Speakers Corner: Disclosure methods for traffic cases need modernizing

Do you defend traffic cases? Are you planning to challenge a parking ticket? If you or your clients drive in the City of Toronto, you may encounter serious inconvenience.  

The City of Toronto has recently included language in its Notices of Trial encouraging defendants to seek information on its web site about how to obtain disclosure.
The web site advises defendants to fill out a Disclosure Request Form and then to fax or mail it to the appropriate City Prosecutors’ Office. 

Rather ominously, however, the web site makes no reference to the numerous time-consuming steps a defendant must take. Acquiring full disclosure in provincial offence matters is frustrating and burdensome, especially for poorer and unrepresented people. It represents a gaping problem in the administration of justice in the City of Toronto today, especially when an easier and far less costly system exists. 

In most provincial offence matters, it is rare for the City Prosecutors’ Office to provide full disclosure after the first request has been served. In my experience, one will usually only get the investigating police officer’s notes the first time around. More disclosure requests must then be made seeking missing documents from the Crown. 

As the prosecution is not obliged under the Provincial Offences Act to send disclosure materials in the mail, defendants are obliged to collect disclosure — often on multiple occasions for the same case — either by attending the courthouse themselves or by paying their representatives extra money to do so. City prosecutors are also wont to say on trial day that it is custom to provide full disclosure only on the day of the trial itself and to seek trial adjournments as a matter of course on account of a lack of preparedness.

Prosecutors also show up to trial knowing the majority of the cases on their docket for the day are lacking sufficient evidence to obtain conviction but also aware that the vast majority of the defendants showing up are either too ignorant or intimidated to do anything about it.  Consequently, I argue that the traffic court system as it currently exists in Toronto represents a systemized violation of all defendants’ rights to full and fair disclosure guaranteed by our constitution, and articulated by the Supreme Court of Canada in R. v. Stinchcombe and R. v. Morin. As a result, most defendants in traffic court feel stymied by a system that they believe is rigged, causing them to lose hope, give up, and agree to plea deals.  

The solution to much of this mess is to make disclosure available online. How difficult can that be? Most disclosure materials in traffic matters involve a combination of handwritten notes, printed police documents, and excerpts from manufacturers’ manuals that can all be easily scanned. Under such a system, Notices of Trial would contain a link to a government web site where accused traffic violators could create a secure and unique online account that  would list their disclosure documents. In this account, the user could view and print all relevant disclosure materials in one convenient location. All relevant materials could be scanned and made available to a defendant within 60 days of the alleged traffic offence. A defendant would then have several months to review and consider his or her disclosure documents before trial, which usually takes at least eight  months after the offence date to schedule. 

Now more than ever, citizens are more comfortable handling their bureaucratic obligations and corresponding with the government online. For parking and minor moving violations under the Highway Traffic Act, the relevant documents will rarely exceed 10 pages. Instead of having to write and make potentially multiple and expensive trips to the courthouse, a defendant would have his or her disclosure material readily available on his or her computer screen.  If a defendant were to believe that his or her online disclosure was not sufficient, the same traditional avenues would still exist to request any additional disclosure.  More useful Charter motions could also be brought before the first trial date, if the prosecution was found not to be providing adequate disclosure to the user’s online account or otherwise.

Defendants would not be obliged to opt into this system. More traditionally minded defendants could continue to seek disclosure via mail or fax. If there was improved disclosure, defendants attending traffic court — the majority of whom are unrepresented — would be better informed both of their options and their likely chances of success. There would be more faith in the justice system as a result and less of a need for spurious trial adjournments. Defendants would also be far less likely to be showing up to court blind and without any evidence, which they overwhelmingly do now.  

The City of Vaughan and other municipal jurisdictions in Ontario allow defendants to view disclosure materials for parking matters on a computer screen in the presence of a screening officer before the commencement of a subsequent formal dispute process with a hearing officer. As such, a similar system for reviewing disclosure online for minor traffic matters already exists in this province. 

It is time for the City of Toronto to get with the 21st century, improve the administration of its traffic court system, save money, and at the same time create more respect for the constitutional rights of its citizens in the process.

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Shane O’Herlihy practises civil litigation and provincial offences law in Toronto. He can be reached at
416-824-5914 or [email protected].