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I got a ticket for driving with handheld device in Oct 2015 and I had requested for a trial. Yesterday I received the notice of trial (notice is dated 26-Jan-2017, court of trial is Newmarket, ON) and trial date is Mar 8, 2017. Today, I have sent in a registered request for disclosure (i.e on 29-Jan-2017).

I am requesting advice with the following -

My trial date is Mar 8, 2017 and the insert with notice of trial says I need to request disclosure with minimum of 3 months before the trial date. Clearly, the trial date given to me is 5 weeks from now, so 3 months lead time is not possible. Though I have mailed in request of disclosure today, I highly doubt I will receive the disclosure before my trial date due to the 3 month lead time not available. Could someone advice me what to expect from here.

1. When should I send first reminder for disclosure?

2. On the trial date, what should I expect (assuming I do not receive the disclosure)? Will my trial be rescheduled?

3. My understanding from reading the threads in this forum was I should request for disclosure only after receiving notice of trial. Is that not correct?

Thanks in advance guys, appreciate all help!

Your situation is pretty common. Rule of thumb is you want to send in your disclosure request as soon as possible.

Trial dates can be weird like that. You can get one for 5 months or 5 weeks. You can also have your request fulfilled in 2 months or 2 days.

If you don't have disclosure before your court date, they'll likely adjourn the trial to another date. It's not your fault and it's not theirs either.

With a trial 5 weeks away, I don't think a second request would be necessary. You'll be fine just requesting it once.

You might want to check with them in a couple of weeks though in case it's ready. It is your responsibility to seek out your disclosure, not theirs to contact you.

Thanks for the replies. As advised, I will just follow up in 2 weeks time just to make sure I have made enough attempt from my side. Once I receive the disclosure, I will seek further inputs here.

Many thanks, this forum is very informative and supportive.

master wrote:

I got a ticket for driving with handheld device in Oct 2015 and I had requested for a trial. Yesterday I received the notice of trial (notice is dated 26-Jan-2017, court of trial is Newmarket, ON) and trial date is Mar 8, 2017. Today, I have sent in a registered request for disclosure (i.e on 29-Jan-2017).

I am requesting advice with the following -

My trial date is Mar 8, 2017 and the insert with notice of trial says I need to request disclosure with minimum of 3 months before the trial date. Clearly, the trial date given to me is 5 weeks from now, so 3 months lead time is not possible. Though I have mailed in request of disclosure today, I highly doubt I will receive the disclosure before my trial date due to the 3 month lead time not available. Could someone advice me what to expect from here.

1. When should I send first reminder for disclosure?

2. On the trial date, what should I expect (assuming I do not receive the disclosure)? Will my trial be rescheduled?

3. My understanding from reading the threads in this forum was I should request for disclosure only after receiving notice of trial. Is that not correct?

Generally disclosure is ordered upon receipt of your first court date. It is generally your responsibility to pick up disclosure from the Prosecutor's Office. You can contact them by telephone to see if your information is ready to be picked up. Normally I would submit a second disclosure request closer to the court appearance if it was not yet ready to show that due diligence has been done by the defence in requesting it. If you were either using or holding the device, you may wish to be careful in self-representing yourself at trial so that you do not put yourself in the position of being cross examined by the Prosecutor. HTA s.78.1 (found in full here) prohibits both the holding or using of such a device.

If the trial is adjourned for lack of disclosure, you will probably hit the 18-month "drop-dead" timing the Supreme Court of Canada specified in the Jordan case. You could be looking at an easy 11(b) application.

Did you mean you got the ticket in October 2015 or October 2016? That makes a bit of a difference for you.

Hi friends, My ticket date is Oct 2016 and not Oct 2015. I apologize for the typo.

I got response from the prosecutor regarding my disclosure request yesterday. They have asked me to pick it up from court. Will get it and post here for advice.

Here is a copy of disclosure I received. I got the ticket in Oct 2016 and trial is scheduled for week after next in March 2017. I have also received the DVD as part of disclosure but DVD is only showing view of my car from cop's car behind mine (it does not show me holding the phone).

I now understand having phone in hand is sufficient for ticket. Seeking advice from experts on strategies to defend or should I be looking at accepting the deal (if offered) from early resolution meeting with prosecutor. Thanks in advance friends.

