FYST - How to prepare for the trial

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Appendix B. How to prepare for the trial

1. Do the cops ever show up?

You have heard many stories from other people that they won their cases because the cop didn't show up at the trial. Don't go into court expecting that the cop will be absent. Cops' absence from trials usually get blown out of proportion, and everyone has an impression that cops often don't show up for trials. This is not true, because cops get overtime pay by going to courts, and they get to sit in an air conditioned/heated room instead of subjecting themselves to the outside weather. And for most rural area cops, they have nothing else to do besides speed trap duty. So you see they have many incentives to show up in trials. In many cases, defendants don't do enough preparation because they are expecting that the cop won't show up, and they lose badly.

2. Understanding the charge

So you are being charged with "speeding", right? Wrong, or at least this is woefully incomplete. If you do not fully understand what you are being charged with, you will miss a lot of opportunities where you can spot a technicality and take advantage of it. The prosecution is charging you an offence that is contrary to the "Highway Traffic Act", under the process of the "Provincial Offences Act". These two law books are the absolute minimum you should look up in your local library to find out exactly what the charge means. (If you live in the United States or other provinces in Canada, the law books are called "Motor Vehicle Code" or something similar.)

Now get out your ticket, and look at what section under the HTA you are being charged with. Look up that section in the HTA and see if the actions you allegedly committed violated the statute. (Make sure you have an up-to-date version of the HTA.) And even this is not good enough. Now bookmark that section, and look up the "Definitions" part of the HTA. If there are words or phrases used in the section that have definitions, read the definition carefully and see if it fits your situation/description/action. If it doesn't, you didn't violate that law and your charge should be dismissed. For example, to commit the offence of speeding, you must be driving a "motor vehicle". If you were riding a bicycle, which doesn't legally qualify as a motor vehicle, then you didn't commit speeding. A motorcycle however is a motor vehicle, but an electric wheelchair is not, which is legally a "pedestrian", even though it may have wheels and contains a motor, whereas a person riding on a horse is an "equestrian"! Now you realize that you haven't done enough research, don't you?

For your convenience, important sections of the Highway Traffic Act will be posted here very soon. If a particular section you are looking for isn't here, you can still go to a local library and look it up yourself. I hope you will find this useful.

To save you a little bit of time, let's take a look at what criterion must be met in order to convict you of speeding:

There are enough evidence to prove that...

you were driving a motor vehicle on or about the time, date and place when the offence occurred.
you were travelling on a provincial/city highway/street.
you were exceeding the posted speed limit.

All of the criterion above have to be met in order to convict you of speeding. The important keywords have been highlighted in orange. First, you had to be driving a motor vehicle. (Look up the definition of "motor vehicle" to see if the vehicle you were driving qualifies as a motor vehicle.) Second, you had to be travelling on a highway/street under the jurisdiction of the province or municipality. If you were on private property, you cannot be convicted of speeding. (Again, look up the definition of "highway" to see if you were really on a highway when you were pulled over.) Then, the most obvious one is that you must be exceeding the posted speed limit in order to be found guilty of speeding. Just saying "speeding 75km/h" isn't good enough. It has to be "speeding 75km/h in a 50km/h zone" or something similar. Finally, the police officer has to identify the defendant who was the one committing the offence. (Look up the definition of "driver", and make sure that the officer didn't hand the ticket to your passenger. "Driver" is the one having care and control of the vehicle at the time of the alleged offence.) Every word and phrase has to fit your situation exactly, otherwise you may get off with a technicality.

When you have verified the above information, you can now prepare an essential elements' list, which you can check off when the cop testifies at the trial. Every bit of information in the list, the cop has to offer evidence on. Otherwise the Crown is said to have failed to establish a prima facie case.

(A case where its evidence is sufficient for a conviction on its own merits in the absence of rebuttal evidence is called a "prima facie" case. If the Crown has failed to establish a prima facie case, the case has to be dismissed).

During the cop's testimony, check off the items that he has raised, and take note of the answers. Be very careful of anything that he has missed. When you cross-examine their witness(es), make sure you don't touch on those things, otherwise you will be doing the job for them. For example, if the cop forgot to testify the speed limit on that road, you don't ask any questions about speed limits. If the Crown has only one witness, which is usually the police officer, then it is best to just call "no questions" for cross-examination. The closure of the Crown's case will then follow, and you immediately raise a motion to the judge that since the Crown has failed to establish a prima facie case, you sincerely ask the court that the case be dismissed. If the Crown has more than one witness, then you will have to cross-examine them anyway, assuming each one of them will subsequently fill up the check list. But the general rule still applies, that you don't ask any questions about the things which the witness didn't touch on. After all the Crown's witnesses have testified, you can move for a dismissal if anything on the check list is unchecked.

Here is an example of the check list:

Has the prosecution identified the operator of the vehicle who committed the offence? (Y/N)
Has the prosecution identified that the vehicle was a motor vehicle? (Y/N)
Has the prosecution identified that the vehicle was the one cited, with the license plate, model and colour the same as the one on the ticket? (Y/N)
What province/territory was the plate registered in?
Has the prosecution testified that the defendant was travelling on a provincial/municipal highway/street? (Y/N)
What was the speed limit on that highway/street?
How fast was the defendant travelling?

Check off the items (don't cross them out) and see if anything is unchecked. Bring them out to the judge at the closure of the Crown's case, and move for a dismissal. When the Crown's case is closed, the court usually does not allow it to be re-opened again. However, if you don't move for a dismissal, but later testified yourself and filled in the missing holes for them, a conviction which follows will stand, and appeals to overturn the conviction will most likely fail.

