My son, the 16 year old teenager, was cycling along the road and saw a car slowing down ahead of him without showing any turn signals. Unsure of the driver actions, my son turned to the deserted sidewalk on his right where he continued biking for some time until car turned sharply right to his driveway just a meter in front of my son without seeing him. To avoid a collision my son turned right but car continued moving since the driver still didnt notice him and the collision occurred. My barely managed to keep control of his bicycle and avoid a serious injury, however his left leg was hit. He was in such shock and pain that he couldnt think clearly and was not able to use right judgment and tried to distance himself from the collision scene to check his hit leg. This accident was investigated by a police officer who granted my son with "Fail to remain" ticket. He told us that the driver would be charged for careless driving since he didnt notice cyclist on a sidewalk and collided with him when making a right turn to the driveway if my son did not leave the scene. In spite of the "Fail to remain" ticket the car driver (plaintiff) wants us to pay his full damage ($1122.04) as this according to plaintiff this will not be reimbursed by his insurance company making a statement that the plaintiff should not have to make a claim for repairs on their automobile insurance when the individual responsible for the damage is known and bring this issue to the small claims court. Is this legal as the bicycle is covered under my home insurance company? The plaintiff has to prove one of three things: Negligence, intentional tort or strict liability. Can it be the case?
Rules of court. You can request a judge extend the time for bringing an appeal. You can request the judge waive the requirement that you pay the fine before filing the appeal. You must file a motion to achieve this request. Form 37A. Filing a notice of motion cost $180. If you win you still have to proceed to the appeal hearing. It would take months to get this the whole process. Filing a challenge under s. 24 of the Charter is free. It's heard within a few weeks. http://www.canlii.net/on/laws/regu/1994 ... whole.html EXTENSION OR ABRIDGMENT OF TIME Judges power 8. (1) A judge may extend or abridge the time for bringing an appeal and for doing any other act in connection with an appeal for which a time is prescribed before or after the expiration of the time prescribed. O. Reg. 722/94, r. 8 (1). Notice (2) A notice of motion to extend or abridge time shall be given to the opposite party, unless otherwise directed by a judge. Power of judge (5) Upon the hearing of a motion, the judge may receive and base his or her decision on information that he or she considers credible or trustworthy in the circumstances, whether or not other evidence is given. O. Reg. 722/94, r. 11 (5). Hearing where notice not served (6) A motion may be heard without service of a notice of motion, (a) on consent; (b) where the motion is made under section 111 or 112 of the Act; or (c) where, having regard to the subject-matter or the circumstances of the motion, it would not be unjust to hear the motion without service of a notice of motion. O. Reg. 722/94, r. 11 (6).
Rules of court.
You can request a judge extend the time for bringing an appeal. You can request the judge waive the requirement that you pay the fine before filing the appeal. You must file a motion to achieve this request. Form 37A. Filing a notice of motion cost $180. If you win you still have to proceed to the appeal hearing. It would take months to get this the whole process. Filing a challenge under s. 24 of the Charter is free. It's heard within a few weeks.
8. (1) A judge may extend or abridge the time for bringing an appeal and for doing any other act in connection with an appeal for which a time is prescribed before or after the expiration of the time prescribed. O. Reg. 722/94, r. 8 (1).
Notice
(2) A notice of motion to extend or abridge time shall be given to the opposite party, unless otherwise directed by a judge.
Power of judge
(5) Upon the hearing of a motion, the judge may receive and base his or her decision on information that he or she considers credible or trustworthy in the circumstances, whether or not other evidence is given. O. Reg. 722/94, r. 11 (5).
Hearing where notice not served
(6) A motion may be heard without service of a notice of motion,
(a) on consent;
(b) where the motion is made under section 111 or 112 of the Act; or
(c) where, having regard to the subject-matter or the circumstances of the motion, it would not be unjust to hear the motion without service of a notice of motion. O. Reg. 722/94, r. 11 (6).
Instead of "appeal", what about "reopen"? I'm thinking in terms of all the wrongly convicted (David Milgaard, Romeo Phillion, Thomas Sophonow, Guy Paul Morin, etc.) and how years later they got a new trial or were exonerated. Granted they fall under the CCC but what is the provision/approach used?
Instead of "appeal", what about "reopen"? I'm thinking in terms of all the wrongly convicted (David Milgaard, Romeo Phillion, Thomas Sophonow, Guy Paul Morin, etc.) and how years later they got a new trial or were exonerated. Granted they fall under the CCC but what is the provision/approach used?
I just send the e-mail to crown to poacourt(at)toronto.ca where I expressed all arguments you lawmen suggested. Let's see the outcome. The Justice of Peace already extended the fine payment up to March 15. I guess I have to figure out how to do it... :D
I just send the e-mail to crown to poacourt(at)toronto.ca where I expressed all arguments you lawmen suggested. Let's see the outcome.
You can request the judge waive the requirement that you pay the fine before filing the appeal.
The Justice of Peace already extended the fine payment up to March 15.
