Introduction to Disclosure and Stays

Disclosure is when you request to see all the evidence the prosecutor has. It involves simply sending a letter or fax to the prosecutor saying, "Show me everything."

A stay means "stop". When you request a stay, you are requesting that the justice stop the trial. The typical argument is that the trial would violate your rights guaranteed under the Canadian Charter of Rights and Freedoms. In other words, stop the trial because proceeding would be unfair to you.

Thorough disclosure requests and applications for stays are the most effective ways to win your case before it goes to trial. Yet very few people do it.

Most defendants in provincial court don't hire a lawyer/paralegal (and they don't need to). But they also have no idea what they are doing. They're praying the cop won't show up or think all they have to do is explain their side of the story.

They are lambs heading for the slaughter and prosecutors love it. It keeps their conviction stats up and they look good to their boss.

You on the other hand, are going to be the one-off. You're going to be the case that does everything right, that makes the prosecutor work for a conviction.

By doing so, you force them to think hard about proceeding. If they didn't do everything right, and they know that you know, they are less likely to go to trial.

Prosecutor's are not intimidated easily. However, they recognize that there can be significant risk if a justice decides against them. It can lead to an appeal or a binding decision that affects every municipality in Ontario. They do not want to bet the farm just to convict you.

Your approach, especially with disclosure requests and stay applications, is to position your case to be not worth the risk for the prosecutor. It will be easier on them if they withdraw your charge. You must strike at the prosecutor heart. You must discourage any step forward.

Imagine if everyone did what you are about to do, each case would become complicated and involved. The prosecutor couldn't possibly complete her case load for that day's court session. And she does not want to be embarrassed before the justice nor does she want all the other people in court to find out what you are doing. It will be much easier for her to withdraw the charge and make you go away.[1]

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1. An excellent example of this strategy can be found in " Staffing Lack Could Benefit Ticket Holders" (November 29, 2004, The Thunderbay Source), in which the Thunder Bay City Solicitor complains that traffic tickets will have to be dismissed unless more staff are hired to keep up with requests for evidence.