You can request a judge extend the time for bringing an appeal. You can request the judge waive the requirement that you pay the fine before filing the appeal. You must file a motion to achieve this request. Form 37A. Filing a notice of motion cost $180. If you win you still have to proceed to the appeal hearing. It would take months to get this the whole process. Filing a challenge under s. 24 of the Charter is free. It's heard within a few weeks.
http://www.canlii.net/on/laws/regu/1994 ... whole.html
EXTENSION OR ABRIDGMENT OF TIME
8. (1) Aâ€‚judge may extend or abridge the time for bringing an appeal and for doing any other act in connection with an appeal for which a time is prescribed before or after the expiration of the time prescribed. O. Reg. 722/94, r. 8 (1).
(2) Aâ€‚notice of motion to extend or abridge time shall be given to the opposite party, unless otherwise directed by a judge.
Power of judge
(5) Uponâ€‚the hearing of a motion, the judge may receive and base his or her decision on information that he or she considers credible or trustworthy in the circumstances, whether or not other evidence is given. O. Reg. 722/94, r. 11 (5).
Hearing where notice not served
(6) Aâ€‚motion may be heard without service of a notice of motion,
(a) on consent;
(b) where the motion is made under section 111 or 112 of the Act; or
(c) where, having regard to the subject-matter or the circumstances of the motion, it would not be unjust to hear the motion without service of a notice of motion. O. Reg. 722/94, r. 11 (6).
The Justice of Peace already extended the fine payment up to March 15.You can request the judge waive the requirement that you pay the fine before filing the appeal.
I guess I have to figure out how to do it...Filing a challenge under s. 24 of the Charter is free. It's heard within a few weeks.
TC, according to s 11(1) of the POA, reopening only applies under Part I if the accused was convicted without a hearing, and only if they apply within 15 days becoming aware of the conviction. I'm not sure what is proper procedure in a case like this.
11. (1) If a defendant who has been convicted without a hearing attends at the court office during regular office hours within fifteen days of becoming aware of the conviction and appears before a justice requesting that the conviction be struck out, the justice shall strike out the conviction if he or she is satisfied by affidavit of the defendant that, through no fault of the defendant, the defendant was unable to appear for a hearing or a notice or document relating to the offence was not delivered.
I just have got this reply on my e-mail:
Under the Provincial Offences Act, the only method by which you can have your Part 3 conviction set aside is by way of an appeal.
In order to appeal the conviction, you must attend at the court office where the matter was heard within 30 days of the conviction and complete and file your Notice of Appeal. You will also be required to pay the court ordered fine , order a transcript of the court proceedings and pay a deposit of $25.00 towards the preparation of same. Please note that, depending on the length of your matter, you may be contacted at a later point to pay a Further Deposit for the completion of your transcript.
Please note, I will also forward your e-mail to the attention of the Prosecutor's office
What should I do now? Can someone "translate" this reply to me?
P, they claim you have 30 days, but this is incorrect. You have 15 days, but weekends and holidays donÃ¢Â€Â™t count so 15 days could be 20 calendar days. In any event, itÃ¢Â€Â™s been longer than 15 or 30 days.
Send them this email reply if it meets your satisfaction and see what they say.
My 16-year old son was convicted of an offence for which he cannot be convicted of at law. The law he was convicted of doe not apply to him as he was riding a bicycle and the law in question only applies to a motor vehicle.
The charge was laid under Part I of the POA. Appeal under Part I begin at section 135. Section 135(2) of the POA only provides 15 days to appeal.
Application for appeal
135(2) A notice of appeal shall be in the prescribed form and shall state the reasons why the appeal is taken and shall be filed with the clerk of the court within fifteen days after the making of the decision appealed from, in accordance with the rules of court.
We only discovered the error of law regarding the conviction after the 15 day appeal period had passed.
We cannot find any provision that allows us to appeal after the 15 day period. Despite the 15 day limitation period, the conviction cannot stand because a person cannot be convicted of an offence when the law they have been convicted of does not apply to them.
Please advise how we are to properly proceed having this conviction quashed?
TheyÃ¢Â€Â™re clueless, though. First they said your conviction under Part III. You son was issued a ticket, which is Part I; not III.
They told you that you have to pay the fine before appealing, which is correct, but they never told you that you can request the Judge waive the fine payment requirement.
You're not going to pay a $480 fine in order to appeal when the fine should never have been ordered. A person sentenced to a term of imprisonment doesn't have to complete his sentence prior to appealing.
The rules of court do not provide the procedure to request a judge waive the fine and extend the appeal period. I assume it is by way of motion.
This case could become a landmark case if you push it far enough. You can constitutionally challenge three points of law.
1] A person cannot plea bargain down to an offence that does not apply to them.
2] A court cannot convict someone of an offence when the offence plea bargained down to does not apply to them.
3] A person cannot be forced to pay a fine in order to appeal when the fine should never have been imposed.
Now, you do not want this case reopened or a new trial. You want the conviction struck out and an acquittal entered. Period.
If your case is reopened or you get a new trial, you have to face the charge of failing to remain. IÃ¢Â€Â™m confident youÃ¢Â€Â™d win on merit, but thatÃ¢Â€Â™s not the point. They havenÃ¢Â€Â™t tried your son in a reasonable time, thus, in my view, they violate your son's right under s. 11(b) of the Charter and itÃ¢Â€Â™s too late for a new trial.
How to make it happend? What steps do I need to take?Now, you do not want this case reopened or a new trial. You want the conviction struck out. Period.
Usually the conviction quashed by an appeal court:
http://www.newsletter.co.uk/news/Republ ... 4627964.jp
We have to visit the appeal judge in downtown in March 2009. Don't we have grounds for this case being quashed then?
Latest news, I just called to my home insurance company and spoke to a clerk there, they are going to write a check to me so I can pay to that car driver a full amount...
It looks like I have to deal only with the original conviction now...
You should request your insurance provide you legal counsel, instead of giving him money he doesn't deserve.
I have no clue why your insurance is cutting him a cheque when they haven't even invesitgated. Seems really odd to me.
If you get to appeal the conviction, you're not looking for a new trial, you just want the appeal court to strike out the conviction.
Let's wait and see what the court tells you after sending them the last email.
1. Notice of Motion to Extend Time in Which to File an Appeal
(ont.reg 723/94, rule 7 and/or ont. reg. 722/94, rule8)
(ont.reg 723/94, rule 7 and/or ont. reg. 722/94, rule8)
3.Notice of Appeal (form1) under section 116 of the provincial offences act ont.reg 723/94
They'll get it back with interest from the increased premiums they'll charge over the next few years.lawmen wrote:I have no clue why your insurance is cutting him a cheque when they haven't even invesitgated. Seems really odd to me.
I also think they would have investigated. No one cuts a cheque without paperwork and line authority approval. Otherwise there would be a lot of rich insurance clerks.
As I mentioned, the justice was required to ensure the guilty plea was valid.
I agree with TC.
P, do not give the driver a cent at this point. Do not cash the insurance cheque. I think you should send it back.