I'm always amazed at the amount of poorly qualified or outright incorrect information on the web when I search for traffic enforcement related information. One popular topic that seems especially mistreated is disclosure of the Crown's evidence prior to trial. The authors of the articles would have you believe that you should ask for everything, including the brand of ink in the officer's pen, and when any of it is refused the ticket will automatically be dismissed.
If you are considering a ticket dispute, you may choose to write to the officer who issued the ticket and request disclosure. Do this at the same time that you enter your dispute so that there is plenty of time for the officer to comply. This way if you have any questions after receiving disclosure you will have time to ask for clarification before the trial date.
If you simply request disclosure, you should receive a synopsis of the evidence that the officer will be presenting during the trial. You may request specific disclosure for information about the officer's qualifications, what kind of speed measuring instrument was used or for a copy of any evidence that will be presented, such as photos, videos or witness statements.
The court will support all reasonably justified requests. Photocopies of copyrighted material such as the radar operation manual will be refused, although you could expect to attend to the detachment and view a copy to make notes from. Copies of all tickets the officer issued that day and the outcome of any trials related to them, servicing records for the police vehicle, reports of all disciplinary actions against the officer or other such requests will likely not be upheld by the court.
With electronic tickets, the officer no longer makes handwritten notes. Rather than a photocopy, a print out of the notes could be requested.
You've requested disclosure, received nothing from the officer and your court date is either rapidly approaching or at hand. What should you do? There are two options open to you: send another request or apply for an adjournment at the commencement of your trial.
It is possible that your original request did not reach the officer and the reminder will produce what you need.
If disclosure has not arrived in reasonable time, or not at all and you are in court being asked to enter a plea you could decline to do so and request that the matter be adjourned. Ask that the justice direct the officer to provide disclosure and make the next appearance peremptory on the prosecution.
Another option is to ask the justice to adjourn and advise that you will be making an application to have your trial moved to provincial court in order to make application under the Charter to have it dismissed for lack of disclosure.
If you are considering the latter it would be wise to seek proper legal advice to prepare. The Canadian Bar Association's Lawyer Referral Service will direct you to counsel that specializes in your matter and provide a free 30 minute consultation.
I sent a disclosure request which included a specific request regarding the officer's training and qualifications in the use of a speed measuring device.
In the response I received for those materials, was simply a note saying "will prove qualification at time of court".
Reading through the Stinchcombe and Wong rulings, it seems as though I should be entitled to ask for that, as in my view, it is clearly relevant.
Does this put me in a position to argue improper disclosure?
Make a second request stating that you require a response to your demand for particulars on the officer's qualifications prior to trial in order to properly prepare. Remind them that they have a duty to disclose and a their first response was insufficient.
Should you not receive it, then you would be in a much stronger position to argue that disclosure has not been given as requested.
I can see 3 scenarios:
1) You receive proper disclosure and are prepared.
2) You are given the same answer as the first request. Notify the court registry that you intend to make a Charter challenge for non-disclosure.
3) You do not receive a response in time to prepare for the court date. Find the officer prior to the commencement of court that day and ask that they withdraw the ticket due to lack of proper disclosure. If the officer will not, politely advise that you will not be entering a plea but will be requesting an adjournment in order to notify the court that you will be making a Charter argument. When your case is called, do not enter a plea and politely request that the justice adjourn the matter, explaining what has taken place and that you intend to make a Charter argument. Notify the court registry of your intent on the way out.
I've sent a second request.
Just remember, I'm a retired traffic cop, not a lawyer. While I do my best to answer based on my experience in traffic court, if it is a serious matter you should consider consulting a real lawyer.
Your help is appreciated, as someone who's about to go and get a Paralegal diploma, I've taken this as a valuable learning experience.
I received a reply via email to my Second and Additional request for disclosure, stating nothing more than "mailed on (date)"
I re-iterated my desire to obtain particulars regarding the officer's training and qualifications, and also added two new specific requests - a copy of the ticket itself (which I would have expected with the first request) and to be informed of a the time and place of a location that I may attend in order to inspect a user manual for the speed-measuring device.
These were wholly and completely ignored in the response.
