Ontario Court Of Appeal

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scmedicine
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Ontario Court Of Appeal

Unread post by scmedicine on

I was pulled over in October 2014 ticketed for having a insecure load. Opp pulled me and my father over, I had no tailgate on the truck with a 2x4 which was a foot long. (Scrap piece of wood) and a full piece of plywood, I told the cop I don't have a load and it's not my truck he gave me ticket and went on .. went with option 3 on the ticket. Had a trial in Feb 2015. I represented myself, opp testified that he seen a chunk of 2x4 and a sheet of plywood in the back of the truck so Igave him a insecure load ticket. My witness was the passenger (my father) he testified it was his truck and that the piece of plywood was bolted down in the back of the truck. I also testified saying I was driving my father's truck and was pulled over and recieved a ticket for insecure load, I also told the court i had no idea i was carrying a load. I was found guilty for the 2x4 piece of wood, now I'm appealing had my first appearance April 1, 2015. To set a date.. now here is my question is a "chunk of 2x4" considered a load? Do I have grounds for a appeal? Also I need to know how the appeal process works when they say appeal approved or rejected what does that mean? 3 questions I have. Please answer. ..


ynotp
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Unread post by ynotp on

I don't think your case is winnable as you cannot even use a due diligence defense. If there is a loose piece of cargo in the cargo area then you are carrying a load. If the cargo in the cargo area is not properly secured then you have yourself an insecure load. Failing to look into the cargo area before you drive is not an valid excuse. If you were to have testified that before you left you examined the bed and it was empty except for the screwed down plywood and you have no idea where the piece of wood came from then perhaps you would have had a chance.

Can someone else chime in on the appeal process itself?


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highwaystar
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Unread post by highwaystar on

First off, your appeal does not go to the Ontario Court of Appeal (at Osgoode Hall in Toronto). Rather, it simply goes to the Ontario Court of Justice----the appeal is heard by a judge as oppose to a justice of the peace.

Secondly, you likely don't have a winnable appeal. After all, the JP would either need to have made an error of law or a serious procedural error. Findings of fact are given tremendous deference (i.e. the appeal court doesn't normally go against a finding of fact unless it is 'patently unreasonable'). They figure that the trial JP was in a better position to see witness expressions, body language, etc. Appeals are not re-trials. Rather, they are simply a review of whether the trial decision was fairly decided.

So, when you apply for an appeal, you are asking for 'leave to appeal'----meaning, the appeal court reviews your application to even see whether they will even devote any hearing time to your case. If they think there are no grounds for an appeal, your application for 'leave' will be refused. They don't have to provide any reasons why they denied your application for leave. Now, if they DO think your case has something of merit, then they will grant your application for leave. That just means you now will get a court date to argue your appeal. You then get a chance to make your arguments at your appeal hearing and they will decide. They may still decide that your case was fairly decided and deny your appeal (but at least you had an appeal hearing). In terms of decisions, the appeal court can send the case back for a new trial (i.e. the entire process starts all over again!), they can insert their own verdict (thereby avoiding another trial), or they can reject the appeal (in which case the trial decision stands).

With regards to your case, if both of you were inside the truck looking forward, its going to be hard to argue that you were keeping a watchful eye on whether the load truly was secure or not. Given that there was no tailgate on the truck, it is possible something (like the 2x4) slid----the officer (or anyone viewing from behind) would be in a better position to see that.






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