22 km over (72 in 50 zone)

Unread post by: **Radar Identified** on

Re: 22 km over (72 in 50 zone)

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Unread post by: Radar Identified on
Thu Nov 18, 2010 4:42 pm

hwybear wrote:I would suggest this is border line making a false statement in court as disclosure (no matter how late) was provided/available by the crown.

Yes, the defendant should say exactly what happened: "Crown attempted to give me disclosure this morning." No argument there.

Respectfully, though, I'd say that the defendant needs to make a case that the adjournment was caused by the Crown, not him. Unless the Prosecutor agrees to an adjournment pre-emptory on them for failure to provide disclosure prior to the trial, I'd complain to the Justice of the Peace, and let the Crown explain why it took them so long to get the disclosure package to the defendant. The JP likely won't order a stay since no paperwork was filed, but would probably order an adjournment.

That's just me, though.

* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca

Unread post by: **hwybear** on

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Unread post by: hwybear on
Thu Nov 18, 2010 9:01 pm

Radar Identified wrote:Yes, the defendant should say exactly what happened: "Crown attempted to give me disclosure this morning." No argument there.

Respectfully, though, I'd say that the defendant needs to make a case that the adjournment was caused by the Crown, not him. .

Agreed, the defendant needs to make the case caused by the crown, but refusing disclosure that day looks really bad.

Use your above statement above with a mild twist " Your worship, Crown provided me with disclosure 1 hour ago, I took these steps (....) to obtain disclosure.

Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca

Unread post by: **b0b** on

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Unread post by: b0b on
Fri Nov 19, 2010 12:22 am

Thanks for the help. I think I am ready to go to court. I'll try to get an adjournment based on what you guys said and than file an 11B.

Unread post by: **b0b** on

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Unread post by: b0b on
Fri Nov 19, 2010 1:49 pm

I got an adjournment and the next trial date is in March, which is over a year since the ticket was given to me.

The trial went like this. I entered the court room, approached the prosecutor she asked me if I wanted to plead guilty to a lesser charge I answered "no". She warned me about if we go to court and I am found guilty I will get the 3 points and the full fine. I said yes, and she told me to go sit down until my name is read. I was one of the last people to remain in court, when my name was finally called I got up to the stand. I stated my name and then the JP asked if I wanted to go to trial. I replied "Your worship, before we go to trial I just want to state that I have request disclosure in July and August and still have not received it." The JP turns to the prosecutor and asks if she has anything to say. The prosecutor starts looking through her papers and finds my disclosure request and states that my request was incomplete and thats why her office didnt prepare it. She also states that she can provide me with the disclosure today; the JP turns to me and asks if I want the disclosure. I reply "yes", the prosecutor asks the cop to go make the photocopies of his notes and come back. In the meantime I ask the prosecutor to repeat why the disclosure was incomplete. She states that it didnt have the officer number on it. I reply by saying from my understanding that all the information could be found through the offence number. The JP asks me to read her the offence number. She then turns to the prosecutor and asks if the offence number is sufficient to provide the disclosure. The prosecutor states that they have a lot of request and that they may or may not be able to provide the disclosure without the officers number. The JP asks again if the offence number is sufficient to provide the disclosure. The prosecutor again replies it may or may not be. The JP then states that she is going to note that the disclosure was not provided prior to today. Once the cop comes back with the photocopies the JP asks me if I want to proceed today or at another day. I state that I will need some time to look of the package. She says thats fine and then we set a new trial date. Before I left I stated that I want to state that the delay was caused by the prosecution and not me. The JP replies yes thats what I noted. I thank the JP and leave.

Unread post by: **Radar Identified** on

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Unread post by: Radar Identified on
Fri Nov 19, 2010 4:37 pm

Excellent! 11B it is. Nicely done, you handled that situation perfectly. I'd start putting together the 11B paperwork ASAP. The Crown caused all of these delays and you should be able to get the charge stayed.

* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca

Unread post by: **b0b** on

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Unread post by: b0b on
Tue Nov 23, 2010 2:06 pm

Should I file for the 11B as soon as possible or wait until January so its past 12 months since I have gotten my ticket?

