Do I have a case for appeal? | GTAMotorcycle.com

Do I have a case for appeal?

cbr_rr

cbr_rr

Active member
I just had a trial today for a speeding ticket. The charge was 86 in a 60, and I really want to continue fighting this. Here's the story first, and then I would appreciate any advice you guys can give at all.

The incident:

Travelling eastbound on Steeles ave. A police officer is doind LIDAR at the side of the road. As I change lanes from the middle lane to the curb lane, I see that a car is being stopped in front of me. The officer, standing in front of the car, then points to me as well, and pulls both of us over. When he comes to talk to me, he says he estimated my speed at 120 km/h and that could mean impounding and such and such and he's only giving me the same speed as the car in front of me (86 km/h).

The court date:

I got disclosure ~1 month ago (mid June, it was my fault for not filing earlier) and the court date was adjourned so that I could review it. I looked over the notes, and he explicitly said that he did not measure my speed with the LIDAR, but that after measuring the speed of the car, he noticed my "racing style" motorcycle doing "explosive acceleration" and overtaking the car (I never did actually overtake, he just saw me closing the gap so to speak). So he goes up and testifies all of this, adding that any normal citizen could have seen that I was speeding, etc.

I then went to the stand and said 2 main things. The first is that the officer made no mention of the time between LIDAR measurement of the car and observing my motorcycle. And that in this amount of time, the car in front would have been braking (to stop for the officer) and therefore using the measured 86 as a minimum for my speed is not a valid estimate. I also said that at 200 metres away, it is impossible to tell if a motorcycle is closing the gap on the car because, standing in the laneway to stop the car in front of him, the motorcycle would be coming directly at you. In this orientation, speed and distance estimates are terrible (HURT report I think says this, and I mentioned it).

The decision:

Afterwards, the prosecution stressed the fact that the LIDAR was properly calibrated and that he was trained to use it, and that I hadn't actually stated my speed. The JP agreed, laughing, and said that the officer provided evidence and that I hadn't provided any evidence, and I was therefore guilty.

Can I appeal?

I feel sheisted for several reasons. One being that when I went to the stand, I thought I did a decent job at invalidating the officer's supposed evidence. Thus, "he provided evidence" isn't really true. He could have gone up and said "oh he was speeding for sure I remember it like it was yesterday" but that doesn't count as evidence. The other is that it was specifically mentioned that I didn't mention my speed, but I didn't think I had to. I thought I was there to show that it could not be proved that I was doing 86 in a 60, or anything over 60 km/h for that fact. My speed could not be accurately estimated in any manner, and I thought I did so, regardless of whether or not I said how fast I was going.

I searched the forums a bit, and found a post that referenced these decisions:

R. v. Darlyn (1946), 88 C.C.C. 269 (B.C.C.A.), "There are two traditional common law rules which have become so firmly imbedded in our judicial system that a conviction is very difficult to sustain on appeal if they are not observed. The first is, that if the accused is without counsel, the Court shall extend its helping hand to guide him throughout the trial in such a way that his defence, or any defence the proceedings may disclose, is brought out to the jury with its full force and effect. The second is, that it is not enough that the verdict in itself appears to be correct, if the course of the trial has been unfair to the accused. An accused is deemed to be innocent, it is in point to emphasize, not until he is found guilty, but until he is found guilty according to law.

R. v. Dimmock 1996 CanLII 2292 (BC CA), (1996), 47 C.R. (4th) 120 (B.C.C.A.), the court was of the opinion that where a defendant is unrepresented, there is a heavy onus on the trial judge to assist the defendant.

I'm not sure how appeals work, but I definitely don't think the JP made any effort to guide me through the proceedings. I could have gone up again and said I was doing exactly 55 km/h or whatever, or at the very least that I was sure I was doing less than 60 km/h for a number of reasons (heavy traffic would have made it near impossible, etc.). Instead, he and the prosecution were laughing and joking and then he quickly dismissed me as guilty.

I'm not sure if I can find any other procedural mistakes but I don't really feel like anything I said was taken into consideration, and I feel like the whole argument wasn't even thought about for 2 seconds in favour of dismissing the case based on some procedural precedent.

Any help? Sorry for the obnoxiously long post but I just got back from the courthouse and it's all fresh in my memory.
 
I have an idea how an appeal works. I did one and reversed my conviction.
PM me your email address. But I am not a lawyer and cannot provide legal advise, only my opinion.
 
cbr_rr said:
I
The decision:

Afterwards, the prosecution stressed the fact that the LIDAR was properly calibrated and that he was trained to use it, and that I hadn't actually stated my speed. The JP agreed, laughing, and said that the officer provided evidence and that I hadn't provided any evidence, and I was therefore guilty.
Click to expand...


I had this exact thing happen to me. "You didnt say you werent speeding so you are guilty" I meant to appeal but foolishly didnt. I had argued that the equipment wasnt calibrated correctly with supporting case law and it made no difference.
 
An appeal is for correcting an error in law and how it was applied. Yes, the court has a responsibility to walk you through the process and ensure you know the jeopardy involved, but they don't have to defend your case for you. That you didn't present your case effectively isn't the court's responsibility.

I don't think you'd have any grounds for appeal but you'd be better served to contact a para-legal (which you should have done in the 1st place).
 
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You MAY have cause for appeal, based on an error in law. The officer is not permitted to 'estimate' your speed but must rather measure it, by one of three means. Those methods are RADAR/LASER, pacing, or measuring time between two fixed points. It sounds like he had none of these, meaning that he had no permissible evidence, and yet you were convicted.
 