Filing a challenge under s. 24 of the Charter is free. It's heard within a few weeks.
piezomot, post a copy of your email, please. TC, according to s 11(1) of the POA, reopening only applies under Part I if the accused was convicted without a hearing, and only if they apply within 15 days becoming aware of the conviction. I'm not sure what is proper procedure in a case like this. Reopening 11. (1) If a defendant who has been convicted without a hearing attends at the court office during regular office hours within fifteen days of becoming aware of the conviction and appears before a justice requesting that the conviction be struck out, the justice shall strike out the conviction if he or she is satisfied by affidavit of the defendant that, through no fault of the defendant, the defendant was unable to appear for a hearing or a notice or document relating to the offence was not delivered.
piezomot, post a copy of your email, please.
TC, according to s 11(1) of the POA, reopening only applies under Part I if the accused was convicted without a hearing, and only if they apply within 15 days becoming aware of the conviction. I'm not sure what is proper procedure in a case like this.
Reopening
11. (1) If a defendant who has been convicted without a hearing attends at the court office during regular office hours within fifteen days of becoming aware of the conviction and appears before a justice requesting that the conviction be struck out, the justice shall strike out the conviction if he or she is satisfied by affidavit of the defendant that, through no fault of the defendant, the defendant was unable to appear for a hearing or a notice or document relating to the offence was not delivered.
I looked at the POA and the 15 day limits. I'm trying to get outside that box. The Limitations Act gives two years upon "discovery". I believe CCC has no limitation for murder and I guess that's how they can reopen or retry. But I think there must be some "miscarriage of justice" clause or statute that allows exoneration when it can be shown you are innocent. And it should take precedence over the POA, no?
I looked at the POA and the 15 day limits. I'm trying to get outside that box. The Limitations Act gives two years upon "discovery". I believe CCC has no limitation for murder and I guess that's how they can reopen or retry. But I think there must be some "miscarriage of justice" clause or statute that allows exoneration when it can be shown you are innocent. And it should take precedence over the POA, no?
lawmen, thanks for your support, I sent you my letter, I do not want it to be posted here. I just have got this reply on my e-mail: Dear Sir: Under the Provincial Offences Act, the only method by which you can have your Part 3 conviction set aside is by way of an appeal. In order to appeal the conviction, you must attend at the court office where the matter was heard within 30 days of the conviction and complete and file your Notice of Appeal. You will also be required to pay the court ordered fine , order a transcript of the court proceedings and pay a deposit of $25.00 towards the preparation of same. Please note that, depending on the length of your matter, you may be contacted at a later point to pay a Further Deposit for the completion of your transcript. Please note, I will also forward your e-mail to the attention of the Prosecutor's office What should I do now? Can someone "translate" this reply to me?
lawmen, thanks for your support, I sent you my letter, I do not want it to be posted here.
I just have got this reply on my e-mail:
Dear Sir:
Under the Provincial Offences Act, the only method by which you can have your Part 3 conviction set aside is by way of an appeal.
In order to appeal the conviction, you must attend at the court office where the matter was heard within 30 days of the conviction and complete and file your Notice of Appeal. You will also be required to pay the court ordered fine , order a transcript of the court proceedings and pay a deposit of $25.00 towards the preparation of same. Please note that, depending on the length of your matter, you may be contacted at a later point to pay a Further Deposit for the completion of your transcript.
Please note, I will also forward your e-mail to the attention of the Prosecutor's office
What should I do now? Can someone "translate" this reply to me?
TC, indictable offences under the CCC has no limitation period. Summary offence has a 6 month limitation period. The CCC provides various ways of appeal. The POA does too but Im stumped on what were facing here. It appear one must request an extension of time to appeal. P, they claim you have 30 days, but this is incorrect. You have 15 days, but weekends and holidays dont count so 15 days could be 20 calendar days. In any event, its been longer than 15 or 30 days. Send them this email reply if it meets your satisfaction and see what they say. Hello. My 16-year old son was convicted of an offence for which he cannot be convicted of at law. The law he was convicted of doe not apply to him as he was riding a bicycle and the law in question only applies to a motor vehicle. The charge was laid under Part I of the POA. Appeal under Part I begin at section 135. Section 135(2) of the POA only provides 15 days to appeal. Application for appeal 135(2) A notice of appeal shall be in the prescribed form and shall state the reasons why the appeal is taken and shall be filed with the clerk of the court within fifteen days after the making of the decision appealed from, in accordance with the rules of court. We only discovered the error of law regarding the conviction after the 15 day appeal period had passed. We cannot find any provision that allows us to appeal after the 15 day period. Despite the 15 day limitation period, the conviction cannot stand because a person cannot be convicted of an offence when the law they have been convicted of does not apply to them. Please advise how we are to properly proceed having this conviction quashed? Thank you.
TC, indictable offences under the CCC has no limitation period. Summary offence has a 6 month limitation period. The CCC provides various ways of appeal. The POA does too but Im stumped on what were facing here. It appear one must request an extension of time to appeal.