W/B LANGSTAFF RD AT HUNTINGTON RD

4 LANES – IM IN L1

LONE S/B VEH ON HUNTINGTON AT LANGSTAFFF – ABOUT TO MAKE R/TURN TO W/B

AS IT TURNS, CAN SEE MALE DRIVER HAS CELL PHONE IN L/HAND

SLIM BLACK DEVICE – LOOKS LIKE SMART PHONE TYPE DEVICE

HOLDING UP TO FACE – JUST LEFT BETWEEN FACE AND WINDOW

I PASS AND SLOW RIGHT DOWN WHEN I REALIZE – VEH THEN PASSES ME IN L2

SEE SAME THING – DRIVER STILL HAS DEVICE IN HAND

T/STOP – 4 OCCS

DRIVER VODL – NO CURRET INSURANCE SLIP

WHEN I RETURN TO CAR WITH POT DRIVER HAS SAME DEVICE IN HANDS

SEARCHING FOR INFO ON HIS INSURANCE POLICY

BLACK, SLIM DEVICE – TOUCH SCREEN

I'm going to quote what I said on a similar post for driving with handheld device:

Although it may be difficult to successfully dispute this ticket, the prosecution still needs to prove the essential elements of the offence which is usually done by the officer's testimony. In cross-examination, it is possible to bring one or more of these essential elements into question and whether it has actually being proven, for example:

- Did the officer ask you to see the cell phone when he stopped you?

- Is the officer able to recall if the cell phone was a smartphone touchscreen type of device or a blackberry type of device or a flip phone, etc?

- Is the officer able to recall the colour of the cell phone?

- Is it true that other things can appear to be a cell phone? If so, how can the officer know for sure that it was a cell phone?

- Could the cell phone have been any number of other things (i.e. digital recording device, bluetooth speaker, wallet, calculator, etc.)

- What was different about the cell phone that made it different from any number of other things?

(Here is an example of a case where the charge was successfully disputed through this type of cross-examination:

http://www.trafficticketfighters.ca/wp- ... -phone.pdf)

The police officer will be able to answer some of these questions just by looking at the notes that he made. But there is a difference between something looking like a phone and it actually being a phone.

SLIM BLACK DEVICE – LOOKS LIKE SMART PHONE TYPE DEVICE

HOLDING UP TO FACE – JUST LEFT BETWEEN FACE AND WINDOW

and

WHEN I RETURN TO CAR WITH POT DRIVER HAS SAME DEVICE IN HANDS

SEARCHING FOR INFO ON HIS INSURANCE POLICY

BLACK, SLIM DEVICE – TOUCH SCREEN

not sure what other thing you can possibly have which you would hold up to your face? maybe a shaver ?

seriously?

Whenaxis wrote:

I'm going to quote what I said on a similar post for driving with handheld device:

Although it may be difficult to successfully dispute this ticket, the prosecution still needs to prove the essential elements of the offence which is usually done by the officer's testimony. In cross-examination, it is possible to bring one or more of these essential elements into question and whether it has actually being proven, for example:

- Did the officer ask you to see the cell phone when he stopped you?

- Is the officer able to recall if the cell phone was a smartphone touchscreen type of device or a blackberry type of device or a flip phone, etc?

- Is the officer able to recall the colour of the cell phone?

- Is it true that other things can appear to be a cell phone? If so, how can the officer know for sure that it was a cell phone?

- Could the cell phone have been any number of other things (i.e. digital recording device, bluetooth speaker, wallet, calculator, etc.)

- What was different about the cell phone that made it different from any number of other things?

(Here is an example of a case where the charge was successfully disputed through this type of cross-examination:

http://www.trafficticketfighters.ca/wp- ... -phone.pdf)

The police officer will be able to answer some of these questions just by looking at the notes that he made. But there is a difference between something looking like a phone and it actually being a phone.

You can refer to the case that I referenced in my post (http://www.trafficticketfighters.ca/wp- ... -phone.pdf) to see that it is possible to cast doubt on whether or not it is a phone even with clear evidence from the officer saying that it is a cell phone.

Questions I would ask the officer...

-How do you I was searching for insurance policy info?

-Could the device have been a touch screen iPod?

-Are you aware that iPods are MP3 players?

If you can get officer to admit that it could have been something like an iPod Touch mp3 player (not a communications device), then there is doubt as to section 78.1 HANDHELD COMMUNICATION DEVICE being the right charge, as maybe it should have been a charge under section 78 MEDIA DEVICE instead.

Not to be pedantic but ipod touch is capable of bluetooth and wifi, which IMO fall under "electronic data" in 78.1(1). Haven't the courts decided that a device just has to be capable of wireless electronic communication to be an offence, even if it is turned off or not connected?

In the case Whenaxis referenced, the defence argued it could have been a calculator or wallet and reasonable doubt came from the fact the officer couldn't give any details to distinguish between these objects.

But what else would you be holding to your face (side of head) other than a phone?

The last time I was in traffic court, there was a guy fighting a cellphone ticket because he had been holding a coffee mug. He even brought the mug as evidence. His paralegal was doing a good job but unfortunately I didn't get to see the end of the trial.

Remember it's beyond reasonable doubt....not absolute proof. The JPs are not idiots. If you say you've holding a scientific calculator to your head whilst talking to yourself you're not going to get very far.

Again if you can get them to admit that it could have been an iPod Touch, the burden would jump to the prosecution to make the claim that is also a handheld communications device.

