Disclosure, change court date

blackdog
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Disclosure, change court date

by: blackdog on
Fri Jun 12, 2009 12:50 pm

I need some advice and help on this.

my court date is June 26. I was charged with 142(1) turn not in saftey on March 11. I have asked for disclosure via postal mail in April and hand delivered on June 1st. I have not recieved disclosure.

I filed a motion to change my court date and I need to attend the court on june 19.

My question is, can I also file a section 7 using form 4F for non-disclosure at the same time ?


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by: liveontheedge on
Fri Jun 12, 2009 4:17 pm

blackdog wrote:I need some advice and help on this.

my court date is June 26. I was charged with 142(1) turn not in saftey on March 11. I have asked for disclosure via postal mail in April and hand delivered on June 1st. I have not recieved disclosure.

I filed a motion to change my court date and I need to attend the court on june 19.

My question is, can I also file a section 7 using form 4F for non-disclosure at the same time ?
Form 4F needs to be filed 15 days before the trial date, it's already too late.

You can go to court on that day, if the cop is there and the prosecutor wants to proceed with the trial you can tell the JP that you have not received disclosure, the JP should give you another trial date. don't forget to bring receipts of request for disclosure.

If the cop is not there, don't take the plea bargain, just wait till you are called in front of the JP, if the prosecutor does not withdraw the charge, plead not guilty, he will then have to withdraw the charge or adjourn the trial because of cop no-show.

I also want to comment that if you were to file form 4F, if it is denied and the cop is not there, the trial may be adjourned and you will have to return another day.

Without filing form 4F and cop no-show you leave the door open for the trial to proceed on that day and get the charge withdrawn (at least an adjournment) on that day (only do this when you have not got your disclosure therefore you are guaranteed with an adjournment). So a bit of a gamble there. Anybody correct me if i am wrong on this.


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by: pch2004 on
Tue Jun 16, 2009 11:59 pm

How do you know if the cop is present (assuming you can't remember what he looks like)? Is the prosecutor required to tell you if the officer is present?

Also, wouldn't you have to request an adjournment before arraignment (according to Ticketcombat's site)? So if you "play the game" and plead "not guilty" after arraignment, have you missed the opportunity to request an adjournment for lack of disclosure?


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by: liveontheedge on
Wed Jun 17, 2009 9:25 am

If the cop shows up, the prosecutor will tell you that he is there if you ask.
If the cop is not there (yet), the prosecutor could say "he won't be here today" or "he may be late" if you ask.

I would check the court docket first, if the cop's ID appears with many drivers names on the docket, i would guess he will show up.

To ID him, you can ask other drivers waiting there, listen in to the prosecutor's conversation with cops as he's called by his ID#.(is it also his badge#?), ask the prosecutor, ask other cops, cop has stacks of PON in their hands....

The prosecutor or JP asks you if you are ready to proceed, if you want an adjournment, tell them. I guess you can still ask for an adjournment after arraignment if the circumstance gives rise to it. but anybody correct me if i am wrong.


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by: ticketcombat on
Wed Jun 17, 2009 10:10 am

blackdog wrote:I filed a motion to change my court date and I need to attend the court on june 19.
Is your June 19 date your trial or just to hear the motion to change the trial date? If it's your trial date, then state you haven't received disclosure which means an adjournment.

If it's not your trial date, then you have requested disclosure twice (in April and June) and can use form 4f to apply for a stay based on a s.7 violation for non-disclosure. You must file 20 days in advance of the trial date.

pch2004 wrote:Also, wouldn't you have to request an adjournment before arraignment (according to Ticketcombat's site)? So if you "play the game" and plead "not guilty" after arraignment, have you missed the opportunity to request an adjournment for lack of disclosure?
When YOU ask for an adjournment the clock stops ticking. Why should you pay for their non-disclosure? Instead of asking for an adjournment, force an adjournment. Because they didn't give you disclosure, they must ask for an adjournment to provide you with the info. The clock keeps ticking and you are setup nicely for an 11b.
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blackdog
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by: blackdog on
Wed Jun 17, 2009 10:32 am

to clarify. The June 19 date is to request a new court date changed from June 26. I am expecting this will be granted - but dont know for a fact. I will not be in the country due to a last minute personal reason which I will state on June 19. however, I can be here on June 26 if I absolutley have to for reason I stated below...


Ticketcomabat - please clarify this point for me. If I am requesting a court date change am I forcing an adjournament there by ruining my chances of filing 4f for non-disclsure???


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by: pch2004 on
Wed Jun 17, 2009 11:21 am

Thanks liveontheedge and ticketcombat. Your knowledge is much appreciated.

How do you force (as opposed to request) an adjournment? You are called and say "Your Worship, the prosecutor has failed to provide disclosure/adequate disclosure and therefore I am forcing an adjournment". I'm not being silly, I'm just wondering how to word it (assuming the prosecutor is ready to proceed, the cop is there, and the prosecutor won't willingly request an adjournment).

