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Ontario Highway Traffic Act

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Was the copy giving me a birthday present?
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PostPosted: Mon Apr 08, 2013 10:21 pm 
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Hi, thanks for reading. I've read a bunch of articles online and searched the forum to try and find my answers but I'm still unsure so I'm creating a new thread.

I was following a car that was going SUPER fast down the DVP but I got pulled over. I was speeding, too; however I don't want to use the "you got the wrong guy" defence because I'll probably lose.

Anyway, it was on my birthday and I'm wondering if the fatal flaws on my ticket are a gift from the cop lol. Actually, I really just want to know how to fight it!

1) The offence date was written as April 4th, but it actually occurred April 5th. I have witnesses to prove I was at work on the 4th, if that matters.
2) The set fine was $294. This part confuses me because the HTA fine is $7 per km and the OCoJ is $6. 49*6=294, so he got that right if the OCoJ fine is used. But I was officially charged with "139km/hr in a 90km/hr zone - HTA 128" (no sub section was written). That set fine should come with a $60 victim charge (or whatever it's called), but the total payable was written as $355. That's a $61 fine. I can only find reference to a $5 court fee, but nothing for only $1.

I've read that if I go to trial and point these flaws out to the prosecutor that he can just change it and then I'm screwed. I've also read that if I ignore the whole thing (forcing the fatal flaw) that the court might not notice and fine me anyway...risky.

So, if I choose the pre-trial option and point out the 2 fatal flaws, will that work? Should I wait for trial and be like "oh, the wrong date...my whole defence was prepared for April 4th...I clearly wasn't driving then and the officer probably wasn't even on duty that night at that location, blah blah blah".

Thoughts?


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 09, 2013 11:31 am 
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1) The date is amendable in court and is not a fatal flaw.
2) Just looked in the notebook comanion and the set fine for 49 over is $249 and the total payable is $355.
Section 128 is correct for the charge and no sub-section is required.

I see no fatal flaws in your ticket.


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 09, 2013 12:10 pm 
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Decatur wrote:
2) Just looked in the notebook comanion and the set fine for 49 over is $249 and the total payable is $355.


My fine sheet says it would be $359, which I think is correct. I'm wondering if they made a misprint in a batch of notebook companions.

Base fine is $294, victim surcharge is $60 and court costs would be $5.


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 09, 2013 12:14 pm 
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My bad. i should have put my cheaters on. It is $359. Maybe the officers 9 looks like a 5 on your copy??


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 09, 2013 4:17 pm 
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It's definitely a 5.

So what should I do? Should I defend myself by ignoring the date thing and then saying I obviously wasn't there on the 4th? Will that work? I mean, obviously the cop pulled me over at SOME point. I'd be getting off on a technicality, that his testimony was the 4th even though it was the 5th.


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 09, 2013 5:17 pm 
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Again, if you go to trial the error can be corrected. Probably your best approach would be to force a fatal error based on the incorrect fine.

The ticketcombat site has a basic explanation of the process here: http://www.ticketcombat.com/offences/fi ... forceerror


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 09, 2013 9:40 pm 
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Thanks for your advice.

As the website says, forcing the fatal flaw seems risky, but I'm not sure why because it also says: "However, if they don't kill the traffic ticket, you then have an opportunity to appeal based on an error of law: the justice should have quashed the traffic ticket based on POA section 9(1)b,". To me that means I get 2 chances for the ticket to be squashed. If the prosecutor doesn't see the $4 error then I can re-open the case and show the judge that it SHOULD have been thrown out. Seems like a no-brainer...no?

As for the date (which I'm pretty sure now ISN'T a fata flaw)...can't I just use the "I wasn't there on that date" defence? Assuming the officer doesn't correct the date before trial, when they show evidence I will have proof I was at work...end of story.

Also, he has 7 days to file. Is that form the offence date? Cuz the offence date is the previous day, so that would mean he has only 6 "real" days! That could work out in my favour. How do I check if he has filed? Do I call Edward St.?


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 09, 2013 10:36 pm 
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I just read the ruling on http://www.ontariocourts.on.ca/decision ... CA0429.htm and it speaks of errors in the "set fine" area...it doesn't mention the "total payable" which is where my error is. Ugh...


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 09, 2013 11:42 pm 
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People have won in cases where the the set fine was correct and the total payable was wrong. Read this contributors experence for a case in point. Link: topic2521.html


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Re: Was the copy giving me a birthday present?
PostPosted: Wed Apr 10, 2013 4:07 pm 
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Amazing! Thanks daggx!


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 16, 2013 8:19 am 
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Any updates on this case? I got a ticket last Sunday but my situation is a bit different. My set fine was wrong but total payable was right.

Got a speeding ticket n Barrie, ON for 23 km/h over the 50km/h posted speed limit (73km/h). I said sorry to the officer. He wrote the set fine 91.25 on the ticket + 111.25 total payable (I guess this is sum of court and victim surcharge).

What he wrote on the ticket:
Set Fine: 91.25
Total Payable: 111.25

What he should have written according to the speeding fines guidelines:
Set Fine: 86.25 (since the ticket says I am 23km/h over)
Total Payable = 111.25

Note that the total is CORRECT but the set fine is wrong (91.25 instead of 86.25).

Should I do nothing in this case, I mean does "force the fatal error" apply to this scenario? My specific questions (or doubt) is that only the set fine amount is wrong, but the total payable (overall calculation) is correct.


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Re: Was the copy giving me a birthday present?
PostPosted: Tue Apr 16, 2013 9:07 pm 
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Hi Musketeer,

Forcing a fatal error, as in ignoring the ticket and appealing if they get a default judgment against you, should work in your situation. There are two cases you should look at:

1. London (City) v. Young at paragraph 16 mentions situations where the set fine was wrong and the total payable was correct. http://www.ontariocourts.on.ca/decision ... CA0429.htm

2. R. v. Monahan et al. paragraphs 33 to 37 goes into greater detail about the issue. http://www.canlii.org/en/on/oncj/doc/20 ... cj298.html

Both cases indicate that an incorrect set fine is a fatal error even if the total payable is correct. If you wind up in court be sure to bring and cite both cases. I would read both of them all the way through so that you have a complete understanding of the arguments they are making in case the court has questions for you when you are making your case.

You can also do a quick case law search using the CanLii database to look at the most recent case law on the subject. http://www.canlii.org/en/index.html


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Re: Was the copy giving me a birthday present?
PostPosted: Fri Feb 28, 2014 3:34 pm 
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UPDATE:

So my ticket was NOT quashed and I had to pay the fine. I filed for an appeal and my court date is in one month so I'm revisiting all of this stuff to prepare for my case.

On Aug 2nd (4 months after my initial ticket), I paid the fine of $384 that they sent me in the mail. There was a $30 late fee charged on top of the listed $354 ticket cost -- obviously a clerical error as the ticket was actually set for $355. I saved $1, yay lol

I'm going to use all of these wrong fine amounts in my case, pleading that the whole situation is a mess and should just be quashed.

Thoughts?


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Re: Was the copy giving me a birthday present?
PostPosted: Wed Mar 05, 2014 7:20 pm 
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now that you have paid the ticket, you have to file an appeal based on error of law. there is a guide on how to do that somewhere on this site.


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Re: Was the copy giving me a birthday present?
PostPosted: Thu Mar 06, 2014 5:20 pm 
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I've already filed for appeal and my court date is in one month. I'm just looking for suggestions/advice on how to handle the case.


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