Incomplete disclosure – unsuccessful motion of stay.

alexalex9
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Incomplete disclosure – unsuccessful motion of stay.

by: alexalex9 on
Mon Mar 28, 2011 11:21 pm

I got my ticket for 139km/h on hwy 401 in Cobourg area in September 2010. Ticket was reduced by cop to 120km/h. I received notice of trial in December 2010 with court date in March 2011. I sent disclosure request in January 2011 and didn’t get any response. I sent follow-up request (registered mail in both cases) in February, no response again.

So, I made all paperwork and filed Application of stay of proceedings three weeks before court day, based on Section 7 and Section 11(a), which says: “Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence”. I made everything like people do when filing 11(b): swore statement with Commisioner of Oaths, faxed the Application to general attorneys (Canada and Ontario), swore affidavit of services and then drove 100 km from Toronto to Cobourg and served court and prosecutor (in one window). After a week I received disclosure request by mail. They provided me with almost all information I requested. Only one thing was missing. I asked for typed version of officer’s notes and it wasn’t provided. The notes itself were illegible indeed, I could read approximately one third of them only. The funny part is disclosure cover letter was dated the very same date when I served court and prosecutor! It looked like they received my application and decided to act immediately. And my chances to get a stay based on improper disclosure were significantly decreased. Anyways… I opted to continue this game. I sent another registered mail asking for typed version of officer’s noted again. It was one week before the trial.

On court day prosecutor gave me typed version of officer’s notes. It wasn’t typed in fact, but hand written by officer in legible way (that’s weird, why cop couldn’t type it, I don’t know. There were a lot of text, whole letter format page). So, I could read those notes easily. Prosecutor said, that I can ask for adjournment, if I need more time to prepare my defence with these new information. I said, I’ll think about it. He also advised me if I am pleading not guilty he is changing charge from 120km/h (ticket) to 139 km/h (officer’s notes) which will increased fine from $95 to $340 or smth. like that and asked if I understand this. I said, yes. Everything was done in polite manner; I didn’t feel any pressure from prosecutor, actually.

When pre-trial began, prosecutor himself notified JP about my application of stay. JP asked me to tell my story, and I did tell how I sent my disclosure requests, didn’t get answers, etc. I emphasized the fact that Crown ignored my request and started to act only after my application of stay. Then prosecutor tried to explain, why he didn’t answer to first request (“apparently, felt through the cracks”), and after second request it took him some time to approach cop, collect information and so on, and it was just a coincidence that disclosure was ready at the same date when I filed application. Prosecutor also said he provided me with typed version of notes today. Then JP asked me and prosecutor about dates of first request, second request, third request… I was asked by JP to make final submission, I confirmed I am having all info I requested. Nevertheless, I asked to stay this case and take into consideration significant amount of time and resources I spent trying to get disclosure and preparing application of stay (registered mails, additional visit to Cobourg, additional day off, etc.), and that Crown failed to handle my request properly.

After that, JP said that he respected my efforts and I did a great job and followed all procedures properly, and he agreed that Crown was not perfect with providing disclosure. However, he said, I possess all information now, and he could not grant stay because it happens in very rare occasions, and that’s not enough grounds now. So, he offered an adjournment, and I accepted it. When I was leaving the court room, prosecutor approached me and offered a deal (115 km/h, $60 fine) if I won’t come next time. I said I think about that, he said this offer is valid for one week only until they finalize all scheduling.

That’s the story. I hope it could be useful for somebody. I tried to recall as many details as possible.

Now, I am thinking, should I accept the last deal or not? It would be not enough time for 11(b), just 9 months. I don’t think my other chances are high. Radar was tested, this is mentioned in notes. Not sure, what else could help me to win. If only cop won’t show up.

I am worrying about insurance, of course. I know, they usually do not care about conviction details, and do care just about number of convictions. But may be in certain circumstances and/or for certain insurers, 115 km/h is better than 120km/h or 139 km/h? Or it doesn’t matter at all?


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by: Radar Identified on
Tue Mar 29, 2011 12:28 am

Well... I'd take the 15-over if I were you. But that's just my opinion. My current insurance company will forgive one or two minor speeding tickets (15 or less over). Some insurance companies make everything count. They do not all use the same risk assessment matrix, so I can't say for sure how it would apply to you specifically.

Sounds like you did everything right to get the charge stayed. It's rare to get that kind of a compliment from a JP, so it's too bad it didn't work out. But, you did manage to get a possible deal that would give you 0 points and a lower fine.
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by: alexalex9 on
Tue Mar 29, 2011 1:15 pm

If I decide to accept the deal, how to manage it properly? Prosecutor said I should contact him by fax or phone in a week, pay fine, and that's it. I asked, if I get any confirmation of the deal from him. He said, he can send mail to me or leave voice message on phone.

So, let's say, I send him a fax, stating I agree to be convicted for 115km/h in 100km/h zone, 0 demerit points, $60 fine. What's next? Can I just go online to paytickets.ca and pay 60 dollars? How can I make sure that deal has been finalized, fine has been amended, etc.?


