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

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.

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...

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

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!

Forgot to mention... the Affadavit of Service form can be downloaded here (it's form 16B):

http://www.ontariocourtforms.on.ca/english/civil

Scroll down the page until you get to it.

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?

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.

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.

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.

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.

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... 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.

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?

Thanks!

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.

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?

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.

Thanks.

I'm starting to get confused now.

I have the Notice of Application for Stay ready (looks like this: http://scopezoom.com/11b/StayPDF.pdf).

I will make 6 copies according to this guide: http://scopezoom.com/11b/application-fo ... edings.pdf

What exactly is the 4F form?

What about the affidavit?

What's my next step?

Thanks!

^^^ answering my own question:

An Application for Stay of Proceedings is also known as a "notice of Constitutional question" or a "Constitutional challenge" and is known as a preliminary motion, which has to be dealt with by the Courts, prior to the actual trial of the facts or merits of the case.

Therefore all I need is the Notice of Application like this one: http://scopezoom.com/11b/StayPDF.pdf

I guess my real question is the following:

Where do I start serving?

The Toronto East Court Office or the Attorney of Canada?

1. I also took the equivalent of the red part out, although I used an affidavit format instead of a Sworn Statement. I'd agree, innocence is not something to be argued in the affidavit/statement. All you are saying is that going to trial took an unreasonably long time.

2. Same courthouse. I used "Ontario Court of Justice" and then "Provincial Offences Court" and "Toronto East Region."

3. The Notice of Application format is basically the same as the 4F, but I used the "Notice" format, just like you did.

4. I printed off three copies, went to the fourth floor of the Markham Road courthouse, to the Prosecutor's office (turn right, then left, end of the hallway) and served them. They took one copy and stamped the remaining two... service with a smile. Then I went down to the information area (the room where everyone is packed in like a can of sardines), went to the information window (far end), and told the Clerk: "I am filing an 11B." He said "okay," took one copy and stamped the remainder. I took that one to Staples and faxed it to the Attorneys-General. I took the fax receipts, filled out a couple of quick affidavits indicating I had served the notices, went over to a Commissioner of Oaths and got them stamped. Done and done.

Prepare for a full-on battle in the courtroom, although it is more than likely that the Prosecutor will simply withdraw the charge.

Radar Identified wrote:

I used an affidavit format instead of a Sworn Statement. ...

... I printed off three copies, went to the fourth floor of the Markham Road courthouse, to the Prosecutor's office (turn right, then left, end of the hallway) and served them.

... I took the fax receipts, filled out a couple of quick affidavits indicating I had served the notices, went over to a Commissioner of Oaths and got them stamped. Done and done.

If you are using the "Sworn Statement" is your first trip to the Commissioner to get this document signed before taking it to the Prosecutor? Is that also true with the affidavit format or does that eliminate this step or do you have to visit the Commissioner twice regardless which you use?

CAROL wrote:

Radar Identified wrote:

I used an affidavit format instead of a Sworn Statement. ...

... I printed off three copies, went to the fourth floor of the Markham Road courthouse, to the Prosecutor's office (turn right, then left, end of the hallway) and served them.

... I took the fax receipts, filled out a couple of quick affidavits indicating I had served the notices, went over to a Commissioner of Oaths and got them stamped. Done and done.

If you are using the "Sworn Statement" is your first trip to the Commissioner to get this document signed before taking it to the Prosecutor? Is that also true with the affidavit format or does that eliminate this step or do you have to visit the Commissioner twice regardless which you use?

That's my question too.

I'm heading now to the Markham Rd. Court straight to the prosecutor's office, as per Radar's advice.

I'll ask the prosecutor if I need to have the sworn statement signed in front of a commissioner of oaths.

See part in yellow below.

EDIT: SEE BELOW. I HAD TO GO FIRST TO HAVE MY NOTICE SWORN BY COMMISSIONER OF OATHS BEFORE SERVING THE PROSECUTOR.

I just came back from from the Court Office (1530 Markham Rd).

Mission accomplished!

