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Driving no insurance ---- Disclosure issue
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PostPosted: Wed Feb 05, 2014 4:08 pm 
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My son was stopped for no insurance last year and he chose the trial due to incomplete information from his insurance provider back in december anyway, that day he requested disclosure and has called may times since and requested and was told he should have received it last court date which is not true he did not receive it in fact i was there and so was another family member. The court date is Feb 10th and still no disclosure and when he calls they still tell him he should've already got it. What is he to do??????


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Re: Driving no insurance ---- Disclosure issue
PostPosted: Wed Feb 05, 2014 4:53 pm 
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Your son needs to put the request in writing to the Prosecutor's office----fax, email and mail it. In other words, have a paper trail of his requests---not just phone calls!

Then, on the court date, your son needs to put it on the record in court that he has not yet received disclosure and explain the steps he's taken thus far to get it. The JP will make sure the prosecutor gives it to him and will give your son an adjournment so that he can review the case against him and prepare for his defense.


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Re: Driving no insurance ---- Disclosure issue
PostPosted: Wed Feb 05, 2014 4:56 pm 
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This is what I would do;

Attend on the date - when called for trial stand and state clearly and calmly (the tape must pick up what's said) - 'your worship' on these dates and times we have attend court and/or spoken with the prosecutor in an effort to obtain disclosure - to date, no disclosure has been provided. Therefore, I am bringing a motion to have this charge quashed.'

That motion must be presented/stated prior to the clerk arraigning your son.

That's it.

At that point the jp will enquire of the prosecutor the status of disclosure and their position re your motion to quash.

Let the prosecutor speak and then you will have an opportunity to respond.

Depending on the jp, the charge will either be quashed, or a new date will be provided and the prosecution will have to have provided disclosure prior to that date.

You should also know that if you provide the prosecution with proof of insurance on the date in question - they will contact the insurance company directly to ensure the policy was in fact in place on that date. Not unusual to have people provided insurance documents they have made at home.


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Re: Driving no insurance ---- Disclosure issue
PostPosted: Wed Feb 05, 2014 8:41 pm 
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In order for a motion to quash to be considered, there are procedural documents/forms that need to be filed (in advance) and served upon the federal and provincial government. That's because, failure to provide disclosure is a constitutional issue. One therefore needs to follow the procedures for doing a charter application (much like an 11b application, but usually done under section 7--see the Stinchcombe decision). Unfortunately, a lot of people think they can just by-pass the formalities of procedure. Rarely, does that work!

Chances are your son will just get an adjournment this time around. However, if down the road, he decides to make a charter application (under 11b or section 7), having a paper trail will certainly help!


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Re: Driving no insurance ---- Disclosure issue
PostPosted: Wed Feb 05, 2014 10:32 pm 
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karra wrote:
This is what I would do;

Attend on the date - when called for trial stand and state clearly and calmly (the tape must pick up what's said) - 'your worship' on these dates and times we have attend court and/or spoken with the prosecutor in an effort to obtain disclosure - to date, no disclosure has been provided. Therefore, I am bringing a motion to have this charge quashed.'

That motion must be presented/stated prior to the clerk arraigning your son.

That's it.

At that point the jp will enquire of the prosecutor the status of disclosure and their position re your motion to quash.

Let the prosecutor speak and then you will have an opportunity to respond.

Depending on the jp, the charge will either be quashed, or a new date will be provided and the prosecution will have to have provided disclosure prior to that date.



I have had no reason to be in court lately but years ago I used your same method to beat several charges.

The key was to pipe up before everything was read.; objection due too ........

But then I beat stuff that most here will say cannot be beat.

Cheers
Viper1

_________________
"hang onto your chair when reading my posts
use at your own risk"


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Re: Driving no insurance ---- Disclosure issue
PostPosted: Wed Feb 05, 2014 10:53 pm 
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this is his actual trial date it was already adjourned back in december this is the 3rd trip down and its a 3 hour drive and never been given disclosure!!! he asked every time he has been there and called and requested it several times.. so i am at this point thinking he should just say: (am i wrong)?
SECTION 11(d)
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
24. (1) Anyone whose rights or freedoms, as guaranteed by thisCharter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

24. (1) Anyone whose rights or freedoms, as guaranteed by thisCharter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.


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Re: Driving no insurance ---- Disclosure issue
PostPosted: Thu Feb 06, 2014 11:06 am 
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I am not sure what you think will be in the disclosure package. No insurance is a reverse onus charge and therefore the crown does not have to prove that there was no insurance your son has to prove that there was at the time of the stop. Disclosure can be a simple as a page of notes with his info and no insurance written.

A part 3 package is not like a ticket and notes sent after. As it is the most serious a whole file is completed and the notes go with the part 3. That way the crown can review it before court to make sure it is appropriate. So he could have been handed a piece of paper or two that day and may not have realized that is all there is to disclosure.

Sadly courts do not concern themselves with how far someone had to travel. Especially with the most serious of charges before them and this is one of the most if not the most serious charges.


All requests to be considered need to be in writing. If not then the court will most likely treat them as they did not happen. So the fact that he called many times will be treated as not relevant by the courts. There is no way to prove that those calls were made.

Also if his first appearance was in December and his trial now that is pretty speedy. If you want to file a charter argument I think it needs to be in writing in advance. So bringing it up like that will not work I suspect.

OPS



OPS


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Re: Driving no insurance ---- Disclosure issue
PostPosted: Thu Feb 06, 2014 1:14 pm 
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OPS Copper wrote:
I am not sure what you think will be in the disclosure package. No insurance is a reverse onus charge and therefore the crown does not have to prove that there was no insurance your son has to prove that there was at the time of the stop. Disclosure can be a simple as a page of notes with his info and no insurance written.


Agreed. No insurance is no insurance. What do you expect there to be in a disclosure request? The officer doesn't have to do anything. Either you provide him with insurance or you don't. The officer doesn't need to prove anything. There's no holes to poke through in your disclosure request. Either you have insurance or you don't.


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