car-bicycle accident- fail to remain...

lawmen
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Unread post by lawmen on

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

Judge’s 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).
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ticketcombat
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Unread post by ticketcombat on

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?
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piezomot
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Unread post by piezomot on

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.
I guess I have to figure out how to do it... :D


lawmen
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Unread post by lawmen on

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.
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ticketcombat
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Unread post by ticketcombat on

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?
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piezomot
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Unread post by piezomot on

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
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Unread post by lawmen on

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 I’m 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 don’t count so 15 days could be 20 calendar days. In any event, it’s 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.
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piezomot
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Unread post by piezomot on

Send them this email reply if it meets your satisfaction and see what they say.
Done, let's see what the reply would be...


lawmen
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Unread post by lawmen on

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.

They’re 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. I’m confident you’d win on merit, but that’s not the point. They haven’t 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 it’s too late for a new trial.
Last edited by lawmen on Sat Nov 08, 2008 11:55 am, edited 1 time in total.
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piezomot
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Unread post by piezomot on

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:

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...


lawmen
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Unread post by lawmen on

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.
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piezomot
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Unread post by piezomot on

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
Last edited by piezomot on Fri Nov 07, 2008 8:48 pm, edited 1 time in total.


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ticketcombat
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Unread post by ticketcombat on

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.
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piezomot
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Unread post by piezomot on

They'll get it back with interest from the increased premiums they'll charge over the next few years.
ticketcombat, are you talking about my premium or his premium? And if it is his premium, why his insurance company would not cover his loses?


lawmen
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Unread post by lawmen on

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.




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