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Fatal error - filing date past 7 days - move to quash?
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PostPosted: Fri Jul 16, 2010 2:00 am 
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Great site (also ticketcombat is helpful)!

I have a disobey stop sign/fail to stop (HTA 136(1)(a)) PON.

Stamped on the back is "FILED Jul 10 2009 Halton Court Services"

That date is nearly a month after the (alleged) offense date (2009-06-14).

So is that stamp like a 'get out of jail free' card? Guaranteed, foolproof, easy to use? I just move to quash prior to pleading?

I believe so...but then I need to sit around in court waiting for that to happen. Can I show that to the prosecutor in hopes that it will be dropped? The filing date obviously can't be amended by the prosecutor under section 34.

Thanks in advance for your thoughts...


----------------------------------------------

By the way, this is the regulation I was reviewing:
http://www.e-laws.gov.on.ca/html/statut ... _e.htm#BK5

Filing of certificate of offence
4. A certificate of offence shall be filed in the office of the court as soon as is practicable, but no later than seven days after service of the offence notice or summons. 2009, c. 33, Sched. 4, s. 1 (4).


However, I read elsewhere in this forum that:

"11. (1) The clerk of the court shall not accept for filing a certificate of offence more than seven days after the day on which the offence notice or summons was served unless the time is extended by the court. "

Not sure why they accepted this one, perhaps just human error? Or perhaps because they hope people will just pay without noticing.


---------------------------------------------------

Additional background info for anyone wondering about the dates - yes, the upcoming trial date is over a year after the offense date.

Officer was going to be on holidays, moved to adjourn; I showed up for that motion to contest (didn't want trial later as was moving, witness moving, etc.); officer forgot to file the motion with the court, so I showed up, the motion wasn't on the roster.

Officer called me at home to apologize, filed another motion to adjourn, said I didn't have to show up to contest, he'd get a trial date within my stated window; called a second time to review the dates again, again confirmed. I was going to attend the second motion to adjourn just to show I was working for a speedy resolution, but was too busy on the day, and I had been told twice trial would be when I requested (prior to end of June).

Called a week after the adjournment hearing, found out the trial was set for late July! Difficult to arrange for witness to attend on three different dates (original date, promised date (mid-June), actual date (end July). But it was around the point that I called to determine new date that I noticed the late filing, which seems like an automatic out).


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Disobey stop sign/fail to stop - How to use fatal error?
PostPosted: Mon Jul 19, 2010 9:46 am 
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Hi all. Great site!

I have a disobey stop sign/fail to stop (HTA 136(1)(a)).

Filing date stamped on the back is 3+ weeks past the date of the Offense Notice.

From what I understand, this shouldn't have even been accepted by the court clerk, but perhaps there was human error. I'm assuming this type of fatal error cannot be corrected by the prosecutor, and there is no way I can screw this up. I just have to 'move to quash' prior to pleading, correct?

Or can I just advise the prosecutor that that's what I'm going to do, and the hopefully he/she will drop it? I don't want to have to sit around for hours waiting for my trial if possible.

Thanks in advance for any advice.


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PostPosted: Mon Jul 19, 2010 12:24 pm 
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You should probably mention it to the prosecutor first because I'm not sure if the filing time limit means how long before the court has the ticket or how long before the court enters the ticket into the ICON system. If it is delivered to the court but they don't get to it because of a backlog or some other reason, that might not invalidate the ticket. See what the prosecutor says about that.

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Re: Disobey stop sign/fail to stop - How to use fatal error?
PostPosted: Mon Jul 19, 2010 2:58 pm 
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Hi Simon, thanks for your thoughts.

I had more details on a post in the Courts & Procedures section, but I see that is a subsection of the Law Enforcement area, so maybe it is in the wrong place.

(this is the post for reference: http://www.ontariohighwaytrafficact.com/post15622.html)

I would assume the date is the date that is _stamped_ on the back of the ticket, there should be some record somewhere that the officer has "filed" the ticket, otherwise there is no documentation.

