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Hello All,

I am helping my father with a cell phone ticket (S78.1(1)). He received it within the City of Toronto. The trial is scheduled for January 6th 2017 however I would like to request for a second adjournment for the trial date because we need more time to prepare our defense. I have not yet requested for disclosure but will be doing so first thing tomorrow.

My father requested for option 3 when he originally got the ticket, plead not guilty and request for a trial. His original scheduled trial was October 23rd but requested for the first adjournment to the trial date because he was going on vacation, which was granted. This is where we're at now.

With the trial only being 3 days away:

1a. how likely will my request for another adjournment be granted?

1b. Should I go to the courthouse to put forth another motion for adjournment or go to trial and request for an adjournment?

2. I am not sure if my father had requested for the officer to be present when he filled out the notice of trial form. If I call the court clerk, will they be able to advise me over the phone or will this have to be done in person?

3. Is there anything else I should do at this time?

Thanks for your help

Well you have the right to see the disclosure and the case against you. Will you argue that you did not know about asking for disclosure until just recently and that is why you are asking now?

Most likely the adjournment will be granted if you argue that you still need time to review the disclosure.

What was the date of the original ticket?

jsherk wrote:

Well you have the right to see the disclosure and the case against you. Will you argue that you did not know about asking for disclosure until just recently and that is why you are asking now?

Most likely the adjournment will be granted if you argue that you still need time to review the disclosure.

What was the date of the original ticket?

Yes, I will use that approach that I was not familiar with the option of disclosure, what it was and that is why I'm asking now.

The date of the original ticket was August 23rd, 2016

I called the City court house and at this point they advised me to submit a notion for a earlier court appearance to make a request with the JP for adjournment of the trial date. Does this make sense? I can only submit a notion for trial date adjournment only once?

What I would do is fax a request for disclosure to both the prosecutors office and the clerks office. I would include in the request, the fact that you will plan to ask for an adjournment as you will need more time to review it.

Even if they have it ready before the trial date, that is not enough time, so I would just pick it up from the prosecutor at the trial date and tell the prosecutor you are going to ask for an adjournment. When you are called up, you tell the JP you want an adjournment and need more time to review the disclosure and prepare a defense.

The JP may or may not allow an adjournment.

If the JP allows it, then great and you set a new date and come back then.

The JP may not allow it, and may say that you can go review the notes in the hall, and then the trial will start when you come back. If this happens, make sure you complain that "it is not enough time to properly review the notes and properly prepare a defense".

It is VERY important that you complain, because if you are forced into trial and lose, then it is a really good reason for an appeal to say that you were not given proper ability to prepare a defense.

Thanks for the advice Jsherk, I will do this.

On the trial date, am I still able to strike a plea bargain or does this need to be done before with the prosecutor?

Who do I ask at the courtroom on the trial date if the officer is present? Am I still able to strike a plea baragin with the prosecutor if I know the officer is present for the trial?

Yes, plea bargains can be made right up to the trial starting and even during a trial (more common in criminal cases). Having said that there isn't really any other offence that a mobile phone ticket can be bargained down to.

argyll wrote:

Yes, plea bargains can be made right up to the trial starting and even during a trial (more common in criminal cases). Having said that there isn't really any other offence that a mobile phone ticket can be bargained down to.

In the event we would settle for a lesser fine, is this common for cell phone tickets?

You can always ask... it never hurts to ask!

The prosecutor may or may not agree with your request, but it is ultimately the JP that needs to decide about whether or not they will lower the fine.

jsherk wrote:

You can always ask... it never hurts to ask!

The prosecutor may or may not agree with your request, but it is ultimately the JP that needs to decide about whether or not they will lower the fine.

Duly noted, thanks.

I faxed the request at lunch and the disclosure was ready for pick up within 2 hours, so the City of Toronto is quite diligent with these requests... I've since gone to pick up the disclosure.

Having said this, what are my chances to request for an adjournment on the basis that I don't have sufficient time to review the disclosure? I've attached the received disclosure.

The notes indicate that the police offer did have video footage but was not presented with the documentation when received. What should I do now?

Well the officers notes are pretty clear, so without video the chances of winning are slim to none. Your dads statement did not help either. Will video help? We won't know until we see it! You do have the right to see the video (if it exists) whether or not the prosecution plans to use it or not.

So you could ask for adjournment based on the fact that your dad wants to seek legal advice and the fact that you did not get a copy of the video yet.

jsherk wrote:

Well the officers notes are pretty clear, so without video the chances of winning are slim to none. Your dads statement did not help either. Will video help? We won't know until we see it! You do have the right to see the video (if it exists) whether or not the prosecution plans to use it or not.

