OHTA.ca

I hope I can paint the picture with the accuracy that the truth deserves. I have no intention of just beating a ticket.. but more like beating a really unfair ticket. You decide!

I had entered Canada after a short trip downsouth through Detroit on my way to Toronto. Not being equipped with a GPS unit I had to rely on the printable poorman's version from Mapquest. I followed Huron Church Rd., looking for the entrance to the EC Row Hwy., and after driving for about 10 hours and being a little distracted, wondering how I would convert the MPH to KM/H my directions were printed in, I missed the entrance.

I proceeded to the first set of lights and not daring to get lost by veering off too far from the directions given, I pulled a u-turn (perhaps illegally). Heading to the on-ramp that would get me home I felt an air of relief and threatened my wife with losing navigation duties if she made me miss another turn (how cruel, I know).

As I started exiting the curve of the on-ramp I accelerated in anticipation of entering the highway at the end of the acceleration lane. There was a black car seemingly disabled on the right shoulder just before the thick broken white lines started. It was at this point that I noticed in passing that it was an unmarked police vehicle, and I was being gunned/radared (not sure of the correct term) from an officer standing in the middle of the highway. Being Mr. Heavyfoot, I eased off the gas looking at my speedometer, relaxing my now tensed foot hovering over the brake pedal in the peace that I was not speeding (100km/h) above highway entrance speed.

But my peace was instantly shattered as I noticed the movement of the formally dead cruiser, just as I entered the motorway. I noticed there were a few cops cars congregated in this one area and I knew that it was a speed trap. The poor fellow I passed with a marked vehicle behind him was about to be joined in that embarrassing position as the unmarked cruiser turned on all his cherries and pulled me over.

It during this pull over that I noticed the highway was under construction and the temporary speed limit was 70 km/h. I was sure he wasnt pulling me over for this violation because I was just entering the highway without any way of knowing the speed limit… but… I was wrong. I was being ticketed for doing exactly 101km/h in a 70. I tried (with an obvious air of frustration) to get an explanation as to how I could be pulled over for accelerating to normal highways speeds without any signage stating a lowered speed limit on the on-ramp.

This only infuriated the officer who seemed to already be upset and in no mood for conversation. He asked for the normal identification and paperwork, at which time I let him know that I was driving a rental and everything would be in order. But to my relentless questions as to the validity and explanation for my being pulled over, I excited a desire in the officer to see if he could get me on street racing charges, by checking the on-ramp for any posted speed signs. This he did by asking a fellow officer on a motorcycle to go back and check for any signs, just before he walked away with my paperwork and my last ounce of respect.

Luckily, God had my wife with me in the car, who calmed me down with an assurance that I hadnt done anything wrong and that I might not even be ticketed (I sometimes wish I was that na¯ve). I told her the normal proceedings for an officer with this big of a chip on his shoulders would be to return and quickly inform me that all the information I needed was on the back of the ticket and to slow down next time ( I swear I must be psychic sometimes). He returned and made my explanation to my wife of how things happen turn to a prophecy which my wife was astonished could be done by a man in uniform (again ignorance is bliss).

It wasnt until I looked at the ticket here in Toronto that I noticed he gave me two tickets; one for speeding 31 km over, and the other for not producing insurance for the vehicle. It was a rental like I stated and all the paperwork was/is in order. Can you write someone a ticket for an offense he hasnt committed?

I wanted to know what chances I have at beating these tickets.

Is there anything I need in particular besides my story and obvious rental agreement to beat this in court?

Is there something else that can be done here?

Any and all advice would be greatly appreciated. Thanks to those who reply in advance.

Oh yes, heavy legal jargon only adds stress to the uninitiated like me, so please dumb down the answers for me and those who might read this thread in the future.