Also, if the case is adjourned, how do you apply for costs? If you have to drive an hour to get to the court, do you charge by the km? Submit an invoice or receipts for gas?


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by: Reflections on
Wed Jun 17, 2009 12:20 pm

pch2004 wrote:Also, if the case is adjourned, how do you apply for costs? If you have to drive an hour to get to the court, do you charge by the km? Submit an invoice or receipts for gas
?
Um, no. Nice thought though....
http://www.OHTA.ca OR http://www.OntarioTrafficAct.com


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by: ticketcombat on
Wed Jun 17, 2009 1:44 pm

blackdog wrote:Ticketcombat - please clarify this point for me. If I am requesting a court date change am I forcing an adjournment there by ruining my chances of filing 4f for non-disclosure???
Kind of. You are wrecking your chances for an 11b since you are causing the delay. You are also giving the prosecutor more time to complete disclosure.

On the bright side, you will have more than 20 days time to file your stay application.
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ticketcombat
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by: ticketcombat on
Wed Jun 17, 2009 2:21 pm

pch2004 wrote:Thanks liveontheedge and ticketcombat. Your knowledge is much appreciated.

How do you force (as opposed to request) an adjournment? You are called and say "Your Worship, the prosecutor has failed to provide disclosure/adequate disclosure and therefore I am forcing an adjournment". I'm not being silly, I'm just wondering how to word it (assuming the prosecutor is ready to proceed, the cop is there, and the prosecutor won't willingly request an adjournment).
It's better to have applied for a stay but you can verbally say (after the arraignment - "how do you plead?"), "I have requested disclosure and I not received any response. WE cannot proceed to trial without it." If the justice is a jerk he may ask you what do you want to do about it? Say that is a better question for the Crown.

pch2004 wrote:Also, if the case is adjourned, how do you apply for costs? If you have to drive an hour to get to the court, do you charge by the km? Submit an invoice or receipts for gas?
Charter breaches (i.e. no disclosure - s. 7) are one of the few grounds to award costs in criminal/POA courts. But you have to show that the Crown's actions were a considerable departure from their disclosure obligations. Just the fact you didn't get it (not enough time, no response from the officer, clerical error) is not good enough. You have to show they deliberately disregarded their duty. Here are some cases:

R. v. Guiducci, 2005 CanLII 10 (ON S.C.)

R. v. Foster, 2003 CanLII 26341 (ON S.C.)

Manywounds

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by: valhadi on
Thu Jun 18, 2009 9:56 pm

My first court date was in June and it was adjourned as the prosecutor had failed to give me full disclosure. The second court date is in August. I got a call from the prosecutor yesterday and he asked me to pick up the disclosure from his office.

The first disclosure request form that I sent to him had my phone number on it but then I asked for more information and used the form from ticketcombat website and didn't put any phone number on that.

I asked him to mail the disclosure but he refused that. He cannot prseume that I'll lie even if I get it in mail. His demand is unreasonable as I have to take a day off at work to pick up the disclosure. Now, it's plenty of time and the prosecutor can easily mail it.

Can I go to court in August and say that I haven't got a disclosure as the prosecutor never mailed one even after my repeated requests. My plan is to pick up the disclosure at that time and ask for an an adjourment. Is it a good strategy or I could be forced with the trial that day as I failed in my duty to go in person and pick it up?


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by: liveontheedge on
Fri Jun 19, 2009 8:35 am

valhadi wrote:...I asked him to mail the disclosure but he refused that. He cannot prseume that I'll lie even if I get it in mail. His demand is unreasonable as I have to take a day off at work to pick up the disclosure. Now, it's plenty of time and the prosecutor can easily mail it. .....
I think the rule says that disclosure is not to be mailed. You must pick it up.


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by: ticketcombat on
Fri Jun 19, 2009 11:07 am

That used to be the rule but I've noticed some jurisdictions will mail or fax disclosure out, while others refuse to. I asked the AG to clarify what the rule is since downloading court services to municipalities. I don't expect a response before the end of the decade!
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blackdog
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by: blackdog on
Sat Jun 20, 2009 9:31 am

I was successfull in moving my court date to September from Jun 26. I have already asked for disclosure twice and not recieved anything. When I go to court in Sep I'm hoping 1 of 2 things happens:

1. cop does not show and case is dismissed
2. cop shows - I cannot provide full defence due to non disclosure and hope JP dismisses or adjourns the case.

While I was in court one women got an adjournament for non-disclosure motion eventhough she did not file a 4F. The JP did question her on why she waited so long to ask for disclosure. not sure of what she said but in the end she got a new court date.


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by: valhadi on
Sat Jun 20, 2009 3:25 pm

Quick question -

While requesting a witness interview and witness criminal check, do I need to mention the reasons in a disclosure request to the prosecutor? OR I just need to provide the reasons to the Justice of Peace when the prosecutor doesn't provide the witness interview and criminal check.


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