P, they claim you have 30 days, but this is incorrect. You have 15 days, but weekends and holidays dont count so 15 days could be 20 calendar days. In any event, its been longer than 15 or 30 days.
Send them this email reply if it meets your satisfaction and see what they say.
Hello.
My 16-year old son was convicted of an offence for which he cannot be convicted of at law. The law he was convicted of doe not apply to him as he was riding a bicycle and the law in question only applies to a motor vehicle.
The charge was laid under Part I of the POA. Appeal under Part I begin at section 135. Section 135(2) of the POA only provides 15 days to appeal.
Application for appeal
135(2) A notice of appeal shall be in the prescribed form and shall state the reasons why the appeal is taken and shall be filed with the clerk of the court within fifteen days after the making of the decision appealed from, in accordance with the rules of court.
We only discovered the error of law regarding the conviction after the 15 day appeal period had passed.
We cannot find any provision that allows us to appeal after the 15 day period. Despite the 15 day limitation period, the conviction cannot stand because a person cannot be convicted of an offence when the law they have been convicted of does not apply to them.
Please advise how we are to properly proceed having this conviction quashed?
If they even have a clue, they will tell you to request that the judge provide you an extension of time and waive the right t pay the fine prior to filing an appeal. Theyre clueless, though. First they said your conviction under Part III. You son was issued a ticket, which is Part I; not III. They told you that you have to pay the fine before appealing, which is correct, but they never told you that you can request the Judge waive the fine payment requirement. You're not going to pay a $480 fine in order to appeal when the fine should never have been ordered. A person sentenced to a term of imprisonment doesn't have to complete his sentence prior to appealing. The rules of court do not provide the procedure to request a judge waive the fine and extend the appeal period. I assume it is by way of motion. This case could become a landmark case if you push it far enough. You can constitutionally challenge three points of law. 1] A person cannot plea bargain down to an offence that does not apply to them. 2] A court cannot convict someone of an offence when the offence plea bargained down to does not apply to them. 3] A person cannot be forced to pay a fine in order to appeal when the fine should never have been imposed. Now, you do not want this case reopened or a new trial. You want the conviction struck out and an acquittal entered. Period. If your case is reopened or you get a new trial, you have to face the charge of failing to remain. Im confident youd win on merit, but thats not the point. They havent tried your son in a reasonable time, thus, in my view, they violate your son's right under s. 11(b) of the Charter and its too late for a new trial.
If they even have a clue, they will tell you to request that the judge provide you an extension of time and waive the right t pay the fine prior to filing an appeal.
Theyre clueless, though. First they said your conviction under Part III. You son was issued a ticket, which is Part I; not III.
They told you that you have to pay the fine before appealing, which is correct, but they never told you that you can request the Judge waive the fine payment requirement.
You're not going to pay a $480 fine in order to appeal when the fine should never have been ordered. A person sentenced to a term of imprisonment doesn't have to complete his sentence prior to appealing.
The rules of court do not provide the procedure to request a judge waive the fine and extend the appeal period. I assume it is by way of motion.
This case could become a landmark case if you push it far enough. You can constitutionally challenge three points of law.
1] A person cannot plea bargain down to an offence that does not apply to them.
2] A court cannot convict someone of an offence when the offence plea bargained down to does not apply to them.
3] A person cannot be forced to pay a fine in order to appeal when the fine should never have been imposed.
Now, you do not want this case reopened or a new trial. You want the conviction struck out and an acquittal entered. Period.
If your case is reopened or you get a new trial, you have to face the charge of failing to remain. Im confident youd win on merit, but thats not the point. They havent tried your son in a reasonable time, thus, in my view, they violate your son's right under s. 11(b) of the Charter and its too late for a new trial.
Last edited by lawmen on Sat Nov 08, 2008 11:55 am, edited 1 time in total.
Yes lawmen, I agree with your last post by 100%! How to make it happend? What steps do I need to take? Usually the conviction quashed by an appeal court: http://news.bbc.co.uk/2/hi/asia-pacific/5405952.stm http://www.newsletter.co.uk/news/Republ ... 4627964.jp We have to visit the appeal judge in downtown in March 2009. Don't we have grounds for this case being quashed then? Latest news, I just called to my home insurance company and spoke to a clerk there, they are going to write a check to me so I can pay to that car driver a full amount... It looks like I have to deal only with the original conviction now...
Yes lawmen, I agree with your last post by 100%!
Now, you do not want this case reopened or a new trial. You want the conviction struck out. Period.
How to make it happend? What steps do I need to take?
Usually the conviction quashed by an appeal court:
We have to visit the appeal judge in downtown in March 2009. Don't we have grounds for this case being quashed then?
Latest news, I just called to my home insurance company and spoke to a clerk there, they are going to write a check to me so I can pay to that car driver a full amount...
It looks like I have to deal only with the original conviction now...