Thanks a lot friends for the tips. As I prepare my defense based on the pointers here, I had few more questions -

1. If the color itself of the phone as quoted by officer is wrong, will it help my case to create enough doubt that he could have seen something else and what proof can be acceptable? Phone manual showing my phone's color or the phone itself?

2. Am I allowed to refer the list of questions in a piece of paper that I prepare in my defense and plan to ask? I will try hard so I wont need them but just to ensure I don't lose track or miss them during the trial. And can I take notes on the paper as officer replies to my or prosecutor's questions?

3. Is it okay to take 1-2 similar looking objects (but not phone) to show to the officer if what he saw could be one of it?

4. If officer does not remember how many passengers were in the car, will I need a proof to quote the correct number?

Thanks again, I can't appreciate this forum enough.

1. Remember that you could bring anything to the court and say it was this you were holding. I will be up to the JP to determine which side has more credibility.

2. Absolutely you should have notes with and refer to them.

3. Yes completely. There might be something the officer says in testimony that you want to question in cross examination. Scribble notes !

4. Again, same as 1, how do you prove the number of occupants. Of course the actual number is irrelevant to the charge but can bring into question the officer's recollection of the day in question.

The better prepared you are, the greater your chance of winning. If you have notes from the day, you're in the same position as the officer: you will be relying on notes that were made at the time of the alleged offence to help you refresh your memory months later. As Argyll said, taking notes of the officer's testimony is definitely the right thing to do. You can refer to his exact wording or to what he said when you cross-examine him. The points in questions 3 and 4 are excellent! Remember...you don't have to prove you didn't commit an offence; the Crown has to prove you did. If you can get the officer to say "maybe," "I think," etc., you can then say in your summation that the officer obviously isn't completely sure about the events and is acknowledging there is reasonable doubt. I've managed to do that a couple of times. It's a wonderful feeling!

Hi friends, I appeared for trial this week prepared with the defense. This is what happened -

1. Officer came, he had around 10 cases on his name, guess was not my lucky day.

2. Crown offered me $200 fine and 3 points, I did not accept. Asked for a non-moving violation, she did not agree.

3. They finished with all guilty pleas first, then called me up.

4. For some reason, prosecutor suggested the JoP that I might be looking for adjournment. JoP asked me what I wanted to do. I said I wanted my trial, she asked if I consulted legal help to which I said I myself studied the disclosure and am ready for trial. She then asked if I need an interpreter or adjournment (did not understand why she asked me this). Since officer was in that day, I thought better to take adjournment and I said if possible I will take interpreter. So they gave me continuation date in October 2017 and took my request for interpreter. They said that is the earliest availability and I did not push for any earlier date. They never asked me the reason, conversation flowed as if they were offering me adjournment which I accepted. Got the orange tag with new date and came back.

Now I request your guys thoughts and expertise -

1. Why would crown have suggested the adjournment, whereas I never talked about adjournment. Only reason I can imagine is I got my disclosure 3-4 weeks back, so she assumed I needed more time. Could it be anything else?

2. I am not 100% sure if I did the right thing by agreeing for adjournment, but I hope so.

3. Now October date will take my trial date to over 10 months from offense date. Could this be accepted as a valid reason if I requested for a stay (I understand I will need to send couple of forms as per procedure)? Should I send request to prosecutor to give me an earlier date requesting for speedy trial?

Looking forward to expert opinions and advise on what would be best for me from here . Thanks guys.

1. No idea. Most self-represensented people don't know what they are doing, so maybe was doing this to be nice and try and give you more time to think about it. But honestly, we will never know why.

2. Well there is now a very very small chance that the officer will not appear at the next trial date, so no harm done. Worst case for you is that officer shows up next time as well and you have to go to trial. The other thing is that there is a chance the interpreter won't be there either so another possible way out for you. So assuming you have the time to go to court again, this was the right move.

3. No this probably won't help you with a stay because from your explanation they would most likely count this delay against you so this time does not count in the total required for a stay.

R. v. Pizzurro: the Crown does not need to prove the cell phone was capable of receiving or transmitting in order to convict him under S. 78.1(1)

R. v. Gill: the defence argued that the device could have been a toy...From the Judge "people do not normally talk to themselves with an object held to their ear. This would draw in this Court's estimation, unwanted attention to the person by police"

Thanks jsherk, encouraging comments.

jsherk wrote:

Well there is now a very very small chance that the officer will not appear at the next trial date

In your comment above, I assume "not" is a typo and you meant small chance that officer will appear. I badly hope so too

No not a typo... there is a very good chance the officer WILL appear and a very very small chance the officer will not appear.

jsherk wrote:

No not a typo... there is a very good chance the officer WILL appear and a very very small chance the officer will not appear.

Ok thanks. So trial it will be.