TRIAL DEFENCES

Before you take the stand, or instead of testifying, you should consider making any of the following procedural defences if they apply to your situation.

Procedural Defence – Limitation Period

The charging act (the law you violated) may contain limitation periods after which you cannot be charged. For example the Provincial Offences Act (POA) s.76(1) has a six month limit which affects the Highway Traffic Act. You can't be charged beyond six months.

However you should be careful. Some legislation has very long limitation periods. For example the Compulsory Automobile Insurance Act, s.2(10) has a three year limitation. You can be charged up to three years after a police officer has stopped you and asked for proof of insurance.

Procedural Defence - Improper Service

Under Part 1 of the POA you must be given notice of the offence within 30 days (POA s.3(3)). For example, red light camera tickets must be mailed within 23 days to allow for seven days postal delivery. If you don't get the ticket within 30 days you can make a procedural argument that the ticket is irregular.

Procedural Defence - Dividing counts

For multiple charges, the information (your ticket) should set out each offence in separate counts (called dividing counts, POA s.33). For example, if you are charged with speeding and drunk driving, they should be separate charges. If not, the ticket is irregular and could be quashed.

Under section 38 of the POA ("joinder and severance") you can have the charges tried together or separately. The same is true if more than one person is charged. You can have a separate trial or be tried with the other person.

This is important. For example, if you are charged with drag racing, likely you and the driver of another vehicle are charged. If you are tried together, each defendant is a non-compellable witness, POA s.46(5). The prosecution cannot force either one of you to testify against each other. If you are tried separately, then they can subpoena the other person to testify against you.

On the other hand, you may want separate trials instead. Suppose you are facing speeding and drunk driving charges. If there is a danger the justice will lump together distinct issues and find you guilty of everything , than it is in your interest to be tried separately. Also you may wish to testify about one charge (speeding) but not the other (drunk driving). You don't want to be exposed to cross-examination on the drunk driving charge. Having the charges tried separately will limit your exposure.

Procedural Defence – Abuse of Process

The court may stop a prosecution if the Crown has abused the process. Examples include successive prosecutions for the same offence; entrapment where the authorities induce the commission of an offence; or delay the laying of charges deliberately to impair your ability to prepare an adequate defence. If any of these things occurred, may a motion to stay the prosecution and explain why.