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11b Questions
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PostPosted: Tue Jan 10, 2017 6:02 am 
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Joined: Mon Jan 30, 2012 10:22 am
Posts: 17
My trial was delayed in august to march of this year because the previous case required a translator which put it at 14 months from date of issue.

On my 11b do I just make my argument based on section 11b being breached because of the time?

Also, can I show up to do this instead of my wife as she will be due to deliver a baby the following week?

Thanks


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 10:09 am 
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High Authority

Joined: Thu Jul 26, 2012 1:18 pm
Posts: 1477
Yes you can represent your wife and she does not need to be there. But I believe you need copies of the transcript from any previous court dates.

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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 1:47 pm 
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Location: Markham
You can try to make a section 11(b) Charter argument, but it has been more difficult to do so unless your case has reached the new presumptive ceiling guideline of 18 months set in the Supreme Court decision R. v. Jordan in order to be considered an "unreasonable" delay.
https://scc-csc.lexum.com/scc-csc/scc-c ... 7/index.do

When I was in court recently, I overheard that all prosecutors (municipal or otherwise) at the provincial courts have received a memorandum regarding this decision back in July when the Supreme Court decision was made. So if you try to make a Charter 11(b) argument with 14 months delay, the prosecutor will come back with the R. v. Jordan case and the Justice will likely concur with the 18 month presumptive ceiling for provincial trial courts.


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 3:11 pm 
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It will probably take somebody having to take the presumptive ceiling thing to Ontario Court of Appeals to get a real decision as to whether it applies to POA or not.

My opinion is that it does NOT apply to POA. Prosecutors will of course argue that it does.

Read this thread for further comments:
topic7680.html

I would still make the 11b argument. Even if the JP agrees with prosecutors, then you still have a reason to try an appeal to see if a Judge agrees that the case applies to POA as well.

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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 5:32 pm 
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The other problem I run into is that my wife is pregnant and due to deliver on March 17th (which I can back up with documents). I am guessing that even if the JP agrees that I can adjourn for another day if they will not accept the 11b?


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 6:29 pm 
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Joined: Thu Nov 24, 2016 6:32 pm
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When considering an 11b application the justice will determine how much of the delay is due to the actions of the crown and the defendant. If you request this adjournment, the delay caused by it would not be counted toward the total delay for the purposes of the 11b application.


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 6:33 pm 
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lolwut wrote:
When considering an 11b application the justice will determine how much of the delay is due to the actions of the crown and the defendant. If you request this adjournment, the delay caused by it would not be counted toward the total delay for the purposes of the 11b application.


It would but that has no bearing on my case as it is already 14 months and I intend to show up on March 9th as they delayed it for another case requiring a translator.


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 6:45 pm 
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Joined: Thu Nov 24, 2016 6:32 pm
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Just so we can all understand the situation better can you fill in some of the blanks here?

-What was the offence date and what was the charge? Are we talking HTA or other provincial offences?
-Was your only court date in August of last year or have there been others? Please list all court dates and what happened on them.

The reason I am asking is because it's very unusual for your first appearance to be 7 months after the offence, and an adjournment to be 7 more months from the first trial date. In order for us to provide meaningful advice we need all of the details.


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 6:51 pm 
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High Authority

Joined: Thu Jul 26, 2012 1:18 pm
Posts: 1477
And what was the date you asked for a trial? If you did early resolution the time up to that point does not count either.

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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 6:59 pm 
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Joined: Mon Jan 30, 2012 10:22 am
Posts: 17
lolwut wrote:
Just so we can all understand the situation better can you fill in some of the blanks here?

-What was the offence date and what was the charge? Are we talking HTA or other provincial offences?
-Was your only court date in August of last year or have there been others? Please list all court dates and what happened on them.

The reason I am asking is because it's very unusual for your first appearance to be 7 months after the offence, and an adjournment to be 7 more months from the first trial date. In order for us to provide meaningful advice we need all of the details.


sorry, I will do that now.

- Offence date was January 14, 2016

- Charge and only charge was 159(3), which was odd as she pulled her over about 100 feet before the squad car and even though my wife explained she had a vehicle beside her, had her signal on and never passed the vehicle. The officer said it was a sunny day so she should pull over kms away from the squad car..... ( i have it all on tape. love ,my dash cam)

- my only court date was August 9th, 2016. I requested disclosure June 6, 2016 and never received it. I was told before any trials were to begin that all trials are being moved to another date as there was one requiring a translator and they take precedence.

