Ontariohighwaytrafficact.com

I have been driving very carefully for the past 23 years but I got my first 'Disobey sign fail to stop ticket on April 21, 2010. I was late for my massage therapy appointment located at Warden and Steele area and I use to drive along Bishop Ave and left turn at Maxome to get to Steele. However, there was a traffic jam at Bishop, so I made a right turn to Kenneth Ave heading to Finch to avoid the traffic. It is my FIRST time travelling along Kenneth Ave and I was looking for the exit to Finch. I was so excited finding a traffic light to make a left turn to Finch. However, there was a police car stopped my car making the left turn. The police said I did not stop for the Stop sign and he had to give me a ticket. I was so honest telling him that I was looking for the exit to Finch and I did not see the stop sign. He gave me the ticket anyway and said ' Since you are a nice lady and have a clear driving record in the past years, you do not need to find an agent for this case. Just plead not guilty and I will talk to the judge drop the 3 demerit point charge and pay a fine less than $110 . Can I believe what he is saying and plead not guilty? Please advice. Thanks.

p.s. Since it will take months for the trial, how can he remember what he said ?

maucheung wrote:

Can I believe what he is saying and plead not guilty?

You can always plead not guilty. Whether he remembers or not, don't know. He may have written some information down in his notes that will jog his memory about that.

In this case, the first step would be to go to the courthouse with the ticket and a Notice to Appear filled out (print off this form here):

http://www.toronto.ca/court_services/forms/nia.pdf

Within six months of filing the notice, they'll send you a Notice of Trial in the mail. Then you can make a disclosure request, asking for the officer's notes.

What the officer was probably saying was that if you go to trial, he'll help you plea-bargain to a lesser charge, like a municipal by-law infraction. If you get convicted of a municipal offence, it won't go on your driver record and your insurance won't go up. It may be a lower fine, too.

Hi Radar,

Thanks for the quick response. I will go to the courthouse to fill out the 'Notice to Appear' this Wed.. I still have the following issues.

1) Would you please give an example of 'municipal offience' ? Do you

mean 'municipal offence' will not be counted as a conviction ? My

insurance premium will go up by 10% even with the first conviction.

2) Based on the articles I read, a crown representative will offer plea

bargains before court is in session, do you mean the police will talk to

the prosecutor at that time to make this offer ? If not, does it mean I

will have a cross examination with the police in the court before

reaching the plea bargins ?

3) The police said if I have any further question regarding to this charge,

I can call the police station to look for him and he will return me a call.

Should I do this ?

To answer your questions:

1. Something like "disobey official sign" under Metro Toronto by-law 32-92. Make sure that the Crown Prosecutor understands that you're not asking for "disobey sign" under the Highway Traffic Act, but a municipal offence. A municipal offence like that one would not be counted as a conviction because it would not go on your driver record, so your insurance company wouldn't be notified, either - same as a parking ticket.

2. Before trial, check in with the Prosecutor. At that point, the Prosecutor will probably offer you a deal. If the officer is there, he will likely have looked over his notes, and may suggest to the Prosecutor that you be given the offer of a municipal by-law infraction, or some other lesser offence. Cross-examination only occurs during trial, and at that point, the time for plea-bargaining has ended. All plea-bargaining happens prior to the trial actually starting. You'll reach a deal with the Crown, then all you have to do is stand before the Justice of the Peace and plead guilty to the new (lesser) offence. If the officer isn't there, they should drop the charge.

3. It probably won't be necessary, at least for now.

Thank you Radar. I will keep you posted. You have been a great help. This is my first offence and I am going to spend 1/2 day in court to see how this is proceed. I am quite nerviou about it.

Visiting the courthouse as an observer is a great idea. This shows you how trials will proceed, and you can learn from those who are successful, and those who are not. It's free, too.