I've since found another post (by hwybear, http://www.ontariohighwaytrafficact.com/topic1960.html) that says "when the PON's are turned in they are "stamped" with the received date." So I would assume that they're at least initially processed at the time they're handed in, by stamping them. Then perhaps later they're entered into an electronic system.

My PON has a 'FILED' stamp on it, which to me sounds very clear, to me that's the official date the PON is "Filed with the court". If the officer 'turned in the ticket" to the court three weeks earlier, there's no audit trail showing that. If it sat in an anonymous pile for three weeks, and THEN was looked at by someone and stamped, I wouldn't think the prosecutor or officer could argue it was actually submitted earlier, if they have no proof of that.


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Adjournment - new trial date - Notice of Trial not rec'd
PostPosted: Mon Jul 19, 2010 3:20 pm 
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Prosecutor moved to adjourn due to officer being on holidays on original trial date.

Notice of Adjournment states "it is your responsibility to contact the court to determine the new date". This seems somewhat lax, there is no audit trail that I've contacted the court or been told over the phone the correct date.

It also seems to be contrary to http://www.e-laws.gov.on.ca/html/statut ... e.htm#s5s2

Quote:
Where an offence notice is received under subsection (1), the clerk of the court shall, as soon as is practicable, give notice to the defendant and prosecutor of the time and place of the trial. R.S.O. 1990, c. P.33, s. 5 (2).


I am entitled to (and get) an official, written notification of the first trial, I don't see why things should be different for any rescheduled dates.

Has anyone challenged based on this?


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PostPosted: Mon Jul 19, 2010 4:48 pm 
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I tend to agree with you. I don't think the date they're stamped with when they're handed in is the "filed date". I think the "filed date" is when the court receives it and "files" it by entering it onto the ICON system. Run with it and let us know how it turns out.

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NOTHING I SAY ON HERE IS LEGAL ADVICE.


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Disobey stop sign/fail to stop - How to use fatal error?
PostPosted: Mon Jul 19, 2010 5:39 pm 
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Hi Simon. Not sure I agree with your summary of my statement (although I guess I was stating several things, and not too clearly!).

My PON is stamed on the back "FILED Jul 10 2009 Halton Court Services" (which was 3+ weeks after the offense date). I take that as the 'date filed with the court' (as per POA Sched. 4, s. 1 (4).). "Filed" seems to be pretty clear to me.

The officer hands it in, he's "filing" it by that action, and the court clerk is stamping it with the date, to acknowledge and create an audit trail. If the clerk doesn't enter it into the ICON system for a while, I would assume that is not as critical.

However, if the 'filing' date is the date the clerk enters the PON into ICON, well, there are several issues with that:

1. where is that filing date tracked? (I suppose in ICON, but where to I find that? I suppose in discovery...). If the ICON entry date is the date that is stamped on the PON, then where is the date recorded that the officer filed with the court? Perhaps on his copy (again, which I must get via discovery).

2. POA Sched. 4, s. 1 (4) seems to be written for the officer, "...notice of offense shall be filed in the office of the court....after service...". So that's the officer serving notice on me and then filing with the court. It seems to me that would need to be tracked, and a stamp seems like a reasonable way to do that. I assume the officer just filed things late, the clerk didn't bother looking at the date on the front of the PON, and just stamped things. But my main point here is that this regulation is for the officer, and NOT the clerk, and thus the date of entry into ICON isn't being considered in this regulation (and therefore the stamp "FILED" shouldn't be related to the ICON entry date.

I guess you might be saying that the officer filed on time (in compliance with POA Sched. 4, s. 1 (4)), but that date is not tracked (or is tracked somewhere I can't see it), and then the clerk later enters into ICON, and that is the date stamped on the PON.

However, writing that out, it doesn't seem to make sense, because the 'fatal flaws' are supposedly "on the face of the ticket" (from what I understand). So I'm thinking the date stamped on the back is the date the officer filed with the court...and it is far past 7 days. Lucky me! (not that I wouldn't have fought anyway, but this just make it easier).


