Big ass ticket

[Rob MacLennan]

Re: Big *** ticket

Sorry I am late to make a comment regarding this topic.

On Sept 2009, the Court of Appeal of Ontario made public its ruling on the Winlow case (mentioned above already). The higher court "found that traffic courts can change the documented speed to the speed with which offending driver was actually travelling — a procedure known as "amending up."

http://www.canlii.org/en/on/onca/do...tml?autocompleteStr=winlow &autocompletePos=1

So, changing the speed to the original reading is a possibility and under the discretion of the JP. However... as per this ruling, amending the charge up is not up to the Crown, much less the police officer. And amending the charge up is not easy, there are a number of checks and conditions.

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.

The issue of prejudice and fairness is central to the amendment and the Winlow case. Starting at [70], the court explains different consideration of what they mean.

[70] The court must consider whether the defendant is misled or prejudiced by the proposed amendment... etc. etc. etc.


IMO, In a case like this one, amending back to 172 stunt driving shall not be possible, because it causes prejudice and injustice that cannot be "cured" by a simple adjournment.

Thank you.

And, in fact, the charge involved is the same as the original; speeding. As I stated previously the speed is used to set the penalties. In the case of belatedly charging under HTA 172 it would clearly be a different charge, under a different section, with different penalties.

 

[MarcosSantiago]

Re: Big *** ticket

If the evidence fits, why wouldn't it be possible to amend up to HTA172? The simple possibility of harsher penalties would not be considered prejudice or injustice on its own provided that the accused is given reasonable notice and opportunity to adjust any defence to be offered to the charge.

Providing an adjournment should provide sufficient remedy to any potential prejudice or injustice that might otherwise be caused by amending up from HTA128 to HTA172. HTA172 is a strict liability offence that opens up defence possibilities that are not available under an HTA128 charge and its absolute liability offence classification.

An adjournment would provide the necessary opportunity to obtain counsel and examine any impact that the different charge would pose to both potential penalties and potential defence avenues.

Another reason: it is plain unfair to people who has no economic resources to hire a lawyer to fight s. 172.

Imagine yourself as the OP in this thread, getting ready to go to court. Even if a defendant is bankrupt, almost an indigent, it is possible to represent oneself against a speeding charge, with the intention of reducing the speed to get a reduced fine.

However, if the court amends up the charge to stunting, then a lawyer is almost a necessity, because the penalty would include a possible jail sentence of up to 6 months.

Unfairness. That is pretty much what the higher court said in paragraph [80] of the Canlii link that I posted:

[80] Even if the defendant would not be prejudiced by the amendment, the court should still refuse to amend if doing so would cause an injustice. I take injustice to capture the general notion of unfairness. Thus, under s. 34(4)(d) of the POA, the court should NOT grant an amendment that would be unfair having regard to the merits of the case.

 

[MarcosSantiago]

Re: Big *** ticket

Another point - I have no tickets in the last few years, so I have not seen recently how the amend up situation works, but if this would ever happen to me (I end up in an amend up situation and they convict me of a higher speed), I would be filing an appeal immediately, and let the judge review the decision of the JP.

 

[griff2]

Re: Big *** ticket

Another reason: it is plain unfair to people who has no economic resources to hire a lawyer to fight s. 172.

Imagine yourself as the OP in this thread, getting ready to go to court. Even if a defendant is bankrupt, almost an indigent, it is possible to represent oneself against a speeding charge, with the intention of reducing the speed to get a reduced fine.

However, if the court amends up the charge to stunting, then a lawyer is almost a necessity, because the penalty would include a possible jail sentence of up to 6 months.

Unfairness. That is pretty much what the higher court said in paragraph [80] of the Canlii link that I posted:

[80] Even if the defendant would not be prejudiced by the amendment, the court should still refuse to amend if doing so would cause an injustice. I take injustice to capture the general notion of unfairness. Thus, under s. 34(4)(d) of the POA, the court should NOT grant an amendment that would be unfair having regard to the merits of the case.

