Proceed contrary to sign at intersection 144(9) PART 2

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.

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.

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.

lawmen wrote:

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

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

Highway Traffic Act, Schedule 1

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 defendants 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.

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.

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).

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?

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.

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.

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.

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?

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.

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.

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.

ticketcombat wrote:

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?

I'm quoting myself I know but since reading the most recent decisions and judicial dissents I have to clarify this earlier post.

Set fines are for out of court settlements. However, they can be used at the justice's discretion at trial during sentencing. If there is a range, $60 - $500 under s. 214(1) of the HTA for example, the justice can impose any amount in that range including an amount equal to the set fine.

I list on my site (step 5-->sentencing) some of the factors justice's will look for when determining the amount:

• a sincere expression of remorse;

• an apology;

• an expression of desperate financial circumstances;

• your driving record (it's clean as a whistle);

• the amount of time and effort you have spent in preparing your defence (lost wages and time off work to come to court) which means you have already paid a severe economic penalty;

• the minimum social interest at stake in seeing a harsh penalty (does the community really care if you were given a hefty fine);

• a harsh penalty would not deter others from committing the offence;

• the affect the sentence will have upon your dependants, including your spouse, children, parents and grandparents who you support; and

• the likelihood that you would ever commit the offence again.

ticketcombat..

Thanks. I sent you a pm after looking at your site since I didn't see a 'contact' page on your site

I got the ticket in Toronto but don't live in Toronto. Does that make a difference?

oh and don't forget the charter of rights issue as well that would apply to the set fine issue.

thanks lawmen,

I will be going there next week to look at the sign...which I never saw in the first place anyhow. I honestly didn't know I wasn't supposed to turn there so maybe I have a better chance or using the 'strict liability' defense. This was for section 144(9). The officer signed the ticket and put the following

At: "N/B Bay St to E/B Bloor St W" - so I think that part looks ok. The only thing I'm not sure about is what is the 'year' box on the ticket for next to the plate number box?

I'm not sure where I would look to find out if Toronto passed something saying they need to have bilingual signs. I saw the story from a link from tc's site that linked to a cbc article. I found it humourous that the justice of peace who dismissed that case of the sign not being in french also had a french last name.. are there any other cases of people getting there charges dismissed because of that?

In regards to the strict liability defense, why would the justice care about that when they don't even have to prove that I honestly did not know/see intentially commit the offense? I mean, I can honestly say that I did everything that someone making a turn would do (whatever that is).

The French defence is a brilliant one. It applies in TO. Moreover, the offence you committed involves demerit points so its a provincial issue, so it doesn't matter if TO pssed the by-law, it's in effect.

The cop never wrote in his info in French. To me that a fatal flaw.

This Frenh argument will turn Ontario upside down. Most cops aren't French. The province needs to make new bilingual forms that only require the cop to check off boxes for the offence committed. Then sign his name in French and English.

If it's a strict liability offence, the Justice cares be cause strict liability offence give you the right to advance a defence. Absolute liabilty offences do not. An absolute liability offence only allows you to question the evidence, it doesn't allow you an excuse. If you committed the act the crown must prove beyond a resonable doubt that you committed it. That's it.

Strict liability requires the crown to prove beyond a reasonable doubt that you committed the act, then you can advance a due diligence defence which is only tested on a balance of probabilities.

Different standards of proof.

lawmen wrote:

The province needs to make new bilingual forms that only require the cop to check off boxes for the offence committed. Then sign his name in French and English.

Brilliant, quicker to write tickets!! Plus no writers cramp! WooHoo!!

My name and signature would not change!

Yes I'll have to go back and check the sign again next week.

144(9) would fall under a strict liability right? So what you mean is that once they prove I actually made the turn (which I did but with an innocent state of mind and not intentially) then they have to listen to my reasoning why and if they agree, they dismiss it correct?

Thanks.

generalinq wrote:

ticketcombat..

Thanks. I sent you a pm after looking at your site since I didn't see a 'contact' page on your site

I got the ticket in Toronto but don't live in Toronto. Does that make a difference?

Thanks for the positive feedback on my site. There is a contact icon on the bottom of every page but it only appears if you have scripts turned on.

I want to discuss the out of jurisdiction situation. If you don't live in the city where you are charged, you ticket should, on the back, list a mail in option. It means, no lineups for you. It also means you have, under section 6 of the Provincial Offences Act the option of writing in your defence, including the bilingual argument. You can avoid court. It may be worthwhile to do this. However, I have to state I do not know of anyone who has ever done this. Ever. It doesn't mean you can't, it just means that a hearing will be held and you won't get to respond to the prosecutor's arguments. The best thing to do is to anticipate their objections. However, they will have the benefit of your letter in advance of the court date and could formulate a response. There are risks. You have to decide if they outweigh the convenience.

