Three (3) Trials for the Same Speeding Ticket?

Update:

The following story was extracted from Ottawa Citizen and the Ottawa Sun.

In November 2008, Mr. Dennis Pacitti, a 43 year old independent contractor from Toronto, was accused of travelling at 149 km/h in his pick-up truck, on the Queensway near Woodroffe Avenue, in Ottawa, which has a posted speed limit of 100 km/h. The police officer who pulled him over, was allegedly pacing Mr. Dennis Pacitti speed, using his own vehicle, as opposed to using radar/lidar to measure his speed.

He contested his speeding ticket in the Ottawa courts and when it went to trial in April, 2009 he was convicted of speeding (149 km/h in a 100 km/h zone) and was fined $359.00 and had four (4) demerit points placed on his driver’s licence with the Ministry of Transportation.

Mr. Dennis Pacitti‘s lawyer, Mr. David Anber, appealed the Justice of the Peace’s April 2009 decision to convict his client and a second trial was ordered.

At a second trial on June 25, 2010 , Mr. Dennis Pacitti won his speeding ticket at trial, at which he was aquitted of the charge of speeding.

The City of Ottawa launched an appeal of the acquittal the a week later.

Despite the fact that Mr. Dennis Pacitti had to pay the initial fine of $359.00, it was not refunded when he was acquitted of the charge of speeding.

The City of Ottawa launched an appeal of his acquittal last month.

“It’s a matter of public safety and a driver going way too fast,” said Stuart J. Huxley, senior legal counsel for the city and supervisor of its prosecution unit. “This case will help create a deterrence to show drivers that we cannot tolerate excessive speed on our highways.”

Mr. Stuart J. Huxley said that the city’s continued pursuit of the case was in the public interest.

Mr. David Anber’s main argument against the city’s case relies on the absence of laser or radar gun recordings of Mr. Dennis Pacitti ‘s actual speed. The police officer who pulled Pacitti over was driving at the time and based the charge entirely on his own observation.

The police officer didn’t measure Dennis Pacitti’s speed using any objective means, nor did he try to match Dennis Pacitti pace in order to use his own vehicle’s speedometer to determine how fast Dennis Pacitti was actually going, Mr. David Anber said. “It was a ‘guesstimate,’ and opinions or ‘might have beens’ are not good enough evidence .… They aren’t enough to say my client was speeding without a reasonable doubt.”

The City of Ottawa’s Mr. Stuart J. Huxley said not all police officers could easily take radar or laser readings while driving and that officer observation was a reliable method of tracking speed. “These officers know when someone is speeding. Just because they didn’t take an official speed reading doesn’t mean that they shouldn’t uphold the law by pulling these drivers over.”

According to Mr. David Anber, there haven’t been any cases in Ontario where police observation has been enough to convict someone of speeding. In all previous cases, an objective measurement of speed has been necessary for conviction.

For that reason, Mr. David Anber said that if Mr. Dennis Pacitti was found guilty and the conviction stuck, his case would set a precedent for speeding cases in Ontario. “It would mean that opinions would be enough to convict,” Mr. David Anber said. “And that would be shocking.”

Mr. Dennis Pacitti is very upset, as his auto insurance premiums have increased more than two thousand ($2000.00) a year since the incident and he has had to pay thousands of dollars in addition to the insurance hike, for his legal costs to fight this ticket.

A judge will decide in October, whether or not to uphold the City of Ottawa’s appeal.

Mr. David Anber said that if there is a third trial, in which Mr. Dennis Pacitti is found guilty, he will appeal the decision.

Update: October 12, 2010 – The City of Ottawa loses it appeal in the Dennis Pacitti case. The Courts ruled that the Justice of the Peace’s decision to acquit Mr. Pacitti was not totally unreasonable, which has the effect of upholding the acquittal.

See the story in the Ottawa Citizen:

While Ontario Court Justice Robert Fournier said he may have ruled differently, he found no “fatal errors” in a justice of the peace’s decision to acquit Dennis Pacitti last June of speeding 149 km/h in a 100 km/h zone after hearing evidence that the police officer who gave him the ticket didn’t know the exact speed.

