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Gaping Hole in POA Regarding Trials
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PostPosted: Mon Jul 13, 2009 4:41 pm 
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Joined: Wed Jul 01, 2009 4:30 pm
Posts: 68
Under the POA a person can be issued a certificate of offence certifying that an offence has been committed if they;

(a) live inside a prescribed part of Ontario and receive a ticket inside that prescribed part of Ontario;
(b) live inside a prescribed part of Ontario but receive the ticket outside of a prescribed part of Ontario;
(c) live outside a prescribed part of Ontario and receive a ticket outside of a prescribed part of Ontario; or
(d) live outside a prescribed part of Ontario but receive the ticket inside a prescribed part of Ontario.

Regardless of where you live or receive a certificate of offence you are entitled to issue a notice of intention to appear under s. 5 or s. 5.1.

If you give notice of an intention to appear and fail to appear at the time and place appointed for the hearing, under s. 9, you are deemed not to dispute the charge and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in your absence and impose the set fine for the offence if the certificate is complete and regular on its face.

The justice shall also quash the proceeding if they are not able to enter a conviction.

However, s. 9 is subject to s. 6, 7 and 8, thus s. 9 only applies to prescribed parts of Ontario as s. 6 refers to prescribed parts of Ontario.

Section 9.1 applies to people issued a certificate of offence outside a prescribed part of Ontario but it only applies to people who have given notice of an intention to appear and then fail to appear.

If you are issued a certificate of offence outside a prescribed part of Ontario and you do not give notice of an intention to appear at all, the court has no jurisdiction under the POA to hold a trial or issue you a notice of trial as no provision applies to people who have not given notice to appear.

Section 9.1(2) articulates that if subsection 9.1(1) applies, section 54 does not apply, thus if s. 9.1(1) does not apply then s. 54 does.

Therefore, if a person does not give an intention to appear their trial is under s. 54.

A trial's time and place is not scheduled under s. 54 until an accused gives notice of intention to appear under s. 5. And a trial cannot be scheduled unless an accused issues a notice of intention to appear, as articulated in s 5(2).

Bear in mind, s. 5 and 5.1 do not apply if a summons is issued, they only apply if a notice of offence is issued. Also be mindful that s. 5 articulates that you may give notice of intention to appear; it does not state you shall give notice. Section 5(2) states the court will only issue a notice of trial where a notice of intention to appear is received; it does not say a notice of trial will be issued whether or not a notice of intention to appear is received by the court.

Thus, if a notice of offence is issued, but not a summons, then the court is statute barred from holding a trial unless the accused foolishly issues a notice of intention to appear.

Section 9 allows the court to deal with the matter for those inside a prescribed part of Ontario and where at least fifteen days have elapsed after the defendant was served with the offence notice and no notice of an intention to appear has been served to the court.

But s. 9.1 deals with people outside a prescribed part of Ontario and provides no such time limit for commencing a proceeding and the POA makes no reference to those persons who do not serve notice of an intention to appear. The POA only refers to those that do serve a notice to appear.

Section 54 provides no such time limit for commencing a proceeding; makes no reference to those persons who do not serve notice of an intention to appear; and does not declare the accused shall be deemed not to dispute the charge.

Another killer defence brought to you by your friendly neighbourhood lawman!

POA

http://www.e-laws.gov.on.ca/html/statut ... .htm#BK117


Intention to appear

5. (1) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by so indicating on the offence notice and delivering the notice to the court office specified in it. 1993, c. 31, s. 1 (2).

Notice of trial

(2) Where an offence notice is received under subsection (1), the clerk of the court shall, as soon as is practicable, give notice to the defendant and prosecutor of the time and place of the trial.

Attendance to file notice, prescribed parts of Ontario

5.1 (1) This section applies in such parts of Ontario as are designated by regulation. 1993, c. 31, s. 1 (3).

s. 5 inapplicable

(2) Section 5 does not apply where this section applies. 1993, c. 31, s. 1 (3).

Filing

(3) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by attending in person or by representative at the court office specified in the offence notice at the time or times specified in the offence notice and filing a notice of intention to appear with the clerk of the court. 1993, c. 31, s. 1 (3); 2006, c. 21, Sched. C, s. 131 (3).

Form of notice

(4) A notice of intention to appear shall be in the form prescribed under section 13. 1993, c. 31, s. 1 (3).

Trial

(5) If a defendant files a notice of intention to appear under subsection (3), the clerk of the court shall inform the defendant and the prosecutor of the time and place of the trial.