I think your definition of "unfairness" is substantially different from what the courts would consider to be unfair. What you are suggesting is that it would be unfair to charge people for an offence they have committed if they might not be able to afford an defence to that charge. The possible adversity of legal defence costs to an accused are not material to proceeding with a charge that fits the available evidence.

It is not unfair to hold an accused to answer to a charge for which evidence exists in support of that charge. Provided that the evidence fits, it is fair game to hold the possibility of an upgraded charge against an accused as an inducement to convince the accused to plead to a lesser charge. Doing so does not pervert justice in the least.

It is unfair to pop an upgraded charge on an accused on the day of trial without prior notice and then expect him to defend against that charge. It is fair to upgrade a charge provided that the accused is given adequate time to consider the upgraded charge and to adjust and prepare a defence for that charge. An adjournment does give that necessary time.

 

[Rob MacLennan]

Re: Big *** ticket

I think your definition of "unfairness" is substantially different from what the courts would consider to be unfair. What you are suggesting is that it would be unfair to charge people for an offence they have committed if they might not be able to afford an defence to that charge. The possible adversity of legal defence costs to an accused are not material to proceeding with a charge that fits the available evidence.

It is not unfair to hold an accused to answer to a charge for which evidence exists in support of that charge. Provided that the evidence fits, it is fair game to hold the possibility of an upgraded charge against an accused as an inducement to convince the accused to plead to a lesser charge. Doing so does not pervert justice in the least.

It is unfair to pop an upgraded charge on an accused on the day of trial without prior notice and then expect him to defend against that charge. It is fair to upgrade a charge provided that the accused is given adequate time to consider the upgraded charge and to adjust and prepare a defence for that charge. An adjournment does give that necessary time.

As I stated up-thread "amending up" is not charging someone with a different infraction. Charging someone under HTA 172, as a scaling up from a speeding infraction, would be. The latter would seem to be outside the scope of the decision.

 

[MarcosSantiago]

Re: Big *** ticket

I think your definition of "unfairness" is substantially different from what the courts would consider to be unfair. What you are suggesting is that it would be unfair to charge people for an offence they have committed if they might not be able to afford an defence to that charge. The possible adversity of legal defence costs to an accused are not material to proceeding with a charge that fits the available evidence.

No, what I am suggesting is that there must be consistency and integrity and reliability in the process. I am suggesting that this is not a game for the accused, and that the courts and the police have to stop playing games bringing the charges down and up and then down again, to fit their own agendas. This is nothing but an intimidation tactic, a citizen showing up to court literally does not know what the charge will be at the end.

I would prefer that there was no "amend up" at all. I also want s. 172 removed from the books because it is unconstitutional. And for the officers, if there is actually any evidence, to follow a guideline that requires them to write up the proper charge from the get go, with very few exceptions.

 

[griff2]

Re: Big *** ticket

As I stated up-thread "amending up" is not charging someone with a different infraction. Charging someone under HTA 172, as a scaling up from a speeding infraction, would be. The latter would seem to be outside the scope of the decision.

There was a case where a ticket was issued showing a charge of HTA128 when according to evidence it should have been HTA172. The court had no problem amending the ticket up from HTA128 to HTA172. http://www.canlii.org/en/on/oncj/do...mRpbmcgY2hhcmdlIHVwIGh0YQAAAAAB&resultIndex=4

"[39]In the circumstances before this Court, I am satisfied that the ends of justice can be satisfied and, without any injustice being done, an order can be made to amend the defect on the face of the summons from “Section 128” to “Section 172(1)” so that this trial can continue. Any misleading or prejudice can be removed by adjourning the trial in order to provide the defendant with sufficient time to make whatever adjustments he may require to his defence to the s.172 charge under the HTA as set out in the information.

[40]The defence motion to quash the information or to find it a nullity or to invalidate this proceeding, therefore, is denied."

