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Ontario Highway Traffic Act

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last minute disclosure
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PostPosted: Tue Feb 17, 2009 10:08 pm 
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Joined: Mon Apr 14, 2008 8:44 pm
Posts: 31
Offense: April 8, 2008
Speeding

Courtdate letter received: October 20, 2008
Courtdate this friday February 20, 2009

Disclosure requested December 3, 2008

Situation:

Okay, so today is Tuesday Feb 17, 2009. I receive a voice mail from the court (at the end of the business day - around 4pm) stating my disclosure is now ready to be picked up for the courtdate on friday!

I live in Mississauga, court is out in Barrie (so 1 hour's drive)

A few questions:

a) should i call the court before my courtdate and tell them they have not provided disclosure in time and I will not be coming to pick it up

b) go to court on friday and state I just received my phone call, this is ridiculous, since I cannot take time off of work over and over again

c) i was charge april 8, courtdate is feb 20...april 8 to feb 8...is 10 months...can i get it thrown out due to time delay?

d) if they postpone the court date due to lack of disclosure, and i go next time....will the time delay issue count in my favour?

THanks


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PostPosted: Wed Feb 18, 2009 5:05 pm 
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Location: Toronto
  • Hindsight is 20/20. A stay application 15 days in advance of trial would have stopped their disclosure in its tracks.
  • The amount of time it took them to process your disclosure request is long but not unusual (Toronto takes a minimum of 8 weeks).
  • The amount of time to go to trial is just over 10 months which is not unreasonably long.
So what to do?

Go early on your court date and pick up the disclosure package and look it over. What's in the package? You have to push the insufficient disclosure angle.

Scenario A - you made a general request for disclosure. The information in the package should contain all the evidence they need to convict you: proof that the officer is trained and proof that the speed measuring device was working properly. If it's missing you argue insufficient disclosure.

Scenario B - The package does not contain everything you asked for like a witness list, will say statements, typed copy of the officer's notes, etc. Here you argue incomplete disclosure.

In either scenario, you will make a pre-trial motion (see my site for instructions - Step 5). Print 3 copies of the following and hand one to the clerk of the court and one to the prosecutor at your trial:


State Martin shows the sufficient information required to establish a foundation for a speeding conviction. Even a general disclosure request should trigger the Crown's obligation to provide evidence of the officer's training and the speed measuring device's operating state. You did not get this information.

And/or state Egger shows that the Crown must disclose information that is useful to the defendant early enough that they can take steps that affect his rights. If you had a detailed disclosure request, then the information you asked for would have been useful to you. You did not get it.

Next, state Rowan shows that 11 months was considered unreasonable for a relatively straightforward matter as a speeding charge especially when the case was unnecessarily protracted by repeated appearances in court to argue improper disclosure by the Crown. An adjournment and subsequent disclosure will put you in 11b territory and unreasonable delay. Ask the justice to stay the charge.

Since you have no Charter application, the justice has every right to disagree with you. But must grant you an adjournment to review the disclosure package you were only able to pick up "today". This delay shouldn't count against you, especially if disclosure is incomplete. You can make a Charter application afterwards.

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PostPosted: Wed Feb 18, 2009 7:34 pm 
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I will be there ahead of time for sure, my court time is 9am, and i'm driving out from mississauga to barrie, i will be leaving early!

so when the courtroom opens and i go check-in with the prosecutor, do i just state i'm pleading not guilty and sit down? or should i say/do everything that you have mentioned below to the prosecutor?

so i'm hoping for:

a) the cop doesnt show up
b) the cop shows up, but i get an adjournment due to lack of disclosure (whether it be insufficient or incomplete or simply due to the lack time time given to prepare)

so at this point they will offer me a new court date - do i take it? or reject the first one? and this extension will not affect my rights as per 11b, since the court had to adjourn the matter because they did not provide proper disclosure?


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PostPosted: Wed Feb 18, 2009 9:59 pm 
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Location: Guelph, Ontario
Tell the prosecutor you are pleading not guilty. He will (naturally) be upset with your decision. He might offer you a deal. Don't take it unless it is a really good offer.

Try to respectfully request a stay based on the fact that you have only received disclosure (At that point of time) yesterday. Prosecutor will try to reschedule. JP will try to move the date further by a few months, then you respectfully request a stay based on unreasonable delay, and financial hardships based on the fact that you are have already missed a day of work, and missing another will place unnecessary strain on your budget.

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"The more laws, the less justice" - Marcus Tullius Cicero
"The hardest thing to explain is the obvious"

www.OHTA.ca & www.OntarioHighwayTrafficAct.com


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PostPosted: Thu Feb 19, 2009 6:04 pm 
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okay i'm abit confused again:

a) talk to the prosecutor, say non guilty, see the offer, and accept or reject

b) if rejected the offer, i'll get called up to the stand

c) cop isn't here, case stops, cop is here, we proceed

d) request a stay based on the fact that you have only received disclosure (At that point of time) yesterday. They will issue a new date, which i accept or dont

e) whichever date i accept, is that it? i walk out and come back in the future and THEN state "respectfully request a stay based on unreasonable delay, and financial hardships based on the fact that you are have already missed a day of work, and missing another will place unnecessary strain on your budget." ??

or do i state everything i posted in point e, when point d happens?


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PostPosted: Fri Feb 20, 2009 12:07 am 
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Location: Guelph, Ontario
a) reject the offer unless it is agood one

b) Yes

c) Yes

d) You are requesting a stay based on not getting the disclosure on time.

Prosecutor will try to reschedule, to which you object AGAIN, saying that you do not want to miss work for 2-nd time, and you can use the argument that it is taking too long. DO NOT ACCEPT THE DATE.

_________________
"The more laws, the less justice" - Marcus Tullius Cicero
"The hardest thing to explain is the obvious"

www.OHTA.ca & www.OntarioHighwayTrafficAct.com


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PostPosted: Fri Feb 20, 2009 2:57 pm 
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So i got there on time, received my discloure and it had everythign I requested except for a typed version of teh cops notes...

they started doing attendance in the court, and when i went to teh prosecutor and stated my name, they already knew the cop wasn't going to show up, so they just told me 'okay thanks' have a seat'

so all in all...cop did not show, ticket dismissed...

but this is my 2nd time to the barrie court...and both times...they were rushing to get ti started...and they started 30 mins late both times...annoying


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PostPosted: Fri Feb 20, 2009 3:30 pm 
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Congratulations! No conviction is a win no matter how you get it.

Usually they schedule defendants to appear 30 mins before court starts. That way they can poll the court to see how many are contesting the charge and how many will cave. They also have time to do some last minute negotiating.

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PostPosted: Fri Feb 20, 2009 5:13 pm 
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Location: Guelph, Ontario
Congrats on successfully beating your charge.

_________________
"The more laws, the less justice" - Marcus Tullius Cicero
"The hardest thing to explain is the obvious"

www.OHTA.ca & www.OntarioHighwayTrafficAct.com


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