I got a hand-held device ticket in early April 2018. I received the Notice of Trial in early July 2018. I submitted my Disclosure Request immediately after receiving the Notice of Trial.
I have been asking the York Region Prosecutor's Office about the disclosure almost every month 2 months after I submitted my request. However, I still haven't received it yet.
My court date is this week.
Any advice what I should do when I go to trial without receiving the disclosure I requested?
Go to court with several copies of your e-mails, logs of your phone calls, etc. When you arrive, the Prosecutor will ask you what you want to do. Tell him or her that you requested disclosure eight months ago and have followed up diligently. The Prosecutor may have copies of your e-mails to verify; if not, give him or her one of the copies.
If the Prosecutor has the disclosure, he or she will give it to you so you can review it. You will probably not be in a position to make a full answer and defence, so you should ask for an adjournment to give you time to study the disclosure. The Prosecutor may object, so dig in your heels if necessary. Make sure the JP notes that the delay is the result of the Crown's failure to provide timely disclosure. That way, the "clock" continues to run if it takes too long to deal with your ticket.
If the Prosecutor does not have it, one of three things will happen. (a) The Prosecutor says or does nothing. Tell him or her you will be seeking an adjournment for disclosure, then sit down and wait your turn (see more below). (b) The Prosecutor will offer you an adjournment for disclosure. The JP will agree to it. Again, make sure the adjournment is noted as being on the part of the prosecution. (c) The Prosecutor will acknowledge that his or her office does not have and is not likely to receive the disclosure and will withdraw the charge (this is the least likely outcome).
Unless you see something in the disclosure that clearly hurts the prosecution's case, do not, under any circumstances, allow the trial to proceed. If the Prosecutor does not offer you an adjournment (as described in outcome (a) above), ask for one. Tell the JP you need the disclosure to make full answer and defence. This is the same argument as the one you would make if the Prosecutor gives you disclosure on the spot.
Thank you for the advice.
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