Unless the cop and the prosecution attorney are dumb, they can usually establish a prima facie case. However, proving all the evidence raised in each element beyond a reasonable doubt goes a lot further than that. Your next step is to try to lower their credibility by attacking the evidence. This mainly takes place by means of cross-examining the police officer, which will be discussed later. Before we talk about questioning witnesses, we'll first take a look at the rules of evidence.

3. Basic rules of evidence

Here is a list of common violations witnesses and/or prosecutors might make when testifying/questioning:

Hearsay:
Witnesses cannot testify something that is beyond their personal experience or knowledge. They cannot testify something that is said by another person, or else that person has to come and testify what he said. For example, if the cop says "the computer operator told me the defendant's driver's license was under suspension", then you immediately stand up and call "Objection! Hearsay!". The computer operator has to come and testify, or the cop must produce certified printout to support his claim, otherwise the evidence cannot be admitted. In a multi-officer speed trap operation, the chance of hearsay evidence is very great, since ALL officers have to come and testify. Pay attention to their testimony.

There is more complication to hearsay evidence than the above general definition. As you now know, hearsay evidence from a 3rd party that benefits the side who provides the evidence is disallowed, but admission from the opposing side will be accepted. This is why what you said to the cop during your encounter will be used against you by him, even though the cop heard the statement from someone (you, the opposing side). Similarly, whatever the cop said that is detrimental to the Crown's case may also be used by you.

Lack of foundation:
The cop cannot testify something that has no basis on. He cannot comment on the accuracy of the speedometer of his cop car, without a calibration certificate, for example.

Speculation:
This is equivalent to a wild guess. The prosecutor might make a statement saying "the defendant knew that he was speeding anyway." Then you should immediately object because the prosecutor cannot be sure what you know.

Irrelevant:
If the cop says something that is irrelevant to the charge, or he mentions some other offences that weren't written down, object. For example, if you were charged speeding, then the cop says in court that you were not wearing a seat belt at that time, it is irrelevant unless he also charged you with a seat belt violation.

Immaterial:
Similar to irrelevant, but the evidence is somehow related to the charge, only that it is too remote to be of any use. For example, your past driving record.

Non-expert witness:
If the cop says something that is beyond his professional skills and training, object to his testimony. e.g., if he says "the defendant was crazy when I pulled him over", then you should object because he is not a psychologist. "His car's wheels were out of alignment", object because he is not a mechanic.

4. Examination-in-chief

Here, the prosecution attorney will ask their own witness(es) questions, in order to elicit the facts to prove their point. When the prosecution attorney is asking questions, pay close attention and make objections if improper questions are raised. Object immediately, don't wait until the witness answers or when the next question is asked. Stand up and call out "Objection, Your Worship!" and then state your reason(s). Usually objections are made when the prosecution has violated one or more of the rules of evidence. The judge will decide whether to sustain (grant your objection) or overrule it (deny).

There is nothing really you can prepare for examination-in-chief, except to prepare making objections immediately. Don't be afraid to make objections, even if it does not seem to have a strong reason. You might have overlooked something that the judge has noticed, and if you don't object, it will automatically be considered accepted by you. Study the rules of evidence carefully, and compile a list of possible objections in front of you so that you can quickly refer to them during examination-in-chief. That's why you have to come to court as a spectator to see how witnesses give testimonies and the possible violations they might make.

There are limitations of what kinds of questions the prosecution can ask their witnesses. They can only ask non-leading questions, nothing else. Here is an example of a non-leading question:
Q: What speed was the defendant travelling?

An example of a leading question:
Q: The defendant was exceeding the speed limit, right?

Stand up and call out "Objection, Your Worship. The counsellor is leading the witness."

If you rent the Legal Defense Kit from NMA, there might be suggestions that you object to the officer reading from his notes. This is of no use in Ontario, since the officer will be allowed to read from his notes, and he will swear that his notes are of his own hand-writing. Don't bother objecting to this. The judge will not sustain it.

After the prosecution attorney has finished asking the cop questions, you will be given the opportunity to cross-examine him. If the Crown has more than one witness, then the next witness will only be called to take the stand after you have cross-examined the first one. Then this procedure repeats until all the Crown's witnesses have testified and have been cross-examined.

5. Cross-examination

This is where the fun comes in. The cop will still be on the stand, waiting to be whipped by you. Just a reminder, that you are acting the role of a counsellor. You don't think yourself as the defendant in this part. I have seen too many clueless defendants who when offered the chance to cross-examine, were too eager to explain their case and pass up this golden opportunity to destroy the Crown's case. This happens too often:

Cop: "The defendant was travelling at 120km/h in a 100km/h zone..."
[Cop finishes his testimony]
Defendant: "No! No! He is lying! I couldn't have gone that fast, my cruise control was set at..."
Judge: "Sir, do you have any questions for the officer?"
Defendant: "You see, I drive a beater and it couldn't have gone that fast..."
Judge: "I said, DO YOU HAVE ANY QUESTIONS?"
Defendant: "No, no. I have to tell you this..." [already ready to get up and take the witness stand]
[clueless defendant sworn in, testified for himself that his cruise control was set at 115km/h and his car would shake at speeds above 110km/h, then promptly got convicted]

Cross-examination of the cop is your show time! Don't make the above mistake!

Your attitude in cross-examination should be always skeptical. Treat everything the cop said to be suspicious. There are some techniques to asking cross-examination questions. Unlike examination-in-chief, cross-examination is pretty freestyle. You can ask leading questions, suggest a scenario and ask him if it is possible, or even tell him the correct answer if he spoils it. The ideal cross-examination question is a yes/no question. Make it as little chance as possible for the cop to bring in more evidence favourable to the prosecution. If he answers more, stop him and tell him to only answer yes or no. Construct the questions in a way that an answer is obvious. The obvious answer should help your case and create doubt in the judge's mind about the prosecution's evidence. If the cop answers otherwise it will make him look stupid or you will have some documents to nail him. The bottom line is, you should know the answer to every question before you ask the cop. You must lead the questioning, and not let the cop go on about his own testimony.

