Confused about something

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zopiclone
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Confused about something

Unread post by zopiclone on

I got a ticket for 'Disobey Stop Sign' in November of 2013 (in York Region), requested disclosure and went to court in August of 2014. At my first appearance, I did not plea but requested an ajournment to to consult legal advice. The JOP set the next appearance in September.

I contacted a paralegal about my options. He told me that on my next appearance, if the police officer did not show, the charges would be withdrawn (he didn't encourage me to choose that option, merely informed me of the possibility).

However, on my next court appearance in September, I went to the prosecutor and said I was pleading 'not guilty' (the officer was not present in court), and instead the JOP schedule a trial date several months from now.

I am confused now. Did I miss something?

My second question is if, at this stage, it's still possible to contact the prosecutor's office or the court before the trial, and attempt to plea to a lesser charge (thus forgo the trial appearance). It's not that I don't want to fight it, but it's dragging on longer than I may be able afford to deal with (taking time off work to go to court, etc.).

Thanks.


iFly55
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Unread post by iFly55 on

Rough Timeline

Received Ticket: Nov 2013
1st Trial: Aug 2014
2nd Trial: Sep 2014
3rd Trial: ????

You're at-fault for the time between the 2nd and 1st trial. But the rest is the crown's fault. I would consider an 11b application.

Prosecutor will always plea-bargain in order to avoid a lengthy trial.


zopiclone
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Unread post by zopiclone on

iFly55 wrote:Rough Timeline

Received Ticket: Nov 2013
1st Trial: Aug 2014
2nd Trial: Sep 2014
3rd Trial: ????

You're at-fault for the time between the 2nd and 1st trial. But the rest is the crown's fault. I would consider an 11b application.

Prosecutor will always plea-bargain in order to avoid a lengthy trial.
Hi iFly55,

Next court appearance is in December. I am thinking an 11b might be a hard sell considering I was the one who requested the adjournment in August. I am just totally confused because it looks like it doesn't matter whether the police officer shows up even for your first appearance? If the outcome of pleading not guilty on your first appearance means they simply schedule a date for your trial (and the officer can show up then)?


iFly55
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Unread post by iFly55 on

Your adjournment only accounts for a one month delay. I don't think you understand how 11b time calculations are done, you should review R. v. Andrade: http://www.canlii.org/en/on/oncj/doc/20 ... cj470.html

From what you described the officer has another opportunity to appear for your next trial. Just like how you requested an adjournment to seek legal counsel, the prosecutor can request an adjournment so their witness (officer) can be present. It works both-ways.

In busier jurisdictions, the prosecutor will withdraw the charge if the officer isn't present. In other places, they're happy to schedule another date and give the officer an opportunity to testify.


zopiclone
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Unread post by zopiclone on

iFly55 wrote:Your adjournment only accounts for a one month delay. I don't think you understand how 11b time calculations are done, you should review R. v. Andrade: http://www.canlii.org/en/on/oncj/doc/20 ... cj470.html

From what you described the officer has another opportunity to appear for your next trial. Just like how you requested an adjournment to seek legal counsel, the prosecutor can request an adjournment so their witness (officer) can be present. It works both-ways.

In busier jurisdictions, the prosecutor will withdraw the charge if the officer isn't present. In other places, they're happy to schedule another date and give the officer an opportunity to testify.
Thanks for that link and explanation iFly55! I am surprising to see that the 11(b) worked in this case (11 months), as I thought the standard was usually a year or more (for delays due to the Crown). I've reading up on the 'how to file 11(b)' threads, that looks like a ton of work as well. Eh..


