Plea Bargaining

If I request a trial and I get a Notice of Trial in the mail, can I go to the Court on my scheduled Trial date and try to plea bargain with the Crown?

Yes.  You can show up and speak to the Prosecutor and agree to plead guilty to a lesser offence which will reduce the amount of demerit points that you will accumulate and will lessen the fine which you may receive.  This type of negotiation is called a “plea bargain” and normally means that you would have to negotiate and come to an agreement with the Prosecutor to “plead guilty” to a lesser offence.  The Prosecutor would announce his/her intention of amending the original charge and the Justice of the Peace would more than likely agree and the amended offence would be read out to you by the court’s clerk and you would be asked what your plea was and you would have to state that it is “guilty”.  You could ask the Prosecutor to reduce the fine and ask for 90 days or more, to pay if you require that time to pay.

This process is found in the Provincial Offences Act , section 45 (2) and if reads:

Plea of guilty to another offence – Where the defendant pleads not guilty to the offence charged but guilty of any other offence, whether or not it is an included offence, the court may, with the consent of the prosecutor, accept such plea of guilty and accordingly amend the information or substitute the offence to which the defendant pleads guilty.

The “ Courts of Justice Act” (When your rights under the Charter have been violated and you are seeking relief/appropriate remedy):

This is the Act which would come into play if your trial date was over a year after the alleged offence occurred (ie – speeding, parking etc.).

In order to ensure your rights under the subsection 11(b) of the Charter (your right to be tried (have a trial) within a reasonable period ( the Morin decision, as decided by the Supreme Court – states that the guidelines for all trials is eight to ten (8 to 10) months) are upheld, it is then necessary to prepare and deliver an application for a “Stay of Proceeding” motion or document.  This is also known as a “notice of a constitutional question”. It is section 24 (1) of the Charter, which provides the Court (the J.P. presiding) the authority and jurisdiction to deal with the section 11(b) question.  Section 24 (1) also provides the J.P. with the ability to provide a “remedy as the court considers appropriate and just in the circumstances”.  In the case where there has been an unreasonable delay between the time you received your ticket and the time that your trial was scheduled to deal with the ticket, the remedy is to have the matter (the charge contained on the ticket) stayed (the trial doesn’t happen).

You will have to prepare an “Application for Stay of Proceedings” you’ll find a section in this site that deals with the format of this application and the procedures to follow around it. Link to the Application for Stay of Proceeding page (with three (3) different formats).

You will have to serve notice (present your application for stay of proceedings) to several parties (the Attorney General of Canada and the Attorney General of Ontario, the Crown Attorney/City Prosecutor at the court where your trial will be held and the J.P. that will hear your case (there are different Courts of Justice offices throughout Ontario).  Some offices will allow you to serve the application for stay of proceeding by fax (Attorney General of Canada and Ontario generally do) and others will not.

It is important to remember that in order to have your constitutional challenge heard at your trial date, you must provide the “notice of a constitutional question”, or in this case, your “application for stay of proceedings” at least 15 days before your trial date is scheduled (ie- if your trial was scheduled for June 17, submit your notice, at the very latest, by June 1).  If you mess up and neglect to file it, at least 15 days prior to the date of your trial, your opportunity to have the charges “stayed” will be denied and you will not be able to argue that your rights under subsection 11(b) have been violated and have your ticket thrown out.

This is what the Courts of Justice Act states:

PART VII COURT PROCEEDINGS

Application to the Provincial Offences Act– Section 95 (3) states:

Sections 109, 126 (language of the proceedings), 132 (judge sitting on appeal), 136 (prohibition against photography at court hearings), 144 (arrest and committal warrants enforceable by police) and 146 (where procedures not provided) also apply to proceedings under the Provincial Offences Act and, for the purpose, a reference in one of those sections to a judge includes a justice of the peace presiding in the Ontario Court of Justice.

Notice of Constitutional question:

109. (1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1) The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.
2) A remedy is claimed under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

Failure to give notice:

2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.

Form of  notice:

(2.1) The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form (see “Application for Stay of Proceeding” section in this site)

Time of notice:

(2.2) The notice (ie application for stay of proceeding) shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days (15 days) before the day (your trial date) on which the question is to be argued, unless the court orders otherwise.

Notice of appeal:

(3) Where the Attorney General of Canada and the Attorney General of Ontario are entitled to notice under subsection (1), they are entitled to notice of any appeal in respect of the constitutional question.

Right of the Attorneys General to be heard:

(4) Where the Attorney General of Canada or the Attorney General of Ontario is entitled to notice under this section, he or she is entitled to adduce evidence and make submissions to the court in respect of the constitutional question.

Right of the Attorneys General to appeal:

(5) Where the Attorney General of Canada or the Attorney General of Ontario makes submissions under subsection (4), he or she shall be deemed to be a party to the proceeding for the purpose of any appeal in respect of the constitutional question.

Boards and tribunals:

(6) This section applies to proceedings before boards and tribunals as well as to court proceedings.

For our purposes, the two most important subsections of section 109 are 1 (2), 2, 2.1 and 2.2.

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