Method 2 - The Friendly Fax

It is tempting to label this the "easy way" to file your stay application. However you will face considerable difficulty in court unless the justice and/or prosecutor is knowledgeable about the law. Your chances of getting a competent hearing are less than 20% so you will be challenged as to whether you filed the paperwork properly.

Fax Everything

This method does not require the affidavit. Simply fax the Form 4F (and factum if you have one) to the Attorneys General of Ontario and Canada. Their fax numbers are on the form. Also fax the document(s) to the prosecutor's office.

That's it. You're done. Make sure you keep fax receipts of everything.

That sounded too easy. It was. The nasty part happens at trial.

Pre-Trial Motion

At trial, at the arraignment when your charge is read out loud by the clerk of the court, you indicate that you have a pre-trial motion (how and when to do this is covered in Step 5).

The justice will then give you a nasty look and reach for her paperwork. She will shuffle through it looking for the motion and an affidavit. She won't find one because you didn't file it with the court.

She will then state that there is no motion before the court. Expect the prosecutor to pipe in with similar objections including the fact that he did not receive any fax (because he didn't check the inbox in his office). Be patient. Let them get it all out. Wait till they have finished raising all their objections and look to you for a response.

Your turn. You must be extremely polite. This is important because you are pointing out to the justice that she doesn't know the rules of her court. The argument you're going to make was covered under Learn the Rules.

State that a stay application is governed by section 109 of the Courts of Justice Act. This section requires 15 days notification to be given to the Attorneys General of Ontario and Canada. You have done this and you have the fax receipts to prove it.

You also have faxed the prosecutor and have the receipt to prove it. In other words, all the parties who would have any issue with the application have been notified well in advance and as required by the Act.

You then point out that section 7(7) of Regulation 200 of the Courts of Justice Act allows for a motion to be heard without notice:

(7) An application or motion may be heard without notice,
(b) where, having regard to the subject-matter or the circumstances of the application or motion, it would not be unjust to hear the application or motion without notice.

If the justice mentions that there is no affidavit of service reply that you will be happy to swear before the court that you did fax the forms.

She will then ask the prosecutor to look over your fax receipts to see if there is any issue with it. This should be enough to allow the motion.

Make sure you bring extra copies of your documents to provide to the justice and the prosecutor.

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