134 in a 100 - Possible fatal error

EphOph
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134 in a 100 - Possible fatal error

by: EphOph on
Wed Dec 01, 2010 7:50 pm

Hello,
I recieved a ticket on the 401 last week (34 over). I was planning to prepare a defence but after some research I think that the ticket may have a fatal error on it. I am posting because a lot of the information I have found is either outdated or is contradicted by information elsewhere. I have not yet responded to the ticket (still over a week left).

The set fine on the ticket is $204 and the total payable is $259, meaning that the cop calculated it at $6/km over. The HTA 128(14)(c) states that I should have been charged at $7/km, bringing the set fine to $238.

Basically, what I am asking is:
1. Is an incorrect set fine/total payable amount still considered a fatal error?
2. Is London v Young 2008 still valid? (If the justice decides to convict under 9(1) of POA will an appeal work?)

Thanks in advance


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by: hwybear on
Wed Dec 01, 2010 8:38 pm

The rate (per km over ) used is NOT what is printed in the HTA. The rate per km over is found at "Ontario Court Of Justice - Set Fines, Highway Traffic Act" to which your speed is calculated at $6 per km over.
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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by: EphOph on
Thu Dec 02, 2010 9:01 am

Interesting... it's almost as if they put out different information on purpose in order to coax people into defaulting for easy convictions (or to confuse people into paying them). This brings me to another question: will I be able to have my trial at the provincial courthouse of my choice, or will I be forced to travel? The reason I ask is that I was pulled over in a rental car and I really won't have any way to get to the trial if it's not held in the city I live in.




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by: EphOph on
Thu May 26, 2011 2:00 pm

Update:

I went in for my trial and the JP was absent. I was offered a reduction to 119, which I refused, and then I was called into the courtroom and given a new date in August.

Are they allowed to do this? I'm guessing that the "adjournments" are sent to a JP afterwards to actually be adjourned, but just wanted to make sure.


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by: Simon Borys on
Thu May 26, 2011 11:00 pm

If the JP was sitting at the time you were called in and given your new court date then that was it. It doesn't go to anyone afterwards to "actually be adjourned." If the JP wasn't sitting and you got a date from the clerk, then it sounds like the prosecutor just meant they were going to ask for an adjournment to that date and then they did it when the JP was sitting. You were entitled to stay and argue against the prosecutor's adjournment request since it is just a request and not automatically granted. If you weren't there the JP would just have assumed that you weren't challenging the request and would have granted it.
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by: EphOph on
Fri May 27, 2011 11:36 am

The JP was not sitting; I was given a new date from the prosecutor in the courtroom (written on a sticky note) which was confirmed by the clerk. What could I have argued? Would arguing in this situation really help (because the JP is not there to stay the charge)?


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by: Simon Borys on
Fri May 27, 2011 3:48 pm

If the crown is asking for an adjournment you could argue that you are present and ready to proceed (if you actually are) and try to show that the crown's reasons for requesting an adjournment are not important enough and that you would be prejudiced somehow by having this drag out longer. If successful in avoiding the adjournment the crown would have to proceed and if they weren't ready (file not ready, officer not there) then typically they would withdraw. Anyway, it's a moot point now since there's really no way for you to have the JP's decision reviewed and there's probably a good chance that you would have been unsuccessful anyway. Getting an adjournment is not that hard.
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by: nerd on
Sat May 28, 2011 7:05 pm

EphOph wrote:Update:

I went in for my trial and the JP was absent. I was offered a reduction to 119, which I refused, and then I was called into the courtroom and given a new date in August.

Are they allowed to do this? I'm guessing that the "adjournments" are sent to a JP afterwards to actually be adjourned, but just wanted to make sure.
If they issued a new court date, you will go to trial. An adjournment is a suspension of the court proceedings. It is not a dismissal. If the "JP" was absent due to illness or unforeseeable circumstances, it does not warrant a motion for dismissal. You can hope your insurance renews between now and then, to which you will not discuss your pending infraction as you are still considered innocent. That will delay an increase in insurance rates until the following renewal.

It is nearly impossible to win a speeding ticket that is 30+ over the limit because you're clearly, blatantly speeding. Getting charged (or amended) for 19kph over is considered a minor infraction with 3-demerit points. Having rejected that, they're almost certain to find you guilty for 34 over and hit you with 4-demerit points. It is considered a major infraction and you could see an increase in insurance rates of 25% per year for a conviction of a major infraction.

