Received Disclosure - Questions concerning next steps?

amcamx
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Received Disclosure - Questions concerning next steps?

by: amcamx on
Fri Sep 04, 2009 10:02 pm

FYI... originally posted this topic in the General Talk section. Deleted it there and reposted here.


I just recently received my disclosure package in the mail for a red light camera ticket. It took two requests and as to be expected was incomplete with no explanation for the missing pieces. I was hoping for some guidance on my next step.

Should I request disclosure again for the pieces missing (my second request included explanations as to why I required the pieces specified (i.e. either a copy or the ability to view the camera operator’s manual to understand the operation of the camera)? My court date is Sept 21st so it would not leave much time for the prosecutor to follow up again (my first request was back on June 30th). Or should I wait for the trial date and request a stay of proceedings due to the failure to receive full disclosure?

Secondly, the disclosure package I received contained the following; a letter from the Registrar of Motor Vehicles attesting to the truthfulness of the records provided; certificate of ownership; enlarged prints of the photos included on the ticket. However, the certificate of ownership is not for my plate (they mixed up a digit hence I received verification of someone else’s plate). I’m assuming the prosecutor will introduce the certificate of ownership as evidence in order to prove the plate is mine and that I am liable for the offence. Is there a valid argument concerning this error (if in fact it is brought up in court and not corrected prior or during trial) over the fact that they haven’t proved the plate is mine or is that just a minor technicality that can be justifiable overlooked/corrected during trial? :oops:


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by: KiX on
Wed Sep 09, 2009 11:33 am

Requests for disclosure would help your end, seeing that you acted to seek out the evidence against you.

If the camera caught the wrong carwas it a different make/color/sedan or coupe? If it's clear in the photo they sent you that it doesn't match your plates, I think you could just bring in your ownership which states the color, type, make, etc.


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by: amcamx on
Wed Sep 09, 2009 12:52 pm

Hi KiX,

The car in the photograph is mine. It is just the certificate of ownership given to me by the prosecutor is for the wrong plate (they didn't notice the error). What I am thinking, and correct me if I am wrong as I have not been to a red light camera trial before, is that the prosecutor must prove two things for a conviction based on section 144 (18.1) - Certificate of offence – owner – red light camera evidence: (1) that the vehicle did in fact run a red light (proven via photographic evidence); (2) the vehicle that committed said offence is registered in the defendants name (proven via the certificate of offence from the ministry).

In this case, because the certificate of ownership is wrong, if the mistake is not found and is submitted as evidence during trial, can I ask that the charge be dismissed as ownership of vehicle has not been proven? Or can the JP rule that a clerical mistake is not sufficient for this request and reschedule the trial for another date giving the prosecutor time to obtain the correct one?

Furthermore, if the prosecutor does realize their mistake and does obtain the correct certificate of ownership but doesn't provide me with a copy (before trial), are there grounds for dismissal as the prosecutor misled me (and didn't take reasonable measures to correct the error) by providing me with a different (wrong) certificate of ownership that influenced my approach to the trial (impacted decision on how to plead)?


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by: Radar Identified on
Wed Sep 09, 2009 2:42 pm

I'd try the "misled" approach. That's probably your best option, if they don't offer you a reduced charge/fine. I'm not sure it will work, though. As for the clerical error issue, I think it can be corrected by the JP and it is not a fatal error. But, don't be afraid to try it.


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by: amcamx on
Wed Sep 09, 2009 7:53 pm

Thanks for the comments. It encouraged me to look through the POA again and I found the following which does not work in my favour:

Amendment of information or certificate
34. (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a) fails to state or states defectively anything that is requisite to charge the offence;

(b) does not negative an exception that should be negatived; or

(c) is in any way defective in substance or in form.

So if I understand it correctly, the fact that the certificate of ownership provided to me is wrong does not allow the charge to be easily quashed. However, not all is lost:

Considerations on amendment

(4) The court shall, in considering whether or not an amendment should be made, consider,

(c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and

(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

I guess I will have to see as I get closer to the date what other supporting evidence I have to back my not guilty plea.