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Unread post by CAROL on

zopiclone wrote:Thanks for that link and explanation iFly55! I am surprising to see that the 11(b) worked in this case (11 months), as I thought the standard was usually a year or more (for delays due to the Crown). I've reading up on the 'how to file 11(b)' threads, that looks like a ton of work as well. Eh..
But very, very, very satisfying if you succeed! One of the hardest things you will ever do is to keep the smile off your face when the justice of the peace stays the charge and you walk out of the courtroom past the prosecutor :lol: :lol: :lol:


zopiclone
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Unread post by zopiclone on

So I was reading all the threads about how to file an 11(b), and saw that I should request transcripts (in my case, for the first appearance when I requested an adjournment and the second appearance when the prosecutor requested an adjournment). So I was trying to figure out where I would have to go to request my transcripts and found this...

http://www.attorneygeneral.jus.gov.on.c ... cripts.asp

Am I understanding this correctly? They've outsourced transcript requests to "independent, authorized court transcriptionist" and I would have to pay the crazy fees to obtain the transcripts to go along with my 11(b) application?


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Unread post by iFly55 on

Forget that link, just go to the ticket office where you filed your ticket for trial; they will take your transcript request. The costs depends on how much was actually said during the adjournment; if it was a few minutes than you're going to spend less than $20 for three copies.


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highwaystar
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Unread post by highwaystar on

You certainly can try your luck with an 11b application, just don't expect to win. Many people don't really understand this remedy and waste their time applying and even worse, telling others to apply. They simply look at the Andrade decision and think that's the law (several decisions have been decided since then!). Plus, they don't understand the complex arguments involved----its not just math!

To succeed, you have to prove that you were READY for trial but couldn't proceed because of the Crown's delays and you were prejudiced because of it. It doesn't appear to apply in your case---after all, you were STILL asking for disclosure in August 2014! You therefore can't argue from one side of your mouth that you still needed disclosure and consult with a legal representative (which means you weren't ready to proceed to trial!) AND that you were also ready for trial----which was it? Remember, there are transcripts for these things so be careful not to perjure yourself.

Your Aug 2014 date was likely a trial date but YOU were the one who couldn't proceed because YOU asked for the adjournment. Your September date was just a 'set date'----to schedule a trial (whereby the officer does not need to attend!)---it was likely NOT another trial date!!! I highly doubt they would have given you another trial date within 1 month. Check that out and you'll likely see I'm correct.

Once again, section 11b remedies are for unreasonable delays not attributed to you. I therefore wouldn't waste my time with such nonsense--any prosecutor worth their weight will easily shoot down your arguments and even if the JP gets the law wrong, an appeal court will likely rule re-open the case so you'd be back to square one.

Instead, be prepared to proceed to trial on your next trial date.


zopiclone
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Unread post by zopiclone on

highwaystar wrote:To succeed, you have to prove that you were READY for trial but couldn't proceed because of the Crown's delays and you were prejudiced because of it. It doesn't appear to apply in your case---after all, you were STILL asking for disclosure in August 2014! You therefore can't argue from one side of your mouth that you still needed disclosure and consult with a legal representative (which means you weren't ready to proceed to trial!) AND that you were also ready for trial----which was it? Remember, there are transcripts for these things so be careful not to perjure yourself.

Your Aug 2014 date was likely a trial date but YOU were the one who couldn't proceed because YOU asked for the adjournment. Your September date was just a 'set date'----to schedule a trial (whereby the officer does not need to attend!)---it was likely NOT another trial date!!! I highly doubt they would have given you another trial date within 1 month. Check that out and you'll likely see I'm correct.
Actually, I didn't request disclosure on my first appearance in August. I requested disclosure beforehand (3 times) and finally received a call to pick it up and sign for it 3 weeks before the August appearance. But yes, I did request an adjournment in my first appearance in August to consult legal counsel, and the JOP scheduled the next appearance for September--this is the part that I indicated in my original post that I was confused about.

As mentioned, I did contact a paralegal for advice over the phone. When I specifically asked "...if the police officer does not show on my next appearance, does that mean my ticket will be withdrawn?" The paralegal's answer was "yes." But it didn't happen on my second appearance in September. Instead, they set a trial date for December.

I know I am responsible for the 1 month delay resulting for my request for an adjournment from August - September, this is why I indicated in my original post that I didn't think I'd have a case for filing an 11(b). I always thought the 'magic number' was 13 months. But in R. v. Andrade, the judge stayed the proceedings even though the total delay time was 11 months (I think the 3 months delay between September and December for my next appearance constitutes "institutional delay"?)

