Advice needed – What to request in a disclosure

[J_F]

Re: Advice needed – What to request in a disclosure

@hedo2002

I would like to know in the previous story what exactly the officer was reading that triggered the crown to seek a dismissa

was over 10 years ago, will try to recall best I can
disclosure to me was a copy of one page of LOE's notes
had very little detail

about a year after the traffic stop the trial took place
LOE gave his evidence for the Crown
time, place, weather conditions
visibility, other traffic, device calibration
extremely thorough summary listed off
as he looked at whatever documentation was in front of him

my turn, I asked him how much of this routine stop he recalled from a year prior
he said it helped him recall if he had his notes in front of him

I had jotted down each bit of evidence he had listed earlier
and began to ask him if this evidence was from memory or from his notes
get through each point until the last one: claimed to have tested the device twice that morning
asked him if that was from his memory (which would be difficult to believe) or from his notes
so he said that evidence was from his notes, there was nothing about this in my disclosure

so I brought this up to the JP, he looked at the Crown
Crown came over to see what I had, then to see what LEO had in front of him
she made kind a grimace to the JP, JP looked back with a frown

Crown announced dismissal, I thanked everyone got GTF outta there
never did see what the officer was looking at, as he gave his evidence

 

[hedo2002]

I actually suggested nothing of the sort. It was a response to his previous post.

Just sayin'

Mea Culpa. Did not realize it was a reply.

 

[Gnu]

<snip> ... BUT, only you can make an informed decision on your chances of winning, and your level of skill when it comes to court, (which most don't recognize as a pretty intimidating scenario. Most defendants, that I have seen who likely could have won their case, screw up, and end up sinking their own ship.

This is a good point of this post. If this is your first time in traffic court, you should consider visiting some traffic court sessions before your trial. You really need to learn what pisses off JPs and the 'proper" way to present evidence and how to question the prosecution. Most first timers go down in flames as they are not familiar with the structured way of the court.

 

[Krime]

Okay, so the court date is coming up next week and I still haven't received the disclosure. Wondering how I should approach this.

So to recap:

- I filled out the disclosure request form that came in the mail with my court date back in May and emailed it in.
- I received an email back about a week later with no useful information (only a recap of what I already knew - the committed offense of speeding and courtroom location and time).
- In the footer of that email there was mention of requesting specifics if the information was inadequate ASAP, and to do so by contacting my regional prosecutors office.
- After digging online I noticed the email address for my regional prosecutor's office is the exact same email address I'd originally emailed and received a response from, so I replied to the email about 1 week later asking the specifics of what I was looking for.
- I never heard back from that point, I've been waiting for the email or call as there was mention on the original form that they would call when my disclosure was ready for pickup.

Looking at the email I'd replied too, I did not include my phone number as I was replying to the insufficient disclosure that was provided via email. I had filled out my phone number in the attached form in the original email requesting the disclosure initially so I'm hoping that was sufficient.

Thanks.

 

[Krime]

Also, do I need to have the physical ticket with me when I show up to court? I misplaced the original but do have a photo of it on my phone, as well as the original notice of my court date and disclosure request on file.

 

[Evoex]

Also, do I need to have the physical ticket with me when I show up to court? I misplaced the original but do have a photo of it on my phone, as well as the original notice of my court date and disclosure request on file.

No you don't need your ticket.

 

[smergy]

Given there is only a week to go, its a bit late in the game for some of this, but perhaps you find a few useful pieces here. One thing is for sure, it will be a learning experience.

First, you need a strategy, a plausible scenario that casts reasonable doubt. Unfortunately this threshold is rather high, unless it is a technicality, which most people aim for. e.g. the cop not showing up (this is rare now a days, given they schedule court dates to co-incide with their work schedules). It's still possible, but not as likely as it once was. Fortunately it was regional, vs OPP, but the odds are only slightly better. A good resource is going through case-law, for which a decent amount is publicly available online with the relevant decisions. You can't mount a defense if you don't fully understand what the rules of the game are. Typically the cases that show up in the search are more significant cases. You'll find this both rewarding, to understand what you face (aka burden of proof) and rather frustrating, given the number of logical holes in the arguments regarding the decision. Provincial offences court is a crap shoot on the best of days.

