OHTA.ca

Looking for some advice.

Situation:

- Was stopped on Feb 14, 2013 and told I'd be given a summons for careless driving. Was passing 2 cars on a winter night when it was snowing. Trafalgar Road heading southbound just north of Steeles,. Only two lanes our lane and oncoming traffic . Passed 2 cars one was a cop.

- Snowing. The road itself was clear, just wet from snow, but there was slush on the dividing line separating the two opposing lane. Nothing that I saw was dangerous, but cop thought so.

- He didn't give me a ticket because he was on his way to an 18 wheeler that had gone off a highway so didn't have time to give me a ticket. He said I would be given a summons to appear in court for "careless driving" and would have to explain why I passed them in such weather conditions and was driving 101 in 80 zone.

- I received the summons to appear in Sept 30th (7.5 months after incident). I went to the court to see if I could plead not guilty and ask for disclosure. The clerk told me I had to appear on the day and talk to the prosecutor about that. I didn't even have the option to plead guilty or not guilty or request disclosure.

- if he was driving, was he able to prove my speed was 101? Could he be doing radar while driving or is this just a guess he made that I was going 101?

-Did I do anything wrong in passing just because there was snow or slush in the middle?

Any advice ? What should I do to AVOID being convicted of "careless driving" charge.

I'm a little worried about being unprepared on trial day. Not knowing if I should say anything, explain myself or keep quiet and ask for evidence and adjournment. What if judge asks me to explain what happened?

Any advice on how to deal with a summons?

For now the best thing to do is show up to you court date and request disclosure. The court date on your summons is just your first appearance in court they won't hold your trial that day but will set a new date. Once you have disclosure you will be able to see what evidence the cop has against you and then you can start building a defense. The prosecution may also offer you a plea deal at this point, you can decide if you want to plead guilty to a reduced charge or take this mater all the way to trial. Also remember that although the cop said you would have to explain yourself, it is actually the prosecution that has to prove that what you did was careless. Since this is a fairly serious charge you might also want to talk to a paralegal and see if it might be worth hiring them to represent you in court.

Thank you for your kind response.

1. If I do show up to the first court appear, is the cop supposed to be there?

What if he doesn't show up on that day, will it be dropped? Or is it not necessary that the cop shows that day?

Before I ask for disclosure, is it better for me to wait to see if the cop does show up or not, hoping that that if he doesn't I could get it dismissed?

2. If the prosecutor offers a deal to a lesser plea and I say, I'd like to get disclosure first and wait for a future date after I have disclosure to start building a case, will I have the opportunity then to possibly make a deal to a lesser plea?

or is it that once I refuse the lesser plea deal, I will forgoe that opportunity and in the future I won't be able to come back to that lesser after receiving disclosure.

Thanks for your help and responses.

Jason

1) No, the officer won't attend on your first appearance date, only on the trial date (if there is a trial).

2) The Crown can withdraw the plea deal at anytime, but it's very unlikely they will. Typically offers stay open right up until the day of your trial.

Continuation of this charge..

I have a question about an 11b and if it would apply to my situation. After reading this please let me know if I can apply for an 11b and if I have a reasonable chance at it.

Got charged on Feb 14, 2013 for Careless driving. Given a summons because officer was in a rush.

in August (6months later) I received the summons at my door to appear for a 1st meeting on September 30, 2013. The summons to appear had a completely wrong mailing address, and wrong city Burlington while I live in Milton. But still somehow some an officer found me and brought it to my door in August.

Sept 30, 2013 (7months and 16 days after incident)- met with a prosecutor for 1st meeting and received disclosure. Asked for time to review disclosure and meet again set for Jan 13, 2014.

In disclosure it contained a summons page where it appears I was commanded to appear before the court on March 25, 2013. But the page has the wrong mailing address and the wrong city. This could be a cause of extra delay and why I only received the first sommons at my door in August, to appear in Sept 30th, because they may have found my correct address after realizing the officer made a mistake.

Jan 13, 2014 (2.5months after previous meeting) - met with prosecutor - we set a trial date for June 24, 2014 which is (5months 11 days after previous meeting).

The total time from incident to trial date is 15.5 months.

Yet, I was told I could not count the interval from Sept 30, 2013 to Jan 13, 2014 as that was my request to have time to review disclosure. So the total time where the delay is not due to me is 12 months 26 days before trial date.

The court is in Milton.

Question 1:

Given this delay, is it reasonable and possible to bring up the 11b at the trial date which is set for a trial on the careless charge? Do I have a reasonable chance at success with the 12mth 26 days delay?

I understand that if this is not accepted I will have to proceed with a trial and I am ready for that.

Question 2:

If the 11b is not accepted do I have the opportunity to break, speak with the prosecutor and discuss options for a plea to lessor charge, or is that not a possibility and I just have to go right into trial?

Go ahead and file the 11b. If you asked for more time and another meeting it could be seen as a neutral delay. (it is really up to the JP to decide) 12 months should be sufficient but it's not a slam dunk. Given how serious a careless charge is I would hire someone reputable to file the 11b whom can make the proper arguments on your behalf. It might be the difference between being strong-armed to a lesser charge and walking out unscathed.

I am filing an 11b to stay my trial for unreasonable delay.

On the form 4F, I had instructions to put the following text:

The following is the legal basis for the constitutional question:

The defendant has a legal right to be tried within a reasonable time. The defendant has not waived his right to a speedy trial, nor has the defendant been found at fault for the delay. (R. v. Askov, 1990 CanLII 45 (S.C.R.)). The defendant's legal right to be tried within a reasonable time has been infringed and in doing so has violated the defendant's section 11 (b) Charter right. The defendant is requesting a stay of proceedings pursuant to Section 24(1) of the Charter.

Can I add to this at all, for example mentioning that the police officer made a mistake in taking my address and sent it to the wrong place, which is the cause the extra delay?

Or should I just leave it without extra text and say this at the trial date?