Failure to Appear at Trial

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Greatest Canadian
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Failure to Appear at Trial

by: Greatest Canadian on
Sun Oct 11, 2009 6:20 pm

If you are issued a certificate of offence and an offence notice and give notice of an intention to appear, and then fail to appear at the time and place appointed for the hearing, under POA s. 9.1(1), you are deemed not to dispute the charge.
Failure to appear at trial

9.1 (1) If a defendant who has given notice of an intention to appear fails to appear at the time and place appointed for the hearing, the defendant shall be deemed not to dispute the charge.

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.

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).

In such cases, the justice can ONLY apply s. 9.1 (2) or (3).

If by chance the certificate is complete and regular on its face the justice can ONLY impose the set fine, as evidenced in s. 9.1(2).

The set fine does not include the victim surcharge fine and court cost fine found under s. 60.1 of Part IV of the POA (Trials and Sentencing) because no hearing was held.

Are justices adding these additional fines?

I'm not sure, but if they are, they are not permitted to.

The justice can only impose the set fine for the offence and s. 60.1(2) articulates that the surcharge is deemed to be a fine.
Surcharge

60.1 (1) If a person is convicted of an offence in a proceeding commenced under Part I or III and a fine is imposed in respect of that offence, a surcharge is payable by that person in the amount determined by regulations made under this Act.

Collection

(2) The surcharge shall be deemed to be a fine for the purpose of enforcing payment.
Moreover, other fines are added under POA regulation 945 if you are found guilty after a trial, but these additional fines are not to be added here as no hearing was held and no other fine can be imposed.

http://www.e-laws.gov.on.ca/html/regs/e ... 0945_e.htm

Regulation 945 are the purposes of subsection 60 (1) of the Act and imposes a $5 fine for service of offence notice or summons, and a $10 fine upon conviction under section 9.1 of the Act.

POA s. 60(3) evidence that these items are fines.
Costs collectable as a fine

60(3) Costs payable under this section shall be deemed to be a fine for the purpose of enforcing payment.
Only the set fine can be imposed, as evidenced in s. 9.1 (2).

Are justices adding these addtional fines?

I'm not sure, but if they are, they are not permitted to.

Additionally, not all offences subject to a certificate of offence and offence notice bear a set fine. Some offences only bear a statute fine.

If the offence you are charged with does not bear a set fine, and only bears a statute imposed fine, the conviction can be entered but NO fine can be imposed as the justice can ONLY impose a set fine, as evidenced in s. 9.1(2).

The set fine is created by the chief justice of Ontario, as evidence in POA s. 1(1).
“set fine” means the amount of fine set by the Chief Justice of the Ontario Court of Justice for an offence for the purpose of proceedings commenced under Part I or II.
A statute fine is created by the statute you are charged under.


Greatest Canadian
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by: Greatest Canadian on
Sun Oct 11, 2009 7:24 pm

The government will argue that the justice is imposing the set fine for the offence you committed, however, upon a conviction being entered, the POA statute imposes additional fines. These additional fines are not imposed by the justice for the conviction of the offence committed.

With respect to the court cost fine, it falls under Part IV of the POA and Part IV is titled Trial and sentencing.

You were not involved in a trial, as evidence as in s.9.1 because you did not attend court.

Moreover, s. 60(3) states costs payable under this section shall be deemed to be a fine for the purpose of enforcing payment.

This section referred to in s. 60(3) falls under Part IV of the POA and this section does not apply to Part I of the POA unless a trial is held.

Anyway, if a person cannot afford to pay the fine issued for an offence they are convicted of, how does adding more fines, the service of offence notice or summons fine, the conviction under section 9.1 fine, and the victim surcharge fine, work as a purpose (means) of enforcing payment of the original fine that cannot afford to pay?

The surcharge fine might be legit upon conviction. But only if a set fine is imposed. If you are convicted of an offence that has no set fine, you pay no fine, and the surcharge cannot be imposed despite the conviction as a fine must be imposed to trigger s. 60.1.
Surcharge

60.1 (1) If a person is convicted of an offence in a proceeding commenced under Part I or III and a fine is imposed in respect of that offence, a surcharge is payable by that person in the amount determined by regulations made under this Act.



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