What is Disclosure, with regard to a trial in the Courts?
The Courts now recognize that any individual who has been charged (ie- parking/traffic tickets) by the State (Province of Ontario/Canada) has a right to know the case against them. As result, that individual has a right to review any investigating Police Officer’s notes, reports or records that concern them and the charge in question.
It is extremely important to have access to the investigating police officer’s notes, written in the course of the investigation. These notes provide information and context and can assist in determining the strength or weakness of your chances of successfully challenging your ticket.
Typically, in a case where you have received a ticket, the investigating Police Officer made notations in his/her log book and when you request disclosure, you receive a copy of the Officer’s log book that pertains to your charge(s). In most municipalities in Ontario, you will be told that you can only make the request for disclosure, after you have received a Notice of Trial in the mail. You will be told that it has to be that way to ensure that there is co-ordination of the trial date and the availability of the police officer who laid the charge and whose notes you are requesting a photocopy of.
Disclosure is extremely important. In 1991 the Supreme Court of Canada agreed, in a case called “ Stinchcombe ” that prosecutors should make available to the defendant, all relevant and material information in its possession.
This was to ensure that the defendant could mount a full and complete defense (full answer and defense). This means that you, as the accused, has the opportunity to see what kind of case the State has against you and provides you with an opportunity to defend yourself.
Prior to 1991 no such obligation existed on the crown/prosecution and as a result, miscarriages of Justice have occurred. (In July, 2008 the Ontario Government announced they would compensate Mr. Steven Truscott (who was sentenced to “hang” at the age of 14 years and who then served 10 years in Prison) with $6.5 million dollars due to his conviction of murdering Lynne Harper in 1959, which was later overturned by the Ontario Court of Appeal(August 28, 2007), who quashed his conviction and acquitted him. During the 1959 trial, the Crown did not disclose all of the facts to Mr. Truscott’s Lawyer, who defended him at the trial. Disclosure, is now a right, entrenched in Section 7 of the Charter. The crown/prosecutor must provide full disclosure to the defendant prior to a plea (guilty or not guilty) is made before the courts.
So these are now the rules:
- You have a right, under section 7 of the Charter, to receive any/all evidence produced by the investigating Police Officer(s) related to your charge. In cases of traffic and parking tickets, this generally means that you receive a copy of the Officer’s notes. The notes should say what the circumstances were that led the Officer to lay a charge or charges against you. Sometimes the notes are accurate and sometimes they are not.
- The Crown or Prosecution, now has an “obligation/duty” to provide you with complete disclosure, prior to your plea. This does not mean at the trial date – never accept this and complain to the Court if the Crown or Prosecution attempts to do this. You have a right to have an adequate and sufficient amount of time to review the disclosure notes and to prepare for your trial. This can’t happen on the same day.
- You have a right to full answer and defense on your ticket(s) and never waive this right. You must make a request in writing to obtain disclosure, prior (give nine weeks) to your scheduled trial. You have a right to make full answer and defence and although section 7 of the Charter guarantees this, section 46 (2) of the Provincial Offences Act contains the RIGHT TO DEFEND and reads “The defendant is entitled to make full answer and defence”.
It is vital that you request and receive this information, as you will know the Crown’s/Prosecutor’s case against you and there will be no surprises from the investigating officer’s testimony. You will know, in advance, what the investigating officer will say and ultimately, what the Crown/Prosecutor will rely upon to make his/her case against you.
Typically the investigating Officer that issued the ticket will take the stand. The Officer will be sworn in (that he/she will tell the truth, the whole truth, and nothing but the truth so help them god) and say “I do” to the question. The Crown/Prosecutor will ask them if they have any “independent recollection” of the events on the day in question, which led to the officer writing the ticket in question”?
The Crown/Prosecutor will ask them if on the date and time whether they took notes or wrote anything down in relation to the ticket? The officer will say that he/she did and that it was done at the time and that there haven’t been any changes, omissions or deletions to the notes. The Crown/Prosecutor will ask the officer if they have their notes with them and did he/she want to refer to them? The officer will say – “yes”. The Crown/Prosecutor will then ask the officer for what purpose (does the officer want to review or look at his/her notes)? The officer will answer “to refresh my memory” The Justice of the Peace (referred to as “your worship”) will state that the officer has an independent recollection of the events on the day in question and then ask you if you object to the officer using his/her notes to refresh his/her memory?
In most cases, the accused (you) agree and the officer begins to answer questions posed to him/her by the Crown/Prosecutor.
This is normally how a trial starts and its application is pretty mechanical (and most of the players – JP, Crown & Officer consider this a formality), but it is possible that the Officer does not have an independent recollection of the events as they transpired on the day in question and therefore, they would have no memory to refresh and in fact, their entire memory may be contained within the notes – sometimes it pays to object in this situation. We will deal with evidence later on.
In most municipalities, you will be told that you are not able to request disclosure until you receive your “Notice of Trial” in the mail. Ask the clerk what the location is, in which you must make your request for disclosure.
How long does it take to receive disclosure?