I just received 'Notice of Trial' but there are some mistakes in the Notice. Information in the ticket is correct but the Notice has the mistakes described below

1) Date of Birth is incorrect. Since driver license depends of date of birth, the license # is incorrect as well.

2) The charge should be 'Disobey Sign Fail to stop at Pemberton Ave and Kenneth Ave' but the notice stated the address as 'PEPTGEGETON Ave & Kenneth Av' and I am charged with 'DR Wrong way divided Highway' instead.

Questions :

Q1) Do you think they will drop the charge in this case as the Notice information is wrong ?

Q2) Is it possible for me to request to speak to the police office before accepting the Prosecutor offer ?

Thanks.

1) It usually seems to depend on whether the errors have prejudiced your ability to make a defence. If you can show that they have, you have a better chance of having the charges dropped or preventing the prosecutor from making amendments. Be aware though that the "charging documents" are usually the ticket/summons and/or information, not necessarily the notice of trial.

2) You don't have a statutory or common law right to, but if you are reasonable in your requests, most crowns and officers are reasonable in their responses.

Thank you for the quick response.

It sounds like that even there are so many mistakes in the 'Notice of trial', there is not a good chance for me to have the case dropped as the prosecutor has the right to amend the Notice.

Do you have any good example how to prevent the prosecutor from making amendments ? I am still struggling whether I go to the court myself or hire x-copper to do so. The police did said I should appear to court myself and he will help me to drop the points and reduce the fine. Should I get the disclosure first before I make the decision ? Please advise. Thank you.

As Simon mentioned the ticket/offence notice is the "official" document referred to in court for the offence. The trial notice is simply that, notifying you of the court date.

hwybear wrote:

the ticket/offence notice is the "official" document referred to in court for the offence. The trial notice is simply that, notifying you of the court date.

And since the trial notice isn't the charging document, it doesn't need to be amended. It doesn't even apply except to notify you of the court date.

With respect to how to object to the prosecutor amending the certificate, when (s)he asks the JP to amend you just say, "I object because______" and have a reason why. As I said, prejudice is usually the best reason because it makes it hard to justify the amendment - and rightly so, because people have the right to make full answer in defence and that's difficult or impossible to do if you don't know or are mistaken about some important information because it's wrong on the charging document.

When's the trial date?

Simon : Thank you for your full explanation.

Radar : Good to hear from you again. My trail date is March 29, 2011.

Since I am really guilty that I did not make a full stop, I do not know to defence myself. Is there anyway I can convince the prosecutor to change the charge into municipal offence from Highway Traffic Act. By doing so, does it mean there will be no record in insurance company or policy file ?

I can tell you that it is possible to get a charge amended to a by-law. But no one here will be able to tell you if it is probable. Depends on too many factors. Not sure how insurance companies view by-law offences, but it doesn't show as a conviction on your driving history.

Hi Simon & Radar,

It is unlikely that the police will not show up in the court nowadays. I would like to just pay the fine without keeping any record. Is it possible just simply tell the Crown Prosecutor that I accept the charge but since I have clear record for the past years, it will be very kind of him/her to charge me "disobey official sign" under Metro Toronto by-law 32-92 which was suggested by Radar last year ? Also, will police keep any record for this kind of changed charges ?

Like a law student, I am looking for case examples. Is there any website I can found case example how to turn 'Highway Traffic Act ' into municipal offence ?

hwybear : Thank you for your response as well. I am so fortunate to be advised by professionals like you, Simmon and Radar.

Why the song and dance? File an 11B instead. It's been over 11 months.

Hi Radar,

Thanks for your suggestion and I have the following questions.

Q1) My charge was on Apr 21, 2010 and I went to court plead not guilty on May 03, 2010. Wihich date will the court use to count

the days ? Since the trial day is March 29, 2011 and if they use May 03, 2010, it is not 11 months yet. Can I still file an

11B ?

Q2) If I am going to file an 11b, should I do it now ? Also, should I turn down any plea-bargain with the prosecutor ?

