Officer's notes - wrong colour

[daveyflakes]

Hi folks, I'd like to hear what your thoughts are on a speeding ticket if the officer wrote down the vehicle's colour incorrectly in his notes.

I read the FYST website briefly and I see that there may be grounds for dismissal if the colour is blatantly wrong, e.g. blue vs. red. But something like light-blue vs. dark-blue would typically not stand for dismissal.

But how about gold vs. silver? Officer's notes say "gold", but my vehicle is actually silver/grey. I was pulled over at night, so it was dark and I can understand the officer mismisjudging the colour. But how about in the eyes of the court?

Also, while I'm asking questions... are there any legal avenues to pursue if the officer did not write the time(s) that he tested his LIDAR unit? In the past, I've seen that the officer explicitly writes down two times (before and after time of ticket) when he actually tested the unit. But this time, the officer's notes just say "all in order".

Appreciate any thoughts.

Cheers

 

[vociferous]

silver, in the dark, with (possible) yellowy streetlights? i'd say thats amendable.

i would not count on that getting you off

 

[coyo]

Properly ID'd licence plate, properly ID'd driver... I'd say it's not a great matter, especially given the conditions you've noted.

Check your ownership too; they're notorious for having the wrong colour noted on them.

 

[daveyflakes]

Yep, that's what I figured as well. Silver and gold would look pretty similar especially in yellow streetlights.

Any thoughts on the (lack of) LIDAR test times in the notes?

 

[coyo]

Yep, that's what I figured as well. Silver and gold would look pretty similar especially in yellow streetlights.

Any thoughts on the (lack of) LIDAR test times in the notes?

If he can articulate that as a matter of regular instance he tests it at the beginning and end of his shift, it will up to the JP to accept or decline his evidence. Assuming that you've requested and received disclosure, and received it in the form of the ticket back, it's very possible that the testing notations are actually in his notebook at the beginning and end of his shift.

 

[nikiter]

^^What he said.
Def get the disclosure, it should state his testing time in there.

 

[Ducati Rules]

With regard to your stated facts of speeding the critical points are that (i)your MOTOR vehicle was apparently speeding (his visual perception), (ii) the actual speed was recorded by the (speed reading equipment), (iii) the officer was qualified to use the equipment and (iv) that it was in correct working order and "tested" [at setup and on completion at the location]. The colour of the MOTOR vehicle is not a factor.

 

[daveyflakes]

If he can articulate that as a matter of regular instance he tests it at the beginning and end of his shift, it will up to the JP to accept or decline his evidence. Assuming that you've requested and received disclosure, and received it in the form of the ticket back, it's very possible that the testing notations are actually in his notebook at the beginning and end of his shift.

^^What he said.
Def get the disclosure, it should state his testing time in there.

I do have disclosure; a single page of the officer's hand written notes. The notes say "Laser Atlantis <model #> all in order". No mention of testing times.

Coyo, you're saying he could have his testing times noted on different pages in his notebook? If I begin to ask about this and he references these pages--which were not part of my disclosure--what would my options be? I assume I could ask for an adjournment. Any other options?

 

[Jimsun]

This is a very helpful site

http://www.ontariohighwaytrafficact.com/

i think posting this is okay right?

 

[Riceburner]

IME the court considers the equipment to be tested and accurate most of the time. They favour the officer and that he is doing his job correctly...i.e. he has no vested interest in doing it wrong.
Lack of full disclosure is grounds for re-schedule and then hope the cop doesn't show.

 

[Rob MacLennan]

IME the court considers the equipment to be tested and accurate most of the time. They favour the officer and that he is doing his job correctly...i.e. he has no vested interest in doing it wrong.
Lack of full disclosure is grounds for re-schedule and then hope the cop doesn't show.

He does, however, have to document that he is doing his job correctly.

 

[MarcosSantiago]

I do have disclosure; a single page of the officer's hand written notes. The notes say "Laser Atlantis <MODEL #>all in order". No mention of testing times.

Coyo, you're saying he could have his testing times noted on different pages in his notebook? If I begin to ask about this and he references these pages--which were not part of my disclosure--what would my options be? I assume I could ask for an adjournment. Any other options?

You are onto something here. You got your disclosure and a critical piece of information is missing.

I am not going to say that you struck gold and the ticket will be dismissed, but you are onto something.

A few things for you to consider, in chronological order:

D'Astous v. Baie-Comeau (Ville) 1992 CanLII 2956 (QC CA), (1992)
This case in a Quebec court in 1992 established that “the accuracy of such a device (radar, laser, etc) is not to be "presumed" but rather must be "proven" and as part of this, the prosecution must prove the qualification of the operator, that the device was tested before and after operation, and that the accuracy of the device was verified by a test.”

Source: http://canlii.ca/t/1pd8f



Regina v. Vancrey, [2000] Court of Appeal for Ontario
In 2000, Vancrey ruling in Ontario ratified D'Astous v. Baie-Comeau (Ville) above. The burden on the Crown includes these three elements:
"However, in each case, the Crown must still prove that the particular radar device used was operated accurately at the time. To do that the Crown must show:

• The operator was qualified: he followed a course, he passed an exam, he has several months' experience;
• The device was tested before and after the operation;
• The device was accurate as verified by a test and that the tuning fork used was accurate."

