Disclosure Request

Hello Folks,

I am at it again helping someone fight a ticket, this time in London. I have a few questions dealing with the disclosure request.

The prosecutors here seem to have gotten smart to the usual tactics. They now include a whole page (instead of the 2" tear-off slip) with one side for filling out defendant's information and the other side is filled with instructions. Obviously I will not be using this form, but there is something that concerns me: this form specifically states that disclosure will not be mailed. It provides three options:

• Email. I don't want to use email for the same reason I don't want to use regular mail or phone: The prosecutor can claim he emailed it even though nothing has been received, and that is considered due diligence on his part.

• Fax. While fax is good because there is a confirmation of receipt, I do not own a fax machine.

• Pickup. I am actually ok with this but apparently I am expected to call the prosecutor's office on a daily basis to check if it is ready.

What is interesting is that they don't even provide the option of being phoned when it is ready.

Anyway, in my usual request, I give a list of what I want and then state "please send everything requested to the above address via registered mail". Will this be ok, or should I add to it something more prudent like " or, send a registered letter notifying me that this is ready and I will pick it up"?

If (as I expect will happen) I receive nothing, what will likely happen at the trial date? Will the trial proceed because I didn't follow their three options?

A lot of people seem to get the disclosure right incorrect. The prosecutor merely has to make it reasonable available----they do not have to ensure it is delivered to the defendant. The onus is on the defendant to follow up and retrieve it. Clearly, the prosecution is providing you with 3 reasonable methods of obtaining disclosure. If you don't follow up with them----the delay that will undoubtedly result will be counted towards YOU---not them. The prosecutor is under NO obligation to mail it to you, find you or even call you. You simply make your request in writing and they must make it available within a reasonable time. Even the cost of delivery is all on the defendant. The entire onus of getting disclosure is on the defendant---after all, they are the ones that are requesting it. All the prosecutor needs to say is that they explained how/when to pick it up and you didn't follow through.

Some folks are under the assumption that it is tactical to 'avoid' getting the disclosure. That is just dumb. It only hurts the defendant.

So, in your situation, either leave them an email address so they have a means of contacting you or have them give you a date when it will be available for pick up. If they don't contact you, then YOU make the effort to contact them (do it in writing so there is a paper trail). That is, you want to show that you were being diligent in obtaining your disclosure and the delay in getting it was all due to the prosecution.

I have used email with my last few disclosure requests, and received it just fine. Much easier than having to go pick it up.

If you don't get it, make sure to send 2nd and third requests with correct email address. I use free online fax service to send requests and then print email confirmation to prove I sent them which is much cheaper and faster than doing registered mail. You cannot receive a fax but you can send one from your computer. I use faxzero.com and bestfreefax.com

Busier jurisdictions due to shear volume, do not have the resources to physically mail out disclosure packages. They require that you pick it up in person; some offer e-mail.

Making a strategic decision not to receive disclosure, or not showing due diligence in trying to receive disclosure will count against you. In some cases you might be arraigned on your first trial date, especially if disclosure had been available for a while.

R. v. Dixon, [1998] 1 SCR 244 - Supreme Court of Canada

55 It must be remembered that defence counsel is not entitled to assume at any point that all relevant information has been disclosed to the defence. Just as the Crown's disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel's obligation to be duly diligent in pursuing disclosure. To do nothing in the face of knowledge that relevant information has not been disclosed will, at a minimum, often justify a finding of lack of due diligence, and may, in certain circumstances, support an inference that counsel made a strategic decision not to pursue disclosure. In this case, the summary in the occurrence report indicates that Daye's statement would very likely meet the test for relevance set out in Stinchcombe. When defence counsel reviewed the occurrence report, he knew or should have known that the Crown had failed in its disclosure obligations. When this became apparent, defence counsel should have brought this matter to the attention of the trial judge at the earliest opportunity. In the circumstances of this case, the Court of Appeal was right to conclude that at this point, defence counsel was faced with a choice: "call for the statements or live without them" (p. 93).