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by: Radar Identified on
Thu Sep 10, 2009 11:47 pm

Considerations on amendment

(4) The court shall, in considering whether or not an amendment should be made, consider,

(c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and

(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

I guess I will have to see as I get closer to the date what other supporting evidence I have to back my not guilty plea.
You'd have your work cut out for you, but you're obviously doing your homework so I think you have a shot at making a case here. Of course, have a couple of other defences in case this doesn't work. (But I'm sure you already knew that.)


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by: Radar Identified on
Fri Sep 11, 2009 10:08 am

Something got drawn to my attention. Try this approach: Let the Crown enter their evidence, but do not get on the stand to testify. Then just submit your own ownership, and in closing, state that the MTO document clearly shows that you are not the registered owner of the vehicle. That should do it.


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by: amcamx on
Fri Sep 11, 2009 2:52 pm

Interesting approach but I am not sure I understand the logic behind it. If I submit the correct ownership as evidence, wouldn't I essentially be correcting the prosecutor's mistake as the correct ownership is now in evidence (hence self-incriminating myself)?

Wouldn't it be wiser to not to submit anything and then depend on the JP and prosecutor to fail to realize the error until the closing statements in which case make mention that the prosecutor has failed to prove ownership of the vehicle committing the offence? At the same time, can the prosecutor ask for an adjournment to correct their error (the pictures clearly show my car/plate running the red light hence they would only need to prove ownership)?

Incidentally, is there any time during a trial where an adjournment is no longer allowed?

Adjournments

49. (1) The court may, from time to time, adjourn a trial ...

(3) Despite subsection (1), if the trial is being held in respect of a proceeding commenced under Part I or II, the court shall not adjourn the trial for the purpose of having the provincial offences officer who completed the certificate attend to give evidence unless the court is satisfied that the interests of justice require it. 1993, c. 31, s. 1 (23).


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by: Radar Identified on
Wed Sep 16, 2009 1:30 pm

They can adjourn (more or less) at any time. The Crown will present their evidence first, so let them submit the bungled documents. Your counter-argument is that they failed to submit documents proving ownership (submit your paperwork) - this is mostly for trial. One caveat: They may not allow you to submit your documents in closing, (depends on the JP) if you haven't submitted them during the trial.

If you have the time to do it, go visit the courthouse where your trial will take place and observe a few trials. Take notes, see how they're handling it and what the JPs are like. (Example: Old City Hall courthouse in Toronto = brutal & mistake-prone in favour of the Crown, Markham Road in Scarborough = fair.) Then decide how to approach it.


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by: amcamx on
Wed Sep 16, 2009 7:27 pm

Would I need to obtain a copy of my ownership from a Licensing office (i.e. Certified Owner by Vehicle Identification Number document) or is my Vehicle/Plate permit sufficient? Can the prosecutor amend the Certificate of Ownership after it has been entered as evidence? Kind of curious at how the courts treat human error. Seems to me that they have enough authority to make all necessary corrections thereby reducing the liklihood of being acquitted due to a clerical error.

I must say, I have spent (too) many hours researching this only to disconver at how difficult a charge it is to fight (not that I thought it would be easy). I lost one of my defences when I realized that the legislature had reworded section 3 of the RED LIGHT CAMERA SYSTEM EVIDENCE (REGULATION 277/99) from "must show" to "may show". :x

Now I only have TC's defence over the use of a revoked offence form (which seems to me will depend on the JP's intrepretation since there is nothing in the provincial acts (that I have so far read) that either allows or disallow this (although the use of the word "revoked" in the regulation may be helpful); and the incorrect certificate of ownership to go on (I have two others that are long shots (one of which I still haven't received disclosure on)).

My trial is in the Mississauga court house (950 Burnhamthorpe Rd W). I have been there once before and the JP was fair and professional (same goes for the Brampton court house). Must be a suburban thing: big straight multi-lane boulevards with long distances between traffic lights; yeah, you try doing 50). :)


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by: amcamx on
Mon Sep 21, 2009 6:39 pm

Had my trial today. I raised the defense that the specific offense notice form issued had been revoked hence invalidating the charge. The JP adjourned the matter to December. While she researches my request, I am required to submit a "technical" statement of the grounds of my request in 30 days in order to give the crown enough time to rebuke my statement and provide their own. There was apparently another trial dealing with the same issue which was to meet tomorrow to decide the outcome in the same courthouse. However, the JP made it clear that she was not bound by the decision.

