Folks, My alleged offence is rather simple - speeding 134km/h in a 100km/h zone (quoted from the ticket). After reading all the vast troves of info here. I still have 2 pressing questions, in advance of my upcoming trial (where I may ask for an adjournment, to prepare my defence, as unexpectedly, I've received partial disclosure, a couple of weeks prior to the trial): 1. The ticket states "Highway Traffic Act" in the "contrary to" section - doesn't it have to list a specific subsection of the HTA to be valid? If I'm correct, then its invalid? 2. In the notes, the officer is claiming to have pulled over a different colour and make vehicle, than what I was driving. Only the model and license plate are correct. Am I correct in believing that this could be used to establish a lack of credibility, i.e. if you can't tell one make and colour from another, then how do you know it was me you wanted to pull over? All thoughts are highly appreciated.
Folks,
My alleged offence is rather simple - speeding 134km/h in a 100km/h zone (quoted from the ticket).
After reading all the vast troves of info here. I still have 2 pressing questions, in advance of my upcoming trial (where I may ask for an adjournment, to prepare my defence, as unexpectedly, I've received partial disclosure, a couple of weeks prior to the trial):
1. The ticket states "Highway Traffic Act" in the "contrary to" section - doesn't it have to list a specific subsection of the HTA to be valid? If I'm correct, then its invalid?
2. In the notes, the officer is claiming to have pulled over a different colour and make vehicle, than what I was driving. Only the model and license plate are correct. Am I correct in believing that this could be used to establish a lack of credibility, i.e. if you can't tell one make and colour from another, then how do you know it was me you wanted to pull over?
If the ticket does not state section number 128, then you must follow the London v. Young "forced fatal error" method. There are many many threads here that discuss this method, please use the search bar. List of fatal errors: http://www.ontariohighwaytrafficact.com/topic1965.html It appears you have already chosen the trial option. In order to force the fatal error, you should NOT appear at your trial date. In your absence the sitting JP will review the face of the Part I ticket, and w/o the section # it will be irregular on its face. The JP will be forced to quash the ticket. POA S9 (2) IF you appear at your trial date, and tell prosecutor and courts that the section number is missing. They WILL amend the face of the ticket in front of you, and force you into a trial. POA S34 (1) The JP may overlook the missing section # and enter a conviction; you don't need to worry, you can appeal on the basis that the JP erred in law: http://www.ontariohighwaytrafficact.com ... tml#p34472 Again, review Provincial Offences Act and the relevant forced fatal error threads: https://www.ontario.ca/laws/statute/90p33#BK10
If the ticket does not state section number 128, then you must follow the London v. Young "forced fatal error" method. There are many many threads here that discuss this method, please use the search bar.
It appears you have already chosen the trial option. In order to force the fatal error, you should NOT appear at your trial date. In your absence the sitting JP will review the face of the Part I ticket, and w/o the section # it will be irregular on its face. The JP will be forced to quash the ticket. POA S9 (2)
IF you appear at your trial date, and tell prosecutor and courts that the section number is missing. They WILL amend the face of the ticket in front of you, and force you into a trial. POA S34 (1)
Can you scan and post the ticket (with personal info blanked out) so we can determine if there is a fatal error on the ticket or not? As far as the officers notes being incorrect, you could use this to prove some lack of credibility BUT it will not be enough because the make and model and color of car are not part of the charge of speeding and it will not prove lack of credibility in the relevent areas. You need to bring reasonable doubt to (i) identifying you as driver, (ii) that you were driving a motor vehicle (make/model/color irrelevent), (iii) that you were driving it on a highway, (iv) the speed you were driving at, and (v) the posted speed limit.
Can you scan and post the ticket (with personal info blanked out) so we can determine if there is a fatal error on the ticket or not?