Yeah I cross examined him. I asked him to confirm that he did not observe me overtaking the vehicle through the laser scope and that he did in fact step away from the machine and then see me. He confirmed that. That's pretty much it as I figured it would be enough to say that his estimate of my speed is crap.

So when I apply for appeal, Rob, do I need to state that as the reason? Also do I need to provide case law stating that it must be one of these 3 methods?

Thanks for the help guys
 
R. v. Williams, [2008] O.J. No. 1078

3. I wish to address the issue of "essential element of the offence". There is a vast body of law that relates to the operation of mechanical speed detection devices, cases that have been decided at the trial level and the appellate level which relate to the testing, operation, and set up such devices. While these decisions have value as precedents, it must be noted that the decisions are highly specific to the individual devices used in specific cases. The only "essential elements of the offence" in a speeding charge are the date, place, posted speed, identification of the vehicle operator, and the speed of the motor vehicle. The Highway Traffic Act leaves it open to the prosecution as to how the rate of speed is established in court. There are many different ways to establish excessive speed such as - and this is not meant to be an exhaustive list - pacing a vehicle, mechanical road cables, aerial observation, radar, laser, etc. Whatever method is employed by the prosecution, the burden is upon the prosecution is to establish the rate of speed beyond a reasonable doubt after the evidence has been fully challenged. In R. v. Bland, [1974] O.J. No. 2139, 19 C.C.C. (2d) 121, speed based on speedometer readings, R. v. Chow, radar-photography device where the Court held:

The evidence must meet the test of demonstrating a circumstantial guarantee of trustworthiness and accuracy and that without any evidence to the contrary, the evidence was admissible and was entitled to weight.​
 
Appeals are only granted in the case of a misapplication of the law or new evidence that was not readily available at the time of trial/conviction comes to light.

You can't appeal because you failed to ask the office the right questions. Because the officer didn't "mention" something means you should have asked him about it. He already measured your speed by comparing it to another citizen. Sounds like you did a piss poor job of cross examining. You got an answer out of him, so explain it to the judge. Just because it makes sense in your head, doesn't mean everyone else gets the point.

You can't "prove" the equipment was calibrated properly or not. If the officer's notes say he calibrated it, tested it, used it.... then it works. If you were without counsel, it's your own fault. You knew of you impending court date. You can't show up to something that you knew about months in advance "Ohhhh....... I need a lawyer, can we re-start this?"

The JP isn't supposed to hold your hand, just explain things that you don't understand. If you keep quiet and don't question, they assume you understand everything being said.

Testimonial evidence is evidence. Whether you like it or not. He definitely could have said "I remember it like it was yesterday".


BTW... Get a lawyer to work the appeal.
 
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Wait, why did you take the stand? After you got the officer to admit he did not measure your speed, you should have won. As rob said:

Rob MacLennan said:
You MAY have cause for appeal, based on an error in law. The officer is not permitted to 'estimate' your speed but must rather measure it, by one of three means. Those methods are RADAR/LASER, pacing, or measuring time between two fixed points. It sounds like he had none of these, meaning that he had no permissible evidence, and yet you were convicted.
Click to expand...
 
Rob MacLennan said:
You MAY have cause for appeal, based on an error in law. The officer is not permitted to 'estimate' your speed but must rather measure it, by one of three means. Those methods are RADAR/LASER, pacing, or measuring time between two fixed points. It sounds like he had none of these, meaning that he had no permissible evidence, and yet you were convicted.
Click to expand...

I believe they may also provide "visual estimation of speed" and are "trained" to do so.
 
As for the case law you stated about the "court assisting the defendant" are both CRIMINAL cases NOT HTA cases. you didn't appear before JUDGE you appeared before a JP, who unlike a judge is NOT a lawyer but rather a "lay person" with some degree of knowledge of the relevant law.

Having been a police officer, I was permitted on many occasions to use "my expertise and training" to provide evidence, about a vehicles speed based upon my observations, and yes this was IN Ontario.

As for your "right to appeal" you have the right to seek leave to appeal, that doesn't mean your appeal will be heard. As has been stated previuosly and appeal is based upon town primary factors.
1. evidence which was not previously available at the time of the trial now being available. The evidence presented may have been open to interpretation, or questionable, but it WAS available at the time of trial. However you failed to question it properly.
2. an error in law. Given that there are previous cases where a police officers "estimation of a vehicles speed" has already been accepted that is not an error in law in this case. Nor is the fact that the JP in your estimation, failed to "spoon feed you", an error in law. The JP could have simply asked, (as most do), if you had "any further questions for the officer", or "any further evidence to present", if you stated no then he/she could be argued to have done their part. It is not their job to disprove the crowns case.

The fact that you failed to seek legal advice or to adequately represent yourself, does not permit an appeal. Otherwise people would appeal until they finally got it right..lol.

Now again I am not a lawyer simply presenting my opinions based on more than a few years spent in court and on the stand providing evidence. Oh and having successfully defended against a couple of tickets on my own..lol But normally I come to court over prepared, meet with the prosecutor in advance, and showed them the evidence I was prepared to present, (not one ticket has gone to trial all were withdrawn by the crown). The last one was for failing to wear a seatbelt but I had photos of the customized truck i drive and that the seatbelt mount had been professionally changed BEFORE I purchased the vehicle, as well as photos showing the officers vantage point couldn't have properly permitted him an unobstructed view, (even the officer complimented me on my pretrial prep work and it was he who asked the crown to withdraw). FYI I have sincve paid to have the seatbelt mounts re installed in the proper locations.
 
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