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Ontario Highway Traffic Act

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proceed contrary to sign at intersection 144(9) PART 2
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PostPosted: Tue Oct 21, 2008 11:12 am 
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hi, i'm new here, didn't want to hijack the person's thread before me. WOULD APPRECIATE ANY HELP.

I've been posting in different forums cause i desperately want to get rid of this ticket.
I was driving on eglinton and was going to turn on bathurst as i always do to go home this morning. but missed the turn so decided to take the next right. I turned right down forest hill. saw a no right turn sign with fine prints, thought i saw 7 - 9am but this cop camped a little further down the road and already caught a big white. so he's giving this suv a ticket in right of me and waves me over. i still didn't know what my offense was.
apparently the sign was 7 - 7. so......
i get a ticket for $85 set fine to $110 total payable.

how do i fight this? considering that i did turn down the street despite the sign.
i really can't afford the money or the points. i have no job, and i still have speeding ticket points from two years back.

any advice?

thanks a lot.


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PostPosted: Tue Oct 21, 2008 5:03 pm 
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You say the ticket is under 144(9). You then say Part 2. What do you mean by part 2?

You say the ticket is for $85 set fine to $110.

Section 144(9) has no Part 2.

Section 144 does not indicate a set fine for s. 144(9).

Therefore, the fine would be governed by s. 214, which provides for a fine ranging from $60 to $500 in the discretion of the court.

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PostPosted: Tue Oct 21, 2008 6:26 pm 
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oh i just meant part two
as in relative to the person who posted in the section of the forum before me...(with the exact same title... which was intentional)
it was meant to be a joke.... sorry...

it has a set fine of 85 dollars and total payable of 110.

i know i should just get over it and pay and suck it up.

but i just wanted to see if people knew how to either reduce the fine... or anything to improve the current status of fine + 2 points

and the howabouts of doing so.


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PostPosted: Tue Oct 21, 2008 6:34 pm 
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lawmen wrote:
Section 144 does not indicate a set fine for s. 144(9).


http://www.ontariocourts.on.ca/ocj/en/setfines/one/index.htm

Highway Traffic Act, Schedule 1

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PostPosted: Tue Oct 21, 2008 10:59 pm 
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Section 144 provides fines for certain offences under ss. 144. See s. 144(31.2) and (31.3) for example.

Section 144(9) is not an offence where s. 144 provides for a set fine.

Bear posted a link to regulations that have set fines. However, only the The Lieutenant Governor in Council can make regulations under s. 144.

The Lieutenant Governor in Council can also make regulations under s. 5. Section 5 does not provide the Lieutenant Governor in Council jurisdiction to set fines.

A set fine under s. 144 is also not within the jurisdiction of the The Lieutenant Governor in Council, as evidenced in s. 32. This is why no set fine is indicated anywhere in s. 144 for an offence under s. 144(9).

A set fine under the Courts of Justice Act is also of no force and effect, in my view, because HTA s. 214 governs the fines.

Therefore, the set fine on your ticket is of no force and effect as it is not validly prescribed by law.

You are subject to a fine as set out under s. 214. You are facing a fine in the range of $60 to $500. Chances are the fine could be higher than $110. It's up to the court; not the cop.

The fact that the cop indicated a set fine might not be enough to get the ticket dismissed because the court can amend a ticket at any time under s. 34 of the Provincial Offences Act. Stating the incorrect fine amount in no way affects the offence and, in my view, you suffer no injustice by having the fine amended.

Section 90 expressly states that the validity of any proceeding is not affected by any irregularity or defect in the substance or form.

Secton 59(2) states; "although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence.

Therefore, you should request the ticket be dismissed because of the error on the face of the ticket.

Highway Traffic Act

Regulations

144(32) The Lieutenant Governor in Council may make regulations,

(a) prescribing the standards or specifications of a traffic control signal system;

(b) prescribing the location of traffic control signals and signal systems;

(c) prescribing standards for operating and maintaining a traffic control signal system;

(d) regulating the use and operation of traffic control signals and signal systems. R.S.O. 1990, c. H.8, s. 144 (32).


General penalty

214. (1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500.


Provincial Offence Act

Amendment of information or certificate

34. (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a) fails to state or states defectively anything that is requisite to charge the offence;

(b) does not negative an exception that should be negatived; or

(c) is in any way defective in substance or in form.

Idem

(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.

Variances between charge and evidence

(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or

(b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.