 

[Rob MacLennan]

Re: Big *** ticket

There was a case where a ticket was issued showing a charge of HTA128 when according to evidence it should have been HTA172. The court had no problem amending the ticket up from HTA128 to HTA172. http://www.canlii.org/en/on/oncj/do...mRpbmcgY2hhcmdlIHVwIGh0YQAAAAAB&resultIndex=4

"[39]In the circumstances before this Court, I am satisfied that the ends of justice can be satisfied and, without any injustice being done, an order can be made to amend the defect on the face of the summons from “Section 128” to “Section 172(1)” so that this trial can continue. Any misleading or prejudice can be removed by adjourning the trial in order to provide the defendant with sufficient time to make whatever adjustments he may require to his defence to the s.172 charge under the HTA as set out in the information.

[40]The defence motion to quash the information or to find it a nullity or to invalidate this proceeding, therefore, is denied."

And I would have had an appeal filed before the gavel fell.

 

[griff2]

Re: Big *** ticket

And I would have had an appeal filed before the gavel fell.

And as per R v Winlow, you would likely lose that appeal.

[63] However, when drivers, as is their right, decide not to plead guilty and pay the set fine, but to instead defend the charge at a trial, different considerations come into play. The prosecutor then has carriage of the charge against the defendant. The prosecutor's carriage of the charge includes the discretion to manage the prosecution in accordance with the statute.


[64] And, under s. 34(2) of the POA, the legislature has expressly authorized the court to amend a charge to conform to the evidence disclosed at trial. Defendants have no vested right to insist on a trial only on the charge named on the certificate of offence. The prosecutor may thus exercise discretion by asking the court to "amend up" the certificate. The legislation gives the prosecutor the right to do so: see R. v. Irwin. It is not for the courts to interfere with the exercise of prosecutorial discretion except in cases of flagrant impropriety: see Krieger v. Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45.


[70] The court must consider whether the defendant is misled or prejudiced by the proposed amendment. This is a key consideration in deciding whether to grant an amendment. Being misled or prejudiced under s. 34(4)(c), however, does not mean the [page354] prospect of facing more severe consequences because of the amendment. That a defendant may face a stiffer fine, more demerit points or increased insurance premiums is not a reason to refuse to amend the certificate to allege a higher rate [of] speed over the limit. To decide whether a defendant is misled or prejudiced under s. 34(4)(c), the court must consider whether the defendant's opportunity and ability to meet the charge would be adversely affected by the amendment. The court must ask: will "amending up" mislead or prejudice the defendant, and if so, can the misleading or prejudice be cured by, for example, an adjournment?

 

[Rob MacLennan]

Re: Big *** ticket

And as per R v Winlow, you would likely lose that appeal.

[63] However, when drivers, as is their right, decide not to plead guilty and pay the set fine, but to instead defend the charge at a trial, different considerations come into play. The prosecutor then has carriage of the charge against the defendant. The prosecutor's carriage of the charge includes the discretion to manage the prosecution in accordance with the statute.


[64] And, under s. 34(2) of the POA, the legislature has expressly authorized the court to amend a charge to conform to the evidence disclosed at trial. Defendants have no vested right to insist on a trial only on the charge named on the certificate of offence. The prosecutor may thus exercise discretion by asking the court to "amend up" the certificate. The legislation gives the prosecutor the right to do so: see R. v. Irwin. It is not for the courts to interfere with the exercise of prosecutorial discretion except in cases of flagrant impropriety: see Krieger v. Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45.


[70] The court must consider whether the defendant is misled or prejudiced by the proposed amendment. This is a key consideration in deciding whether to grant an amendment. Being misled or prejudiced under s. 34(4)(c), however, does not mean the [page354] prospect of facing more severe consequences because of the amendment. That a defendant may face a stiffer fine, more demerit points or increased insurance premiums is not a reason to refuse to amend the certificate to allege a higher rate [of] speed over the limit. To decide whether a defendant is misled or prejudiced under s. 34(4)(c), the court must consider whether the defendant's opportunity and ability to meet the charge would be adversely affected by the amendment. The court must ask: will "amending up" mislead or prejudice the defendant, and if so, can the misleading or prejudice be cured by, for example, an adjournment?

Sure, except for that whole "...if doing so would cause an injustice." thing. It would appear that accused never tried for appeal.