Do what you feel best, but you don't owe the driver anything, or at least not the full amount. You should request your insurance provide you legal counsel, instead of giving him money he doesn't deserve. I have no clue why your insurance is cutting him a cheque when they haven't even invesitgated. Seems really odd to me. If you get to appeal the conviction, you're not looking for a new trial, you just want the appeal court to strike out the conviction. Let's wait and see what the court tells you after sending them the last email.
Do what you feel best, but you don't owe the driver anything, or at least not the full amount.
You should request your insurance provide you legal counsel, instead of giving him money he doesn't deserve.
I have no clue why your insurance is cutting him a cheque when they haven't even invesitgated. Seems really odd to me.
If you get to appeal the conviction, you're not looking for a new trial, you just want the appeal court to strike out the conviction.
Let's wait and see what the court tells you after sending them the last email.
lawmen, sorry I should have been mentioned it. The documents I filed in court during my last visit this week were: 1. Notice of Motion to Extend Time in Which to File an Appeal (ont.reg 723/94, rule 7 and/or ont. reg. 722/94, rule8) 2.Affidavit (ont.reg 723/94, rule 7 and/or ont. reg. 722/94, rule8) 3.Notice of Appeal (form1) under section 116 of the provincial offences act ont.reg 723/94
lawmen, sorry I should have been mentioned it. The documents I filed in court during my last visit this week were:
1. Notice of Motion to Extend Time in Which to File an Appeal
They'll get it back with interest from the increased premiums they'll charge over the next few years. I also think they would have investigated. No one cuts a cheque without paperwork and line authority approval. Otherwise there would be a lot of rich insurance clerks.
lawmen wrote:
I have no clue why your insurance is cutting him a cheque when they haven't even invesitgated. Seems really odd to me.
They'll get it back with interest from the increased premiums they'll charge over the next few years.
I also think they would have investigated. No one cuts a cheque without paperwork and line authority approval. Otherwise there would be a lot of rich insurance clerks.
Great case on the link below for many reasons. Must read indeed. http://www.charged.ca/pdf/Darell%20Wells.pdf As I mentioned, the justice was required to ensure the guilty plea was valid. I agree with TC. P, do not give the driver a cent at this point. Do not cash the insurance cheque. I think you should send it back.
Great case on the link below for many reasons. Must read indeed.
I did not get the insurance cheque yet. They told me to call them on Monday. I did not get it, what If I loose the small claim court? First of all it will be a conference. May this case did not go beyond this conference, I mean that there will be some decisions taken by judge? I think I have got it, I mean the whole situation. Car driver did not report this accident to his insurance company as he knew they will investigate and tell him that he is at fault. Now he can not get any reimbursement from his insurance company as it is too late now and he wants to get this money from me. What I did not get is why my insurance company wants to cut him cheque...
P, do not give the driver a cent at this point. Do not cash the insurance cheque. I think you should send it back.
I did not get the insurance cheque yet. They told me to call them on Monday. I did not get it, what If I loose the small claim court? First of all it will be a conference. May this case did not go beyond this conference, I mean that there will be some decisions taken by judge?
I think I have got it, I mean the whole situation.
Car driver did not report this accident to his insurance company as he knew they will investigate and tell him that he is at fault. Now he can not get any reimbursement from his insurance company as it is too late now and he wants to get this money from me. What I did not get is why my insurance company wants to cut him cheque...
Huh? Now I'm confused. Lawsuit hasn't gone forward yet but they already want to pay it out? :? Your premiums. They're going to raise your insurance rates. In the long run the insurance company paying out is going to cost you more than the fine for fail to report and the fees you paid to the traffic ticket specialist that didn't give you adequate representation. Something doesn't sound entirely right about their response, maybe they misunderstood the situation? I'd probably go in and talk to an insurance advisor. TC is right, the clerk wouldn't just write the cheque without approval, but perhaps the person with the authority didn't get a full picture of the situation. At the very least, if you haven't already, try to get them to delay sending any cheque until the lawsuit situation is resolved. I'm sure they don't want to pay a nickel if they don't have to...
Latest news, I just called to my home insurance company and spoke to a clerk there, they are going to write a check to me so I can pay to that car driver a full amount...
Huh? Now I'm confused. Lawsuit hasn't gone forward yet but they already want to pay it out?
are you talking about my premium or his premium?
Your premiums. They're going to raise your insurance rates. In the long run the insurance company paying out is going to cost you more than the fine for fail to report and the fees you paid to the traffic ticket specialist that didn't give you adequate representation.
Something doesn't sound entirely right about their response, maybe they misunderstood the situation? I'd probably go in and talk to an insurance advisor. TC is right, the clerk wouldn't just write the cheque without approval, but perhaps the person with the authority didn't get a full picture of the situation. At the very least, if you haven't already, try to get them to delay sending any cheque until the lawsuit situation is resolved. I'm sure they don't want to pay a nickel if they don't have to...
