On what grounds can I ask that my charge(s) be dismissed? There are a number. Depending on the professionalism and reasonableness displayed by the Prosecutor and the Court (the Justice of the Peace) a number of events can lead to a dismissal of your charge(s), but you must request this. Here are some: One of the main reasons for requesting a “trial” is that there is a chance that the person who charged you or wrote the ticket will not present themselves for trial and as a result, the Prosecutor will not be able to establish or prove their case and the case will most likely be tossed out. This is normally done at the request of the Prosecutor, with the consent of the Court (the Justice of the Peace). Sometimes the Prosecutor wants to adjourn and the Court will not allow it.
- Green Hornet, MLEO or Investigating Police Officer doesn’t appear at scheduled trial date. You have taken time out of your day and have devoted a lot of time and resources to show-up to your scheduled trial. If the Green Hornet (Law Enforcement Officer), MLEO (Municipal Licensing Enforcement Officer) or Police Officer does not show up this means that the Prosecutor cannot prove its’ case and as a result, the charges should be dismissed. The only other option (which will only inconvenience you more) is that the trial be adjourned to a later date to have the officer, who issued the ticket(s) present to give evidence. If the Prosecutor makes this request to the Justice of the Peace) oppose this motion and tell them that you will not agree to this, given the amount of time and resources you have already invested in getting to Court. You can also remind the Court that the longer it takes for the charge(s) to be heard, the more prejudice you will suffer and you may end up with a Charter argument under Section 11(b) of the Charter.
- You have not received “disclosure” of the officer’s notes/evidence and as a result, you cannot possibly proceed, given that you will suffer prejudice and your rights under Section 7 of the Charter will be offended and violated. As long as you submitted the request for disclosure at least 8 weeks prior to the trial and you called the office that was suppose to send you the disclosure, at least two weeks before your trial, you will be able to request a “stay of proceedings” under Section 24(1) of the Charter. If you have not had sufficient and adequate time to review the evidence (generally this means the investigating Officer’s notes from his/her log book) which the Prosecutor will rely upon (when the officer provides evidence in “examination-in-chief) when he/she begins asking the Officer questions on the witness stand. You can ask that the charges be dismissed or “stayed” as you have been deprived the right to a full answer and defence to the charge(s) laid and to adjourn the trial to a later date, will force you to take more time off of work, invest additional resources to the case at hand. The Prosecutor may ask that the trial be adjourned to a later date in order to give his/her office the opportunity to have your request for disclosure acted on and to have the Officer’s notes sent to you. You should remind the Court that if the matter is put over to a later date, it will mean you will have to take more time (in addition to the time you have already taken to come to Court at a future date) and it will also possibly mean that you will have a Charter argument under Section 11(b) of the Charter. (see the section in this site referred to as “Disclosure”)
- You have exercised your right under Section 14 of the Charter and have requested that a Court appointed interpreter assist, at the trial, because you understand and feel much more confident and comfortable to communicate in your first language (“mother tongue”) as opposed to your second language, English or French, or you are deaf and need a sign language (normally American Sign Language) interpreter and the Court has neglected to provide you with an interpreter on the day of your trial. If the Court cannot provide an interpreter, than you suffer prejudice (given that you are disadvantaged as you find it difficult to follow the proceedings and what the Prosecutor, Justice of the Peace, Law Enforcement Officer and/or the witnesses) and you can ask that the charge(s) be dismissed, as you do not want to adjourn the matter to a future date in hopes that the Court can get their act together at the next appearance. Remember you have a right under Section 14 of the Charter to have an interpreter present during the entire proceeding. Section 14 of the Charter states: A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted (English/French) or who is deaf has the right to the assistance of an interpreter.