It's always in your best interest to show the courts that you're exercising due diligence in seeking disclosure. If there are issues with your initial disclosure request: bad handwriting, missing items. Then you're giving yourself time to submit new disclosure requests in order to remedy this.

11b delays due to non-disclosure are simply not happening as often; the courts are a lot more streamlined with scheduling trial dates, and they're proactive with handling disclosure requests. Some fall through the cracks, but even then it's difficult to argue 11b because some JPs say disclosure delays are a neutral delay (nobody's fault).

Ultimately it comes down how diligent the defendant was in seeking disclosure. If they're sending requests every month since they received their notice of trial, and still received nothing. Gave all means of contact: e-mail, phone number, address...

Then you can build a strong 11b case surrounding the disclosure delays.

Thanks for the input everyone. Please note I am not trying to avoid receiving disclosure. I just think it's dumb that for this one thing they refuse to use mail, which is what's used for every other court communication. It's just as easy to stuff the documents in an envelope and write an address as it is to scan everything and make sure it gets to the right person. I just don't want to end up in a situation where I have nothing and the JP is fine with that because the prosecutor says he sent it. Registered mail leaves no doubt. Anyways I will set up a new email account and start spamming them with requests every month and hope for the best.

EphOph wrote:

I just don't want to end up in a situation where I have nothing and the JP is fine with that because the prosecutor says he sent it.

I wouldn't worry about that. They'd arrange for you to receive disclosure on the spot and your trial would likely be adjourned to a later date.

So 3 requests and 11 weeks later, still nothing! Pretty soon we will be at the 15 day limit for a charter application. Do these have to be done for no disclosure (like 11B) or can I just ask for a stay on the trial date? I know the JP will likely grant an adjournment, but is there any relevant case law for arguing in favour of a stay in this scenario?

In theory, in order to get the charge STAYed then yes it needs to be a charter application. However if you have been to trial a few times already and JP told them to get you disclosure and they still haven't provided it, then some JP may stay the charge without an official application.

But the case law says that the remedy for not providing disclosure is to tell prosecutor to get the disclosure for you and adjourn it. So again it would have to have been adjourned at least 2 times already before they would consider a stay.

It does not hurt to thru the process though! Use the fax method as opposed to registered mail as it is a whole lot cheaper.

Thanks jsherk. Since this is the first appearance I will just make do with the adjournment.

After all the worrying we finally received the disclosure package in the mail! (Regular, not Registered - along with the friendly Winlow warning). Anyway the officer's notes are included in a typed version only - are they entered this way or should I be asking for originals as well? The notes include the model & serial number of the device (Tru Speed LTI 20/20) but there is no reference to the manual. I will be sending another letter asking for this specifically but I suppose I'll have to reference case law. Are there any common cases which are used when requesting this? If they fail or refuse to provide it (the trial is in 10 days), what can I do?

Also, the officer's copy of the ticket was not actually signed; it just has the name printed digitally. Can this have any affect on the outcome?

Typed version of officers notes are all you need. If you find the officer on the stand is making comments from his notes that are not included in your notes, you could then object and say he is reading from notes that were note provided to you in disclosure.

I would immediately send another request for the full manual. I would add that you "need the full manual in order to prepare a full defense and be able to properly question the officer on his knowledge of the device. Without the manual you have no way of knowing how to question him."

There are some case laws with ragards to providing the manual. I do not know them off the top of my head. Maybe somebody else knows what they are.

Did you get a hand written ticket or a computer generated ticket? Does the "officers copy" say Certificate of Offense at the top?

I've removed the part about the original notes and added the justification for the full manual and will be sending this today. I also found the relevant case: R. v. Stinchcombe.

The ticket was computer generated; the officer's copy says "Certificate of Offence" at the top. I know it's the officer's copy because some of the fields at the bottom are different. Also the "Affidavit of service upon defendant" which I'm assuming is the back of the ticket is completely blank.

