Prosecutor's Motion to Adjourn original Trial Date

TEB
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New Disclosure Question

by: TEB on
Tue Apr 12, 2011 4:02 pm

After driving for 40 years without a speeding ticket, I was stopped and given one this past November.

Not having ever had to deal with this sort of issue before, I asked the officer if it were possible for me to find out when his radar equipment had been calibrated, etc. He angrily told me that I was not entitled to that information.

My question: Now that I've learned (through this site) about disclosure, would it be better for me to ask for disclosure now, or to go to court and say that the officer had told me I wasn't entitled to the information, but have now just learned that I AM entitled to disclosure?

How best to use this to my advantage?

TEB


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Simon Borys
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by: Simon Borys on
Tue Apr 12, 2011 4:17 pm

The court will not appreciate you going there just to say that the officer told you you weren't entitled to that information but you now know that you are. They will ask you when you found out about it and then they will ask you why you didn't request it as soon as you found out.
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by: TEB on
Tue Apr 12, 2011 4:17 pm

I've received a Notice of Motion saying that the officer who issued my speeding ticket can't be available for court on that day. They are asking me to attend the Provincial Court on June 1st regarding this motion, and the prosecutor's intention to set a new trial date.

My question: Am I, by appearing at the hearing of this motion, contributing to the delay in bringing this all to trial?
Would it be better for me NOT to attend? What are the pros and cons on each side?

Also, the notice I've received has a rubber-stamped alert on the back page saying that if I don't attend, a new trial date will be set and I will not be informed by mail of the new trial date. They say that it is my responsibility to call them to find out the new trial date. Is this kosher?

TEB


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by: Decatur on
Tue Apr 12, 2011 5:37 pm

The prosecutor doesn't set the court date. The court does. The prosecutor will be requesting that the court date be changed because the officer is not available for trial that day. You (or your agent) can agree with the change or explain to the Justice that you are ready to proceed with the trial that day. As for the "rubber stamp" it's totally correct. It's up to you to either have someone in appearance at every court date or be prepared to find out when the next date is. It looks more professional if someone is there though.


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by: TEB on
Tue Jul 12, 2011 2:54 pm

Hello:

I'm fighting a speeding ticket. I sent a request for disclosure with specific items listed (radar device manual; explanations of any abbreviations used in the officer's notes), and materials were provided to me that did not include those things I asked for.

I sent a second request, pointing out the missing bits, and after several weeks (on June 27th) received a note saying that they wouldn't mail out the material I requested, but they would email it to me if I called to provide an email address. I did this immediately, the same day, and spoke with a person whose name I noted at the Prosecutor's office who assured me that the material would be emailed to me right away.

I've heard nothing more from them. No email, no telephone or mail messages.

The trial is now scheduled for tomorrow morning at 9:00.

Do I request an adjournment to a later date when I have the materials requested? Do I have grounds to request a stay? I got the ticket on Nov. 20, 2010. The trial date was already postponed once because the officer wasn't available to attend.

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by: Simon Borys on
Tue Jul 12, 2011 10:40 pm

You're probably not at a long enough delay to request a stay for a s. 11(b) and you're also nt likely to get a stay for a s. 7 violation for lack of disclosure since the prosecution has agreed to provide it to you - they just haven't yet. Hence, an adjournment may be the likely outcome. If you do request one it would probably be a good idea to make clear for the record that although you're requesting it it is attributable to the prosecution. This is known as "preserving the record".
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by: TEB on
Tue Jul 26, 2011 11:52 am

In my original request for disclosure, among other things I specifically asked to be included:

- A full description and explanation of the offense with which I am being charged;

- If short-form writing is used in the officer's notes, please have the officer provide and explanation for the short forms;

- Proof of the officer's proficiency or training with the speed-measuring device he used;

- A copy of the most recent calibration report (prior to my being charged with this offence) for the speed-measuring device used.

In the prosecutor's first response, I was given a copy of the officer's notes with no explanation of the abbreviations used; and one page of the manual for the radar device used, specifying the testing procedure. That's all. When I sent a second request for the other items I had asked for, I received a chart without a cover letter. The chart is titled: Response To Disclosure Requests. It lists several possible issues and gives case law for why they won't give out the information.

Under my request for an Explanation of Abbreviation used in the officer's notes, it states: Not Necessary; and lists case law R v Rashwan [2009] Q.J. no 3305 ;

Under my request for information regarding the officer's qualifications with the speed-measuring device, it states: Not Necessary; and lists case law: R v Rashwan [2009] Q.J. No. 3305 and R v McLachlan [2006] O.J. No. 3519

Under my request for an explanation of the charge, a handwritten response states: Not Necessary; Charge and section number are written on ticket for your reference.

I had to pick up the material in person, so I asked the prosecutor why there was no mention of the calibration report, and she said that they are under no obligation to provide that to me.

Is this all reasonable, or am I entitled to the information I requested? My trial is set of August 4th, so any help quickly would be much appreciated.

TEB




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by: Simon Borys on
Fri Jul 29, 2011 9:32 am

TEB wrote:In my original request for disclosure, among other things I specifically asked to be included:

- A full description and explanation of the offense with which I am being charged;
That's not something you get in disclosure. If you want to know what it is, read the section.
TEB wrote:- If short-form writing is used in the officer's notes, please have the officer provide and explanation for the short forms;
There is probably some validity to this request if the notes are indecipherable.
TEB wrote:- Proof of the officer's proficiency or training with the speed-measuring device he used;
The crown does not need to provide proof of the officer's proficiency or training. Furthermore, the officer does not even need to be qualified in a particular manner (see R. v. Williams, [2008] O.J. No. 1078 from the Ontario Court of Appeal at paragraphs 14-21). If you feel that the officer was NOT qualified, you can certainly challenge their ability/credibility at trial, but that is not an issue to be decided with disclosure.
TEB wrote:- A copy of the most recent calibration report (prior to my being charged with this offence) for the speed-measuring device used.
There has been discussion about this in other threads, I am of the opinion that it does not need to be produced.
TEB wrote:In the prosecutor's first response, I was given a copy of the officer's notes with no explanation of the abbreviations used; and one page of the manual for the radar device used, specifying the testing procedure. That's all.
That's all I would have expected you to get in a case like this.
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