File 11b motion in advance

[adri]

Court date was pushed back due to the innocent defendant (me) not being given requested disclosure until the morning of his hearing. Totally unfair. Boo, hiss.

Hearing was pushed back at my request and february 2012 was chosen by the crown. Original offence was supposedly committed October 2010. Of course I'm so disappointed that my rights are being violated because of the courts ineptness at rescheduling my hearing within a reasonable amount of time so I'm filing a motion to dismiss the proceedings and get this thing tossed out.

I have general form affidavits, a notice of motion, form 1 notice of application, and a form 3 I don't think I need. I know I need 3 copies of these signed and stamped. One for the court, one for the prosecutor, and one for me, but how soon should I file these?

Are there any advantages to filing sooner than later? Am I ok to file at any time now given that it's been over a year since my original incident?

A friend is helping me out but she works at the attorney general for the supreme court so these policies and procedures aren't part of her expertise.

[Rob MacLennan]

Court date was pushed back due to the innocent defendant (me) not being given requested disclosure until the morning of his hearing. Totally unfair. Boo, hiss.

Hearing was pushed back at my request and february 2012 was chosen by the crown. Original offence was supposedly committed October 2010. Of course I'm so disappointed that my rights are being violated because of the courts ineptness at rescheduling my hearing within a reasonable amount of time so I'm filing a motion to dismiss the proceedings and get this thing tossed out.

I have general form affidavits, a notice of motion, form 1 notice of application, and a form 3 I don't think I need. I know I need 3 copies of these signed and stamped. One for the court, one for the prosecutor, and one for me, but how soon should I file these?

Are there any advantages to filing sooner than later? Am I ok to file at any time now given that it's been over a year since my original incident?

A friend is helping me out but she works at the attorney general for the supreme court so these policies and procedures aren't part of her expertise.

No advantage and one big disadvantage; they see your motion and then say your date has been moved up to next week, so as to not 'infringe upon your right to a speedy trial.'

[adri]

Yep. That's why my friend at the attorney general said not to fill out the forms immediately after my original trial (sept.) as it would be within a year of my incident (oct.), but now that we're in December I think even if they move it up to tomorrow I'd still have an argument to have it tossed, I think(?)

Gonna submit everything later this week or Monday. If all goes well I'll make a thread with all the forms as a template.

[Nyx13]

No advantage and one big disadvantage; they see your motion and then say your date has been moved up to next week, so as to not 'infringe upon your right to a speedy trial.'

That's exactly what I was thinking... What about waiting until January before filing the papers?

[Rob MacLennan]

That's exactly what I was thinking... What about waiting until January before filing the papers?

Too late, given government office shutdowns over the Christmas break.

[OpenGambit]

The "magic" number is 13 months for an 11b, so anytime after 13 months I would file it.

though by magic I don't mean its a sure thing. But its more of a general guideline.

[Salos Dafee]

I know next to nothing about the complexities of the issue, but I am on Adri's side.
Every defendant is up against a team of conspirators who stack the deck and ride
roughshod over the truth, caring nothing for justice and everything for convictions.

I appreciate this opportunity to learn what "11-B Motion" is, so I will watch closely.
So far, the only thing that puzzles me is that no idiots
have blundered into this thread to utter the oft-heard nonsense:
hey, if you are chargd then you are probly guilty so be a man & pay the fine, etc. etc.

I am not saying I miss that chorus, because I don't;
I just wonder what is keeping the jerks away.

[Rob MacLennan]

I know next to nothing about the complexities of the issue, but I am on Adri's side.
Every defendant is up against a team of conspirators who stack the deck and ride
roughshod over the truth, caring nothing for justice and everything for convictions.

I appreciate this opportunity to learn what "11-B Motion" is, so I will watch closely.
So far, the only thing that puzzles me is that no idiots
have blundered into this thread to utter the oft-heard nonsense:
hey, if you are chargd then you are probly guilty so be a man & pay the fine, etc. etc.

I am not saying I miss that chorus, because I don't;
I just wonder what is keeping the jerks away.

Read the sticky post about assumptions to make, before posting here.

[buck]

If you only received disclosure the day of, did you consider requesting a 'stay' due to inadequate disclosure? I'm curious as I'm in a similar situation.

[OpenGambit]

If you only received disclosure the day of, did you consider requesting a 'stay' due to inadequate disclosure? I'm curious as I'm in a similar situation.

you can request a stay due to inadequate disclosure, but an 11b motion is a stay due to not being tried within a reasonable time.

[Rob MacLennan]

you can request a stay due to inadequate disclosure, but an 11b motion is a stay due to not being tried within a reasonable time.