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Re: Fatal error - filing date past 7 days - move to quash?
PostPosted: Tue Jul 20, 2010 12:30 pm 
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Location: Hamilton, ON
Hi tdtd:

THIS IS NOT LEGAL ADVICE, IT IS JUST AN OPINION

Yours is certainly an interesting case. It seems that you are dealing with a sloppy cop and some negligent prosecutor. Feel free to contact me directly with some more specific details to see if I can help you.
tdtd wrote:
…Stamped on the back is "FILED Jul 10 2009 Halton Court Services"
That date is nearly a month after the (alleged) offense date (2009-06-14).

It may be obvious, but just to be sure; stamped in the back of the Offence Notice or the Certificate of Offence?

http://www.e-laws.gov.on.ca/html/source ... 59_e-1.gif

http://www.e-laws.gov.on.ca/html/source ... 59_e-2.gif

If in fact, as I suspect, it is the Certificate of Offence, as you say it should have not been accepted for filing by the PO Office.

You previously referred to Regulation 200 of the Court of Justice Act

RULES OF THE ONTARIO COURT (PROVINCIAL DIVISION) IN PROVINCIAL OFFENCES PROCEEDINGS wrote:
11. (1) The clerk of the court shall not accept for filing a certificate of offence more than seven days after the day on which the offence notice or summons was served unless the time is extended by the court. R.R.O. 1990, Reg. 200, r. 11.

http://www.e-laws.gov.on.ca/html/regs/e ... 0200_e.htm

tdtd wrote:
So is that stamp like a 'get out of jail free' card? Guaranteed, foolproof, easy to use? I just move to quash prior to pleading?

Justices of the peace get their authority from statute; the Justices of the Peace Act

http://www.e-laws.gov.on.ca/html/statut ... 0j04_e.htm

which means that they may NOT make any order in contravention with statutes and/or without jurisdiction conferred to them by statute, just like in this case.

In other words, the POA court does not have authority to deal with your certificate as the court does not have jurisdiction. The court can not quash the Certificate; it can not adjourn the matter; it can not hear the matter at all, other than a motion to determine its jurisdiction.

The proper venue is not to move to quash the certificate but simply to make a motion for an order declaring that the court does not have jurisdiction. You may add alternative remedies such as staying the proceedings based on abuse of process and section 11(b) of the Charter for not having a trial with in reasonable time.

This, however must be done before arraignment and, in any event, (whatever the court’s decision) you do NOT attorn yourself to the jurisdiction of the court. This is better done represented by an agent –friend, paralegal, solicitor-.

tdtd wrote:
The filing date obviously can't be amended by the prosecutor under section 34.

The prosecutor can not amend the filing date. What they can do is re-commence the proceedings by serving you Summons under s.21(2) of the POA but only within 6 month from the date of the alleged offence.. Do not do anything before the 6 months have elapsed

POA s.21 wrote:
21.(1) In addition to the procedure set out in Parts I and II for commencing a proceeding by the filing of a certificate, a proceeding in respect of an offence may be commenced by laying an information. R.S.O. 1990, c. P.33, s. 21 (1).
Exception.
(2)
Where a summons or offence notice has been served under Part I, no proceeding shall be commenced under subsection (1) in respect of the same offence except with the consent of the Attorney General or his or her agent. R.S.O. 1990, c. P.33, s. 21 (2); 2006, c. 21, Sched. C, s. 131 (4).

http://www.e-laws.gov.on.ca/html/statut ... .htm#s20s3

Let me know if you need further assistance. Cheers.
..
.


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Re: Disobey stop sign/fail to stop - How to use fatal error?
PostPosted: Tue Jul 20, 2010 12:39 pm 
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Joined: Sat May 29, 2010 7:19 pm
Posts: 91
Location: Hamilton, ON
PREVIOUSLY POSTED AT
http://www.ontariohighwaytrafficact.com/post15622.html


Biron wrote:
Hi tdtd:

THIS IS NOT LEGAL ADVICE, IT IS JUST AN OPINION

Yours is certainly an interesting case. It seems that you are dealing with a sloppy cop and some negligent prosecutor. Feel free to contact me directly with some more specific details to see if I can help you.
tdtd wrote:
…Stamped on the back is "FILED Jul 10 2009 Halton Court Services"
That date is nearly a month after the (alleged) offense date (2009-06-14).

