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Disclosure Time Period?
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PostPosted: Fri Jan 16, 2015 2:19 pm 
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So I got a speeding ticket back in October and requested to go to trial. With my Request for Trial I also sent in my letter for a speedy trial and a disclosure request. I still haven't received a Notice of Trial but that could just be a matter of a bit more time. More importantly I haven't heard anything at all about my disclosure request. It's now been about 3 months since I requested a trial and it's just been crickets from the prosecution.

I don't think that the disclosure request should be impacted in any way on the fact that my trial still apparently hasn't been scheduled. If I'm wrong on this please let me know but I was hoping to get my disclosure ASAP so I could figure out what to do at that point. Is there a specific time period where disclosure needs to be provided? I've head in some areas it can take up to 6 weeks to prepare disclosure and we're near the 3 month mark so something seems very wrong here. I have sent in a second request a little shy of 5 weeks after the initial request and still did not hear back. I have sent in a third request today but feel that at this point the lack of disclosure is making it harder on me to remember little details that may or may not be in the officer's notes and to look into cases based on that information.

Thanks for any input.


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Re: Disclosure Time Period?
PostPosted: Tue Feb 17, 2015 4:00 pm 
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Update:
When I sent in my "Notice of intention to appear in court" I also sent in the same envelope my Disclosure Request and what was essentially my request for a speedy trial to the court office and I sent a separate envelope with the Disclosure and speedy trial request to the prosecution. I wasn't sure who needed those request forms so I figured both would be a good idea and in the worst case the documents get doubled up at the right end. I followed up with another set of requests by mail in mid November and another set by fax mid January sent to the prosecution.

Turns out that my trial was scheduled for January 13th but I never received any paperwork/notice/communication from the court or prosecution. About a week after the missed trial I got a "Notice of fine and due date" in the mail with a handwritten note on it from my post office saying to pass on the proper PO Box as my box was 104 and it showed box 10. I figured that perhaps the reason I didn't get anything from the prosecution/court was because they mailed it to the wrong box. The ticket the officer wrote had the right box number on it so it likely was a typo. I had to go through the aggravation of asking for a re-opening which was approved and my new date is March 19th. When I was at the court house I stopped in at the prosecutor's office and asked for my disclosure but they didn't have anything for me. I've followed up with a few phone calls and still to this day nothing is waiting for me to pick up. It's been just over 4 months since I made the first disclosure request without response. I'm faxing another request today as I'm amazed that they haven't even been able to supply the officer's notes at this point.

I'm going to start the paperwork to request a stay, mainly based on section 7 but anything else I can find, maybe even delay since the lack of disclosure will push the trial back again by a few months. Even Toronto can produce disclosure in 4-6 weeks or less. If a City swamped with cases where many take nearly a year to get to court can provide the disclosure that fast then I would think that Guelph could do the same since it seems like they only have 2-3 months of cases at a time. I want to make my argument for a stay as solid as I can since I feel the time to get nothing from the prosecution is only setting this up for the court date to be pushed back again to waste more of my time.

The thing that gets me most of all is that my initial request for a speedy trial mentioned specifically that I was supposed to be away at training from Jan 12-16th but the week before the training provider cancelled due to low enrollment. While I can't prove it by any means, to me it seems odd that I was scheduled for trial for 1 of 2 weeks I was not available on and that no disclosure was produced for me prior to that trial date, almost as if the disclosure request was ignored since they figured that I'd have to request an adjournment (which happened to be a re-opening since I did not get the Notice of Trial).

Any feedback to support my stay application would be great as I feel that the delay in getting the disclosure is completely unreasonable.


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Re: Disclosure Time Period?
PostPosted: Tue Feb 17, 2015 6:21 pm 
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Just curious----have you been requesting the disclosure from the actual prosecution's office or the court office? If you made your disclosure request and put it in the same envelope as your Notice of Intention to Appear, then that would have gone to the court office, not to the prosecution's office. Disclosure requests must always be sent to the prosecution's office.


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Re: Disclosure Time Period?
PostPosted: Wed Feb 18, 2015 9:23 am 
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Robar1717 wrote:
Update:
When I sent in my "Notice of intention to appear in court" I also sent in the same envelope my Disclosure Request and what was essentially my request for a speedy trial to the court office and I sent a separate envelope with the Disclosure and speedy trial request to the prosecution. I wasn't sure who needed those request forms so I figured both would be a good idea and in the worst case the documents get doubled up at the right end. I followed up with another set of requests by mail in mid November and another set by fax mid January sent to the prosecution.


