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Interesting Case
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PostPosted: Tue Dec 06, 2011 4:39 pm 
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A friend got a speeding ticket with a set fine of $95. I cannot read the officer's notes so I cannot determine how fast he was allegedly going.

The friend requested a trial date, and when recieved a date for trial requested disclosure. The trial date was today (December 6) and no disclosure had been recieved by my friend (the court said they would mail it) because the Prosecutor is on holidays. I attended for my friend and asked the JP to dismiss the trial due to lack of disclosure but the JP simply adjourned the case (I did not make the argument properly as I did not read these forums before attending court).

My first question is am I allowed to represent my friend in a trial? I am a social worker and have no legal certifications, just a love for taking traffic tickets to trial; I have taken plenty of my own to trial but never someone else's.

Secondly, I picked up disclosure while I was at the court after the JP adjourned the trial and I cannot read the officers writing. My plan is as follows:

I will ask for the officers notes typed rather than handwritten.
When I pick this up I will then ask for a copy of the service records for the laser that tagged my friend, as I consider the service history of the laser gun to be important to the case.
Ideally my request for the service records will be denied, but does anyone have any experience with this? What information can others provide me with to strengthen my position? How much would it be recommended to apply for a stay now that I will have to attend court 3 times (1st appearance, motion to set a trial since I did not have dates for my friend today, then finally the trial) and will have spent more in gas than the ticket is worth? The court house is 1 hour away by car.


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Re: Interesting Case
PostPosted: Wed Dec 14, 2011 11:40 pm 
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A stay is usually only granted where a lesser remedy (such as an adjournment) cannot remedy the situation. If you are having issues with disclosure, an adjournment can likely remedy that. I do not think the fact that you have had to attend 3 times warrants a stay either. That is part of the process.

Even if you are denied a particular piece of disclosure you requested, it does not automatically mean you will get a stay. Crowns often take the position that certain items requested are not relevant and thus they don't provide them. It will be up to you to argue to the JP why you feel it is relevant. You can use case law to support your argument, if there is any. If the JP sides with you, again, the remedy will likely not be a stay, the JP will just order disclosure.

You can represent your friend as long as you comply with the Law Society of Upper Canada by-law on representation. I can't remember which one it is, but I believe it basically says that you can only do it for a friend or family member, you can't accept any money for it, and you can't do it on a regular basis, but you should read the by-law carefully before doing this.

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NOTHING I SAY ON HERE IS LEGAL ADVICE.


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Re: Interesting Case
PostPosted: Fri Dec 16, 2011 2:54 pm 
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Your comments are great Simon, I have seen them around and they are always helpful. I will keep this in mind, although 'the process' does cause undue financial hardship that costs more than the initial cost of the ticket. Feel free to check out a similar thread on a different ticket that I have posted here:
topic4069.html
Some of your answers may still be the same; for example the problems associated with incomplete disclosure, but you may find some other new circumstances that you could shed some light on.

Thanks again. So many people on this forum do such a great job when their only reward is the help they give to others.


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Re: Interesting Case
PostPosted: Tue Dec 20, 2011 7:58 pm 
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Arrived at court 30 minutes early, checked in with the Prosecutor's office.

Sat in court room for 20 minutes before 10am. Points was already sitting in the defendent's chair and saying they were going first. People made jokes that maybe order should go according to seniority (age). Points insisted he was going first. I made a joke in my mind that it proceeds according to who makes the most money off of this stupid system.

After 3 pre-resolved cases my name is called for a motion to set a trial - probably going in the order that people checked in with the prosecutor's secretary.

I ask the JP to determine if there is any way they can withdraw the charge. JP says nothing so I continue by saying that this case is causing financial hardship. I have had to attend twice, and will attend at least a third if not fourth time for trial all because I did not get disclosure.

Prosecutor says I only applied for disclosure December 6, the date set for the first trial.

I explain that I applied for disclosure at least 3 weeks before December 6, if not earlier, and that disclosure was not even ready for me on December 6; I had to wait for an officer of the court to obtain it from the Prosector's file folder in the court room and photocopy it for me so I could take it home.