Q3) What happens if the Justice turn down my 11b application ? Does it mean I have to accept the charge (i.e. 3 points & $110

fine) ?

Q4) Since I am filing 11b, should I still apply for the disclosure ?

Please advise. Thanks.

Hi Radar,

Just one more question. Based on ticketcombat's information, courts generally allow a maximum of 18 months between the date the offence was committed and the trial date. Is 11 months good enough to file 11b ?

maucheung wrote:

Is it possible just simply tell the Crown Prosecutor that I accept the charge but since I have clear record for the past years, it will be very kind of him/her to charge me "disobey official sign" under Metro Toronto by-law 32-92

Yes that's certainly possible. You're not going to find case law on it because all that is entered is a plea, you don't know what the original charge was, plus cases where it's a simple plea aren't reported to the places that keep track of case law. Ultimately, it's up to the discretion of the prosecutor.

maucheung wrote:

Hi Radar,

Thanks for your suggestion and I have the following questions.

Q1) My charge was on Apr 21, 2010 and I went to court plead not guilty on May 03, 2010. Wihich date will the court use to count

the days ? Since the trial day is March 29, 2011 and if they use May 03, 2010, it is not 11 months yet. Can I still file an

11B ?

Q2) If I am going to file an 11b, should I do it now ? Also, should I turn down any plea-bargain with the prosecutor ?

Q3) What happens if the Justice turn down my 11b application ? Does it mean I have to accept the charge (i.e. 3 points & $110

fine) ?

Q4) Since I am filing 11b, should I still apply for the disclosure ?

Please advise. Thanks.

Q5) Courts generally allow a maximum of 18 months between the date the offence was committed and the trial date. Is 11 months good enough to file 11b ?

Answers:

a1) Date of ticket, april 21 of 2010.

a2) you should submit the application for stay of proceedings (11b) at least 20 days before the trial. So you have plenty of time. But start preparing the form now.

There's a quick guide under the "Courts and Procedures" section.

a3) If the judge turns down your 11b motion then you will have to plead guilty or innocent.

a4) yes, ask for disclosure right away. See attached template.

a5)

The Canadian Charter of Rights and Freedom states, in part:

Section 11: Any person charged with an offence has the right:

(b) – to be tried within a reasonable time

(d) – to be presumed innocent until proven guilty according to the law….

The Supreme Court of Canada has provided a guideline of 8 to 10 months in a decision called Morin

and the same court spoke to an administrative intake period, for each court in a case called Askov.

Based on the guideline and the intake time, Courts are providing Stay of Proceedings for trials which

have taken 11 to 14 months to proceed, after the initial charge (s) was laid. In Toronto, at the old city

hall, Prosecutors are allowing cases of 14 months or longer to be stayed (in lay persons terms – to have

your charge(s) suspended or dismissed).

Read this: http://scopezoom.com/11b/application-fo ... edings.pdf

In order to submit an "Application for Stay of Proceedings" the Courts expect you to provide this application in a specific format which has all the essential ingredients of an Application for Stay pursuant to Section 11 (b) of the Charter of Rights and Freedoms. This is also referred to as a Constitutional challenge. In the case where your trial takes 11 to 14 months to proceed, after the initial charge, through no fault of your own, under section 24 (1)

As for the time at which the 11B clock starts, generally you're looking at the offence date. (Ontario Court of Appeal, R. v. Gregory McMillan)

As diehard suggests, put together a disclosure request. You should have everything lined up should the 11B fail. If they fail to provide disclosure, it makes the 11B case even more compelling. If you do get disclosure, you can then look at case law and statutes to see what defence(s) you have available to you. Look at the Courts and Procedures section of this website for guidance on the 11B filing and disclosure request.

