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Drive While Under Suspension "Force Fatal Error"
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PostPosted: Tue Sep 29, 2009 6:25 pm 
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So I was pulled over early in the AM. I was picked off in a line of cars for speeding. Lucky me!

Anyways I got 3 summons for Drive Under Suspension and 1 summons for speeding.

I didn'e have my wallet on me so was unable to present any photo id. Also, the car I was driving was a friend of mine.

The officer has incorrectly misspelled my first and last name. Also my address is wrong, I haven't lived at that address in years. These errors are on all the summons.

My questions is what defense do I have?

I have been doing a lot of reading and the only thing that seems like a shot is to "force a fatal error". By defaulting on the ticket to see if they quash it. Say for instance they didn't quash my ticket and I was charged by default. Could I not appeal that on grounds where the summons to defendant is not complete and regular on its face?


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PostPosted: Wed Sep 30, 2009 9:14 am 
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Well, you don't have a ticket, you got Summons to go to court. Not sure how to force a fatal error on those. Not showing up for court can mean jail time, so you gotta be careful. How much time before the court date do you have? If it is more than 6 months, then you have more options, for example, the cop may not issue you another ticket or correct the mistakes on the original ones.

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PostPosted: Wed Sep 30, 2009 10:09 am 
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The summons to appear is in a month. So their is 6 months of allowable time for the officer to rewrite the ticket?

What happens when the crown receives the disclosure with those errors?

I was just reading London (City) v. Young 2008. where they forced a fatal error. This is where I got the idea. But it basically says you need to default and if the errors were corrected in my absence and I was charged I could request an appeal...

Is it possoble to extend the date for the summons?


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PostPosted: Wed Sep 30, 2009 12:04 pm 
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I am not sure, but in this case I think that the actual court date will be determined at summons. Someone else may want to comment.

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PostPosted: Wed Sep 30, 2009 12:06 pm 
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London v. Young deals with part 1 proceedings (certificate of offence). Part 3 process does not have default conviction in place. If you choose not to appear as required in the summons, Justice of the Peace may issue a warrant to force you come to court (rarely happens) or may set a trial date in your absence (ex-parte hearing). In order to secure a conviction on Part 3 summone trial MUST be held (with or without you present).

Summons to a Defendant serve one purpose only - to get you to come to court to answer to your charges. Summons is not a charging document. Charging document is prepared separately and is called "information". If an information has fatal errors and the Crown does not ask for an amendment (if granted) you may succeed, otherwise ex-parte trial will be held and if evidence of police is sufficient a conviction may be registered and penalties imposed.


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PostPosted: Wed Sep 30, 2009 3:39 pm 
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Is it pretty common for the Crown to amend these errors? Name and Address?

I received 3 summons for DWS, does that mean 3 seperate charges? They each have 3 different codes written underneath...


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PostPosted: Wed Sep 30, 2009 4:01 pm 
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lucky777 wrote:
Is it pretty common for the Crown to amend these errors? Name and Address?


Yes, and even if it was a part 1 certificate (which it isn't), a misspelled name and/or incorrect address is not a fatal error. Things that would be fatal errors include a MISSING name, location, offence, or date; incorrect set fine or total payable (London v. Young); incorrect offence or an offence "not known to law." You were issued a part 3 summons, so London v. Young and the others don't apply here.

Not sure about the drive while suspended summons having 3 different codes.

The other thing is, since you did not have your licence on you, how did you identify yourself to the officer? (As in, name & date of birth?) Did he ask you to spell you name? Did he ask you if you still resided at the address MTO had? (Even if he didn't, it's not enough to get the charges tossed in this case.)

Given the seriousness of the charges you're facing, you should really think about hiring a paralegal or lawyer.


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PostPosted: Wed Sep 30, 2009 4:53 pm 
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I've looked the summons over. This hasn't been my first suspension.
looks like one is an 04susp and an 08susp and then the 09susp. I'm guessing the 09 is the current one and the others are a notice??