As you are likely aware, speeding is an absolute liability offence. In other words, it doesn't matter what your excuse is, you need to focus on the officer and the equipment.

That said, the disclosure form they (conveniently) send you is a cop-out for them to do the least amount of work possible with the least information they can get away with, as you've found you. Make your own. Ontario law does not dictate you must use the provided form. Suggestions would be:

- Never email. Never call. All correspondence should be photocopied, dated, with receipts of registered mail kept and a tracking printout to show it was delivered. Facts and proof are the only thing that matter in court, not who said what on the phone. Only provide your mailing address in the disclosure request and clearly indicate the only acceptable form of communication requesting registered mail service.

- Never accept disclosure at or just before trial, this is insufficient time to review

- A bit late now, but keep gps logs (phone or otherwise), the days weather report, and make a summary in your own terms of what happened that day while its fresh. e.g. GPS is useful to contravene any ambiguities in the location written on the ticket. If they say "blah road" on the ticket, that is not a location, that is a road. A location is a coordinate or intersection. e.g. There are many locations on a road. a.k.a technicality.

- Get a copy of your ticket (should be provided in disclosure, if not challenge it) and verify it for accuracy, or "fatal" errors as court calls it.

- On the day of the trial, find out if the cop is there or not before you go up

- Officers are required to calibrate the speed measuring device prior to and after the event but this needs to be part of your disclosure request, you want written documentation (i.e. notes) showing this with dates/times.

- Ask for the moon in disclosure, e.g. Make/Model/Serial number of the speed measuring device, type of speed measuring device, all officers notes written and typed with all abbreviations accompanied by complete definitions, a copy of the manual for the speed measuring device (you'll question the officer how it was calibrated), the complete history of the speed measuring device including service entry date, who entered the device into service, the qualifications of any technicians who have serviced the device, any reports of malfunction of the device, log of each time the device was tested and the results of the test showing it is operating correctly, the manufacturing date of the device, etc. etc. They'll never give all of that to you, but the point is, you can use both the presence and absence of information to question the validity of the measurement/device.

To be frank, its a stretch, and you need to be ok with them reversing the ticket to the original amount if it was reduced. The point is don't go in blind or swinging for the fences. Don't ask a question you do not know the answer to. Good luck.

 

[Krime]

Given there is only a week to go, its a bit late in the game for some of this, but perhaps you find a few useful pieces here. One thing is for sure, it will be a learning experience.

First, you need a strategy, a plausible scenario that casts reasonable doubt. Unfortunately this threshold is rather high, unless it is a technicality, which most people aim for. e.g. the cop not showing up (this is rare now a days, given they schedule court dates to co-incide with their work schedules). It's still possible, but not as likely as it once was. Fortunately it was regional, vs OPP, but the odds are only slightly better. A good resource is going through case-law, for which a decent amount is publicly available online with the relevant decisions. You can't mount a defense if you don't fully understand what the rules of the game are. Typically the cases that show up in the search are more significant cases. You'll find this both rewarding, to understand what you face (aka burden of proof) and rather frustrating, given the number of logical holes in the arguments regarding the decision. Provincial offences court is a crap shoot on the best of days.

As you are likely aware, speeding is an absolute liability offence. In other words, it doesn't matter what your excuse is, you need to focus on the officer and the equipment.

That said, the disclosure form they (conveniently) send you is a cop-out for them to do the least amount of work possible with the least information they can get away with, as you've found you. Make your own. Ontario law does not dictate you must use the provided form. Suggestions would be:

- Never email. Never call. All correspondence should be photocopied, dated, with receipts of registered mail kept and a tracking printout to show it was delivered. Facts and proof are the only thing that matter in court, not who said what on the phone. Only provide your mailing address in the disclosure request and clearly indicate the only acceptable form of communication requesting registered mail service.