Thanks again

If the officer was looking for a "lower speed sign" on the ramp, meaning one with black lettering on a yellow background, that is NOT enforceable as a speed limit, it is an advisory speed only. If he ticketed you for exceeding that speed, the charge would be thrown out. Street racing charges?! Good God!! Another reason to get this law struck down.

Okay, fighting the ticket... First, request disclosure to see what evidence the Crown has. There are several websites available that will tell you how to do this, but the most comprehensive one is written by someone who posts here regularly. Since one officer was taking the speed reading and the other pulled you over, both of them will have to attend court for you to be convicted for the speeding charge.

Couple of questions regarding your insurance: As part of the rental agreement, did you pay for insurance through the rental agency? Does your credit card company provide you with rental vehicle insurance coverage, if you didn't? Otherwise, you do have your own insurance and proof of it for your own vehicle(s), right? Depending on your answer there's a number of ways to beat the charge.

I'm not an expert by any stretch but I think your chances of beating both of these tickets are fairly good.

Oh and as a heads-up to everyone: I used to live in Windsor. EC Row is a notorious speed trap and the limit, as you said, has been temporarily reduced to 70 km/h. Windsor Police also said that they will be aggressively enforcing the "temporary" limit.

Can you write someone a ticket for an offense he hasnt committed?

Ask Brad Diamond........

If you do not see a 70KM/H sign while getting on the highway, you are to "assume" the normal speed for the road. EC row is a 100 zone if I remember correctly...... You could probably beat this without much trouble. The question is, were you on the ramp or the highway when you got tagged?

If you were on the highway and didn't see a 70 sign yet how are to know of the reduced speed?? I see you are from T.O so pictures are probably out of the question??

Fines are doubled when there is a worker in the construction zone. Not sure if there was one in the zone when you were ticketed, but you need to be aware of this.

Since it was a construction zone, they must have a "construction zone begins" sign. The sign must be in French and English, too. They can have a bilingual sign or both a French and an English sign, one after the other.

The end of a designated construction zone must also be indicated by a sign, either bilingual or, again, one French and one English sign.

See s. 42 on the sign regulation link below.

Construction zones

(8) An official of the Ministry authorized by the Minister in writing may designate any part of the Kings Highway as a construction zone, and every construction zone designated under this subsection shall be marked by signs in accordance with the regulations. 2005, c. 26, Sched. A, s. 17 (4).

Same

(8.1) A person appointed by the municipality for the purpose of this subsection may designate a highway or portion of a highway under the municipalitys jurisdiction as a construction zone, and every construction zone designated under this subsection shall be marked by signs in accordance with the regulations. 2005, c. 26, Sched. A, s. 17 (4).

Same

(8.2) The presence of signs posted under subsection (8) or (8.1) is proof, in the absence of evidence to the contrary, of the designation of the portion of the highway as a construction zone, of the authority of the person authorized under subsection (8) or (8.1) to make the designation and of the speed limit set for the portion of the highway under subsection (10). 2005, c. 26, Sched. A, s. 17 (4).

...

Speed limit in construction zones

(10) The person authorized under subsection (8) or (8.1) may set a lower rate of speed for motor vehicles driven in the designated construction zone than is otherwise provided in this section, and the speed limit shall not become effective until the highway or portion of it affected is signed in accordance with subsection (8) or (8.1), as the case may be, and with subsection (10.1). 2005, c. 26, Sched. A, s. 17 (4).

Speed limit signs in construction zones

(10.1) Signs posting the maximum rate of speed at which motor vehicles may be driven in a designated construction zone may be erected in accordance with the regulations. 2005,

...

Penalty for speeding in construction zones

(14.1) Every person who contravenes this section in a construction zone designated under subsection (8) or (8.1) when there is a worker in the construction zone is liable on conviction, not to the fines set out in subsection (14), but, where the rate of speed at which the motor vehicle was driven,

(c) is 30 kilometres per hour or more but less than 50 kilometres per hour over the posted speed limit, to a fine of double the fine set out in clause (14) (c) for each kilometre per hour that the motor vehicle was driven over the speed limit;

Thank you guys for your quick replies.

