Eligible for 11b if I'm the one who requested a later trial date?

[adri]

I've been making use of the forum and outside links for info on what to do up until now, but could use some help with how to proceed from here.

October 2010:
Pulled over for turning left at 4:25 PM at a "no-left-turn-after-4PM" sign. Doh!
Requested trial date.

April 2011:
Received court date of July 8th at 9 AM.

June 2011:
Followed tips from GTAM of requesting a different court date in attempt to not be tossed in with all of my cop's other tickets. Thanks! Date pushed back to the following week at a different time.
Requested disclosure - 2.5 weeks before trial - apparently it must be requested 6-8 weeks before trial...

July 15th 2011, 3PM:
Prosecutor informs me the officer is not in attendance and will be dropping the charges!
5 minutes later prosecutor calls out the officer's badge number, and he is in fact in attendance, prosecutor surprised, offer was only in as he was stepping in for another officer - bad luck!
Prosecutor offers me lesser plea, I refuse to agree having not received disclosure. He sends the cop to provide me with disclosure.
Prosecutor tells justice I'd like to reschedule to have time to review the disclosure and seek counsel and he recommends a date in February 2012.

February 2012:
This will be 16 months after the offense date. Can I file an 11b or am I **** out of luck because I'm the one who requested time to review disclosure?

[adri]

PS: I've done a bit of homework already, here's what I found @ http://www.ottlegal.com/en/11bApplications.html

There is no "set time limit", or length of delay when considering if there is an 11(b) infringement as each case is considered on its merits and on a combination of the four listed factors. Generally the courts consider a period of 11 to 12 months sufficient to support an 11(b) argument.

Each Justice is permitted to have their own opinion as to what they believe is an unreasonable time period, as such different court jurisdictions and Justices will have different opinions.

The reason for the delay is important when considering this issue. If a person waives his/ her 11(b) right or if a defendant was the reason for the delay, then the court might not consider the delay to be an infringement of the accused's 11b rights.

Systemic delay, meaning that because of "the system or the court system was too busy", there was a infringement of the accused's rights. This is the most common cause for the 11(b) infringement.

The courts do not consider systemic delay a reasonable reason to infringe on a person’s right to have a trial within a reasonable amount of time.

Issues regarding a lack of court time, resources, disclosure, or other institutional issues, might not be enough for the Crown to explain unreasonable delay.

Seems to indicate that both defendant requests don't generally go well for an 11b dismissal... but at the same time, my court date was delayed an additional 7 months by the Crown's recommended date.

Thoughts? Experiences?

[Rob MacLennan]

Self-imposed delays do not count towards 11b. You are, however, entitled to time in which to study disclosure, so that should be counted. Make sure you mention failure to deliver disclosure, until the day of trial, when you put your notice together.

[FiReSTaRT]

^ What he said Typically, when considering an 11b argument, they will look at both the time delay caused by the Crown and the time delay caused by yourself and make a calculation based on those factors before considering if/when/how the delay prejudiced the case against you.

[danw]

June 2011:
Followed tips from GTAM of requesting a different court date in attempt to not be tossed in with all of my cop's other tickets. Thanks! Date pushed back to the following week at a different time.
Requested disclosure - 2.5 weeks before trial - apparently it must be requested 6-8 weeks before trial...

Could you tell me how this is done? I've read the lengthy FAQ about the whole ticket fighting process, but I can't recall coming across this point.

[backmarkerducati]

My understanding is that once you have requested a delay you are no longer eligible for the 11b time to trial process (but I may be wrong).

You should have motioned for a dismissal in the court due to lack of timely disclosure, and of course tell the crown to hand it to you in front of the JP (to force the issue and have it documented).

[suprPHREAK]

My understanding is that 18 months is the magic number for these things...but good luck!

[Metastable]

Geez dude, you don't word it that way. You say you asked to have the trial pushed back because you haven't received disclosure and you wanted time to seek council.... and even then you STILL hadn't received it when the new court date happened............. it might fly.

But to answer your question:
No you usually aren't allowed time for an 11b if it is your fault.

Fyi -> I got an 11b after 13 months. A small side of me actually wanted it to go to trial because this particular cop was full of beans.... but hey... if you get off, you shut up and go.

[adri]

Could you tell me how this is done? I've read the lengthy FAQ about the whole ticket fighting process, but I can't recall coming across this point.

Just show up at the main info desk or prosecutors office of wherever you're scheduled at. I.e. If you're scheduled at York civic center don't go to old city hall. Bring your paperwork. Have a valid reason for being unable to attend.

[adri]

I see your points thanks for the words of caution.

Can a cop really be considered a credible witness for a ticket from 16 months earlier?

He did write down the weather on the disclosure he also wrote down I was 1 of 2 vehicles pulled over, no mention of what the other one was but I remember what was pulled over ahead of me.

[MarcosSantiago]

Can a cop really be considered a credible witness for a ticket from 16 months earlier?

You know the answer - he cannot remember all the details of traffic tickets from 16 months ago. Myself, I can't remember the details of my work 16 months ago. No one can. He has to rely on his notes, and I assume that you have all of them as part of the disclosure.

From R. v. Colangelo, 2007 ONCJ 489 (CanLII) "Professionals such as doctors, nurses, lawyers, judges, police officers, deal with hundreds of cases over the course of weeks, months or years. They cannot possibly recall all and so they make notes to trigger their memory of events."

Further on , it says "that the officer was not obliged, nor is any witness obliged, to have a recollection in existence prior to referring to something that jogs his memory".

Basically, the cop doesn't have to remember anything until he reads his notes (which he is allowed to do). So the real issues are, what is the quality of his notes? And, during his testimony, what information additional to his notes he wants to introduce as evidence?

[Rob MacLennan]

You might be surprised at how much detail of an incident you can recall, after reading even the most brief of notes. I've got a pretty bad memory and even I, after reviewing the extremely brief notes that I make of every phone call and job I do, can remember what happened in great detail.