Which is definitely something you might want to try anyway, especially as the delay from inadequate disclosure doesn't apply against the defendant. Couldn't hurt, if the timeframe before trial is a year+ because of it (13 months, generally, is the magic number).

[OpenGambit]

Which is definitely something you might want to try anyway, especially as the delay from inadequate disclosure doesn't apply against the defendant. Couldn't hurt, if the timeframe before trial is a year+ because of it (13 months, generally, is the magic number).

If you are at 13 months and no disclosure I would certainly raise both.

[Salos Dafee]

Read the sticky post about assumptions to make, before posting here.

With respect, Rob, I read those assumptions under YOUR name,
so they are YOUR assumptions.
I am a scientifical sorta guy, so I avoid making assumptions,
because they tend to install blinders and limit one's viewpoint.
I am a big boy now, and I can choose viewpoints of my own.

[Rob MacLennan]

With respect, Rob, I read those assumptions under YOUR name,
so they are YOUR assumptions.
I am a scientifical sorta guy, so I avoid making assumptions,
because they tend to install blinders and limit one's viewpoint.
I am a big boy now, and I can choose viewpoints of my own.

Notice the "moderator" listing under my name. If people don't follow those assumptions, then their posts are deleted. That is all, on this subject.

[iFly55]

the new magic number imo is 11 months, read R v. Andrade: http://canlii.ca/t/fn8jv

you need to file your 11b application atleast 15 days prior to your trial, now i`m not sure if that`s 15 business or calender days; so to be on the safe side i`d file it 15 business days prior to your trial

i`d suggest filing it closer to the trial, only because it strengthens your `prejudice due to delay` argument

more importantly make sure that you also serve the Attorney General of Canada & Ontario aswell, you can do this by faxing them your 11b application, keep the fax receipt and get an Affidavit of Service (Form 16B) that you served them

also afaik i don`t believe you can request a verbal stay (R v. Velone: http://canlii.ca/t/234kt <- this is not binding/precedent case law), if they failed to give you disclosure in a timely manner the crown will most likely withdraw because they know it will infringe on your 11b down the road; having said that, what you can do is suggest the crown to withdraw, but the judge will not withdraw the charge unless you file an 11b application and serve all the proper parties

now it sounds like you`ve already had one appearance in court, i would also suggest you include the transcript of that appearance with your 11b application as well; so you can argue that adjournment was an instutitional delay attributed solely to the crown and that it wasn`t your fault, again this would strengthen your 11b argument

[OpenGambit]

I glanced at Velone, its a busy day.

But I thought it said that you CAN get an 11b without the notice of consitutional question, or did I skim it badly?
And why would it not be a precedent?

[iFly55]

yes you are correct

the reason it is not precedent was because it was not ruled by a superior court of justice, therefore that decision was not binding. i've also read that the crown has appealed that decision, so it could "soon" be repealed or become precedent (not sure)

[OpenGambit]

my point is that Vellone doesn't deal with disclosure, nor does it say you can't request a stay without a notice of constitutional question. that is the opposite of what you said in your post...

Secondly, the point about precedental value is that the first case you quoted has the same precedental value as the 2nd case that you posted. but yet you use one to establish "magic" number, while treating the 2nd one differently. That is completely inconsistant. Either they are both good or neither of them are.

[iFly55]

my point is that Vellone doesn't deal with disclosure

well indirectly it does... what is the consequence the crown absorbs when failing to give a defendant their disclosure in a timely manner? because one-day it might infringe on their 11b

JP/crown will simply adjourn the trial to a new date, just like what happened with the OP; i've yet to read about a JP staying/dismissing a trial due solely to lack of disclosure, it's always the crown's decision not the JP ... because again it would one-day infringe on the defendant's 11b

nor does it say you can't request a stay without a notice of constitutional question. that is the opposite of what you said in your post...

yes but that case is not precedent

Secondly, the point about precedental value is that the first case you quoted has the same precedental value as the 2nd case that you posted. but yet you use one to establish "magic" number, while treating the 2nd one differently. That is completely inconsistant. Either they are both good or neither of them are.

i can attest that when i submitted my 11b app in Dec 2011, that the sitting JP and attending crown accepted R v. Andrade

i also know many people who were forced straight to trial when bringing R v. Vellone, because the sitting JP dismissed it as it was not binding to their courts (traffic)

i'm confused as to how you deduced both cases have the same precedental value; the first case was ruled by a superior court, whereas the second was not

[OpenGambit]

nothing change the fact that the Vellone, the case you cited, says the exact opposite of your post.

And as far as I can tell, they are both cited ONCJ, and are argued in front of Justices...

in any event, you are far to caught up on the idea of stare decisis. Its really not a rule as much as a guideline.