As far as the officers notes being incorrect, you could use this to prove some lack of credibility BUT it will not be enough because the make and model and color of car are not part of the charge of speeding and it will not prove lack of credibility in the relevent areas. You need to bring reasonable doubt to (i) identifying you as driver, (ii) that you were driving a motor vehicle (make/model/color irrelevent), (iii) that you were driving it on a highway, (iv) the speed you were driving at, and (v) the posted speed limit.
Wow, the speed of everyone's answers is highly appreciated (as the trial is tomorrow). Here is my ticket - all thoughts are appreciated. QScan05232016_102008.jpg
Wow, the speed of everyone's answers is highly appreciated (as the trial is tomorrow). Here is my ticket - all thoughts are appreciated.
QScan05232016_102008.jpg
You do not have the required permissions to view the files attached to this post. Register to view.
Well right under where it says HIGHWAY TRAFFIC ACT there is a little that says SECT./L'ART. This where it should say the Section number, which in this case should have been 128. So congratualtions, this is a fatal error! However, if you show up for your trial and point out the error, they can amend the ticket and correct it. An amendment to the ticket can only happen if you show up and the trial starts. If you don't show up, then they can not start the trial and therefore they can not amend the ticket. Instead, when you do not show up, you are deemed not to dispute it and the Justice of the Peace has to review the ticket and can either (i) convict you or (ii) quash the ticket because there is an error on it's face. So in this case the JP should, in theory, quash the ticket. However they sometimes miss these types of errors and wil convict you anyways. So if you find out that you have been convicted, you then need to immediately file an appeal (not a re-opening, but an appeal). And your appeal reason is this: There was an error at law. The Justice of the Peace should have quashed the proceeding as the certificate of offence was not complete and regular on its face per Provincial Offences Act 9(2)(b). http://www.canlii.org/en/on/laws/stat/r ... ec9subsec1
Well right under where it says HIGHWAY TRAFFIC ACT there is a little that says SECT./L'ART.
This where it should say the Section number, which in this case should have been 128.
So congratualtions, this is a fatal error!
However, if you show up for your trial and point out the error, they can amend the ticket and correct it. An amendment to the ticket can only happen if you show up and the trial starts. If you don't show up, then they can not start the trial and therefore they can not amend the ticket. Instead, when you do not show up, you are deemed not to dispute it and the Justice of the Peace has to review the ticket and can either (i) convict you or (ii) quash the ticket because there is an error on it's face.
So in this case the JP should, in theory, quash the ticket. However they sometimes miss these types of errors and wil convict you anyways. So if you find out that you have been convicted, you then need to immediately file an appeal (not a re-opening, but an appeal).
And your appeal reason is this:
There was an error at law. The Justice of the Peace should have quashed the proceeding as the certificate of offence was not complete and regular on its face per Provincial Offences Act 9(2)(b).
Brilliant, thank you very much for the quick response :) This may be a stupid question, however how would I find out I've been convicted (if the JP doesn't notice the error) - do they have to send me a notice of conviction?
Brilliant, thank you very much for the quick response
This may be a stupid question, however how would I find out I've been convicted (if the JP doesn't notice the error) - do they have to send me a notice of conviction?
Yes they should mail you a notice of conviction. I would wait one week and then call the clerk of the court next week and ask them what the status is as well, then you should know for sure the outcome. Keep the original ticket (or the copy that you have) in a safe place because you will need that if you have to appeal.
Yes they should mail you a notice of conviction.
I would wait one week and then call the clerk of the court next week and ask them what the status is as well, then you should know for sure the outcome.
Keep the original ticket (or the copy that you have) in a safe place because you will need that if you have to appeal.
Well, there is case law to the contrary...it is not a fatal error... R v Wong: in part: " The Court is of the view that the section number is not needed, was unnecessary in these circumstances, was superfluous. All reasonable and accurate information was provided to the justice of the peace, which permitted the justice of the peace to enter into a conviction. The certificate was complete and regular on its face. Accordingly, the appeal is dismissed". York Region V. Brillinger: in part: "Respecting R. v. Sarafraz, the failure to include the section number did not make the ticket irregular on the face such that it had to be quashed. In the absence of the section number but with the offence described in the appropriate words, the provisions of R.R.O. 1990, Regulation 950 s. 5 (as amended) apply to make the ticket regular on its face". There is more case law as well to support this...
