13 months = stay of charges?

diehard
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13 months = stay of charges?

by: diehard on
Thu Aug 12, 2010 10:09 am

I got this ticket in November of 2009 and requested a trial date.

I haven't receiving any notification yet. It's been almost 10 months.
So today I visited the court office and the lady searched the system.

She says there's a date for the trial, end of December of 2010.
That's going to be 13 months. I didn't sign anything, so officially I think I still haven't been notified.

A few questions I'd like to ask you honorable members:

1) If I don't receive any notification by mail, can they proceed with the trial?
2) Can I start the 11(b) process right now, even though I haven't been notified?
3) May I ask for disclosure now even without being notified of trial date?

Thank you very much.


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Keroba
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by: Keroba on
Thu Aug 12, 2010 3:04 pm

diehard wrote:I got this ticket in November of 2009 and requested a trial date.

I haven't receiving any notification yet. It's been almost 10 months.
So today I visited the court office and the lady searched the system.

She says there's a date for the trial, end of December of 2010.
That's going to be 13 months. I didn't sign anything, so officially I think I still haven't been notified.

A few questions I'd like to ask you honorable members:

1) If I don't receive any notification by mail, can they proceed with the trial?
2) Can I start the 11(b) process right now, even though I haven't been notified?
3) May I ask for disclosure now even without being notified of trial date?

Thank you very much.
1) By law, you have to be notified at least 7 days prior to your trial (forget the section in the POA that deals with that ... might actually be in one of its regulations actually).

Of course that is total bogus, and is only justifiable for rescheduled trials after an adjournment, etc., after the disclosure obligation has been met.

Section 5(2) of the POA (which will become s.5(5) at a later time) says:

Notice of trial
(2) Where an offence notice is received under subsection (1), the clerk of the court shall, as soon as is practicable, give notice to the defendant and prosecutor of the time and place of the trial. R.S.O. 1990, c. P.33, s. 5 (2).


Surely, if they already have it in their system, then they should be letting you know at the same time ... that would be "as soon as is practicable". Otherwise those words, and that section, have no meaning. At least none of any force or effect, that is. If I were you, I would ask for an ICON printout for your case, and hopefully the date of trial would be on there. It might even have the date when the trial date was added to your case. You could then argue to the JP that the prosecution "sat" on this information instead of sending out a Notice of Trial "as soon as is practicable" to you, not in keeping with s. 5(2) of the POA.

Perhaps they haven't settled on a final trial date yet, and are trying to work out availability with the officer, etc. But I would still ask for that ICON printout of your case.

2) But why would you want to? You just have to make sure that you submit your s.11(b) motion 15 days ahead of your trial date, and that you properly serve it on the prosecutor, and the Attorneys General of Ontario and Canada. You said it was the end of December? You'll have to watch out b/c I think holidays in that period could count against you in the s.11(b) time-of-serving reckoning, but if you submit it by the 3rd week of November, you'll have no problems.

3) Yes you may. I was caught out by this once, even though the clerk in the office expressly told me that I needed to know my trial date first (b/c there was a field on their standard Disclosure Request form that asks for it). A JP told me afterwards that I didn't need to have it, and to just assume that the prosecution will be going ahead with your case, Notice of Trial in hand or not, and to act accordingly.

What is the offence, if I may ask? 13 months for a first trial date should guarantee a stay for all but a rare few HTA offences.


diehard
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by: diehard on
Thu Aug 12, 2010 5:05 pm

Thanks a lot!

It's for a "136(1)(a) disobey stop sign" ticket.

I'd like to send a letter to the court office saying that I haven't received a notification yet and requesting a trial date ASAP.

Is there a template somewhere?

I know this is important for the 11(b) argument...


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Reflections
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by: Reflections on
Thu Aug 12, 2010 9:23 pm

You can search or goto a paralegal to draft your File form 4F, "Notice of Constituional Question" I believe it is. Your choice.
http://www.OHTA.ca OR http://www.OntarioTrafficAct.com


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by: diehard on
Fri Aug 13, 2010 9:34 am

Reflections wrote:You can search or goto a paralegal to draft your File form 4F, "Notice of Constituional Question" I believe it is. Your choice.
Hi Reflections,

I would like to send a letter to the court office saying that I haven't received the notification yet and requesting if they could "speed up" the process.

Would you have a template?

Thanks again.


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by: Keroba on
Fri Aug 13, 2010 3:51 pm

diehard wrote:
Reflections wrote:You can search or goto a paralegal to draft your File form 4F, "Notice of Constituional Question" I believe it is. Your choice.
Hi Reflections,

I would like to send a letter to the court office saying that I haven't received the notification yet and requesting if they could "speed up" the process.

Would you have a template?

