No disclosure after an adjournment - trial coming up

avialaw
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No disclosure after an adjournment - trial coming up

by: avialaw on
Tue Oct 11, 2016 3:29 pm

Folks,

My alleged offence is rather simple - speeding 134km/h in a 100km/h zone (quoted from the ticket).

Offence took place in Nov 2015. First appearance in May 2016.

Asked for disclosure, and 2.5 weeks before 1st appearance got a few pages from the radar manual, and a photocopy of the officer's notes.

At the first appearance I've stated that sending me disclosure 2.5 weeks before the trial doesn't work, blah blah.

Case was adjourned until this coming Thursday (13/10).

Between 1st appearance (May) and now (October), I sent 5 disclosure requests, asking for a typed version of the officer's notes, and an explanation of his shorthand.

Obviously I got nothing.

What would be the right strategy for Thursday? Push for a dismissal/withdrawal, or forget about it, try to get another adjournment, and then file a charter application, under 7, 11 and 24?

If I'm asking for it to be dismissed, I intend to rely mostly on Stinchcombe (i.e. I'm entitled to it, but I'm here for a second time, and it wasn't provided), however thoughts and suggestions are much appreciated. The ticket itself has a fatal flaw, however I won't be playing that game (no HTA subsection quoted).




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highwaystar
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by: highwaystar on
Tue Oct 11, 2016 5:24 pm

Its unlikely your case will be dismissed simply based upon you asking for it at your next trial date. After all, you'd have to file a section 7 Charter application (citing the lack of disclosure) to request a stay. The court simply cannot dismiss a case based on a constitutional breach on its own motion or verbal arguments----without both the federal and provincial governments getting their proper statutory notice! After all, both levels of government have the right to make submissions on Charter issues---and attempt to 'justify' any possible breaches under section 1 of the Charter. So, if a JP ever does that, its grounds for appeal by the prosecutor (if they choose to proceed with the appeal).

Therefore, since you no longer have time to file and serve the proper paper work to argue a section 7 breach, you SHOULD put your objections on the record and bring proof of your numerous disclosure requests. Then, they'll likely adjourn your matter. On your next appearance, you can file for an 11b Charter application (trial within a reasonable time) and argue that all the delays thus far were due to the prosecutor not giving timely disclosure.

Its a lot of waiting and paper work, but that's the proper procedure.




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by: avialaw on
Wed Oct 12, 2016 8:38 pm

@bend - the JP has agreed, on record, with me being entitled to a typed version and an explanation of the shorthand.

@highwaystar - thank you.

@screeech - this was discussed in another thread I've started 6 months ago, specifically relating to that particular fatal flaw. At the end, it comes down to the school of thought to which the JP subscribes, thus potentially resulting in a need for an appeal. The issue was addressed in Khoshael years ago, the city of London case subsequently, and most recently by the Ontario Court of Appeal in Farah and Mirza.


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by: bend on
Thu Oct 13, 2016 1:16 am

avialaw wrote:@bend - the JP has agreed, on record, with me being entitled to a typed version and an explanation of the shorthand.
The reason I bring it up is because usually they'll just have the officer pull you aside go through it with you right then and there. It's a lot easier than the alternative for both parties. I'm not sure why it wasn't offered. If it's something that wasn't mentioned until after that first court date, they'd probably have you explain why it wasn't brought up while the officer was available in the same room. But as long as you've already brought it up, then I guess you shouldn't have much to worry about.


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by: avialaw on
Thu Oct 13, 2016 10:42 pm

bend wrote:
avialaw wrote:@bend - the JP has agreed, on record, with me being entitled to a typed version and an explanation of the shorthand.
The reason I bring it up is because usually they'll just have the officer pull you aside go through it with you right then and there. It's a lot easier than the alternative for both parties. I'm not sure why it wasn't offered. If it's something that wasn't mentioned until after that first court date, they'd probably have you explain why it wasn't brought up while the officer was available in the same room. But as long as you've already brought it up, then I guess you shouldn't have much to worry about.
Well, this is exactly what has happened today - my disclosure argument didn't fly, and they've sent me outside with the officer, to go over his notes.

Appeal, here we come....




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