The court got the first set with my request for trial but I also sent that set to the prosector's office as well as the 2 (soon to be 3) followups.


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Re: Disclosure Time Period?
PostPosted: Wed Feb 18, 2015 11:15 am 
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If you really want to argue for a stay, then send the prosecutor's office another letter but register mail it this time---with confirmation of signature! Make sure you specifically spell out the times you've previously requested disclosure. This is really just to corroborate things for the court. And, specifically set out in the letter that if you don't receive the disclosure by (insert date here), then you will be requesting a trial adjournment since you won't have enough time to prepare your defence. This puts the prosecution on notice of the consequences of their inaction.

If they don't comply, request an adjournment at your trial and expressly ask that JP to note the adjournment as being the cause of the prosecution. Then, prepare and file a stay application for delay (section 11b) for your next trial date. Argue it at your next appearance.

11b applications (for unreasonable delay) usually are more successful since there is more case law and they are permanent fixes. Section 7 applications (for non-disclosure) are usually more likely to be remedied by the court merely ordering the prosecution to give out disclosure and then giving an adjournment. In other words, the case remains alive.


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Re: Disclosure Time Period?
PostPosted: Wed Feb 18, 2015 2:55 pm 
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Would it then be more wise to allow the trial to start and when the officer gets called to object to the admission of that evidence due to non-disclosure since if the evidence against me isn't disclosed then there isn't a case? I've got to show up either way but it has only been about 5.5 months since the trial was requested so I can't see an 11b application succeeding unless the 4-5 month unreasonable disclosure delay is enough. From my understanding the best I can hope for is just over 11 months with new case law to have an 11b go through for me.

I'm just amazed that the prosecution can just flat out ignore the request if they choose to. Especially for so long when I'm not asking for anything crazy, just notes, statements, measure device make/model and an electronic copy of the manual for said device but I do specifically ask then to notify me if there's a problem with any part of the request with a reason why it won't be filled (essentially to give me time to figure out what to do if that is the case). Most/all of that stuff is or should be available in a few days, not months.


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Re: Disclosure Time Period?
PostPosted: Wed Feb 18, 2015 6:53 pm 
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You definitely do not want to wait until after you are arraigned (i.e. enter a plea) before arguing lack of disclosure. You should review the Stinchcombe decision by the Supreme Court where the court expressly states that the defence should bring to the attention of the trial judge at the earliest opportunity the lack of disclosure so as to avoid a new trial. So, clearly, if you have not received any disclosure before your arraignment, you should be raising it before entering your plea.

Regardless, in order to obtain a Charter remedy, you must follow the proper procedure and filings. You can't simply raise such issues in court and expect to receive a remedy. After all, the Attorney Generals of Canada and/or the Province of Ontario may want to challenge your application and they have the right to not only be notified of your application, but to speak at your hearing. As such, the court loses its jurisdiction to proceed on such Charter application until such procedures are followed.

Furthermore, by entering a plea, you are actually indicating to the court that you are making an informed decision and are ready to proceed to trial. That is, all preliminary matters such as disclosure have been resolved. Therefore, some judges take the view that you lose your right to argue for any pre-trial entitlements after you have been arraigned. Generally though, the court will simply adjourn the trial and order the prosecution to give you disclosure. You definitely won't get a stay since you are now also to blame for having wasted the court's time (by proceeding to trial when you were not ready). Of course, you'd also not get the stay for lack of disclosure since you wouldn't have followed the procedure for applying for a Charter remedy (such as a stay) so its a double whammy against you. But, because you also entered a plea and are now within the trial stage, you seriously challenge your 11b rights. After all, you can't argue unreasonable delay since your trial is already going!

Therefore, you either have to decide whether you are going to formally request a section 7 stay for lack of disclosure (which I think at this stage is quite premature since the court will likely just adjourn the matter for the Crown to comply) or hope that by adjourning the upcoming trial to another day, an 11b remedy might arise due to the added delay; thereby putting you outside the reasonable delay range.

Right now, the probability of you winning on either is quite low. Your best bet is to formally request disclosure by registered mail, appear at your trial date, request an adjournment for either not having disclosure or not having had time to prepare and hope that an 11b will be triggered because of the time it takes to get to your 2nd trial date.


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