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Hi Everyone,

I am preparing a Motion to stay the the speeding charge based on the Prosecutor's failure to provide complete disclosure. Below are the material facts that I will be filing.

Can I get your feedback on the working and any suggestions please.

The following are the material facts giving rise to the constitutional question:

I. February 26, 2015 the Defendant requested disclosure from the Prosecutor by way of a formal request form submitted in person to the office of the Prosecutor.

II. The Defendant requested the following information:

a) A full copy of the officers notes, typed if not legible and with an explanation of any short form writing

b) A transcript of any voice recording that may have been in use or to be relied on at trial

c) A detailing of the model, serial number and year and make of the radar equipment on which the Prosecutors evidence will be based

d) A copy of the calibration log to the above mentioned equipment

e) A copy of any authorization for access onto private property on which the officers vehicle was situated.

III. Notwithstanding the fact that the crown received this Disclosure Request subject to its obligation to provide full disclosure, and further notwithstanding that all of the Defendants contact information was made available to the Prosecutor, no disclosure was made available to the Defendant for the trial date of April 15, 2015.

IV. April 15, 2015, the Prosecutor having failed to provide disclosure documents; the trial was adjourned for Wednesday June 3, 2015 at 1:30 PM

V. April 26, 2015 the Defendant presented in person, a second request for disclosure and notwithstanding the itemized request the disclosure received Monday April 20, 2015, was incomplete and failed to fully disclose all material evidence requested.

VI. May 4, 2015, the Defendant made a third written request to the Prosecutors office requesting the deficient items.

VII. The Prosecutor holds a duty to disclose information that is useful to the defence in order to know the evidence against the Defendant, prepare for trial and make full answer to the charge. (R. v. Stinchcombe, 1991 CanLII 45 (S.C.C.); R. v. O'Connor, 1995 CanLII 51 (S.C.C.)

VIII. The Defendant will claim that; the Prosecutor having failed to meet its disclosure obligation, has violated section 7 of the Charter and with that the Defendants rights. As remedy, the Defendant will argue for an order allowing the application and granting a stay of proceedings pursuant to Section 24(1) of the Charter.

The reality is that the remedy for disclosure issues is that you receive disclosure. The courts do not grant stays because the crown has not met their disclosure obligations. If the items requested are relevant, then the courts order the prosecutor to give you those items. If as a result of multiple disclosure adjournments your trial date is in 11b territory, then the stay is for the trial taking too long.

It appears you have exercised due dilligence with your disclosure requests. The question is what items did you request? What did the Justice of Peace say about your disclosure request? Did the JP order the prosecutor to give you disclosure?

How to file an 11b: http://www.ontariohighwaytrafficact.com/topic2952.html

My follow up was actually going to be that I have been aggrieved by the failure to receive these documents in a timely manner. I will have to appear in court twice . I have had to visit the prosecutor's offices, on no less than six occasions.

There are costs associated with everyone of these visit to either the court or the offices. There is time taken away from my family, my work and my other responsibilities. This to me, appears an unreasonable burden placed on me, given the charge and given that the original burden and duty lies with the Prosecutor.

And ultimately, what purpose, what benefit and what protections are there in precedent cases such as Stinchcombe, 1991, if there is no accountability for defying these rulings. Just as I, as a drive have a responsibility to observe the law, not when I am reminded to, or even eventually, but at all stages, the Crown too has a responsibility and it must yield to that responsibility.

I agree with iFly.

Several of the items you requested are not likely to be disclosed.

1- A transcipt of a recording will not be provided. A copy of the recording will however, if one exists.

2- There's no such thing as a calibration log. You're probably wanting the testing times for the device. If you're looking for a calibration certificate, it won't be provided.

3- There's no such thing as an authorization for access to private property. A police officer can be there at any time, unless the owner requests the officer to leave.