Thanks for your help! I read your transcript and appeal in your other topic and it was very informative. I will also start preparing for cross examination in case the justice decides to ignore the disclosure requirements.

If it is computer generated then the digital signature is okay.

Now here is a question I do not know the answer to... why are some fields different on the Certificate of Offence versus your Notice of Offence? I would think they should be identical.

Also the other question I do not know the answer to... if the service upon defendant is not filed out, then would this be a fatal error if you do not show up to the trial?

Hopefully somebody else can answer these in more detail.

jsherk wrote:

Now here is a question I do not know the answer to... why are some fields different on the Certificate of Offence versus your Notice of Offence? I would think they should be identical.

It's just the part at the bottom where on the accused ticket it says "you have 15 days etc", on the officer's copy there is a spot to fill out if a summons was issued instead. All of the actual information is filled out identically.

jsherk wrote:

Also the other question I do not know the answer to... if the service upon defendant is not filed out, then would this be a fatal error if you do not show up to the trial?

That would be nice! I'm not going to risk it though. I assume that would only come into play if the accused never responds to the ticket... but then there is no way to know unless you file it and request disclosure.

Sorry for the double-post. I was reading through the notes again and discovered an interesting nugget: there is no mention of determining a high rate of speed before obtaining a measurement. I am thinking along one of these scenarios:

1) The prosecutor asks the officer about this (or officer says it in his testimony). I object and motion to have this evidence excluded because it was not disclosed. Since now there is no evidence of officer following proper procedure, motion of non-suit?

2a) Prosecutor never mentions & officer never mentions. Motion of non-suit at conclusion of crown's questioning.

2b) If motion denied, go into line of questioning during cross-examination: why wasn't it in notes, possible he didn't do it, etc.

On a side note, how long on average does it take an officer to first determine that a vehicle is speeding and then aim the lidar to take a correct measurement (including the time for the lidar to do its thing)?

The old radar manuals said they MUST estimate the speed before activating radar. This was removed in the newer ones. Not sure what is in the LIDAR manuals.

However a lot of officers will put in their notes something like "vehicle appeared to be going faster than posted speed limit". So they do not necessarily have to estimate the speed, but they usually note that vehicle was going faster than posted. Is this required? I am not sure (haven't looked into myself). You would need some case law saying that they must at least think the vehicle is going over the speed limit before using radar/lidar. I am not sure if this has been decided or not!

Indeed I am looking at R. v Hawkins, wherein the requirement to visually observe the vehicle speeding is part of "tracking history" and is prescribed by the radar manual. However, I've read a bunch of lidar cases and it seems that every time without exception, the officer testifies that before activating the laser, he or she observed a vehicle either "traveling in excess of the speed limit" or "traveling at a [very] high rate of speed". I think that if this is included as part of every testimony than it must be an important point. I am definitely going to print off a large stack of these cases for the JP and make it a sticking point in submissions. Hopefully the JP will cut some slack since I don't have the manual.

Yep the best you can do is submit a stack of case law which supports your point.

If you can find an Ontario Court of Appeal case, then this is binding on the JP.

So this prosecutor doesn't want to cooperate. After my request for the full manual and proof of the officer's training, they actually sent an email on Friday with a letter and some explanation.

In regards to the manual, they provided 4 pages of the testing portion only. It states that if I wish to view the entire manual I may make arrangements with the police service. I thought it is the crown's responsibility to provide disclosure, not the police. I have found this case: Thunder Bay v. Millar. The decision states that the full manual isn't required, but that the testing and operation sections are required. Since I didn't receive the portion regarding operation this definitely isn't proper disclosure.

In regards to the training records, the letter states that the prosecutor does not possess police personnel records. It further states that this information was included in the previous evidence because the officer included the year he was trained in his typed summary. I don't think I'll push this point any further; from what I've read, JPs don't seem to care about training records and simply accept the officer's testimony on this fact.

With the trial being two days away I think I won't submit any further requests but I will motion for a stay (or adjournment) because of improper disclosure. I will cite the above case as well as the prosecutor's unwillingness to cooperate.