Considerations on amendment

(4) The court shall, in considering whether or not an amendment should be made, consider,

(a) the evidence taken on the trial, if any;

(b) the circumstances of the case;

(c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and

(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

Amendment, question of law

(5) The question whether an order to amend an information or certificate should be granted or refused is a question of law. R.S.O. 1990, c. P.33, s. 34 (1-5).

Endorsement of order to amend

(6) An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended.

Provision for minimum penalty

59. (1) No penalty prescribed for an offence is a minimum penalty unless it is specifically declared to be a minimum.

Relief against minimum fine

(2) Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence.


Irregularities in form

90. (1) The validity of any proceeding is not affected by,

(a) any irregularity or defect in the substance or form of the summons, warrant, offence notice, parking infraction notice, undertaking to appear or recognizance; or

(b) any variance between the charge set out in the summons, warrant, parking infraction notice, offence notice, undertaking to appear or recognizance and the charge set out in the information or certificate.

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PostPosted: Thu Oct 23, 2008 7:49 am 
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lawmen wrote:
Section 144 provides fines for certain offences under ss. 144. See s. 144(31.2) and (31.3) for example.

Section 144(9) is not an offence where s. 144 provides for a set fine.

Bear posted a link to regulations that have set fines. However, only the The Lieutenant Governor in Council can make regulations under s. 144.

The Lieutenant Governor in Council can also make regulations under s. 5. Section 5 does not provide the Lieutenant Governor in Council jurisdiction to set fines.

A set fine under s. 144 is also not within the jurisdiction of the The Lieutenant Governor in Council, as evidenced in s. 32. This is why no set fine is indicated anywhere in s. 144 for an offence under s. 144(9).

A set fine under the Courts of Justice Act is also of no force and effect, in my view, because HTA s. 214 governs the fines. .


I understand where you are coming from, but if we do not use the short form wording and fine that the court gives us the ticket is tossed quicker than we can sign our name on it. If the case was true that each offence has no set fine (NSF) we would have to write summons up for every charge at roadside, not that it matters to me, but then every matter would require a trial in court. This would unnecesarily kill millions of trees for paper.

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PostPosted: Thu Oct 23, 2008 11:17 am 
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ativ11, Toronto is required to post bilingual signs. If the sign isn't bilingual, it's not enforceable. Your ticket is not valid as long as the sign is not bilingual. You can find out how to fight the ticket and make this argument on my website. See Step 5-->Bilingual Defence (I'm not allowed to link directly to my own site).

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PostPosted: Thu Oct 23, 2008 11:23 am 
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Regarding all these issues about set fines, if the court can impose any fine they want within a range, can they also not indicate what fine they will impose by [wait for it] establishing a set fine as a guide for justices?

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set fine
PostPosted: Sun Nov 16, 2008 1:21 pm 
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Hi

I have a question regarding the set fine comment. Because there is a set fine for 144(9), does this mean I should plead not guilty and explain that there is an error on the ticket and ask that the ticket be dismissed because of this error? Or can they simply ammend the ticket and charge me more? Just curious for clarification on that.

Also, do I mention this to the prosecutor prior to the start of the trial and see if he can dismiss it? Not sure.

Thanks.


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PostPosted: Sun Nov 16, 2008 3:01 pm 
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What error is on the ticket?

What date do you have to repsond by?

What exactly happened to you to be charged?

In short, if there is a fatal error on the ticket and you do not reply, the justice cannot fix it and no fine can be entered.

If you contract the crown the crown can contract the cop and reissue you a new and proper ticket provided its done within 30 days.

If you send in a notice to defend and then show up in court to defend the ticket that has a fatal erorr on it, the court can fix the error and proceed with the trial, find you guilty, and enter a conviction and fine.

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set fine
PostPosted: Sun Nov 16, 2008 3:50 pm 
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Hi

Thanks for the reply.

I was responding to the comment regarding set fines for 144. I was making a right turn during the hours that I shouldn't have been. Didn't know I wasn't allowed but regardless.. a ticket is a ticket.

Just read your statement about the set fines. On my ticket it says I owe $85. Total payable $110. So I'm just wondering because he put that amount in there doesn't make it an error correct?

I thought maybe after reading that statement that it's incorrect when the officer puts that in the ticket for 144(9) violation.


Also..I don't see a date of how long I have to respond by. I checked everywhere.


