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Re: Careless driving - left turn causing collision
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PostPosted: Mon Jan 02, 2017 6:59 pm 
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argyll wrote:
...The worst we ever discussed at work was whether a police officer could be disturbed criminally...


Disturbed mentally is a given, but criminally is a whole different issue! :lol:


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Re: Careless driving - left turn causing collision
PostPosted: Mon Jan 02, 2017 8:09 pm 
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In Ontario Court of Justice, one JP's decision is not binding on another JP.

But when you find an Ontario Court of Justice appeal case (not Ontario Court of Appeal) that was decided by a Judge, is that case binding on JP's since a Judge decided it?

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Re: Careless driving - left turn causing collision
PostPosted: Mon Jan 02, 2017 8:37 pm 
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jsherk wrote:
In Ontario Court of Justice, one JP's decision is not binding on another JP. But when you find an Ontario Court of Justice appeal case (not Ontario Court of Appeal) that was decided by a Judge, is that case binding on JP's since a Judge decided it?


That's correct.

To further clarify, a Superior Court of Justice decision is binding on an OCJ judge, and an Ontario Court of Appeal decision is binding on both (and the JP for that matter). Of course, the Supreme Court is binding on everyone.

Of course, that's the theoretical rule. However, keep in mind that in practice, lower courts are notorious at 'distinguishing' their case from the 'precedent' case. In other words, they hold that THEIR case is different from what the higher court (precedent) ruled (to get around being bound by that decision!). Plus, equal level courts sometimes disagree with the other's interpretation. So, one OCJ appeal judge will decide differently than another OCJ appeal judge!

That's when you get conflicting decisions, and then you need a higher court to clarify things. It happens all the time.


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Re: Careless driving - left turn causing collision
PostPosted: Thu Jan 05, 2017 12:28 pm 
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jsherk wrote:
Just call them and ask if it is ready. If you still have not received it by the trial date (or get less than 2 weeks before the trial) then you can ask for an adjournment at the trial and say you want to have time to review the disclosure with a lawyer.


Most Prosecutor Offices will not mail out disclosure packages and you will likely be required to pickup your disclosure in person. While I can not directly advise you how to act on your own behalf at court as a self-represented defendant, a second formal and documented disclosure request would generally be my standard practice. Should disclosure not be provided by trial, it would be a basis to request the charge be dismissed although the Justice may grant an adjournment to allow the Prosecutor more time to remedy the lack of disclosure.

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The content of this post is not legal advice. Legal advice can only be provided after a licenced paralegal has been retained, spoken with you directly, and reviewed the documents related to your case.


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Re: Careless driving - left turn causing collision
PostPosted: Fri Jan 20, 2017 12:50 am 
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OTD Legal wrote:
jsherk wrote:
Just call them and ask if it is ready. If you still have not received it by the trial date (or get less than 2 weeks before the trial) then you can ask for an adjournment at the trial and say you want to have time to review the disclosure with a lawyer.


Most Prosecutor Offices will not mail out disclosure packages and you will likely be required to pickup your disclosure in person. While I can not directly advise you how to act on your own behalf at court as a self-represented defendant, a second formal and documented disclosure request would generally be my standard practice. Should disclosure not be provided by trial, it would be a basis to request the charge be dismissed although the Justice may grant an adjournment to allow the Prosecutor more time to remedy the lack of disclosure.


Thanks for your advice,
I did call the prosecutor's office last week to follow-up on my disclosure request, but the clerk said that they hadn't received the brief yet. I made a note of the time, date, who I spoke to, and their position within the office. I then sent a second disclosure request by fax to the number they provided, and kept the fax receipt.

As of Jan 19th, I still have not received disclosure prior to my January 30th trial date. Can I still ask for the charge to be dismissed? If I ask for an adjournment, how will this affect my chances at getting a plea deal with the prosecutor, or of getting a better deal?

Thanks!


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Re: Careless driving - left turn causing collision
PostPosted: Fri Jan 20, 2017 9:20 am 
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So lets assume that on the trial date they still do not have the disclosure ready for you. In this case, I would NOT ask for adjournment but instead I would state all the dates that you made the requests for disclosure and then ask for the charge to be dismissed. However, most likely it won't be dismissed and the JP will tell the prosecutor that they need to get you disclosure and will adjourn it anyways. But by you asking for it to be dismissed, the delay will count against the prosecution and not against you.

