My experience with a s.135 POA appeal

First, the short strokes for those that like to skim:

• 1. Got a ticket for Fail to Have Insurance Card

  2. Total payable for that should be $65 ($50 set fine + $10 victim fine s/c + $5 costs for servicing of ticket), it was written as $60

  3. Seeing this, I deliberately defaulted on the ticket by not responding

  4. JP still entered a conviction (wrongly), I guess not noticing the discrepancy

  5. After receiving a Conviction Notice, paid the fine and then filed a s.135 appeal

  6. Conviction and sentence overturned on appeal after prosecutor conceded the appeal after reading the caselaw I brought

The Long Story

The background is that I received a ticket for Fail to Have Insurance Card, contrary to the Compulsory Automobile Insurance Act (CAIA), s. 3(1). The set fine for that offence is $50, which means that the total payable should be $65, as it would include a $10 victim fine surcharge (VFS) and $5 in costs for the service of the ticket. The set fine was correctly filled out on the ticket, but the total payable was not, instead showing $60.

Spotting this right away, I opted to default on the ticket and let it go to the fail-to-respond (FTR) docket, confident that the Justice of the Peace (JP) would spot the irregularity as well, and quash the ticket. Now the Provincial Offences Act (POA) states that you only have 15 days in which to respond, before it goes on the FTR docket. But in practice, this is more like 30-45 days. In my case, my ticket was put before the JP 46 days after the offence date. Instead of spotting the problem with the ticket, the JP instead signed off on it, claiming it was "complete and regular on its face", and entered a conviction via s.9(1) of the POA.

A week later, I received a conviction notice, with the fine now increased to $65 from $60 (i.e. for the added cost of being convicted under section 9 of the Act, as per Ontario Regulation 945 – R.R.O. 945 as amended). I then went to the main courthouse to get an appeal form, and some info from the clerk there, who was helpful. There are a variety of forms you can fill out, such as one that lets you not have to pay the fine while your appeal is pending, etc. Those might require a separate court appearance, so I just did the simple thing and paid the fine (using the conviction notice, and not my original ticket) and got a receipt, and then filled out the Notice of Appeal form, and submitted it with the clerk (along with the proof of fine payment). If anyone is going to do such an appeal, you just have to make sure that you tick off the boxes that say you are appealing both the conviction AND the sentence, or else youll either have a conviction still on your record, or you wont get your money back.

I thought perhaps they would give a court date at that time (someone else here had it happen that way), but the clerk said they would send out a notice later for when the appeal date would be. They did inform me that they always scheduled their POA appeals for the first Tuesday in each month, so that narrowed it down considerably. As it turned out, my appeal date was almost exactly 4 months after I submitted my Notice of Appeal.

So on the day of, it was the same sort of thing as regular trials … you check in, etc. The prosecutor was giving somewhat of a hard time to people. When I told him what Id be arguing, he brought up R. v. Wilson (2005), to which I showed the passage in City of London v. Young (2008) that explicitly rejected the reasoning in that line of caselaw, and instead backed the R. v. Khoshael line of caselaw. He then asked me if I had the transcripts from my case, to which I said I didnt think there would be any, seeing as it was a s.9 judgment. I still do not know whether there would be any transcripts (would the JP be recording themselves saying "yes, everything looks good with this one … conviction will follow", etc.?), it would seem to me a huge waste of time if such a transcript were needed. Even if it was needed, I have no doubt that the appeals judge wouldve adjourned to allow me to get it.

I was absolutely stunned that neither the prosecutor or the justice had even heard of the London v. Young decision by the Court of Appeal. I wouldve thought that such a landmark case wouldve been included in some sort of bulletin update to them at the time of its release in 2008. Guess not. For awhile there I was certain that the prosecutor was just putting me on, pretending not to know about that caselaw.

Anyways, after presenting my case, saying that the quantum of fine (either the set fine or total payable, which effectively becomes "the fine" under the POA) has to be accurate when youre dealing with a s.9 situation, the prosecutor tried to argue that those cases were only dealing with incorrect set fines, and not incorrect total payables, etc. The justice, though, was no doubt leaning my way. I had only brought one copy of each caselaw, so the court recessed for 15 mins to allow the prosecutor and judge to quickly read through the caselaws. When court was reconvened, the prosecutor conceded the appeal, and so it was registered as an "appeal granted on consent". I think everyone in there could tell that if he hadn't conceded, the judge would've ruled in my favour. Anyways, the judge then gave me a copy of his order. Now I wait for my refund.

All in all, a good experience. The judge was very fair throughout with everyone, and took the time necessary to get through each case. This somewhat sucked for me, as I was one of the last ones called. The only thing that helped in that regard was that the law clerk, one of the prosecutors, and the officer on duty were all quite beautiful women, each in their own way. That always helps.

p.s. I had in all about seven different decisions, but the most important were no doubt London (City) v. Young, 2008 ONCA 429 and R. v. Monahan et al., 2009 ONCJ 298.

One word: NICE.

Good job on the appeal.

I too have a date set up with the appeals court for the same fatal error. Could you please tell me where you got the copies of the case law(s)?

cheers

Excellent!

nevermind, I see that you listed it at the bottom of your post. Thanks!

Is this the only way to deal with an invalid ticket? Don't respond and appeal if charged?

Probably the safest way. If you go to trial, the Crown can try and amend the certificate to get rid of the errors.

I'm now in this situation. I've been convicted after doing noting. I'm about to go to Markham st to reopen the case. Should I explain to the JP what's up or just request a re-opening? Can they ammend the ticket if I bring up the error or could he quash the ticket and cancel the conviction right there?

R. ex rel. City of Toronto v. Arcos-Nava, 2012 ONCJ 773 (CanLII)

Looks like it doesn't work anymore..

azdjedi wrote:

I'm now in this situation. I've been convicted after doing noting. I'm about to go to Markham st to reopen the case. Should I explain to the JP what's up or just request a re-opening? Can they ammend the ticket if I bring up the error or could he quash the ticket and cancel the conviction right there?

If you are using the London v. Young Strategy then you should not be applying for a reopening of your case but should be filing an appeal. The two are very different things.

Hollywood02 wrote:

R. ex rel. City of Toronto v. Arcos-Nava, 2012 ONCJ 773 (CanLII)

Looks like it doesn't work anymore..

It still works if the set fine is incorrect, however thanks to this ruling there is now conflicting case law on whether or not it will work if only the total payable is wrong. Hopefully someone will take the matter to the Ontario Court of Appeal so that we can get some clarity.

Thanks Daggx. I filed for re-opening (saying that the conviction was sent to the wrong address...which it was because I moved) but the JP denied the request. So when I go back to the court house I will ask for an appeal sheet.

Is it still worth going through all this trouble now that Hollywood has pointed out it doesn't work anymore? My fine amount was correct, it was only the total payable that was off by a few dollars. Also, if I appeal, can I have 2 positions?

1) The ticket is incorrect on its face. And if that fails...

2) Use the evidence of the actual event. Namely, that I think the cop pulled over the wrong car (me).