Conducting a good cross-examination is vital to your defense. The approach is two fold: 1) destroy the credibility of the prosecution's witness(es); 2) introduce contradicting evidence. These approaches are not mutually exclusive. You should strive to achieve both. In fact, the second approach is necessary if you want to leave the court room with a not guilty verdict.

6. Don't shoot yourself

Repeat after me: "Ignorance of the law is NOT a valid defence to a charge". Excuses like the following will certainly fail:
"I didn't know the speed limit to this road"
"I didn't pay attention"
"My wife was about to give birth and we were rushing to the hospital"
"My speedometer broke"
"I was just following the flow of traffic"
"The tail wind was too strong"
"The throttle stuck"
"I was only going xx km/h over not yy km/h over"

If you admit that you actually broke a law, even with a very good explanation, you should have chosen "guilty with explanation" instead of "not guilty". Speeding is an "absolute liability"** offence which means there is no defence unless the prosecution couldn't prove it. Your job is to disprove the prosecution's evidence. Any explanation or any other defence is useless.

**In some provinces such as Nova Scotia, speeding is classified as a "strict liability" offence where the defence of due diligence is available to you. Also, even though most speeding charges are absolute liability offences, some courts now accept the defence of necessity (see later discussions).

7. Why you are not recommended to defend yourself

When you take the stand and are sworn in, you are expected to testify truthfully to the best of your knowledge. The reason why you should not defend yourself is simple: you don't want to shoot yourself or lie under oath. Unless you really didn't speed, and you strongly believe that the cop caught the wrong person, you should not testify and defend for yourself.

If you defend, you either will have to say you really did speed (shoot yourself), of you really did not speed (lie). If you lie and say that you were really only going 40 km/h on that road, unless you have special recollection of other facts to support that claim, nobody will believe you, and the prosecutor will have its own way to reveal that you either lied or weren't really sure that you were only going 40km/h. The police officer's credibility is always higher than yours. Remember, the judge has full power to choose whom to believe, you or the cop. If the cop says you were speeding, and you say you were not, both testified under oath, then it would be his words against yours. The judge will always, always choose to believe the cop. Unless you scored big time during cross-examination, the credibility of the cop will be always higher than yours. If you have already scored big time, why destroy all the hard work? Furthermore, the judge's choice of not believing in your testimony is NOT valid grounds for an appeal.

Lying under oath is a felony - which will cost much much more than the face value of the ticket itself. You are here to get rid of the ticket, not to get into bigger trouble. You really lose nothing more if you can't win, but you will lose more than just money (freedom?) if you lied.

You are under absolutely no obligations whatsoever to defend. If you have scored enough points, raised reasonable doubt in cross-examination, that's good enough. If you don't win, don't ruin your chances of taking the case to a higher court for appeal. If you defend, you will either have to admit (ruin your chances) or lie.

8. The FYST strategy guide

Before you read this section, make sure you have the following items ready: a copy of the ticket, your trial notice, a complete disclosure from the Crown, and a collection of important facts surrounding the citation. If you successfully obtained the public records from the police agency it will be even better.

As a general strategy, presentation is key. Make sure you are well organized and well rehearsed. If you draw diagrams, make sure they are big, clear and colourful. If you take photos, bring duplicate copies. If you make motions, state your grounds. Your defence should be short and specific. Bringing ten pages worth of questions for the purpose of general attacks on the radar/laser units won't work. The judge will become impatient. You should be aware that most traffic court prosecutors are amateurs in this profession, and they and the justice of the peace usually don't have a sound technical and legal background. So make sure you are very clear on how you present your arguments. To a certain degree, the trial is either won or lost in preparation stage. You should know what the witnesses are going to say, so you should be able to prepare an effective counterattack. You should be at least somewhat confident that your arguments will win the trial, or else you might as well come in with a plea bargaining offer. Don't just make up your arguments on-the-fly during the trial. Even the most experienced attorneys won't do that.

The following strategies can often be used in combination according to your specific situation.

Trial date scheduled more than 8 months away

The first thing I want to bring your attention to is your trial date and the offence date. Is the trial date scheduled more than 8 months away from the offence date? If no, skip this paragraph. If yes, you should know that if you have already changed your trial date multiple times, you would have waived your right to be tried promptly. But if the trial date is scheduled more than 8 months away through no fault of your own, then your right to a prompt trial (Charter of Rights and Freedoms, or Charter) may have been violated.

At least 15 days before the trial, file a form called "Notice of Constitutional Question" or something similar (FORM 4F, Courts of Justice Act). The purpose of this form is to give notice to the Crown that you wish to dispute the charge using Charter arguments. After you file the form, wait for the trial. At trial, when you are asked to enter a plea, state that "I ask that the charge be stayed on the grounds that my right to a prompt trial as guaranteed by the Charter has been violated, through no fault of my own, and that this unreasonable and undue delay has caused my inability to prepare a full answer to the charge and my inability to recall the details in the alleged offence due to such delay, and that such delay has caused lots of anxiety and stress to me for the past months". After you said the above statement, the court should dismiss the charge.

Click here for a sample of the Notice of Constitutional Question form. Replace the red text and modify the facts to suit your particular case. Send it to the addresses listed at the bottom of the form.

