Q&A - Charter Issues in Traffic Court

Q&A ImageMy question is whether a Justice of Peace can deny a Charter argument that has already been heard and dismissed by a Provincial Judge and then referred back to Traffic court.

I made a formal request for disclosure for an officer's notes, information about the laser speed monitoring device used (model, manufacturer, serial number and owners manual) and proof that he had completed a training course/certificate in speed estimation and operating such devices.

At my first hearing, the officer stated he never received my request for disclosure. I brought up a lack of disclosure Charter 7 violation and was sent off to make a Charter argument in front of a provincial judge 4 months later. I never received any disclosure from the Crown or officer prior to the Charter argument. The case was unfortunately dismissed. The Judge felt the constable should be provided yet another opportunity to provide disclosure and referred the case back to Traffic court with a note on file stating I was seeking disclosure in the case.

Prior to my second hearing in Traffic Court, I sent a second formal request for disclosure to the constable with the new hearing date. Two weeks before the trial, I followed up with a phone call to the constable because I never received anything in the mail. I never heard back. On the date of the trial, the constable brought his notes and pulled me out of court to show them to me and negotiate a deal with a lower fine. I refused because I felt strongly about my case, since I had not received full disclosure on the day of the trial. The police officer said he didn't have any information about the laser detector used, nor did he have the serial number, manufacturer or copy of the manual. He also didn't have his certificate of training. He said he wasn't required to provide any of that information even though I had requested it. When I brought this up to the judge, making the same Charter argument for lack of disclosure and this time an untimely disclosure of the officer's notes, the justice of peace didn't seem to care because my Charter arguments had previously been dismissed in court. However, there was no remedy provided for the lack of disclosure. Only after an intense debate, did the judge grant an adjournment so I could review the notes the officer did provide on the same day.

I'm somewhat frustrated by the whole process. I know there is no evidence other than the officer's testimony which will be based entirely on his notes from 1 and 1/2 years ago. It makes no sense that my request for disclosure has no relevance to the case, especially since there was instruction from the provincial judge at the Charter argument to provide disclosure and it is a speeding allegation using a speed monitoring device.

The Judge seized the case meaning it will be referred back to him again. I don't know why this happened, but since my charter arguments are being denied by this particular judge, it makes my case even more difficult. I’m not really sure what I should do.  I have to make a 4th appearance in court (upcoming 3rd appearance in Traffic Court, 1 Charter Argument appearance) and have very little information to go on from here .

Do I have the right to launch another Charter argument, since the police officer has acknowledged receipt of disclosure request, but did not provide full disclosure in Traffic Court. Why is it so difficult to get basic information regarding the speed monitoring device and the qualifications of the officer?  Should this information not be transparent if we ask for it before the hearing?  I feel this information is relevent and would help me prepare a stonger defense.  I’d appreciate any comments, suggestions or advice.


Disclosure Problems

It is unfortunate that you are having so much trouble. The requests that you have made are reasonable ones, save for a copy of the manual for the speed measuring device. If someone asked that of me in disclosure they would be invited to attend the detachment and review our only copy there. The reasoning behind this was that copyright rules prevented the police from copying the full manual and providing the copy to you. The make and model of the device is important, the serial number less so. Odd that the officer could not tell you the make and model in court. It is important evidence if inquired about by the accused. Finally, it may depend on the police force involved, but I had a certificate from each of the speed measurement training courses that I attended.

Requests for disclosure do not have to be sent requiring proof of delivery, but that can be of some assistance when you argue in court that you made the request and the police received it.

Your refusal to make a deal is appropriate in the circumstances. As to the evidence, for a speeding ticket it is normal that the only written information is the officer's notes made at the time of the incident. The notes that I made were often cryptic shorthand that I understood, which is why I provided a copy of it along with a short summary of what it meant.

I understand the provincial court judge's decision. Knowing that it was possible that the officer did not receive your first request for disclosure he decided that a second opportunity should be given. Since no disclosure was given to you at that point, you would now have an argument to request dismissal of the ticket as a remedy for the officer's lack of full disclosure after two opportunities.

I am going to guess that at your second appearance in traffic court, you entered a plea of not guilty and then received an adjournment to speak with the officer. This would require the trial to continue in front of that justice. If you had not entered a plea, the justice would not have been seized with the matter.

It also sounds like this has dragged past 18 months, through no fault of your own. You have a second Charter issue now, that of right to a trial within a reasonable length of time. There are three cases on trial delay in this site search that would be of use to you.

If you go back to your original trial notice, you will find advice printed on it telling you what must be done if you intend to make a Charter argument. Do not wait until your next trial date to do this, follow that advice now. If you do not have the original form, contact the court registry where the trial is being held and ask them for guidance.

You may also wish to take advantage of the Lawyer Referral service to guide you.

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