- I was then told March 9th, 2017 would be my next court date.


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 8:20 pm 
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I forgot to mention I applied for trial date and innocent and never went to a consultation or anything else.


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 8:38 pm 
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How has your right to make full answer and defense been prejudiced by the 14 month delay?

That will be the biggest hurdle you'll have to overcome in an 11b application. Clearly, you haven't lost your dash cam footage nor have anything that is overly time sensitive such as a dying witness or someone who is moving away, etc. Remember, you must establish prejudice in order to justify the stay.

But you should also know that if the JP really understands the law, they'll dismiss your 11b application anyway based on the fact that you weren't ready to proceed to trial earlier on any of those dates----after all, you still haven't received your disclosure. How can you argue prejudice if you don't even know what the case is to meet!

That being the case, then you should have filed a section 7 Charter challenge for lack of disclosure.

You can't have it both ways----you either didn't get disclosure to be able to defend yourself (a s.7 application), or you DID have everything you needed to proceed and were ready to proceed but the delay has caused you a prejudice that only a stay of proceedings can remedy (a s.11b application).

You therefore need to read more about the difference between a section 7 and section 11b remedy.


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 8:43 pm 
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Joined: Mon Jan 30, 2012 10:22 am
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highwaystar wrote:
How has your right to make full answer and defense been prejudiced by the 14 month delay?

That will be the biggest hurdle you'll have to overcome in an 11b application. Clearly, you haven't lost your dash cam footage nor have anything that is overly time sensitive such as a dying witness or someone who is moving away, etc. Remember, you must establish prejudice in order to justify the stay.

But you should also know that if the JP really understands the law, they'll dismiss your 11b application anyway based on the fact that you weren't ready to proceed to trial earlier on any of those dates----after all, you still haven't received your disclosure. How can you argue prejudice if you don't even know what the case is to meet!

That being the case, then you should have filed a section 7 Charter challenge for lack of disclosure.

.


Now that my wife is pregnant and due March 17th, she can no longer appear in court as the added stress will be too much for her. This has not been a good pregnancy for her and hard on her.

I didn't even get to tell the JP that I never received disclosure, I was brought up and told this is my new date....

I was ready to proceed on those earlier dates. I actually asked to be heard but was told no as apparently trials with translators take precedence.

I made another disclosure request today. My wife was in court with me last time ready to take the stand but obviously that is not what happened.

Do either of these help my case for a section 11b?


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 9:27 pm 
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To be perfectly honest, I suspect your 11b application will fail due to not enough time having passed yet. After the SCC decision in Jordan, most POA courts ARE adapting the 18 month ceiling as applying to them. The good thing with the Jordan interpretation is that it eliminates the need to have to establish 'prejudice'---since it will be presumed after the ceiling.

Their acceptance of the decision has a lot to do with the rationale that POA courts can't have it both ways----they are either competent courts able to award constitutional remedies (e.g. stays under s. 24 of the Charter) or they are not empowered to do so. If they are able to provide such remedies (which is widely-accepted now!) then they are quasi-criminal in nature; making the Jordon decision applicable to them.

You can read a very good analysis in the R.v.Ramsay decision (decided by a JP at the OCJ).

You'll also notice that the JP accepts the SCC's analysis that the Morin decision is outdated and the time limits must be more flexible.

Of course, keep in mind that this is just a JP decision. The matter has not been fully decided by higher courts----but they undoubtedly will also agree with this basis. The SCC made a very detailed statements that would be very hard to go against.

So, bottom line: I think it will be difficult for you to win on an 11b argument at this time.

That's not to say, don't try---go for it. Raising your wife's pregnancy issues certainly will create sympathy by the court. Just be prepared to argue your case anyway (which by the way, will be very difficult to do without disclosure!).

Just be aware that if you don't get the disclosure before your trial date, I highly doubt the court will give you an adjournment if you also argue an 11b application (after all, you'd be saying you are ready to proceed to trial when making the 11b application!).


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Re: 11b Questions
PostPosted: Tue Jan 10, 2017 9:29 pm 
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Joined: Mon Jan 30, 2012 10:22 am
Posts: 17
So if I do not receive disclosure before the 15 days I am better off arguing that instead of filling for an 11b?


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