Disclosure received - no Certificate of Suspension

xjonathan
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Disclosure received - no Certificate of Suspension

by: xjonathan on
Fri May 14, 2010 12:09 pm

I had my first court appearance in early April; trial date set for next week (May 18th).
I'm currently charged with:
HTA 53(1) - Driving while Suspended
HTA 7(1)(a) - Invalid Plates

The suspension was for unpaid fines.

Last Friday (May 7), I received a phone call indicating my Disclosure was ready for pickup. Today (May 14), I went to the prosecutor's office and picked it up. In it is the following, related to both charges:

1. Cover letter, indicating my name, and the charges against me
2. Copies of the hand-written Summons to Defendant issued by the charging officer on the date of the offence.
3. Typed copy of the Information of the counts against me (charges).
4. Copies of the officer's handwritten notes regarding the incident
5. Copy of the Application for Vehicle Record Search, completed by hand, related to the date of the offence.
6. Copy of the Application for Driver Record Information, completed by computer, indicating the Driver Record is Required For Court Evidence, and that a Certificate of Suspension is Required, for Defaulted Fine.
7. Copy of the Application for Driver Record Information, completed by computer, indicating that a Driver Record is Required for Court Evidence (only)
8. A second Copy of the Application for Vehicle Record Search, dated the same as the first, identical except for a couple of additional notes referencing numbers written across the top (cut off by the copier...not sure what this is related to; probably unimportant).
9. Copy of a Certificate from the MTO indicating 'the papers annexed hereto constitute true statements...', signed by the Registrar of Motor Vehicles.
10. Copy of the MTO Results for a Vehicle Search completed 'Plate by Date', indicating the plates were expired on the date of the offence.
11. Copy of the MTO Results for a Vehicle Search completed 'VIN by Date', indicating the same as above.

That's it.

NO Certificate of Suspension. Only requests for such.

My understanding is that since there was no Certificate of Suspension in the disclosure, it can't be used in court. The only other thing they have would be the officer's statement, which since he'd be referring to the computer results, would constitute hearsay.

Thoughts? Should I have bought a lottery ticket?


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Simon Borys
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by: Simon Borys on
Fri May 14, 2010 1:03 pm

xjonathan wrote:Thoughts? Should I have bought a lottery ticket?
No.

Requests for documents from the MTO can sometimes take a while. You're right that they can't enter the document as evidence if it hasn't been disclosed to your first, but if your trial date comes up and the don't have it yet or they have it but you haven't seen it yet, the prosecutor will likely as for an adjournment in order to properly make disclosure.

The court takes driving suspended as a serious offence and will likely grant the adjournment in order that disclosure can be made, rather than proceeding without the document, since it is key to the crown's case.


xjonathan
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by: xjonathan on
Fri May 14, 2010 1:45 pm

Simon Borys wrote:
xjonathan wrote:Thoughts? Should I have bought a lottery ticket?
No.

Requests for documents from the MTO can sometimes take a while. You're right that they can't enter the document as evidence if it hasn't been disclosed to your first, but if your trial date comes up and the don't have it yet or they have it but you haven't seen it yet, the prosecutor will likely as for an adjournment in order to properly make disclosure.

The court takes driving suspended as a serious offence and will likely grant the adjournment in order that disclosure can be made, rather than proceeding without the document, since it is key to the crown's case.
Thanks!

This...annoys me. I took a day off for the first appearance, a half day to collect my disclosure, and will be taking another day for the upcoming court date. Only to, barring another phone call from the prosecution's office, have the prosecution request an adjournment. I thought it odd for the court date to be set so closely to my first appearance, based on the research I did, and doubted disclosure would be provided on a timely basis. Especially when two other cases set for trial at my first appearance were adjourned, as they had only received disclosure the day before. But then I got the phone call, and thought maybe I was wrong.

Why bother telling me the disclosure was ready for pickup, when clearly it isn't complete? Everthing in the disclosure, the prosecution had in their hands at the date of my first appearance (with the exception of the Information, completed the day of). This could have been released to me weeks ago.

To think...all this, over a non-moving violation that I didn't pay on time...

(Lesson learned? H-E-double-hockey-sticks, yes...)

