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Need some advice on Court proceedings -very confused
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PostPosted: Thu Jul 28, 2011 11:53 am 
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I have recently gone to court for a speeding ticket issued by an OPP officer. As it stood, the officer forgot to sign the ticket. So at my trial, before I made a plea, I pointed this out to the justice of the peace and asked that the ticket be quashed. I was asked to produce my copy of the ticket, which I gave and the JOP then agreed with me and dismissed the case. Before he did so, the prosecuter objected stating that they had a signed copy, and that it should be sufficient. The JOP disagreed and said it was apparent that the officer signed his copy, after the fact. Therefore I won the case.

A week ago - I received a notice of charge again, and when enquiring about why, the clerk said that the Prosecutor was appealing the decision. I am astonished that they would bother going through the trouble for a $138 ticket -- what a huge waste of time and taxpayer money.

Nonetheless, I am wondering on what grounds they think they can win?? As I understand it, the ticket must be signed at the time it was presented to me? Can anyone confirm this please?
Secondly, can/should I be requesting disclosure for this. I didn't for the first trial as I thought for sure it was a 100% win for me and it wouldn't be required. Now that the prosecutor is appealing this - - I am worried about the strength of my case?? Would the prosecutor be appealing without being sure they would win?? Huge waste of time and resources for such a small $ ticket - if chances of winning were slow??

Any help is much appreciated


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Re: Need some advice on Court proceedings -very confused
PostPosted: Thu Jul 28, 2011 12:46 pm 
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In my view, the Justice of the Peace (and you) were correct. I would say the odds of that decision being upheld on appeal are good, but I would STRONGLY recommend that you seek a paralegal or lawyer to handle the appeal. The Prosecutor just wants another "administrative ace," if you will, that can be used. You were unrepresented the first time, so the Prosecutor is probably counting on the idea that you will be unrepresented the second time, after he's had a chance to look up all kinds of case law to throw at the appeal Justice. The costs for a $138 ticket, yes, are unreasonable; but if they can use the argument that "we have a signed copy" afterwards, the amount of money they'd be saving (actually generating through revenue by non-quashed tickets) would potentially be HUGE.

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Re: Need some advice on Court proceedings -very confused
PostPosted: Thu Jul 28, 2011 3:03 pm 
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Hmmm I see what you mean. Thanks for your input. I'm wondering if the prosecutor is trying to argue that if their "copy" - ie the certificate - is signed - that trumps my "offence notice" not being signed? Im not exactly sure what case law has determined in regards to this? Anyone else have any ideas?
How does appeals court work? Is there a judicial review of the case in order to determine whether a trial is warranted?

Thanks


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Re: Need some advice on Court proceedings -very confused
PostPosted: Fri Jul 29, 2011 5:50 pm 
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Simon Borys feel free to chime in here...

Basically when it goes to appeal, the Prosecutor's office will submit their factum, argue their case with points of law, etc., and then you get to present your case. I'll look up some case law but I think that, if your appeal is handled correctly, the Prosecutor will lose again. It's a bit like the Netflix commercial:

How would you like to prosecute an improperly issued ticket? Ready, set... Congratulations, you lost!
Care for a rematch? Fine. 1, 2, sorry, you lost again.

But I would go seek a paralegal or traffic lawyer and get some advice on this. Most of them offer free consultations.

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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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Re: Need some advice on Court proceedings -very confused
PostPosted: Tue Aug 02, 2011 8:39 am 
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Thanks for your responses Radar Identified - I really appreciate it. I tried looking up some case law on the CanLi website, but haven't found anything that addresses an unsigned Offence notice vs and unsigned Certificate of Offence. I believe the prosecutor tried to argue that "the Certificate"(their copy) was signed and that was all that mattered. Not sure that section 128 differentiates between the two. I still haven't received a new court date. As far as I know the appeal is being made as I received a notice in the mail of the charge, and through a telephone conversation the clerk said to disregard, and that it only meant the prosecutor was appealing. I have yet to receive a court date and/or any other documentation in the mail. The person on the phone just said to call back if I don't hear anything in a while?? Is this advisable, or should I let it sit? I guess I should also ask for disclosure this time in case it doesn't get quashed on appeal? Should I wait for them to contact me before I do that? Should I be contacting the proscutor to ask what the grounds of appeal are? Finally, do prosecutors offer plea bargains even though they are appealing?