It may be obvious, but just to be sure; stamped in the back of the Offence Notice or the Certificate of Offence?

http://www.e-laws.gov.on.ca/html/source ... 59_e-1.gif

http://www.e-laws.gov.on.ca/html/source ... 59_e-2.gif

If in fact, as I suspect, it is the Certificate of Offence, as you say it should have not been accepted for filing by the PO Office.

You previously referred to Regulation 200 of the Court of Justice Act

RULES OF THE ONTARIO COURT (PROVINCIAL DIVISION) IN PROVINCIAL OFFENCES PROCEEDINGS wrote:
11. (1) The clerk of the court shall not accept for filing a certificate of offence more than seven days after the day on which the offence notice or summons was served unless the time is extended by the court. R.R.O. 1990, Reg. 200, r. 11.

http://www.e-laws.gov.on.ca/html/regs/e ... 0200_e.htm

tdtd wrote:
So is that stamp like a 'get out of jail free' card? Guaranteed, foolproof, easy to use? I just move to quash prior to pleading?

Justices of the peace get their authority from statute; the Justices of the Peace Act

http://www.e-laws.gov.on.ca/html/statut ... 0j04_e.htm

which means that they may NOT make any order in contravention with statutes and/or without jurisdiction conferred to them by statute, just like in this case.

In other words, the POA court does not have authority to deal with your certificate as the court does not have jurisdiction. The court can not quash the Certificate; it can not adjourn the matter; it can not hear the matter at all, other than a motion to determine its jurisdiction.

The proper venue is not to move to quash the certificate but simply to make a motion for an order declaring that the court does not have jurisdiction. You may add alternative remedies such as staying the proceedings based on abuse of process and section 11(b) of the Charter for not having a trial with in reasonable time.

This, however must be done before arraignment and, in any event, (whatever the court’s decision) you do NOT attorn yourself to the jurisdiction of the court. This is better done represented by an agent –friend, paralegal, solicitor-.

tdtd wrote:
The filing date obviously can't be amended by the prosecutor under section 34.

The prosecutor can not amend the filing date. What they can do is re-commence the proceedings by serving you Summons under s.21(2) of the POA but only within 6 month from the date of the alleged offence.. Do not do anything before the 6 months have elapsed

POA s.21 wrote:
21.(1) In addition to the procedure set out in Parts I and II for commencing a proceeding by the filing of a certificate, a proceeding in respect of an offence may be commenced by laying an information. R.S.O. 1990, c. P.33, s. 21 (1).
Exception.
(2)
Where a summons or offence notice has been served under Part I, no proceeding shall be commenced under subsection (1) in respect of the same offence except with the consent of the Attorney General or his or her agent. R.S.O. 1990, c. P.33, s. 21 (2); 2006, c. 21, Sched. C, s. 131 (4).

http://www.e-laws.gov.on.ca/html/statut ... .htm#s20s3

Let me know if you need further assistance. Cheers.
..
.


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PostPosted: Tue Jul 20, 2010 1:02 pm 
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Joined: Sat May 29, 2010 7:19 pm
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Location: Hamilton, ON
.
Hi Simon:

Simon Borys wrote:
I tend to agree with you. I don't think the date they're stamped with when they're handed in is the "filed date". I think the "filed date" is when the court receives it and "files" it by entering it onto the ICON system. Run with it and let us know how it turns out.

Actually the date stamped on the back of the Certificate of Offence is the date on which the Officer filed it.

(edited to add this paragraph)

If it's on the Notice of Offence, it indicates the date the Notice of Intention to Appear was file by the defendant or its agent.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
But, as I said, just a phone call to the court office will solve the mystery :wink:

Cheers.
.