Well, there is case law to the contrary...it is not a fatal error...
R v Wong: in part: " The Court is of the view that the section number is not needed, was unnecessary in these circumstances, was superfluous. All reasonable and accurate information was provided to the justice of the peace, which permitted the justice of the peace to enter into a conviction. The certificate was complete and regular on its face. Accordingly, the appeal is dismissed".
York Region V. Brillinger: in part: "Respecting R. v. Sarafraz, the failure to include the section number did not make the ticket irregular on the face such that it had to be quashed. In the absence of the section number but with the offence described in the appropriate words, the provisions of R.R.O. 1990, Regulation 950 s. 5 (as amended) apply to make the ticket regular on its face".
I've done my share of digging on the fatal flow, prior to jsherk's reply, and I guess what causes me concern is that the issue was addressed in Khoshael years ago, the city of London case subsequently, and most recently by the Ontario Court of Appeal in Farah and Mirza. The Khoshael reference specifically says that there is no authority to such omissions, so it sounds like everything greatly depends on the JP. I think I will still go, and have a look if the cop is there - if he isn't, then we're good, and if he is, I can always walk away and go home.
I've done my share of digging on the fatal flow, prior to jsherk's reply, and I guess what causes me concern is that the issue was addressed in Khoshael years ago, the city of London case subsequently, and most recently by the Ontario Court of Appeal in Farah and Mirza.
The Khoshael reference specifically says that there is no authority to such omissions, so it sounds like everything greatly depends on the JP.
I think I will still go, and have a look if the cop is there - if he isn't, then we're good, and if he is, I can always walk away and go home.
I'd tend to agree that a missing section number is not a fatal error if the short form wording identifies the offence. That being said, J.P.'s are not legal scholars (though they tend to think otherwise) and many might have quashed the ticket. Unfortunately the one reviewing your ticket appears to have not been in that group.
I'd tend to agree that a missing section number is not a fatal error if the short form wording identifies the offence. That being said, J.P.'s are not legal scholars (though they tend to think otherwise) and many might have quashed the ticket. Unfortunately the one reviewing your ticket appears to have not been in that group.
I was not aware of any cases with regards to missing section number, so my advice was based on the assumption (never assume) that it was a fatal error. So if there is specifically an APPEAL case that says the missing section number is not a fatal error, then all Justice of the Peace would have to follow that ruling and unfortunately you will need to show up and fight the ticket in court. If there is no appeal case, then it becomes a *EDIT* shoot... maybe the JP will quash it because of the error but maybe not. And if JP does not quash, then will the Judge on an appeal quash it or not!
I was not aware of any cases with regards to missing section number, so my advice was based on the assumption (never assume) that it was a fatal error. So if there is specifically an APPEAL case that says the missing section number is not a fatal error, then all Justice of the Peace would have to follow that ruling and unfortunately you will need to show up and fight the ticket in court.
If there is no appeal case, then it becomes a *EDIT* shoot... maybe the JP will quash it because of the error but maybe not. And if JP does not quash, then will the Judge on an appeal quash it or not!
R. v. Hargan, 2009 ONCJ 65 is one case available on Canlii that deals with a missing section number: http://www.canlii.org/en/on/oncj/doc/20 ... ncj65.html The case is very similar to the OP's in that the ticket is correct save for the missing section number. The Judge ruled that this was NOT a fatal error. And my new word of the day is "surplusage"
R. v. Hargan, 2009 ONCJ 65 is one case available on Canlii that deals with a missing section number:
The case is very similar to the OP's in that the ticket is correct save for the missing section number. The Judge ruled that this was NOT a fatal error.