You received a photo radar ticket in the mail

Photo radar is gone for good in Ontario, but there are still many installations throughout other provinces in Canada and in the United States. This strategy only applies when you received the ticket in the mail. If you are served a ticket by an officer, you should treat it the same way as any other tickets. In Ontario, legislation was in place to hold the vehicle owners responsible for photo radar tickets (also red light camera tickets). When a mailed ticket is ignored and the fine goes into default, the vehicle owner may be denied renewal of his vehicle permits. If there is no such legislation in your province/state, your best response to a mailed ticket is no response. In BC, when a mailed photo radar ticket is ignored, the province will attempt service in person. The process server will not be actively looking for your whereabouts, and your last known address is the only place where he will be trying to serve the ticket on you. He can't just leave it in your mailbox, because someone must sign for it. Also note that they do not have jurisdiction to force entry to your residence. If you simply don't open doors to strangers (recommended!), there is nothing the province can do. Remember you are at a disadvantage when you are charged an offence months later, so you should make every attempt to frustrate the process server. New tactics tried out by the province is to have the process server call you in advance, to make sure that someone is home before they come. The process server will indicate on the phone that there is a "package" being delivered to you from the government. You can tell him to send it back (at the expense of the province!), or simply say you don't want it. If the server insists you have to take it, the last resort is you don't open the door when he comes. Or better yet, if you are a subscriber to caller-ID, simply don't answer unfamiliar phone calls. If service fails after several attempts, the ticket will eventually be dropped. Why contribute to the government voluntarily?

For further information about the photo radar program in BC, visit S.E.N.S.E.

Car description incorrect on ticket

This depends on what is incorrect. If it is a difference in opinion about the colour of your car, (i.e. dark blue or light blue), then such defence is not likely to be allowed. If the officer grossly misidentified your car, then you can use it to your advantage. It is wise to not say anything about the mistake until the officer has committed himself in his testimony. If you just mention it to the judge at the start, they will amend the ticket, and the officer will change his testimony accordingly. For example, your vehicle is a red Honda, while on the ticket the officer stated that it was a blue Toyota, then you let the officer go on about his testimony that he pulled over this blue Toyota such and such. The officer is not likely to remember what car he pulled over (unless it is really exotic), so he just reads from his notes. After he is finished, you ask him one more time to further confirm with him that he pulled over a blue Toyota. Now you produce your vehicle permit, show it to the judge that the vehicle bearing this license plate is actually a red Honda, and suggest that the officer may have pulled over the wrong vehicle and you ought to be innocent.

Wrong date/time on ticket

This is harder to take advantage because the law only requires that the offence occurred "on or about" the date and time cited on the ticket. You can still try the same strategy as above (incorrect car description), but you need much more specific evidence than "I wasn't driving on that day" to convince the judge. What I mean by "specific evidence" is it has to be something extraordinary. If you just say that "I was working on that day at that time" the judge will likely not believe you. Now for example if you were out of the country on a business trip, then the airline tickets and the immigration records would be sufficient proof that you weren't at the offence location on the day and time cited. Or another example would be if you attended a friend's wedding and you could bring that friend to court to testify for you, and he/she produced the marriage certificate to prove that they were married on that day, then it would be sufficient proof.

It is common for cops to make mistakes on the "year" field on the month of January, and the court clerks are pretty good at correcting those. So don't bother showing up in court arguing only that minor error.

You were not able to obtain disclosure from the prosecution

This is not uncommon. Prosecutors often ignore or refuse requests for disclosure. When you had diligently attempted to obtain disclosure, but the prosecution failed to respond to you, you should get the case dismissed during the trial. Don't accept disclosure at the trial. It is sometimes the prosecution's tactic to frustrate you in the process. They will have the disclosure ready just a few days before the trial, and it is too late to mail it to you, or you have to come to their office to pick it up, or you will get it at the trial. This completely defeats the purpose of disclosure. You should have received it well in advance, if you had given them a reasonable amount of time to prepare. At the trial, after you have pleaded not guilty, and just before the Crown calls its first witness, you should immediately raise a motion to have the charge stayed on the grounds that disclosure was not provided promptly upon request, even though the defendant had attempted diligently and had given the Crown a reasonable time to prepare. Cite the Crown Policy Manual (the manual for Ontario Crown Attorneys and prosecutors) policy D-1 on "Disclosures".

If disclosure is only provided to you at the trial, and the trial judge refuses to sustain your motion of having the charge stayed, then you can do either one of two things. If ALL of the Crown's witnesses are present, request an adjournment because you need time to prepare your case based on the information you've just obtained. Pushing the court date further into the future gives you two advantages: a free spin of luck that the next time around, not all of the Crown's witnesses are going to show up; and if the next court date falls outside of the maximum 8 month delay, your case will be thrown out. This is how you inconvenience them and their witnesses in response to their tactics! If NOT ALL of the Crown's witnesses have shown up, then you make sure you proceed with the trial at this point! The disclosure is no longer important. You are facing a side that can't string together a complete case.

Now we turn our attention to the facts surrounding the citation.

More than one officer involved in the citation

This is a classic example of a multi-officer, maximum production speed trap operation. Usually one officer operates a radar/laser unit hidden from view. When violators are spotted, the radar/laser operator will radio other officers, usually ready in chase vehicles, to chase down the violators. The detail of implementation will vary from case to case, and will depend on the geographic feature of the surroundings. The radar/laser operator can be located anywhere, on a highway overpass, behind unmarked vehicles, behind bushes or other buildings, or even in an aircraft. A common variation is a 3-officer operation, where one operates the radar/laser, a 2nd one stands on the highway to wave over violators, and a 3rd one writes the ticket.

This kind of tickets is easier to fight, since ALL officers involved in the citation will have to come to the trial. The hearsay rule prevents one officer from testifying for all others. So if any one of them is missing, the Crown will have to withdraw the charge.