 

[griff2]

Re: Big *** ticket

Sure, except for that whole "...if doing so would cause an injustice." thing. It would appear that accused never tried for appeal.

Define "injustice'. On what grounds could you claim an injustice was done if you are given adequate notice and opportunity to review and modify as necessary your defence? Refer to line 70 in Winlow. The simple possibility of harsher punishment from the amended-up charges is not sufficient to be considered adverse prejudice to an accused.

 

[Rob MacLennan]

Re: Big *** ticket

Define "injustice'. On what grounds could you claim an injustice was done if you are given adequate notice and opportunity to review and modify as necessary your defence? Refer to line 70 in Winlow. The simple possibility of harsher punishment from the amended-up charges is not sufficient to be considered adverse prejudice to an accused.

I presume that would depend upon just how ramped-up the charges were. There is always a breaking point and going from a relatively minor fine to possible imprisonment is one hell of a jump.

*EDIT* And, besides, that's what lawyers are for.

 

[MarcosSantiago]

Re: Big *** ticket

Define "injustice'. On what grounds could you claim an injustice was done if you are given adequate notice and opportunity to review and modify as necessary your defence? Refer to line 70 in Winlow. The simple possibility of harsher punishment from the amended-up charges is not sufficient to be considered adverse prejudice to an accused.

Your posts seem to be more and more defensive, completely stuck in one issue (adequate notice / adjournment and all is good for the defendant). There seems to be a disconnection here, I do not get why... Do you work for the city Prosecutors' Office by any chance?

 

[griff2]

Re: Big *** ticket

Your posts seem to be more and more defensive, completely stuck in one issue (adequate notice / adjournment and all is good for the defendant). There seems to be a disconnection here, I do not get why... Do you work for the city Prosecutors' Office by any chance?

My posts are not defensive at all. They are in response to posts that say it can't happen when precedent clearly shows that it can and it has.

Most of the arguments against it happening are based on vague and subjective notions of what constitutes fairness and injustice from a gut or emotional point of view, and not on what constitutes fairness and justice from an objective legalities and precedents point of view that the robed one up on the bench is working from.

 

[MarcosSantiago]

Re: Big *** ticket

My posts are not defensive at all. They are in response to posts that say it can't happen when precedent clearly shows that it can and it has.

Most of the arguments against it happening are based on vague and subjective notions of what constitutes fairness and injustice from a gut or emotional point of view, and not on what constitutes fairness and justice from an objective legalities and precedents point of view that the robed one up on the bench is working from.

Mmmh, now I am thinking you are a cop.

 

[iFly55]

Re: Big *** ticket

There was a case where a ticket was issued showing a charge of HTA128 when according to evidence it should have been HTA172. The court had no problem amending the ticket up from HTA128 to HTA172. http://www.canlii.org/en/on/oncj/do...mRpbmcgY2hhcmdlIHVwIGh0YQAAAAAB&resultIndex=4

"[39]In the circumstances before this Court, I am satisfied that the ends of justice can be satisfied and, without any injustice being done, an order can be made to amend the defect on the face of the summons from “Section 128” to “Section 172(1)” so that this trial can continue. Any misleading or prejudice can be removed by adjourning the trial in order to provide the defendant with sufficient time to make whatever adjustments he may require to his defence to the s.172 charge under the HTA as set out in the information.

[40]The defence motion to quash the information or to find it a nullity or to invalidate this proceeding, therefore, is denied."

@griff2 this appears to be markedly different to what's happening with OP.

The police messed up, they gave her a Part III Summons "Did commit the offence of race motor vehicle, perform stunt: to wit speeding 156 km/h in a posted 100 km/h zone, contrary to Highway Traffic Act Section 128.”

They just wrote the wrong section number and JP Coopersmith's decision went on to say that s90 of the POA allows the courts to amend the Part III summons.

OP received a Part I P.O.N. and I don't believe the crown can Winlow Warn S172 at his trial; wouldn't they would have to withdrawn the S128 charge and serve the OP with a Part III summons for S172? within the 6 month statue of limitation...

