“11b Questions”

My main issue is now that regardless of whether I get disclosure or not, I still cannot proceed as my wife cannot be there. She will have just had a baby or will be just having one, so I am not sure how to approach this as you are saying 14 months is acceptable.

I still think I can win in court as the office made up a HTA law on the spot, but my wife cannot attend to defend herself.

You would need to file for an 7 instead of 11b if you dont get dislcosure.

I would say yes you are better filiing the section 7 lack of disclosure one. However remember for either of these to succeed you need to give notice to both the Attorney General of Ontario and the Attorney General of Canada at least 15 days before the trial date. The definition of "at least" does not include the trial date and does not include the day you serve it and does not include if it is served on holiday/weekend or ends on holiday/weekend. So I use about 19 days before trial as the day to file either of the charter challenges with both attorney generals, prosecutor and the clerk.

I never got to speak to the prosecutor regarding my disclosure at my last trial date. She didn't want to hear anything from me and I just got a new trial date. Because I did not mention it can I still use it in court?

Have you tried making additional disclosure requests and/or following up with the prosecutor's office to see if your disclosure is ready?

If you do not get disclosure, you can file a notice of constitutional question using section 7 of the Charter, as jsherk said above. The Justice may give you an adjournment so that the prosecutor can provide you with disclosure. You can try arguing that the proceedings should be stayed (or stopped) because 14 months is plenty of time for a prosecutor to give you disclosure. How did you serve the prosecutor with your disclosure request, and did you keep a record of sending it (i.e. registered mail, fax)?

If you do get disclosure, you can ask for an adjournment since your wife is due for pregnancy (or has had a baby recently) and cannot attend trial. Depending on the jurisdiction, you may have to file a motion for adjournment beforehand by going to the courthouse; otherwise, you can request for an adjournment at trial.

Yes, I kept the fax receipts. I didn't use their form so I am guessing as I did not put my phone number means they do not want to answer it.

I filed for disclosure on June 14th and January 10th.

I will see if I get it or not.

Did you put any way for them to contact you when disclosure was ready for pick up? They don't mail disclosure out (too expensive!). So, unless you put a convenient way for them to contact you (i.e. telephone or email), they have no obligation to go out of the way to find you. You are the one with the obligation to take the initiative.

The courts have ruled that it is up to YOU to contact the prosecutor to see if disclosure is ready (and they are not obligated to send it to you either, so you might have to go pick it up).

I faxed them with my address. I don't use a cell phone and would prefer to be contacted by mail. I would gladly pick it up if they were to contact me. City of toronto actually sent me a letter letting my know my disclosure was ready not sure why peel wouldnt.

The courts have decided that it it is YOUR responsibility to check if disclosure is ready and it is NOT the prosecutions responsibility to inform you that it is ready. Sometime they do send it and sometimes they do contact you to let you know its ready, but they do not have to. If it is ready but you did not call to check, then the delay will be counted against you and not the prosecution.

Not saying that I agree with all this, but this is what the courts have currently decided.

jsherk wrote:The courts have decided that it it is YOUR responsibility to check if disclosure is ready and it is NOT the prosecutions responsibility to inform you that it is ready. Sometime they do send it and sometimes they do contact you to let you know its ready, but they do not have to. If it is ready but you did not call to check, then the delay will be counted against you and not the prosecution.

Not saying that I agree with all this, but this is what the courts have currently decided.

I will call them ahead of time and ask as usual. But with the ticket and first court date taking place before the R v Jordan decision, am I still not able to succeed with a 11b?

Also, if I file for an 11b and the JP decides that he/she will not accept it, and I do not receive disclosure, will I still be forced to go to trial or will I be able to get a adjournment due to lack of disclosure?

I strongly believe I have a good case but without my wife taking the stand I don't know what will happen.....

R. v. Jordan also applies to cases that were already in the system at the time of the decision. So, in order to succeed with a section 11(b) Charter argument for unreasonable delay, the period of time between being charged and the end of trial has to reach the presumptive ceiling of 18 months UNLESS you can argue otherwise:

"If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases."

If you do not get disclosure, the justice will almost always grant an adjournment. You have the right to know the evidence against you because you have the right to make full answer to the charge, which you are unable to do if you do not receive disclosure. But you have to actively seek and follow up for disclosure, as jsherk and highwaystar noted above.

The justice will also likely grant an adjournment if you say that your wife (the defendant) cannot attend trial because she is due to be pregnant or will have just had a baby.

You can file both a section 7 lack of disclosure challenge and an 11b speedy trial challenge.

You would ask to review the 11b first and if it does not succeed, then you bring up the 7 for lack of disclosure.

Its not wise to file both a section 11b and section 7 application concurrently----here's why:

* to get a stay on an 11b application, you must convince the court that you were READY TO PROCEED TO TRIAL but couldn't because of the delays caused by the system and/or Crown. So, that means, you must prove that you were READY! No more motions needed, no disclosure required, etc. You were ready! Got it!

A section 7 application on the other hand is saying that you weren't ready and can't prepare because you never got your disclosure as entitled to make full answer and defence!!!!

So, which is it???? Were you ready to proceed but couldn't due to the delay (s. 11b) or weren't ready because you couldn't prepare due to a lack of disclosure (s.7)?

You can't have it both ways! Pick one!

I suggest you go with the section 7 argument (even though you'll likely not win but just get an adjournment). You'd be lying to the court under an 11b application, especially when the prosecutor confirms that you haven't even received disclosure yet----how could you possibly be ready to proceed!

Don't make such a rookie mistake!

Yes.

I guess I could argue that I was actually ready last time as my wife was there. The JP asked if she was there, I said yes, then was told here was my new date. I never even told them I did not receive my disclosure yet, never got the chance.

I understand now why I could not file both. Thanks for clarifying that.