In trying to answer your question thoroughly...

radar indentified: I had purchased insurance with the car rental which should make proving that I had insurance pretty easy. I believe I was more concerned with whether the JoP would be more interested in whether or not I actually handed him the piece of paper to prove that I was insured.

Reflections: I was still on the ramp when I noticed the policeman standing on the medium lighting me up, so I know I was tagged before I enter highway itself. And there were no signs at all indicating the reduced speed until I was on the highway already being stopped for breaking the speed limit.

Lawmen: I thank you for the heads-up on construction workers. I am very near 100% sure there were no workers on the freeway. If there were some they would have been on the portion of highway that proceeded my entrance. Do you think I can still be held accountable for that?

Thanks again for your quick response.

And I wanted to say that I don't blame or hold responsible anyone who wears a badge for irresponsibility or hasty actions of a small group of men

The fine should be posted on your ticket. It's $7 per km over the speed limit when the speed was above 30 kms over. It's $14 per kms over if a worker was in the zone.

The zone could be 5 miles long, or whatever. If you get stopped in an area where no workers are, but workers are in the zone 2 miles ahead of where you were stopped, they can still nail you for double the fine.

Read Ticketcombat's site. It will guide you through the court process and provides you the best info you'll find anywhere online.

I deal with rentals almost daily. Many a driver do not even check the glove box to ensure the permit(ownership) and valid insurance is in the vehicle prior to leaving. A rental agreement is not the permit and not proof of insurance.

I have dealt with a majority of rental companies and they all have said that they want their insurance wrote down on any collision. What they do is process a claim through their own insurance, if you have your own vehicle insurance, the rental companies insurance then goes to the person insurance for the coin or after the credit card rented on.

Lawmen: I read up on the issue from the site you gave earlier and according to the numbers (the fine), there were no workers on the highway at the time. I have a question. If the "set fine" and "total payable" amounts differ only in the fact that the total payable includes court costs...then on my ticket the set fine was calculated at $6/km over instead of $7. If the total payable amount is suppose to be calculated using the $7/km rule, then the total amount is not calculated right...even though it is under by $1, does this mean anything in the legality of the ticket?

Hwybear: You have a good point with the glove box check. I am sure that many people would drive away without taking the time to check this out, and to be honest I don't remember checking either. I might not have handed him the insurance policy but the rental agreement at the time. Do you think that the charge would be dropped if I can prove that I had purchased insurance from the rental company and that I was properly insured at the time?

Mr. Heavyfoot wrote:

Hwybear: You have a good point with the glove box check. I am sure that many people would drive away without taking the time to check this out, and to be honest I don't remember checking either. I might not have handed him the insurance policy but the rental agreement at the time. Do you think that the charge would be dropped if I can prove that I had purchased insurance from the rental company and that I was properly insured at the time?

Heck, I check my father in laws vehicle when I use it and the neighbours truck too Not sure what the prosecutor/JP will think about the insurance charge. Does not sound like you got charged with the offence of "No insurance", but rather "fail to surrender an insurance card".

The speed fines that are issued/used province wide are not what is printed in the HTA (ie $7 per km over).

I had purchased insurance with the car rental which should make proving that I had insurance pretty easy. I believe I was more concerned with whether the JoP would be more interested in whether or not I actually handed him the piece of paper to prove that I was insured.

Oh, okay... I mis-read your original post, sorry. Thought the cop got you for No Insurance. That said, "Fail to surrender insurance," provided that you have proof of it, is one of the easiest charges to beat. You've got your insurance information, and the rental agency will be able to provide you with everything else concerning the vehicle's insurance, so even though it's a "Fail to Surrender" charge, you should be able to get it tossed.