The possibility of being incarcerated under S172 is very serious and the reason why stunt driving is a strict liability offence; you're allowed a due diligence defence.

 

[griff2]

Re: Big *** ticket

@griff2 this appears to be markedly different to what's happening with OP.

The police messed up, they gave her a Part III Summons "Did commit the offence of race motor vehicle, perform stunt: to wit speeding 156 km/h in a posted 100 km/h zone, contrary to Highway Traffic Act Section 128.”

They just wrote the wrong section number and JP Coopersmith's decision went on to say that s90 of the POA allows the courts to amend the Part III summons.

OP received a Part I P.O.N. and I don't believe the crown can Winlow Warn S172 at his trial; wouldn't they would have to withdrawn the S128 charge and serve the OP with a Part III summons for S172? within the 6 month statue of limitation...

The possibility of being incarcerated under S172 is very serious and the reason why stunt driving is a strict liability offence; you're allowed a due diligence defence.

No, according to Winlow they can amend the charge up based on the evidence, even to a completely different charge if they wish provided that the evidence supports the different charge. The 6-month limitation would not apply because the speeding charge would not be withdrawn but would rather be amended to support the evidence.

See Greater Sudbury v Boivin. This appeal ruling used Winlow in upholding a conviction where a prosecutor decided to prosecute and got a conviction on a completely different charge than that which was originally stated on the certificate of offence, and which the convicted driver then appealed without success. http://www.canlii.org/en/on/oncj/doc/2010/2010oncj463/2010oncj463.html

The possibility of being incarcerated under S172 is very serious and the reason why stunt driving is a strict liability offence; you're allowed a due diligence defence.

The Winlow ruling anticipated this kind of situation, and stated that an adjournment to allow time to consider any different possible avenues of defence available to the different charge would be sufficient remedy from a fairness point of view.

Had the charge remained as just HTA128 speeding but at the OP's original speed of 70 over, the prosecutor wouldn't need to offer an adjournment at all, because the defence avenues available to challenge a 70 over ticket are no different than that available to challenge a 15 over ticket. In Durham v Zhou, the prosecution asked to amend the charge from 65 in a 50 to 81 in a 50 at the end of the trial AFTER the defence had wrapped up, and the JP (Coopersmith again!) agreed and registered a conviction for 81 in a 50. http://www.canlii.org/en/on/oncj/doc/2011/2011oncj450/2011oncj450.html

 

[Dresden]

Re: Big *** ticket

@Rob MacLennan

You are doing the lord's work. Thanks for <continually> setting the record straight.

 

[hedo2002]

Re: Big *** ticket

First let me address this one....

"Another point - I have no tickets in the last few years, so I have not seen recently how the amend up situation works, but if this would ever happen to me (I end up in an amend up situation and they convict me of a higher speed), I would be filing an appeal immediately, and let the judge review the decision of the JP."

Marcos. Unless the "original clocked speed" at roadside was say 73 km/h in a 50 and the ticket issued was for say 65 km/h in a 50 km/h zone. You decided to go to trila then they TRIED to have the charge amended to say 80 Km/h in a 50 km/h zone Then and ONLY then would you have grounds for appeal. If they simply amended the charge back to to original speed of 73 then you have NO GROUNDS for appeal as this has already been ruled upon and a precedent set. That doesn't mean you can't waste your resources appealing it, but the crown will merely cite the case law and your appeal would be summarily dismissed.

No, according to Winlow they can amend the charge up based on the evidence, even to a completely different charge if they wish provided that the evidence supports the different charge. The 6-month limitation would not apply because the speeding charge would not be withdrawn but would rather be amended to support the evidence.

See Greater Sudbury v Boivin. This appeal ruling used Winlow in upholding a conviction where a prosecutor decided to prosecute and got a conviction on a completely different charge than that which was originally stated on the certificate of offence, and which the convicted driver then appealed without success. http://www.canlii.org/en/on/oncj/doc/2010/2010oncj463/2010oncj463.html

The Winlow ruling anticipated this kind of situation, and stated that an adjournment to allow time to consider any different possible avenues of defence available to the different charge would be sufficient remedy from a fairness point of view.

