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Before going to court

So finally the court notice has arrived in your mail. Before you start doing anything, you should change your court date. There are two reasons. First, I'm not afraid to tell you right upfront that, most traffic cases are won by dismissal due to no-show of the police officer. If you change your court date, you increase your chance that the cop will not show up. The initial court date that you get assigned is the cop's court appearance day. All of his tickets written in the past month or so will get to be dealt with in that court day, so he WILL show up. If you change it to some odd day, it might conflict with his vacation, or he might be on course, or he just simply forgets, you'll never know. For cases where multiple officers are involved, changing a court date means totally messing up their schedule. It is hard enough to co-ordinate two or three officers to show up on the same day at the same time, while trying to stay within the "reasonable" time limit. By changing it, your chance of one of them not showing up is much greater, or you will get a court date which is way beyond reasonable delay. They probably got you easy with the multiple officer speed trap, but this is how you use it to their detriment!

The second reason is, if your court date falls on the "sensitive period" of your insurance renewal date, you should move it to some other time. Remember I said you should change insurance company the month after you renew your plate stickers? In case you are convicted, you want to make sure that the conviction won't successfully make it to your insurance record. So plan your court date carefully.

When you receive your new court date, you'd better start preparing your case seriously. Go to your local library and find information about the specifics of your court. If you have time, you may borrow some law books on the topic of traffic offences. There you will find a lot more information and previous case laws, but the shortcoming to these books is that they are written for lawyers. You may find them containing plenty of law jargons. However, with some background knowledge after reading this page, you will find these books very valuable to help you fight your ticket. The best chance of finding these law books is from a university library, especially a university with a law school. You might have very little luck in a local or municipal library. Here are some very good books to read:

The reason why you should read on some of the law books is that these contain a gold mine of information. You may have noticed that the actual official law book, the Highway Traffic Act, is very vague in a lot of respects. For example, it doesn't say anything about using radar to detect speed. There are no written laws which says how a police officer should be trained in order to be a qualified radar operator. These laws are established, through a rather "non-standard" way, by previous relevant cases. These laws are called "case laws". They are essentially decisions made by Judges or Justices in the past, which will be referenced by later court cases of the same nature. The above two suggested books contain a lot of those relevant case laws, which will be very useful for your defence.

The next thing to do is to file a motion to the provincial prosecutor's office to request a disclosure of the prosecution's evidence. As the ancient Chinese saying goes, "Victory comes from the mutual knowledge between yourself and your rival." You have every right to see what the prosecution has against you. If you had made statements to the police officer during a citation, and he had written them down, you have the right to see them. If you were involved in a collision, and some witnesses had provided statements to the police, you also have the right to see them. So it is a good idea to remain silent and not say anything to the police when you are pulled over. He won't have much to write down and it can only help you. Do this well in advance to allow yourself ample time to prepare your case.

When you request a disclosure, be very specific of what you need. Just saying "please send me your evidence that you will be relying upon" will result in a lot of important information missing from the disclosure. If the prosecutor receives something like this, the most they would do is make a copy of the ticket (if you are lucky you may get both sides of the officer's copy) and send it to you, which you may already have. You should be very specific. Here is an example:

  1. Both sides of the officer's copy of the ticket
  2. Any statements of the accused made to the officer
  3. Any statements of witnesses
Now even these are not enough. Since radar (or laser) was likely used in the citation, you have the right to know if the radar unit was tested and operated properly according to the police agency's own regulations. To find out more about the radar (or laser) unit, you have to make a public record request, or discovery, by citing the Freedom of Information Act (Ontario), sections 10 and 11, to get the information you want. Here is an example of the things you might need:
  1. The make, model, and serial number of the radar/laser unit, and its owner's manual
  2. The officer's training record specific to the said radar/laser unit
  3. Any repair history of the unit
  4. Records of any calibration equipment such as tuning forks (not applicable to laser)
  5. Official procedure for radar/laser equipment testing and operator training standards
Write the request and send it to the police agency which you believe the citing officer belongs. For example if you were pulled over on Highway 401, an obvious candidate is the OPP. Find the closest detachment from where you were cited, and send your request to that detachment. Same as the case in requesting disclosure, you should do this well in advance to allow yourself lots of time to prepare for the trial. Be polite when you send the request, even though you might be angry because the officer was rude. If you nearly ran him down when he was trying to wave you over, of course he would be unhappy. However this is not the time to lodge a complaint no matter how right you think you are. On the other hand, be prepared to get intimidated in the process, since so few people fight their tickets, and among those who fight, a scarce number of them actually ask the police agency to provide them with information. I am not surprised if a lot of police departments have very sloppy records, or do a very poor job of organizing them. If a piece of record isn't provided, demand further explanation. It could be the record is lost, they don't keep such records, or they refuse to give it to you. Be persistent if they refuse. Whatever the excuse is, document it. If they say they never calibrate their tuning forks, have someone with authority sign an affidavit* certifying this fact. No fact is unimportant when it comes to trial time.

*affidavit: a written statement given under oath.

Two important things you should remember when you send your requests for disclosure and/or discovery:

First, make sure you send them by registered mail. This way they cannot claim that they have never received it because someone must sign for it. The major difference between disclosure requests and public records requests is the court may dismiss the charge when the prosecution fails to provide you with complete disclosure. If the police agency fails to give you the records you requested, the court won't dismiss the charge on that grounds. In other words, public record requests are separate from the trial.

If the prosecution fails to provide you with disclosure, or the disclosure is incomplete, you can send a second motion requesting the missing information. If it also fails after the second attempt you should bring out this issue to the justice of the peace on the day of the trial, and move for a dismissal due to a lack of disclosure. Remember to bring your receipt from the post office.

Second, you probably may not want to put your phone number on the letters. The reason is, if the prosecution refuse to provide you with disclosure for whatever excuse, they cannot call you, but instead they have to reply your letter through the mail. This way you have written proof that your request was refused. If you just talked on the phone, they can deny all they want. I have personally received such written replies from the prosecution that "disclosure is never requested from the courts" (!?) First I sent it to the prosecutor's office, not where the court house is, and second, whether it is the court or the prosecutor, they have responsibility to provide me with disclosure. With that kind of blatant refusal, you know what would happen at the trial.

Sample letters for your convenience:
Disclosure request
Public records request
just replace the red letters with your information! It's that easy!

When you receive the disclosure, carefully examine the officer's notes and see what he has written down. You might have a hard time reading his hand writing, as this is not intended for anyone but himself to read. If you didn't make a big mess when he pulled you over, he is not likely to write much down. Prepare your questions for cross-examination of the cop, and ask a friend to practise it with you a few times. If you have time, attend some court sessions as a spectator to see how proceedings work.

(See Appendix B on how to prepare for the trial)

What if you have waited for a very long time but never receive the court date? Or what if your trial date is scheduled months away from the date you were cited? This is very good for you. Under the Canadian Charter of Rights and Freedoms, ANY PERSON CHARGED WITH AN OFFENCE HAS THE RIGHT TO BE TRIED WITHIN A REASONABLE TIME. No matter what, you are in a very good position indeed. Although there is no absolute time limit of the delay of your trial, the court has violated your right if you are scheduled more than 8 months away. That explains why you have to fight every traffic ticket in order to jack up the cases the courts have to handle. If everything is so backed up, all motorists are looking at a very bright future. A news report on November 26, 1997 by The Ottawa Sun will definitely give you a much needed encouragement. Click here to see the news report and my comment.

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