court, there is no posted speed limit of 70 km/hr on Woolwich St. in the Municipality of Guelph, and, according to Ontario Highway Traffic Act, Section 128, Subsection 11, a Municipality's prescribed rate of speed of 70 km/hr. does not become effective until the highway or portion thereof is signed in accordance with the Act.
Since there is no 70 km/hr sign on Woolwich St. I can't be charged with violating this speed limit.

Professional Duties:
An officer in carrying out his proper professional duties will be familiar with the area he is working in. He will be familiar with the boundaries of the city he is working in. Before an officer writes provincial offence notices of alleged violations contrary to HTA Section 128, he should take care to ascertain whether the road in question is signed in accordance with the act. The officer will also take care and ensure that the road that the offence is alleged to have taken place on, matches the road that is testified to in court and that is named on the offence notice.
In this case, the officer has not fulfilled these duties.

And finally the Case Law of Regina vs. Eagles (1976) and Regina vs. Redlick (1978)
Demonstrates that when there is no evidence to prove that speeding was within the city, nor evidence to prove the speed limit, the conviction must be quashed as judicial notice cannot be taken that the place of speeding was within the city.

Regina vs. Eagles (1976), 31 C.C.C. (2d) 417 (Ont. H.C.); Regina vs. Redlick (1978), 2 C.R. (3d) 380, 41 C.C.C. (2d) 358 (Ont. H.C.)
Where the accused is charged with speeding within a city pursuant to a section that provides that the speed within a city shall not exceed 30 m.p.h. and there is no evidence called that the speeding was within the city, nor evidence called as to the speed limit, the conviction must be quashed as judicial notice cannot be taken that the place of speeding was within the city.

The basic facts of our case are the same as the case law that I have quoted.

1st part, same as in our case, just substitute 50 km/hr or 70km/hr for 30 m.p.h.
2nd part, same as in our case, no evidence has been provided that I was speeding in the Municipality of Guelph.
3rd part, same as in our case, although the prosecution attempted to establish that there was a posted speed limit of 70 km/hr, it was later proven that no such posted speed limit exists.
4th part, same as in our case.


In closing, I would like to raise a motion to the court that since the Prosecution has failed to establish a prima facie case, by failing to prove all essential elements of the alleged offence beyond a reasonable doubt, I sincerely ask that it be dismissed.