The City of Toronto Act, 2006 makes reference to an untravelled portion of a highway and sidewalk under s. 42. The Supreme Court of Canada rendered a decision in a case dealing with sidewalks and stated; "There would have been no need to refer to sidewalks in these provisions if sidewalks were included in "untravelled portions" of roads or "highways." http://scc.lexum.umontreal.ca/en/1993/1 ... 1-650.html Untravelled portions of highway (4) No action shall be brought against the City for damages caused by, (a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway; or (b) any construction, obstruction or erection, or any siting or arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement. 2006, c. 11, Sched. A, s. 42 (4). Sidewalks (5) Except in case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk. 2006, c. 11, Sched. A, s. 42 (5).
The City of Toronto Act, 2006 makes reference to an untravelled portion of a highway and sidewalk under s. 42.
The Supreme Court of Canada rendered a decision in a case dealing with sidewalks and stated;
"There would have been no need to refer to sidewalks in these provisions if sidewalks were included in "untravelled portions" of roads or "highways."
(4) No action shall be brought against the City for damages caused by,
(a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway; or
(b) any construction, obstruction or erection, or any siting or
arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement. 2006, c. 11, Sched. A, s. 42 (4).
Sidewalks
(5) Except in case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk. 2006, c. 11, Sched. A, s. 42 (5).
lawmen, are we talking about the same thing here? This is what I have found here: http://www.gtamotorcycle.com/vbforum/sh ... hp?t=59068 How do I make an 11b challenge? If you are serious about making an 11b challenge on your own, I suggest you first start by reading the ruling in the R. v. Morin case. Also, there is an 11b decision digest available on Canlii that is also fairly helpful. The first step is to file a Notice of Constitutional Question, or Form 4f, with the crown prosecutor, The Attorney General of Ontario, and the Attorney General of Canada. This lets the court know that you intend to dispute the charge with a charter claim. Again, if mailing the forms, use registered mail. The most economical route is if you own a fax machine. Here are two examples of a sample form: Sample form from government website Sample from FYST You should ideally start your 11b charter challenge as soon as you are made aware of the violation of your rights. I would usually wait until disclosure is obtained, but this is not strictly necessary. In the event that the prosecution refuses to provide disclosure, or does not provide you with disclosure in a timely manner, you can use this as additional 'ammunition' in your 11b challenge. However, you should not leave the challenge until the last minute. Failure to do so can be constrewed as an implicit acceptance of the pace at which things are happening (Number 4 in the list in section 2.2.1). E.g.: You didn't say anything before your trial date, so you are implicitly agreeing that the time taken to bring your case to court is acceptable to you. Similarly, if you do not actively pursue the prosecution for your disclosure, your complacency can be seen in the same way. In any event, you must file these forms no later 15 days before your court date. Once you have filed these forms, You may be contacted by the Prosecutor's office to have your court date moved forward. This is rare, as the courts are usually quite backed up, but in the 'unlucky' event that this happens to you, you will pretty much have to abandon your 11b challenge, unless disclosure still has not been provided. At your court date, before court is in session, you should tell the prosecutor that you intend to make your 11b challenge. Sometimes, they will acquiesce, and you will be off the hook. Other times, they may fight you tooth and nail. Once court is in session and you are called, you must immediately motion for a stay of proceedings based on your section 11b charter rights (and explain why you feel your section 11b rights have been violated). You must make this motion pre-plea (i.e.: before you have plead guilty/not-guilty). If your motion is accepted, the justice will enter a 'stay of proceedings' based on a violation of your charter rights (you are off the hook). If your motion is denied, you will have to proceed to trial, so be ready. Also, please note that generally speaking, making an 11b challenge and accepting a plea-bargain are mutually exclusive. If your charter challenge fails, you will not be able to plea-bargain, and you must then make a plea of either guilty (accept the ticket at face value) or not-guilty (proceed to trial immediately). Making an 11b challenge if you filed all the paperwork If you successfully filed all your paperwork for your 11b challenge, then you should inform the prosecutor that you intend to make an 11b motion. In some cases, if they feel your motion is very likely to succeed, they may just back down and drop the charges. Otherwise, wait until court has started. When you are called up to the stand, you will say your name for the court reporter, and then you will make your 11b motion pre-plea. See section 2.2.2 for more details. Making an 11b challenge if you didn't file all the paperwork If you didn't file any of the paperwork, you can still make an 11b challenge. However, you will have to ask for an adjournment to do so. Double check to make sure your witness is actually present (if the witness is not present, you could just proceed to trial and have your charge dropped). Tell the prosecutor that you intend to ask for an adjournment to file the paperwork necessary to make an 11b challenge. When you are called up, make your motion for an adjournment pre-plea. Explain that you failed to file the appropriate paperwork, and would like an adjournment to do so. Note that you will be basing the time period for your 11b challenge from the date of the offence to the first trial date. The time period from the first trial date to the second trial date will not count against your 11b rights, since you are the one who has caused the delay. I have highlighted one line. How this is going to work in our case as we already have plead guilty?
