This letter is being sent to formally object to the October 1, 2010 hearing date of Case No. WSP XY0000000 as permitted under IRLJ 2.6(d). IRLJ 2.6(d) states:
(d) Objection to Hearing Date. A defendant who objects to the hearing date set by the court upon the ground that it is not within the time limits prescribed by this rule shall file with the court and serve upon the prosecuting authority a written motion for a speedy hearing date within 10 days after the notice of hearing is mailed or otherwise given to the defendant. Failure of a party, for any reason, to make such a motion shall be a waiver of the objection that a hearing commenced on such a date is not within the time limits prescribed by this rule. The written notice of the hearing date shall contain a copy of IRLJ 2.6(d).
Pursuant to IRLJ 2.6 (2):
The court shall send the defendant written notice of the time, place, and date of the hearing within 21 days of the receipt of the request for a hearing.
The date of the alleged offense was July 24, 2010. To comply with IRLJ 2.4(a) a notice of contest was sent to the court within fifteen (15) days of the alleged infraction date. Acceptance of this notice of contest by the court provides evidence of my compliance with IRLJ 2.4(a). This implies that the notice was received by the court on or before August 8, 2010. Based on the aforementioned requirements of IRLJ 2.6(2), the court should have provided a written notice of the time, place and date of the hearing within 21 days – on or before August 29, 2010; however, the postmark on the Notice of Hearing was dated September 10, 2010 showing that the court was not in compliance with IRLJ 2.6(2).
Pursuant to IRLJ 2.6 (4):
(4) The infraction may be dismissed upon a showing of prejudice if the court does not send a defendant written notice of a hearing within 21 days of receipt of the request for a hearing.
The delay in receiving a Notice of Hearing has caused prejudice as it has provided be inadequate time to prepare a reasonable defence for the alleged offense. In order to adequately defend myself in this allegation, I intended to exercise my right to discovery granted under IRLJ 3.1(b) to review the evidence which the plaintiff plans to present to the court including, but not limited to:
1. A list of the witnesses, if any, the plaintiff intends to call at the hearing.
2. A copy of the citing officer's sworn statement.
3. Calibration and certification log for the SMD used on July 24, 2010 in issuance of citation, if not on file with the court pursuant to IRLJ 6.6(d).
However, IRLJ 3.1(b) requires this request to be served to the prosecutor and filed with the court no less than fourteen (14) days prior to the hearing. As I only received notice of the hearing on September 15, 2010, I was provided only two days in which to exercise my right to discovery. I reside in British Columbia, Canada and therefore it was not logistically possible to meet the fourteen (14) day requirement of IRLJ 3.1(b) as mailing the required request, even on the date of receipt of the hearing notice, would not allow it to be received by the prosecutor before lapse of the fourteen (14) day requirement.
Furthermore, even if the prosecutor honored my request despite violation of the timeframe required under IRLJ 3.1(b), I would be unable to receive the requested documents in a reasonable amount of time for adequate review and defence preparation.
Based on this, I plan to file a motion of dismissal with the court as permitted under IRLJ 2.6(4).