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Speeding 70 km/h in a 50 km/h Zn.-Prince Edward Viad. Trap
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PostPosted: Mon Sep 06, 2010 2:30 pm 
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Ok this is officially the first speeding ticket I will be fighting on my own without the help of my lawyer (because the previous 2 times we went to court, cops didn't show up).

I am looking for some advise on how to prepare an adequate defence or to quash the trial. Long story short, travelling east bound on Bloor Street just before the DVP North Bound Off ramp (where it turns into Danforth), its a known speed trap so I never usually speed in this area as it is known. This roadway has a three lane road on both sides of traffic. I was travelling in the centre lane behind one vehicle while a taxi cab and three other vehicles were parallel beside me in the furthest right lane. While moving with the flow of traffic and another vehicle in front of me going a simular speed I needed to change into furthest right lane with a few couple hundred metres before the off ramp to the DVP. With the taxi travelling at a simular speed beside me and three other vehicles behind him I needed to safely enter into the lane. With the vehicle in front impeding any signifcant accelleration in speed i entered the lane at a partial velocity greater then the taxi cap but not greater then the vehicle in the middle lane. I made the lane change about halfway over the bridge which I still need to clock the "metered distance". Just before the DVP off ramp I was pulled over by the charging police officer who had radar or lidar (still unknown).

I have just recieved a court date for December 22nd this year and only got the notice for this about a week ago so I am in process of submitting disclosure.

**My main question is on my Offence notice, I have been charged with speeding 70km/h in a 50km/h zone. I believe there is a fatal flaw on the ticket as he has not officially charged me with the "SECTION" under the HTA. I was inquiring if the trial could be quash for this possibly fatal flaw or are ALL SPEEDING offences labelled under sec. 128? I thought I had read something in the HTA that identifies different speeding violations (i.e. residential or school zones during certain hours. Will the flaw be fixed on the court date by the JP?**

My final question pertains to the defence where I am not openly admiting to speeding but travelling in the restrictions of the flow of traffic from other vehicles and trying to safely enter a lane. I am hoping that my defence may ruin credibility of the evidence as another vehicle was in front of me that must have been travelling at a simular or greater speed in the centre lane and that person was not pulled over as well indicating the cop did not base the charge on the flow of traffic which was greater then the posted speed limit.

Let me know if you guys can help me out.


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PostPosted: Tue Sep 07, 2010 1:48 am 
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All speeding charges are under section 128.

Speeding is an absolute liability offence, which means that there are no defences. The court will not hear or consider anything you have to say with regards to a defence.

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PostPosted: Tue Sep 07, 2010 3:37 am 
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Simon Borys wrote:
All speeding charges are under section 128.

Speeding is an absolute liability offence, which means that there are no defences. The court will not hear or consider anything you have to say with regards to a defence.


Well the failure of the charging officer to identify the section in which was violated on the ticket is percieved as a fatal error is it not on the face of the ticket. I believe that this was identified on a sticky posted in court procedures for fatal errors. As long as I can articulate this under section 36 of the provincial offences act which pertains to sections 33 - 35. If there is no section identified on the offences notice then how can I officially be charged under the highway traffic act. It's the same thing as being charged with an assault under the criminal code but the section pertaining to the definition of assault is not identified.


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PostPosted: Tue Sep 07, 2010 6:02 pm 
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I don't disagree with you about the fatal error, I was just commenting on your ideas about creating a defence.

Arguing an error on a ticket can sometimes be problematic however, since if you take it to trial to make the argument, they can always ask that the JP amend the certificate, which they may or may not do. If you don' take it to trial and hope that they review it for a 9.1 conviction and find that it is not complete and regular on its face, then you run the risk that they might miss it and enter a conviction in abstentia. If that happens then you have to appeal and argue that the process should have been quashed in the first place.

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Re: speeding section 128 no sub section
PostPosted: Tue Feb 26, 2013 10:33 pm 
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Hi

I know this is an old thread, but was the only one I could find that was relevent ...

So is it still considered a fatal error if only the section number 128 is written on the Offence Notice with no subsection (hypothetically for say speeding 115km/h in a 100km/h zone)?

So assuming yes, would these be my options?

