Notice of motion?

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?

any help?

is it mandatory that I go to this?

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

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?

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.

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.

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.

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.

WOW! Even better. Thanks for sharing that tibit of info.

CT, if a stop sign isn't in both languages does this mean the stop sign is of no force as well?

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 "Arrªte" issue during the language law error but even Montreal has signs that read "Stop" not "Stop/Arrªte".

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

Okay. Thank you.

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?

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.

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?

Yes it will work. You're not a lawyer. You didn't know anything about disclosure. Doesn't mean you're not entitled to it.

The crown knows about disclosure. The crown sent you a notice of motion weeks ago. The crown knows it has in its custody an affidavit it is relying on. The crown was required to give you a copy of it. You're only going to get to see it once you are before the court. How can you defend yourself against it without time to prepare a defence?

Do not agree to a new date under any condition. The judge might order one even if you opose it.

On what date were you charged?

On what date in January is the trial?

You have to have a trial within 8 to 10 months. If you agree to a new date the delay byond 8 to 10 months doesn't count because you agreed to it.

Do not agree to it.

If the judge sets the new trial day beyond the 10 month period, even if you oppose the new date, it means you can move for a stay of the charge due to delay.

However, We don't know for a fact that this is what the crown will be requesting. We're only guessing at this point.

Request an adjounment of this motion once the crown produces the Affidavit. You need time to seek counsel. This delay doesn't affect your trial date in January since that trial date is already set.

The crown is trying to convict you. Don't do them any favours.

Charged on September 11...

Trial date is for Mid January....

Notice of Motion date is November 25 (next week)...

Request an adjounment of this motion once the crown produces the Affidavit. You need time to seek counsel. Do not answer any other questions in court. You want to consult counsel. Period.

Get a copy of the cops affidavit. Do not leave the courthouse until you get it.

Request the new date for the motion to be heard as far off into the future as you can.

It sounds like the prosecutor is looking to change your trial date in January. The Affidavit may be from the officer stating a reason why he cannot attend your trial. You should go on November 25. It will show you are actively engaged in the process and not just a silent bystander.

You could book both days off work, November 25 and the trial date in January. But do it now. At the hearing of the motion, let the prosecutor present its case. When asked if you have any objections to a new date, you could reply "I have concerns about booking another day off of work." Maybe if youre lucky, and you have a sympathetic JP, and the wind is blowing in the right direction, the motion will not be allowed (i.e. unduly onerous on you). But dont count on it. If the officer cant attend your trial in January, then there is no witness and the prosecutor has no case.

Let us know what happens and good luck.

Imax makes some great points. My experience in Mississauga is that they fill a court room with 75 people for "pre-trial" which amounts to simply scheduling a new trial date. It is a complete waste of court time.

Make sure you fax in a serious disclosure request before the court session including a request for the affadavit.

A couple of strategy points on top of Imax and lawmen's great suggestions. You need to indicate that you are dissatisfied with the pace. This is a relatively simple matter that should be tried quickly. You are apprehensive about the charge and want to clear it as quickly as possible. Mention you have already booked time off work. Then become unavailable in the Spring. In other words, you want an earlier date, you've booked the time off and the only other available date for you is WAY down the road beyond 10 months. This long delay is totally the fault of the prosecutor.

Now the warning: they may try and schedule it forward. But you can then ask the prosecutor to commit to giving you everything you asked for in disclosure several weeks before trial. Without that, you can't prepare your defence and moving the date up is pointless.

UPDATE:

So today was the date, the reason for this motion was because the cop has a criminal court case on the schedule day of the trial and that takes precedence...

so luckily i wasn't first, and i figured out what was going on....

a) negotiating a settlement on the spot

b) moving the court day to a week or 2 from now...

My friend got this ticket just before he left to go study law in england for 3 years, it is a 40 km/h ticket....

i was offered a 20km/h over ticket...i refused and stated i needed to maintain that date since that is when my friend will be back for his court date (even though he won't)

everybody in that room got their court date moved to next week or the following week...i was the only one who got it scheduled for 3 days prior to the original one...so it is still in january...but most likely my friend will not be here...

so i'm hoping:

a) the cop does not show up because i might be only ticket on that day

b) the cop does not show up because he has to prepare for his criminal court case for right after the weekend

but for now, i'm going to send in a disclosure request (should i put down that i want a copy of the affidavit?)