Since it was in Windsor, before you go to court, you will get a First Attendance meeting. (Speaking from experience here.) All you have to do is show up at the First Attendance meeting and tell them: "I'm not guilty, drop the charge." Then ask them to schedule a court date if they don't. (They won't drop the charge.) Or they might offer to drop the Fail to Surrender Insurance in exchange for pleading guilty to the speeding charge. (Yeah, what a bargain that is. ) I got a speeding charge in Windsor dropped in the First Attendance meeting, but that was due to some extraordinary circumstances.

When the court apperance is scheduled, then use all of the defence strategies that you have.

Speed limits are set out in s. 128 of the HTA. City councils can pass a by-law, under s 128(2), setting out a different rate of speed if the highway is under their jurisdiction.

However, s. 195 of the HTA states that if any by-law that is inconsistent with this Act or the regulations, the provision of the by-law shall be deemed to be repealed upon the inconsistency arising.

This raises legal questions. Can a council really pass a by-law changing a speed limit in spite of s. 195?

Section 195 does not provide an exception. The city can, however, have the by-law approved by the Minister but, in my view, the Minister's approval doesn't trump the HTA.

Does "regulating traffic on the highways," under s. 195(1)(a), include setting new set fines?

I don't think it does. Setting a speed limit is one thing, setting out a new set fine is another, and beyond the municipality's jurisdicition.

But only the court can decide.

Even if the fine set out on your ticket is incorrect, the court can fix it under s. 34 of the Provincial Offences Act, so this error is not grounds to have your charges dismissed. The judge could dismiss you charges on this issue, but it's in their discretion.

Rate of speed by by-law

128(2) The council of a municipality may, for motor vehicles driven on a highway or portion of a highway under its jurisdiction, by by-law prescribe a rate of speed different from the rate set out in subsection (1) that is not greater than 100 kilometres per hour and may prescribe different rates of speed for different times of day.

Effect of by-laws

Inconsistent by-laws deemed repealed

195. (1) If a provision of a municipal by-law passed by the council of a municipality or a police services board for,

(a) regulating traffic on the highways;

(b) regulating noise, fumes or smoke created by the operation of motor vehicles on the highways; or

(c) prohibiting or regulating the operation of motor vehicles or any type or class thereof on the highways,

is inconsistent with this Act or the regulations, the provision of the by-law shall be deemed to be repealed upon the inconsistency arising.

...

Approval of traffic by-law in whole or in part

(4) Any by-law for regulating traffic on highways that is submitted to the Ministry for approval may be approved in whole or in part and, where part of a by-law is approved only, that part shall become operative. R.S.O. 1990, c. H.8, s. 195 (4).

Withdrawal of approval by Ministry

(5) The Ministry may withdraw its approval to any by-law or any part thereof by notice sent by registered mail to the clerk of the municipality and the by-law or part thereof shall be deemed to be repealed twenty-one days after the sending of the notice. R.S.O. 1990, c. H.8, s. 195 (5).

Just lost another 30 seconds of my life reading BS about quoting acts blah blah blah.

The courts do not accept fines that are not on their lists even thou it is printed in the HTA. We tried specifically that a few years ago when the fine per km was changed, issuing the speed fines as indicated in the HTA. Guess how far that got? our ink was not even dry and it was being quashed for improper fine!

Where are the set fines you're relying on, if not in the HTA?

You posted a link before to set fines under the Courts of Justice Act.

They were fines set by regulation. Who made those regualtions?

Under what section of what Act did they get the express authority to make the regulation?

hwybear wrote:Just lost another 30 seconds of my life reading BS about quoting acts blah blah blah.

The courts do not accept fines that are not on their lists even thou it is printed in the HTA. We tried specifically that a few years ago when the fine per km was changed, issuing the speed fines as indicated in the HTA. Guess how far that got? our ink was not even dry and it was being quashed for improper fine!

Set fines are defined in s. 1(1) of the Provincial Offences Act, (POA).