- The trial is scheduled outside of the time limit guidelines as set down by the Supreme Court (8-10 months in a Supreme Court Decision called Morin). This decision must be recognized, acknowledged and followed by all Courts in Canada. You have a right to a trial within a reasonable timeframe. Section 11(b) of the Charter states: Any person charged with an offence has the right to be tried within a reasonable time. Since it falls to the Supreme Court to interpret the Charter, they have interpreted Section 11 (b) on a few occasions, most notably in a case called Askov et al, followed by Morin, which is the seminal case and serves to define the Askov decision. Most courts (with section 11(b) in mind) in Ontario tend to stay (to suspend or dismiss) cases that are being brought to trial 11 to 14 months after the person has been charged. In order to seek the remedy of having your charge(s) stayed there are a number of rules which must be adhered to. Your must submit an application for “stay of proceedings” 15 days in advance of your scheduled trial date and time to the courts. If your rights under section 11(b) of the Charter have been breached and you want the Court to provide you with a stay pursuant to section 24 (1) of the Charter, then you will have to refer to the section in this site titled Application for “Stay of Proceedings”. You must follow a specific criteria and format when submitting an “Application for Stay of Proceedings” to the Courts. Some people also refer to this as a Constitutional challenge.
Strict Liability Traffic Offences Under the Highway Traffic Act most offences are considered “absolute liability” offences and the only onus on the Prosecutor is to establish that you did it and a conviction follows. It doesn’t matter why you did it, or the circumstances giving rise to the offence, if you did it and the Prosecutor can establish, through evidence, that you did it, you will be convicted. It is not necessary to establish “mens rea” or motive, if the Prosecutor establishes that you committed an “absolute liability offence” then you will be convicted and a fine will be imposed, with the possibility of accumulating demerit points as well. These points will remain on your driving record with the Ministry of Transportation for a period of two (2) years from the time that you committed the offence. For good measure, Insurance Companies” tack on another year and as a result, this conviction remains on your insurance record for a period of three (3) years and may hold it against the driver for six (6) years. Strict Liability Offences are different. With regard to strict liability offences, the Province or the City Prosecutor needs merely to prove that the prohibited act took place by yourself and if you do not rebut this evidence, by providing an acceptable explanation for having committed the act, you will be convicted of that offence. The Provincial Legislature or one of the three Territorial Legislatures can always convert an absolute liability offence to one of strict liability by permitting the defence of due diligence to be raised. In the absence of the government doing the right thing, it is left to the Courts to do perform the conversion. Under this defence, you can rely on the defence of reasonable mistake of fact and/or due diligence. Some traffic offences which are regarded as “strict liability” offences are:
- Careless Driving
- Driving while your licence is under suspension
- Seat Belts: in a recent Ontario court case (Regina versus Kanda) the Court found that this type of offence was not an “absolute liability” offence as the Prosecutor argued, but was a “strict liability” traffic offence. The parent in this case, had exercised due diligence by ensuring that his 12 year old and 8 year old sons were both wearing their seatbelts when he began driving. When he was pulled over by the Police, the 8 year old son did not have his seat belt on. As a result, Mr. Kanda received a ticket, pursuant to section 106 (4) of the Ontario Highway Traffic Act. Mr. Kanda decided to fight his ticket and the court found, ultimately, that Mr. Kanda had exercised “due diligence” and dismissed the charge.
- Stop Signs and refusing to come to a full and complete stop. Unfortunately, a lot of Police Officers think that the 3 second rule applies when stopping at a stop sign (having to stop at a stop sign and begin counting 1000 1, 1000 2 and 1000 3). All that is necessary, is that you come to a “complete stop”, before proceeding on your way.
