Big ass ticket

[Rob MacLennan]

Re: Big *** ticket

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.

Again, different story. The defendant stated that he was ready to proceed to trial. He cannot then claim that he was unprepared for the new charges, and so has no right of appeal. The proper course would have been to request deferrment on the trial, re-request disclosure with an eye to the new charges, and quite likely get off on 11b filing due to the unreasonable delay in trial, for which he would have borne no fault.

 

[MarcosSantiago]

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.
...

Well, I did an appeal before by myself, and basically 95% of the outcome depends on the judge you get assigned, and the contents of the transcripts. How clearly did the JP communicated the law to you?

In the situation of the amend up, given the burden on the crown and the prosecutor, there are plenty of technicalities that may happen to win an appeal.

Just to mention a few hypothetical grounds for appeal.

Background: p. [72] of Winlow, “the prosecutor and the court should ensure, at a minimum, that the defendant understands the amendment, understands the consequences of the amendment and is given a reasonable opportunity to make submissions on why the amendment should not be granted.”

Therefore, my grounds for appealing the judgment could be:

** I, as a defendant, did not understand the amendment,
** I did not understand the consequences of the amendment,
** Because I am not a lawyer, I had no chance to make an intelligent submissions to oppose the amendment

Background: p. [73] of Winlow: “Under s. 34(2) of the POA, the amendment is to be made during the trial as disclosed by the evidence. An important question bearing on the fairness of the amendment is when the defendant receives notice of it. No special form of notice is required. Indeed, the notice need not even be in writing. But the timing matters.”.

Grounds for appealing the judgment could be:
** Evidence does not support the amendment for reasons x, y, and z
** Evidence was not disclosed to me fully
** I, as a defendant, received no clear notice of a different charge (only a verbal notification that I did not understand)
** I, as a defendant, received the notice of a different charge too late
** I did not have time to prepare a suitable defense against the amended charge

Etc.

 

[MarcosSantiago]

Re: Big *** ticket

Let me make some clear... definition of "win". I wrote "there are plenty of technicalities that may happen (that may allow a defendant) to win an appeal."

Winning does not mean that the judge calls me "innocent", apologizes in behalf od the cop, gives me a medal, and sends me by way.
All what I need to "win" the appeal is that the judge strikes down the JP's conviction, and orders a new trial.

 

[griff2]

Re: Big *** ticket

Again, different story. The defendant stated that he was ready to proceed to trial. He cannot then claim that he was unprepared for the new charges, and so has no right of appeal. The proper course would have been to request deferrment on the trial, re-request disclosure with an eye to the new charges, and quite likely get off on 11b filing due to the unreasonable delay in trial, for which he would have borne no fault.

You could request an adjournment, but then the question remains whether this would count towards the prosecution who would be ready to proceed, or to you because you requested that adjournment. That puts the possibility of an 11b due to that adjournment delay on shaky ground.

There is also the possibility that the prosecutor would give you notice well in advance of your trial date and in doing so give you ample time to prepare for the new charges and thus negate the need for an adjournment.

A new request for disclosure would likely be pointless because the amending-up would already be based on the available evidence for which you would have already requested and received full disclosure.

The various rulings are based on differing stories but they all come back to rest on the same underlying bedrock. Amendments to different charges were granted for a variety of reasons including outright errors on the part of the police when issuing the ticket. Appeal court rulings supported the amending of charges even when the amendment would change an fairly innocuous charge to a catastrophically more severe charge.

Whether the prosecutor is actually motivated enough to do the same to the OP or not, whether any amending up is just for 70 km over speed but still prosecuted under HTA128 or whether it's going full bore up to HTA172, that still remains a possibility that the OP needs to consider.

 

[Rob MacLennan]

Re: Big *** ticket

You could request an adjournment, but then the question remains whether this would count towards the prosecution who would be ready to proceed, or to you because you requested that adjournment. That puts the possibility of an 11b due to that adjournment delay on shaky ground.

There is also the possibility that the prosecutor would give you notice well in advance of your trial date and in doing so give you ample time to prepare for the new charges and thus negate the need for an adjournment.