So you could ask for adjournment based on the fact that your dad wants to seek legal advice and the fact that you did not get a copy of the video yet.

Thanks for the advice so far jsherk, it is really appreciated.

When you mentioned without the video, the chances of winning for the prosecutor are slim to none? Or for us?

Also, how do we go about requesting for the video? Do we have to submit a memo through fax?

Slim to none for you. Basically the officer will say what he saw and that will be enough to convict.

I would fax a request for it to both prosecutor and the clerk, just like you did for disclosure. Video is part of disclosure, but if you did not ask for it the first time then you should ask for it now.

in the event that the cop doesn't show up, is there a good chance this case can be dismissed or will it be adjourned to another date?

Did the officer neglect to put a location on this ticket or did you blank it out for privacy reasons? If the location is missing does anyone know if that still constitutes a fatal error? I know ticket combat says that no location is a fatal error, but the info on that site is quite old.

daggx wrote:

Did the officer neglect to put a location on this ticket or did you blank it out for privacy reasons? If the location is missing does anyone know if that still constitutes a fatal error? I know ticket combat says that no location is a fatal error, but the info on that site is quite old.

I didn't blank it out. It was like that on the ticket. Anyone else care to chime in if this is a fatal error? If so, how should I proceed for tomorrow's trial? The officer's notes did mention the location though.

@daggx - good catch!

Yes a missing location is a fatal error. However in order to beat the fatal error you must NOT go to trial because they can fix/amend the error once the trial starts.

What I would do is fax a letter to both the prosecutor and the clerk ASAP. In the letter I would say this:

"With regards to my ticket#123ABC , it has come to my attention that there is no location on my ticket and that this is a fatal error and the ticket should be quashed. Therefore I will not be attending trial tomorrow. Thank you."

If you show up for trial they will fix it, so do not go.

Two things could happen...

(i) The JP will see the error of missing location and quash the ticket and you dont have to worry about it anymore.

(ii) The JP will not see the error and will convict based on "deemed not to dispute the ticket". If this happens then you need to file an appeal based on the JP making an error at law. You then show up to the appeal with the copy of your ticket and tell Judge that the JP should have quashed it because there is no location on it. Make sure you file an APPEAL and not a REOPENING. You will have to pay the fine to file the appeal. Once the appeal is heard, you will get your money back.

So if you do not go tomorrow, then you can call clerk next Wednesday or Thursday to see what happened.

forevergone wrote:

I called the City court house and at this point they advised me to submit a notion for a earlier court appearance to make a request with the JP for adjournment of the trial date. Does this make sense? I can only submit a notion for trial date adjournment only once?

Some Ontario courts will permit an administrative adjournment for a FIRST court date. In other courts, or for second or later court dates, a proper motion must be filed and spoken to. The motion is filed upon the court and the Prosecutor's Office and is generally spoken to in advance of the court date. Generally filing for a motion most been done at least a week before the proposed motion date (check with the local court clerks for their timeline).

First motions are generally granted. Second motion to adjourn may be granted if there is a good reason. Third or later adjournments, you should expect the presiding Justice to be very direct with you on the reasons for your adjournment which may or may not be granted.

jsherk wrote:

@daggx - good catch!

Yes a missing location is a fatal error. However in order to beat the fatal error you must NOT go to trial because they can fix/amend the error once the trial starts.

What I would do is fax a letter to both the prosecutor and the clerk ASAP. In the letter I would say this:

"With regards to my ticket#123ABC , it has come to my attention that there is no location on my ticket and that this is a fatal error and the ticket should be quashed. Therefore I will not be attending trial tomorrow. Thank you."

If you show up for trial they will fix it, so do not go.

Two things could happen...

(i) The JP will see the error of missing location and quash the ticket and you dont have to worry about it anymore.

(ii) The JP will not see the error and will convict based on "deemed not to dispute the ticket". If this happens then you need to file an appeal based on the JP making an error at law. You then show up to the appeal with the copy of your ticket and tell Judge that the JP should have quashed it because there is no location on it. Make sure you file an APPEAL and not a REOPENING. You will have to pay the fine to file the appeal. Once the appeal is heard, you will get your money back.

So if you do not go tomorrow, then you can call clerk next Wednesday or Thursday to see what happened.

Most excellent! Thank you for detailing the outcomes and thank you to @daggx for discovering the error. I owe you a drink on me sometime, seriously!

So interesting revelation just now. The original ticket does show the location but the disclosure document ticket doesn't. Do I still have a valid case of a fatal error or no?

Advice greatly appreciated!! Need to know if I have to show up in court tomorrow. I already faxed a memo saying the ticket associated with the disclosure was missing a location.

Here is the original ticket:

Ah okay... so the location is on your Notice of Offence, so it is NOT a fatal error. This defense will not work for you.

