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HTA cited incorrectly, fatal error? pic attached help ASAP
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PostPosted: Sun Feb 02, 2014 8:02 pm 
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This seems like a slightly grey area so I decided to challenge the ticket for now instead of completely ignoring it, in order to give me a little more time to decide and get advice on if this will be seen as a fatal error or not.

I have a court date coming up SOON and have also filed for disclosure in the mean time just in case, but if this is a fatal error then I should not go to the court date and hope the JP catches it (or appeal it if they don't)

See the picture attached, section 12 "E" does not exist in the HTA, there is however a 12 (1) (e) which refers to violation to a "number plate violation", specifically:
(e) uses or permits the use of evidence of validation upon a number plate displayed on a motor vehicle other than evidence of validation furnished by the Ministry in respect of that motor vehicle

Of course the officer meant to write "8" and not "E", but it clearly looks like an "E" and not an 8.

---

Let me know what you think here, the old posts I found, case law found, and ticket combat site all don't seem to specify whether or not this is fatal though it seems to mostly point to yes, it is? I think some cases with incorrect HTA have gone either way IIRC...

TIA


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Re: HTA cited incorrectly, fatal error? pic attached help AS
PostPosted: Sun Feb 02, 2014 9:25 pm 
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Personally I don't think this one will float. It looks like an incomplete 8. You will have to argue it is an E in your (likely unsuccessful) appeal. You could get lucky some JPs are former teachers who are just itching to punish former students for poor penmanship. Before you put your hopes on this Hail Mary review disclosure. Other thoughts?


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Re: HTA cited incorrectly, fatal error? pic attached help AS
PostPosted: Sun Feb 02, 2014 10:01 pm 
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I'll agree with ynotp on this one. The original copy of the ticket may well say 128 and the officer could have lifted the pen while writing.


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Re: HTA cited incorrectly, fatal error? pic attached help AS
PostPosted: Mon Feb 03, 2014 5:48 pm 
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thats an obvious 8, not an e. i didnt even think it was an e until i read your paragraph.


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Re: HTA cited incorrectly, fatal error? pic attached help AS
PostPosted: Mon Feb 24, 2014 5:17 pm 
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Does anyone know whether or not the HTA being cited incorrectly IS actually a fatal error?

As I mentioned in the OP, it seems very grey, and I think I seen cases go either way, so it would be interesting to know what the actual law is regarding this

Thanks again


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Re: HTA cited incorrectly, fatal error? pic attached help AS
PostPosted: Mon Feb 24, 2014 5:41 pm 
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jayjonbeach wrote:
Does anyone know whether or not the HTA being cited incorrectly IS actually a fatal error?
There's a lot of appellete decisions that already dealt with this. A quick CanLII search will return a plethora of decisions https://www.canlii.org/en/on/#search/jI ... raffic+act

R. v. Stuparayk and Firminio, 2009 ONCJ 394 (CanLII)
Quote:
R. v. Maniccia [2004] O.J. No. 5566 (Ont. Ct. Justice)

police charged the defendant with “fail to yield to traffic on through highway” and incorrectly stated the section number as s. 136 (1) (a), which is the offence of failing to stop at a stop sign, instead of the correct section, s. 136 (1) (b). Nevertheless, the Justice of the Peace convicted the defendant under s. 9.1. The defendant appealed and Bennett J. allowed the appeal and quashed the conviction. He held that the Justice of the Peace erred in registering a conviction under s. 9.1 because the citing of the wrong section number resulted in the Certificate not being “complete and regular on its face”.

R. v. Bargis [2004] O.J. No. 5565 (Ont. Ct. Justice)

Armstrong J. allowed the defendant’s appeal from a conviction under s. 9.1 because the Certificate of Offence cited the wrong section number. The police charged the defendant with “driver fail to wear complete seatbelt assembly” and stated the section number incorrectly as s. 106 (2) instead of s. 106 (3). In allowing the appeal the court held at paragraphs 11 and 12 that:

As Justice Daudlin noted in Regina v. Baldasare, [2000] O.J. No. 5515, November 9, 2000, Doc. Windsor 00-CR-05944 Ont. S.C., some of the information for which there are boxes to be completed on the certificate of offence is surplusage, which "in no way confuses or in any manner raises the issue of the notice being inappropriate, incomplete or in any manner failing to meet the necessities of the legislation." Therefore, the omission of the words "Ontario" or "of Ontario" from the description of the Highway Traffic Act would also appear to me to be surplusage that would not require a quashing of the information.

However, in this case the section number contained an error. It specifically stated s. 106(2) instead of 106(3). I find that this error was something that was in conflict with the description, and cannot be said to be - and here I am quoting Justice Daudlin's phrase, "surplusage" [which] "in no way confuses." I find that the conflict was something which could not be said to in no way confuse. And given the scheme of the Provincial Offences Act and the premium that is put on the form in the context of default conviction proceedings, this conviction cannot stand. (Emphasis Added)
Recently Justice Libman in R. v. Mirza, 2013 ONCA 363 (CanLII) dropped a bombshell when he wrote
Quote:
[13] The appeal judge dismissed the appeal for three reasons:
1. the original certificate of offence would have been complete and regular had there been no reference to a section number of the HTA;
2. despite the reference to s. 128, no one would have been misled by the nature of the offence in light of the description “Red Light - Fail to stop” on the certificate;
3. any change made to the section number on the face of the ticket would not invalidate the ticket or constitute a formal amendment.
It's being dealt in the Appeal Courts atm.


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Re: HTA cited incorrectly, fatal error? pic attached help AS
PostPosted: Mon Feb 24, 2014 10:49 pm 
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I guess that is exactly where things stand then, one big grey area for now, and a cr*p shoot, damn I am torn on this.

Very interesting case that last one thanks for posting. The fact that the ticket was changed without the defendant present alone should have got the appeal granted, as I am quite sure that is against the rules, and it looks like the representative did NOT make a strong case about it even failing to cite case law in their favour, and yet he had time to prepare too. Worse, due to his shoddy representation we might see a new precedent coming down the pike


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