And so I will be informing the court shortly of my intent to file a Notice of Constitutional Question.
When this is all over, please be sure and come back to tell us how it all worked out.
I mean, at a guess - and that's all it is on my part - the naughty boy may indeed have been exceeding the speed limit.
But if the cops aren't ready to accept that the onus is on them to properly follow procedure; and indeed appear to be evading their legal responsibility here - then they have no right to expect a judgment against said naughty boy.
Hope we eventually hear the outcome.
The officers are not required, and will not, provide "evidence" as to their training and qualifications i.e proof of course completion or training details. They are simply required to state that they are trained in using whatever device they were using and that been deemed sufficient by the courts.
Same goes for testing of devices and proof they were operating properly. Simply saying they were tested properly is sufficient.
In a classic speeding case, you would be entitled to a copy of the officer's notes and that's just about it.
That should also form part of the minimum of entitled disclosure, should it not?
You were given a copy of it at the roadside. A copy of the ticket original goes to the JP and the original itself goes to ICBC. They are usually mailed on a daily basis.
So, the officer does not have the original to copy and disclose to you. If you require it, chances are that the Violation Ticket Center can furnish it to you.
But at any rate, many months have passed, and I may or may not have it in my possession anymore. My first request for disclosure in the matter was made to the Violation Ticket Center and a reply indicated that they do not retain any of that information. They directed me to contact the officer for disclosure.
No similar explanation was furnished by the officer re: charging document as to where I could go to obtain it.
And so I will still pitch the constitutional question. Worst that can happen is the judge doesn't agree.
How do people that never got a copy of the ticket manage to successfully set up a dispute of it?
Your own negligence in not safeguarding your copy is not a good reason for an argument. Since no one can give you another copy of it, should you wish to touch on document defects it would stand to reason that you should go to some length to insure you keep that document.
If you sent a request to the Violation Ticket Center advising that you require a copy of the original of the violation ticket, I would be very surprised if they did not comply.
If you sent a request for disclosure to the VTC without a specific mention of needing a copy of the original of the violation ticket, I can see that they would reply as you say as they don't get anything from the police other than the original of the ticket. They are not the middleman for disclosure, that is between you and the officer.
I can't see why the officer chose not to respond as the only harm in it that I can see is from not doing so.
When I received a request for disclosure I would respond back with a photocopy of my notes (along with an interpretation as I used my own short notation) and a summary of what I was going to say in direct testimony. When a list of needs was included, I would address them one by one, giving what the case law required and explaining why I was not providing the rest.
Some people were still upset because they did not receive the VIN of the police vehicle that I was using at the time along with all the maintenance documents for it since it was new. Requests have to be reasonable and some connection to the matter has to be established.
I'm not saying that you won't do a good job of your defence or that proper disclosure should not be given, but my experience is most disputants who requested disclosure went to huge lengths to get everything that they thought that they should be entitled to and then failed utterly to use any of it at the trial. Sometimes they stood in court and argued with the JP over their finer points.
Ultimately, you need to break the offence down into it's elements, compare disclosure to those elements to make sure that they are addressed both in the disclosure and at trial. Your aim to show either omissions or weaknesses in the case.
You may also want to be careful how you ask for disclosure as you may telegraph your intent to the officer and help them prepare a stronger case too.
Or maybe I live on a boat and it sank. Or any number of other conceivable reasons. I don't see how the "why" is relevant, considering the charging document is definitely a "friut of the investigation", if not the ripest one on the vine.
Funny story, though: When I went to the court registry to file my Charter argument, I actually received a copy of the ticket after it was done. So that leaves me with not having an ability to examine a user manual for the speed measuring device. And if possible I will throw in 11(a) (not being informed of the specific offense - defective information on ticket) and 11(b) arguments, given that the matter is now adjourned well into the year.
I was careful in my requests to be general enough to be able to say something ought to have been included, but specific enough for the main information I wanted:
The charging document,
The type of device used,
Officer training re: device (specific or general information)
To have a user manual for the device to be made reasonable available for inspection
I think they were all reasonable requests, and I did get most of it.
I cannot see anything on your list that is even close to being unreasonable, nor anything that would be difficult or take a significant amount of time to provide.