If in the event that all of them are present, then you must make a motion to exempt all witnesses from the court room. This is done when the Crown's case is opened, i.e. before the first witness takes the stand. The reason is, you don't want the officers to hear evidence from each others so as to prevent them from tailoring their testimonies. If their evidence contains discrepancies, then reasonable doubt ought to exist. This strategy also applies when one officer plus other civilian witnesses are involved. This motion will always be granted. And the prosecution is glad that not many people know this!

The radar/laser cop is first up. Pay attention to how he relay the description of the violator's vehicle to the chase officer. Then ask the chase officer how the vehicle was described to him, and how he made his decision to give chase of your vehicle. If he had lost sight of your vehicle for any length of time, ask how could he be so sure of proper identification. Also ask how the violators' speeds were communicated to the chase officer/ticket writer, and were there any logs kept? The radar/laser operator usually makes a lot of "hits" in a short time depending on traffic condition, so you want to make sure he didn't attribute somebody else's speed to you.

From your disclosure, there should be a log of the vehicles pulled over in the same speedtrap duty. If there isn't one, there is no possible way to keep track of what speed was committed by which vehicle. In the log, you should see the offence date, the location, traffic density, the time the speedtrap operation starts and the end time. There is also a list of times, vehicle descriptions and speeds. You should be able to find your vehicle in that list. Usually all the other violators will be blanked out when they made your copy, to protect the privacy of other people. But you should ask to see the original during the trial. Now turn your attention to the "traffic density" entry on the log. There is only one traffic density for the several hours they operate the speed trap? You bet. Question him on that first. Now we are on to the vehicle list. Rarely do they accurately describe the vehicle, you might see entries like "dark sedan" or "white truck" which is hardly descriptive. Question him on that if you think the cop didn't accurately describe your vehicle. Depending on how they set up the speed trap, there may not be a lot of time for the radar cop to identify the vehicle, write down the description, and radio the chase officers before the vehicle is too far past the trap. The cop is lying if he said so. Most of the time what they do is, they see a car coming, radio the chase officer, and write down the description AFTER the vehicle is pulled over. It is obviously NOT the proper way to do it but they do it all the time! If the chase officer pulled over the wrong vehicle, they would be fabricating evidence! The radar cop might further say that he never took his eyes off the vehicle (to make it sound more assuring), but the fact is, if he had done it the proper way, he would have to take his eyes off the vehicle for at least 10 seconds, to fill out the entries on the table (time, vehicle description, and speed)!

The chase officer should be up next. If the vehicle description is vague like "dark sedan" or "white truck", then question him on how could he be so sure it was the right vehicle. The chase officer might counter that if he isn't sure about the vehicle, he wouldn't have tried to pull a vehicle over. But the fact is, the log is a record of the cars that were pulled over, NOT a record of cars that were speeding! So if the log says the radar cop spotted a "dark sedan" or "white truck", the chase officer pulled over a "dark sedan" or "white truck"! Whether the chase officer pulled over the right vehicle is anyone's guess. You argument should be, it is simply not enough for the officer to pull over "a vehicle". They often don't remember anything special about your vehicle in particular, let alone all the other vehicles around you that makes him certain you are "the vehicle". Having generic descriptions like "dark sedan" only made things worse. This is your chance to exploit the Crown's weakness to its fullest. They probably got you easy with this maximum-production speedtrap, but you are going to use it to their detriment.

Laser was used to obtain offence speed

Contrary to common belief, laser, or sometimes referred to as LIDAR (LIght Detection And Ranging), is not another form of radar. Strictly speaking, it is technically incorrect to refer to it as laser-radar. LASER stands for Light Amplification by Stimulated Emission Radiation. Suffice it to say, laser is some kind of light with special properties. Contrary to radar, which works on the doppler shift principle, laser works on the time-distance-velocity relationship. Since the speed of light is a known constant, therefore one can derive both the range and speed of the target object by using the relationship. Laser can be visible or invisible to the human eye, depending on its frequency. The most popular wavelength is 904nm, in the infra-red range of the frequency spectrum. Laser guns do not need any FCC certification in the U.S., since the FCC does not regulate that part of the spectrum.

When compared to regular radar, laser has a much narrower beam angle. A well trained police officer can accurately pick out a single target from a group of cars. Even the best police officer can't do this with a regular radar gun. Laser guns are almost always used in stationary mode mounted on a tripod since a moving patrol car will make targeting the laser beam extremely difficult. One important property of laser is that it goes through glass. Normally, a laser detector is useless since when it goes off, the cop has already got a reading and it is also time to pull over. But when the cop is targeting the car ahead of you, some of the laser beam goes through the windshield of the leading car and is picked up by your laser detector, then you will have time to slow down before the cop turns to target you.

As of the day this article is updated, there is no clear word on whether laser has received judicial notice. A judicial notice is said to have been given when the subject in question has been understood by the general public, or at least its theory of operation has been demonstrated to a court satisfactorily. A stopwatch has received judicial notice, since it is well understood that it is used to measure time. Radar has received judicial notice, since its theory of operation has been demonstrated by experts to the courts some long time ago.

When something has received judicial notice, the evidence it tendered will be admitted by the court. Of course there is a condition placed on radar units that although in general radar has been accepted, the burden is still on the prosecution to prove that in each case, the radar unit in question was tested and operated properly by a trained police officer. Now laser is something entirely new. Unless some expert witness has already proved to a court that laser guns can be used to measure speed accurately, laser still has not received judicial notice. Which means, if its evidence is challenged, it cannot be admitted. Laser is a just a beam of light. Using a beam of light (like a flashlight) to measure speed is not something the courts can take for granted. In Ontario, most laser based speeding cases have not been aggressively challenged, and judges just take the word from the cops that laser works. To prove that laser really works, the Crown has to subpoena an expert witness, usually someone from the laser gun manufacturer, to testify in court. Now the manufacturers are reluctant to do that because this would reveal their patented technology to others.