When you go to trial, you should have legal representation. Whenever you reject a charge that has been reduced at the time of the traffic stop, or amended in court, they usually seek the original penalty. Once you plead not guilty, unless you can prove you're innocent, you are subject to the full charge. At this stage, I feel your best course of action is to have a lawyer explain to the prosecutor you were confused by the amended charge when you refused it. If you're lucky, they will give you 119 over with 3-demerit points. Asking for less is highly unlikely to happen. Hope it works out for the best.


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by: Stanton on
Sun May 29, 2011 3:37 am

nerd wrote:It is nearly impossible to win a speeding ticket that is 30+ over the limit because you're clearly, blatantly speeding.
I'm not sure what you mean by this. Your chance of successfully fighting any speeding ticket would be based on the strength of the evidence, not your speed. Speeding is an absolute liability offence meaning intent is irrelevant. Your actual speed only matters in terms of fines/demerit points.


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by: Radar Identified on
Sun May 29, 2011 12:27 pm

nerd wrote:It is nearly impossible to win a speeding ticket that is 30+ over the limit because you're clearly, blatantly speeding.
Agree with Stanton. It's on the basis of the evidence, not the raw speed.

Example: The kid who was caught doing 238 in an 80 zone a couple of years ago was found not guilty, because, in trying to catch the driver, the officer lost sight of the vehicle for some time.
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by: nerd on
Mon May 30, 2011 12:23 am

Stanton wrote:
nerd wrote:It is nearly impossible to win a speeding ticket that is 30+ over the limit because you're clearly, blatantly speeding.
I'm not sure what you mean by this. Your chance of successfully fighting any speeding ticket would be based on the strength of the evidence, not your speed. Speeding is an absolute liability offence meaning intent is irrelevant. Your actual speed only matters in terms of fines/demerit points.
Intent may be irrelevant to whether you're guilty or not. It does however have an effect on the court's mercy and willingness to reduce or amend the charge.


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by: nerd on
Mon May 30, 2011 1:13 am

Radar Identified wrote:
nerd wrote:It is nearly impossible to win a speeding ticket that is 30+ over the limit because you're clearly, blatantly speeding.
Agree with Stanton. It's on the basis of the evidence, not the raw speed.

Example: The kid who was caught doing 238 in an 80 zone a couple of years ago was found not guilty, because, in trying to catch the driver, the officer lost sight of the vehicle for some time.
Is that not just a technicality though? The officer was unable to account for the entire event. Does that mean the driver didn't commit the crime? They just got lucky.

Though the speed itself only determines if you were over the speed limit, the fines and points, what I meant was, if you're speeding enough over the limit, the intent to speed can be the deciding factor in whether the prosecutor will accept a plea-bargain or try you for the full charge. Without technicalities, it's a fairly open and shut case. If I were prosecuting, my stance would be that you were speeding with all intent and there is no reason why I shouldn't try you for the full charge.


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by: Stanton on
Mon May 30, 2011 1:43 am

Unless a speeding ticket has already been reduced by an officer, most prosecutors are willing to reduce the speed in exchange for a plea. While they may only reduce it by 15-20, your actual speed has very little impact. A good example is the many stunt driving 50+ over charges (arguably a very serious speeding charge) which are plead out to a straight 49 over. Pleas become somewhat less likely on repeat offences or when there is an accident/injuries.


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by: Radar Identified on
Mon May 30, 2011 11:54 pm

nerd wrote:Is that not just a technicality though? The officer was unable to account for the entire event. Does that mean the driver didn't commit the crime? They just got lucky.
Technicality or lack of evidence? With sight lost for some time, the officer cannot be certain that he/she stopped the correct vehicle, unless the officer either caught the licence plate number or there was some specific, identifying characteristic.

As far as intent or "knowing," I've been in a car when I turned to the driver and asked him: "You know you're going 140?" (He was trying to go 110... and that was in Nova Scotia where the speed limit IS 110.) Empty road, nothing around, sitting in the right lane, and he didn't watch his speedometer swing up. Some people are totally incapable of perceiving how fast things are going by them, or judging speed, unless they have that little gauge and are paying attention to it.
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