I served them all. The clerks were very polite and helpful. But I spent like 3.5 hours there.

I have a few comments though. I followed the steps described by Radar slightly different.

I had 4 copies of the Notice of Application for Stay of Proceedings.

As soon as I arrived I did the following:

1. I went to the sardine room (ticket office), waited for more than an hour but had the 4 copies sworn by a commissioner of oaths (the clerk herself);

2. I went to the Prosecutors and had them served.

3. They stamped the 4 copies and kept one.

4. I faxed one copy to the Attorney-General of Ontario and one copy to the Attorney-General of Canada.

5. Kept the fax receipts.

6. Returned to the sardine room and waited for another 1.5 hour.

7. Had the Court served.

8. I had two 16B Affidavits of Service (one for each fax I sent to the attorneys-general).

9. I had them sworn and clerk kept one copy each with the fax receipts.

That's it.

I intend to create a new topic describing my steps in detail. I confess that I got really confused between the 4F and Notice of Applications.

There are too many forms, formats and procedures.

The second clerk said that the Prosecutors should have kept copies of the affidavits of service too, anyway, he said I was good to go because "I had covered all the angles".

I think there's also a confusion between the Sworn Statement inside the Notice of Application and the Affidavit like this Example of Affidavit

Now I have to wait for the trial date and prepare for the main battle.

Radar Identified and Simon, thanks guys!!!!!!!!!!

diehard wrote:

I I intend to create a new topic describing my steps in detail.

Maybe you could PM with RI (he is a mod) a little bit and the new thread (with links to forms) can be added as a sticky, therefore if anyone requests this in the future we just direct them to that link. thanks

HB

CAROL wrote:

If you are using the "Sworn Statement" is your first trip to the Commissioner to get this document signed before taking it to the Prosecutor?

Yes. You can get that done at the courthouse for free, as diehard did. Or, if you don't have the time (or in my case, the patience), you can pay a Notary Public or Commissioner and get it done there - but it costs some cash.

CAROL wrote:

Is that also true with the affidavit format or does that eliminate this step or do you have to visit the Commissioner twice regardless which you use?

Whether you use a Sworn Statement or an Affidavit (with the same contents as the Sworn Statement), either one has to be sworn/stamped/signed by a Commissioner of Oaths or a Notary Public.

diehard, if you'd like, as hwybear suggests, please PM me and we can set up a sticky for you so the details can be recorded. Thank you for sharing the information on your experience, as well. I'm sure others will find it helpful.

Radar Identified wrote:

I'm sure others will find it helpful.

I would like to say that this stuff is extremely helpful and I'm sure it's going to encourage others to go through the process by taking the mystery out of it. I've got to thank you guys for taking the time to post this information. I hope you are successful in court and am interested in hearing what happens. Good Luck!

So... is this what the two Affidavits of Service should look like (ie. with my info added in the red areas)?

Also, are the fax numbers correct and match what you used?

and...

Yes, mine was like the file attached to this post.

Is the number 326 or 362? I got the 326 number from their website.

Is the Attorney General of Canada the same fax number you used?

Yes, it's 326, my form is wrong.

Got both phones from here:

http://www.ei.gc.ca/eng/umpire/attorney_general.shtml

Attorney General of Canada

284 Wellington St.

Ottawa, ON K1A 0H8

613-992-4621

Fax: 613-990-7255

Attorney General of Ontario

720 Bay St., 11th Floor

Toronto, ON M5G 2K1

416-326-2220 or 1-800-518-7901

Fax: 416-326-4007

Do I have to include the complete "ASKOV et al v. R. DECISION" and the "R. v. MORIN DECISION" in my NOTICE OF APPLICATION FOR STAY OF PROCEEDINGS package or just the first few pages of each?

They are both very long and an example of a package I have, seems to just use the first couple of pages containing everything up to the "Statutes and Regulations Cited" section.

Ashkov: I printed up to page 6 of the pdf inside attached zip file.

Morin: I printed up to page 8 of the pdf inside attached zip file.