Lack of disclosure or absent officer; only one or the other?

Hi All,

This is my first post, but I have learned much from the experience of the others here and am grateful for the knowledge I've obtained of the legal process and our rights as citizens.

I just got back from court for a speeding ticket issued back in November 2009. After requesting a speedy trial, I received my trial date in the mail a month ago on May 15, to appear in court today (June 16). I requested disclosure immediately, but had not received anything up to the trial.

I showed up early to court (Toronto South, Old City Hall; trial's at 9, I arrived at 8:30), and when checking in with the prosecutor, she noted that I'd requested disclosure but had not receive it, and asked what I wanted to do. I answered that I wanted to go to trial, thinking that I'll ask for an adjournment, and she gives me a surprised look, and in a surprised voice, asks,

"You want to go to trial without disclosure?? Or do you want to ask for another date?" This is the first question I have -- if I'd suspected that the officer was absent, what should I have said? I told her that, yes, I wanted to ask for another date. But I should've caught on that she was only asking this because the officer likely wasn't there, although I had no way of telling at this point.

After going into the courtroom and hearing a slew of guilty pleas for half an hour, I realized that my officer was still not present. When the prosecutor called me up at this point, she tells the JP that she's expecting an adjournment request because I hadn't received disclosure. Here's my second question: Should I have changed my answer and asked instead to proceed with the hearing, since I knew for sure that the officer was absent at this time? Would this have resulted in the ticket being thrown out immediately? I was concerned that if I had changed my request, that they'd tell me to sit down again and wait until the rest of the guilty-pleas/adjournments were done before they got to me again, since I read that the actual trials are left until the end of the session, and by that time, the officer could've arrived late and I'd be screwed. Can they do this? Or do they need to hold the trial right at the point I was up there, and throw it out since the officer was absent at that point? Also, how likely is it that an officer would not be there at the scheduled time but show up later?

I agreed to the adjournment and have another date scheduled for September. The prosecutor smiles and says thank you, and I left kicking myself, thinking that I helped her out since her witness wasn't there and I volunteered to wait until the next time when he might actually show.

I'd like to know what my options were in this situation so that I can be better prepared for my next trial date. Thanks for your time!

D2000

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D2000 wrote:

I answered that I wanted to go to trial, thinking that I'll ask for an adjournment, and she gives me a surprised look, and in a surprised voice, asks,

"You want to go to trial without disclosure?? Or do you want to ask for another date?" This is the first question I have -- if I'd suspected that the officer was absent, what should I have said? I told her that, yes, I wanted to ask for another date. But I should've caught on that she was only asking this because the officer likely wasn't there, although I had no way of telling at this point.

What I would normally do is to ask if the officer is around to see if I can take a brief look at his/her notes.

That way you find out whether the officer is present. If he/she is present you can still ask for an adjournment to get disclosure and review it at home or to obtain legal advice.

If the officer is not present you then ask the prosecutor what is she going to do and respectfully suggest to withdraw the charges.

D2000 wrote:

When the prosecutor called me up at this point, she tells the JP that she's expecting an adjournment request because I hadn't received disclosure. Here's my second question: Should I have changed my answer and asked instead to proceed with the hearing, since I knew for sure that the officer was absent at this time?

Yes; you could have asked for a trial despite the fact that you had indicated otherwise to the prosecutor earlier.

D2000 wrote:

Would this have resulted in the ticket being thrown out immediately?

Possibly but not necessarily. The prosecutor may then ask for an adjournment and show cause to justify the officer's absence.

D2000 wrote:

I was concerned that if I had changed my request, that they'd tell me to sit down again and wait until the rest of the guilty-pleas/adjournments were done before they got to me again, since I read that the actual trials are left until the end of the session, and by that time, the officer could've arrived late and I'd be screwed. Can they do this? Or do they need to hold the trial right at the point I was up there ...?

Yes; she called your case thinking that you were going to ask for an adjournment and could have asked the justice of the peace to hold the matter down to deal with other brief matters, unless your's was to be her last brief matter.

If the prosecutor wants an adjournment, you can still object to it.

D2000 wrote:

Also, how likely is it that an officer would not be there at the scheduled time but show up later?

It could have happened. Most of the time in Toronto they just withdraw, but in other jurisdictions I've seen cases where the prosecutor calls the officer and he/she shows up.

D2000 wrote:

I agreed to the adjournment and have another date scheduled for September.

You can still make an application under s. 11(b) of the Charter for not getting a trial within reasonable time. You did not waive your Charter rights since the reason for the adjournment was not having received disclosure. A difficulty could be that from Nov 09 to Sep 10 there are only about 9 months.

D2000 wrote:

The prosecutor smiles and says thank you, and I left kicking myself, thinking that I helped her out since her witness wasn't there and I volunteered to wait until the next time when he might actually show.

I'd like to know what my options were in this situation so that I can be better prepared for my next trial date. Thanks for your time!

I've learned that the best practice is, within certain limits, to be open, frank and direct when it comes to deal with prosecutors. They will respect you for that.

Next time ask all the question you think are important to make your decisions.

Good luck in September and maybe by then you still have no received disclosure or the officer may not show up

Cheers.

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Thanks so much for your reply, Biron. Great advice; this should definitely maximize my chances of getting it thrown out/stayed.

I'm actually looking forward to playing this game now that I'm armed with these tactics.