OHTA.ca

I received a notice of trial (HOV lane) which was set 12 month and 1 week after a tickets date.

I sent disclosure request 7 weeks before the trial and didnt get an answer. After 3 weeks, I sent another disclosure request and didnt get any answer again. Now my trial day is coming in a couple of days. The trial is at Scarborough (Toronto East).

I am going to ask for adjournment at the trial based on the fact I didnt get any disclosure and I cannot defend myself without that information. If I get an adjournment, I will file 11B, because it will become much longer than year between conviction and trial dates. Here are my questions:

1. Does it sound like a good plan?

2. When is the proper moment to ask for adjournment? Just before they ask to plead guilty/not guilty? Will I know that cop is there by that moment? Because if cop didnt show up, I probably should not start talking about the adjournment, is that correct?

3. What should I say to prosecutor before the trial? Just "I am pleading not guilty"? Should I tell him that I didnt get a disclosure? Should I discuss with him my intention to get an adjournment? Or should I hide those facts instead?

4. How should ask for adjournment? Is that enough to say smth. like "I sent two requests and didnt get any disclosure, I cannot defend myself, I need to get disclosure before the trial"?

5. Can I ask to stay the case because I didnt get disclosure, or it doesnt make any sense if I didnt file motion of stay in advance?

Thanks in advance for your comments.

I have exactly the same train of thought and question as you. My trial is in a few weeks with no disclosure handed to me.

Could anyone care to elaborate the procedure? When should the adjournment be said, if the cop doesn't show, etc.

You can request an adjournment as soon as the proceeding commences. When you get called up the JP will ask what's going on with the case (i.e. is it proceeding, being withdraw, adjourned, etc) and you can just say that your requesting an adjournment in order to give the crown time to provide disclosure. It is probably a good idea to speak with the crown before hand and let them know this is what you will be requesting.

In my case this morning, I approached the prosecutor before the court proceedings started but she flatly told me that she cannot provide me anything today and suggested I make the request in court which I did, with an adjournment. The police officer was there, too. Again, I did not know about disclosure until last week.

Not to thread jack or anything, but isn't it better NOT to talk to the prosecutor beforehand about the adjournment?

From what I read - commonly the prosecutor would usually try to bluff and tell you to take plea deals - moreso when they have lack of evidence or the officer isn't present so they wouldn't have to withdraw the case once called up.

Isn't it beneficial to wait until the proceeding commences so when you are called up and the officer isn't present or they don't have proper evidence - the prosecutor would say "they don't have sufficient evidence" and withdraw the case in front of the JP before you say anything? This way, you cover both things and otherwise if the officer is present you can then ask for an adjournment.

At my trial I approached the prosecutor, and she asked if I plead guilty, or not guilty. I said not guilty (HOV lane). She said I can plead not guilty only if I have evidence that I wasn't in that lane. If I was there for some reason, I should plead guilty with explanation. By this time, I saw my cop in the room (but wasn't 100% sure that this is she). I said I still plead not guilty and added that I sent two disclosure requests and didn't have any answer. Prosecutor found my both dislosure request and said the trial will be adjourned. I said "OK". Prosecutor asked cop to make a copy of her notes. After a while I was called to the bench, and prosecutor said to JP that trial should be adjourned, new date was set, and they gave me officer's copy of ticket and copy of her notes. That's not all I requested but I didn't argue. With the new date the gap between ticket and trial will be more then 14 months. I am going to file an 11b. I am not sure if it does make sense to send them another disclosure request though...

I filed Appication for Stay of proceedings based on Charter s.7 and s.11(a), based on he fact I didn't get disclosure form the Crown (explanation and clarification of the charge). Does anybody know any precedent-setting cases for that? I didn't include them in the application of stay, but I think I should have them on trial. Any ideas? Thanks!