Now I have an infraction that occurred on 12 April 2013 and my court date was just past on 20 February 2014. It was 10 months and 8 days so I tried for another 11b challenge.
I met the prosecutor as usual and noticed she had my application but kept it in a separate pile. She offered a lesser charge (didn't specify) but with no demerits and $150 fine. I asked her if she had my application and at first she denied having my application. She shuffled through her papers (not the separate pile) till she saw I had 2 copies in hand and then suddenly found it buried at the bottom of that pile.
She warned me that typically 11 or 12 months gets dismissed but 10 months is 50/50. I chose to go to trial as I'm moving to Brampton and don't need the premium increase.
The cop was there but as the court ran late (9am start) by 945 they were adjourning many trial cases. When I was called up she said that I chose the trial option but I then said that there was the matter of the constitutional challenge. She then interrupted me and said that yes, there was an 11b and that there was no time to address and as such requested an adjournment till March. I was confused by this move but didn't remember to state that any delay would add to my 10 months. She asked for sometime in April but the cop wasn't available so they settled on 14 March 2014. I nodded my head and they asked me to write it on a piece of scrap paper. They then moved on.
When I go back it will be 11 months and 2 days. I will gather the court transcripts before I go to court. My options are:
A new court room, a new JP, a new prosecutor (possibly) so I use my existing application and argue that the court delayed the trial at the behest of the prosecutor and I now stand at over 11 months (which the prosecutor at least said was surefire). I could also refer to R v Andrade and R v Hariraj as precedent where the JP's granted a stay.
Redo a new 11b application with the time changed to 11 months and including the court/prosecutor caused the additional delay. This might just be flat down granted and charges withdrawn assuming they know about the precedents quoted above.
Any advice would be appreciated.
For instance, if you had a resolution meeting (which it seems you did), then that time period is generally considered neutral. Such being the case, then your overall delay is not within any threshold to win on an 11B application. Furthermore, a lot of cases have been decided since Andrade so you need to also review current caselaw.
I also didn't request for disclosure or an early resolution.
I submitted the infraction notice for trial on 25th April 2013 and the notice of trial date was sent on 13 August 2013.
2013 Apr 12 - Received infraction notice
2013 Apr 25 - Submitted infraction notice for trial
2013 Aug 13 - Received Notice of Trial
2014 Feb 20 - 1st Trial Date
2014 Mar 14 - 2nd Trial Date
The 11b clock starts from the date you filed your intention to go to trial (Apr 25, 2013) to your trial date (Mar 14, 2014). Because you submitted your intention to file on the very last date, the intake period is 45-days R. ex rel City of Toronto v. Andrade, 2011 ONCJ 470
Initial Delay is 10mths and 17days from Apr 25, 2013 to Mar 14, 2014. If we subtract 45 days for the intake period, we're left with 9 mths and 2 days.
Any suggestions or should I bluff with the next prosecutor and go with a new 11b using the rounded figure of 11 months (assuming they don't do the math on the spot(which they don't seem to do in the rush of check in)).
Keep in mind that prosecutors are quite experienced in doing the math (even on the fly, if need be) for 11b applications. Plus, the JP will do the analysis also. So, the odds that both of them screw up on their calculations is quite slim.
Regardless, best of luck with your case.
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