Unread post by: **Radar Identified** on

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Unread post by: Radar Identified on
Thu Nov 25, 2010 11:18 am

I'd file it now. The delay is apparent now, so you may as well get the paperwork in. That said, as long as you have it filed at least 20 calendar days before the next trial, you'll be okay.

* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca

Unread post by: **b0b** on

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Unread post by: b0b on
Tue Jan 18, 2011 1:49 pm

Thanks for the help so far guys. I have been really busy lately and only had an opportunity to start working on the motion for a stay recently. I am looking at 11b Precedent cases and so far found R. v. Pusic, and R. v. Askov. Do you think these are appropriate for my situation, and are there any other that i could use?

Unread post by: **fredfred** on

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Unread post by: fredfred on
Tue Jan 18, 2011 4:08 pm

Radar Identified wrote:I'd file it now. The delay is apparent now, so you may as well get the paperwork in. That said, as long as you have it filed at least 20 calendar days before the next trial, you'll be okay.

When I filed an 11B, I then received a request from the prosecutor for the transcript of the court proceedings where the adjournment was given. It was stated that if this was not provided they would ask for my 11B request to be dismissed. I did it, just in case, and was successful with the 11b but I am assuming it was just a way for the prosecutor to get me to spend more money by ordering the transcript. Would the JP have dismissed my 11B request for stay if I hadn't done this?

Unread post by: **Radar Identified** on

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Unread post by: Radar Identified on
Tue Jan 18, 2011 6:13 pm

fredfred wrote:Would the JP have dismissed my 11B request for stay if I hadn't done this?

Probably. If the adjournment was due to the fault of the Crown (e.g. no disclosure), the JP presiding would have needed evidence (the transcript) that it was the Crown's fault in order to rule in your favour. I'd get it, even if it costs more. The more paperwork you can throw at them, the better.

Separate note:
Other cases to look at for the 11B include R. v. Morin and R. v. Rowan.

* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca

Unread post by: **b0b** on

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Unread post by: b0b on
Mon Mar 07, 2011 8:19 pm

I have the trial in a couple of days, I am getting ready for the defense. I have also filed for an 11b, hopefully the JP will grant a stay. However I am preparing my defense as well. I had a question regarding the test/retesting of the laser.

From reading the forums I know that the officer must test the laser before and after using it. On the notes that were supplied to me in the disclosure package, all it says is "ATL ##### OK M+T" It does not specify the time it was done and if a retest was performed after I was pulled over.
Based on the manual the daily tests are Internal Circuit Check, Light Segment Test, Range Accuracy Test, Horizontal Alignment Test, and Vertical Alignment test.

Can I use the fact that it doesn't state in his notes that he completed all the test for my defense?

Unread post by: **Stanton** on

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Unread post by: Stanton on
Tue Mar 08, 2011 5:43 am

b0b wrote:From reading the forums I know that the officer must test the laser before and after using it. On the notes that were supplied to me in the disclosure package, all it says is "ATL ##### OK M+T" It does not specify the time it was done and if a retest was performed after I was pulled over.

Just to be clear, laser does NOT need to be tested immediately after every stop, just sometime before the end of the officer's shift. If the officer failed to retest the laser or make note of it, that could grounds for reasonable doubt. There's also a chance though that the officer simply forgot the photocopy the page with the retest since it's rarely at the same time/date as the stop itself. .

b0b wrote:Can I use the fact that it doesn't state in his notes that he completed all the test for my defense?

No, unless you're talking about the lack of retest. Most officers don't list every single step of testing a radar or laser in their notes, they'll simply make note of the time that the test was done. During trial you can question the officer as to how the device was tested, but listing the steps in their notes isn't a requirement.

Unread post by: **Simon Borys** on

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Unread post by: Simon Borys on
Tue Mar 08, 2011 7:26 pm

I don't think you're hurting your case by accepting disclosure in the morning. It's no more reasonable for the court to expect you to review it before court than it is for them to expect you to do it during a court recess. If the disclosure is only available the day of, you can likely expect to get an adjournment (at the crown's expense) out of it.

http://www.boryslaw.ca
NOTHING I SAY ON HERE IS LEGAL ADVICE.

22 km over (72 in 50 zone)

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