Filing a challenge under s. 24 of the Charter is free. It's heard within a few weeks.
If you are serious about making an 11b challenge on your own, I suggest you first start by reading the ruling in the R. v. Morin case. Also, there is an 11b decision digest available on Canlii that is also fairly helpful.
The first step is to file a Notice of Constitutional Question, or Form 4f, with the crown prosecutor, The Attorney General of Ontario, and the Attorney General of Canada. This lets the court know that you intend to dispute the charge with a charter claim. Again, if mailing the forms, use registered mail. The most economical route is if you own a fax machine. Here are two examples of a sample form:
Sample form from government website
Sample from FYST
You should ideally start your 11b charter challenge as soon as you are made aware of the violation of your rights. I would usually wait until disclosure is obtained, but this is not strictly necessary. In the event that the prosecution refuses to provide disclosure, or does not provide you with disclosure in a timely manner, you can use this as additional 'ammunition' in your 11b challenge. However, you should not leave the challenge until the last minute. Failure to do so can be constrewed as an implicit acceptance of the pace at which things are happening (Number 4 in the list in section 2.2.1). E.g.: You didn't say anything before your trial date, so you are implicitly agreeing that the time taken to bring your case to court is acceptable to you. Similarly, if you do not actively pursue the prosecution for your disclosure, your complacency can be seen in the same way. In any event, you must file these forms no later 15 days before your court date.
Once you have filed these forms, You may be contacted by the Prosecutor's office to have your court date moved forward. This is rare, as the courts are usually quite backed up, but in the 'unlucky' event that this happens to you, you will pretty much have to abandon your 11b challenge, unless disclosure still has not been provided.
At your court date, before court is in session, you should tell the prosecutor that you intend to make your 11b challenge. Sometimes, they will acquiesce, and you will be off the hook. Other times, they may fight you tooth and nail. Once court is in session and you are called, you must immediately motion for a stay of proceedings based on your section 11b charter rights (and explain why you feel your section 11b rights have been violated). You must make this motion pre-plea (i.e.: before you have plead guilty/not-guilty). If your motion is accepted, the justice will enter a 'stay of proceedings' based on a violation of your charter rights (you are off the hook). If your motion is denied, you will have to proceed to trial, so be ready.
Also, please note that generally speaking, making an 11b challenge and accepting a plea-bargain are mutually exclusive. If your charter challenge fails, you will not be able to plea-bargain, and you must then make a plea of either guilty (accept the ticket at face value) or not-guilty (proceed to trial immediately).
Making an 11b challenge if you filed all the paperwork
If you successfully filed all your paperwork for your 11b challenge, then you should inform the prosecutor that you intend to make an 11b motion. In some cases, if they feel your motion is very likely to succeed, they may just back down and drop the charges. Otherwise, wait until court has started. When you are called up to the stand, you will say your name for the court reporter, and then you will make your 11b motion pre-plea. See section 2.2.2 for more details.
Making an 11b challenge if you didn't file all the paperwork
If you didn't file any of the paperwork, you can still make an 11b challenge. However, you will have to ask for an adjournment to do so. Double check to make sure your witness is actually present (if the witness is not present, you could just proceed to trial and have your charge dropped). Tell the prosecutor that you intend to ask for an adjournment to file the paperwork necessary to make an 11b challenge. When you are called up, make your motion for an adjournment pre-plea. Explain that you failed to file the appropriate paperwork, and would like an adjournment to do so. Note that you will be basing the time period for your 11b challenge from the date of the offence to the first trial date. The time period from the first trial date to the second trial date will not count against your 11b rights, since you are the one who has caused the delay.
I have highlighted one line. How this is going to work in our case as we already have plead guilty?
Your case at this point has concluded. As mentioned, you need to request the Judge allow you an extension of time to appeal and waive the requirement that you pay the fine up front. This requires you to file a motion. The judge could refuse your request. However, your sons Charter rights have been violated, so in my opinion, you can file a constitutional challenge under s. 24 of the Charter instead of proceeding with the motion to request the judge allow you to appeal. This becomes a new proceeding. Its free. The court wants you to pay the fine in full and other fees to be granted the right to appeal. Why would you do this if you can do something for free, i.e., a constitutional challenge? However, Im not 100% certain that I am correct on which way to proeed. It just seems to me that what I suggest is permissible. Well wait and see how the court replies to your last email and go from there.
Your case at this point has concluded. As mentioned, you need to request the Judge allow you an extension of time to appeal and waive the requirement that you pay the fine up front. This requires you to file a motion. The judge could refuse your request.
However, your sons Charter rights have been violated, so in my opinion, you can file a constitutional challenge under s. 24 of the Charter instead of proceeding with the motion to request the judge allow you to appeal.
This becomes a new proceeding. Its free.
The court wants you to pay the fine in full and other fees to be granted the right to appeal. Why would you do this if you can do something for free, i.e., a constitutional challenge?
However, Im not 100% certain that I am correct on which way to proeed. It just seems to me that what I suggest is permissible.