In the circumstances of this case I am of the view that there was no confusion created by the absence of the section of the Highway Traffic Act on the certificate. The offence was properly described...
...the description used by the officer to refer to the offence on the certificate may be used to describe an offence under s. 106(2) of the Highway Traffic Act and the section number is surplusage.
It all seems a bit arbitrary. I filed a ticket with 50 written in the "set fine of" box, you know, the one with the dollar sign in it and the JP quashed it because I hadn't written 50.00 and so my 50 could have meant 50 cents.......apparently. Different judge, different day, different outcome.
It all seems a bit arbitrary. I filed a ticket with 50 written in the "set fine of" box, you know, the one with the dollar sign in it and the JP quashed it because I hadn't written 50.00 and so my 50 could have meant 50 cents.......apparently. Different judge, different day, different outcome.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !
I've decided not to risk it, given what I've seen and heard the JP do for the first little while today, so I've gone the route of getting an adjournment charged to the prosecution, based on the so called disclosure I've received 2 weeks before the trial. The JP said I shouldn't expect to ever see an entire radar operating manual, but that my other points are valid. With this in mind, they've given me a trial date which falls short of a year (1 week less than 11 months after the original offence date), so I'm not sure how much I can play the 11b game...
I've decided not to risk it, given what I've seen and heard the JP do for the first little while today, so I've gone the route of getting an adjournment charged to the prosecution, based on the so called disclosure I've received 2 weeks before the trial.
The JP said I shouldn't expect to ever see an entire radar operating manual, but that my other points are valid. With this in mind, they've given me a trial date which falls short of a year (1 week less than 11 months after the original offence date), so I'm not sure how much I can play the 11b game...
I got ticket for failing to stop at stop sign in Toronto. i heard that the police officer must see the stop line, if there is one, from where he was sitting. That is exactly my case, Is it a strong case? If so do i need a picture to show that there is a stop line and a picture to show that he could not see the stop line from where he was sitting?
I got a ticket, Disobey stop sign, sec 136.1.a on dec 6th
I made a left in an intersection and was pulled over by a police officer in an unmarked car who had been sitting down the road. A classic fishing hole situation. I was genuinely surprised when he stopped me and told me I went through a stop sign without even slowing down. I know to shut up and be polite and take the ticket. I…
Yesterday morning, I rear-ended someone. I was going the speed limit. The sun was directly in front of me and it blinded my windshield and my eyes. At the same time, the person in front of me stopped/slowed down (also due to the sun). I started to slow down but didn't stop and I hit them since I couldn't see anything. I was not driving too close initially. I…
I was driving in the county at night and hit a limousine stretched out side ways across the road. The limo had its lights on and had side lighting as well. The police officer charged me with careless driving because it was "fully lit up".
It took me to the next day to figure out what had happened - what I remember made no sense. What I had run across was a "false visual reference" illusion.
I was on hwy 37 trying to make my girlfriends ganadmas mass and I live an hour away and I had an hour to get there so I was going fast but not 50 over untill some idiot got on my tail soo close that I was to concentrated on him that I kept going faster untill I got pulled over at 147 on an 80 km hwy.
I alreaddy lost 3 points and this time was just the…
Hello, got stopped today for rolling a stop sign. Ticket says failure to stop, but quotes hta 1361b.
Doesn't 1361b mean failure to yield?
Is this a fatal error? Or could it be amended at trial. How can I prepare a defence if I don't know if I'm defending the failure to stop or the failure to yield?
After he was providing me with a ticket for failure to obey to the stop sign (I am pretty sure I stopped but less than 3 seconds recommended by my driver ed. instructor), I know everybody say that..as an excuse.
Then he stopped me again to return the documents.
Any advice and feed back would be really appreciated.
Can you get evidence for whether someone had an advanced green at an intersection? My dad was making a right turn on a red (after stopping) into a plaza parking lot. He got hit by someone making a left turn from the opposite lane. The driver told the officer called to the collision that he had an advance green. My dad said he came out of nowhere which makes me…
So i was driving on Eglinton Avenue East near Rosemount Ave.
