OHTA.ca

Hi,

First of all, thanks for the great information provided on the forum. It has already given me a better idea of what to expect during trial. However, I have a few questions regarding my case.

A few months ago, I was stopped in Hamilton for alleged speeding (1 radar operator, many patrol cars). I immediately asked for a trial, and as soon as I received a trial date, I asked for full disclosure (officers notes, information and manual regarding the device used, training records and witness statements). Because I did not receive disclosure, I contacted the office on numerous occasions, without getting disclosure. I thought: great news: no disclosure, case will be dismissed. However, 48 hours before the trial, I received (very poor) disclosure: I only received the officer's ticket and training records.

Issues:

- I did not receive any information or manual of the LIDAR used

- officers copy of the offence note has very little extra information: only the (higher) speed of the laser, and some codes that were not explained, but no information if the testing procedure was followed, etc.

- on the officers copy of the offence note, the witness number is changed (probably was a typo)

- the training records are for the wrong officer (the one that gave me the ticket, not the one operating the LIDAR)

My questions:

- What are the chances of both officers showing up?

- Is there any case law to dismiss the charges because I received incomplete disclosure, despite my specific request?

- Is there any case law to dismiss the witness (LIDAR operator) because his officer number does not correspond with the one on my ticket (only information that is given on the witness is the officer number)?

- What should I do if the officer has more notes that he did not provide to me? E.g. which testing he carried out, etc.

- If all of this does not work, what would be my best approach? I have planned to ask questions during the cross examination, since the officer seems to have poor notes, in order to put reasonable doubt on the statements of both witnesses.

You can not count on the officers not showing up, but it does happen sometimes. When you check in with prosecutor, you can ask them if both officers are there. Some prosecutors will be honest and tell you yes or no. If one is not there, then ask the prosecutor if they are going to withdraw the charge. If both officers are not there, then you should push to have the charges dropped.

Let's assume that both of them are there... in this case when you are called up before the JP, you need to say that you only got partial disclosure two days ago, so there should be an adjournment held against the prosecution as two days is not enough time to prepare, and you did not get everything you asked for. You should have gotten the notes from BOTH officers, not just one of them. You will have to tell the JP what you asked for that was not given.

You will not get the charge dismissed for them not having disclosure at your first trial. The remedy is to set a new trial date and tell the prosecutor to get the disclosure. Now if you do not get it by the second trial then you can file a charter argument about not receiving it and try to get it dropped that way.

Can you scan the notes and offciers copy of the ticket (black out personal info) and post? Do you have a copy of your original Notice of Trial you got? If something on the Certificate of Offence was changed AFTER you were given the Notice of Trial, then this is a fatal error and the charges should be dropped. Does the officers copy of ticket say CERTIFICATE OF OFFENCE on it? If not, then then it is not what you need to see.

We need to see disclosure of both officers notes to decide if there are any other defenses or not that may work.

First off, if both officers don't show up, then the prosecutor can't prove their case and should withdraw the charge. After all, one officer will be needed to prove your ID since they are the one who reviewed your driver's licence and likely gave you your ticket, while the other one is the LIDAR operator (he's the one who needs to be qualified and asked about testing).

Just know that your disclosure request must be specific as to what you want. If for any reason, they give you more disclosure at trial, simply ask for an adjournment. If you feel you haven't received all the disclosure you requested, then simply let the JP know (on the record) and ask for an adjournment. It's that simple.

The case will NOT be withdrawn simply based upon you not having received your full disclosure. They'll simply just adjourn it so that you CAN receive it and review it in time for your next trial date.

On your next trial date, if you STILL haven't received what the prosecutor stated (on the record) they would, file a section 7 application for a stay based on not being able to make a proper full answer and defence since you didn't receive your disclosure.

Thanks for the great replies so far!

In attachment (file is too big, so here on Dropbox)

https://www.dropbox.com/s/4f9izyz2jc9cn ... e.pdf?dl=0

1) My second written request for disclosure (first one April 28 was identical except for the reference to the first letter obviously)

2) Enforcement agency record

Note that witness is manually corrected to officer #218 + his name

3) Officer's copy of certificate of offence (front)

Note witness says officer #281

4) Officer's copy of certificate of offence (back) - not filled out

5) sorry, duplicate

6) Radar training

Note that this is in reference to officer #201, who wrote the notice, NOT regarding the operator of the LIDAR, so has no value to me

7) Laser training

Note that this is in reference to officer #201, who wrote the notice, NOT regarding the operator of the LIDAR, so has no value to me

Notice of trial

So indeed I should have gotten notes from 2 officers, but got them from only 1. My thinking is to go ahead with trial (in the hope that not both officers appear) but if they both show, ask for adjournment based on incomplete disclosure. How can I ask to the Prosecutor before trial if both officers are present? How do I know who that person will be?

There are three copies to every ticket:

(1) Notice of Offence - the copy that you get.

(2) Certificate of Offence - the officers copy that gets submitted to the court.

(3) Enforcement Agency Record - the officers copy that they keep for their records.

They can not change the Certificate of Offence after they have given you the Notice of Offence. However the Enforcement Agency Record is just a copy of the ticket and has no legal standing so they can change that all they want. It looks like the officer or prosecutor were scribbling notes on it. So was anything changed on the Certificate of Offence?

When you arrive at court you normally check in with somebody at the front (usually a police officer). You can tell them you want to meet with prosecutor, although most of the time the prosecutor will meet with everybody before court starts anyway.

When you meet with prosecutor, do not mention the disclosure issue at first. Simply ask if both the officers are there. Possible responses:

1 - "Yes" or "No but they are on their way": In this case you can say you have disclosure issues you will bring up with JP to get adjournment.

2 - "No": In this case ask if they plan to withdraw the charges. They might say yes (great news) or they might say no and they want to reschedule. I suggest you do not agree to reschedule and you will need to object (once in front of the JP) and complain that you took the day off work and you can't afford to take another day off work and that charge should be withdrawn if they do not have their witnesses there.

3 - "I just want to know what you are planning on doing": So if they give you a non-responsive answer, then you will need to play along with their game. In this case you can just say you are planning on pleading not guilty and going to trial. Do NOT mention anything about the disclosure issue. Once your trial starts, two things can happen:

(a) The prosecutor will say they are NOT ready to proceed and withdraw the charge (probably because one of the officers is not there) or will say they are NOT ready to proceed and say they want to reschedule (so object like in 2 above).

(b) The prosecutor will say they ARE ready to proceed (which means both officers are there). So in this case you can just say "Before I plead, there are some issues with disclosure that I need address."

So option 3 is sort of poker hand thing where you just hold off until the trial actually starts before you mention any issues that you have, and this forces the prosecution to reveal whether they have everybody they need or not.

Update: today was trial date. Both officers showed up, so I asked to have the case adjourned because of the late disclosure. I can now prepare for the new trial.

Questions:

1) Should I ask again for disclosure, since they gave me incomplete information?

2) Should I be as specific as possible in my request for these?

3) From what I understand, since this adjournment is the Crown's fault (did not provide disclosure on time), the time counts against them. Is that correct?

4) New trial would be around 1 year after the offence date. Does that give me reason to ask for dismissal under the Canadian Charter of Rights and Freedoms Sectoin 11b) ? Is this often granted, or rare?

Missing from the disclosre I have received so far:

- no notes of the LIDAR operator

- no logs who was stopped that day

- no user manual/testing procedure (despite request)

- training records of wrong officer

1) yes

2) yes

3) yes

4) maybe. would not hurt to try