- Never accept disclosure at or just before trial, this is insufficient time to review

- A bit late now, but keep gps logs (phone or otherwise), the days weather report, and make a summary in your own terms of what happened that day while its fresh. e.g. GPS is useful to contravene any ambiguities in the location written on the ticket. If they say "blah road" on the ticket, that is not a location, that is a road. A location is a coordinate or intersection. e.g. There are many locations on a road. a.k.a technicality.

- Get a copy of your ticket (should be provided in disclosure, if not challenge it) and verify it for accuracy, or "fatal" errors as court calls it.

- On the day of the trial, find out if the cop is there or not before you go up

- Officers are required to calibrate the speed measuring device prior to and after the event but this needs to be part of your disclosure request, you want written documentation (i.e. notes) showing this with dates/times.

- Ask for the moon in disclosure, e.g. Make/Model/Serial number of the speed measuring device, type of speed measuring device, all officers notes written and typed with all abbreviations accompanied by complete definitions, a copy of the manual for the speed measuring device (you'll question the officer how it was calibrated), the complete history of the speed measuring device including service entry date, who entered the device into service, the qualifications of any technicians who have serviced the device, any reports of malfunction of the device, log of each time the device was tested and the results of the test showing it is operating correctly, the manufacturing date of the device, etc. etc. They'll never give all of that to you, but the point is, you can use both the presence and absence of information to question the validity of the measurement/device.

To be frank, its a stretch, and you need to be ok with them reversing the ticket to the original amount if it was reduced. The point is don't go in blind or swinging for the fences. Don't ask a question you do not know the answer to. Good luck.

Thanks this is extremely informative. I'm wondering based on the circumstances if I can leverage how I haven't received the requested disclosure. Are there grounds to dismiss the case when I show up without the materials requested. As you'd mentioned if they try to provide the disclosure at the time of the trial I will deny and mention I haven't had enough time to process the information to frame my case (there was mention that disclosures may take up to 8 weeks to process, which is why I made sure to request it well in advance to give myself time to frame my case). Will I have a chance to explain my situation of not having received my disclosure request before pleading not guilty? Is there specific terminology I should use? Since everything is time stamped through the emails, I plan on printing and bringing the correspondence as proof that I didn't receive sufficient disclosure as requested.

 

[Krime]

No you don't need your ticket.

Excellent, thanks.

 

[Evoex]

Thanks this is extremely informative. I'm wondering based on the circumstances if I can leverage how I haven't received the requested disclosure. Are there grounds to dismiss the case when I show up without the materials requested. As you'd mentioned if they try to provide the disclosure at the time of the trial I will deny and mention I haven't had enough time to process the information to frame my case (there was mention that disclosures may take up to 8 weeks to process, which is why I made sure to request it well in advance to give myself time to frame my case). Will I have a chance to explain my situation of not having received my disclosure request before pleading not guilty? Is there specific terminology I should use? Since everything is time stamped through the emails, I plan on printing and bringing the correspondence as proof that I didn't receive sufficient disclosure as requested.

Yes, the JP will ask at the start if you have anything to say before they begin. You can request the case be dismissed on the grounds that you did not receive proper disclosure. This is rarely enough but what you`re looking for is the crown to adjourn the case, this moves you closer to an 11b dismissal. You never want to be the one asking for an adjournment, any delay you make doesn't count towards violating your right to a speedy trial.

 

[Riceburner]

My suggestion:
If the cop is there, best to ask for a continuance due to the fact disclosure was not given. They will reschedule. The hope is, the cop won't show the second time or/and it gives you a chance to review the evidence in disclosure(if and once you receive it) to mount you case adequately. This shouldn't affect 11b if it gets there, as the reason for extension isn't your doing. If the cop isn't there this time, case dismissed. So wait till you go in front of the JP before asking for continuation due to not receiving disclosure....if the cop is present. Do you remember what he looked like? He might not be in uniform.