City prosecutor Anne Colterman argued Tuesday the justice of the peace made a mistake dismissing the charge since there was evidence Pacitti was speeding at the time, even if no official record of it exists.

Colterman said the officer’s speedometer was at 115 km/h when he pulled in behind Pacitti.

“You don’t need a radar, you don’t need a laser, you don’t need to calibrate your speedometer. Anyone can make that estimation,” she said.

Pacitti’s lawyer, David Anber, argued that the city’s appeal should be dismissed if the justice of the peace’s decision was reasonable, and not whether the judge hearing the appeal agrees with the outcome.

Fournier agreed, finding he had no choice but to dismiss the appeal.

“The test is not whether I agree or disagree. The test is, is it a reasonable verdict or is it a totally unreasonable verdict. I can’t find it is a totally unreasonable verdict,” said Fournier.

“I think the justice of the peace could have concluded the guesstimate was accurate enough to warrant a conviction,” said Fournier. “Nevertheless, the justice of the peace thought there shouldn’t be a conviction. I can’t overturn that.”

Pacitti, whose insurance rates have skyrocketed on top of his lawyer fees, wasn’t in court to hear the outcome. But Anber said the court battle has been hard on him.

Anber, who accused the city of “making a mountain out of a molehill,” said the case raised fundamental legal issues about proof beyond a reasonable doubt.

“It’s one thing to read between the lines. It’s another to prove it in court,” said Anber. “And they couldn’t prove it.”

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7 comments

  1. I had this crown also and found her position equally unreasonable. The rule of law requires proof period. If we ever move away from that we are big trouble.

  2. “…officer observation was a reliable method of tracking speed”? That is a bit prejudicial, isn’t it? Unless the accused’s speed was tracked using an approved device (e.g properly certified and calibrated radar), the prosecution is making a case against the driver based on cop’s personal, subjective, and not necessarily unbiased opinion! If a cop concluded that the subject was speeding by following him in his own vehicle, based on his own speedometer reading, shouldn’t he present the certificate from an approved auto service facility (car dealership), that his vehicle’s speedometer was calibrated and tested to display accurate speed reading? And would that even work as an acceptable evidence, since his was using his personal vehicle, not the police cruiser?
    By the way, if the cop was following the accused in his own, PERSONAL vehicle, not the patrol cruiser, that means he was off duty, and he was able to catch up with the subject, doesn’t that mean that the cop was speeding too? And is guilty of speeding as much as the person he is accusing? Maybe, the court should consider laying charges against the officer too! Because the laws in this country should apply equally to everybody, including police officers, whether they are on or off duty!

  3. Hi David:
    Thank you for responding. It sounds like you have done a great job on behalf of Mr. Pacitti to date. This is a case where Mr. Pacitti required legal representation, given the demeanour of the Prosecutor.
    This case reminds me of others where an overzealous Prosecutor has something to prove at the defendant’s expense. In the interest of fairness, given Mr. Pacitti’s circumstances, the case should be abandoned on behalf of the City of Ottawa. To do this however, would mean that Mr. Huxley would have to exercise his discretion and to demonstrate some professionalism.
    Please keep us updated with respect to this case and how the courts decide to deal with this.

  4. By the way, I am the lawyer for Pacitti. One thing that should be clear is that Huxley originally took the position that this was a pace case (i.e. speedometer case). The evidence in this case doesn’t meet the standard for being a valid speedometer case.

    D.A.

    http://www.DavidAnber.com

  5. Hi Jason: It sounds like a Prosecutor that doesn’t like to lose and will make the defendant pay (in legal fees, travel and won’t even return the original fine monies that he paid when he was found guilty at the first trial) even if the City of Ottawa loses the appeal.

    Remember to always http://fightyourtickets.ca

  6. “It’s a matter of public safety and a driver going way too fast,” said Stuart J. Huxley, senior legal counsel for the city and supervisor of its prosecution unit. “This case will help create a deterrence to show drivers that we cannot tolerate excessive speed on our highways.”

    Wow.

    Talk about convicting someone based on the “need” to set an example, eh?

    And he could’ve walked free if he only stuck to the fact that the officer who pulled him over, acting as a peace officer in that matter, did not observe him breach the peace in any way, shape or form.

    No harm, no foul.

    What a messed up system…

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