“Received Notice Of Trial - Need Advice On Next Step”

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

SEARCHING FOR INFO ON HIS INSURANCE POLICY

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.