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Motion to quash the Certificate of Offence
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PostPosted: Sun Mar 02, 2014 10:15 pm 
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Joined: Wed Jun 26, 2013 10:46 pm
Posts: 7
The officer wrote the wrong section number on my offence notice and certificate of offence.

How do I file a motion to quash the Certificate of Offence?


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Re: Motion to quash the Certificate of Offence
PostPosted: Mon Mar 03, 2014 12:35 am 
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Joined: Wed Mar 30, 2011 1:08 pm
Posts: 536
Location: Ontario
Look up fatal errors.


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Re: Motion to quash the Certificate of Offence
PostPosted: Mon Mar 03, 2014 12:45 pm 
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I looked that up already on Ticketcombat.com.

What forms do I need?

Who do I serve the motion too?
Do you serve it the same way as you serve an 11b)?


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Re: Motion to quash the Certificate of Offence
PostPosted: Mon Mar 03, 2014 4:29 pm 
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Joined: Mon Nov 29, 2010 8:08 pm
Posts: 550
There are no forms nor any motions that are required to initiate a forced fatal error; you simply ignore the ticket or choose trial and don't show up. When you ignore (POA S.9) or fail to show (POA S.9.1) the JP has to examine the face of the ticket, and if he notices a fatal error he has to quash the ticket

http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK11
Quote:
Deemed not to dispute charge

9. (1) A defendant is deemed to not wish to dispute the charge where,
(a) at least 15 days have elapsed after the defendant was served with the offence notice and the defendant did not give notice of intention to appear under section 5, did not request a meeting with the prosecutor in accordance with section 5.1 and did not plead guilty under section 7 or 8;
(b) the defendant requested a meeting with the prosecutor in accordance with section 5.1 but did not attend the scheduled meeting with the prosecutor; or
(c) the defendant reached an agreement with the prosecutor under subsection 5.1 (7) but did not appear at a sentencing hearing with a justice under subsection 5.1 (8). 2009, c. 33, Sched. 4, s. 1 (13).

Action by justice
(2) Where a defendant is deemed to not wish to dispute the charge, a justice shall examine the certificate of offence and shall,
(a) where the certificate of offence is complete and regular on its face, enter a conviction in the defendant’s absence and without a hearing and impose the set fine for the offence; or
(b) where the certificate of offence is not complete and regular on its face, quash the proceeding. 2009, c. 33, Sched. 4, s. 1 (13).

Failure to appear at trial
9.1 (1) A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial. 2009, c. 33, Sched. 4, s. 1 (14).

Examination by justice
(2) If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant’s absence and impose the set fine for the offence if the certificate is complete and regular on its face. 1993, c. 31, s. 1 (3).

Quashing proceeding
(3) The justice shall quash the proceeding if he or she is not able to enter a conviction. 1993, c. 31, s. 1 (3).
If you bring the fatal error to the attention of the prosecutor at Trial... they will amend the face of the P.O.N. to read the correct section # and proceed to trial. (POA S.34)

http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK52
Quote:
Amendment of information or certificate
34. (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,
(a) fails to state or states defectively anything that is requisite to charge the offence;
(b) does not negative an exception that should be negatived; or
(c) is in any way defective in substance or in form.


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Re: Motion to quash the Certificate of Offence
PostPosted: Mon Mar 03, 2014 11:57 pm 
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Joined: Wed Jun 26, 2013 10:46 pm
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Motion to quash information or certificate
36. (1) An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.

what about this legislation?


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Re: Motion to quash the Certificate of Offence
PostPosted: Tue Mar 04, 2014 5:39 pm 
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Joined: Mon Nov 29, 2010 8:08 pm
Posts: 550
I believe the motion to quash is done by the JP, and is simply an oral statement where they identify the defect and quash it. POA S.36 is discussed in a completely different light in London (City) v. Young, 2008 ONCA 429 (CanLII): http://canlii.ca/t/1x2n3

It would be in your best interest to read that ruling in full to better understand how the forced fatal error works.
Quote:
[17] The appellant makes three arguments in support of the proposition that the certificates at issue should not have been quashed. The first is that the proper approach to be taken by a justice when reviewing a certificate of offence under s. 9(1) to determine whether it is "complete and regular on its face" is to correct any defect in substance or form, particularly technical deficiencies such as an error in the set fine amount, rather than quash the proceeding. The appellant points to sections of the Act that favour amendment of deficiencies rather than quashing of proceedings. For example, s. 34(1) allows the court "at any stage of a proceeding" to amend the information [page223] or certificate that is defective in substance or form in any way. The appellant also points to s. 36(2), which states that the court shall not quash an information or certificate unless an amendment "would fail to satisfy the ends of justice".

[18] In my view, it is clear that these sections were not intended to apply when a justice is exercising the special powers and procedure conferred by s. 9(1) of the Act. The provisions cited by the appellant, ss. 34(1) and 36(2), are found in Part IV of the Act, titled "Trial and Sentencing". Although the opening words of s. 34(1) state that "the court may at any stage of the proceeding amend . . ." (emphasis added), it is clear from reading the entire section that it is intended to apply in the context of a proceeding on an information or certificate that has moved forward to the hearing stage. Furthermore, s. 36(2) must be read together with s. 36(1), which requires that an objection to an information or certificate for a defect on its face must be made by motion to quash, either before the defendant has entered a plea or after with leave of the court. Subsection (2) directs the court that it is in responding to such a motion that the court is to amend the information or certificate if possible rather than quash. This section does not apply to the s. 9(1) in-office default procedure, where there are no motions to quash made and no plea is taken.


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