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Re: Fatal error - filing date past 7 days - move to quash?
PostPosted: Tue Jul 20, 2010 1:08 pm 
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Biron wrote:
Hi tdtd:

Hi Biron, thanks for your thoughtful response!

Biron wrote:
THIS IS NOT LEGAL ADVICE, IT IS JUST AN OPINION


Acknowledged. :-)


Quote:
Yours is certainly an interesting case. It seems that you are dealing with a sloppy cop and some negligent prosecutor.


I wouldn't be surprised. The officer issued a Notice of Motion to adjourn (as he was going to be out of the country on the original date), and I received a copy of that Notice of Motion (along with a court date for that motion), but he failed to file that Notice with the court; so I showed up to challenge (I was going to moving later, my witness was moving, etc., and I wanted an early rescheduled date), and wasn't even on the docket.


Quote:
Feel free to contact me directly with some more specific details to see if I can help you.


I will check into that. Picking up disclosure today.


Biron wrote:
tdtd wrote:
…Stamped on the back is "FILED Jul 10 2009 Halton Court Services"
That date is nearly a month after the (alleged) offense date (2009-06-14).

It may be obvious, but just to be sure; stamped in the back of the Offence Notice or the Certificate of Offence?

If in fact, as I suspect, it is the Certificate of Offence, as you say it should have not been accepted for filing by the PO Office.



Unfortunately (I guess?) it is the Offense Notice. But it is still stamped, as "filed"; I wonder what relation the filing/filing date of the Offense Notice has to the 'filing [of] a certificate of offense". And I wonder if I get a copy of the Certificate of Offense in the disclosure. I asked for the officer's copy of the PON, not the CoO. I guess a good reason to use someone who knows more of the details of this process! :-)


Presumably, the officer write the 'ticket' (Offense notice), takes a carbon copy down to the court, "files" it, (and it is stamped at that time), and that action creates a "certificate of offense"? (the court clerk creates that document?).

Hmm...now that I'm thinking about this more (and this would explain why I haven't seen many other references like this on the board)...I think that stamp is on my original copy of the PON because that is the date I attended the court office and "filed" a notice of intention to appear in court.

:-(

Sorry to have wasted your time (and my hopes!); I had forgotten that sequence of events because it was over a year ago.

Now I guess I'll have to move on to my other approaches (which are more work), rather than counting on what I thought was an easy out.

Biron wrote:
The prosecutor can not amend the filing date. What they can do is re-commence the proceedings by serving you Summons under s.21(2) of the POA but only within 6 month from the date of the alleged offence.. Do not do anything before the 6 months have elapsed.


Thanks, good point. I thought they might be able to do something like that, but in my case, I'm at 13+ months now.



Biron wrote:
Let me know if you need further assistance. Cheers.


I will, thanks much!


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Fatal error - filing date past 7 days - move to quash?
PostPosted: Tue Jul 20, 2010 6:32 pm 
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So I picked up my disclosure packet, and it contained the Certificate of Offense (in contrast to the Offense Notice which I was discussing originally).

The "filed" date on that document is the day after the offense date. So SOL in that regard. ;-)


The prosecutor did not provide the by-law for the stop sign (but such by-laws are not _required_); however, he did not provide the clauses under which I was charged (HTA 136 (1)(a)). But I failed to request an "Explanation and Clarification of Charges"...I thought from reading elsewhere that it was better not to request any by-laws (well, apparently that is correct), but I guess if I wanted the applicable sections of the act (and I DO want an official copy of those), then I should have requested that part specifically. Because apparently if they fail to provide that, that's not inadequate disclosure.

Well, trial is tomorrow, I have some arguments I'd like to make. Hopefully I can go an request adjournment to give me additional time, since they didn't provide the clauses under the act (and since the officer already requested an adjournment, and called me twice re: scheduling, and promised an earlier date where I had more time and access to witness).


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PostPosted: Tue Jul 20, 2010 9:44 pm 
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Just an FYI... I merged all of your posts for this ticket under this thread. That way we can all keep track of all of the developments instead of having to look in multiple places. Makes it easier to give advice that way. :wink:

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