Now here is the question: is 6 days considered long enough to prepare a full defence? I am thinking that if the JP rejects my first motion I will enter a second motion for adjournment in order to request additional disclosure and have time to prepare a full defence. I will of course make sure that the adjournment is attributed to the crown.

You just need to argue:

How can you prepare a proper defense and properly question the officer with respect to the operation of the unit without a copy the whole manual?

R. v. Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC)

http://www.canlii.org/en/ca/scc/doc/199 ... lii45.html

Now there is a good chance that the JP will not agree with you and will allow the trial to go ahead, so you need to be prepared to fight if you do not get stays or adjournments.

You can present all the case laws you want, but remember if they are ONCJ (Ontario Court of Justice) then they are not binding on the current JP. You still want to present them though.

Check this out and start at number 9 (Millar) and find as many that support your position.

http://www.canlii.org/en/index.html#sea ... disclosure

And personally I don't think 1 week is long enough to prepare, so that could be a reason to at least get an adjournment.

So the trial date was yesterday and here is what happened. When we checked in the prosecutor of course tried to intimidate us with the amended speed and gave the choice of pleading guilty now or going to trial. I'm not sure if he was actually the prosecutor because it was a different person representing the crown in the courtroom. Anyway I replied I will be making a motion to dismiss for improper disclosure so he marked us down for trial.

After the first set of guilty pleas and a 15 minute recess, the officer was still nowhere in sight. A new officer came into the courtroom (before the JP returned) and spoke to the prosecutor. I couldn't hear the entire conversation but I did hear that he couldn't even remember who the laser operator was! My friend told me at the beginning of this whole thing that there was one officer running the speed trap and another sitting in the car writing tickets (never getting out to actually ID drivers). I know in this case there has to be two witnesses at trial but since there was nothing in the notes and the additional witness box wasn't checked on the ticket I decided not to pursue that. I figured maybe the guy in the car was just preparing the tickets and the actual speed trap operator was signing them.

After finishing the conversation the prosecutor called us up to the front. All she said was that she couldn't prove the charge so would be withdrawing it. She was even so kind as to let us leave and not have to wait around to hear it dismissed by the JP. It makes all the prep work feel like a bit of a waste but I won't "look a gift horse in the mouth" so to speak. The other unfortunate fact is that there were probably hundreds of improper speeding tickets given just from that one speed trap and yet ours was the only one on the docket from that officer.

As a side note: while searching for case law in support of my motion I found Toronto Police Services Board (Re), 2006 CanLII 50669 (ON IPC). I'm not sure exactly what it is but it looks to me like some sort of court order for the police to provide the full radar manual and a "final access decision" on calibration records to a defendant. Maybe this is nothing but if not I hope it helps someone. Special thanks to jsherk for your help.

Yes, an officer must say that they saw the vehicle going at a rate of speed which appeared to be faster than the posted speed limit. There is a case law on that. It was that way for years and years, then, the speed estimation thing came in, didn't last too long and the visual observation of speeding is back in (not that it ever officially left). The purpose of the radar is to corroborate the officers visual observations. So, if an officer can't say he saw the target vehicle speeding the charge should be tossed. This is the case in any speeding charge matter by any speed detection device. There are very few things a person can give opinion evidence on, speeding is one of them.

Congratulations on the win!

There are sometimes more than one prosecutor present so you might talk to one first, but a different one is doing the trial.

Some prosecutors are very upfront and honest and will tell you right away that a witness is not there yet, and if they do not show up they will drop it. Others will try to intimidate you right to the very end and try and get you to plead guilty. Glad you held your ground!

If everybody that got a ticket that day had plead not guilty and learned how the game is played, they would all have probably gotten off as well.

Everything you learned preparing for the case was not a waste, even though you did not need to use it. It is part of your education in how the system works. So if there is a "next time" for you (or a friend) then you already have what you learned under your belt. It always takes me a LONG time to prepare for each case, even with what I already know, because each case is different.