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Not enough time given to me to request Disclosure?
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PostPosted: Sat Jun 23, 2012 5:22 pm 
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I was stopped yesterday for a speeding ticket, and driving with a suspended license (which i was not aware of--it was for an unpaid traffic ticket), as well as not having my driver's license on me. I was given a summons to appear before court 6 weeks from now. I paid my unpaid traffic ticket, and will likely get my driver's license reinstated in a week.

I will be requesting Disclosure of evidence next week, and assuming that i don't receive the disclosure within 15 days of my trial date, I will be filing for a stay application based on Non-disclosure of evidence. Typically, all of the websites say you need to send a request for disclosure to the prosecutor at least 8 weeks in advance, however, I was only given 6 weeks between my offence date and my summons date.

What this means is if I send my disclosure request next week, then the prosecutor will only have 2-3 weeks to prepare the disclosure evidence and send it back to me before the 15 day prior-to-trial period (the Stay time limit) kicks in. My gut feeling is that given the jurisdiction i'm in, it's pretty unlikely that i'll get something back from the prosecutor in such a short time. My questions are:

1) If I have filed for a stay, and i receive the disclosure materials within 15 days before the trial, do i have a solid argument before the court that i did not have sufficient time to review the Disclosure documents and prepare for the trial? It would seem to make common sense that if the courts are enforcing a minimum 15 day pre-trial period for stay applications, that i should be entitled to at least 15 days to review the disclosure evidence.

2) Assuming that i make the argument in 1), and the judge adjourns the trial to a later date, is there an argument to made for a stay based on the fact that i was provided a summons too close to the offense date, ie, i was not given enough time to allow for proper preparation of a trial defense because i was only given 6 weeks notice, vs minimum 9 weeks to allow for adequate preparation time for the prosecutor for the Disclosure evidence. It would seem that the police officer erred here because he set the trial date at an unreasonable short time following the offence date.

Any other comments, feedback, thoughts would be greatly appreciated. Thanks

John


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Re: Not enough time given to me to request Disclosure?
PostPosted: Sat Jun 23, 2012 8:44 pm 
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The date on your summons is actually a first attendance date, not a trial date. It will be an opportunity for you to advise the Court/Crown how you wish to proceed. If you decide to fight the charges, a trial will be scheduled for a different date down the road. Quite often disclosure will be provided on your first attendance date.


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Re: Not enough time given to me to request Disclosure?
PostPosted: Sun Jun 24, 2012 12:28 pm 
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Thank you so much for your response Stanton, that is very helpful. A couple of further questions that perhaps you could assist me on:

1)So I'm assuming at the Summons, the prosecutor will try to make a bargain with me (i.e, reduced fine, etc...) and if i reject his plea bargain, then i'll go to a regular trial, like any other speeding ticket? If this is the case, would you recommend going to trial anyway, and take my chances on not getting disclosure, the cop not showing up, etc...?

2) You mentioned that the disclosure will likely be given to me on the first attendance date. However, do I not still have a chance to request further disclosure evidence? (e.g., radar manuals, etc...)

3) Also, do you think the prosecutor will stick it to me at the trial if i reject his plea bargain at the summons? Or will i have another chance at a plea bargain at the trial (assuming that they already give me disclosure in time for the trial). My insurance is up for renewal in october, so i'd like to actually postpone a conviction until after october.

Any thoughts, comments, or suggestions are greatly appreciated.

Many thanks

John


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Re: Not enough time given to me to request Disclosure?
PostPosted: Sun Jun 24, 2012 12:39 pm 
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Also, I received a "Summons to Defendant" under Part III of the Provincial Offences Act, so I think this is not considered a "First Attendance Date", but rather, a "First Appearance Date".

Something I found online re: Part III summons

Part III – Proceeding Commenced by Information

The procedure in Part III is for offences that must be brought before a justice for resolution; they cannot be resolved through the payment of a set fine. The decision whether to prosecute under Part I or Part III often rests with the police officer or provincial offences officer. That decision will depend upon the nature of the offence and the public interest that may demand higher penalties. For example, offences under the Environmental Protection Act that carry potential fines of up to $50,000 on a first conviction and $100,000 on subsequent convictions would be brought under Part III.[79]

The decision to charge under Part III may also depend on the circumstances or consequences of the commission of the offence.[80] For example, an employer may be charged under the Occupational Health and Safety Act[81] for a failure to provide its employees with appropriate protective devices and served with a Part I offence notice. However, if the failure to provide such protective devices resulted in serious injury or death to an employee, the employer may be charged under the Part III procedure.

For Part III proceedings, a provincial offences officer (which is defined as including a police officer)[82] may serve a summons on a defendant and then subsequently attend before a justice to swear an information; or the information may be sworn before the justice with service of the summons occurring afterwards.[83] In addition to a provincial offences officer, any person may lay an information that alleges the offence under oath before a justice.[84] The justice may issue a summons directed at the defendant setting out briefly the offences in respect of which the defendant has been charged and requiring the defendant to appear in court on a specified date and time.[85] Instead of a summons to compel the defendant’s appearance in court, the justice may issue an arrest warrant for the defendant where authorized by statute and where the justice is satisfied on reasonable and probable grounds that it is necessary in the public interest to do so.[86] Service of a “ticket” or offence notice does not commence a Part III proceeding; all Part III proceedings are commenced by swearing of the information before a justice. In these respects, the procedure for commencing a Part III proceeding is more akin to commencing a criminal proceeding.

With respect to sentencing, the $1,000 fine maximum applicable to Part I offences does not apply under Part III, and imprisonment is a sentencing option.[87]


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Re: Not enough time given to me to request Disclosure?
PostPosted: Sun Jun 24, 2012 1:15 pm 
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1) It's really up to you to weigh the guarantee of a plea deal versus taking a chance and forcing a trial. Officer not showing is slim. Lack of disclosure is also a bit of a gamble. Even if they don't provide adequate disclosure for the speeding charge, they could simply withdraw it and still proceed with the driving under suspension charge. It's the driving under suspension charge that you don't want to be convicted of. Its a major conviction and your insurance will certainly go up (plus an additional 6 month suspension on conviction).

2) Yes.

3) Hard to say. My experience is they give you some time to weigh your options, but if you wait right until the trial date and the officer is at Court, they might take the plea deal off the table.


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Re: Not enough time given to me to request Disclosure?
PostPosted: Sun Jun 24, 2012 2:06 pm 
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Great, thanks again for the quick response. I think what i'm going to do then is request for an adjournment to another date, on the grounds that I need some more time to review the disclosure documents (or perhaps I'll have an emergency I need to attend to that day?). Do you think that would go over well with the prosecutor and/or JP? At worst, I can at least postpone my insurance rate hike until next year, when it's up for renewal in october.

Thanks again for the great input


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