Errors and Omissions

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il capo
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Errors and Omissions

by: il capo on
Tue May 13, 2008 12:04 pm

Well I couldn't find a suitable section for my particular question and I'm sure many people have similar questions to ask. So here's the situation:

I recently received a speeding ticket (83 in a 60). First off, I asked to see the radar reading, the officer refused to show me because he said the reading had been erased or some bs like that. I explained to the officer that I was not speeding and that I had seen him all the way from the light I was stopped at, he didn't seem to care. I told him that I deliberately looked at my speedo as I drove toward where he was shooting radar, he told me to get my car fixed (I drive a BMW which impecably maintained and mechanically sound).

Lastly, the supposed offence occured on the 29th of April. I was given the ticket and was on my way home. Upon further inspection of the ticket, the date says April 26th, 3 days prior. Now is this sufficient grounds to have the ticket thrown out?
Last edited by il capo on Tue May 13, 2008 2:48 pm, edited 1 time in total.


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by: Reflections on
Tue May 13, 2008 12:05 pm

Are you sure you have the date right??

The wrong date is grounds for dismissal.
http://www.OHTA.ca OR http://www.OntarioTrafficAct.com


il capo
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by: il capo on
Tue May 13, 2008 12:20 pm

i'm positive the date was wrong because i came home furious because i knew i wasn't speeding and was sure the cop either didn't know how to operate the radar properly (young cop) or he got another cars' reading. Either way, i looked at the date and it said the 26th on the ticket. Then i checked about 3 diff calendars and they all indicated that it was the 29th that day.


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Bookm
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by: Bookm on
Tue May 13, 2008 12:41 pm

It's May 13 today. Clarify the offense date please (April perhaps??).

If NO date is written on the ticket, it can not be amended by the judge. I would assume the WRONG date would be considered the same as no date. Be sure you don't offer the correct date into evidence. Try to establish (with witnesses) where you were on the 26th (of April I'll assume). This should be easy as the 26th was a Saturday and the 29th was a Tuesday. It's probable that the officer wasn't even on duty on the 26th.

It's up to the Crown to establish the correct date. The correct date may be recorded in the officers notes. If the judge allows an amendment based on his notes, at least you can argue that if the officer made a mistake on the date, he may have made a mistake on the radar reading. Hold firm that you were NOT speeding. Let the judge take this opportunity to "educate" the young officer


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by: il capo on
Tue May 13, 2008 2:47 pm

Sorry april is what I meant. I corrected that in my first post there. I spoke to a few friends of mine who asked some cop buddies of theirs and they said the ticket would be thrown out.

Thanks for the advice guys, I appreciate your help.


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by: Bookm on
Tue May 13, 2008 2:56 pm

Just be aware that the officer has 30 days to write a new ticket (I think). My own personal paranoia would have me pleading not-guilty then waiting for my court date to arrive in the mail. The court date will likely fall outside the 30 day time limit. At that time, I would request that the Crown withdraw the charge. If he doesn't, I'd proceed to trial and have the JP hear my case.


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by: il capo on
Tue May 13, 2008 2:58 pm

Hold on, the officer has the opportunity to write up a new ticket? How is this even fair? Do I get a second chance to drive on that road and show them I was not speeding?


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by: Reflections on
Tue May 13, 2008 3:02 pm

One of my law classes, I took 2, mentioned if the date is wrong, the ticket will be no good. April 26 was a saturday and the 29 was a tuesday. Should be simple enough to establish what day of the week the "offence" took place. Question the officer what day it was?? I was almost dinged, got off with a warning, under the same circumstances, radar reading from another car.
http://www.OHTA.ca OR http://www.OntarioTrafficAct.com


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by: Reflections on
Tue May 13, 2008 4:02 pm

Bookm wrote:Just be aware that the officer has 30 days to write a new ticket (I think). My own personal paranoia would have me pleading not-guilty then waiting for my court date to arrive in the mail. The court date will likely fall outside the 30 day time limit. At that time, I would request that the Crown withdraw the charge. If he doesn't, I'd proceed to trial and have the JP hear my case.
X2 :D
http://www.OHTA.ca OR http://www.OntarioTrafficAct.com


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by: hwybear on
Tue May 13, 2008 6:35 pm

il capo wrote: First off, I asked to see the radar reading, the officer refused to show me because he said the reading had been erased or some bs like that.
That is correct police are not required to show the person a radar or lidar reading. 1) Police do not even have to "lock" the reading on the display 2) It is unsafe for persons to be outside of their vehicle during a stop 3) Once someone sees the reading, next thing they say is.."it wasn't me" so it is back to the orginal comments...."I wasn't going that fast" :roll:
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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by: il capo on
Wed Jun 04, 2008 1:59 am

Bookm wrote:Just be aware that the officer has 30 days to write a new ticket (I think). My own personal paranoia would have me pleading not-guilty then waiting for my court date to arrive in the mail. The court date will likely fall outside the 30 day time limit. At that time, I would request that the Crown withdraw the charge. If he doesn't, I'd proceed to trial and have the JP hear my case.
Well it's June 4th today and I went to the courts last week to talk to a prosecutor about the ticket and the date problem. He said it didn't matter and the officer could change the date on the ticket anytime? I went when the 30 day period you mentioned was up, is there an exact place I can find this law and have this ticket taken care of already? Please let me know as soon as possible. I filed for a court date and also asked for a disclosure of the officers notes.


