Didn't get a trial :-(

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Joined: Tue Apr 28, 2009 7:58 pm

Didn't get a trial :-(

by: littlepeep on
Thu Apr 01, 2010 12:18 pm

Hello all,

I had a trial scheduled today.

(11 1/2 months after getting the ticket).

I had filed an application requesting a stay on grounds of both 11(b) and 7 of the Charter (incomplete, disclosure).

Everybody (including the prosecutor) was served well within the statutory requirements.

At court - the prosecutor said he hadn't had a chance to read the notice and supporting materials and the justice of the peace put it over to next month.

Is this normal?

I objected because I have already taken two days off work (one to serve HTMQ in right of Canada and Ontario, serve the prosecutor and court; and a day to go to my scheduled trial).

Justice said he wanted to make sure the prosecutor had a chance to review the materials (isn't this what the 3 and a half weeks was for?)

Do I need to re serve them? Is there anything I should be doing between now and the next date?

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by: Radar Identified on
Thu Apr 01, 2010 1:12 pm

Just make a note of everything the Prosecutor said, timing and so on. The fact that you objected, made a big fuss about losing time off work, etc., works in your favour. It sucks to have it put off to another day, but the charge should be stayed. If anything, you now have a solid argument for the unreasonable delay.

You do not need to re-serve them. The adjournment was for the Prosecutor to review the information. Just go over the stuff you submitted with a fine-toothed comb (I'm sure you did already) looking for any errors/omissions, because if there are any, you have the opportunity to fix it before the next hearing date.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca
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by: hwybear on
Thu Apr 01, 2010 2:40 pm

Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca
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Joined: Tue Apr 28, 2009 7:58 pm

by: littlepeep on
Thu May 06, 2010 10:46 pm

Went to court again today.

Checking in with the crown before the trial.

"What are we doing?" she asks.

"We have a trial scheduled" I note.

"I'd like to give you an opportunity to settle this with a smaller fine and no points", she offers. Not as passive-aggressive as the crown from last time - but clearly expects me to make a deal (as did EVERY OTHER person on the docket).

I decline.

But also notice that my application is nowhere to be found on her desk (216 page bound application for relief under 24(1) citing Section 7 and Section 11b grounds. Indeed the crown asked for an adjournment at my April 1st trial date to read the material. She doesn't seem to have it at all.

I sit down.

Two minutes later - she grabs one of my disclosure letters from her desk. (looked with the 3rd of 4 letters - probably from December 2009) - and walks towards me saying "I see you have disclosure issues - we can adjourn to give you more time if you're not ready for trial".

At this point - I didn't want to be rude - and I didn't want her to be able either that I said that I needed more time or that I said that I was ready for trial.

I just replied - "I'll speak to that in the motion."

"What motion?" she replies.

Looks at the clerk and says, "is there a motion on this file?"

Clerk says "Yes" and hands over the big bound package.

Crown looks at me and says, "You need to serve us", "We didn't receive this."

I pointed out the acknowledgement of service from March 6th, 2010 that all parties, including her office had given on the back page filed with the court.

"What grounds?" she asks.

"Section 7 and 11b" I reply.

"But what's your argument, we're at 12 months?" she asks. (Actually 12.5 - but I don't disagree with her implied point - 12.5 months may or may not be unreasonable - it's in the range - it will all come down to context and the arguments).

I replied that I think it's better that we make our arguments before the Justice of the Peace (no upside really to having this discussion - all I do is give her more time to think of reply arguments.

Court starts.

Mandarin interpreter with a guilty plea. Paralegals with guilty pleas. A gentleman representing his daughter-in-law asking for an adjournment. More guilty pleas.

Then me - charges withdrawn, (ostensibly she's withdrawing as the officer isn't present).

I have to say though - we certainly could have argued the motion first and perhaps the officer would have shown up before any trial.

You would think that the prosecutors would enjoy a good meaty argument - in my two days at court - I only every saw guilty pleas and mind-numbing repetitive scripts for the crown.

While a win is a win - I was really looking forward too arguing the merits. I had prepared about 20 minutes of oral argument with over 15 on-point citations on the Section 7. (Somewhat less on the 11b) - and prepared to thoroughly cross-examine the officer (notes indicate all tests by name EXCEPT the scope alignment test - unusual). (Section 7 related to the fact that some notes were not legible and also that I had been denied the manual/testing documentation).

It was lots of fun.

I was lucky that I have a clean record - and the fine was only $100 - with no insurance effect for me. I really had nothing to lose fighting this (limited downside if I lost). But as I started to do the research, read Stinchcombe, McNeil, etc.) - it became a point of principal and I felt the merits of the arguments were strong.

Thanks to this site and ticketcombat.com for some help. (and a friend for doing some quicklaw searches on cases that weren't in canlii).

Good luck to everyone else going to court. (This was my second time fighting a ticket - I had a red light ticket for my wife withdrawn in 2004 when I noticed that the filing date on the ticket was ONE DAY BEFORE the alleged date of offence [someone forgot to update the date stamp I suppose].

It's sad to see so many people in court who are afraid or just confused and let the crown just talk them into a bad deal. Sure their fine is smaller - but the conviction is still registered and in most cases still has a negative insurance result.

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