Has the standard for 11(b) changed?

dstate
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Has the standard for 11(b) changed?

by: dstate on
Thu Jun 07, 2012 11:00 pm

Hi,

While researching what an unreasonable amount of time is for 11(b), I came across this article which documents 4 recent cases where the 11(b) was dismissed: http://www.lawtimesnews.com/20111205882 ... ngs-tossed

In my case, I was charged with disobeying a stop sign on January 8, 2012 in Scarborough, Ontario. I submitted my objection within the 15 days time frame. I received my Notice of Trial on May 31, 2012 and have a trial date set for January 2, 2012. This is 11 months and xx days since my offence, depending on when you start counting.

Do I have a chance fighting the ticket using 11(b) given the recent decisions summarized in the link??

Thanks!


mnstrcck
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by: mnstrcck on
Fri Jun 08, 2012 6:53 pm

dstate,

My opinion is that unlike Drinking and Driving charges, which the 4 cases in the article cover, Part II summary offences like the one you're charged with can be argued to be simpler in nature. These simpler charges wouldn't require the inherent time needs of hiring a lawyer and the process for obtaining disclosure should be shorter.

In your case, depending on the steps you've taken thus far, you should be able to argue an 11(b) successfully.

Things to consider [R. v. Morin is used as the base for these questions]:

How quickly did you file your Notice of Intention to Appear within the 15 day window?
How quickly did you request disclosure [you should do so NOW if you haven't]?

Requesting disclosure is an important step which in itself can cause delays that could be attributed to the Crown. If you were stopped in the GTA area, you can also request disclosure of in-car video as there's a high possibility that your interaction with the officer was recorded. You have full rights to this from a legal standpoint, as it could potentially help you in your case. Also, officer notes should be legible and easily understandable, and the delays in getting this could also be argued against the Crown.

I'd request disclosure three times using the fax method [once every 4-6 weeks until you get it], or in person at the courthouse, and see how that goes. If you do not receive complete disclosure, you have the absolute right to ask for an adjournment on your scheduled court date. This should be argued against the Crown. Wait until 2 months before your court date to see where you stand on disclosure, and then depending on how things are going, you can proceed with an 11(b) application.

Hope this helps. Cheers.


manwithaplan
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by: manwithaplan on
Sat Jun 09, 2012 7:19 pm

mnstrcck is right. I did that with a red light ticket I received September 2010. My trial was set for July 2011. They didn't give me disclosure until 2 days before the court date so my paralegal had the trial moved on their onus (they didn't provide us enough time review the evidence, or something like that). Trial was moved to January 2012. OTT filed an 11b for me, and when they went into the court room on that date it was thrown out.


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Simon Borys
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by: Simon Borys on
Sat Jun 09, 2012 8:30 pm

Lahiry doesn't change the time frames, it basically just says that not every day from the time you set a trial date is institutional delay. There is a certain period of time that is required for the defence to be ready to actually go after a trail date is set and that time is not institutional.

To clarify, if you set a trial date today and the 1st available is 10 months from now, it wouldn't be 10 months of institutional delay, because you're not realistically ready to proceed today. It might be 9 months or something like that, depending on the complexity of the case to prepare for.

That being said, I agree with what was alluded to above that the reasoning in Lahiry applies less strongly to POA cases.

There is also a Court of Appeal case released yesterday or maybe the day before that seems to resile a little bit from this, but I haven't read it yet.
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