How does 11B AND lack of disclosure work?

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Halsy
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How does 11B AND lack of disclosure work?

Unread post by Halsy on

I filed an 11B once a decade back and won so it's been a while. Long story short I was charged with careless driving even though there was no accident. I got into bit of a tiff with an off duty cop and he thought it'd be find to engage in a little malicious prosecution by having his pal ticket me for careless.

ANYWAY....it's been over 8 months - Durham region - so that's 11B territory right there - whether the JOP agrees or not it never hurts to swing for the fences as the worst they can say is no and it always leaves room for appeal. However I did file for disclosure, at the courthouse in the prosecutor's office no less and have the paperwork to prove it. So in the 11B application it goes....

THE GROUNDS FOR THIS APPLICATION ARE:
There has been an excessive delay in this matter reaching trial, as guaranteed by Section 11(b) of the Canadian Charter of Rights and Freedoms;
That the Applicant has suffered prejudice as a result of the delay occasioned in the matter herein;
That the appropriate remedy for the denial of the said right is a stay of the proceedings;

1. Section 11 (b) of the Canadian Charter of Rights and Freedoms;
2. Section 24 (1) of the Canadian Charter of Rights and Freedoms; 3. R. v. Askov et al., (1990) 59 C.C.C. (3d) at page 449 (S.C.C.);
4. R. v. Morin, (1992) 71 C.C.C. (3d), 1 (S.C.C.);

5. R. v. C. R. Galassi (2005) 77 O.R. (3d) 208 (Ontario Ct. of Appeal);
etc....


Would you need to include Section 7 and 11a in there as well or would that be a separate application entirely or would you just simply ask for it, 'Your worship prior to entering a plea I asked the charge be stayed at this time in accordance with sections 7 and 11a, the prosecution has failed to make available the disclosure I requested, as well as sections 11b and 24(1) as the length of delay of coming to trial are also violations of my Charter rights.'

I haven't retained council because I'm out of work and broke. At the very least if the JOP says no and tells the prosecutor to provide me with disclosure can I force a later trial date - and again go for the 11b as the delay is obviously the fault of the Crown in this case. And at least, again, it strengthens my case for an appeal.

Any help would be greatly appreciated.


jsherk
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Unread post by jsherk on

When is your trial date? Basically if they provide you with all the disclosure you asked for by about two weeks before the trial, then they have met their obligation. Ontario case law has stated that the remedy for not providing disclosure is to schedule new trial and tell the prosecution to provide it. So usually an 11b will never succeed on your first trial date. If you return to a second trial date though, and disclosure is still not provided then there is a better chance that it will succeed. But if that second trial gets put over to a third trial and then they still don't get disclosure, then there is a very very good chance an 11b will succeed. Of course if you have the time to put into preparing it, then go for it because it will show them you are serious about getting this info.

Now seperate from the charge itself, you should consider both filing a complaint against the police officers and filing a civil suit.

Here is some good information on filing a complaint against police (item #5 about half way down the page article):
http://mtcsalc.org/en/publications/police-powers/?p=2

If you are thinking about a civil suit as well (in order to receive a settlement) then look at this:
http://www.charneylaw.ca/suepolice.html
As a side note for civil suits, malicious prosecution is very hard to prove. Here is a good article suggesting faulty investigation is a better way to go.
http://www.shillers.com/pdf/Charter%20D ... ficers.pdf
+++ This is not legal advice, only my opinion +++


argyll
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Unread post by argyll on

This is, of course, assuming the OP has evidence to support his allegation.

There's also nothing that says there has to be a collision for a Careless Driving charge to be laid.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


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Decatur
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Unread post by Decatur on

And as for disclosure. Just because you ask for it, doesn't mean that you will get it from the prosecutor.
If you believe that the item exists and the prosecutor will not provide it, you have to convince the JP that it's needed.


Halsy
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Unread post by Halsy on

jsherk wrote:When is your trial date? Basically if they provide you with all the disclosure you asked for by about two weeks before the trial, then they have met their obligation. Ontario case law has stated that the remedy for not providing disclosure is to schedule new trial and tell the prosecution to provide it. So usually an 11b will never succeed on your first trial date. If you return to a second trial date though, and disclosure is still not provided then there is a better chance that it will succeed. But if that second trial gets put over to a third trial and then they still don't get disclosure, then there is a very very good chance an 11b will succeed. Of course if you have the time to put into preparing it, then go for it because it will show them you are serious about getting this info.

Now seperate from the charge itself, you should consider both filing a complaint against the police officers and filing a civil suit.

Here is some good information on filing a complaint against police (item #5 about half way down the page article):
http://mtcsalc.org/en/publications/police-powers/?p=2

If you are thinking about a civil suit as well (in order to receive a settlement) then look at this:
http://www.charneylaw.ca/suepolice.html
As a side note for civil suits, malicious prosecution is very hard to prove. Here is a good article suggesting faulty investigation is a better way to go.
http://www.shillers.com/pdf/Charter%20D ... ficers.pdf
Thanks a ton for that. I filed complaints against them with the OIPRD and they're useless as tits on a bull. No one there even spoke to me, just ruled in the cops favor. After digging around turns out they find in favor of the police 99.3% of the time. So another feel-good, do-nothing, useless waste of tax dollars.

I spoke with a few lawyers who were kind enough to provide some general advice along the same line, as well as file cases with the Ontario Human Rights Commission. From everything I've researched it seems the only time the cops get motivated to do the right thing is when they're getting sued. So depending on the outcome of this thing I'll definitely be looking at trying to find lawyers who work pro bono or at least on contingency and sue the *EDIT* out of everyone because I really have nothing else to lose. May as well rack up all the debt I can and then declare bankruptcy later on. I've so had it with this goddamned province.


Halsy
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Unread post by Halsy on

Decatur wrote:And as for disclosure. Just because you ask for it, doesn't mean that you will get it from the prosecutor.
If you believe that the item exists and the prosecutor will not provide it, you have to convince the JP that it's needed.
Yeah, actually they do have to provide it. That was established by the SCC in the R. v. Stinchcombe case. A lawyer I consulted with turned me on to that and has had several cases stayed because of it. The SCCs take on it is that its all information that belongs to the public, not the Crown's secret little treasure trove. By denying the accused what they're asking for they're effectively rigging the case and that's simply not done.


argyll
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Unread post by argyll on

Stinchcombe does not give you carte blanche to get anything and everything. As was said, you can request anything you want and if you don't get it then you can make your argument to the judge as to why you think you should have it.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


jsherk
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Unread post by jsherk on

With regards to disclosure, here are some direct quotes from R. v. Stinchcombe, [1991] 3 S.C.R. 326:

"The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure."

"…there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence."

"The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted."

"The trial judge may also review the Crown's exercise of discretion as to relevance and interference with the investigation to ensure that the right to make full answer and defence is not violated."

So the key is that you have to make a good argument for why you need something you are asking for. If you can give a good reason that you need it in order to make a full answer and defence, then it should be granted. If it is not granted, and then you lose the trial, it gives a great argument for an appeal.




+++ This is not legal advice, only my opinion +++


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