Should this speeding ticket(s) be thrown out for misconduct?

Here is a snapshot of what happened

I was pulled over in January 2010 in Niagara region going 110 in an 80.

The officer is not overly friendly and asks if I've been drinking. I say no.

The officer issues me a ticket for 100 in an 80km. This ticket is handed to me.

I tell the officer I don't think I was going that fast and plan on challenging the evidence in court.

He TAKES the ticket back from me and issues a second ticket for 110 in an 80. The first ticket is never filed.

I attend court in December 2010. I explain the situation but the JP says he does not care about the first ticket and is focusing on the one I've plead not guilty to.

I have a short trial and all parties ignore the first ticket. I am convicted for going 110 in an 80.

I appeal the conviction and have appeal court on May 30. I will again try to explain the chain of events that resulted in the second ticket being issued.

Thoughts?

Not really sure about the rescinding of one ticket and issuing another in its place... If you go to trial, the Prosecutor can simply advise the JP that they are seeking the original speed that you were alleged to have been doing. I think the best answer is probably found under the Provincial Offences Act and case law related to it. (Simon Borys feel free to chime in here...)

Truth be told, I'm not sure that the officer did something completely improper.

Trying to explain the officer issuing one ticket, then giving you another with the original speed you were alleged to have been doing, does not provide a defence to the charge of speeding.

My thought is the second ticket was laid in a manner that showed malicious prosecution and it should be thrown out for that reason.

It's not a malicious prosecution.

The one argument which you could possibly make (and I haven't researched any case law on this) is that, under s. 3(2) and 3(3) of the POA, the officer must fill out a ticket and serve it personally on the defendant within 30 days. This initiates a proceeding. Once this is done (which one could argue it was in your case if the officer wrote the ticket up and handed it to you), I don't think the officer has any authority (at least not that I can find in the POA) to retract that ticket in order to change it. If he wants to do so for some reason, the correct approach would be to issue a corrective summons on you at a later date.

So the 1st ticket was issued, but not filed within 7 days as required by POA s. 4, so it was not before the courts for you to answer to and the second ticket issued moments later could be considered void for duplicity, as it's essentially the same charge, arising out of the same circumstances, as the first one.

If ticket 1 was not properly before the courts for you to answer to and ticket 2 should have been quashed for being a duplicate of #1, then your argument could essentially be that the JP erred in proceeding with a trial since there should have been nothing for you to respond to.

The argument would be something to that effect anyway...I haven't really thought it out fully.

I appreciate the advice. I'm handling this matter unrep'ed. I will review this with the JP and present these points to the judge. Hopefully it's a) thrown out on the spot or b) a second trial date is set. I'll post the results next week. Thanks.

A reduced ticket is completely officers discretion. If someone is an ass why should I exercise that discretion. I have done the same and will do the same in the future.

But since everyone fights every speeding ticket I pretty much do not reduce them anymore. ( when I do reduce it is to disobey sign by-law). If someone wants a ticket with no points I let the Crown or JP make that decision not me.

GS

You were driving 110 in an 80. The officer likely reduced it to 100 in an 80 to save you the 4th demerit point and having a major infraction on your record. You complained, so he wrote you a ticket for the full infraction, which he can do if you dispute the reduced infraction. If you dispute a reduced charge, they will seek the full charge. The judge won't accept your complaint because you have recourse. It's really that straight-forward.

*Edited by forum*. If I feel I wasn't speeding and choose to tell the officer issuing me the ticket I plan to challenge his evidence in a court of law I will. Its my right. Also edited by forum.

nerd wrote:

You were driving 110 in an 80. The officer likely reduced it to 100 in an 80 to save you the 4th demerit point and having a major infraction on your record. You complained, so he wrote you a ticket for the full infraction, which he can do if you dispute the reduced infraction. If you dispute a reduced charge, they will seek the full charge. The judge won't accept your complaint because you have recourse. It's really that straight-forward.

We'll see what happens at the appeal.