Had the charge remained as just HTA128 speeding but at the OP's original speed of 70 over, the prosecutor wouldn't need to offer an adjournment at all, because the defence avenues available to challenge a 70 over ticket are no different than that available to challenge a 15 over ticket. In Durham v Zhou, the prosecution asked to amend the charge from 65 in a 50 to 81 in a 50 at the end of the trial AFTER the defence had wrapped up, and the JP (Coopersmith again!) agreed and registered a conviction for 81 in a 50. http://www.canlii.org/en/on/oncj/doc/2011/2011oncj450/2011oncj450.html

Griff: You are incorrect on one point in that in the original case law you refgerred to the case hinged as iFly55 posted on the fact that the officer had written down the "elements" of the charge for S172, but secrewed up and put s128 as the charge. Therefore, it was not, (IMHO), unreasonable or unexpected, for the JP to amend the charge to the actual charge the officer had intended to lay.

In the case of this OP, as I have already posted I agree the crown, "could" (but I HIGHLY doubt they will), go to a charge under s172. But again IMHO in order to do this without opening themselves to an appeal of the conviction. They would have to simply withdraw the charge under s128 nd lay a new information, (have the officer present serve the OP with a Part III summons), charging the OP with the new charge of s172.

Given the wording on the PON indicates that the officer fully intended to lay the charge under s128 not s 172. It would IMHO bring the administration of justice into disrepute by simply amending the charge and proceeding with a charge of s172.

Again to Rob, iFly55, and Marcos I HIGHLY doubt this will ever proceed in this manner, It is MUCH more likely the crown will seek, (if the OP chooses to go to trial), for the charge to be amended back to the ORIGINAL spped of 70 km/h over. I have merely tried to prepare the OP, by providing him with full information and disclosure of what "COULD" happen. I also beleive the OP should seek proper legal advice as this could become a VERY serious issue for him to deal with on his own.

Besides the, issue of the elements if the charge, how the crown proceeds can be based upon other unknown factors, (perhaps the head crown for this area has recieved complaints that too many high speed drivers, are merely being charged under s128 instead of s172 and they have ordered crowns to not offer deals and start proceeding under s172). The local police commander can ask the crown not to offer anything off tickets of accused choose to go to trial etc etc etc. Lawyers or paralegals who deal with this court on a regular basis will know of these factors the OP won't.

 

[griff2]

Re: Big *** ticket

Griff: You are incorrect on one point in that in the original case law you refgerred to the case hinged as iFly55 posted on the fact that the officer had written down the "elements" of the charge for S172, but secrewed up and put s128 as the charge. Therefore, it was not, (IMHO), unreasonable or unexpected, for the JP to amend the charge to the actual charge the officer had intended to lay.

In the case of this OP, as I have already posted I agree the crown, "could" (but I HIGHLY doubt they will), go to a charge under s172. But again IMHO in order to do this without opening themselves to an appeal of the conviction. They would have to simply withdraw the charge under s128 nd lay a new information, (have the officer present serve the OP with a Part III summons), charging the OP with the new charge of s172.

The reason for the amendment in this case was the cop's error in referring to S128 instead of S172. In the bigger picture scheme of things though, the error is not as important as is the fact that the court permitted the charge to be amended up to HTA172 rather than simply dismissed or held as an HTA128 trial.

This is where another appeal ruling precedent comes in, Sudbury v Boivin. The appeal ruling upheld a conviction where a prosecutor without notice prial to the trial date decided to prosecute on a completely different charge than was on the certificate of offence, and got a conviction on that completely different charge. The convicted driver appealed that ruling without success. http://www.canlii.org/en/on/oncj/doc...10oncj463.html

Would it be unreasonable for the prosecutor to amend the charge up from HTA128 to HTA172 in the case of the OP? Not according to line 70 in the Winlow appeal ruling, where it specifically dismisses the possibility of harsher penalties as being grounds for prejudice.