The school bus was on the the curb on the opposite side of the road while i was travelling on the middle lane of the three-laned Eglinton Avenue East (five lanes apart plus a raised median island seperating the traffic)
I could not see the school bus as my view of the bus was being obstructed by the cars in front of me and on my left hand…
Lots of good information on getting disclosure from the Crown here.
Now, I am just wondering if I will be relying upon evidence of my own at trial... do I have to voluntarily send this material to the Crown in a reasonable time before the trial, or only if they request disclosure from me?
This morning I had an exam for university. I was studying the entire night and i wanted to catch like maybe 1-2 hours of sleep before the exam so i went to sleep. I woke up like 5 hrs after and realize that I was about to miss my exam. I still could have made it so I asked my dad for his car since I was in a huge rush and he gave it to me.
I went on the highway and I was going at 135 km/h but…
the police officer was in in the opesite oncumming lane he was fallowing another car so close that i was not even able to see his cruser till he was buy he said that i was going 111 in a 80 he said he hade me on radar he only asked for me drivers licencs and never asked for my insurence so on the ticket there no insurence dose enyone think i can beat this i wana take it to cort becuse he was…
Hi I have a couple questions so I'll explain my situation and any advice would be appreciated.
Can't remember exact date so lets call it some time in 2008 I got a fine for $5000.00 for driving without in insurance. I never paid the fine and in 2012 I was pulled over and the officer asked to see my license. Although I had it on me I figured it would be under suspension for the unpaid fine from…
Alright, so I did something really stupid the other day, I was driving down a country road and wanted to hit the curves so I passed 3 cars at once, inadvertently making it up to very much past 50 over (80 limit)... Much to my chagrin there was a cop coming in the opposite direction who immediately skidded on the gravel shoulder and who I thought was 100% going to turn around and pull me over,…
Anyone know how backed this courthouse is? I submitted my ticket for trial at the end of August, and still no letter. Im scared it got lost in the mail, can i call the courthouse and find out my courtdate? Or would i have to go in personally?
I recently received a ticket for failure to use low beams - while following - Ticket was issued Sec 168 (
- it was on the 401 and no one was within 500 meters of me, I was warning a oncoming vehicle that there was an officer hiding (which is not illegal or I could not find a law against it) it was a police vehicle travelling at very high rate of speed in the opposite direction with no lights on…
I received a warning letter from MTO for a 2pts ticket.What happened is that the police officer issued a "unsafe left turn" and then changed the ticket to "failed to signal" at the scene, but she submitted both tickets!!! And I !!!ONLY!!! received the latter ticket from her(I requested trial for "failed to signal"). I recently received notice from MTO that I'm convicted for "unsafe left turn".
Hello everyone! I was given a ticket for using a hand-held communication device while driving. It was 3 am, I was at a stop light and the cop saw me with the my phone in my hand. I told him i was just checking the time on it. I received the notes a few weeks ago ill copy them down below. Any help is appreciated although i believe there's no hope for me. The cop recorded me saying what phone i…
I got pulled over about 15 or so days ago the court till this date has not received the summons what is the legal time period that the court has to follow to accept the summons from the office court says its 15 days is the legal timeframe the officer has to serve it on the court
I requested for disclosure of information two months ago.
I received the radar manual after one month, but not others (including maintenance/calibration record of the radar, certificate of police training). On further pursuit, the prosecutor told me that he did not have them and he did not see why I needed these documents. He said he did not know where to get them when I asked.
Last Friday I was pulled over by an OPP motorcycle cop who informed me I was going 134. I was on the SB 404, I did see him parked under a bridge and when I passed him he was not on his bike.
I'm hoping to get some insight for a defense in this case.
I was in lane 1 and I had a car in front of me, and a car behind me, also there was a car speeding down Lane 3 passing everyone and moved quickly into…