Ok, looks like I'm going back to court tomorrow. Thank you. Will the memo I sent earlier about the fatal error notice be used against me?

No. But when you check in with the prosecutor you can explain why you sent it and why you thought it was a fatal error but then realized it was not.

Ok, thanks jsherk. I'll report back after tomorrow's trial.

Have a good weekend!

If I show up tomorrow in court, am I able to seek further legal representation down the road if I get an adjournment granted? Or am I the only one allowed to defend my father at this point forward?

jsherk wrote:

@daggx - good catch!

Yes a missing location is a fatal error. However in order to beat the fatal error you must NOT go to trial because they can fix/amend the error once the trial starts.

What I would do is fax a letter to both the prosecutor and the clerk ASAP. In the letter I would say this:

"With regards to my ticket#123ABC , it has come to my attention that there is no location on my ticket and that this is a fatal error and the ticket should be quashed. Therefore I will not be attending trial tomorrow. Thank you."

If you show up for trial they will fix it, so do not go.

Two things could happen...

(i) The JP will see the error of missing location and quash the ticket and you dont have to worry about it anymore.

(ii) The JP will not see the error and will convict based on "deemed not to dispute the ticket". If this happens then you need to file an appeal based on the JP making an error at law. You then show up to the appeal with the copy of your ticket and tell Judge that the JP should have quashed it because there is no location on it. Make sure you file an APPEAL and not a REOPENING. You will have to pay the fine to file the appeal. Once the appeal is heard, you will get your money back.

So if you do not go tomorrow, then you can call clerk next Wednesday or Thursday to see what happened.

not sure why above did that...

It used to work if you object before anything spoken.

I was just wondering if that still goes?

(I had a ticket for whatever amount from: cop saying I was going 120 mph and you going way faster..he present)

I object before

they threw it out.

Just wondering why that not work?

Cheers

Viper1

Update:

Going into this, I knew what my options were.

A. If the cop wasn't there, I would proceed to trial

B. If the cop was there,

i. Plead guilty for a lower fine

ii. Ask for an adjournment because I didn't have the in car video yet that was part of the disclosure

I looked at the trial list and found that the our ticket was the only one that day for the officer, so I thought I had a good chance that he was going to be a no show. I scouted for the officer and didn't find him at first, but realized that officers in attendance aren't neccesarily in uniform (I know, stupid assumption by me). When it came my turn for trial, the prosecutor informed me the cop was in attendance. We decided to accept the plea bargain as it was a pretty good reduction. We got it down to $120 + 25 victim surcharge instead of the $490.

Thanks for everyone's help

Well at least there was a reduction. Congratulations on following thru to the end.

forevergone wrote:

Update:

Going into this, I knew what my options were.

A. If the cop wasn't there, I would proceed to trial

B. If the cop was there,

i. Plead guilty for a lower fine

ii. Ask for an adjournment because I didn't have the in car video yet that was part of the disclosure

I looked at the trial list and found that the our ticket was the only one that day for the officer, so I thought I had a good chance that he was going to be a no show. I scouted for the officer and didn't find him at first, but realized that officers in attendance aren't neccesarily in uniform (I know, stupid assumption by me). When it came my turn for trial, the prosecutor informed me the cop was in attendance. We decided to accept the plea bargain as it was a pretty good reduction. We got it down to $120 + 25 victim surcharge instead of the $490.

Thanks for everyone's help

Hi,

How did they reduce the fine? That's all i'm wondering. I have to fight my ticket on Tuesday but I'm going for early resolution

bachodi wrote:

forevergone wrote:

Update:

Going into this, I knew what my options were.

A. If the cop wasn't there, I would proceed to trial

B. If the cop was there,

i. Plead guilty for a lower fine

ii. Ask for an adjournment because I didn't have the in car video yet that was part of the disclosure

I looked at the trial list and found that the our ticket was the only one that day for the officer, so I thought I had a good chance that he was going to be a no show. I scouted for the officer and didn't find him at first, but realized that officers in attendance aren't neccesarily in uniform (I know, stupid assumption by me). When it came my turn for trial, the prosecutor informed me the cop was in attendance. We decided to accept the plea bargain as it was a pretty good reduction. We got it down to $120 + 25 victim surcharge instead of the $490.

Thanks for everyone's help

Hi,

How did they reduce the fine? That's all i'm wondering. I have to fight my ticket on Tuesday but I'm going for early resolution

The JP sets the fine. If the defendant and prosecutor agree to a guilty plea with a reduced fine amount, they will make what is called a "joint submissions" where they both recommend the same fine to the JP. He can still ignore it though and impose whatever fine within the allowed ranges. Usually they accept the joint submission though.