Process of filing form 4F based on 11B, constitutional right

Morteza
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Process of filing form 4F based on 11B, constitutional right

Unread post by Morteza on

Hi,

I have seen recommendations for filing form 4F everywhere when the court date is set beyond 8 to 10 months after the ticket was issued. But if you have been to the courts, you know that there is a strict process how to file and serve the notices, otherwise your argument may not be accepted in the court.

I filed a form 4F (http://fyst.ca/question.htm) 15 days before the court date by:
1- Mailing it through registered mail to "Provincial Prosecutor's Office" and "Ontario Court of Justice" (the ones with the address on the ticket and court notice)
2- Faxing it to "The Attorney General of Ontario"
3- Faxing it to "The Attorney General of Canada"

I had a copy of the form, receipt for registered mail and the fax transactions in the court, but they ask for more. They wanted me to file it with the court personally together with an "Affidavit of service" signed by a "Commissionaire of Oath" 15 days before the court date to even look at it. I got an adjournment to file it correctly.

Hiring a paralegal will cost me $200 plus HST for a ticket that is easily reduced to 10 km over without points at the court bargain, but I want to fight it. I'm on EI and can't afford $200, otherwise I would pay for it. So is there anybody out there who knows how to file 4F exactly. I also need a template for the affidavit of service.

Will appreciate a lot your help and support.


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Radar Identified
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Unread post by Radar Identified on

Affadavit of Service... there are a number of Commissioners of Oath that could help you with that. Not sure where in Toronto you live, but there are plenty in the phone book. Should be able to find what you're looking for with a simple phone call.

The other strategy is to actually serve notice upon the Attorneys-General of Canada and Ontario yourself, not just with fax or registered mail. Make 6 copies of the 11B notice. Serve one copy on the Attorney-General of Canada, getting all stamped in the process; with the five left, go serve the Attorney-General of Ontario, again getting all stamped; with the four left, go to the courthouse and have one for the JP - get it stamped; three remaining - go to the Prosecutor's office and get them stamped, leaving two for you. They will have "received" stamps from the Attorneys-General of Canada and Ontario, the Court, and the Prosecutor's office. Bring the remaining two to court for your trial date. This website requires a bit of digging through but it has all of the info:

http://fightyourtickets.ca/tickets/appl ... oceedings/

Hope that helps...
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


diehard
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Unread post by diehard on

^^^ It's quite a journey... :roll:


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Radar Identified
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Unread post by Radar Identified on

Yes it is, which is why a lot of people would hire a paralegal to do it for them. If you can't - it's a lot of travelling!
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
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Unread post by Radar Identified on

* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


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Unread post by CAROL on

Radar Identified wrote:Affadavit of Service... there are a number of Commissioners of Oath that could help you with that. .... They will have "received" stamps from the Attorneys-General of Canada and Ontario, the Court, and the Prosecutor's office. Bring the remaining two to court for your trial date.
I'm in a very similar situation. Does this mean that you give your filled out "Form 4F" to the Commissioner of Oath that they deliver all the copies and get all the stamps for you so you end up with your two fully stamped copies of the Affadavit of Service ready for your trial date?

If so, how much time in advance of the 15 days do they need, and what sort of costs are involved?


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Unread post by diehard on

Hi Radar,

Are the following steps described by Ticket Combat correct?
http://www.ticketcombat.com/step4/howtofile_harder.php

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How To File the Paperwork - The Hard Way

"11B"

Take all three documents, the form, the factum (if you have one) and the affidavit to the court house. You will need three copies of each document. Go to the court clerk's window and tell them you are "filing an 11b". It doesn't matter if you are filing based on an 11b Charter infringement. Just say you are.

Do not state you are filing a "charter application", a "Form 4F", a "stay application" or a "notice of constitutional question". Do not describe what you are doing. If you do, you will receive a blank stare and will be told that they don't handle that here. The magic words are "11b" and that will open the door. Any other description will slam the door in your face. (You have already been warned about the level of training of court clerks!)

Commissioner of Oaths

Ask the clerk if they are a commissioner for taking oaths. If the clerk you are dealing with is not one, they will find one for you. It is very easy. Once you are in front of one who can swear your oath, present the affidavit to them. Also provide picture identification like your driver's licence to prove you are who you claim to be. Raise your right hand and state your name. The clerk will ask you if the information contained in the affidavit is true. Say "yes". Then sign the affidavit in front of the clerk. She will then sign it and stamp it.

Next say to the clerk, "I want to do this two more times." Repeat the steps above for the other two copies of the affidavit. Thus each affidavit will have an original signature and stamp. (You are doing this to avoid leaving to find a photocopier and then returning back to the court house.)

Serve the Prosecutor

You then take all three sets of documents to the prosecutor's office. Give them one complete set and have them stamp the other two. The stamp is proof of service, that is, proof that you gave the prosecutor the documents.

Serve the Court

Next go back to the clerks counter and give them one complete set of documents which now includes the prosecutor's stamp.

Some jurisdictions will incorrectly make you go to the prosecutor's office first, then to the court clerk. If you do that, the prosecutor will receive an unsigned affidavit. Instead check if the clerk at the prosecutor's office is a commissioner of oaths. You will be able to sign the affidavit in front of her before filing the documents with her. If you can't do this, don't give them the affidavit. Leave just the factum and the Form 4F. Have them stamp the other copies. Then go to the court clerk and swear the oath and sign the affidavit in front of her. Then go back to the prosecutor's office with the signed affidavit and add it to the documents you already gave them.