Set fines also appear in sections 6, 7, 8, 9 and 9.1 of the POA. These sections deal with the resolution of Part I charges, without a trial.

The authority to define the amount of a set fine is contained in the Courts of Justice Act under Regulation 200.

At trial, the penalty provision in the offence-creating enactment or the general penalty provision in the Provincial Offences Act applies, and not the set fine. Once a defendant files a notice of intention to appear at trial, even if the defendant subsequently appears in court and enters a plea of guilty, the penalties in the offence-creating enactment apply, i.e. the HTA.

When sections 5, 5.1, 6, 7, 8, 9 and 9.1 are considered, it is clear that the Ontario Parliament intentionally defined the idea of a set fine within narrow limits. By virtue of the deliberate wording, a set fine exists within ss. 6, 7, 8, 9 and 9.1 (non-trial sections) but does not exist within s. 5 and 5.1, (trial sections) of the POA.

Thus, a cop, Crown or court has no lawful authority to create or read-in a set fine in s. 5 and 5.1.

An incorrect set fine puts the court in the position of having to define its amount. As set out by the Legislature in Regulation 200 subrule 6; that is solely within the purview of the Chief Justice of the Ontario Court of Justice.

There is additional legislative indication a set fine does not exist at trial.

Section 3(2)(b) of the POA allows a provincial offences officer to serve a summons on a defendant rather than an ‘offence notice indicating the set fine for the offence, as described in s. 3(1)(a). The defendant must proceed to trial under s. 5 or 5.1 when served with a summons. If the defendant does not appear then the provisions of s. 54 prevail.

The summons does not contain a set fine, therefore none of the non-trial options under s. 6, 7, 8, 9 or 9.1 may be used. There is nothing in the legislation that indicates the Legislature intended to create a double standard where a trial resulting from a charge proceeding under s. 3(1)(a) versus one under s. 3(1)(b) could have a different sentencing option to be applied by the court, upon conviction.

The establishment of a set fine for an offence merely allows the defendant to resolve the matter by making a payment out-of-court. It does not affect the defendants options under Part I.

By specifying the set fine or less as the penalty, the Act provides a discount for an early guilty plea (section 8), a guilty plea with representations (section 7), failure to respond to an offence notice (section 9), failure to appear at trial (section 9), or a dispute without appearance in court (section 6).

On the other hand, where the defendant elects to have a trial, the general penalty of a fine of not more than $5,000 "except where otherwise expressly provided by law" in section 61 of the POA applies, whether the defendant is convicted after a guilty plea on the trial day, or after a full trial.

It should be noted that the maximum fine specified under s. 128 is $487.50 (50 km over) or $975 in a construction zone when workers are present. However, the fine is limited to $500.00 under section 12(1) of the POA if the proceeding was commenced under Part I of the Act.

It would also be an error in law to apply a set fine as a sentence on any Part I, POA matter where none exists.

There are additional pieces of legislation that the court must consider for sentencing purposes. Section 12(1) of the POA states:

Where the penalty prescribed for an offence includes a fine of more than $500 or imprisonment and a proceeding is commenced under this Part, the provision for fine or imprisonment does not apply and in lieu thereof the offence is punishable by a fine of not more than the maximum fine prescribed for the offence or $500, whichever is the lesser.

The wording of this section defers the sentence to the fines set out in s. 128( of the HTA rather than the higher Part I maximum of $500.

The other legislation of note is s. 15 of the Regulatory Modernization Act, 2007. This section allows for the prosecution to make application for a higher fine under certain conditions.

Even when set fines are valid, the principles of sentencing apply and a justice sentencing on a plea of guilty or on conviction at trial has the discretion to reduce the fine sought by the prosecution and may impose a fine that is less than the set fine for the offence.

Regulation 200. For the purpose of proceedings under Part I or II of the Act, the amount of fine set by the court for an offence is such amount as may be set by the Chief Judge of the Ontario Court (Provincial Division).