It normally takes four (4) to eight (8) weeks, after you have requested it (which takes place after you have received your Notice of Trial in the mail and you have filled out a “Disclosure Request Form” and handed it in to the appropriate office. You will receive it in the mail.
Can I wait 9 weeks before my scheduled trial, to submit the Disclosure Request Form?
Yes – but this should be the maximum amount of time you wait.
What happens if I have made the request for disclosure and I have not received it, prior to the scheduled trial?
If you have made the request, at least 9 weeks before the trial and you have not received it, it is important that you call the office at which you submitted the disclosure request (there will be contact information on the actual request form) and ask them when you’ll be receiving the disclosure in the mail. Don’t allow a clerk at that office to instruct you to show up to the office in person to receive your disclosure, insist that it is mailed to you. You have already exerted considerable energy in preparing for your case, the least they can do is mail you out the requested disclosure. This should be done at least two (2) weeks before the trial. Whatever you are told, should be written down (the name and position of the person who told you, as well as what that person told you and your response). It is important to chronicle the events as they happen, as the Court may demand details about your attempts to obtain disclosure in your particular case and you will be in a position to accurately answer any question asked of you.
If by the trial date I still have not received the Disclosure, what should I do?
- If you made a “Request for Disclosure” to the appropriate office, after you received your Notice of Trial.
- If you made this request at minimum of nine (9) weeks, prior to the scheduled trial date.
- If you called up the office (at which you submitted your request for Disclosure) at least two weeks prior to the scheduled trial date, and requested (or insist if need be) that the Disclosure be sent to your residence.
If you have taken all of these steps above, and you show up for your trial date, you can request the following:
you can explain to the Court that you are not in any position to proceed, given that you have not received full disclosure (which is your right under section 7 of the Charter) and therefore can not make a full answer and defense to the charge which is scheduled for trial.
To proceed, without disclosure, would be very prejudicial to your case and as such you can request that the Justice of the Peace (your “Worship”) or the Judge (your “Honour”) provide a “Stay of Proceedings” with respect to the charge(s) that brought you to the Court to begin with. It is important to remember that it is the responsibility of the Justice of the Peace or the Judge to guard and protect the rights flowing from Section 7 of the Charter from any breach.
Typically, the Justice of the Peace/Judge will make inquiries about your attempts to obtain disclosure. He/She will ask what steps you took and on what dates, to achieve disclosure. You will have to explain that you received your Notice of Trial in the mail and then proceeded to the Court office to fill out and submit your “Request for Disclosure Form” (You should have a copy of the form, which has been received and stamped by the intake clerk) at this point you should hand the Prosecutor/Crown and the Justice of the Peace/Judge a copy of the stamped Request for Disclosure Form. You should then explain that you called the same office after the fact (at least two weeks prior to the scheduled trial) and reminded them that you had submitted a request for disclosure and were wondering how long it would take before you received it.
After you have provided an explanation, the Prosecutor/Crown will inform the Court how long it normally takes (to receive disclosure) to have a disclosure request acted upon and sent to the accused (you).
The same Prosecutor/Crown may suggest that since the Officer is present, that his/her notes can be photocopied and provided to you so you can review them for your trial, on the same day – Always object to receiving disclosure and expecting to participate in the trial on the very same day!
This is extremely inappropriate, and prejudicial, as you cannot be reasonably expected to have an adequate and sufficient amount of time to review the notes, prepare for your defense and argue the case, all within a span of an hour or two. Remember, the Attorney Generals, Federally and Provincially require a minimum of fifteen (15) days notice of anyone filing an “Application for Stay of Proceeding” pursuant to the Charter, so why would you only be provided with an hour or a few minutes, this is wholly inadequate, insufficient and unrealistic, to prepare for your case, upon receiving your disclosure request.
The ultimate remedy for lack of disclosure (see Stinchcombe, a Supreme Court Decision) in the spirit of the Stinchcombe decision, is a “Stay of Proceedings” (this means that the judicial matter comes to a stop, as the case will not proceed if the Court grants, what is commonly referred to as a “Stay”. If by your second appearance, the Crown/Prosecutor will have run out of excuses to adjourn the matter, yet again and if you request a “Stay” from the justice (Justice of the Peace) you will receive it. If you don’t request the stay, it will not be offered or given, you must insist upon it or demand it, before it is given to you.
It is more likely that the Prosecutor/Crown will request that the matter be adjourned (rescheduled) to the near future, giving his/her office and opportunity to have the disclosure you requested, to be delivered to you.
Lack of disclosure means you don’t know the full case against the accused (you) and that inhibits your preparation for trial.
You can argue that time has already elapsed and that you have had to take time off of work and that you would prefer that the entire matter by “stayed” and that you did not have to return to the court room again.
The Justice of the Peace/Judge will make the decision. If too much time (ie.- a year) has already elapsed (from the time that you were charged to the date of the trial) he/she may grant the “stay of proceedings” request, as the matter would have to be rescheduled again to a later date. Or, he/she may grant the Prosecutor’s/Judge’s request and agree to adjourn the matter (put it over to a later date).
It is important to keep in mind that the Justice of the Peace that will be hearing your matter, has an obligation to ensure that your rights under section 7 of the Charter are guarded and protected.