 

[Evoex]

My suggestion:
If the cop is there, best to ask for a continuance due to the fact disclosure was not given. They will reschedule. The hope is, the cop won't show the second time or/and it gives you a chance to review the evidence in disclosure(if and once you receive it) to mount you case adequately. This shouldn't affect 11b if it gets there, as the reason for extension isn't your doing. If the cop isn't there this time, case dismissed. So wait till you go in front of the JP before asking for continuation due to not receiving disclosure....if the cop is present. Do you remember what he looked like? He might not be in uniform.

Why should he blow his load when they ****ed up?

If the crown wants his balls they will ask for an adjournment and he'll get to play the cop lotto for free.

 

[Riceburner]

He can ask for dismissal, they will give adjournment. Amounts to the same thing I suppose.

 

[smergy]

Cop check first, crown will decide if they want to proceed (likely), then you can request a dismissal (stay of charges) but I don't know at what point this gets granted vs. a continuance based on lack of disclosure. It sounds like they provided some info the first time around, but not what you asked for the second time. Worst they can say is no to the stay request. In the mean time I suggest reading some of the case law files to get a feel for the terminology and the thought process. Provincial Offences court can vary widely from what I have seen.

From recent experience, disclosure was requested twice. 8 weeks before trial, then again 4 weeks prior. Both requests were sent via registered mail (with receipts and copies) but no reply was ever received. I had specifically requested the officer's notes showing the speed measuring device was calibrated prior to and after the event, among (many) other things.

At trial, no action was required other than stating your name when the case was called. Cop showed up, but charges were immediately dismissed by the crown due to this technicality. What I don't know is where the threshold lies for a stay vs a continuance. Would a continuance have been issued instead (due to lack of disclosure) had I not requested proof of calibration explicitly? If I just filled out the generic form would this have gone to trial had (at least some) disclosure been provided? I can't say for sure.

 

[Krime]

Thanks guys, I'll aim to go for the dismissal and see what they come back with. Unfortunately I don't remember what he looked like since it was back in November of last year. I remember he was young (likely a rookie) and that he spoke pretty slow although that won't help me here.

Smergy, thanks for this it's great to hear your first hand experience. Hopefully my case will pan out similarly to yours, I'll focus on the secondary disclosure request made way back in June (and immediately after the useless disclosure) where I ask for the officers notes, etc. Hopefully this will be suffice to dismiss the case if he does show.

Regarding reviewing case law files, any recommendations on where to look/start for this type of thing?

 

[smergy]

https://www.canlii.org/en/on/

 

[hedo2002]

OP unless the crown specifically KNOWS there is something wrong or missing from the disclosure, they won't be inclined to agree to a dismissal. Instead, what is likely to happen is they will hand you, (if they have it), disclosure as soon as you present yourself to the court. If this happens to be, when you are being addressed by the JP, advise the JP you JUST were handed disclosure, and have not had time to review and adequately prepare your defence.

MOST JP's will then give an adjournment until a later date, VERY few will advise you to sit down look over the disclosure and your case will be "set down" that means it will still proceed, but after they have dealt with most other matters before the court, (so likely 1 - 3 hours). Almost no JP's anymore will grant a dismissal based on late disclosure.

Once you get the disclosure then you need to read it VERY carefully, to ensure you can mount a full and proper defence. If you don't see anything that jumps out, then at that point, you have very limited options. The crown will NOT be inclined to offer any form of reduction and if the speed was dropped roadside by the officer, but the "proper" speed was recorded, then the crown will go with THAT speed. You can either then plea guilty, based upon the disclosure, or roll the dice with your defence.