I apologize for all the questions, this is so frustrating. The prosecutor offered me a deal of no points and reduced down to 15 over(would have cost me $60), but from all I read - I thought my case was a no brainer and that I was sure to win. - So I didn't take the deal and won. Now I'm looking at it costing me another day of work, and probably hiring a paralegal. I have been trying to do the research and handle this on my own but have a lot of procedural questions.

Thank you all for your time.


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Re: Need some advice on Court proceedings -very confused
PostPosted: Tue Aug 02, 2011 9:54 am 
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If the appeal is successful, a new trial would be ordered. At that time, you could make a request for disclosure in the matter. I wouldn't worry about it until you hear if the appeal has been successful.

In regards to a plea deal, I don't see any reason why they still wouldn't offer you one. It's still simpler for everyone involved and prosecutors prefer a guaranteed win versus the uncertainty of trial.

I'd be interested to hear what happens with your matter on appeal. I seem to recall there were issues with carbon copy signatures on the notice of offence served to defendants, so it's interesting to hear they're now arguing no signature is ok.


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Re: Need some advice on Court proceedings -very confused
PostPosted: Tue Aug 02, 2011 10:00 am 
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An appeal will not necessarily result in a new trial. If the appellate judge rules that there were enough facts on the record to support a conviction, but for the fact that the JP quashed it because the ticket was not signed, they don't need to send it back for a new trial, since those findings of fact have already been made. In this case they can just substitute a verdict of guilty.

What should happen here is that you get a notice for the appeal hearing and you go to that to argue the merits of the appeal. The crown will likely have ordered transcripts of the case and will use those to prepare and submit a factum with the evidence from the record along with the case law they feel supports their position. As the appellant, they must serve the court and you (the respondent) prior to the appeal date. Then you have the opportunity to prepare your own factum in response. This is where a lawyer or paralegal could (and should) assist you. In fact, I would think that this may be beyond the experience of most paralegals, but I don't want to over generalize.

If you go to the appeal without having prepared and submitted a factum, it makes it much easier for the judge to decide in favour of the prosecution, because their side is the only one that has been fully explained and articulated.

Personally, I think your position has the high ground, but you still need to present that properly to the judge, you can't just rely on them to know the law on this point and agree with you.

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Re: Need some advice on Court proceedings -very confused
PostPosted: Tue Aug 02, 2011 10:36 am 
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Simon/Stanton,
Thank you for the excellent information. So i guess I just sit back for now and see what happens. Just to be clear though, I will receive something in the mail for this? Based on the potential cost of a traffic lawyer, am I not better to take a chance at the appeal on my own? I am uncertain what a traffic lawyer charges. Still unsure whether it is prudent to ask about the reason of their appeal? If I contact the prosecutor, are they obligated to let me know? Should I look into ordering transcripts of my case??

If anyone knows of any case law in my favour that would be a huge help! I have looked and am coming up blank. Are there any other free resources besides CanLi?

Stanton, I will provide updates as to the outcome of the case if I see it through to trial.

Thanks again everyone :)


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Re: Need some advice on Court proceedings -very confused
PostPosted: Tue Aug 02, 2011 2:47 pm 
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There's going to be a wide disparity in fees charged amongst lawyers based on their location and experience. Financially you would of course be better off to do the appeal yourself, but then you run the risk of losing, so you have to weigh that against the costs of hiring a lawyer.

You will know what the grounds for the appeal are when you get served a copy of the prosectutor's factum. You don't need to call to find that out. You should also receive notice of the date the appeal will be heard well in advance.

If you were going to prepare a factum in response, you would need to order transcripts of the case.

CanLII is the best free legal research resource.

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NOTHING I SAY ON HERE IS LEGAL ADVICE.


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Re: Need some advice on Court proceedings -very confused
PostPosted: Wed Aug 03, 2011 9:10 am 
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Thanks again Simon

A couple other questions for anyone out there? What are my risks in losing at the appeal stage? Am I correct in my assumption, that since the prosecutor is the one appealing, I will not be responsible for court costs regardless of whether I win or lose?

Does anyone know how much court costs at the appeals stage?


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Re: Need some advice on Court proceedings -very confused
PostPosted: Thu Aug 04, 2011 7:37 pm 
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You are responsible for your own lawyer's costs unless you win a costs award against the crown.

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