(1) Do not choose any options on the back of the Offence Notice (do not pay, do not plead guilty and do not notice of intention to appear). Let the justice review the ticket and if he misses flaw and enters conviction in absentia, then file an appeal.
- Is it relatively easy to argue on appeal that the ticket should have been quashed in the first place because there was a flaw?
- Compared to going to trial, is the probability of having this done on appeal much better, or are there lots of hoops you have to jump thru and most likely you will not win on appeal?
- Can the officer amend the original Certificate of Offence before the conviction in absentia occurs?

(2) So if you choose to go trial, can you wait until after the prosecution has presented their case (officer testifies, cross-examination, re-examination, "your worship we have presented prima facia case"), and then make a motion to have it quashed because of the flaw? If you wait until after prosecution is done, can they still amend the ticket, or are they stuck with it as is?

Thanks

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Re: Speeding 70 km/h in a 50 km/h Zn.-Prince Edward Viad. Tr
PostPosted: Wed Feb 27, 2013 12:38 am 
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So to answer my own question for (2) above, the answer is most likely you will never be able to use a Fatal Error during a trial to get it thrown out because the Court may amend the ticket at any time under Section 34 of the Provincial Offences Act. So this means that no matter when you bring up the fatal error and no matter what it is, the Justice can just amend it.

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Re: Speeding 70 km/h in a 50 km/h Zn.-Prince Edward Viad. Tr
PostPosted: Wed Feb 27, 2013 8:49 pm 
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1) If it's an old thread, start a new one.
2) That is the section number for speeding. No subsection required. No fatal error.


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Re: Speeding 70 km/h in a 50 km/h Zn.-Prince Edward Viad. Tr
PostPosted: Thu Feb 28, 2013 10:38 am 
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Decatur wrote:
1) If it's an old thread, start a new one.
2) That is the section number for speeding. No subsection required. No fatal error.


always debatable...

Threads should not multiply, they should build.

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Re: Speeding 70 km/h in a 50 km/h Zn.-Prince Edward Viad. Tr
PostPosted: Fri Mar 01, 2013 12:19 pm 
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I did find this case which talks about wrong section numbers and omitted section numbers:

R. v. Stuparayk and Firminio, 2009 ONCJ 394 (CanLII)
http://canlii.ca/t/25dzc

It appears that a wrong section number is grounds for quashing where as an omitted section is not.

So now the question becomes: Is stating the section simply as "128" considered a wrong section number or an omitted section number?

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Re: Speeding 70 km/h in a 50 km/h Zn.-Prince Edward Viad. Tr
PostPosted: Fri Mar 01, 2013 2:08 pm 
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So now the question becomes: Is stating the section simply as "128" considered a wrong section number or an omitted section number?

It's neither. It's the correct section number as it stands. There is no sub-section.


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Re: Speeding 70 km/h in a 50 km/h Zn.-Prince Edward Viad. Tr
PostPosted: Fri Mar 01, 2013 2:27 pm 
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Sure there are...
128(1)
128(1.1)
128(2)
128(3)
128(5)
128(6)
128(6.1)
128(6.2)
128(6.3)
128(8)
128(8.1)
128(8.2)
128(9)
128(10)
128(10.1)
128(11)
128(12)
128(13)
128(14)
128(14.1)
128(15)
128(15.1)
128(15.2)
128(15.3)
128(15.4)
128(16)
128.1

And there are lots of subsections under those as well with all their (a) (b) (c) stuff as well.

Maybe I am using the wrong terminology by calling them subsections, but for example, if you are speeding in a contruction zone that is different than in a non-contruction zone.

So would I not need to be charged under 128(1) for regular speeding, whereas it would be 128(8) for construction zone?

Thanks

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Re: Speeding 70 km/h in a 50 km/h Zn.-Prince Edward Viad. Tr
PostPosted: Fri Mar 01, 2013 4:31 pm 
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"So would I not need to be charged under 128(1) for regular speeding, whereas it would be 128(8) for construction zone?"
No.
Those are the subsections listed in the HTA.
There is no subsection used on a Certificate of Offence for the charge of speeding. Just slight additions to the short form wording depending on whether the offence was in a consruction zone or a community safety zone.


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Re: Speeding 70 km/h in a 50 km/h Zn.-Prince Edward Viad. Tr
PostPosted: Fri Mar 01, 2013 5:01 pm 
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okay thanks

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