Well wait and see how the court replies to your last email and go from there.
Surveys Act http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK61 Public roads, etc. 57. Subject to the Land Titles Act or the Registry Act as to the amendment or alteration of plans, every road allowance, highway, street, lane, walk and common shown on a plan of subdivision shall be deemed to be a public road, highway, street, lane, walk and common, respectively. R.S.O. 1990, c. S.30, s. 57. Webster dictionary http://mw1.merriam-webster.com/dictionary/sidewalk Sidewalk a usually paved walk for pedestrians at the side of a street
57. Subject to the Land Titles Act or the Registry Act as to the amendment or alteration of plans, every road allowance, highway, street, lane, walk and common shown on a plan of subdivision shall be deemed to be a public road, highway, street, lane, walk and common, respectively. R.S.O. 1990, c. S.30, s. 57.
"sidewalk" means the area between the curb lines or lateral lines of a roadway and the adjacent property lines improved for the use of pedestrians;
"crosswalk" means
(a) a portion of the roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface, or
(b) the portion of a highway at an intersection that is included within the connection of the lateral lines of the sidewalks on the opposite sides of the highway, or within the extension of the lateral lines of the sidewalk on one side of the highway, measured from the curbs, or in the absence of curbs, from the edges of the roadway;
(a) that part of a highway at an intersection that is included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the roadway, or
Procedural Protocol dealing with allegations of professional incompetence and miscarriage of justice by paralegal practitioners. http://www.canlii.org/eliisa/highlight. ... cj253.html
Procedural Protocol dealing with allegations of professional incompetence and miscarriage of justice by paralegal practitioners.
The courts care. They offen refer to other Provinces for guidance. They also refer to other commonwealth countries. Are you sure you're really a cop? Manitoba "sidewalk" means a footpath, whether or not paved or improved, that is intended primarily for the use of pedestrians and that either (a) forms part of that portion of a highway that lies between the kerb line or, if there is none, the lateral boundary line, of the roadway and (i) the adjacent property lines, or (ii) the straight production of the adjacent property lines to the kerb line or if there is none, to the lateral boundary line, of an intersecting highway, or (b) although not part of a highway, is a publicly maintained right-of-way, set aside for pedestrian traffic only and for the purpose of giving access to property adjacent thereto; (« trottoir »)
The courts care. They offen refer to other Provinces for guidance. They also refer to other commonwealth countries. Are you sure you're really a cop?
Manitoba
"sidewalk" means a footpath, whether or not paved or improved, that is intended primarily for the use of pedestrians and that either
(a) forms part of that portion of a highway that lies between the kerb line or, if there is none, the lateral boundary line, of the roadway and
(i) the adjacent property lines, or
(ii) the straight production of the adjacent property lines to the kerb line or if there is none, to the lateral boundary line, of an intersecting highway, or
(b) although not part of a highway, is a publicly maintained right-of-way, set aside for pedestrian traffic only and for the purpose of giving access to property adjacent thereto; (« trottoir »)
As evidenced above, the rules of court articulate that a judge may extend the time for bringing an appeal and for doing any other act in connection with an appeal. As evidenced below, s. 85 of the POA claims otherwise. It only allows a judge to extend time for acts "other than commencing or recommencing a proceeding. Commencing an appeal is commencing a proceeding. Section 85 states no extension of time is permitted. The only other avenue of relief is an application for certiorari, which I mentioned previously. However, s. 141(3) states "No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act..." However, I found a case that states s. 141(3) is not a finality clause. Thus, there may be special and exceptional circumstances where the demands of justice require that a superior court exercise its supervisory jurisdiction by way of certiorari despite section 141(3). Since your son was convicted of an offence contrary to the HTA, and in breach of his rights under the Charter, in my view, this is one of those special and exceptional circumstance cases. The certiorari provisions do not limit the time for filing an application, like the appeal section does. Therefore, I believe this is the proper route you must take, P. Section 141(4) articulates the court can only grant relief if the court finds that a substantial wrong or miscarriage of justice has occurred. That is the case here as you son cannot be convicted of the offence he was convicted of. Further, s. 142(5) allows you to seek costs. You can seek costs against either the counsel you hired who is responsible for misrepresented you, or against the crown who agreed to this deal that created the substantial wrong and miscarriage of justice against your son. POA Extension of time 85. Any time prescribed by this Act or the regulations made thereunder or by the rules of court for doing any thing other than commencing or recommencing a proceeding may be extended by the court, whether or not the prescribed time has expired.
8. (1) A judge may extend or abridge the time for bringing an appeal and for doing any other act in connection with an appeal for which a time is prescribed before or after the expiration of the time prescribed. O. Reg. 722/94, r. 8 (1).
As evidenced above, the rules of court articulate that a judge may extend the time for bringing an appeal and for doing any other act in connection with an appeal.
As evidenced below, s. 85 of the POA claims otherwise. It only allows a judge to extend time for acts "other than commencing or recommencing a proceeding.