Careful... I read this a couple years ago and suggested a coworker take advantage of it. Upon further investigation, we were informed there were NO "prescribed parts of Ontario" at that time. Apparently, the section was written in anticipation of parts being prescribed at a future date.

Dispute without appearance, prescribed parts of Ontario

6. (1) Where an offence notice is served on a defendant whose address as shown on the certificate of offence is outside the county or district in which the office of the court specified in the notice is situate, and the defendant wishes to dispute the charge but does not wish to attend or be represented at a trial, the defendant may do so by signifying that intention on the offence notice and delivering the offence notice to the office of the court specified in the notice together with a written dispute setting out with reasonable particularity the defendants dispute and any facts upon which the defendant relies.

Here's the thing. In London v. Young the justices specifically mention the write in option and specifically leave out the jurisdictional part. The way I read the decision is anyone has the write in option. But 6(1) is specific: "outside county or district". Clearly someone who doesn't live in Ontario has that option. Does Ontario have counties or districts? And when a motion is made to move the trial to another "jurisdiction", then there is the acknowledgment of boundries of some sort.

The other thing is CANLII has the HTA, for example, with sections "to be proclaimed at a future date". The wording of s. 6 of the POA doesn't have that provision.

Again, I know of no one who has ever done it but this section has been in place for awhile (at least since 2003).

Ontario has districts and county's.

Prescribed parts of Ontario exist in the regulations. It also applies to s. 5.1 of the POA. They have existed since 1993.

Section 5 and 5.1 work differently in differnet parts of Ontario.

Section 5 allows people to give notice of intention to appear by indicating on the offence notice and delivering the notice to the court.

Section 5.1 requires you to give notice by attending in person or by representative at the court office.

The Prescribed parts of Ontario for the purposes of section 5.1 of the Act are found at s. 4.5 of regulation 950, and the Prescribed parts of Ontario are listed below.

POA

Intention to appear

5. (1) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by so indicating on the offence notice and delivering the notice to the court office specified in it. 1993, c. 31, s. 1 (2).

Notice of trial

(2) Where an offence notice is received under subsection (1), the clerk of the court shall, as soon as is practicable, give notice to the defendant and prosecutor of the time and place of the trial. R.S.O. 1990, c. P.33, s. 5 (2).

Attendance to file notice, prescribed parts of Ontario

5.1 (1) This section applies in such parts of Ontario as are designated by regulation. 1993, c. 31, s. 1 (3).

s. 5 inapplicable

(2) Section 5 does not apply where this section applies. 1993, c. 31, s. 1 (3).

Filing

(3) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by attending in person or by representative at the court office specified in the offence notice at the time or times specified in the offence notice and filing a notice of intention to appear with the clerk of the court. 1993, c. 31, s. 1 (3); 2006, c. 21, Sched. C, s. 131 (3).

Form of notice

(4) A notice of intention to appear shall be in the form prescribed under section 13. 1993, c. 31, s. 1 (3).

Trial

(5) If a defendant files a notice of intention to appear under subsection (3), the clerk of the court shall inform the defendant and the prosecutor of the time and place of the trial.

Regulation 950 - Prescribed parts of Ontario

City of Hamilton

City of Kawartha Lakes

City of Ottawa

City of Toronto

County of Dufferin

County of Essex

County of Haliburton

County of Northumberland

County of Peterborough

District Municipality of Muskoka

Haldimand County

Regional Municipality of Durham

Regional Municipality of Halton

Regional Municipality of Peel

Regional Municipality of Waterloo

Regional Municipality of York

this keeps getting more and more confusing.

I think I'll mail my request in for a trial and see what happens.

generalinq wrote:

this keeps getting more and more confusing.

Exactly!! As a member of this forum, I apologize for other members mindset that cutting and pasting of sections of acts is the end all be all and helps out the initial poster Add in...babbling about nonsense

When all most people want is normal/common discussion and thoughts on their own situation.

Exactly. That's the thing I find confusing. Trying to read between the lines in all the information that is posted and trying to make sense of it all.

ticketcombat has been very helpful as well. I may just use the bilingual sign defense.

What's the current turnaround time for a trial date in Toronto currently? If it's 1 year, can I motion a stay?

Bears a cop. He doesn't want people to SEE exactly what the law says. He'd rather have you rely on peoples thoughts and opinions to try and win your case.