What do I do if I receive a “Conviction Notice” in the mail, and I was unable to attend the Court on my scheduled trial date?
This happens for a number of different reasons. Often motorists have made a request for trial and receive a “Notice of Trial” in the mail, indicating the address of the court, the date of the scheduled hearing, the time and the court room number.
When this is received, we make a note of it, as it is an important event.
From time to time, defendants, who want their day in court, are unable for various reasons, to attend the court on the scheduled trial date.
If on the scheduled trial date you do not show up, then Section 9.1 (1) of the Provincial Offences Act is triggered. Under this section, if you fail to appear at the time and place appointed for the hearing, you shall be deemed not to dispute the charge. Section 9.1 (2) says that the justice shall examine the “certificate of offence”(the ticket) and shall enter a conviction in the defendant’s absence and impose the set fine for the offence, if the certificate (the ticket) is complete and regular on its face. Costs ($10.00) will be assessed against you as well.
Under the Provincial Offences Act (the “P.O.A”), there is a procedure laid out to deal with someone who has requested a trial, has been unable to attend and has been convicted in accordance with Section 9.1(2) and now seeks to have the conviction thrown out and seek another trial date. This process and procedure is set out in the P.O.A:
Section 11. (1) Reopening- If a defendant who has been convicted without a hearing attends at the court office during regular hours within fifteen (15) 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.
If a defendant who has been convicted without a hearing attends at the court office during regular office hours within fifteen (15) 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 of document relating to the offence was not delivered. (In addition see 205.13 (2) “If conviction struck out”, 205.13 (3) “Trial”, 205.13 (4) “Notifying Officer” & 205.13 (5) “Certificate”).
If a defendant who has been convicted without a hearing attends at the court office during regular officer hours within fifteen (15) 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 of document relating to the offence was not delivered. (In addition see 205.23 (2) “If conviction struck out”, 205.23 (3) “Certificate”).
It is within the discretion of the court (normally the discretion of the Justice of the Peace) to either excuse a defendant for not showing up or not excusing it. This process is the process of applying for a Re-Opener. An application for a Re-Opener must take place within 15 days of becoming aware of the fact that you were convicted in absentia.
The defendant (the person convicted) must show up in person for this to occur. There have been cases where counsel (paralegal’s, agents) have attempted to show up on their client’s behalf and swear out an affidavit in their client’s place. These cases have all been thrown out on appeal.
To make an application to Re-Open your case, you will have to fill out a Parking Ticket Application/Affidavit for Re-Opening or if it isn’t a simple ticket, a Offence Notice Application/Affidavit for Re-Opening.
It is important to remember that the onus is on the defendant to establish (prove) by way of sworn affidavit, that he/she could not attend the trial “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”.
Keep in mind, if you knew in advance of the scheduled trial date that you were not going to be able to appear, you had an obligation to contact the court (either by calling) or send a friend/relative/co-worker/agent to the court to request an adjournment, due to the specific circumstances that prevented you from appearing yourself.
“Though no fault of the defendant”. This is a pretty high threshold to meet. The courts have interpreted this to mean that the defendant is faultless in the reason for failure to appear. This mechanism is a remedy provided for by the courts in rare occasions.
You must establish, that due to circumstances beyond your control you were unable to attend your trial date. As a general rule, excuses will not be accepted. The reason for your non-appearance must be exceptional in nature.
Excuses that will most likely not be accepted as proper grounds for a reopening:
- I forgot
- I slept in
- I lost my Blackberry/iPhone/cell phone/organizer
- The alarm didn’t go off
- I wrote down the wrong date, time or courtroom
- I got lost
- My back was sore
- I was moving
- I had a fight with my girl/boy friend/spouse
- My son/daughter had a dentist appointment
- I couldn’t find a babysitter
- I had an appointment
- There was a leak in the house
- I fired my agent/paralegal/lawyer
- I misplaced the Notice of Trial
- Dog ate my Notice of Trial
If you were unable to show up for your trial, due to reasons beyond your control and reasons that could not be contributed to your negligence, then the justice will most likely grant the re-opener remedy to you.
These are some of the reasons that the courts have agreed that justify the defendant’s request for a re-opener:
- You are the primary caregiver of a terminally ill parent; or
- Your lawyer shows up late; or
- You never received the notice of trial in the mail.
