OHTA.ca

Is that true that you cannot make a verbal motion to stay the process at the trail anymore? I did not receive a disclosure, so I was trying to go this way, but it looks like the only option I have is to ask fo adjournment. Could anyone confirm? My trial is on Tuesday.

Yes, as of the most recent appeal in the case of R. v. Vellone (http://canlii.ca/t/fpbgf), verbal questions of Charter issues cannot be raised at trial without first notifying at least the Attorney General of Ontario. More arguments and decisions are yet to come, but as of now, you can't do it.

How many times have you requested disclosure? How did you request it? And finally, do you have proof of disclosure requests?

I have a full record of requesting it. I also have a letter from Ont. Court of Justice that they received it and delivered to the prosecutor's office. Then a record of email exchange with that office, initiated by me when I did not receive the disclosure, then record of phone conversation and faxes to the prosecutor's office. I do not have a disclosure and the trial date is tomorrow.

That's perfect. Tomorrow, when you go to court, approach the Prosecutor before court and introduce yourself so they can find your charges in their file. Ask them politely if they have your disclosure. If they don't, you will go to the court room and wait to be called up.

Three Scenarios:

1. No disclosure provided prior to trial. You get called up, pre-trial motions start [before your charges are read] and the Prosecutor withdraws the charges.

2. No disclosure provided prior to trial, but Prosecutor wants to proceed. Your charges are read, and you are asked how you plead. You say, looking at the JP, "Your Worship, prior to entering a plea I would ask for an adjournment on account of non-disclosure." You now give the Prosecutor the opportunity to shuffle through their papers and say something. If they say, "No requests were made that I know of", you tell the JP that you have actually made several requests [be specific to the dates and the number of times it was made] and offer proof. The point is that your right, as guaranteed under Section 7 of the Charter has been infringed upon, and the failure of the Prosecutor/Crown to provide disclosure given your due diligence in requesting it is a miscarriage of fundamental justice. You will most likely get an adjournment. Make sure to state for the record that you are not waiving any of your rights and politely argue that the delay thus far is due to the Prosecution.

3. The Prosecutor hands you a disclosure packet prior to trial. Once called up, the Prosecutor states she wishes to proceed with the trial. Here you will argue that you had received the disclosure mere minutes ago and, once again, this is a clear violation of your right to make full answer and defence to the charges against you. You can state that you'd made multiple disclosure requests, stating the period of time you had given the Crown to produce disclosure, and argue that the assumption that one can simply go over the notes prior to the trial is, again, a miscarriage of fundamental justice. You can now ask for a remedy, and suggest an adjournment. Again, if this is granted, you will make sure to state that you have not waived your rights and place the delay onto the Prosecutor.

There is a chance, depending on how the Prosecutor comes across, that in possibilities 2 and 3 the JP will remedy the situation with a stay of the charges.

There is also a chance that in situation number 3, the JP suggests that you must continue the trial. If this happens, you will need to stand your ground and vocally [on the record] bring up the potential Charter implications of such a proceeding. If the trial does continue, and you lose [let's say], you can appeal the decision on the Charter issues.

Finally, relax and don't worry too much. You have proof of your disclosure requests and know enough about the way the system works to take the next step in exercising your rights. The same cannot be said for the majority of the people you will see standing in front of the Justice of the Peace tomorrow. Except a lot of Guilty Pleas.

Good luck.

mnstrcck wrote:That's perfect. Tomorrow, when you go to court, approach the Prosecutor before court and introduce yourself so they can find your charges in their file. Ask them politely if they have your disclosure. If they don't, you will go to the court room and wait to be called up.

Three Scenarios:

1. No disclosure provided prior to trial. You get called up, pre-trial motions start [before your charges are read] and the Prosecutor withdraws the charges.

2. No disclosure provided prior to trial, but Prosecutor wants to proceed. Your charges are read, and you are asked how you plead. You say, looking at the JP, "Your Worship, prior to entering a plea I would ask for an adjournment on account of non-disclosure." You now give the Prosecutor the opportunity to shuffle through their papers and say something. If they say, "No requests were made that I know of", you tell the JP that you have actually made several requests [be specific to the dates and the number of times it was made] and offer proof. The point is that your right, as guaranteed under Section 7 of the Charter has been infringed upon, and the failure of the Prosecutor/Crown to provide disclosure given your due diligence in requesting it is a miscarriage of fundamental justice. You will most likely get an adjournment. Make sure to state for the record that you are not waiving any of your rights and politely argue that the delay thus far is due to the Prosecution.

3. The Prosecutor hands you a disclosure packet prior to trial. Once called up, the Prosecutor states she wishes to proceed with the trial. Here you will argue that you had received the disclosure mere minutes ago and, once again, this is a clear violation of your right to make full answer and defence to the charges against you. You can state that you'd made multiple disclosure requests, stating the period of time you had given the Crown to produce disclosure, and argue that the assumption that one can simply go over the notes prior to the trial is, again, a miscarriage of fundamental justice. You can now ask for a remedy, and suggest an adjournment. Again, if this is granted, you will make sure to state that you have not waived your rights and place the delay onto the Prosecutor.

There is a chance, depending on how the Prosecutor comes across, that in possibilities 2 and 3 the JP will remedy the situation with a stay of the charges.

There is also a chance that in situation number 3, the JP suggests that you must continue the trial. If this happens, you will need to stand your ground and vocally [on the record] bring up the potential Charter implications of such a proceeding. If the trial does continue, and you lose [let's say], you can appeal the decision on the Charter issues.

Finally, relax and don't worry too much. You have proof of your disclosure requests and know enough about the way the system works to take the next step in exercising your rights. The same cannot be said for the majority of the people you will see standing in front of the Justice of the Peace tomorrow. Except a lot of Guilty Pleas.

Good luck.

Thanks a lot. This is very helpful. One clarification, when and how am I suppose to "you will make sure to state that you have not waived your rights and place the delay onto the Prosecutor"? After the adjournment is granted, just by saying that aloud?

After a date has been set for adjournment, before things wrap up.

Don't forget to update us on how things went!

mnstrcck wrote:Don't forget to update us on how things went!

Alll went well! The cop did not show. Aparently, he retired. That is why no disclosure. Big thanks for your advice mnstrcck!!

So I have a bigger problem now. My son's trial is on Thursday. I already posted some questions before. You were one of those who answered. It looks like I do not have a hook at all. Any idea at all? I am afraid the cop will show this time. We were given pretty detailed disclosure, considering the charge, so it looks like he is dilligent. You could fine some catches in the cop's statements, but I do not want to risk my son being charged for what the cop wrote (68/40), as opposed to what it shown on the ticket (55/40). I was thinking, since he is under my insurance, could I try to ask the prosecutor prior to the trial to change charges to non-moving. I could explain that this is going to be me paying for the consequencies, having to pay raised insurance premium. Also he was not even driving our car, but the company car, he has a summer job with cleaning pools. I guess, I am asking for too much luck, but...

Thanks.

slepy wrote:I was thinking, since he is under my insurance, could I try to ask the prosecutor prior to the trial to change charges to non-moving.

Just be aware that insurance companies don't differentiate between so called moving versus non moving violations. They treat a minor speeding ticket the same as an expired licence plate sticker. They rank any conviction as minor, major or serious. Also, if the Crown does offer a deal, it's typically to a less serious but similar offence. Not really much they can plead speeding down to other then a lower speed.