Serve the Attorneys General

You are almost done. You can now leave the court house with one complete set of signed and stamped documents. This set will be faxed to the Attorney General of Canada and the Attorney General of Ontario. Keep the fax receipt as proof of service. This copy will also be the one you can take to trial.

If you do not have access to a fax machine, you can mail the documents to the attorneys general. In that case you will need an additional two copies that you must take to the court house and sign and stamp (five in total).

Since you are mailing these copies, you will not have a fax receipt as proof that you sent it. You also must add an additional seven days for Canada Post to deliver the documents. The seven days does not include the day you mailed it.

You should also note that it may take a day for Canada Post to postmark your stamp. For example if postal pickup is 11 a.m. and you put the document in the mail at noon, it will not be picked up until the following day and may not be processed (cancel the stamp) until the day after that. That means an additional three days on top of the seven you are required to give Canada Post. To be safe, leave as much time as possible.

Problems
If you have any problems with the court clerk when you try to file this material, don't get into an argument. Rather point out that the job of the clerk is to file the paperwork with the court. It will be up to the justice to decide if the paperwork is in order.


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Unread post by Radar Identified on

Yes it is, although I'd serve the Attorneys-General first. I'm filing an 11B right now. As an FYI, I have sought a professional opinion from someone who is very familiar with the process, to ensure that I get the paperwork correct. Just keep in mind, if you do fax or mail the Attorneys-General, you need to have an Affidavit of Service for them. (Yes, this is just barrels of fun, isn't it?)
CAROL wrote:Does this mean that you give your filled out "Form 4F" to the Commissioner of Oath that they deliver all the copies and get all the stamps for you so you end up with your two fully stamped copies of the Affadavit of Service ready for your trial date?
You have to serve the Attorneys-General and the Prosecutor yourself. Then you fill out an Affidavit of Service, bring proof (fax receipts, registered mail receipts, or whatever) that you've served the appropriate parties to the Commissioner of Oath and have him/her sign off on it. The Commissioner does not serve them. The Commissioner only takes your sworn oath that you have done what you said in the affidavit of service. Then you take that, a copy of the Notice and everything else you wish to file, and file it with the court. Individual Commissioners charge different rates, one example being $20 per document. If you go to the courthouse, most clerks are Commissioners so they can do it free of charge.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
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diehard
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Unread post by diehard on

These are all the forms I have downloaded and are being filled with my case/info:

- Form 16B (Affidavit of Service)
- Form 4F (Notice of Constitutional Question)
- Notice of Application for Stay of Proceedings

Am I missing a form?
Do I really need a factum?
If I understand correctly, if I list all my facts in Form 4F, then I don't need a factum, right?

Also, what is a "blue cardboard"?
It says that the front and back cover of application for stay of proceedings should be a "blue cardboard".
Is that something I can purchase in any office depot?

Thanks.


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Unread post by diehard on

Radar Identified wrote:As an FYI, I have sought a professional opinion from someone who is very familiar with the process, to ensure that I get the paperwork correct. Just keep in mind, if you do fax or mail the Attorneys-General, you need to have an Affidavit of Service for them. (Yes, this is just barrels of fun, isn't it?)
Hi Radar,

Did you pay for the professional opinion?
Where can I seek some advice?

Thanks.


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Unread post by Radar Identified on

Basically the site that referred to "blue cardboard" has the correct format. Also write in affidavit, with records of when you filed, when your court date is, and any other court records, etc., as "exhibits" to your affidavit. Get the affidavit signed by a Notary Public or Commissioner of Oaths. You can prepare a factum, which includes relevant case law as appendices, but you do not have to file it in this case. Just have it ready for court. The only thing that needs to be filed is the Notice (although I also filed the affidavit). Blue cardboard is not necessary. The affidavit just states the facts of the case. It is, effectively, your sworn statement about what happened (pretty much reiterates what is in the Notice).

I was going to serve the Attorneys-General myself... but after I saw the lineup for the Attorney-General of Canada... :shock: I decided I'd go the route of faxing it to them, even though I'd earlier advised against it. So, after putting the paperwork together, I served the Prosecutor with a copy, got two others stamped, filed a second copy with the court, and then took the last copy and faxed it to the Attorneys-General. I then filled out short, simple affidavits stating that I served notice on the Prosecutor and the Attorneys-General and brought them, plus the fax receipts, back to a Commissioner and got them signed.

I asked someone I knew about the forms. Even if there are minor errors, as long as they are substantially correct, they should be accepted. Since you and I do not have formal legal training, this works in our favour (R v. Tran). If there are mistakes, they can always adjourn to allow the mistakes to be fixed.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
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Unread post by diehard on

So if I don't need a blue cardboard, do I still need a blank white page as a cover to be stamped?

Also the table of contents mentions tabbing.
How do I tab the sections?
Should I put an indented label?

Image


Thanks!


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Unread post by Radar Identified on

Blank page is unnecessary. I used a cover page, so that they could identify that the paperwork was all identical, and they just stamped that. If you want tabs, an indented label would be a good idea.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


diehard
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Unread post by diehard on

Here's another newbie question:

The sworn statement of the application for stay has the following paragraph:
... which would mean, that for the first appearance, over 14 months would have elapsed, before I had the first opportunity to challenge the alleged offence, which I did not commit.
Should I take the part in red out?
If I understood correctly, the 11(b) process is not for arguing my innocence but about how the Crown has committed a wrong with the handling of my case, right?


diehard
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Unread post by diehard on

Another question:

My court is the Toronto East Court Office on 1530 Markham Rd.
Should I change the parts in yellow below?
I'm confused with the naming of the courts.

Image

Thanks.






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