Hi Everyone, I am preparing a Motion to stay the the speeding charge based on the Prosecutor's failure to provide complete disclosure. Below are the material facts that I will be filing. Can I get your feedback on the working and any suggestions please. The following are the material facts giving rise to the constitutional question: I. February 26, 2015 the Defendant requested disclosure from the Prosecutor by way of a formal request form submitted in person to the office of the Prosecutor. II. The Defendant requested the following information: a) A full copy of the officers notes, typed if not legible and with an explanation of any short form writing b) A transcript of any voice recording that may have been in use or to be relied on at trial c) A detailing of the model, serial number and year and make of the radar equipment on which the Prosecutors evidence will be based d) A copy of the calibration log to the above mentioned equipment e) A copy of any authorization for access onto private property on which the officers vehicle was situated. III. Notwithstanding the fact that the crown received this Disclosure Request subject to its obligation to provide full disclosure, and further notwithstanding that all of the Defendants contact information was made available to the Prosecutor, no disclosure was made available to the Defendant for the trial date of April 15, 2015. IV. April 15, 2015, the Prosecutor having failed to provide disclosure documents; the trial was adjourned for Wednesday June 3, 2015 at 1:30 PM V. April 26, 2015 the Defendant presented in person, a second request for disclosure and notwithstanding the itemized request the disclosure received Monday April 20, 2015, was incomplete and failed to fully disclose all material evidence requested. VI. May 4, 2015, the Defendant made a third written request to the Prosecutors office requesting the deficient items. VII. The Prosecutor holds a duty to disclose information that is useful to the defence in order to know the evidence against the Defendant, prepare for trial and make full answer to the charge. (R. v. Stinchcombe, 1991 CanLII 45 (S.C.C.); R. v. O'Connor, 1995 CanLII 51 (S.C.C.) VIII. The Defendant will claim that; the Prosecutor having failed to meet its disclosure obligation, has violated section 7 of the Charter and with that the Defendants rights. As remedy, the Defendant will argue for an order allowing the application and granting a stay of proceedings pursuant to Section 24(1) of the Charter.
You DO realize that the prosecution has templates (books of authority, facta, replies, etc.) readily available to reply to Charter applications, right? You're doing ALL this work filing a section 7 application and throwing whatever you think will 'stick' and in about 30 minutes, they'll pump out a reply and gather whatever they can to meet their disclosure obligation. They'll then hand you the disclosure and you're left with no further argument since your application is only based upon a section 7 breach that no longer exists. So, all you can do is go to court and get an adjournment. Now, you'll have to start the WHOLE charter application process all over again----this time HOPE that you might get a remedy under an 11b application for unreasonable delay. While I commend you for your zeal, sometimes it just makes no sense to waste time like that. Instead, if you were to you play your cards right, you would have argued at your next court date their failure to give full disclosure and ask the court to order them to comply. The prosecution is therefore on NOTICE on the record in front of the court and cannot later argue that they weren't aware of this issue. The court will then be sympathetic with you for your patience. An adjournment will still be given, but they'll be more than willing to accommodate your needs since the delay is not your fault. THEN, on the subsequent adjourned date, you would argue for the 11b unreasonable delay stay citing the unreasonable time it took to get proper disclosure and prepare for your case and how prejudicing this has all been to you! The court will THEN be much more willing to grant you relief! Litigation requires careful strategy. Don't jump on every issue or pull the trigger prematurely. Otherwise, you might actually ruin a potential good strategy that WOULD have had better odds of yielding positive results if you had just been patient! :idea:
You DO realize that the prosecution has templates (books of authority, facta, replies, etc.) readily available to reply to Charter applications, right? You're doing ALL this work filing a section 7 application and throwing whatever you think will 'stick' and in about 30 minutes, they'll pump out a reply and gather whatever they can to meet their disclosure obligation. They'll then hand you the disclosure and you're left with no further argument since your application is only based upon a section 7 breach that no longer exists. So, all you can do is go to court and get an adjournment. Now, you'll have to start the WHOLE charter application process all over again----this time HOPE that you might get a remedy under an 11b application for unreasonable delay.
While I commend you for your zeal, sometimes it just makes no sense to waste time like that. Instead, if you were to you play your cards right, you would have argued at your next court date their failure to give full disclosure and ask the court to order them to comply. The prosecution is therefore on NOTICE on the record in front of the court and cannot later argue that they weren't aware of this issue. The court will then be sympathetic with you for your patience. An adjournment will still be given, but they'll be more than willing to accommodate your needs since the delay is not your fault. THEN, on the subsequent adjourned date, you would argue for the 11b unreasonable delay stay citing the unreasonable time it took to get proper disclosure and prepare for your case and how prejudicing this has all been to you! The court will THEN be much more willing to grant you relief!
Litigation requires careful strategy. Don't jump on every issue or pull the trigger prematurely. Otherwise, you might actually ruin a potential good strategy that WOULD have had better odds of yielding positive results if you had just been patient!
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