Shoud I let the prosecutor that I have filed an 11b ? If the Justice turns down my 11b applicatoin, can I accept the prosecutor's offer during that time or will it be too late ? Is there anyway I know the police will show up or not before the trail starts. I do not think the prosector will let me know until the trail starts. Thanks.

maucheung wrote:

Shoud I let the prosecutor that I have filed an 11b ? If the Justice turns down my 11b applicatoin, can I accept the prosecutor's offer during that time or will it be too late ? Is there anyway I know the police will show up or not before the trail starts. I do not think the prosector will let me know until the trail starts. Thanks.

Before the trial begins you have to approach the prosecutor and let her know of your intention to have the proceedings stayed. That's when you tell her that you have filed the 11b notice of application and served everyone at least 20 days ago (read 11b guide). Be careful because she will try to convince you to accept a plea-bargain (lesser charge and/or no demerit points). Be firm, you have filed the 11b and want the proceedings to be stayed.

When the trial starts and you are called, the prosecutor will most likely withdraw her case and you are free to go.

If not, she will try and convince the JP not to accept the 11b motion. (Radar, correct if I'm wrong). She can argue that 14 months is not too long.

Anyway, if the JP rejects your 11b motion then you will have to plead guilty or innocent.

That's why it's important to have requested the disclosure many times. In case you still haven't got it, you can ask for an adjournment (on the crown's clock).

Hi Diehard,

In my case, it is only 11 months. If the Justice turn down my 11b, I am planning to plead guilty. Does that mean I will pay the fine & get the 3 points ? I can no longer accept the prosecutor's offer or ask the Justice for lower penalty as I have a clear record in the past ?

Hi maechung -- I'm very curious to know how this turned out as I am facing a very similar situation (failed to see stop sign due to being in a new part of town, ran through). Because I am technically guilty I am hoping to negotiate a deal to be charged under a municipal bylaw to avoid a conviction on my file. Hope it turned out as you had hoped!

Hi Trucklet

After doing some research, I hired a ticket fighter to handle my case as I do not want to give myself too much pressure. It took 6 weeks for the fighter to get my disclosure and he followed up the disclosure once. I went to the court with the fighter. The fighter spoke to the police who agreed to charge me under a municipal bylaw instead of 'Disobey sign fail to stop, however the prosecutor disagreed. The final result is my fine dropped from $110 to $60 and the 3 demerit points are dropped. The ticket fighter charged me $200 including the fine. Described below is the information I got from the fighter.

Depending on which court you are attending, the result will be different. Municipal bylaw is no longer accepted to replace other charge in the courts described below. Theoretically, I have been waiting for 11 months for my case and I am qualify to apply stay of proceedings (11b) but it takes too much work to apply for it.

Toronto Court : This is the toughest one. It is unlikely you will have the point dropped or reduced but you will be able to reduce the fine.

New Market/Richmond Hill Court : Most likely you will be charged for 2 points instead of 3. Not much chance for you to drop the points completely.

Markham Road Court : As of today, this is the most generous one. You might be able to drop the points completely.

If you get charged with Disobey Sign, take it. It's a no-points, non-criminal offense and does not go on your insurance. It is common to have "Failed to Stop" amended as "Disobey Sign" in court. With fines and fees, it'll run you about $75. Consider it an expensive parking ticket. On the other hand, if you were handed a FAILED TO STOP, which is what you should have been charged with by the sounds of it, you will want a lawyer to negotiate "Disobey Sign" with the prosecutor.

Disobey Sign s. 182 (2) of the HTA is $110 (set fine, victim surcharge, and court costs) and 2 demerit points.

Municipal "Disobey Sign" is 0 demerit points.

My conviction was "Improper Stop"

I've been reading your posts faithfully and am going to court tomorrow. Thank you so much for all your help. I'm just now looking for (I should've saved it somehow) what I'm supposed to say to the judge. I remember reading it was something like "your honour I'm not prepared to......as I have an 11b filed before the court". Is that correct? I've worked so hard on this and I don't want to screw it up now by saying the wrong thing.

Thanks again so much for all your help!

Maureen