There is also the possibility that they give you disclosure on the day of trial. In this case I would do the exact same thing as above... I would NOT ask for adjournment but instead I would state all the dates that you made the requests for disclosure and then ask for the charge to be dismissed. Of course since they just gave the disclosure the JP will not dismiss it. If the prosecutor does not make the motion for an adjournment but instead wants to proceed to trial, then you object and say you need time to review the disclosure and prepare your defense, and then you will most likely be given an adjournment. Some JP's however may say "no adjournment. go out in the hall and review disclosure and then we will start trial". If this happens, then you should object again, but then after the trial, if you lose, you have a great reason for an appeal.

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Re: Careless driving - left turn causing collision
PostPosted: Fri Jan 20, 2017 5:29 pm 
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jsherk wrote:
So lets assume that on the trial date they still do not have the disclosure ready for you. In this case, I would NOT ask for adjournment but instead I would state all the dates that you made the requests for disclosure and then ask for the charge to be dismissed. However, most likely it won't be dismissed and the JP will tell the prosecutor that they need to get you disclosure and will adjourn it anyways. But by you asking for it to be dismissed, the delay will count against the prosecution and not against you.

There is also the possibility that they give you disclosure on the day of trial. In this case I would do the exact same thing as above... I would NOT ask for adjournment but instead I would state all the dates that you made the requests for disclosure and then ask for the charge to be dismissed. Of course since they just gave the disclosure the JP will not dismiss it. If the prosecutor does not make the motion for an adjournment but instead wants to proceed to trial, then you object and say you need time to review the disclosure and prepare your defense, and then you will most likely be given an adjournment. Some JP's however may say "no adjournment. go out in the hall and review disclosure and then we will start trial". If this happens, then you should object again, but then after the trial, if you lose, you have a great reason for an appeal.


Thanks for your reply jsherk.
I was wondering if you had any experience with:

1) how an adjournment might affect my chances at getting a plea deal from the prosecutor, would dragging it out mean I'm less likely to be offered a deal to plead guilty to a lesser charge?

2) what happens in the case of an appeal? is the trial re-done?


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Re: Careless driving - left turn causing collision
PostPosted: Fri Jan 20, 2017 5:51 pm 
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(1) Prosecutors do not have to offer you a plea deal at all. It is up to them if they want to do that or not, and it is up to them whether they choose to offer you one later or not. It is completely up to the prosecutor and an adjournment may or may not make a difference later on. It is completely up to each individual prosecutor.

(2) An appeal is NOT a new trial. At an appeal, you basically are saying that the Justice of the Peace or the Prosecutor made some kind of mistake, and Judge will look at the transcripts and decide if there really was an error made or not. If the Judge agrees an error was made, they can either order a new re-trial or order the charge dismissed. With charges like speeding tickets, they will usually just order the charge dismissed.

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Re: Careless driving - left turn causing collision
PostPosted: Sun Jan 29, 2017 9:41 am 
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Quick update: my trial date is tomorrow, I have not yet received disclosure, although I have followed up at least a couple weeks ago (noted the date/time, name of the person I spoke to, and his position in the office), and on the same day I submitted another disclosure request (just faxed my previous one again, while noting on the copy that it was my second time requesting disclosure) and kept the fax receipt.

You guys have been truly helpful with the advice, and because of the stressful situation, it helps to have someone with a calm mind to bounce ideas off of.

I think that the case will probably be adjourned because I have not received disclosure yet, is there anything I should be doing? because I have no experience in the courts, and because of the seriousness of the charge, I was going to accept a plea deal if one is offered tomorrow.

In the scenario that my case could be seen as an improper left turn, or turn not in safety, would I possibly be able to argue that my turning left and being in an accident was a misjudgement that the other car would stop/miscalculation of the distance between our two vehicles prior to initiating my turn? I am not trying to shift the blame, but if trial is an all-or-nothing type of thing, could this argument convince the justice/judge to dismiss the ticket?