Any suggestions on what my submission should "look" like? Is there a specific format to use? Incidentally, I did not tell the crown my intention when I brought this motion up. Was I suppose to? My understanding is that the defense does not have to reveal their strategy.

I will be arguing along the lines that the city did not have the authority in law to use a revoked form regardless of whether the changes done to it was minor or not. Part of my argument will depend on the lack of clarity since the revocation of the Interpretation Act (which did grant municipalities this power).

Funny thing was that my case was the second last one and it finished at 2:30PM even with a computer glitch that wasted 15 minutes. Guaranteed by 3PM everything was done. And there was only one other courtroom in session (the other three were closed). Perhaps Toronto should consider renting out the space to clear their backlog. :twisted: It would also give the crown there some practice since all they were doing was either dropping the charge due to no evidence or accepting a guilty plea. Could only imagine: "Your worship, the crown requests a few minutes to refresh their memory of how trials actually work and what they are suppose to do."

Got to tell you though, that $90 guilty plea is starting to look kinda good now considering my workload already! :cry:


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by: Radar Identified on
Tue Sep 22, 2009 2:11 am

You don't have to tell the Crown anything with regards to your intent/defence when you're bringing up a motion. It's for the JP to hear and no one else. As for format... I really can't be too sure. In my (non-legally-trained) opinion, I'd probably type up a document (business-letter format) with each point of my argument set apart as a header, followed by the argument in a following paragraph. Meaning:

* Point 1. The format is invalid.

This is because of the revocation of the Interpretation Act (add case law/description/other citations).

* Point 2. Etc.

And so on and so forth. Then summarize why the charge should be tossed. Then think of possible Crown responses to your submission. It's a cat-and-mouse game at this stage.

Long story short, as people like you and me have no formal legal training, the JP has to help. So if the submission is not quite what they're looking for, or if the format is a little "off," they should attempt to work with it. Maybe some of our other members will have a better idea than I do.

BTW... how long has it been since you were served with the offence notice? I might've missed it in your earlier posts.


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by: Frozenover on
Tue Sep 22, 2009 2:18 pm

amcamx wrote:There was apparently another trial dealing with the same issue which was to meet tomorrow to decide the outcome in the same courthouse. However, the JP made it clear that she was not bound by the decision.
I wonder if this was TicketCombat's case.

Any word TC? A lot of people want to know the result.


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by: amcamx on
Tue Sep 22, 2009 4:11 pm

Thanks for the tips R.I. I was thinking along the lines of first deconstructing the language of the two applicable sections in the POA (34 and 90) in order to show why they do not allow the invalid form to be "cured". Then I was going to provide case law where errors were "cured" in order to highlight specifics of where these sections apply. There was also an interesting case in Ontario (Durham (Municipality) v. Williams, 2006 CanLII 33422 (ON S.C.)) that dealt with a similar issue where Durham modified their tickets they issued quoting section 28 of the Interpretation Act:

Implied provisions,

28. In every Act, unless the contrary intention appears,

deviation from forms

(d) where a form is prescribed, deviations therefrom not affecting the substance or calculated to mislead do not vitiate it;

However, this act has been repealed and no other act (that I could find) seems to carry similar language.

Finally, I was going to throw in a few other acts from other provinces to see the language they use (if in my favour of course!).

I'm pretty much going to use case law to try and counter any defense the prosecutor brings up. But it won't be easy.

I received my offense notice back in June so I have a loooooong way to go before I can argue an 11b (if that avenue is even possible anymore). But something else came up during the motion so I'll see what comes of it.


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by: Radar Identified on
Wed Sep 23, 2009 12:08 pm

amcamx wrote:I was thinking along the lines of first deconstructing the language of the two applicable sections in the POA (34 and 90) in order to show why they do not allow the invalid form to be "cured". Then I was going to provide case law where errors were "cured" in order to highlight specifics of where these sections apply.
Sounds like a good idea to me.


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