OHTA.ca

My 18 year old G2 Daughter received a Speeding Ticket before Christmas and we decided to fight it based on a fair bit of detail on this board. The ticket isn't huge and no demerit points were assessed, we are more worried about Insurance at this point.

We followed as much information here as we could when submitting the request for disclosure. We gave plenty of time, two faxes, three follow up phone calls (had to leave messages) and have yet to receive anything. Court is on Monday.

My daughter tried one last time today to call the courts, and actually reached a real person ! (she recorded her name etc..). The court person was able to pull my daughters file, see the disclosure requests, and had the messages recorded (wouldn't divulge anything else though)

She told my daughter "it's normal" to get the disclosure detail just before court time when meeting with the prosecutor. My daughter asked how are we to prepare in 15 minutes before trial, and was told that can be discussed with the prosecutor. To me, this doesn't seem to follow anything I have read here.

So, is this in fact 'normal' process ?

Either way, normal or not, am I still able to request a stay of proceedings due to only getting disclosure 15 minutes in advance and not being able to prepare?

Any feedback or thoughts would be greatly appreciated

Thanks in advance

Which Charter right would you be claiming has been violated in order to justify a stay? There has to be a Charter violation in order to trigger the Charter remedy of a stay.

If you actually get disclosure, it's not likely you can argue that your right to disclosure under s. 7 was violated, because you actually got it. At that point the remedy for the LATE disclosure would probably be an adjournment.

Often times what happens in situations like this is it ends up being the defendant who requests the adjournment because they're "not ready for trial". If you're not clear about the fact that this is exclusively the fault of the prosecutor, the delay between this upcoming date and whatever date you get next could be assessed against you if it comes to an 11(b) motion for unreasonable delay.

I'm not giving you specific legal advice, but I think it's fair to say that people in situations like this should make absolutely clear on the record that the responsibility for this delay rests at the feet of the prosecutor and that you were diligent in trying to obtain disclosure earlier.

As Boris said, you'd be asking the JP for a remedy due to late disclosure, which would most likely be an adjournment [for which you'd then put the Prosecutor at fault for in terms of delay]. I also am not sure if you can ask for a stay specifically based on Charter issues without first notifying the Attorney General of Ontario, and Canada. R. v. Vellone opened this one up to a possibility, but has been appealed by the Crown and granted by the Appellate court, effectively ending the practice.

Depending on your situation, you can ask for a remedy on account of late disclosure [which, if the trial were to continue on your first court date, would be a violation of your section 7 and 11d rights] and mention a possible 11b charter motion that may arise. This is of course, if 8-10 months would elapse between a month to two months from the date you filed your Notice of Intention to Appear [as per the guidelines in R. v. Andrade]. The Prosecutor, seeing a possible successful 11b motion, may withdraw charges. Not likely, but there's a possibility.

The key is not to ask directly for a stay, but rather for a remedy with all of the possible Charter issues to consider.

Thanks to both of you... Looks like I have to get my terminology in order. I'm really hoping that the case gets dismissed as there are probably other cases more important or higher profile than this and perhaps the prosecutor doesn't want to waste the courts time.. but that's iffy, so I still need to have a couple of approaches thought through.

Again, thanks