There are two ways to challenge laser. The first is to cast doubt on its theory, the second is to challenge the operational aspects. The first strategy can only be used if laser still has not received judicial notice. When the officer mentions using laser, immediately interrupt him and say that nobody knows what laser is and why is it an accurate device in measuring speeds. "If I told you this chair <or insert your favourite unrelated object> can measure speed, would you believe me?" Make a motion to have the laser evidence struck out. If your motion is denied, or if laser has really received judicial notice, ask for the relevant case law, and ask for an adjournment. This is reasonable because your defence is entirely based on the fact that laser has not received judicial notice.

The second strategy applies to everyone. Remember I said laser has a much narrower beam angle? This may help the officer pick you out from traffic, or this may even be detrimental to the Crown's case, depending on whether you can use it to your advantage. The officers are trained to aim for the license plate, since it has a nice coating of retroreflective paint. Now if the officer just pans the gun slightly, the laser may hit the windshield of the car (which is further back), or even completely misses the car. The sudden change in target location may screw up the speed, since laser works on the time/distance relationship to derive speed. Imagine the officer has to hold a heavy laser gun for a couple of hours, using super-steady hands to track moving targets! Radar obviously doesn't have this problem.

Of course if you just said the above paragraph to a judge, he won't buy your arguments. You are not a qualified expert, so your opinion carries zero weight. What you have to do is to plan your cross-examination questions and getting the cop himself to admit it.

Another operational aspect you can attack is the relationship between the laser gun's viewfinder and the actual area that the beam hits. The viewfinder often has no optical linkage to the actual beam, so whatever the officer is looking at in the viewfinder (and positioning the target cross hair at) is not necessarily what the beam is hitting. And the beam only has to be off by a few tenths of a degree to hit a wrong target. Since the beam is invisible, there is no way to know if it is off. Coupled with the first problem, you are looking at a device which is very susceptible to operational errors.

Once again if you just said the above to a judge, it won't work. You have to reveal this weakness by getting the cop to admit it. It will even be best if you can get the Crown to subpoena a laser gun to court so the cop can demonstrate it in front of everybody. Ask the cop to pan the gun slightly when aimed to a stationary court room wall. It has been demonstrated in the U.S. that the laser gun registered a speed of a wall and the defendant was subsequently acquitted.

RADAR was used to obtain offence speed - operator stationary

Radar has been widely used in traffic enforcement for at least a few decades now (an introduction to the technology of radar is in Appendix C). The legislation and case laws regarding the operation of radar have been pretty well established. In general, in order to establish prima facie evidence on the use of radar, the Crown needs to prove the following:

The radar operator was trained and qualified.
The radar unit was proved to be working properly by approved test procedures.
The radar operator had an independent visual estimate of the target speed and the estimate was confirmed by the radar reading.

Unlike in the U.S., there is no clear regulation in Ontario governing the standards of radar operator training and certification. The Crown only has to lead some evidence of operator training to satisfy the first requirement. You must get the police agency to give you any training certificate the officer obtained. You can compare that information to the testimony the officer gives. If the officer didn't attend training, make sure to have some authority from the police agency certify this fact, and bring the letter to court.

Again, Ontario does not have a provincial level regulation governing the test procedures of radar units. If the police agency has that kind of guidelines, it is definitely helpful if you can get it through public records request, otherwise you are pretty much out of luck. Most police agencies will keep calibration logs of their radar units, so it is useful to obtain those too. You can ask the officer how often it is required to calibrate/test the radar units. If the logs show that the radar unit missed some calibrations on the offence day, then the readings obtained will be unreliable. Also if the "official" test procedure requires that the tuning forks be certified, make sure they are done properly. Tuning forks are used to test the accuracy of radar units. A tuning fork is a piece of metal which looks like a fork (hence the name), and will generate a specified frequency wave when struck. It is an extremely delicate tool where fine scratches can result in huge differences in readings. Usually it has to be struck by a non-metallic object, such as the bottom of a shoe/boot. After the tuning fork has been struck, the cop will hold the fork in front of the radar antenna and see the reading. If the radar reading agrees with the fork's specs, the radar unit is said to be working properly. If not, the radar unit needs repair. Usually there are two tuning forks of different frequencies which will show as different speeds on the radar unit. Both have to be correct.

Finally, the greatest opportunity to attack the validity of the radar reading is to question how the officer uses the radar unit. Here I mention it again, general attacks on radar will not work. The following set of questions are by no means enough to get you off, nor are they proven to be working. Every traffic case is unique and there are no universally working questions. These questions are only some starting points. You should not just bring a copy of this article to court and hope that it will do you some good during the trial. You will have to tailor your own questions according to your specific situation based on the idea and suggestions given here.

The officer will have a version of their "model testimony", which is well rehearsed, and will cover everything that is needed to convict you. Most cops will say they saw this car coming, in his trained eyes it appeared to him speeding, and the radar reading confirmed it. THIS IS WRONG! They can never judge a car's speed using plain eyes farther than a radar can determine. The law requires that the officer has to form his own INDEPENDENT visual opinion that the car was speeding, and collaborate his finding with the radar reading. This can never happen. A radar, even the cheapest one, has a much longer effective range in determining target speed than the most capable plain human eyes. If a cop says he saw this car coming and it appeared to be speeding, then he checks his radar to confirm it, he is lying. The radar would have clocked the target speed long ago before he could even see it. The following line of questions will reveal this fact:

1. Officer, how far ahead can you see using plain eyes, given the weather condition on [insert date of offence]?

Take note of his answer. The intelligent officer will say he doesn't know, or it depends. Throw a number such as 200m at him and see if he agrees. If he still refuses to accept a figure, move on.

