Speeding – Amending “Up” the Speed on the original ticket at Trial


At your trial for speeding, can the Justice of the Peace order that your ticket be changed to a higher number of kilometres an hour, than what the Officer charged you on your ticket?  Apparently, Yes.

When most motorists receive speeding tickets with a stated speed (ie- 115 km/h in a posted 100 km/h zone) they don’t expect the Prosecutor to attempt to boost up the speed to 130 km/h, when they insist on a trial.  In the case that will be referred to herein, that is exactly what happened to Mr. Robert Winlow.

In an Ontario Court of Appeal decision released on September 10, 2009 see York (Regional Municipality) v. Winlow 2009 ONCA 643, the Ontario Court of Appeal confirmed that JP’s can “amend up” a charge, such as speeding. In this particular case, the defendant, Mr. Robert Winlow was given a ticket on December 6, 2006 for driving 115 km/h on highway 400.

The Officer that issued the ticket said that he paced Mr. Winlow doing 130 km’s but only gave him a ticket travelling  115 km over the speed limit. Mr. Winlow requested a trial and received his Notice of Trial and showed up to court for his scheduled appearance for trial on August 16, 2007.

When the Prosecutor met with Mr. Winlow, expecting that Mr. Winlow would accept a plea bargain, he was upset to find that Mr. Winlow would not plead guilty to speeding 15 kilometres over the posted speed limit.

When Mr. Winlow’s matter was called in court, at the arraignment stage of the trial, Mr. Winlow stood and plead not guilty to speeding 15 over the posted speed limit, the Prosecutor asked the Justice of the Peace, Justice Hodson-Walker to “amend” the ticket and make the actual speed 30 km’s over, given that the Officer testified that Mr. Winlow was actually travelling at 30 km’s over when the Officer was pacing him, but that he only issued a speeding ticket indicating that Mr. Winlow was travelling 15 kilometres over the posted speed limit.

The Justice of the Peace, Justice Hodson-Walker hearing the original trial denied the Prosecutor’s request to “amend up” the speed on the ticket, but did see fit on convicting Mr. Winlow of travelling 115 kilometres in a 100 kilometre per hour zone in his motor vehicle.

The Prosecutor was not happy with this result and as a result, the Regional Municipality of York appealed this decision to the Ontario Court of Justice. The Municipality of York stated as the ground for appeal, that Justice of the Peace Hodson-Walker erred in law by refusing to “amend up” the speeding ticket.

At the Court of Justice, Judge Minard, dismissed the appeal on March 6, 2008.  He said that the proposed amendment did not prejudice Mr. Winlow.  He also acknowledged that had he been exercising his discretion at the trial, he would have granted the amendment.  But he could not say that the justice of the peace had erred in law

The Regional Municipality of York appealed Judge Minard’s decision to the Ontario Court of Appeal. The Ontario Court of Appeal heard this matter on January 14, 2009 and they handed down their decision on September 10, 2009.

The Court of Appeal was informed by counsel representing the Regional Municipality of York that “amending up” of speeding charges is a common practice among Ontario’s municipalities.  The appellant, the Regional Municipality of York, admitted that it was one of the municipalities that engages in this practice.

When the question was put to the Ontario Court of Appeal (can the court “amend up” a ticket/certificate?) in Winlow, this was their answer:
Obviously the court can “amend up” a certificate only if the evidence supports the amendment

In order to find out the powers of the Justice of the Peace in this case, to amend a ticket, you have to look at sections 34(2), 34(4) and 34(5) of the Provincial Offences Act.

The question of whether or not an amendment should be permitted is answered within the Provincial Offences Act as follows:

Considerations On Amendment
34(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
34(5) The question whether an order to amend an information or certificate should be granted or refused is a question of law.

There have been a number of cases where the Justice of Peace has saw fit to amend the speed listed on the speeding ticket to a higher amount at the trial. See cases  R. v. Aristidou, 2007 ONCJ 250, R. v. Vanier, 2005 ONCJ 318, R. v. Vellone, 2008 ONCJ 765.

See story by CBC news.

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