Dispute without appearance, prescribed parts of Ontario

6. (1) Where an offence notice is served on a defendant whose address as shown on the certificate of offence is outside the county or district in which the office of the court specified in the notice is situate, and the defendant wishes to dispute the charge but does not wish to attend or be represented at a trial, the defendant may do so by signifying that intention on the offence notice and delivering the offence notice to the office of the court specified in the notice together with a written dispute setting out with reasonable particularity the defendant’s dispute and any facts upon which the defendant relies.

Disposition

(2) Where an offence notice is delivered under subsection (1), a justice shall, in the absence of the defendant, consider the dispute and,

(a) where the dispute raises an issue that may constitute a defence, direct a hearing; or

(b) where the dispute does not raise an issue that may constitute a defence, convict the defendant and impose the set fine.

Hearing

(3) Where the justice directs a hearing under subsection (2), the court shall hold the hearing and shall, in the absence of the defendant, consider the evidence in the light of the issues raised in the dispute, and acquit the defendant or convict the defendant and impose the set fine or such lesser fine as is permitted by law.

Application of section

(4) This section applies in such part or parts of Ontario as are prescribed by the regulations.

Plea of guilty with representations

7. (1) Where an offence notice is served on a defendant who does not wish to dispute the charge but wishes to make submissions as to penalty, including the extension of time for payment, the defendant may attend at the time and place specified in the notice and may appear before a justice sitting in court for the purpose of pleading guilty to the offence and making submissions as to penalty, and the justice may enter a conviction and impose the set fine or such lesser fine as is permitted by law.

Submissions under oath

(2) The justice may require submissions under subsection (1) to be made under oath, orally or by affidavit. R.S.O. 1990, c. P.33, s. 7.

Payment out of court

8. (1) Where an offence notice is served on a defendant who does not wish to dispute the charge, the defendant may sign the plea of guilty on the offence notice and deliver the offence notice and amount of the set fine to the office of the court specified in the notice.

Conviction

(2) Acceptance by the court office of payment under subsection (1) constitutes a plea of guilty whether or not the plea is signed and endorsement of payment on the certificate of offence constitutes the conviction and imposition of a fine in the amount of the set fine for the offence.

Failure to respond to offence notice

9. (1) Where at least fifteen days have elapsed after the defendant was served with the offence notice and the offence notice has not been delivered in accordance with section 6 or 8 and a plea of guilty has not been accepted under section 7, the defendant shall be deemed to not wish to dispute the charge and a justice shall examine the certificate of offence and,

(a) where the certificate of offence is complete and regular on its face, the justice shall 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, the justice shall quash the proceeding.

Where conviction without proof of by-law

(2) Where a defendant is deemed to not wish to dispute a charge under subsection (1) in respect of an offence under a by-law of a municipality, the justice shall enter a conviction under clause (1) (a) without proof of the by-law that creates the offence if the certificate of offence is complete and regular on its face. R.S.O. 1990, c. P.33, s. 9.


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

Conviction in the absence of the defendant

54. (1) Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court,

(a) may proceed to hear and determine the proceeding in the absence of the defendant;

(b) may, if it thinks fit, adjourn the hearing and issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant; or

(c) may, where the defendant does not appear in response to the summons or warrant on the date to which the hearing is adjourned, proceed under clause (a) or (b). R.S.O. 1990, c. P.33, s. 54 (1); 1993, c. 27, Sched.

Proceeding arising from failure to appear

(2) Where the court proceeds under clause (1) (a), no proceeding arising out of the failure of the defendant to appear at the time and place appointed for the hearing or for the resumption of the hearing shall be instituted or if instituted shall be proceeded with, except with the consent of the Attorney General or his or her agent. R.S.O. 1990, c. P.33, s. 54 (2); 2006, c. 21, Sched. C, s. 131 (10).


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PostPosted: Wed Oct 07, 2009 12:17 am 
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Joined: Tue Oct 06, 2009 9:56 pm
Posts: 68
After rereading this I have to admit it's incorrect.

Section 9 applies to both prescribed part of Ontario and non prescribed part of Ontario.

Failure to respond to offence notice

9. (1) Where at least fifteen days have elapsed after the defendant was served with the offence notice and the offence notice has not been delivered in accordance with section 6 or 8 and a plea of guilty has not been accepted under section 7, the defendant shall be deemed to not wish to dispute the charge and a justice shall examine the certificate of offence and,

(a) where the certificate of offence is complete and regular on its face, the justice shall 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, the justice shall quash the proceeding.


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