I thank you for the clarification on points 1 and 2, however I disagree with you regarding police access on to private property. My understanding and I have heard and seen "authorization" asked for and provided in court. Otherwise, the officer is trespassing and can not be acting lawfully in the execution of his duties; Fruit of the poisonous tree

Enforcement from an area the you believe is private property will not invalidate the ticket and the JP won't care.

You're reaching for something that isn't there.

Hi Decatur,

Why did you phrase the statement by saying 'that you believe to be ". Are you suggesting that I could be mistaken about it being private or is it the fact even if it were private property; it's inconsequential ?

Both.

So an officer acting under criminal trespass has no bearing ? I can't agree with that, sorry.

What was the actual scenario? Im going to assume the officer was at the side of the road on private property (driveway, plaza, etc.) measuring the speed of passing vehicles.

If thats the case, it unfortunately wont assist you in getting the radar/laser evidence tossed out. Our Charter (fruit of the poisonous tree is a US doctrine) certainly does protect against illegal search and seizure, but the law wouldnt refer to your scenario as such. Its an argument thats been frequently brought up in HTA Court, but has no legal support. While the property owner would certainly be within their right to ask the officer to leave, it wouldnt negate any radar/laser readings they obtained prior to that. If officers in Court are testifying to having authorization to be on private property, it would likely be in reference to a Trespass to Property Act. Officers would then need permission/authorization from the property owner to enforce laws ON the private property.

camper66 wrote:So an officer acting under criminal trespass has no bearing ? I can't agree with that, sorry.

It's not actually a criminal offence as you suggest. It's debatable whether it would even be considered a provincial offence less the officer had been asked to leave and refused to do so.

The facts relating to where the officer was situated was stated in the incomplete disclosure made by the crown. In the officers notes, she states that she was parked on the Toyota lot on xx street.

The poisonous fruit may be an an American idiom, but most certainly, the principle applies in the execution of an officers' duty. An officer must be acting withing all confines of the law; most especially when exercising their legal authority. That is not disputable.

They are not being unlawful until asked to move and refusing.

camper66 wrote:The facts relating to where the officer was situated was stated in the incomplete disclosure made by the crown. In the officers notes, she states that she was parked on the Toyota lot on xx street.

The poisonous fruit may be an an American idiom, but most certainly, the principle applies in the execution of an officers' duty. An officer must be acting withing all confines of the law; most especially when exercising their legal authority. That is not disputable.

If it was a commercial property and not a private residence then it will be even more problematic to argue the officer was trespassing.

Regardless, Im not debating the point with an intent to mislead you. The simple fact is that this defence has been tried regularly in Court without success. I dont think youll find any case law that supports the notion that the officer would be trespassing and that such an offence would warrant the evidence being omitted. If youre taking the time to go to trial with this strategy, you really need to do your research. My comment over your use of US versus Canadian terminology and criminal versus provincial offences may seem like nit-picking, but in Court everything needs to be perfect.

Youre trying to argue a charter breach, which means the onus lies with you to establish such a breach occurred and that it was serious enough that evidence obtained by the police should be omitted. Its no small feat.

I'd agree with everyone else.

You were charged with an offense committed on public roads.

If the owner of the property decides he'd like the officer to move, he's free to make that demand. That's an issue between the property owner and the officer. The evidence collected against you isn't based on the officer forcing entry into an area without cause and gathering evidence within the confines of the property. On top of that, it's a commercial lot anyways.

Hi again,

I'm sure you are all correct and speak from a position of experience regarding the private property issue. My approach in fighting a ticket on occasion, has been to apply the the spaghetti principle. You throw everything against the wall and see was sticks. In doing this, it makes the matter appear more of a demanding task for the prosecutors and more of a demand on their time. Given there limited resources and time, I suggest it tends to make them more willing to negotiate.

Thank you for your input and comments, they are appreciated.

On the actual matter at hand, it appears from a little research that the most common remedy for failure to disclose is an adjournment or an order to disclose; but surely, if the only consequence for the Crown in failing to provide full and complete disclosure; is an adjournment and making sure that the clock does not run past the 11 months 27 days; what deterrent is that and what protection is that?