"set fine" means the amount of fine set by the Chief Justice of the Ontario Court of Justice for an offence for the purpose of proceedings commenced under Part I or II.

Intention to appear

5. (1) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by so indicating on the offence notice and delivering the notice to the court office specified in it. 1993, c. 31, s. 1 (2).

Notice of trial

(2) Where an offence notice is received under subsection (1), the clerk of the court shall, as soon as is practicable, give notice to the defendant and prosecutor of the time and place of the trial. R.S.O. 1990, c. P.33, s. 5 (2).

Attendance to file notice, prescribed parts of Ontario

5.1 (1) This section applies in such parts of Ontario as are designated by regulation. 1993, c. 31, s. 1 (3).

s. 5 inapplicable

(2) Section 5 does not apply where this section applies. 1993, c. 31, s. 1 (3).

Filing

(3) A defendant who is served with an offence notice may give notice of intention to appear in court for the purpose of entering a plea and having a trial of the matter by attending in person or by representative at the court office specified in the offence notice at the time or times specified in the offence notice and filing a notice of intention to appear with the clerk of the court. 1993, c. 31, s. 1 (3); 2006, c. 21, Sched. C, s. 131 (3).

Form of notice

(4) A notice of intention to appear shall be in the form prescribed under section 13. 1993, c. 31, s. 1 (3).

Trial

(5) If a defendant files a notice of intention to appear under subsection (3), the clerk of the court shall inform the defendant and the prosecutor of the time and place of the trial. 1993, c. 31, s. 1 (3).

Dispute without appearance, prescribed parts of Ontario

6. (1) Where an offence notice is served on a defendant whose address as shown on the certificate of offence is outside the county or district in which the office of the court specified in the notice is situate, and the defendant wishes to dispute the charge but does not wish to attend or be represented at a trial, the defendant may do so by signifying that intention on the offence notice and delivering the offence notice to the office of the court specified in the notice together with a written dispute setting out with reasonable particularity the defendants dispute and any facts upon which the defendant relies.

Disposition

(2) Where an offence notice is delivered under subsection (1), a justice shall, in the absence of the defendant, consider the dispute and,

(a) where the dispute raises an issue that may constitute a defence, direct a hearing; or

(b) where the dispute does not raise an issue that may constitute a defence, convict the defendant and impose the set fine.

Hearing

(3) Where the justice directs a hearing under subsection (2), the court shall hold the hearing and shall, in the absence of the defendant, consider the evidence in the light of the issues raised in the dispute, and acquit the defendant or convict the defendant and impose the set fine or such lesser fine as is permitted by law.

Application of section

(4) This section applies in such part or parts of Ontario as are prescribed by the regulations. R.S.O. 1990, c. P.33, s. 6.

Plea of guilty with representations

7. (1) Where an offence notice is served on a defendant who does not wish to dispute the charge but wishes to make submissions as to penalty, including the extension of time for payment, the defendant may attend at the time and place specified in the notice and may appear before a justice sitting in court for the purpose of pleading guilty to the offence and making submissions as to penalty, and the justice may enter a conviction and impose the set fine or such lesser fine as is permitted by law.

Submissions under oath

(2) The justice may require submissions under subsection (1) to be made under oath, orally or by affidavit. R.S.O. 1990, c. P.33, s. 7.

Payment out of court

8. (1) Where an offence notice is served on a defendant who does not wish to dispute the charge, the defendant may sign the plea of guilty on the offence notice and deliver the offence notice and amount of the set fine to the office of the court specified in the notice.

Conviction

(2) Acceptance by the court office of payment under subsection (1) constitutes a plea of guilty whether or not the plea is signed and endorsement of payment on the certificate of offence constitutes the conviction and imposition of a fine in the amount of the set fine for the offence. R.S.O. 1990, c. P.33, s. 8.