No I did not have my wallet on me. I left in a hurry because my daughter was very ill. I was on my way from work. I had borrowed a friends car. I never drive, nor do I own a vehicle. I had spelt my name and given him my DOB. I'm sure it's all irrelevant anyways.

In my case, because it's my 3rd offense the first being in 04 what kind of sentence would I be looking at?

I obviously want the best representation, should I acquire a Lawyer or paralegal specialising in traffic offences and should they be local to where the court is?


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PostPosted: Wed Sep 30, 2009 10:59 pm 
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Where did this offence occur? I gather from the post, you weren't just driving within the city, you were covering a fair distance. I'm also guessing that you drove only because of your daughter's illness and otherwise would not have, which might be mitigating circumstances when it comes to sentencing. (No guarantees though.) I'm not sure about what the sentence may be, my guess is that it would partly depend upon what you had been suspended for, partly upon the circumstances of why you drove suspended, and why you could not have arranged for alternate transportation (time, seriousness of the illness, etc). There's a real range of possibilities here. Just to be sure - were you charged with HTA Drive Suspended or Criminal Code Drive Disqualified?

Shop around for the best representation. Paralegals can be just as good as lawyers; sometimes better, particularly if they are experienced. Couple of places to start looking:

1. X-Copper sponsors this website. Call 1-888-X-COPPER.
2. Traffic Law is a new member of this forum, also a paralegal.

Talk to them first and see what they say. Your agent does not have to be from the area where the court is.


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Fatal Errror on a summons
PostPosted: Sat Oct 03, 2009 10:16 pm 
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The ticket the officer gave you is called a summons.

The summons is a document commanding you to appear in court before a justice of the peace. The summons doesnt not have to be perfect.

From the summons they create an "information" the information is the charging document, and has to be proper before the court without any "fatal errors".

The errors you describe are not fatal errors and are not things that will get the charge dropped.

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Retired Toronto Traffic Officer, Hit & Run Squad Detective,
Breathalyzer Tech, Radar/Highway Patrol
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PostPosted: Wed Feb 03, 2010 5:13 pm 
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Radar Identified wrote:
lucky777 wrote:
Is it pretty common for the Crown to amend these errors? Name and Address?


Yes, and even if it was a part 1 certificate (which it isn't), a misspelled name and/or incorrect address is not a fatal error. Things that would be fatal errors include a MISSING name, location, offence, or date; incorrect set fine or total payable (London v. Young); incorrect offence or an offence "not known to law." You were issued a part 3 summons, so London v. Young and the others don't apply here.


I was just wondering, do have have any references for what is and is not a fatal error if the defendent elects not to respond at all, as in London v. Young?

For example, why would an incorrect address not render the certificate of offence not complete and regular on its face for the purposes of s. 9(1) of the POA?

I haven't found any case law one way or the other. Any help would be appreciated.

Edit: I'm referring to a Part 1, not Part 3 as in the original poster's situation.


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PostPosted: Wed Feb 03, 2010 9:30 pm 
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Justice Livingston in the R. v. Wilson case outlined what is required. That case itself is not available on line, but it has been referred to in the R. v. Hargan case.

This is the key excerpt that you're looking for:

Quote:
Livingstone J. in R. .v Wilson, [2001] O.J. No. 4907 (Ont. C.J.) considered that in order for a certificate of offence to be “regular on its face” it must set out:

1. Who is commencing the process - an informant;
2. Who is charged under the process - name of the defendant;
3. What the process is - statute and section number;
4. Where and when the allegation arose; and
5. What the result will be from a conviction from the process - set fine amount.


Someone's address can change quite easily. All of the stuff outlined above is essential for a conviction to be entered if the defendant fails to respond or appear.

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* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


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PostPosted: Thu Feb 04, 2010 1:21 pm 
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here 3rd offense for driving under suspension usually equals jail time.

Since you did not have ID i bet the address he used is one relating to suspension.


ops


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