The court has accepted that these are all valid reasons for a Justice of the Peace, to:
- Strike the Conviction from the record
- Order a new trial
- Provide you with a second chance to have a trial (your day in court)
If you were unable to show up due to illness, then it is a good idea to attend your doctor’s office and to request and receive a medical certificate, (signed and dated by your doctor) stating why, due to medical grounds, you were unable to present yourself to the court during your scheduled trial date. You will have to present this to the Justice of the Peace when you request a re-opener.
Your agent/paralegal/lawyer cannot swear out an affidavit in your place, before a Justice of the Peace, when an application for re-opener is being made. You must attend the court office and do this yourself in person.
If you show up and request a re-opener and the Justice of the Peace (the J.P.) decides that you did not appear for your hearing, due to your own fault, the J.P. will not strike out the conviction or order a new trial date on your behalf. If you think that you could not show up, through no fault of your own, then you can appeal the J.P.’s decision.
Appealing your Conviction and/or Sentence:
Also see Appealing a Conviction or Sentence page.
You have a right to appeal your conviction and/or sentence imposed. The Conviction means that you were found “guilty” of an offence and Sentence refers to the imposed fine and costs imposed, as a sanction, upon you as a result of the Conviction. The most important thing to remember is that you only have fifteen (15) days to do this, from the time that you are convicted. This means that you must first pay all fines and costs imposed upon you by the Court and upon payment you must get a receipt (as the required proof of payment) and with this supporting documentation, you must fill out your application for the “Notice of Appeal”
You must be aware that all convictions, for the Ministry of Transportation’s (the MTO) purposes, remain for a period of two (2) years from the date of the alleged offence. If for example, you were charged with speeding, contrary to the Highway Traffic Act (Section 128) on Jan.2, 2010 and you went to trial on Jan.2, 2011 and were convicted, the demerit points that you accumulated, would come off your record on January 2, 2012, two years after the charge was laid and in this case, a year after you went to trial. Your insurance company has a different set of rules however, in regards to when that offence would come off your insurance record with the insurance company. If you were charged on January 2, 2010, the insurance company would remove this derogatory remark off of your insurance record on January 2, 2013, three (3) years after it actually transpired, two (2) years after you were convicted and one (1) year after the Ministry of Transportation allowed this conviction to come off your driving record. This is why you end up paying a lot more money for your driving insurance, because the insurance companies take advantage of every/any opportunity to hike your rates up, as expensive as possible and for as long as possible.
You can appeal your “Conviction” only or you can appeal your “Sentence” only, but it always makes much more sense to appeal both your Conviction and Sentence at the same time (simultaneously).
If you only appeal the Conviction that means that you are appealing the fact that a Justice of the Peace (a JP) found your guilty of an offence. If you only appeal the Sentence, than that means you agree with the JP’s finding of “guilty”, but that you want the Court to lower or eliminate the associated fines and/or costs, which the JP imposed upon you (as a sanction) upon finding that you were guilty of committing an offence and a conviction was registered in the record against you (and the MTO for two (2) years and your insurance company for three (3) years).
What is an Appeal?
Appeals are a “review” of your trial. As a result, you may have to purchase a transcript of your trial (you will be required to order three (3) copies – One for the Provincial Judge who will hear your appeal, one for the Prosecutor who will resist your appeal and one for yourself). The Appeal Judge will review the evidence submitted at your trial and the decision of the Justice of the Peace who presided over your trial.
What if I lose my Appeal, does it end there?
It doesn’t have to end there. If you lose your appeal, you can then file an additional appeal to the Ontario Court of Appeal, where in the Court will review the entire matter, including the Justice of the Peace’s decision and the decision that the Judge (in the Ontario Courts of Justice – Provincial Offences Division) made in the initial appeal.
What are the “grounds” for an Appeal?
- you are found “guilty”, but the Justice of the Peace provided an insufficient rationale (he/she didn’t bother to connect all the dots or the evidence with the law) for your conviction.
- The Justice of the Peace dismissed a proper defence that was raised by yourself or your counsel (your lawyer or your paralegal).
- Your lawyer or paralegal screwed up and neglected to provide adequate or sufficient representation in the matter.
All Notice of Appeals are heard by Provincial Judges (Ontario Courts of Justice – Provincial Offences Division). In Toronto, these appeals are heard at the Old City Hall (just west of Yonge & Queen or just east of Bay & Queen) at 60 Queen Street West, Toronto, Ontario M5H 2M4. The entire process is laid out in the Provincial Offences Act starting at section 135.
You must pay your fine and costs and file the Notice of Appeal within fifteen (15) days.