Commencing an appeal is commencing a proceeding. Section 85 states no extension of time is permitted.
The only other avenue of relief is an application for certiorari, which I mentioned previously. However, s. 141(3) states "No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act..."
However, I found a case that states s. 141(3) is not a finality clause. Thus, there may be special and exceptional circumstances where the demands of justice require that a superior court exercise its supervisory jurisdiction by way of certiorari despite section 141(3).
Since your son was convicted of an offence contrary to the HTA, and in breach of his rights under the Charter, in my view, this is one of those special and exceptional circumstance cases.
The certiorari provisions do not limit the time for filing an application, like the appeal section does. Therefore, I believe this is the proper route you must take, P.
Section 141(4) articulates the court can only grant relief if the court finds that a substantial wrong or miscarriage of justice has occurred.
That is the case here as you son cannot be convicted of the offence he was convicted of.
Further, s. 142(5) allows you to seek costs. You can seek costs against either the counsel you hired who is responsible for misrepresented you, or against the crown who agreed to this deal that created the substantial wrong and miscarriage of justice against your son.
POA
Extension of time
85. Any time prescribed by this Act or the regulations made thereunder or by the rules of court for doing any thing other than commencing or recommencing a proceeding may be extended by the court, whether or not the prescribed time has expired.
If you file an application for certiorari you will serve the crown, justice and counsel who misrepresented you. You will need to prove he misrepresented you and that the trials result were compromised and your son suffered a miscarriages of justice as a result. You will meet this test based upon the facts in this case. You will also seek costs against him for the certiorari application and the original $500 you gave him. Below is a Supreme Court of Canada case based on incompetence. Begin reading at para 24. Hey Bear, notice the SCC relies upon a US case in para 26! http://www.canlii.org/en/ca/scc/doc/200 ... scc22.html 24 Today the right to effective assistance of counsel extends to all accused persons. In Canada that right is seen as a principle of fundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
If you file an application for certiorari you will serve the crown, justice and counsel who misrepresented you. You will need to prove he misrepresented you and that the trials result were compromised and your son suffered a miscarriages of justice as a result.
You will meet this test based upon the facts in this case.
You will also seek costs against him for the certiorari application and the original $500 you gave him.
Below is a Supreme Court of Canada case based on incompetence. Begin reading at para 24.
Hey Bear, notice the SCC relies upon a US case in para 26!
24 Today the right to effective assistance of counsel extends to all accused persons. In Canada that right is seen as a principle of fundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
I did not say cases elsewhere do not matter in court. What I said is I don't give a rats behind about definitions from outside Ontario.....why? I can not just pull definitions/wordings/sections out of my ass and make up things at roadside, I have to have it in front of me, in B&W at the moment. I also have a few seconds/minutes to make a decision based on the events at that time. This is obviously easier later in the comfort of a home or office and being able to search until the cows come home. Then to find stuff and ponder how can someone benefit if I twist a word here or there, will the JP or Judge "buy it". It would be nice to get back to the forum on hand and what it was built/designed for.....dealing with Ontario HTA issues, not civil matters, not criminal matters etc.
lawmen wrote:
Hey Bear, notice the SCC relies upon a US case in para 26!
I did not say cases elsewhere do not matter in court.
What I said is I don't give a rats behind about definitions from outside Ontario.....why? I can not just pull definitions/wordings/sections out of my ass and make up things at roadside, I have to have it in front of me, in B&W at the moment. I also have a few seconds/minutes to make a decision based on the events at that time.
This is obviously easier later in the comfort of a home or office and being able to search until the cows come home. Then to find stuff and ponder how can someone benefit if I twist a word here or there, will the JP or Judge "buy it".
It would be nice to get back to the forum on hand and what it was built/designed for.....dealing with Ontario HTA issues, not civil matters, not criminal matters etc.
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca
The HTA is quasi-criminal. This whole thread deals with a offence under the quasi-criminal HTA. Impaired driving under the HTA is a true criminal offence. So is dangerous driving, criminal neglience causing death or injury, street racing, and many other offences.
The HTA is quasi-criminal. This whole thread deals with a offence under the quasi-criminal HTA. Impaired driving under the HTA is a true criminal offence. So is dangerous driving, criminal neglience causing death or injury, street racing, and many other offences.
Hi lawmen, thaks for your last posts, anyway this car driver just visited my home today and brougt the letter saying that his costs went up, he wants now he WANTS new amount from me- $2686.10 I do not have any reply from crown yet, I will try to call her tomorrow. lawmen do you know how can I proceed with the The Supreme Court of Canada?
Hi lawmen, thaks for your last posts, anyway this car driver just visited my home today and brougt the letter saying that his costs went up, he wants now he WANTS new amount from me- $2686.10
I do not have any reply from crown yet, I will try to call her tomorrow.
lawmen do you know how can I proceed with the The Supreme Court of Canada?
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
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Hi I have a couple questions so I'll explain my situation and any advice would be appreciated.
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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…
