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Ontario Highway Traffic Act

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Sppeeding Ticket Error!
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PostPosted: Fri Apr 30, 2010 9:39 am 
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I was charged with speeding. The officer wrote the offence as" 90kms. per hour in a 126 km. zone" instead of the other way around. Without going into details, I believe I was the wrong vehicle pulled over. I was going a little over 100Kms/per hr. I am requesting a trial date and basing my defence on the fact the ticket is defective because it does not have a valid charge. I am going to ask the ticket be quashed before entering a plea. Can the Justice of the Peace amend the ticket? I know there are a lot of errors that are amendable but is this one of them? If the Justice amends the ticket to read properly, can I ask for a "stay of proceedings" so that I can obtain disclosure from the prosecution because my defence has been compromised. Thanks for the help.


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PostPosted: Fri Apr 30, 2010 11:14 am 
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It doesn't really make sense to go to a trial date to ask for a stay of proceedings to ask for disclosure since disclosure should have been taken care of before you get to the trial date.

The error on the face of the ticket is amendable if you take it to trial. What they do with it depends largely on the justice of the peace. I've seen some that throw out any ticket that's defective but I've also seen some who will say that the error hasn't prejudiced your ability to make a defence, since the act and section are correct and a licenced driver in Ontario can reasonably be expected to know that there are no 126 km/hr zones in Ontario.

It's been my experience that in larger cities like Toronto they throw out tickets at the drop of a hat because there are so many, but in smaller jurisdictions they have the time to hear arguments on amending certificates at trial.

Good luck with whatever you decide to do.


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PostPosted: Fri Apr 30, 2010 9:07 pm 
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Respectfully disagree........ This mistake does not set out proper offence and the certificate should be quashed rather than amended.

Personally, I would let this ticket go FTR (fail to respond) and file an appeal to get this matter quashed.


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PostPosted: Tue May 04, 2010 7:23 pm 
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Traffic Law wrote:
Respectfully disagree........ This mistake does not set out proper offence and the certificate should be quashed rather than amended.

Personally, I would let this ticket go FTR (fail to respond) and file an appeal to get this matter quashed.


Agreed. Any JP looking at this should quash it right away, so no need for an appeal. If the JP does register a conviction (i.e. you'll get a conviction notice), launch an appeal.

Maybe check in to the POA office every so often and ask for an ICON printout for your case. FTR's usually go to a JP within 35 days from the filing date.


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Certficate should be quashed if....
PostPosted: Sun May 30, 2010 2:02 pm 
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Location: Hamilton, ON
The authority for a justice of the peace to amend a certificate is provided by s.34 of the POA. That authority, however is limited to proceedings where the defendant is present or represented. It may not be used to amend a certificate in absentia (where the defence is not present).

There are two sections of the POA that compel the justice of the peace to deem the defendant to not wish to dispute the charge when the defence is not present and proceed in absentia; s.9 and s. 9.1.

s. 9 is triggered when the defendant fails to respond by not filing a notice of intention to appear or by not taking the other options.

This will be done approximately 45 days after the date of the ticket. I know, the law says 15 days after, but it showed to be impractical and PO courts usually wait for another 20 to 30 days depending on the jurisdiction. You may call the office and ask to be sure.

With due respect Keroba, failing to respond is not the preferred option because the charge may be relayed (charged again) within 6 months from the time of the offence.

s.9.1 deals with an absent defence at the time of the trial, at which time the justice of the peace may or may not catch the error and you risk having to appeal at the extra cost and time.

The best way to proceed is getting someone to appear as a 'friend of the court', which will not attorn the defendant to the jurisdiction of the court, and advise the court of the error, which in this case is fatal. The court should then proceed under s.9.1 well knowing -and the record would show- that the certificate is defective (actually; is NOT complete and regular on its face) and not amendable

It is now trite law that the justice of the peace may NOT make any amendments to a certificate without the presence of the defendant or a defence representative.

File your NIA but do not go to the trial; send a friend without the authority to enter a plea on your behalf, to act as a friend of the court.

By the time the matter has been set for trial, the 6 months limitation would have elapsed.

Cheers.


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