2. Do you know the approximate range of your radar unit?

If he is a competent radar operator, he should know the answer. If he doesn't know, make a motion to the judge that the officer is not a competent witness. Also move to strike radar as evidence. A typical radar unit has a range of approximately 400m (1200 feet).

3. Do you think that you can see farther than the range of the radar unit?

The obvious answer is no.

4. Isn't it true that you cannot see a car coming until the radar has already picked it up?

It is true, unless he sets up the radar around a curve or on a hill.

5. That means the radar has already told you a car is speeding even before you can see it?

Yes.

6. Would the radar reading somehow influence your decision about a car is speeding?

The honest officer will answer yes.

7. Can you form an INDEPENDENT [with emphasis] opinion about a car is speeding when the radar has told you it's already got one?

Obviously he can't.

Since now most cops don't set up the speed traps in plain view on a straight highway, they do that hidden around a curve or on a hill. So the next set of questions might be useful to you. The idea behind the following line of questions is, the time needed for radar to measure your speed once you pop into view is much shorter than for the cop to establish a visual estimate. It probably doesn't take more than 1 second for the radar unit to register a speed, but it can take up to 2 seconds for a cop to assess how fast you are going. It is preferrable that you draw a simple map to illustrate your point here.

1. Officer, this is a rough diagram of the highway in question here. Would you indicate to me where you were stationed prior to this offence?
Draw a mark on the diagram to indicate his position.
2. Officer, would you also indicate to me the approximate position and distance where you first saw the defendant's vehicle pop into view?
Draw another mark on the diagram to indicate your position.
3. What approximately was the distance? 80m? 100m? 150m?
Note his answer. Compare it to what you think it should be. It is unimportant, unless it differs substantially. It just gives the judge an idea how close you were.
4. In your experience, at that distance, how long does it take the radar unit to register a target speed? Half a second? 1 second?
It should be very short. Have you seen the huge billboards with two digital readouts on the roadside showing your speed measured by radar along with the posted speed limit? Those certainly don't take more than half a second to register your speed.
5. Officer, without any other influence, how long does it take you to estimate a vehicle's speed? 1 second? 2 seconds?
A vehicle travelling at 100km/h covers 27.78 metres in 1 second. I doubt he can form an estimate in shorter time than that.
6. That means the radar has already got a reading before you can completely analyze and establish an estimate about the target's speed?
Yes.
7. Would the radar reading somehow influence your decision about a car is speeding?
If he is honest, he should say yes.
8. That means you cannot form an INDEPENDENT opinion about a car is speeding BEFORE collaborating with the radar readout?
Whatever the cop scrambles to offer some explanation is unimportant. Your point is made and you can tell him to stop, and only answer yes or no.

You are in very good shape if you were not the only moving car on the road when the citation occurred. The classical approach is to blame it on somebody else. Ask the following questions:

1. Can your radar unit distinguish between different directions of traffic?

Almost all traffic radar can't. They can register speed both coming towards or going away from the radar unit.

2. How wide is the radar beam at a distance of 100m, 200m, 300m...?

Note his answers. If he says he doesn't know, tell him to answer in number of lanes. A typical radar can cover all four lanes of traffic at 200m.

3. Can your radar unit distinguish between targets? In other words, does it tell you which car is responsible for a reading?

No! The ones which can cost millions of dollars.

4. Since your radar unit cannot distinguish target direction, nor identify targets, that means any moving car on all 4 lanes of traffic in range can produce a reading?

Yes, certainly.

5. How do you know the alleged radar reading [insert offence speed] wasn't produced by that truck in the right lane?

He doesn't know. Hence reasonable doubt exists.

If you have made this far, congratulations. In the cop's testimony, he might have stated that you were passing other cars and thus were fastest. But don't worry, as long as there were other cars in the opposite direction, the classical approach still works.

6. Officer, you testified that I was the fastest among traffic. Is it possible that the radar reading was produced by opposite traffic, while I was only passing vehicles who were travelling below the speed limit?

See? Going faster than other vehicles isn't against the law. The cop can't possibly compare speeds in opposite directions, therefore reasonable doubt still exists.

If you weren't so fortunate, that you were the only car on the road, things are a little more difficult for you. You may have very little chance of winning, but you've got to try anyway. (assuming you already know the range of the radar unit, and the approximate range that the cop can see ahead.)

1. Do you agree that the radar unit has a longer range than your eyes?

Yes.

2. Is it possible that the radar is clocking some moving vehicle that is beyond your visual range?

Yes.

3. then is it possible that more than one car were in range of the radar, but the defendant's car was the only one visible to you?

Yes, it is possible, but the clever officer will answer unlikely.

If things are not looking too good for you at this stage, it isn't the end of the trial yet. If you have surveyed the surrounding area, and have found neon signs, power lines or other transmitters nearby, you could ask the officer's opinion about the effects of these things have on the radar. He may outright deny it, so that explains why you should make every effort to obtain as much information as possible from your public records request. If you obtained the radar manual, you can find out what are the pitfalls and shortcomings of the radar unit. They should be documented in the manual. For example, some radar units will produce unreliable readings if the ambient temperature falls below or rise above a certain range. If the offence date happened to be a cold or hot day which will likely affect the reliability of the radar unit, then you make sure that you ask the cop how hot or how cold that day was, and show him at that temperature, the radar wouldn't give reliable readings.

