London (City) v. Young, 2008 ONCA 429

http://www.ontariocourts.on.ca/decision ... CA0429.htm

Whether served a ticket under Part I or Part III of the Provincial Offences Act, if a set fine exists it must be posted on your ticket or summons.

The amount must be correct and if the sum is incorrect it is a fatal error and your ticket cannot be enforced provided you do not respond to the ticket within fifteen days of being served with the offence notice.

When the ticket reaches a trial which you fail to attend, the Justice must quash the proceeding.

However, if served by summons under Part III, you must attend court; but your ticket will still not be enforced and the proceeding must be quashed.

When the case above is combined with the court decision below, it raises another question.

The case below states that set fines are only available to those who settle out of court. Should you challenge the ticket the set fine is no longer available to you.

However, the case above articulates that the set fine amount must be included on a summons and, when issued a summons under Part III, in stead of a ticket under Part I, you must attend court.

Since you must attend court, common sense dictates that the set fine must still apply even if you challenge the ticket under Part I or Part III.

R. v. ONeill, 2008 ONCJ 391

http://www.canlii.org/en/on/oncj/doc/20 ... cj391.html

First there's Cuthbertson in R. v. ONeill, 2008 saying set fines don't apply unless they apply!

Then we've got Justice Boyko in York (Regional Municipality) v. Wilson (2005) saying set fines don't have to be correct. In London (City) v. Young, 2008, Justices Armstrong and Feldman respectfully disagreed with Boyko and said set fines have to be correct. In his dissent Justice Doherty respectfully disagreed with Armstrong and Feldman and said set fines don't have to be correct. Each rejecting the previous one's argument.

With all this respect going around, the only one who doesn't get any is the defendant.

lawmen wrote:

Since you must attend court, common sense dictates that the set fine must still apply even if you challenge the ticket under Part I or Part III.

I respectfully disagree. You used the word "court" in the same sentence with "common sense". Big mistake.

Hahaha!

All of my legal knowledge comes from reading Supreme Court of Canada cases because they have the final say on what is or isn't correct.

I just started reading lower court cases and now you see why I never relied upon them before, because they're all bizarre and disagree with each other.

Based on the two cases above, though, (including the dissenting justices comments) I'm confident the set fine must apply whether or not one proceeds to trial and the set fine sum must be correctly cited on the ticket otherwise the ticket is fatally defective and unenforceable.

I also wonder what POA Doherty was reading. He stated, at para. 72, he finds "no statutory requirement that the "set fine" amount appear on the certificate of offence."

Section 3 of the POA clearly requires a set fine to be set out in the offence notice that accompanies the certificate.

Doherty comments.

72] Like Boyko J. in York v. Wilson, supra at paras. 10-11, I find no statutory requirement that the "set fine" amount appear on the certificate of offence. Section 3 requires that the certificate:

· allege an offence (s. 3(1)); and

· certify that the provincial offence officer personally served the offence notice on the person charged (s. 3(5)).

Provincial Offences Act

Certificate of offence and offence notice

3. (1) In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court.

Issuance and service

(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing, a certificate of offence certifying that an offence has been committed and,

(a) an offence notice indicating the set fine for the offence; or

(b) a summons,

in the form prescribed under section 13.

lawmen wrote:

I also wonder what POA Doherty was reading. He stated, at para. 72, he finds "no statutory requirement that the "set fine" amount appear on the certificate of offence."

*****cut****

Issuance and service

(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing, a certificate of offence certifying that an offence has been committed and,

(a) an offence notice indicating the set fine for the offence; or

(b) a summons,

in the form prescribed under section 13.

Think it comes down to one word again "OR". The JP might have missed the part about the "Certificate of Offence, being an Offence Notice" OR a "Certificate of Offence, being a Summons" where the Offence Notice requires a set fine and the Summons does not.

An issuing officer must issue a certificate off offence and an offence notice. So I suupose he was right in that the certificate of offence doesn't require the set fine amount to be posted on it, but the notice of offence does.

POA s. 3(2)(a) clearly articulates that the set fine must be indicated on the offence notice, but 3(2)(b) does not state the set fine must be on the summons.

If you commit an offence the issuing officer can proceed by way of offence notice or summons. If he proceeds by offence notice you are entitled to the set fine. If he proceeds by summons, it appears you are not entitled to the set fine.

This makes zero sense. It's the same offence and how the case proceeds has no bearing on what the fine should be. It is the issuing officer who determines how the accused must proceed. The officer can also lay an information under Part III, which also requires the accussed to be issued a summons.

If you're issued a summons and want to plea guilty without a trial, just like the peson who is issued a certificate and offence notice, you should be entitled to do so and receive the set fine. But you're not allowed to.

To me, this is simply set up so an issuing officer can screw over the accused. If the officer is told off or given a hard time at the time he is laying a charge against the accused, all the officer has to do is proceed by summons, instead of certificate and offence notice, and the accused is no longer permitted to pay the lower set fine because now he has to show up in court.

Section 7 of the POA also allows one to plead guilty with represenations as to penalty. This allows the justice to impose a fine below the set fine. However, if the accused says anything in his representations that appear to contest his guilty plea, the Justice must hold a trial and cannot accept his guilty plea.

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.

lawmen wrote:

To me, this is simply set up so an issuing officer can screw over the accused. If the officer is told off or given a hard time at the time he is laying a charge against the accused, all the officer has to do is proceed by summons, instead of certificate and offence notice, and the accused is no longer permitted to pay the lower set fine because now he has to show up in court.

Driver gives me a hard time, not a bid deal (happens maybe once every 2 months), just won't give them any breaks at roadside and issue as many offence notices as possible.

I use the summons for:

1) NSF offence (no set fines)

2) NSF offence plus other offences with set fines, I will issue summons for each offence

3) Severity of the offence (ie collision with serious injuries, so a JP can take in account the situation and impose a higher fine and not be restricted by the set fine)

4) repeat offenders (co-worker stops a car for speeding, and I stop the same car 15min later OR validation sticker, I stop person one shift, next shift still expired etc.)

In my view, if a set fine exists for an offence, then the cop must issue you a notice of offence, and not a summons under Part I of the POA.

If there is no set fine, then the cop must use the summons and not a notice of offence, under Part I of the POA.

If no set fine exists and you are served by notice of offence, instead of a summons, it is a fatal error.

If a set fine exists for the offence, then the cop cannot proceed under Part III of the POA because Part III only allows the cop to serve the accused by summons, and the set fine offences must be served by notice of offence.

Set fines only apply to Part I and Part II of the POA.

Provincial Offences Act

1(1)"set fine" means the amount of fine set by the Chief Justice of the Ontario Court of Justice for an offence for the purpose of proceedings commenced under Part I or II.

Issuance and service

3(2) A provincial offences officer who believes that one or more persons have committed an offence may issue, by completing and signing, a certificate of offence certifying that an offence has been committed and,

(a) an offence notice indicating the set fine for the offence; or

(b) a summons,