Thanks again.
You can send a letter, or call the prosecutor's office, etc., but you do not need to do this. It is not your responsibility to have to hound the State into bringing you to trial within a reasonable time. It's the State's responsibility, pure and simple. Submit your disclosure request ASAP (that will act as proof of your intention to meet the charge against you). There should be no way that you don't receive your disclosure by the trial date ... if you don't, it cannot in anyway be your fault, etc. In fact, if you put in your request next week, I think you could legitimately be on their case about it just before Thanksgiving.

For a 4F template, just google ' "Notice of Constitutional Question" 11(b) ', and you'll get plenty of hits.

Here's one that I got.




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Keroba
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by: Keroba on
Mon Aug 16, 2010 1:28 pm

diehard wrote:Is this disclosure request form ok?

http://respect.to/wiki/pmwiki.php?n=Leg ... losureForm

As for the 4F template, that's when I submit a request for stay of charges (11(b)), at least two weeks before the trial date, right?

Thanks!
As for the disclosure form, looks fine to me. I would just - in addition to your general request for all relevant documents - specifically ask for the officer's notes on the back of the ticket (his/her copy), and any personal notepad ("dashpad") notes that they took regarding your alleged offence.

For the s.11(b) application, as I said previous, it has to be in at least 15 days prior (not two weeks), and I would give yourself more cover b/c holidays in and around your trial date may not be counted in that 15 day window. When is your trial date, exactly? As I said before, if you get it in by the 3rd week of November, you’ll be good.


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by: Reflections on
Tue Aug 17, 2010 7:07 am

Keroba wrote:
diehard wrote:Is this disclosure request form ok?

http://respect.to/wiki/pmwiki.php?n=Leg ... losureForm

As for the 4F template, that's when I submit a request for stay of charges (11(b)), at least two weeks before the trial date, right?

Thanks!
As for the disclosure form, looks fine to me. I would just - in addition to your general request for all relevant documents - specifically ask for the officer's notes on the back of the ticket (his/her copy), and any personal notepad ("dashpad") notes that they took regarding your alleged offence.

For the s.11(b) application, as I said previous, it has to be in at least 15 days prior (not two weeks), and I would give yourself more cover b/c holidays in and around your trial date may not be counted in that 15 day window. When is your trial date, exactly? As I said before, if you get it in by the 3rd week of November, you’ll be good.
On the money
http://www.OHTA.ca OR http://www.OntarioTrafficAct.com


diehard
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by: diehard on
Tue Aug 17, 2010 2:25 pm

Keroba wrote:
diehard wrote:Is this disclosure request form ok?

http://respect.to/wiki/pmwiki.php?n=Leg ... losureForm

As for the 4F template, that's when I submit a request for stay of charges (11(b)), at least two weeks before the trial date, right?

Thanks!
As for the disclosure form, looks fine to me. I would just - in addition to your general request for all relevant documents - specifically ask for the officer's notes on the back of the ticket (his/her copy), and any personal notepad ("dashpad") notes that they took regarding your alleged offence.

For the s.11(b) application, as I said previous, it has to be in at least 15 days prior (not two weeks), and I would give yourself more cover b/c holidays in and around your trial date may not be counted in that 15 day window. When is your trial date, exactly? As I said before, if you get it in by the 3rd week of November, you’ll be good.
Keroba,

I'm still confused.

What I would like to do right now is send a letter to the court office requesting that they "speed up" the trial date. This way I'm proving that I would like this solved ASAP just in case the judge questions my 11(b) request.

The 11(b) forms willl be submitted at least 15 days prior to the trial date which I believe is Dec 23rd, that's what the lady told me when she checked the system.

BTW, is that the actual trial date or the initial meeting with prosecutor?


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Keroba
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by: Keroba on
Wed Aug 18, 2010 6:02 am

diehard wrote:Keroba,

I'm still confused.

What I would like to do right now is send a letter to the court office requesting that they "speed up" the trial date. This way I'm proving that I would like this solved ASAP just in case the judge questions my 11(b) request.

The 11(b) forms willl be submitted at least 15 days prior to the trial date which I believe is Dec 23rd, that's what the lady told me when she checked the system.

BTW, is that the actual trial date or the initial meeting with prosecutor?
You'll prove that you want your case sped up by requesting disclosure ASAP! You can throw a line in like "I've yet to receive my Notice of Trial, and it's been over X months." Get that disclosure request in this week.

As I said in both posts before, if it's Dec. 23rd, I would submit the application earlier than 15 days before, just to be safe. If you get it in before the end of November, you should be good.

As for your last question, I don't know, you have the paper. If it says something like "First Attendance Meeting", then that's what it is. A Notice of Trial will say "Notice of Trial" right along the top.

Stop overthinking this, and just get the disclosure request in!!!


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by: diehard on
Mon Aug 23, 2010 11:33 am

The notice of trial arrived by mail last Thursday.

I just faxed the disclosure request.

Thanks guys!!!

I have a few questions though, which I'll be asking in a new topic.


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