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Ontario Highway Traffic Act

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notice of motion?
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PostPosted: Mon Oct 20, 2008 11:24 pm 
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I received a ticket for 40 over in Mississauga, I called in to set a trial date, which is sometime in January.

THe other day I received a letter in the mail labelled as 'notice of motion'

it states that i go into court on the date specified ....

i do not understand what this is for...

any input?


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PostPosted: Tue Oct 21, 2008 7:03 pm 
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any help?

is it mandatory that I go to this?


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PostPosted: Tue Oct 21, 2008 10:18 pm 
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You pleaded not guilty which is why you got to go to court. If you don't go the court will find you guilty and a fine of $280 will be entered against you. That is if you were doing exactly 40 kms over the speed limit. It's $7 per kms over.

Penalty

128(14) Every person who contravenes this section or any by-law or regulation made under this section is guilty of an offence and on conviction is liable, where the rate of speed at which the motor vehicle was driven,

...

(c) is 30 kilometres per hour or more but less than 50 kilometres per hour over the speed limit, to a fine of $7 for each kilometre per hour that the motor vehicle was driven over the speed limit; and

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PostPosted: Thu Oct 23, 2008 12:29 pm 
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lawmen wrote:
a fine of $280 will be entered against you. That is if you were doing exactly 40 kms over the speed limit. It's $7 per kms over.
You forgot the victim surcharge +$60.

pardnme: Your question is a little confusing. You said "I called in to set a trial date". What does that mean? You request a trial, you get a trial date, you go to the trial. Some places have first attendance.

What is the motion?

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PostPosted: Thu Oct 23, 2008 5:22 pm 
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Yes, TC is right. I forgot the surcharge.

TC, I read your site. You make some great points and offer great advice.

Everyone needs to read it.

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PostPosted: Thu Oct 23, 2008 6:21 pm 
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lawmen wrote:
I read your site. You make some great points and offer great advice.

Everyone needs to read it.
Thanks for the positive feedback lawmen. I respect the points you've made on so many posts. You're giving me a perspective I did not know about, particularly the conflict between sections of the HTA which I found very interesting.

If I challenge you on particular points, I do so to learn more. It's to reconcile my understanding with your arguments. You clearly are very knowledgeable and I appreciate the new opportunity to learn that you give this forum.

TC.

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PostPosted: Thu Oct 23, 2008 7:51 pm 
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Law is so vast and ever expanding do to the living tree Charter and ever chaning HTA that it's impossible for anyone to know everything. I've learned from your posts and website as well.

This site we're posting on is a great service to everyone.

You're French Language argument is brilliant. I looked into it and you're right about it. But bear in mind, a community must've passed a by-law recognizing it in order for a accused to rely on it. But if they did indeed pass a by-law, it's valid grounds for dismissal. My community is one that pssed the by-law and many, many road signs are invalid due to it.

Thanks for posting that info and educating me.

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PostPosted: Fri Oct 24, 2008 11:24 am 
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Thanks again for the positive feedback. I just want to clarify a very important point about the bilingual argument.
lawmen wrote:
bear in mind, a community must've passed a by-law recognizing it in order for a accused to rely on it.
This is the argument the City of Toronto made on appeal. They lost. The court determined that the by-law was not necessary as the road signs were not a "municipal service" but a provincial jurisdiction. That's what makes this defence so potent. Otherwise it would only apply to Clarence-Rockland, Ontario which is the only city that has passed the by-law.

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PostPosted: Fri Oct 24, 2008 12:05 pm 
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WOW! Even better. Thanks for sharing that tibit of info.

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PostPosted: Fri Oct 24, 2008 4:20 pm 
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CT, if a stop sign isn't in both languages does this mean the stop sign is of no force as well?

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PostPosted: Fri Oct 24, 2008 5:42 pm 
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lawmen wrote:
CT [sic], if a stop sign isn't in both languages does this mean the stop sign is of no force as well?
Unfortunately no. Throughout Europe, even in France, the stop signs say "Stop". Quebec did have the whole "Arrête" issue during the language law error but even Montreal has signs that read "Stop" not "Stop/Arrête".

Also Reg 615 decrees "Stop" for the bilingual sign.

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PostPosted: Fri Oct 24, 2008 7:38 pm 
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Okay. Thank you.

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PostPosted: Wed Nov 19, 2008 7:00 pm 
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k, here is the actual document, typed out as best as possible:
just to recap, ticket received, called in and said i would like trial option (no need to send ticket)...i received a letter in the mail saying the trial date is in january....a little while later i received this notice of motion

everythign typed out in CAPITALS is standard on the form...anythign in smaller case...is a blank and was filled in by the court...

NOTICE OF MOTION
BETWEEN city of mississauga
AND (my name)
TAKE NOTICE THAT AN APPLICATION WILL BE MADE BY THE prosecutor
ON (date: november 25)
AT (court house address)
IN THE FOLLOWING MATTER: (speeding)
FOR AN ORDER AS FOLLOWS: to bring the matter forward to adjourn to a mutually convenient date

AND FURTHER TAKE NOTICE THAT IN SUPPORT OF THIS APPLICATION WILL BE READ THE AFFIDAVIT OF (name and badge)


any hlep?


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PostPosted: Wed Nov 19, 2008 7:23 pm 
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You say you "called in" to set a trial date. You cannot call in.

Clarify what you did. Did you send in the notice, did you go into the court to set the date? Or did you just call in on the phone?

The motion appears to be that the crown is looking to set a date, but it may also be trying to convict you on the 25th because they are bringing an application of some sort and relying on the cops sworn affidavit in this application.

You should call the courthouse tomorrow and find out what this is all about.

It sounds to me like the cop isn't available on the trial date set for January and they want a new date.

This could work in your favour. Delay the hearing as long as possible. If you do not get a trial within 8-10 months, they cannot try you. This delay is being requested by th crown.

Do not agree to it.

The crown is using a Affidavit from the cop. The Affidavit has been in the custody of the crown for weeks yet they never sent you a copy of it. You'll only see it on the 25. They have failed to provide you disclosure.

If what I say is correct, ask for an adjourment on the motion so you can seek legal advice requiring the failure of disclosure and the Affidavit.

Do not agree to a change in trial dates. If you do, the delay will not count with respect to being tried within a reasonable time.

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PostPosted: Wed Nov 19, 2008 9:36 pm 
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Sorry, I went into the courthouse to set the date...

After reading the notice several times, my final conclusion was that they need to change the date due to teh cop not being able to show up...

I have no idea how to actually get through to somebody at the courthouse...it just goes to the automated tape....

You mentioned the whole disclosure argument, however, I had not sent in the disclosure request, because as I was working on it, I had received this Notice of Motion...will that argument still work?


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