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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

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.

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.

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:

http://www.ontariohighwaytrafficact.com/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.

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?

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.

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.

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.

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.

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.

I forgot to mention I applied for trial date and innocent and never went to a consultation or anything else.

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.

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?

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!).

So if I do not receive disclosure before the 15 days I am better off arguing that instead of filling for an 11b?

My main issue is now that regardless of whether I get disclosure or not, I still cannot proceed as my wife cannot be there. She will have just had a baby or will be just having one, so I am not sure how to approach this as you are saying 14 months is acceptable.

I still think I can win in court as the office made up a HTA law on the spot, but my wife cannot attend to defend herself.

You would need to file for an 7 instead of 11b if you dont get dislcosure.

I would say yes you are better filiing the section 7 lack of disclosure one. However remember for either of these to succeed you need to give notice to both the Attorney General of Ontario and the Attorney General of Canada at least 15 days before the trial date. The definition of "at least" does not include the trial date and does not include the day you serve it and does not include if it is served on holiday/weekend or ends on holiday/weekend. So I use about 19 days before trial as the day to file either of the charter challenges with both attorney generals, prosecutor and the clerk.

I never got to speak to the prosecutor regarding my disclosure at my last trial date. She didn't want to hear anything from me and I just got a new trial date. Because I did not mention it can I still use it in court?

Have you tried making additional disclosure requests and/or following up with the prosecutor's office to see if your disclosure is ready?

If you do not get disclosure, you can file a notice of constitutional question using section 7 of the Charter, as jsherk said above. The Justice may give you an adjournment so that the prosecutor can provide you with disclosure. You can try arguing that the proceedings should be stayed (or stopped) because 14 months is plenty of time for a prosecutor to give you disclosure. How did you serve the prosecutor with your disclosure request, and did you keep a record of sending it (i.e. registered mail, fax)?

If you do get disclosure, you can ask for an adjournment since your wife is due for pregnancy (or has had a baby recently) and cannot attend trial. Depending on the jurisdiction, you may have to file a motion for adjournment beforehand by going to the courthouse; otherwise, you can request for an adjournment at trial.

Yes, I kept the fax receipts. I didn't use their form so I am guessing as I did not put my phone number means they do not want to answer it.

I filed for disclosure on June 14th and January 10th.

I will see if I get it or not.

Did you put any way for them to contact you when disclosure was ready for pick up? They don't mail disclosure out (too expensive!). So, unless you put a convenient way for them to contact you (i.e. telephone or email), they have no obligation to go out of the way to find you. You are the one with the obligation to take the initiative.

The courts have ruled that it is up to YOU to contact the prosecutor to see if disclosure is ready (and they are not obligated to send it to you either, so you might have to go pick it up).

I faxed them with my address. I don't use a cell phone and would prefer to be contacted by mail. I would gladly pick it up if they were to contact me. City of toronto actually sent me a letter letting my know my disclosure was ready not sure why peel wouldnt.

The courts have decided that it it is YOUR responsibility to check if disclosure is ready and it is NOT the prosecutions responsibility to inform you that it is ready. Sometime they do send it and sometimes they do contact you to let you know its ready, but they do not have to. If it is ready but you did not call to check, then the delay will be counted against you and not the prosecution.

Not saying that I agree with all this, but this is what the courts have currently decided.

jsherk wrote:

The courts have decided that it it is YOUR responsibility to check if disclosure is ready and it is NOT the prosecutions responsibility to inform you that it is ready. Sometime they do send it and sometimes they do contact you to let you know its ready, but they do not have to. If it is ready but you did not call to check, then the delay will be counted against you and not the prosecution.

Not saying that I agree with all this, but this is what the courts have currently decided.

I will call them ahead of time and ask as usual. But with the ticket and first court date taking place before the R v Jordan decision, am I still not able to succeed with a 11b?

Also, if I file for an 11b and the JP decides that he/she will not accept it, and I do not receive disclosure, will I still be forced to go to trial or will I be able to get a adjournment due to lack of disclosure?

I strongly believe I have a good case but without my wife taking the stand I don't know what will happen.....

R. v. Jordan also applies to cases that were already in the system at the time of the decision. So, in order to succeed with a section 11(b) Charter argument for unreasonable delay, the period of time between being charged and the end of trial has to reach the presumptive ceiling of 18 months UNLESS you can argue otherwise:

"If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases."

If you do not get disclosure, the justice will almost always grant an adjournment. You have the right to know the evidence against you because you have the right to make full answer to the charge, which you are unable to do if you do not receive disclosure. But you have to actively seek and follow up for disclosure, as jsherk and highwaystar noted above.

The justice will also likely grant an adjournment if you say that your wife (the defendant) cannot attend trial because she is due to be pregnant or will have just had a baby.

You can file both a section 7 lack of disclosure challenge and an 11b speedy trial challenge.

You would ask to review the 11b first and if it does not succeed, then you bring up the 7 for lack of disclosure.

Its not wise to file both a section 11b and section 7 application concurrently----here's why:

* to get a stay on an 11b application, you must convince the court that you were READY TO PROCEED TO TRIAL but couldn't because of the delays caused by the system and/or Crown. So, that means, you must prove that you were READY! No more motions needed, no disclosure required, etc. You were ready! Got it!

A section 7 application on the other hand is saying that you weren't ready and can't prepare because you never got your disclosure as entitled to make full answer and defence!!!!

So, which is it???? Were you ready to proceed but couldn't due to the delay (s. 11b) or weren't ready because you couldn't prepare due to a lack of disclosure (s.7)?

You can't have it both ways! Pick one!

I suggest you go with the section 7 argument (even though you'll likely not win but just get an adjournment). You'd be lying to the court under an 11b application, especially when the prosecutor confirms that you haven't even received disclosure yet----how could you possibly be ready to proceed!

Don't make such a rookie mistake!

Yes.

I guess I could argue that I was actually ready last time as my wife was there. The JP asked if she was there, I said yes, then was told here was my new date. I never even told them I did not receive my disclosure yet, never got the chance.

I understand now why I could not file both. Thanks for clarifying that.