Failure to respond to offence notice

9. (1) Where at least fifteen days have elapsed after the defendant was served with the offence notice and the offence notice has not been delivered in accordance with section 6 or 8 and a plea of guilty has not been accepted under section 7, the defendant shall be deemed to not wish to dispute the charge and a justice shall examine the certificate of offence and,

(a) where the certificate of offence is complete and regular on its face, the justice shall enter a conviction in the defendants absence and without a hearing and impose the set fine for the offence; or

(b) where the certificate of offence is not complete and regular on its face, the justice shall quash the proceeding.

Where conviction without proof of by-law

(2) Where a defendant is deemed to not wish to dispute a charge under subsection (1) in respect of an offence under a by-law of a municipality, the justice shall enter a conviction under clause (1) (a) without proof of the by-law that creates the offence if the certificate of offence is complete and regular on its face. R.S.O. 1990, c. P.33, s. 9.

Failure to appear at trial

9.1 (1) If a defendant who has given notice of an intention to appear fails to appear at the time and place appointed for the hearing, the defendant shall be deemed not to dispute the charge.

Examination by justice

(2) If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendants absence and impose the set fine for the offence if the certificate is complete and regular on its face.

Quashing proceeding

(3) The justice shall quash the proceeding if he or she is not able to enter a conviction. 1993, c. 31, s. 1 (3).

Sentencing Considerations

Previous conviction

15. (1) This section applies when a person who is convicted of an offence has previously been convicted of an offence under the same or another Act. 2007, c. 4, s. 15 (1).

Same

(2) The previous conviction may have occurred at any time, including before the day this Act came into force. 2007, c. 4, s. 15 (2).

Severity of penalty

(3) Where the prosecutor is of the opinion that the previous conviction is relevant to the determination of the appropriate penalty for the current conviction, he or she may request that the court consider the previous conviction to be an aggravating factor. 2007, c. 4, s. 15 (3).

Response of court

(4) Where a court receives a request under subsection (3), the court shall, on imposing the penalty,

(a) indicate whether it is imposing a more severe penalty having regard to the previous conviction; and

(b) if the court decides that the previous conviction does not justify a more severe penalty, give reasons for that decision. 2007, c. 4, s. 15 (4).

Other factors still relevant

(5) Nothing in this section shall be interpreted as limiting any factor, submission or inquiry as to penalty the court is otherwise permitted or required to take into account or make, as the case may be

lawmen: R. v. ONeill, 2008, was an interesting read. At the end of it all I came away with the following:

1. Set fines are for out of court settlements, not for penalties after trial.
2. Therefore set fines shoul be be used on the ticket (which is bear's point - they have to write the set fines down on the ticket, not the HTA fines.)
3. Finally (and here's the kicker), the JP, referring to R v. Dosik, ruled that the trial justice can apply the set fine anyway:

a justice may coincidentally impose a fine after trial in the same amount as the set fine. A fine in this amount might be appropriate, for example, in a case where there was a sincere expression of remorse, an apology, desperate financial circumstances, or other such mitigating factors.

The judge went to great pains to explain that courts do not have "inherent" jurisdiction. Using the words of Justice McLachlin

It is a fundamental principle that statutory bodies may perform only those tasks assigned to them by Parliament or one of the provincial legislatures, and in performing those tasks they have at their disposal only those powers granted to them expressly or impliedly

I believe this flies in the face of what courts have done, specifically the Supreme Court, since the adoption of the Charter. They in effect create law by striking down provisions or interpreting them within the Charter framework.

I would even go further to say that the POA allows someone to "dispute" the ticket under section 6 and face the possibility of the set fine. If the person utters one word in their defence, the set fine is no longer available under the POA.

It seems to me there are a couple of areas in the Charter that deal with this:

11. Any person charged with an offence has the right...(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

By taking a narrow, analytical jurisprudence approach to the POA, JP Cuthbertson ignored the normative issue of fairness and justice. We shouldn't be penalized for seeking justice.