A new request for disclosure would likely be pointless because the amending-up would already be based on the available evidence for which you would have already requested and received full disclosure.

The various rulings are based on differing stories but they all come back to rest on the same underlying bedrock. Amendments to different charges were granted for a variety of reasons including outright errors on the part of the police when issuing the ticket. Appeal court rulings supported the amending of charges even when the amendment would change an fairly innocuous charge to a catastrophically more severe charge.

Whether the prosecutor is actually motivated enough to do the same to the OP or not, whether any amending up is just for 70 km over speed but still prosecuted under HTA128 or whether it's going full bore up to HTA172, that still remains a possibility that the OP needs to consider.

If there is a fundamental change to the way that the trial will take place, like a change in the charges, then the accused has a right to prepare a proper defence. The accused has not created the situation therefore the time involved would be counted against The Crown, toward an 11b submission.

The situation that you are now proposing isn't the situation as it existed in your last post, which was from an actual case. Do I now have to consider all possible variations upon a theme when framing my replies?

 

[hedo2002]

Re: Big *** ticket

If there is a fundamental change to the way that the trial will take place, like a change in the charges, then the accused has a right to prepare a proper defence. The accused has not created the situation therefore the time involved would be counted against The Crown, toward an 11b submission.

The situation that you are now proposing isn't the situation as it existed in your last post, which was from an actual case. Do I now have to consider all possible variations upon a theme when framing my replies?

Exactly, Rob and I have tried to point the options based on ACTUAL circumstances. Griff we can't start what if this, what if that, using scenarios that haven't yet occurred.

Marcos you are right you "can" appeal, but you too are setting up way too many what ifs. Can you show us a case which has been ruled upon that says the accused can appeal based upon the fact that they aren't a lawyer, and therefore didn't have the ability to essentially make an "informed" decision. I HIGHLY doubt this would be an acceptable reason by the court for an appeal otherwise virtually every conviction could be appealed when the accused doesn't have representation. The court and crown, (indeed the entire legal system), relies that if an accused chooses to represent themselves then they can't later use that as a basis for appeal upon conviction.

As for the "i didn't understand the charges etc" you would be required to show the judge how the JP or crown made it difficult for you as a layman to understand, (IE they didn't use common terms and wording, but rather used exclusively legalese). The onus is upon the accused during an appeal to show that there was an error in law, or that there was an act or omission which brought the adminstration of justice into disrepute. Again if this were and acceptable option for an appeal then the system would simply become overburden with every accused upon conviction saying "wait I didn't understand" The system provides an accused with the option of seeking legal advice, (if the accused fails to utilize this option then that is not the fault of the legal system)

I have spent a LOT of time in various courts, Traffic, (HTA), as well as superior court, (Criminal). Therefore, my intent was simply to inform the OP as to the "potential" outcomes and how he should proceed, (seek PROFESSIONAL representation). It is fruitless to discuss how the OP "could" beat the charge. He should look at all the options and with the assistance f professional representation, (lawyer or paralegal). This would also remove the whole "I didn't understand scenario"

So I will again advise the OP to seek professional legal assistance with this VERY serious offence, and leave it at that rather than continue to argue scenarios which are HIGHLY unlikely.

I guess Marcos, if the entire notion of amending up is that offensive to you, then you have two options ask, (if stopped) to recieve the the "full force of the ticket" or I guess you could go to a higher court and seek an injunction, preventing "the system" (as it would have to apply to ALL courts), from employing this tactic and that all courts be ordered immediately, (and instructions given to police officers, crowns, JP's and judges) that they are no longer permitted to offer anyone a "deal".

 

[MarcosSantiago]

Re: Big *** ticket

Marcos you are right you "can" appeal, but you too are setting up way too many what ifs. Can you show us a case which has been ruled upon that says the accused can appeal based upon the fact that they aren't a lawyer, and therefore didn't have the ability to essentially make an "informed" decision. I HIGHLY doubt this would be an acceptable reason by the court for an appeal otherwise virtually every conviction could be appealed when the accused doesn't have representation. The court and crown, (indeed the entire legal system), relies that if an accused chooses to represent themselves then they can't later use that as a basis for appeal upon conviction.
...

