Preparing for Trial - Inadequate Disclosure

Student1
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Preparing for Trial - Inadequate Disclosure

by: Student1 on
Tue Apr 26, 2011 10:52 pm

My trial for a speeding ticket is coming up. I have followed recommendations off ticketcombat website and have sent 3 disclosure requests (without phone number) and have received nothing. At the day of trial it will be about 10 months since the ticket was issued.

I guess the first step will be to ask the court for an adjournment during the Motions, “Your Worship, I would like to ask for an adjournment of this matter to another date because the prosecutor has failed to provide me with adequate disclosure and need more time to prepare a proper defence“. Is there anything I should specifically state so that I can keep my option for 11b open? Ie, "Yes, the new date is acceptable to me, however since the reason for this postponement is because the prosecution failed to provide me with disclosure, I just want to advise the court that I am not waiving any of my section 11(b) Charter rights with respect to this matter" or would this be over the top? *Note, I have only sent in disclosure request and nothing regarding speeding up the date of the trial.

Alternatively, I read about how some JP will not offer an adjournment, in which case I would like to have a defence/strategy prepared.


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by: Student1 on
Tue Apr 26, 2011 11:28 pm

If I am to go to trial, after cross-examination my defense would be to make a Motion of Non-Suit. I was charged with going 80 in a 60 [on the ticket], but this was on a Municipal Expressway. From my understanding of HTA 128.1 (unsure which one I would bring up):
(b) despite clause (a), 80 kilometres per hour on a highway, not within a built-up area, that is within a local municipality that had the status of a township on December 31, 2002 and, but for the enactment of the Municipal Act, 2001, would have had the status of a township on January 1, 2003, if the municipality is prescribed by regulation;
(c) 80 kilometres per hour on a highway designated by the Lieutenant Governor in Council as a controlled-access highway under the Public Transportation and Highway Improvement Act, whether or not the highway is within a local municipality or built-up area;

I would then argue that under the HTA 128.2 - Rate of speed by by-law
(2) The council of a municipality may, for motor vehicles driven on a highway or portion of a highway under its jurisdiction, by by-law prescribe a rate of speed different from the rate set out in subsection (1) that is not greater than 100 kilometres per hour and may prescribe different rates of speed for different times of day. 2006, c. 32, Sched. D, s. 4 (3).

Then state, "The only way to know if I were speeding during the affected time is if the I am presented the by-law. Since no by-law has been filed, there is no evidence that I was breaking any law."

Note: Would I have to argue whether the highway I am driving on is classified as such? From Googling I found a wikipedia entry stating I was on a Municipal Expressway, but I can not find anything official.
http://en.wikipedia.org/wiki/List_of_On ... xpressways


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by: Radar Identified on
Wed Apr 27, 2011 6:15 pm

Couple of points:

1. "Municipal expressway" is not a term used in the Highway Traffic Act. Wikipedia is not an official source of legal information. Which road did this occur on?
2. The inadequate disclosure is probably the best angle to go after if the Prosecutor fails to provide it. If they adjourn to provide disclosure, look at an 11B.
3.
Student1 wrote:Then state, "The only way to know if I were speeding during the affected time is if the I am presented the by-law. Since no by-law has been filed, there is no evidence that I was breaking any law."
... will not work. The existence of the speed limit sign is prima facie evidence of the by-law. Unless the JP is extraordinarily sympathetic, he/she will rule against you.
4. Ticketcombat... sigh... The "without phone number" may work against you. The Prosecutor could simply say "we tried to advise the defendant by phone that it was ready, but the defendant failed to include a phone number and it is against our policy to send it out in the mail." Then you are left to explain why you left the phone number out, which will likely not go very well.
* 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


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by: Student1 on
Thu Apr 28, 2011 2:23 pm

The above happened on Allen Road aka The Allen Expressway.

Well you've thrown out most of my defense. My other argument was during cross-examination, to question the officer's lack or recollection. And if he didn't recall things like (# of passengers, shirt color) would ask for a dismissal (I know, thin chance).


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by: Student1 on
Thu Apr 28, 2011 3:02 pm

Also, my best bet is if the officer does not show up. If that happens and without knowing the officer is not there, would my wanting an adjournment reschedule my trial? Or would all trials without the officer showing up be thrown out first before non-guilty pleads are heard.

I've also read about how the Crown will speak with you before to ask what your plan of action is. If I tell him I am looking for an adjournment because of inadequate disclosure, and he then says he has it and hands it to me. Do I take it, or tell him that I will only take it once an adjournment is given because in case the JP decides not to give an adjournment (moves forward with trial) I can object that it is evidence that was not disclosed to me in advance in order to prepare my defense.

Thanks


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by: Student1 on
Thu Apr 28, 2011 4:04 pm

Student1 wrote:I've also read about how the Crown will speak with you before to ask what your plan of action is. If I tell him I am looking for an adjournment because of inadequate disclosure, and he then says he has it and hands it to me. Do I take it, or tell him that I will only take it once an adjournment is given because in case the JP decides not to give an adjournment (moves forward with trial) I can object that it is evidence that was not disclosed to me in advance in order to prepare my defense.
Found the answer to this question in another thread.

Radar Identified wrote:Yes. Disclosure, motions, etc., are preliminary matters and must be dealt with before the trial starts. Show up early, check in with the Prosecutor. Do NOT accept the disclosure package if they have it and want to give it to you before trial. Tell them that you are going to have to speak to the JP first. Instead, when the trial is about to start, and they ask you "how do you plead," mention that before you are making any pleas, the Prosecutor has not provided disclosure which was requested in August. That should force an adjournment. If they say "okay, well we will give it to you now, so go review it and come back in five minutes," object and point out that the Prosecutor needs at least 15 days notice just for a Notice of Constitutional Question, and also could not produce disclosure even after three months, so how could you possibly be expected to do so in five minutes? That would be prejudicial and completely unfair.

Once the adjournment has been forced, you should then be able to file an 11B. If you're not comfortable with the process, you can get a paralegal to do it for you. Usually in Toronto the Prosecutors simply withdraw the charges if an 11B is filed rather than fight it out. They're way too busy to argue Constitutional Questions on a daily basis with the clogged court system.




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by: Stanton on
Thu Apr 28, 2011 6:58 pm

Decatur wrote:Shirt colour and number of passengers? Very thin. They also have to real bearing on the original offence.
Agreed. The Crown/JP will shut down pointless questions pretty quick. Shirt color may be relevant in a seatbelt offence (i.e. belt same color as shirt defence), but has no relevance to speeding. Stick to the facts in issue.


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by: Student1 on
Sun May 01, 2011 11:49 pm

I went to court, turned down the offer of 70 in a 60. Got an adjournment because of undisclosed disclosure and will be going back in a month. I got the officer's notes and the radar gun manual. Nothing written on note about radar testing.

How should I proceed?


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