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Insufficent disclosure
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PostPosted: Fri Jul 10, 2009 10:02 pm 
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I hit the car from behind in May 2008 and even though the accident was very small and no one was injured, I was charged for careless driving. There are two crown witnesses for the incident - one was other car's driver and the other claims that he was sitting on his home's front steps. I've one witness who was sitting besides me. My court date was in June 2009 has been adjourned to August 2009 because of insufficient disclosure.

From my full disclosure request, the judge ordered at that time the crown must provide a copy of officer's ticket and notes. The judge didn't say anything whether the crown must provide address and criminal record of witnesses even though they were requested in a disclosure. The judge didn’t ask to see any evidence of request at that time. I've sent 2 more requests in last 2 months (so that would make total three requests) asking for these information but I haven't received any response from the crown.

1 - Last time in court in June, the Crown read loudly what was requested in the disclosure and argued that criminal check and address information is irrelevant and the judge didn’t object it so I assume he seemed to agree with it. Next time in August when I'm going to court I’m planning to make an argument to the judge that the criminal check information is relevant or not that can be determined only upon discovery. My argument is the crown’s argument that it is irrelevant is only based on presumption. I’m going to argue that the witness had left scene and his behaviour was doubtful. He was not present when the police officer had arrived on scene and showed up later again and became a crown witness. I need to know what he did when he flew the scene. I’m also served a legal notice from other witness’ (who was driving the car that I hit from behind) lawyer for personal injury claims.

In R. v. McNeil, 2009 SCC 3 (CanLII) section 5.1.2, it is stated “Burden on applicant is significant but not onerous.” I think I’ve raised sufficient doubt to discover criminal check. Therefore, the crown must discover the information before disclosing it as it has a reasonable possibility to affect the outcome of the trial.

2 - I also intend to take some photographs from where the witness saw the incident. This information is very helpful to my defence. As there are some trees around the scene, I'm very sure that the witnesses’ view was obstructed and whatever he mentioned to the officer can have reasonable doubts. I can do that only if the crown provides me address of the witness as the witness saw the incident from the front steps of his home. My understanding is I need his permission to go to his home otherwise I’m trespassing his property. So, the crown is controlling this information which is preventing me make a full answer to my defence.

In R. v. McNeil, 2009 SCC 3 (CanLII) para 20,
“Implicit in the Crown’s broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown is relevant to the accused’s case. Otherwise, the Crown would not have obtained possession of it (O’Connor, at para. 12). The second assumption is that this material will likely comprise the case against the accused. As a result, the accused’s interest in obtaining disclosure of all relevant material in the Crown’s possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on the Crown to justify the non-disclosure of any material in its possession.”

My question is can I make the above arguments and stay the proceeding on the ground of non disclosure? What chances I have in successfully staying the proceeding with above arguments?

Thank you for responding.


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PostPosted: Sat Jul 11, 2009 12:14 pm 
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Looks like you've done a good amount of research here. I don't see why you can't make the argument that disclosure is not complete. File the motion to stay the proceedings 20 days in advance of the trial. I don't know what your chances of success are (probably decent), but you've got a good reason and case law for requesting the material. As for criminal record, I think they'd probably declare it irrelevant, but use it just in case - force the JP to rule on it and state his reasons for denying it, if he does.

As for taking photographs, hwybear and I had this discussion:

http://www.ontariohighwaytrafficact.com/topic1063.html

The info is at the end of page 1 and beginning of page 2. Not saying the Prosecutor will try the same stuff that they do down in Chatham, but be aware of it just in case.


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PostPosted: Sun Jul 12, 2009 11:00 am 
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Thank you Radar.

I would think these arguements and the citation of a case law does make sense however I don't have much experience dealing with courts.

Does anyone has different take on it?


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PostPosted: Thu Jul 16, 2009 7:43 pm 
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Guys,

My trial date in August is approaching.

From many experts out here on this forum, could someone give their opinion?

Any response would be greatly appreciated...


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PostPosted: Fri Jul 17, 2009 10:29 pm 
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1. File the stay application 20 days in advance. See if it works.
2. Check out these cases on CanLII:

R. v. Erredia
R. v. Morgan
R. v. Woldenga

Take notes of those cases. Erredia basically said that a minor error is not careless driving, and just because the circumstances do not specifically "fit" into another HTA offence also does not mean it is careless driving. Morgan and Woldenga both say that a driver must have reasonable skill, but not be perfect. Minor errors or momentary inattention do not mean careless driving. A serious collision would've been more than momentary inattention. You can cite the relevant parts in court. Would you say your collision was due to a minor error or momentary inattention?

If the car was parked or stopped for a considerable period of time, then you're facing an uphill battle. If the car braked suddenly or stopped suddenly, then you've got a decent shot at getting acquitted, since you could've been charged with "follow too closely," but weren't. Hope that helps...


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