Of course this is all if the officer is here, which as stated previously, is almost always a given these days. Back in my day if we missed a court date, no harm, no foul. Nowadays, the officer is written up for missing court dates, unless there is a VERY good excuse, IE they were still on a call from the night before, they were on an assignment that made it impossible to attend. Merely that they were worked the night before no longer cuts it...

 

[Nevo]

You have a short window since you've still not been to court.

Go to the courthouse and extend the court date.

The reason will be that you did not receive disclosure, make sure to show them the form (they may not even look at it).

They will extend the court date to a later date and advise you that they will not extend the next date.

They will advise you to request disclosure a second time and it is recommended that you do this.

You will have a much stronger case to show the JP on the date of your court date if you still did not have disclosure despite requesting it twice (with proof to back that up).

The next part depends on if you actually get disclosure or not but until then, you should hire proper legal representation so that this ticket will be reduced or thrown out.
- Most likely, being dropped to failure to obey sign, typical B.S that will allow the court to collect funding from you while keeping your record clean.

 

[Krime]

OP unless the crown specifically KNOWS there is something wrong or missing from the disclosure, they won't be inclined to agree to a dismissal. Instead, what is likely to happen is they will hand you, (if they have it), disclosure as soon as you present yourself to the court. If this happens to be, when you are being addressed by the JP, advise the JP you JUST were handed disclosure, and have not had time to review and adequately prepare your defence.

MOST JP's will then give an adjournment until a later date, VERY few will advise you to sit down look over the disclosure and your case will be "set down" that means it will still proceed, but after they have dealt with most other matters before the court, (so likely 1 - 3 hours). Almost no JP's anymore will grant a dismissal based on late disclosure.

Once you get the disclosure then you need to read it VERY carefully, to ensure you can mount a full and proper defence. If you don't see anything that jumps out, then at that point, you have very limited options. The crown will NOT be inclined to offer any form of reduction and if the speed was dropped roadside by the officer, but the "proper" speed was recorded, then the crown will go with THAT speed. You can either then plea guilty, based upon the disclosure, or roll the dice with your defence.

Of course this is all if the officer is here, which as stated previously, is almost always a given these days. Back in my day if we missed a court date, no harm, no foul. Nowadays, the officer is written up for missing court dates, unless there is a VERY good excuse, IE they were still on a call from the night before, they were on an assignment that made it impossible to attend. Merely that they were worked the night before no longer cuts it...

Thanks for the prep, this is all good to know. Crazy to hear that some JP's will expect you to read a disclosure on the spot and assess/frame your case within a few hours. It's a shame to hear that a case is rarely dismissed from failure to get a disclosure (or in a timely manner), when it's been their oversight while the accused has gone by the book. Really it sounds like all that happens is it drags out the process for the accused, wasting their time by having to adjust schedules, taking more time off work, etc.

 

[GreyGhost]

You have a short window since you've still not been to court.

Go to the courthouse and extend the court date.

The reason will be that you did not receive disclosure, make sure to show them the form (they may not even look at it).

They will extend the court date to a later date and advise you that they will not extend the next date.

They will advise you to request disclosure a second time and it is recommended that you do this.

You will have a much stronger case to show the JP on the date of your court date if you still did not have disclosure despite requesting it twice (with proof to back that up).

The next part depends on if you actually get disclosure or not but until then, you should hire proper legal representation so that this ticket will be reduced or thrown out.
- Most likely, being dropped to failure to obey sign, typical B.S that will allow the court to collect funding from you while keeping your record clean.

I take my chances going to court to see if the cop shows. If they don't show, you win. If they show, you tell the JP you didn't receive disclosure and you get another chance to hope the cop doesn't show. Your way loses a shot at a guaranteed dismissal in exchange for stronger argument for dismissal. I just don't see why it is better.

How does failure to obey sign keep your record clean? It has less demerit points, but still counts as a minor ticket for insurance. I have never met anybody that collected enough demerit points that they affected their license.