Do you think your traffic court trial has taken too long to get to court?
Most people who are in this situation believe they can show up at court and announce to the judge that it has taken more than a year from the time they received their ticket until the day of trial and therefore the judge must throw their case out.
Sadly, for most who try this, (and I see it often) they hit the legal brick wall. The judge may quickly note that you have not filed a Charter Application and you will not be successful. You will now be faced with a trial and the "carpet has been pulled out from under you" leaving you dazed and confused.
I have even seen people who have filed a Charter Application fail. They either haven’t filed it in time or they hear from the prosecutor, who also has a say in the matter, who will correctly point out to the judge that a Charter Application has not been served on the prosecution nor on the Ontario Attorney General nor on the Canada Department of Justice. The judge will have to agree and once again they are left with the wind taken out of their sails.
Another big misconception is that if it has taken one year or more to get to court it will automatically be thrown out.
Canadian Charter of Rights - 11B
There is no magic number. Period. The Supreme Court of Canada and lower courts have written about guidelines. This means that the court can start considering a discussion about delay after 8 months has gone by. There are many factors that have to be considered when arguing delay.
Follow up:
1. The length of the delay
2. The reason for the delay (Commonly it is due to lack of institutional resources)
3. Delay caused by the Crown or delay caused by the defence. (You’ve asked for disclosure from the prosecution but you still haven’t got it)
4. Waiving of delay. (A common mistake made by unrepresented people is that they ask for a delay themselves at some point in the process and now will have that time period deducted from the total count).
5. Prejudice (Most people charged with a traffic ticket do not have any real or specific prejudice – which is not necessarily a problem in arguing delay – but can help if it is present).
In addition, success in having the ticket "thrown out" or more properly "Stayed" by the judge will vary from jurisdiction to jurisdiction. I have been successful at 9 months in some jurisdictions yet unsuccessful at 14 months in others.
It is the job of the Applicant to persuade the judge that their circumstances matches the criteria for arguing "unreasonable delay" and that the case law (precedents) in their jurisdiction supports them and why.
Nothing is just "black & white" in law. It is almost all a grey area. Sometimes things work and other times not so much. Sometimes new laws are written or new case law comes out that changes the game.
After 20 years fighting tickets, it is the constant change in the game that keeps me interested and eager to play hardball when necessary. Find yourself a professional who loves his job and who does not "back away from the plate" when it’s game time.
Gary Parker
Licensed Paralegal
http://www.imintrouble.ca/blog/index.php/2008/11/01/traffic-tickets-unreasonable-delay
How to do it?
I filed a form 4F (http://fyst.ca/question.htm) 15 days before the court date by:
1- Mailing it through registered mail to "Provincial Prosecutor's Office" and "Ontario Court of Justice" (the ones with the address on the ticket and court notice)
2- Faxing it to "The Attorney General of Ontario"
3- Faxing it to "The Attorney General of Canada"
I had a copy of the form, receipt for registered mail and the fax transactions in the court, but they ask for more. They wanted me to file it with the court personally together with an "Affidavit of service" signed by a "Commissionaire of Oath" 15 days before the court date to even look at it. I got an adjournment to file it correctly.
Affadavit of Service... there are a number of Commissioners of Oath that could help you with that. Not sure where in Toronto you live, but there are plenty in the phone book. Should be able to find what you're looking for with a simple phone call.
The other strategy is to actually serve notice upon the Attorneys-General of Canada and Ontario yourself, not just with fax or registered mail. Make 6 copies of the 11B notice. Serve one copy on the Attorney-General of Canada, getting all stamped in the process; with the five left, go serve the Attorney-General of Ontario, again getting all stamped; with the four left, go to the courthouse and have one for the JP - get it stamped; three remaining - go to the Prosecutor's office and get them stamped, leaving two for you. They will have "received" stamps from the Attorneys-General of Canada and Ontario, the Court, and the Prosecutor's office. Bring the remaining two to court for your trial date.
http://www.ontariohighwaytrafficact.com/topic2808.html
FORM 4F
Courts of Justice Act
Notice of Constitutional Question
Regina
v.
(Last name of Defendant)
TAKE NOTICE THAT pursuant to the Ontario Courts of Justice Act, the defendant, (name of defendant), will make an application for:
Short leave to be granted for this application;
Relief under Section 24(1) of the Canadian Charter of Rights and Freedoms on the following grounds:
a. That (his/her) rights under Section 11(b) of the Canadian Charter of Rights and Freedoms have been violated.
AND FURTHER TAKE NOTICE THAT the matter is to be argued on (day), (date), at (time), at (address of court house).
AND FURTHER TAKE NOTICE THAT the material facts giving rise to the constitutional question are as follows:
The offence number is (offence number);
The date of the alleged offence is (offence date);
The date set for trial is (trial date);
The date the defendant requested complete disclosure is (date);
The defendant did not receive disclosure until trial date;
The defendant moved to stay the charge due to lack of disclosure, and was denied;
Another trial was set for (new trial date);
That the defendant has been prejudiced by the post charge delay in bringing this matter to hearing.
AND FURTHER TAKE NOTICE THAT the grounds for this constitutional question are as follows:
The Crown was given ample time to prepare for the disclosure;
That the Crown failed to provide disclosure for the defendant to prepare a full answer to the charge prior to trial;
That the trial is further delayed through no fault of the defendant's;
No reason was given by the Crown to explain the delay in preparing disclosure.
(Date)
(Name, address and telephone number of defendant or agent)
TO:
Provincial Prosecutor's Office
(copy address from ticket)
Ontario Court of Justice (if different from prosecutor's office)
(copy address from Notice of Trial)
The Attorney General of Ontario
Constitutional Law Branch
7th floor
720 Bay Street
Toronto, Ontario M5G 2K1
fax: (416) 326-4015
The Attorney General of Canada
Suite 3400, Exchange Tower
Box 36, First Canadian Place
Toronto, Ontario M5X 1K6
fax: (416) 973-3004
(or Justice Building
239 Wellington Street
Ottawa, Ontario K1A 0H8
fax: (613) 954-1920 )
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