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by: Bookm on
Wed Jun 04, 2008 9:09 am

So the Crown refused to drop the charge (they rarely do). Now you have to go to trial and fight for dismissal on the grounds that the information on the face of the ticket has deprived you of some right. The crown must prove the correct date and place of the offense (within reason). The date will likely be correct on the officers notes, but it's the date on the ticket that matters to you. The ticket is the "charging document" and must stand on its own to convict you.

The problem is going to be that you can't deny that you were the person stopped. And I doubt anyone would consider the possibility that the speed limit was different on the date of the citation from the date of the traffic stop, so the JP may deny your motion. But it appears to be your only chance to beat the ticket. Because you're dealing with a "technicality" here, you might want to consider using a paralegal who has experience arguing procedural matters.

You file your objection before you enter your plea. If you do not object, the court will consider the defect to be accepted by the defendant, and the trial will continue.

If the court allows an amendment and another trial date is set, the defense can request costs relating to missed work, traveling expenses, etc.

Provincial Offences Act
37. Where the information or certificate is amended or particulars are ordered and an adjournment is necessary as a result thereof, the court may make an order under section 60 for costs resulting from the adjournment. R.S.O. 1990, c. P.33, s. 37.


If your looking for an easy way out, there isn't one! Arguing for dismissal on the basis of a defect is best left to an expert. Most defects are considered "minor" and will be amended by the court. As I said previously, there are cases where an amendment has been refused when NO date is listed. You need to find out if the WRONG date is treated the same way.

If this is your first time in court, I'd suggest using a Paralegal experienced in traffic court.


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by: hwybear on
Wed Jun 04, 2008 9:31 am

Police have up to 6 months to lay the charge OR reserve the person if there is an error on an original document. A long form summons is typed up and served on the person.

Maximum 30 days is only to re-issue an offence notice or Part III summons.
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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by: Bookm on
Thu Jun 05, 2008 9:39 am

In no way do I mean to challenge what you say... I'm just confused because it seems to clash with the wording in the Provincial Offences Act.

If I understand the Act correctly, you have 30 days to lay a charge by way of a Part I certificate (usually a ticket at the side of the road).

PART I
COMMENCEMENT OF PROCEEDINGS BY CERTIFICATE OF OFFENCE

...
3. (1)... a proceeding in respect of an offence may be commenced by filing a certificate of offence.
...
(3) The offence notice or summons shall be served personally upon the person charged within thirty days after the alleged offence occurred. R.S.O. 1990, c. P.33, s. 3 (1-3).


IF a Part I is not layed, you have 6 months to lay an information (charge) by way of Part III summons. It says that you can not use the Part III option if you have already used the Part I option on the same charge.

PART III
COMMENCEMENT OF PROCEEDING BY INFORMATION

21. (1) ... a proceeding in respect of an offence may be commenced by laying an information.
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.


LIMITATIONS 76. (1) A proceeding shall not be commenced after the expiration of any limitation period prescribed by or under any Act for the offence or, where no limitation period is prescribed, after six months after the date on which the offence was, or is alleged to have been, committed.

So to the layman (me) it would appear that a Part I certificate can not be re-issued after 30 days, AND a Part III is not permitted since the Part I has already been used. The Crowns only options would be to try the case based on the particulars stated on the face of the Part I certificate (ticket), or withdraw the charge.

When you describe a "long form" summons, I would assume you are describing the Part III summons, which you swear to before a Justice of the Peace (extra leg work and cost). I see no other section in the Act that describes this "long form" you mention.

Not being argumentative. Just trying to learn stuff... ;)


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by: hwybear on
Thu Jun 05, 2008 7:56 pm

Bookm wrote:When you describe a "long form" summons, I would assume you are describing the Part III summons, which you swear to before a Justice of the Peace (extra leg work and cost). I see no other section in the Act that describes this "long form" you mention.
Not being argumentative. Just trying to learn stuff... ;)
Not a problem.

At roadside we can issue the standard PON (Provincial Offence Notice)ticket OR we can issue a Part III summons at roadside. And to my understanding I have 30 days to lay either of those....to which I read above Part III can be 6 months.

I would ask our administrative staff to type up a "long form summons" and it is an 8.5" x11" piece of paper outlining the charges on it. Think it is just called a "Summons to a Defendant". Looks totally different than a Part III.

When I'm on days next...couple weeks, I will clarify the name of it.
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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