Oh, but the basis of the appeal is not that a man chooses to represent himself, but that the Crown or the JP somehow prejudiced the defendant's case. There are a few examples of rulings that follow this principle, in one form or another. I am not going to search Canlii right now and post the motherload of info that is already out there, but the reference is right there in the link that I already posted, the Winlow case that we have been discussing. "The Provincial Offences Act is not intended as a trap for the unskilled or unwary". Getting a lawyer is expensive... justice only for the wealthy?

[71] Justices of the peace and prosecutors should be especially sensitive to the question of prejudice. As they know better than most, many defendants who appear in traffic court are self-represented; many have little or no knowledge of the justice system; many are poorly educated or have but a rudimentary knowledge of English. As MacKinnon A.C.J.O. said nearly 30 years ago, in words still true today, "[t]he Provincial Offences Act is not intended as a trap for the unskilled or unwary": see R. v. Jamieson, [1981] O.J. No. 1937, 64 C.C.C. (2d) 550 (C.A.), at p. 552 C.C.C.

 

[hedo2002]

Re: Big *** ticket

Oh, but the basis of the appeal is not that a man chooses to represent himself, but that the Crown or the JP somehow prejudiced the defendant's case. There are a few examples of rulings that follow this principle, in one form or another. I am not going to search Canlii right now and post the motherload of info that is already out there, but the reference is right there in the link that I already posted, the Winlow case that we have been discussing. "The Provincial Offences Act is not intended as a trap for the unskilled or unwary". Getting a lawyer is expensive... justice only for the wealthy?

[71] Justices of the peace and prosecutors should be especially sensitive to the question of prejudice. As they know better than most, many defendants who appear in traffic court are self-represented; many have little or no knowledge of the justice system; many are poorly educated or have but a rudimentary knowledge of English. As MacKinnon A.C.J.O. said nearly 30 years ago, in words still true today, "[t]he Provincial Offences Act is not intended as a trap for the unskilled or unwary": see R. v. Jamieson, [1981] O.J. No. 1937, 64 C.C.C. (2d) 550 (C.A.), at p. 552 C.C.C.

EXACTLY the Crown or the JP MUST have prejudiced the case. The mere fact that a fool chooses to represent themselves is not in and of it self grounds for a successful appeal. Otherwise as I have stated then the legal system would collapse in that EVERY defendant could merely stand up and say "Your honor I am a moron" Appeal granted and successful. Surely even you see how ludicrous that is. IF a defendant asks the crown for advice, (as I have witnessed hindreds of times), the accused is told they are not permitted to dispense advice and that the accused should seek legal advice. No one has said that the accused "needs" to hire a lawyer, (there are duty counsel available at most courthouses, and lawyer/paralegals will provide free legal advice). So again IF the defendant CHOOSES not to seek advice then they are the one who is foolish.

Your quote above states CLEARLY, the JP and crown SHOULD, (not MUST), that is a huge difference within the legal system, be especially sensitive to the question of prejudice. It goes on to say that many defendants have little or no knowledge of the justice system. Which is why you will often see JP's "assist" defendents, but that doesn't mean that they are required to hand hold them through the charges. I have seen MANY JP's if the accused seems confused or unable to comrehend, ask the accused if they "understand the charges" if they say no then the JP will often adjourn the matter until the accused seeks counsel or the crown can expalin "what the charges are, and possible outcomes", but not how to beat the charge.

EVERY accused is given AMPLE opportunity to get a legal opinion before going to court, (If they say they have been unable to get such advice they are granted at least one adjournment to do so).

So again I submit if by the time a trial is scheduled the accused still, (kinowing that they don't comprehend what is going on), CHOOSES not to get advice then they truly have the proverbial fool representing them in court. The ONUS is on the accused in an appeal to show how the crown or JP preh=judiced their case. They can't just rely on their "feeling" that they got shafted there has to be a legitmate grounds for appeal.

But again this is all moot, as the OP has been given clear concise options to follow. Do as you wish, good luck on your theory. Hopefully on your next ticket you can report back how successful you were. I will do as i always have done, use my knowledge of the HTA and court procedures to have the charge withdrawn or dismissed.

