I don't do this stuff for a livng, I do for fun. I used to some labour law and got into the HTA POA stuff when the stunt law was passed. It amazes me how on a first read of any given HTA matter I seem to find major problems and holes in the flawed system. I find it odd that lawyers, JPS and Justices have not found these flaws before.
A few days ago I found this massive offence notice flaw while looking into some matter and just today I found the massive scam going with the dermit points while looking into a speeding ticket issue for someone on here.
So far I've uncovered over 3 billion dollars in bogus fines issued and wasted government employee hours, and maybe as high as 10 billion or more. Not too bad for a part time hobby I'd say.
Anyway, if you get a ticket via offence notice and you do not respond to the ticket whatever, under s. 9, the justice can only convict you if the ticket is complete and regular on its face. If it is not, the the justice shall quash the proceeding.
The justice is restricted to s. 9 (a) and (b) when deciding the matter.
Failure to respond to offence notice
9. (1) Where at least fifteen days have elapsed after the defendant was served with the offence notice and the offence notice has not been delivered in accordance with section 6 or 8 and a plea of guilty has not been accepted under section 7, the defendant shall be deemed to not wish to dispute the charge and a justice shall examine the certificate of offence and,
(a) where the certificate of offence is complete and regular on its face, the justice shall enter a conviction in the defendant’s absence and without a hearing and impose the set fine for the offence; or
(b) where the certificate of offence is not complete and regular on its face, the justice shall quash the proceeding.
Where conviction without proof of by-law
(2) Where a defendant is deemed to not wish to dispute a charge under subsection (1) in respect of an offence under a by-law of a municipality, the justice shall enter a conviction under clause (1) (a) without proof of the by-law that creates the offence if the certificate of offence is complete and regular on its face. R.S.O. 1990, c. P.33, s. 9.
If you sent in a notice to appear and fail to appear, s 9.1 is triggered and the justice is restricted to s. 91(2) and (3) when deciding the issue.
At no time under s. 9 or 9.1 can the court fix any errors on the ticket or offence notice.
Failure to appear at trial
9.1 (1) If a defendant who has given notice of an intention to appear fails to appear at the time and place appointed for the hearing, the defendant shall be deemed not to dispute the charge.
Examination by justice
(2) If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant’s absence and impose the set fine for the offence if the certificate is complete and regular on its face.
(3) The justice shall quash the proceeding if he or she is not able to enter a conviction. 1993, c. 31, s. 1 (3).
If you plead quilty under s. 7 and make representations as to penalty, once against the justice cannot fix any errors on the certificate or offence notice.
Plea of guilty with representations
7. (1) Where an offence notice is served on a defendant who does not wish to dispute the charge but wishes to make submissions as to penalty, including the extension of time for payment, the defendant may attend at the time and place specified in the notice and may appear before a justice sitting in court for the purpose of pleading guilty to the offence and making submissions as to penalty, and the justice may enter a conviction and impose the set fine or such lesser fine as is permitted by law.
Submissions under oath
(2) The justice may require submissions under subsection (1) to be made under oath, orally or by affidavit.
http://www.canlii.org/eliisa/highlight. ... g-200.html
16. A justice shall not quash a proceeding or amend a certificate of offence in respect of a defendant who is appearing before the justice for the purposes of section 7 of the Act.
If you proceed to trial and make the court aware of the errors on the certificate or offence notice, under s. 34, the court can fix any error, or even amend up the charges and you can be convicted provided you were not misled by the amendment or suffer no injustice or prejudice by the amendment.
Amendment of information or certificate
34. (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,
(a) fails to state or states defectively anything that is requisite to charge the offence;
(b) does not negative an exception that should be negatived; or
(c) is in any way defective in substance or in form.
(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.
Variances between charge and evidence
(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to,
(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or
(b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.
Considerations on amendment
(4) The court shall, in considering whether or not an amendment should be made, consider,
(a) the evidence taken on the trial, if any;
(b) the circumstances of the case;
(c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and
(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
Amendment, question of law
(5) The question whether an order to amend an information or certificate should be granted or refused is a question of law. R.S.O. 1990, c. P.33, s. 34 (1-5).
Endorsement of order to amend
(6) An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended. R.S.O. 1990, c. P.33, s. 34 (6); 1993, c. 27, Sched.
The best advice is that in EVERY case issued by a offence notice EVERYONE should simply ignore the ticket and they will win on appeal once convicted.
Conversely, if you proceed to trial, under s. 36, you would request the court quash the certificate because the offence notice is completely invalid. An invalid ticket cannot be fixed by anyone, as it's a printed form made by regulation of the Lieutenant Governor in Council.
However, s. 36 mentions "certificate," and the error is on the offence notice that accompanies the certificate. Thus, the court could refuse to quash the certificate, which is why it's best just to ignore the ticket all together and fight the case on appeal. On appeal you'll win because you were only required to pay the set fine to settle out of court and the offence notice was misleading you by telling you that you had to pay the total payable to settle out of court. And as I mentioned, the total payable includes two additional fines that are not required to be paid to settle out of court.
You choose not to appear in court because the error could've been amended (which you don't want to have happen) or the court could refuse to quash the proceeding as the error is on the offence notice and not on the ceritficate.
If you attend in court to fight the ticket the court WILL say you were not misled and suffered no injustice or prejudice because the out of court set fine settlement is no longer available to you once you proceed to trial, because once you proceed to trial you are subject to the total payable if found guilty.
I would counter however that an accused is required to be issued a valid offence notice. Since the notice is not in compliance with POA s. 8 it is not valid and the accused has suffered a procedural miscarriage of justice.
Motion to quash information or certificate
36. (1) An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.
Grounds for quashing
(2) The court shall not quash an information or certificate unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice.
Therefore, everyone who received a ticket with one of these bogus offence notices and was convicted, is entitled to be fully reimbursed the fine they paid. Plus interest.
We're talking billions of dollars.
So now the province, (that's you and I the taxpayer) will lose billions of dollars (once someone files a class action) plus we spent billions employing cops, crowns, clerks, JPs, justice and judges who wasted all their employment time handling these bogus cases.
This scam is much bigger and more costly than the recent ehealth scam.