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by: Simon Borys on
Tue Mar 29, 2011 5:29 pm

Once you reach your deal you will still need to attend court to plead guilty to the amended offence of 15 over. Once that's done you will be sent notice in the mail and can pay using the information on that notice, or you can pay at the courthouse right after court.
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by: alexalex9 on
Tue Mar 29, 2011 10:06 pm

So, I have to drive to Cobourg one more time anyways... Too bad... In that case, may be I should continue to fight this ticket.

What's the point to make a deal in advance then? What are the benefits for me and for Crown? I thought, if we are making a deal in advance, Crown doesn't need to care about bringing cop to the court, and I also do not need to come.

As I mentioned, prosecutor gave me a week to accept that deal. He said, after a week everything will be scheduled and deal will not be valid. I don't understand his point now: if I still need to come, they still need to include me in a schedule, etc. Why does he want my answer now? Is that just part of the game? Why can't we make the same deal right on the court day in June?

Also, what if I come and change my mind, and say I want trial instead of pleading guilty to lesser charge - and prosecutor doesn't bring cop? Or, what if prosecutor changes his mind for some reason, and I come without prepared defence? Is that always just a verbal deal, based on word of honour, without any papers?


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by: Simon Borys on
Tue Mar 29, 2011 10:19 pm

The point of making a deal before the trail date is that it saves time - it's just not practical for everyone to have their resolution meeting in the 30 minutes before court starts. Why do you want to make a resolution early? Because it saves the prosecutor from having to have the officer there, ergo, better deal for you because you wasted less resources. But you still need to show up to plead guilty.

If you accept the deal and then change your mind on the date of the trial, the crown will have to ask for an adjournment because the officer is not there. They will get it and it will be your fault, so the delay will not count in your favour on an 11(b) motion. It's not common that the prosecutor changes their mind - it would have to be some exceptional circumstances or new information come to light. The reason is because they want to ensure confidence in the plea bargaining process because if 90% of people didn't plea bargain and went to trial, courts would grind to a halt with the volume.
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by: alexalex9 on
Tue Mar 29, 2011 11:51 pm

Thank you, Simon, for detailed answer. This is really helpful.
I still don't understand though why prosecutor set one week limit to his bargain? My next court date is in June. Is that sort of pressure or smth. like that? I am trying to guess his intentions which could be useful if I decide to continue this game.


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by: Simon Borys on
Wed Mar 30, 2011 8:03 am

That's not uncommon to give one week to decide about something in June. They might be trying to plan out the court schedule or the officer's schedules or something like that.
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by: hwybear on
Wed Mar 30, 2011 8:08 am

alexalex9 wrote:I still don't understand though why prosecutor set one week limit to his bargain? My next court date is in June. Is that sort of pressure or smth. like that? I am trying to guess his intentions which could be useful if I decide to continue this game.
What is smth? = Smith?

Courts plan there time based on pleas (5min) and trials (30min +). If they know then have 10 pleas that will be 1 hour to get done moving at a fast pace. So the court blocks off an hour of time. Then they might have 10 trials, so block off another 5 hours of the day, now that is 6 hrs, add lunch 1 hour....leaves 1 hour ...but some trials might be longer or shorter etc.. That is why Prosecutor wants an answer within a week, loads of time for you to think about it, and plenty of time for court to schedule that day in June accordingly, pending what you decide.
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by: alexalex9 on
Wed Mar 30, 2011 12:14 pm

hwybear wrote:What is smth? = Smith?
smth = something
hwybear wrote: Courts plan there time based on pleas (5min) and trials (30min +). If they know then have 10 pleas that will be 1 hour to get done moving at a fast pace. So the court blocks off an hour of time. Then they might have 10 trials, so block off another 5 hours of the day, now that is 6 hrs, add lunch 1 hour....leaves 1 hour ...but some trials might be longer or shorter etc.. That is why Prosecutor wants an answer within a week, loads of time for you to think about it, and plenty of time for court to schedule that day in June accordingly, pending what you decide.
Makes sense, thank you.




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by: alexalex9 on
Wed Mar 30, 2011 6:53 pm

I am trying to estimate which options I have now.

As far as I understand, my opportunity just to pay the fine which is on the ticket ($95) without visiting court has gone since I applied for a trial. So, that’s not an option. Is that correct?

If I won’t show up on the next trial, how much will I have to pay? The same amount as for 39 km over (~$350) or more? Any extra fee comparing to the amount if I show up and lose?

I am estimating chances that cop won’t show up as ~5-10%, may be even less. (or more?).

If I reject the deal and lose, my expenses will be $350 and ~$720 on possible insurance hike ($20 p/month *3years), so the total about $1070. Chances: 90-95%.
If I reject the deal and win, my expenses will be $0. Chances: 5-10%.
If I accept the deal, my expenses $60 plus ~$720 on possible insurance hike, total $780. Saving $290 comparing to the first option. Chances: 100%

What do you guys think about this casino? :) I know, decision is up to me, but your opinions are appreciated.

P.S. In any case, it seems to me, the only winner here is insurance company, in terms of money…


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by: Radar Identified on
Mon Apr 11, 2011 12:51 am

Your insurance company may not hike your rates, provided that this is the only ticket on your record in the last three years. It all depends on which insurance company you have. I'd accept the deal. I like 100% odds.
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