Source: http://canlii.ca/t/2329z



R. v. Dattomo, 2009 ONCJ 539 (CanLII)
A good, recent summary of relevant law.
Source: http://canlii.ca/t/26qhx

 

[MarcosSantiago]

According to the links I posted above, the court cannot "presume" the radar or laser is accurate. That fact must be "proven" beyond reasonable doubt by The Crown.</SPAN></SPAN>

To the OP: One option is to wait for trial. And to start thinking how you will question the testimony of the officer. First of all, it is up to the Crown to prove the operator was qualified, and the device was tested. It is not up to you to provide evidence to the contrary. So, what kind of questions can you ask that will cast reasonable doubt on training and testing?</SPAN></SPAN>

Another option is to request disclosure again asap, asking specifically for details on the testing, including any other notes or logs that the officer may keep separately, and any other documents that he or the Crown will rely on during trial. And you have to start thinking how to ask for the case to be stayed for lack of complete disclosure.</SPAN>

 

[iFly55]

There is also the problem of making a strategic maneouvre to proceed to trial knowing that you haven't been given full disclosure. This has backfired in the past http://www.gtamotorcycle.com/vbforum/showthread.php?176803&p=2093515&viewfull=1#post2093515

R. v. Dixon, [1998] 1 SCR 244

55 It must be remembered that defence counsel is not entitled to assume at any point that all relevant information has been disclosed to the defence. Just as the Crown’s disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel’s obligation to be duly diligent in pursuing disclosure. To do nothing in the face of knowledge that relevant information has not been disclosed will, at a minimum, often justify a finding of lack of due diligence, and may, in certain circumstances, support an inference that counsel made a strategic decision not to pursue disclosure. In this case, the summary in the occurrence report indicates that Daye’s statement would very likely meet the test for relevance set out in Stinchcombe. When defence counsel reviewed the occurrence report, he knew or should have known that the Crown had failed in its disclosure obligations. When this became apparent, defence counsel should have brought this matter to the attention of the trial judge at the earliest opportunity. In the circumstances of this case, the Court of Appeal was right to conclude that at this point, defence counsel was faced with a choice: “call for the statements or live without them” (p. 93).

 

[Deanmac]

I fought and won my last speeding ticket by asking the officer during a break in proceedings as to whether he tested his equipment before and after his shift. He indicated that he didn't test after his shift. That's when I looked at him and said that I'm ready to go to trial. At this point the officer gets up and talks to the Crown. My case is called and the Crown tells the court that the charges against me are dropped. So yes, the defence works.

 

[coyo]

I do have disclosure; a single page of the officer's hand written notes. The notes say "Laser Atlantis <model #=""> all in order". No mention of testing times.

Coyo, you're saying he could have his testing times noted on different pages in his notebook? If I begin to ask about this and he references these pages--which were not part of my disclosure--what would my options be? I assume I could ask for an adjournment. Any other options?

Yes, they could be on the 1st and last page of the day (likely). If this comes up at trial, you can notify the court that this disclosure wasn't provided. The JP could have the officer show you his notes about the tests and the trial goes on. There may be an option for an adjournment however if all that is needed is the test times, which would have then been shown to you, an adjournment may not be granted.</model>

 

[Paul1000RR]

Id try this line and see what happens

"Your honor this officer is clearly ****en blind! I ask for the case to be dismissed!"

 

[daveyflakes]

Thanks for all the interesting and insightful responses. Lots of reading for me to do yet. iFly's comment that, essentially, a lack of action could imply willful acceptance is definitely something to consider...

 

[MarcosSantiago]

If he can articulate that as a matter of regular instance he tests it at the beginning and end of his shift, it will up to the JP to accept or decline his evidence. Assuming that you've requested and received disclosure, and received it in the form of the ticket back, it's very possible that the testing notations are actually in his notebook at the beginning and end of his shift.

Just as a reference to the above bolded sentence, let me quote:

"Question 2) Can this court accept the officer’s statement that it is his usual practice to test a laser device before a speed enforcement stop, as proof that he did so?
...
I accept that it is within the purview of the trial justice to decide whether to accept ‘standard or usual practices’ as proof of a test being done.
...
<BUT>[BUT]
...
No time was provided in Officer Brazier’s testimony for his testing of the laser device prior to the stop of Mr Schlesinger.
Therefore, this court declines to accept the officer’s statement that it is his usual practice to test a laser device before a speed enforcement stop, as proof that he did so."

It is a quote from Schlesinger ... http://canlii.ca/t/1rsg6
The speeding charge was dismissed, pretty much because of the testing of the laser... you should read that one too....

 

[2WET]

You have something on the colour of your bike, specially if there were other bikes around at the time of day or night in the area. Because either the cop is a retard or moron, the colour of your bike is stated on your onwership when he checks it. Him writing gold based on what he saw at the time of the night is proof he didn't do his paperwork correctly. Or most likely your white, its called "white privelage" and you got off with a crealess check, if you were any other colour he would have told you, why t F is your bike Gold when it says in your ownership its silver, takes your bike, your ownership and plates.


When it comes to bikes colour is a HUGE factor, you must get the officer to admit he saw a GOLD bike get clocked before he pulled you over, then all you have to do is prove your bike is silver and that he caught the wrong guy, maybe the gold bike got off in a side street etc, its something a good paralegal can flip flop and get it really confusing for the cop and win your case, most likely you can't.