Just lost another 30 seconds of my life reading BS about quoting acts blah blah blah.
The courts do not accept fines that are not on their lists even thou it is printed in the HTA. We tried specifically that a few years ago when the fine per km was changed, issuing the speed fines as indicated in the HTA. Guess how far that got? our ink was not even dry and it was being quashed for improper fine!
Set fines are defined in s. 1(1) of the Provincial Offences Act,
Set fines also appear in sections 6, 7, 8, 9 and 9.1 of the POA. These sections deal with the resolution of Part I charges, without a trial.
The authority to define the amount of a set fine is contained in the Courts of Justice Act
under Regulation 200.
At trial, the penalty provision in the offence-creating enactment or the general penalty provision in the Provincial Offences Act applies, and not the set fine. Once a defendant files a notice of intention to appear at trial, even if the defendant subsequently appears in court and enters a plea of guilty, the penalties in the offence-creating enactment apply, i.e. the HTA
When sections 5, 5.1, 6, 7, 8, 9 and 9.1 are considered, it is clear that the Ontario Parliament intentionally defined the idea of a set fine within narrow limits. By virtue of the deliberate wording, a set fine exists within ss. 6, 7, 8, 9 and 9.1 (non-trial sections) but does not exist within s. 5 and 5.1, (trial sections) of the POA.
Thus, a cop, Crown or court has no lawful authority to create or read-in a set fine in s. 5 and 5.1.
An incorrect set fine puts the court in the position of having to define its amount. As set out by the Legislature in Regulation 200 subrule 6; that is solely within the purview of the Chief Justice of the Ontario Court of Justice.
There is additional legislative indication a set fine does not exist at trial.
Section 3(2)(b) of the POA allows a provincial offences officer to serve a summons on a defendant rather than an ‘offence notice indicating the set fine for the offence’, as described in s. 3(1)(a). The defendant must proceed to trial under s. 5 or 5.1 when served with a summons. If the defendant does not appear then the provisions of s. 54 prevail.
The summons does not contain a set fine, therefore none of the non-trial options under s. 6, 7, 8, 9 or 9.1 may be used. There is nothing in the legislation that indicates the Legislature intended to create a double standard where a trial resulting from a charge proceeding under s. 3(1)(a) versus one under s. 3(1)(b) could have a different sentencing option to be applied by the court, upon conviction.
The establishment of a set fine for an offence merely allows the defendant to resolve the matter by making a payment out-of-court. It does not affect the defendant’s options under Part I.
By specifying the set fine or less as the penalty, the Act provides a discount for an early guilty plea (section 8), a guilty plea with representations (section 7), failure to respond to an offence notice (section 9), failure to appear at trial (section 9), or a dispute without appearance in court (section 6).
On the other hand, where the defendant elects to have a trial, the general penalty of a fine of not more than $5,000 "except where otherwise expressly provided by law" in section 61 of the POA applies, whether the defendant is convicted after a guilty plea on the trial day, or after a full trial.
It should be noted that the maximum fine specified under s. 128 is $487.50 (50 km over) or $975 in a construction zone when workers are present. However, the fine is limited to $500.00 under section 12(1) of the POA if the proceeding was commenced under Part I of the Act.
It would also be an error in law to apply a set fine as a sentence on any Part I, POA matter where none exists.
There are additional pieces of legislation that the court must consider for sentencing purposes. Section 12(1) of the POA states:
Where the penalty prescribed for an offence includes a fine of more than $500 or imprisonment and a proceeding is commenced under this Part, the provision for fine or imprisonment does not apply and in lieu thereof the offence is punishable by a fine of not more than the maximum fine prescribed for the offence or $500, whichever is the lesser.
The wording of this section defers the sentence to the fines set out in s. 128( of the HTA
rather than the higher Part I maximum of $500.
The other legislation of note is s. 15 of the Regulatory Modernization Act
, 2007. This section allows for the prosecution to make application for a higher fine under certain conditions.
Even when set fines are valid, the principles of sentencing apply and a justice sentencing on a plea of guilty or on conviction at trial has the discretion to reduce the fine sought by the prosecution and may impose a fine that is less than the set fine for the offence.
Courts of Justice Act
Regulation 200. For the purpose of proceedings under Part I or II of the Act, the amount of fine set by the court for an offence is such amount as may be set by the Chief Judge of the Ontario Court (Provincial Division).