EDIT:

So, at what point must the prosecution move to have the case adjourned? Is there any, 'too late, the case will proceed' point? In the (admittedly slim) chance the prosecution doesn't realize the certificate is missing, and the case begins, am I in the clear?


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by: Simon Borys on
Fri May 14, 2010 6:19 pm

There is no set time whereby the must move a case forward. Everyone is protected by the Charter against unreasonable delay, but in real life it's open to either side to argue that it has gone on too long, or hasn't.

If the crown proceeds without the certificate they will have a hard time proving the suspension was in force at the time, since the officer can not testify as to what the computer told him about your licence. As you pointed out though, this is a slim chance.


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by: xjonathan on
Wed Jan 05, 2011 12:21 am

Thought I would add a bit to my previous post.

So, turns out, that the court date I thought I was headed for when I originally posted this was actually my 2nd appearance, at which a trial date was set. My trial was today.

I got a little nervous about the court appearance...and ended up getting a paralegal. Not so much about what my options were; more about missing an opportunity due to my lack of experience in the courtroom. I won't be going back to him...but more on that later.

Got to court, and the paralegal checked the prosecutor's paperwork; sure enough, there was a certificate. Which wasn't really surprising. I had received no further disclosure from the court over the previous 8 months, though. Unless it was that one registered letter package I failed to pick up...I was out of the country at the time. Don't know who sent me what there; might have been them?

Prosecutor was unwilling to move on the charges, so we were going to trial. My turn came; the clerk read the charges, I pled not guilty to both, and the officer took the stand. The prosecutor started in on her usual mumbo-jumbo about why the notes are needed, is there an independent recollection, what's in the notes...and that's as far as we got. The officer mentioned something about 10-11 pages of electronic notes--his bad. I had two pages of scanned notes. My paralegal took issue with this, as we had no electronic notes. I've little doubt that the 'electronic notes' and my scanned notes were one and the same; the only thing 'electronic' about them was the means to store the data (as scanned images). But who am I to say anything?

Case adjourned; see ya in August! Without my paralegal, though; I'll be hiring another. I was not his only case in court today, and he failed in what should have been a easy win. Red Light offence; the officer went on stand and said that he was following 1.5 car lengths behind the defendant (dangerously close), and the defendant was 50' from the light when it went yellow (less than 1 second @ 50km/hr), and the roads were wet. Slam dunk, from my perspective. Unfortunately, he put the defendant on the stand, and the defendant's first words were, and I quote, "Well, I was approaching the red light..."

Doh. Shame on her for saying that. But more so, shame on him for a) putting her on the stand, and b) not having her clarify what she meant (she actually meant stoplight).


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by: xjonathan on
Wed Aug 31, 2011 4:08 pm

Well, since so many of these never get updated with the end results, I figured I'd take a minute to update mine.

Final court appearance was yesterday. Still hadn't received the Certificate of Suspension, but that turned out to be irrelevant.

Prior to the case, all were afforded the opportunity to speak with the Prosecutor. It was only myself and another man there at the time; both there for the same reason. He went in first, and through the open door, I was able to hear a sob story much better than mine. Prosecutor would not budge. I...didn't bother. Though my para-legal did when he arrived (no-go).

My case came up. Officer went on stand, no issues with his testimony this time. I went on the stand, and clearly indicated that I had no idea my license was suspended, that my mailbox was shared, and that I had attempted to pay the ticket that eventually put my license into suspension immediately after receiving it (it hadn't been filed yet). Ultimately tried for the Due Diligence defence. Paralegal pulled out R v. Bellumo(? that's wrong, don't remember the name exactly), 1995 case. But I already knew that had been trumped by another case, and was irrelevant...but whatever.

Sure enough, I was found guilty. The JOP hated doing it, though. He even stated that the fact that a suspension letter can be sent via regular postal mail REALLY needs to go before an appeals court, and found it unbelievable that should your license be suspended due to a Criminal Offence, not only are you told in Court, you're also sent a REGISTERED letter, and yet regular postal mail appears to be sufficient notification for what are some pretty severe penalties.
But ultimately, his hands were tied.

That's all, folks! Now, excuse me while I go sell my house.

What a wonderful world...


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