However, because I assumed that because the cars were stopping that it was safe to turn, I didn't really notice the car coming, and I guess that could be seen as "careless" by the cases I have seen before. In this case it would be better to see if I can negotiate a plea bargain with the prosecutor, correct?

Thanks!


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Re: Careless driving - left turn causing collision
PostPosted: Sun Jan 29, 2017 11:26 am 
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Since you do not have disclosure yet, you should be able to get an adjournment.
If you are offered a plea deal, you can ask "Can I wait until I see the disclosure before I decide whether to take the deal or not?" Most likely the prosecutor will probably agree to this which is good, although they could say "no, the deal is now or never" in which case you have to make a hard choice.

If you agree to accept a plea deal, you are agreeing to simply plead guilty to that offer and you do not get a trial and do not get to try and get the plea deal offer dismissed.

The options are that you can:
(1) accept and plead guilty to a plea deal offer (no trial, although you can ask JP for reduced fine due to financial hardship), or
(2) accept and plead guilty to the original charge (probably a bad idea), or
(3) plead not guilty to original charge and have a trial where you make the prosecutor prove it.

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Re: Careless driving - left turn causing collision
PostPosted: Sun Jan 29, 2017 1:16 pm 
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how common is it for charges to be dismissed because of non-disclosure without submitting a section 7 charter rights argument?

like you said in a previous post, I will state the date that I followed-up on my disclosure and the date that I faxed a second request to the prosecutor's office (with fax receipt) and ask for the charges to be dismissed (is this how I have to say in court?)

if they give me an adjournment, then I will wait until I get disclosure and seek legal advice to see if my case can be fought, or contact the prosecutor and see if we can work something out


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Re: Careless driving - left turn causing collision
PostPosted: Sun Jan 29, 2017 2:15 pm 
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On the first trial date, the caselaw has determined that the proper solution to no disclosure is to give an adjournment and tell prosecutor to get disclosure.

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Re: Careless driving - left turn causing collision
PostPosted: Mon Jan 30, 2017 3:30 pm 
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so I didn't receive disclosure until I spoke with the prosecutor today. He wasn't even aware that I had requested it, even though he had my request in front of him...
officer was there, the other driver was not (apparently she was stuck in Egypt for an operation)
The justice was very forthright and helpful in explaining my options, and seemed frustrated about the prosecution's lack of disclosure prior to the trial date saying that things like these are a drain on resources, wasting not only her time, but the time of officers, witnesses, paralegals etc.

Prosecutor initially offered a plea to "Fail to stop for amber light" which is 3 demerit points, but I asked if "Turn not in safety" might not be more appropriate (2 points), and he didn't even seem aware that the case involved a left turn.

Anyway, I ended up pleading guilty to the lesser offence because I don't think I would have gotten a better deal, and Careless driving being what it is, I didn't want to risk it.

The other way it could have gone:
- the justice mentioned she would be inclined to allow the prosecution a first adjournment, and because I was diligent in requesting disclosure, not leaving it too late and following up on it, she said that at the next trial date, it would be "peremptory on the prosecution"? She explained this to mean that whether or not the witnesses were there, the case would be settled on that date, and she proposed a date of March 21st, 2017.

Because the witness (other driver) in the case was going through an operation, I had no idea when she would be coming back, there is a chance that by mid-March, she may not have made it back to Toronto yet, and there's no saying whether the officer would have shown up. If the officer and witness did not show up, I guess the charge would have been withdrawn by the prosecution, however in the case that they did show up, there was no guarantee that I would get as good a plea deal, I also do not know if I would have been able to defend myself properly against this charge because of my inexperience in court procedures, which is why I ended up taking the deal.

This was a valuable learning experience, as I also have a speeding ticket to deal with from last year as well. Last year was not a good year in terms of decisions for myself. I will learn from this and drive more carefully this year, maintaining posted speed limits and making sure everything is safe before making any decisions. Other cars can honk and be unhappy, but ultimately I'm the one in charge of my own safety.


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Re: Careless driving - left turn causing collision
PostPosted: Mon Jan 30, 2017 4:01 pm 
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Well congratulations on not being charged with careless driving!

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