RADAR was used to obtain offence speed - officer in moving patrol car

All the radar errors in stationary mode apply to moving mode. In this case, the officer can be following you, or coming towards you. There are so many things that can affect the accuracy of moving radar. The basic questioning works pretty much the same as for stationary radar, plus you get to question him on how the radar unit obtains the patrol car's speed. With oncoming traffic a major factor, the possibility of obtaining a false reading is quite high. Since the target speed is computed by adding/subtracting from the patrol car speed, there are now two possibilities of overestimating your speed, and the effects can be quite substantial.

Pacing was used to obtain offence speed

Unfortunately, it is much harder to dispute a pacing speeding ticket. Perhaps you have yourself to blame for not carefully watching the rearview mirror while speeding, but that's not important now. One important element in pacing is that the patrol car's speedometer has to be calibrated and certified. It isn't enough that the officer SAYS it was calibrated. Since he himself didn't personally calibrate it, therefore he is offering hearsay evidence. Some courts miss this. You have to ask him to produce a certificate to prove that it was calibrated. The next issue is how often the speedometer needs to be calibrated. Be sure to make a public records request to see if the police department has such guidelines. If the calibration is not done within a prescribed time period, you will get off on a technicality.

The next major element in the offence is that the officer has to follow you at a fixed distance, and allow himself to take a reading from the (calibrated) speedometer, in order to establish the case. Pay attention to his testimony. If he says he was trying to catch up to you, then he has no basis to know your exact speed since he has to be driving faster in order to catch up.

Officer obtained offence speed from aircraft

Note that this strategy is to be used together with the "multiple officers" one. When an officer is in an aircraft, then obviously another has to be stationed on the ground to pull over speeders. Most aircraft patrols don't use radar to detect speed, since it is considered not very effective and accurate. The most common method is to do it the old-fashioned way: by timing the target going through a known distance. Some highways have light posts installed at fixed intervals, this will provide the air patrols with known distances to work with. Coupled with a simple stopwatch, a vehicle's speed can be easily calculated.

A vehicle travelling at 100km/h will cover 27.78 metres in one second. Say if two light posts are 150m apart, it takes approximately just less than 5 seconds for this vehicle to cover the distance between two light posts. If an error of 0.2 seconds is introduced into the time, then the resulting vehicle speed will be off by approximately +/- 5km/h. An error of 0.5 seconds will result in a difference of +/- 10km/h. Longer distances will reduce the effect of error, while shorter distances will dramatically under- or over-estimate the target's speed.

Your point of argument should be centred upon the reaction times between observing the vehicle hitting the marks and pressing the stopwatch button by the officer. Be sure to count the reaction times twice because he has to hit the button twice. A human's reaction time is generally found to be somewhere around 0.15 to 0.2 seconds.

Don't bother attacking the accuracy of the stopwatch. Stopwatches have received judicial notice, and they don't need certification either.

Defence of necessity

In rare circumstances, you may want to consider this approach. Please keep in mind, that defence of necessity is not acceptable in all jurisdictions. Ontario is one exception. It is entirely possible to use this strategy to defend yourself if you think you fall into the following situation: you must speed to avoid a nasty accident or collision, which would be very likely to endanger yourself and others.

The concept of defence of necessity is to plead not guilty to the charge, but do not dispute the charge. Using this strategy precludes you from using the other strategies mentioned here at the same time, except the argument of unreasonable delay and lack of disclosure. You will state your side of the story why speed was the ONLY possible solution to avoid being involved in a bad accident. I have personally witnessed such a case in court, where the defendant was charged 90 km/h in a 60 km/h zone. He was travelling on the right lane, which was going to merge into the left lane, and obstruction was ahead so merging late was not a possibility. There was a bus (much greater in size and weight) behind him gaining on him, so braking was not possible either. There were traffic in the left lane beside him, so the only possible way was to speed up, overtake the left lane traffic, find an open space and merge in. The judge decided that the defendant was not guilty.

There are two elements which you have the burden to prove that it was necessary to speed:

speeding up was the only possible option given the circumstances, and
not doing so would result in serious consequences, much worse than violating a speed law.

If you can convince the court that those two elements are satisfied, you may very well be acquitted.

9. Know what to expect

This is an unfair battle. You are not expected to win, especially if this is the first time you are to defend yourself in a court of law. The courts go great lengths to try to intimidate you, and every effort is made to hide the rights you are fully entitled. Did you know that you have a right to disclosure? Probably not. Did you know that you can exempt multiple witnesses from the courtroom for impartiality reasons? Probably not. But the prosecution will happily let them all sit in the courtroom if you don't ask. Did you know about judicial notice? Most likely not. But the prosecution will try its best to introduce unproven technology to convict you, and the judge will happily accept it.

After all the preparation, it pays to know what to expect from the court. "Justice" or "innocent until proven guilty beyond a reasonable doubt" is probably last on the list. Traffic court judges will openly admit that everyone speeds on the highway, so the onus of proof lies with you that you weren't speeding. You'd better have SOLID proof for that, and "cruise control" isn't one of them:

You: "I always set my cruise control at 100km/h. I couldn't have been speeding."
Crown: "But if you put your foot on the gas pedal, the car would accelerate anyway?"
You: "Yes."

Bingo. The Crown has just created "reasonable doubt" in your testimony! Similarly, defences like "my car would shake at speeds above 100" or "my wife screams whenever I break the limit" are equally ineffective.

It first seems like all odds are stacked against you, but there is nothing more to lose if you are convicted. Just pat yourself at the back for a job well done, pay the cashier on your way out, put everything behind you and get on with your life. You have made the system work for your money, and this is good enough. Think of it as a bonus if you do win. In most cases, even if you lose, you can get the fine reduced by a considerable amount just by sitting in the courtroom for a while. Routinely courts will reduce your fine and/or grant an extension of up to 90 days to pay. Then you already come out ahead.

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