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PostPosted: Sun Nov 16, 2008 3:56 pm 
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If the set fine amount is incorrect it is a fatal error. I'm not sure what the set fine is. You an check on the link below. Look under the HTA section to see if the set fine he entered is correct.

http://www.ontariocourts.on.ca/ocj/en/s ... /index.htm

The total payable is higher because it includes a surcharge and court costs..

In what city did you get the ticket?

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fine
PostPosted: Sun Nov 16, 2008 4:24 pm 
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Hi

It was in Toronto - Bay and Bloor area. The set fine is $85 and total payable $110. Thought you mentioned that any fine for HTA 144 should NOT have a set fine listed since it's between 60-500 and if there is a set fine then it's an error and to contest it.


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PostPosted: Sun Nov 16, 2008 4:37 pm 
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I stand by the defence that only the Lieutenant Governor in Council (LGIC) can mke regualtions under s. 144. The Crown will argue the LGIC is limited to making regulations listed in s. 144. Since it does not include setting the set fines, the set fines are valid.

The Chief justice created the set fines, not the LGIC.

You can argue this point, but you might not win.

TO is subject to the French Language Services Act.

http://www.e-laws.gov.on.ca/html/statut ... 0f32_e.htm

You got the ticket in the city, so the city has jurisdiction over the roadways, not the province. This means the city of TO must have passed a by-law recognizing the French Language Services in order for you to argue this defence.

The signs must be posted in both French and English. Were they?

If not, find out if TO passed a by-law requiring them to be. If the city did and the sign is not in both languages, even if you don't speak or read both languages, then they cannot enforce the ticket.

I took a quick look under the TO Municipal Code and I didn't see anything.

http://www.toronto.ca/legdocs/municode/index.htm

You need to check it out for yourself and make sure. You're looking for signage to be included. Some things are, but not everything is required to be in both French and English.

If it is required though, even the street name, not just the no turn sign must be in both French and English.

The other thing you should check is this. The sign has to be a certain size and placed in the proper position on the roadway.

Regulation 615

http://www.e-laws.gov.on.ca/html/regs/e ... 0615_e.htm

Also, did the cop sign the ticket?

Did he put in the section of the HTA that you breached, or just put in the words you made an turn, blah blah blah?

The cop needs to cite the exact section.

If everything is correct on the ticket, my advice to you is this:

Don't do it again.

Now, on the other hand, you can argue this:

The ticket involves two demerit points. Points are provincial issues not municipal. Therefore, the no turn sign and street name sign are required by law to be in both languages because of the French Language Service Act.

Since the street name is not in both languages, even if the no turn sign was, the ticket still cannot be enforced.

Therefore, if you do not respond to the ticket the Justice will most likely find you guilty and enter a conviction and fine. You can appeal it and make the argument at that time.

Or,

You can send in the intend to defend notice and argue these points now.

The cop was required to write the street name location where the infraction occurred on the ticket. I'm sure he did so, right?

Go take a picture of the street name and no turn sign to prove it or they are not in both languages.

The Crown might argue that a street name is not required by regulation to be in both languages. And they may be right.

Moreover, the French Language Service Act defines Services as;

“service” means any service or procedure that is provided to the public by a government agency or institution of the Legislature and includes all communications for the purpose."

However, issuing you a ticket is not only a "service" but also a "procedure" and if the cop did not isue you the ticket in both languages, then the ticket, in my view, is not proper and cannot be enforced.

You can cherry pick this case law for legal points to help you make your argument.

http://csc.lexum.umontreal.ca/en/1986/1 ... 1-449.html

More info from other jurisdictions.

http://forums.canadiancontent.net/news/ ... rench.html

http://www.theglobeandmail.com/servlet/ ... ional/home

PS. The French Languages argument was discovered by TC, and it's a brilliant one.

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Last edited by lawmen on Sun Nov 16, 2008 7:35 pm, edited 1 time in total.

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Re: fine
PostPosted: Sun Nov 16, 2008 7:15 pm 
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generalinq wrote:
It was in Toronto - Bay and Bloor area. The set fine is $85 and total payable $110. Thought you mentioned that any fine for HTA 144 should NOT have a set fine listed since it's between 60-500 and if there is a set fine then it's an error and to contest it.
Schedule 43 lists a set fine of $85. When you add the $20 victim surcharge + $5 court costs = $110. On the face of it, your ticket is correct. Since you live in Toronto, the bilingual argument should work for Bay Street. See the posts above for instructions how to make it.

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