The Common Law Defence of Necessity This is a special type of defence that you could raise as a defendant is court, when your case proceeds to trial. On October 11, 1984 the Supreme Court of Canada rendered a decision in a case called William Francis Perka et al versus the Queen. In this decision the Court found that “The defence of necessity is available in Canada and should be recognized as an excuse operating (in this case) by virtue of section 7(3) of the Criminal Code. The essential criteria for the operation of the defence is the moral involuntariness of the wrongful action measured on the basis of society’s expectation of appropriate and normal resistance to pressure. According to the Court: This is the “I couldn’t do anything else” defence. This defence only applies in circumstances of imminent risk, where the action was taken to avoid a direct and immediate peril. The act in question may only be characterized as involuntary where it was inevitable, unavoidable and where no reasonable opportunity for an alternative course was available to the accused. As well the harm inflicted by the violation of the law must be less than the harm the accused sought to avoid. Where it is contemplated or ought to have been contemplated by the accused that his actions would likely give rise to an emergency requiring the breach of the law it may be open to him to claim his response was involuntary; mere negligence or involvement in criminal or immoral activity when the emergency arose, however, will not dissentitle an accused from relying upon the defence. Finally, where sufficient evidence is placed before the Court to raise the issue of necessity the onus falls on the Crown to meet the defence and prove beyond a reasonable doubt that the accused’ act was voluntary; the accused bears no burden of proof. Can tickets be thrown out due to a technicality? Yes. It must be noted though, that when the Government of Ontario created the Provincial Offences Act (POA) (also referred to as the P.O.A), the idea or philosophy behind the Act, was to avoid defeating tickets on a technicality and proceeding with the merits (the substance) of the charge(s). Justices of the Peace are very aware of this and will do their utmost to avoid defeating tickets on irregularities. The P.O.A. provides the Justice of the Peace (the J.P.) or a Judge with the power and authority to either amend the face of the ticket (the information written or not written, on the certificate of offence or on the parking infraction notice) or to simply adjourn the matter, so that the defendant was not prejudiced in his/her ability to have full answer and defence to the alleged charge(s). This power/authority exercised by J.P’s/Judges is called a “curative” power or the ability to cure a technical defect or irregularity on a ticket, by amending the ticket or adjourning the matter to another day. This, however, cannot be done for all defects or irregularities on a ticket, and in those instances the only remedy is to nullify or declare the charge(s) a nullity and it is at this stage, that the charge(s) described on the ticket must be dismissed or thrown out. The sections of the P.O.A which must be looked at, with respect to this subject matter, are as follows:
A defendant may at any stage of the proceeding make a motion to the court to amend or to divide a count that,
(a) charges in the alternative different matters, acts or omissions that are stated in the alternative in the enactment that creates or describes the offence; or
(b) is double or multifarious, on the ground that, as framed, it prejudices the defendant in the defendant’s defence.
Idem – Section 33.(2) Upon a motion under subsection (1), where the court is satisfied that the ends of justice so require, it may order that a count be amended or divided into two or more counts, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.
Amendment of information or certificate – Section 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 – Section 34. (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 – Section
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 – Section 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 amendments can be made without injustice being done.
Amendment, question of law – Section 34. (5)
The question whether an order to amend an information or certificate should be granted or refused is a question of law.
Endorsement of order to amend – Section 34. (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.
Particulars – Section 35 – The court may, before or during the trial, if it is satisfied that it is necessary for a fair trial, order that a particular, further describing any matter relevant to the proceedings, be furnished to the defendant.
Motion to quash information or certificate – Section 36. (1)
An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.
Grounds for quashing – Section 36. (2) – The court shall not quash an information or certificate unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice.
Irregularities in form – Section 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, undertaking to appear or recognizance and the charge set out in the information or certificate.
Adjournment to meet irregularities – Section 90. (2)
Where it appears to the court that the defendant has been misled by any irregularity, defect or variance mentioned in subsection (1), the court may adjourn the hearing and may make such order as the court considers appropriate, including an order under section 60 for the payment of costs. (Costs respecting witnesses – maximum costs to be awarded $100.00)
Justices of the Peace or Judges have broad curative powers in sections 33, 34, 35, 36 & 90 (2) to amend the information on the ticket or to simply adjourn the matter to a later date. The certificate of offence (the ticket) cannot, based on any irregularity, defect or variance, mislead a defendant. Note all sections & subsections and then what can be quashed and what can not be quashed. Examples of the information that must be on a ticket, or the ticket must be thrown out? If the police officer, or provincial offences officer or parking enforcement officer (green hornet) has not signed the ticket, where his or her signature is be applied, the ticket must be thrown out. Where the Prosecutor and or the Justice of the Peace has discretion to throw a ticket out? If the wrong year is on the date of the alleged infraction If the surname is spelled wrong.