 

[iFly55]

Re: Big *** ticket

Another very popular situation that we can consider are minor rear-end accidents. Where the go-to charge in Ontario is always 'Careless Driving', officers use to charge 'Following Too Closely' but evidence of a rear-end accident alone is not proof that a driver was following too closely.

So defendants/legal counsellors easily won these charges; so my question is, why didn't the prosecutors Winlow Warn and amend the charge to 'Careless Driving' for these 'Following Too Closely' tickets? When there's insufficient evidence to get a conviction on the 'Following Too Closely'?

 

[K4D4]

I apreicate the helpful answers and not the few losers that said suck it up and pay.. Really does seem like a 50/50 chance if I go to court. I chose to speak with a prosecutor and I'm going to try to bring a lawyer with me when I go but I need to find a really good one that can get me something lighter. My meeting is in September


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[griff2]

Re: Big *** ticket

I apreicate the helpful answers and not the few losers that said suck it up and pay.. Really does seem like a 50/50 chance if I go to court. I chose to speak with a prosecutor and I'm going to try to bring a lawyer with me when I go but I need to find a really good one that can get me something lighter. My meeting is in September


Sent from my iPhone using Tapatalk

Alan Gold - downtown Toronto
Alan Risen - downtown Oshawa

The best that money can buy. Have fun.

 

[MarcosSantiago]

Re: Big *** ticket

...
But again this is all moot, as the OP has been given clear concise options to follow. Do as you wish, good luck on your theory. Hopefully on your next ticket you can report back how successful you were. I will do as i always have done, use my knowledge of the HTA and court procedures to have the charge withdrawn or dismissed.

Oh.

I just noticed you kept replying.

Thank you for your good wishes... but we don't have to wait for my next ticket to prove these theories, I am posting based on my experience and success on previous tickets. I just don't like to report back to GTAM very much... I don't think anyone here cares for the play by play...

 

[Furpo]

Re: Big *** ticket

I apreicate the helpful answers and not the few losers that said suck it up and pay.. Really does seem like a 50/50 chance if I go to court. I chose to speak with a prosecutor and I'm going to try to bring a lawyer with me when I go but I need to find a really good one that can get me something lighter. My meeting is in September

So you believe you have a "50/50 chance" of getting a "big *** ticket" reduced after paying for a "really good" lawyer. Do you know how long a top lawyer has to work to charge you the cost of your "big *** ticket". That's right, not even one of your coffee breaks. (You can't afford Alan Rock, by the way, and he won't represent you). Let's say 8 hours at $400 (I know, cheap, but I'm being optimistic throughout). That's $3,200. The ticket is reduced to, let's be generous here, 29 over. You've saved a couple of hundred on the fine. But you are still out $3,000. So, do your hypothetical savings on insurance premiums match that best case scenario? That is, will you reduce the premium increase by $1,000 per year over three years. Let's say your insurance was going to increase by $2,000 and it goes up by $500. Well done, you are $1,500 to the good, overall.

Now, let's examine the worst case scenario which, I think, is HTA172. Or not, let's just say speeding at 70 over. Ticket goes up by at least $1,700. Let's say your insurance goes up by only $500 per year. That is an extra cost of $3,200 + legal = $7,200. (I know, you can walk away before that point but then you are definitely out some legal fees.)

So you have 50% x $1,500 plus 50% x -$7,200 = average outcome of minus $2,850.

(I haven't added the cost of your time: I will presume you won't lose income or sleep over this.)

So when the "losers" suggest you just pay it seems they have thought it through and prefer not to throw good money after bad.

But we await the outcome. Thanks for being our test case!

 

[Rob MacLennan]

Re: Big *** ticket

So you believe you have a "50/50 chance" of getting a "big *** ticket" reduced after paying for a "really good" lawyer. Do you know how long a top lawyer has to work to charge you the cost of your "big *** ticket". That's right, not even one of your coffee breaks. (You can't afford Alan Rock, by the way, and he won't represent you). Let's say 8 hours at $400 (I know, cheap, but I'm being optimistic throughout). That's $3,200. The ticket is reduced to, let's be generous here, 29 over. You've saved a couple of hundred on the fine. But you are still out $3,000. So, do your hypothetical savings on insurance premiums match that best case scenario? That is, will you reduce the premium increase by $1,000 per year over three years. Let's say your insurance was going to increase by $2,000 and it goes up by $500. Well done, you are $1,500 to the good, overall.

