The Docket – Disclosure and Counsel Pre-Trial By Jeff D. Bogaerts

Jeff BogaertsSo far you have had your first (not-guilty) court appearance, requested Disclosure in court, put it on the record, requested disclosure from the prosecution and have either filled out a form requesting Disclosure or sent a letter to the prosecutor. Requesting disclosure is now done.

During the first appearance, you set another court date where issues are To Be Spoken To. For example, have you received Disclosure or are you still waiting. Well, if you are still waiting there is not much you can do until you get the evidence from the prosecution that supports the offence that you have been charged with. If you have not received Disclosure, then state on the record that you have not received it yet and when can you expect to receive it? The JP may ask the prosecution what is causing the delay and how much longer will it be before the Disclosure is available? Next is to set a date, To Be Spoken To, and return on that date. This concludes your appearance before the court, say thank-you your Worship or your Honour and leave the court.

From the first day that you received the Summons To Appear, you should have been researching everything you can about the charge. If it is a municipal by-law then download a copy of the by-law and read it inside out and understand it. If the by-law uses a Provincial Act for the authority to pass the by-law then read and understand the act. I will not go into detail here because we are now speaking to evidence, research, trial preparation, case law etc.

We will take the position that you have received disclosure before your next court appearance. Open the disclosure package and review the contents. The charges, the Summons To Appear, the “Information”, which is a document that was sworn to by the person making the charges against you (e.g. by-law officer, building inspector), a copy of the by-law, statements made by witnesses, the notes from the by-law officer, other documents that will be used at trial by the prosecution and so on.

There are questions to be asked and the evidence provided should be checked for accuracy, e.g. did everything that occurred, occur on the dates identified, if not, this is an issue. Is the charge the correct charge, for example, were you charged with failing to stop at a stop sign, or did you stop at the stop sign but in the wrong place, yes that is a charge. What if your property is zoned on your tax assessment as agricultural but zoned in the planning office as residential? The point is you are looking for accuracy and flaws in the evidence. This may not be easy, but keep going as it will educate you to what you are up against.

The Counsel Pre-Trial, an off the record discussion with the prosecution to determine issues. For example, are they offering you a plea deal? Are you prepared to counter offer? You can say, I will think about it and get back to you. However, if a plea deal is not what you want, then where do you go from here?

First, you never offer any evidence, make any statements or admissions in any way. This is where your legal representative comes into the picture. However, if you are self-represented, then know you are not required to give the prosecution anything or answer questions as evidence towards the case. They are required to prove their case against you. There are other discussions around this but not for what we are discussing here. We will get into this later.

While doing your research and review of the disclosure, you find that there is evidence missing that you feel should be in the disclosure package, ask for it. You may be told by the prosecutor, I will provide it or no, I will not provide it. You have the right to ask for it and if they say no, why not. If you are satisfied with the disclosure package content, then you will move on to create your defence strategy and prepare for the next phase of the case, the Judicial Pre-Trial.

However, if you want more disclosure and you are not going to get it, you will have to make an application before the court for a Motion for Disclosure. This is where you bring your argument for missing disclosure into court and argue before the justice as to why you should have it. The justice will decide whether you will receive it or not. This too is another article in your travels through the court system. If you need to make a Motion for Disclosure, start the paperwork necessary to file the motion in the court. At your next scheduled appearance, you will be required to inform the court that you have received disclosure but in your opinion not full disclosure and a motion is being made. The justice will want to set another date to return to court for a status on the motion or the outcome of the motion decision. This process of obtaining disclosure can become difficult and cause a problem within the court system. You do not want the justice to think that there is a deliberate delay of proceedings as this will not go well for you. Make sure that what you are asking for in disclosure is relevant to the charge and if you do then stand your ground.

If you have received all the disclosure and you had your CPT and there are no issues so far, then the next step is the Judicial Pre-Trial, or JPT. Some courts will require a JPT only when the trial will exceed a half day or full day of trial. If a JPT is required, then call the court and ask for the trial coordinator. The trial coordinator will give you a list of dates when JPTs are being heard. Get dates at least over the next 3 months, call the prosecutor and determine which dates they are available. Call the trial coordinator back and book the agreed to date.

At the next court appearance, you will be able to tell the court that a JPT has been scheduled. Some courts will want to schedule a return court date sometime after your JPT and some courts will book the next court date during the JPT.

If you are asked to waive “11b” at any time you must be aware of what this means. You need to educate yourself on Section 11(b) of the Charter of Rights and Freedoms before you decide to waive your rights. You can waive your rights for your entire case, parts of your case of not at all. Be Aware.

The next article will deal with the Judicial Pre-Trial. This link is to Ontario court forms.