I did do some quick calculations, and I think in my case, I might fall literally just a few days short of 11 months (my next appearance is in - very early - December). I know that even 11 months delay 11(b) might be a hard-sell, but you are saying it won't work at all? I am really confused :/


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highwaystar
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Unread post by highwaystar on

I'm not saying don't try----after all, you COULD very well succeed with your argument. I personally wouldn't waste my time, given all the effort involved and the odds of success. However, if you've got the time and patience (or just want to use this experience to educate yourself on these things), then go ahead. Just be ready to argue the math surrounding the delay and why a stay is the appropriate remedy (i.e. the prejudice to your case). The prejudice component might be the difficult one to really meet in your case. Plus, don't just go in there with the Andrade decision---update yourself on the law since that case.

I simply mentioned the 11b issues because you stated that the case was dragging on more than you might be able to afford---hence, why you wanted to plea bargain. Going the 11b route is going to take time and effort on your part. If you had a very solid 11b case then it would absolutely be worth it. However, it really is a 50/50 (at best). So, if you do a cost-benefit analysis, it is probably cheaper to just focus in on a defence for your case and/or consider a plea bargain. After all, chances are good that if you file an 11b application and lose, the prosecutor is less likely to give you a good plea deal. Again, that's just my take on it----every person has a different perspective and neither is wrong. As long as you go in with eyes wide open and are aware of the consequences, its your decision to make. Regardless, best of luck with your case.


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Unread post by zopiclone on

Ah ok, I get you. Thanks for the clarification.

The plea deal I would be looking at for this jurisdiction (the one offered to all the people who had the same charge on my first and second appearance) is 2 demerits and reduction of fine to something like $60. To me that is virtually meaningless as a 'lesser plea' for a 3 demerit and $110 or so offence. So yeah, I am tired of this whole thing and it's seriously cutting into my schedule (more so if I have to take at least an entire afternoon off to do the whole 11(b) thing at the courthouse), but I feel they are not leaving me much choice. But really appreciate your caution.


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Unread post by iFly55 on

Here's an 11b success story where they only had a 7mnth delay: http://www.ontariohighwaytrafficact.com ... tml#p21984

highwaystar does have good advice here, it's not just about the time delay you also have to show how the delay has prejudiced you: sleep deprivation, problems at work/school, always thinking about it, frowned upon at work for requesting numerous days off in relation to the matter, concerned family members wondering why you're always at the court house... distrust, that maybe you were charged with something more serious. I'm merely just thinking out loud here...

Most prosecutors will accept your 11b as long as your delay is within the guidelines; if they disagree who's responsible for the delay, then that's when you'll have to go through the pre-trial motion and convince the JP.

Most JPs focus solely on the time delay, and they accept inferences of prejudice and don't even require you to swear under oath.

highwaystar is correct there are a number of decisions since Andrade: https://www.canlii.org/en/on/#search/ty ... de%20delay

Perusing through the relevant cases, they appear to be positive and pro-defendant. It'll be in your best interest to go through them.


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Unread post by zopiclone on

Thanks so much for the link to the cases iFly55. Quick question: an I correct to assume the decisions from the human rights and labour tribunals are not binding, but merely 'persuasive' (at best), since they are not decisions from higher courts? In fact, how do I 'rank' the court decisions in relation to 'traffic court'?

Superior Court of Justice
Court of Appeal for Ontario
Ontario Court of Justice <-- trials for HTA offences fall here, i.e. me?

Is this correct?


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Unread post by iFly55 on

Ignore the Civil, Commercial, Human Rights cases, look for decisions like

R. v. Jair, 2013 ONCJ 142 (CanLII): http://canlii.ca/t/fwnhp
R. v. Szewczyk, 2012 ONCJ 680 (CanLII): http://canlii.ca/t/ftlss

Make sure they discuss 11b and R. v. Andrade

Cases that are binding will be any decision made at a court higher than the regular trial (JP); so if the decision is written by a justice/judge then it's binding to your trial court. Even JP decisions are persuasive depending on who wrote it and how well written it is. Sister/Brother JPs have to provide explanations/reasons as to why they disagree.






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