Provincial Offences Act
“set fine” means the amount of fine set by the Chief Justice of the Ontario Court of Justice for an offence for the purpose of proceedings commenced under Part I or II.
Intention to appear
5. (1) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by so indicating on the offence notice and delivering the notice to the court office specified in it. 1993, c. 31, s. 1 (2).
Notice of trial
(2) Where an offence notice is received under subsection (1), the clerk of the court shall, as soon as is practicable, give notice to the defendant and prosecutor of the time and place of the trial. R.S.O. 1990, c. P.33, s. 5 (2).
Attendance to file notice, prescribed parts of Ontario
5.1 (1) This section applies in such parts of Ontario as are designated by regulation. 1993, c. 31, s. 1 (3).
s. 5 inapplicable
(2) Section 5 does not apply where this section applies. 1993, c. 31, s. 1 (3).
(3) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by attending in person or by representative at the court office specified in the offence notice at the time or times specified in the offence notice and filing a notice of intention to appear with the clerk of the court. 1993, c. 31, s. 1 (3); 2006, c. 21, Sched. C, s. 131 (3).
Form of notice
(4) A notice of intention to appear shall be in the form prescribed under section 13. 1993, c. 31, s. 1 (3).
(5) If a defendant files a notice of intention to appear under subsection (3), the clerk of the court shall inform the defendant and the prosecutor of the time and place of the trial. 1993, c. 31, s. 1 (3).
Dispute without appearance, prescribed parts of Ontario
6. (1) Where an offence notice is served on a defendant whose address as shown on the certificate of offence is outside the county or district in which the office of the court specified in the notice is situate, and the defendant wishes to dispute the charge but does not wish to attend or be represented at a trial, the defendant may do so by signifying that intention on the offence notice and delivering the offence notice to the office of the court specified in the notice together with a written dispute setting out with reasonable particularity the defendant’s dispute and any facts upon which the defendant relies.
(2) Where an offence notice is delivered under subsection (1), a justice shall, in the absence of the defendant, consider the dispute and,
(a) where the dispute raises an issue that may constitute a defence, direct a hearing; or
(b) where the dispute does not raise an issue that may constitute a defence, convict the defendant and impose the set fine.
(3) Where the justice directs a hearing under subsection (2), the court shall hold the hearing and shall, in the absence of the defendant, consider the evidence in the light of the issues raised in the dispute, and acquit the defendant or convict the defendant and impose the set fine or such lesser fine as is permitted by law.
Application of section
(4) This section applies in such part or parts of Ontario as are prescribed by the regulations. R.S.O. 1990, c. P.33, s. 6.
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. R.S.O. 1990, c. P.33, s. 7.
Payment out of court
8. (1) Where an offence notice is served on a defendant who does not wish to dispute the charge, the defendant may sign the plea of guilty on the offence notice and deliver the offence notice and amount of the set fine to the office of the court specified in the notice.
(2) Acceptance by the court office of payment under subsection (1) constitutes a plea of guilty whether or not the plea is signed and endorsement of payment on the certificate of offence constitutes the conviction and imposition of a fine in the amount of the set fine for the offence. R.S.O. 1990, c. P.33, s. 8.
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.
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).
Regulatory Modernization Act
15. (1) This section applies when a person who is convicted of an offence has previously been convicted of an offence under the same or another Act. 2007, c. 4, s. 15 (1).
(2) The previous conviction may have occurred at any time, including before the day this Act came into force. 2007, c. 4, s. 15 (2).
Severity of penalty
(3) Where the prosecutor is of the opinion that the previous conviction is relevant to the determination of the appropriate penalty for the current conviction, he or she may request that the court consider the previous conviction to be an aggravating factor. 2007, c. 4, s. 15 (3).
Response of court
(4) Where a court receives a request under subsection (3), the court shall, on imposing the penalty,
(a) indicate whether it is imposing a more severe penalty having regard to the previous conviction; and
(b) if the court decides that the previous conviction does not justify a more severe penalty, give reasons for that decision. 2007, c. 4, s. 15 (4).
Other factors still relevant
(5) Nothing in this section shall be interpreted as limiting any factor, submission or inquiry as to penalty the court is otherwise permitted or required to take into account or make, as the case may be
http://www.canlii.org/en/on/oncj/doc/20 ... cj391.html