JP said she would not withdraw the case for disclosure reasons.

Prosecutor said he would give me disclosure right now and handed me a second copy of disclosure.

I said to the JP that I would like to address two issues; first that I am not asking for a withdraw due to disclosure issues but am asking for financial hardship, and that none of it is due to my responsibilities. I showed up on my scheduled court date (december 6) but did not even have disclosure. Now I have to attend a motion to set a new date, drive back down to get more disclosure (I needed the officers notes typewritten as they are completely illegible) and finally attend a fourth time for trial.

JP says this often takes quite a few appearances.

Prosecutor accuses me of misleading the court; says I only asked for disclosure day of trial.

I state that the prosecutor being on vacation is no reason for me to have to attend a court 1 hour away from my house on 4 different days for a $100 ticket.

Prosecutor advises me he will be seeking Whitmer, or Windmill, or Wintmill during the trial on Janaury 31.

---

What is this thing the prosecutor will be seeking? I did not hear him clearly.

How do I plead for the case to be withdrawn due to financial hardship?


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Re: Interesting Case
PostPosted: Tue Dec 20, 2011 8:20 pm 
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I've never heard of a case being withdrawn because it is causing a financial hardship on the accused person.

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Re: Interesting Case
PostPosted: Wed Dec 21, 2011 3:11 pm 
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Any idea what the prosecutor is seeking? I might call him and ask him to repeat what he said so I can look it up.

The ticket is a $98 ticket. At least $300 in time and gas have been spent in the process so far. What can I ask for that would show the JP that punishment has already been meted out?


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Re: Interesting Case
PostPosted: Wed Dec 21, 2011 8:09 pm 
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it would probably be best to request for the transcript from that trial

to find out exactly what he said


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Re: Interesting Case
PostPosted: Wed Dec 21, 2011 9:19 pm 
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I always hate paying for transcripts, but you are right that that is the best course of action.

Speaking of typewritten notes, the Justice of the Peace scoffed at my request for a typewritten copy of the officers notes. Normally this would just be a ploy to make them do more work, but in this case the notes are completely illegible. Do I have a right to request a typewritten copy of the notes? I remember exactly what the JP said: 'who exactly do you think is going to type these notes for you?
Lol!


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Fishing Expedition
PostPosted: Mon Jan 23, 2012 11:43 am 
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What is the case law for requesting speed finding device service records and user manuals? I've been told by Stratford Prosecutor I am not entitled to either of these things.

They love to use the term fishing expedition.


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Fishing Expedition
PostPosted: Mon Jan 30, 2012 2:26 pm 
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Does anyone have any info on obtaining user manuals and service records for speed finding devices? This was called a fishing expedition by a prosecutor and I am just wondering if there are certain cases I should read in CanLii, or if anyone knows any webpages that document the reasons defendants are not allowed to have these documents.

I thought I posted something to this effect once before, but it might have been removed. My apologies if this topic is not allowed.


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Re: Interesting Case
PostPosted: Mon Jan 30, 2012 11:36 pm 
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I canot remember the case law name but it starts with a "W". I think the ticket was reduced on the side of the road. You will now be fighting the ticket on the original un-reduced speed.

OPS


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Re: Interesting Case
PostPosted: Tue Jan 31, 2012 12:37 am 
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The case is York v. Winlow, 2009 ONCA 64. Of course, you could argue (truthfully) that you had no idea what s/he was talking about at the time, that the fact that s/he was planning on amending up the charge should have been specifically explained to you, therefore you had no notice of the proposed amendment, therefore it is prejudical because of X (reasons are outlined in the case itself - Read the case.)

For the manuals, just search CanLii for 'speeding' 'manual', there is tons of stuff, they have to provide you with it; for service records, you could try that, but it's a bit trickier...not sure of caselaw and I think you might have to file a freedom of information request with the police service? Someone else might know more?

Re: the notes - show them to the JP - if s/he can't read them, can't see why they wouldn't order typed notes, or have the officer translate them right there for you, if s/he is present.


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