Now, let's examine the worst case scenario which, I think, is HTA172. Or not, let's just say speeding at 70 over. Ticket goes up by at least $1,700. Let's say your insurance goes up by only $500 per year. That is an extra cost of $3,200 + legal = $7,200. (I know, you can walk away before that point but then you are definitely out some legal fees.)

So you have 50% x $1,500 plus 50% x -$7,200 = average outcome of minus $2,850.

(I haven't added the cost of your time: I will presume you won't lose income or sleep over this.)

So when the "losers" suggest you just pay it seems they have thought it through and prefer not to throw good money after bad.

But we await the outcome. Thanks for being our test case!

The "losers" of which you speak offered absolutely no rationale beyond "suck it up and pay it." Had they offered up half of what you just did, their posts would have remained. Instead they chose to just lambaste the OP in a manner specifically proscribed in this sub forum, as people come here for help.

 

[Furpo]

Re: Big *** ticket

The "losers" of which you speak offered absolutely no rationale beyond "suck it up and pay it." Had they offered up half of what you just did, their posts would have remained. Instead they chose to just lambaste the OP in a manner specifically proscribed in this sub forum, as people come here for help.

oh. carry on.

 

[jojo]

Re: Big *** ticket

Wow, I never knew this much about why people fight tickets in this province. I myself have gotten a couple tickets and paid them without even thinking about bothering with court, though I've never been caught doing over twice the speed limit...
Anyway, it appears that purely on a cost-benefit analysis that paying the ticket is definitely the best option, especially if the OP is looking at a $500/hour lawyer, though I am unsure how that would change insurance premiums. I don't know what the OP does for a living, but even one day of mine spent f*&#ng around with courts, lawyers etc is already way more than the cost of the ticket as well...
B

 

[Furpo]

Re: Big *** ticket

I am sure this is dealt with elsewhere but I searched without success and I find myself in the unfortunate position of needing to know the answer:

If, say, a rider is over the speed limit and a (very understanding and pleasant officer) reduces the ticket from a four-pointer to 15kmh over can the rider request a court date but then pay the fine and close the matter at any time? Let's say the rider requests the court date and gets convincing disclosure. Can he then just quickly pay the 50 bucks and learn his lesson? Or, can the officer at any time amend the charge up? Must the rider, having requested the court procedure, go through with it or can he pay the original fine at any time and end the matter?

I have little doubt the disclosure will be convincing by the way. The officer was driving towards the rider then turned his lights on, and his colleague was parked behind bushes a hundred yards further on. Clutching at straws really. But TD MM are pretty clear: any conviction affects insurance rates, even your first minor.

 

[Hyperion]

Re: Big *** ticket

I am sure this is dealt with elsewhere but I searched without success and I find myself in the unfortunate position of needing to know the answer:

If, say, a rider is over the speed limit and a (very understanding and pleasant officer) reduces the ticket from a four-pointer to 15kmh over can the rider request a court date but then pay the fine and close the matter at any time? Let's say the rider requests the court date and gets convincing disclosure. Can he then just quickly pay the 50 bucks and learn his lesson? Or, can the officer at any time amend the charge up? Must the rider, having requested the court procedure, go through with it or can he pay the original fine at any time and end the matter?

I have little doubt the disclosure will be convincing by the way. The officer was driving towards the rider then turned his lights on, and his colleague was parked behind bushes a hundred yards further on. Clutching at straws really. But TD MM are pretty clear: any conviction affects insurance rates, even your first minor.

We know it was you....
Why not call the very same court system that gave you your ticket?

 

[Furpo]

Re: Big *** ticket

We know it was you....
Why not call the very same court system that gave you your ticket?

I can try that, but I suspect the responses here will be both quicker and more reliable.

 

[Hyperion]

More reliable than the people that made up the rules?