“34 Over, Subsection Question And Notes Discrepancy”

Folks,

My alleged offence is rather simple - speeding 134km/h in a 100km/h zone (quoted from the ticket).

After reading all the vast troves of info here. I still have 2 pressing questions, in advance of my upcoming trial (where I may ask for an adjournment, to prepare my defence, as unexpectedly, I've received partial disclosure, a couple of weeks prior to the trial):

1. The ticket states "Highway Traffic Act" in the "contrary to" section - doesn't it have to list a specific subsection of the HTA to be valid? If I'm correct, then its invalid?

2. In the notes, the officer is claiming to have pulled over a different colour and make vehicle, than what I was driving. Only the model and license plate are correct. Am I correct in believing that this could be used to establish a lack of credibility, i.e. if you can't tell one make and colour from another, then how do you know it was me you wanted to pull over?

All thoughts are highly appreciated.

If the ticket does not state section number 128, then you must follow the London v. Young "forced fatal error" method. There are many many threads here that discuss this method, please use the search bar.

List of fatal errors: http://www.ontariohighwaytrafficact.com/topic1965.html

It appears you have already chosen the trial option. In order to force the fatal error, you should NOT appear at your trial date. In your absence the sitting JP will review the face of the Part I ticket, and w/o the section # it will be irregular on its face. The JP will be forced to quash the ticket. POA S9 (2)

IF you appear at your trial date, and tell prosecutor and courts that the section number is missing. They WILL amend the face of the ticket in front of you, and force you into a trial. POA S34 (1)

The JP may overlook the missing section # and enter a conviction; you don't need to worry, you can appeal on the basis that the JP erred in law: http://www.ontariohighwaytrafficact.com ... tml#p34472

Again, review Provincial Offences Act and the relevant forced fatal error threads: https://www.ontario.ca/laws/statute/90p33#BK10

Can you scan and post the ticket (with personal info blanked out) so we can determine if there is a fatal error on the ticket or not?

As far as the officers notes being incorrect, you could use this to prove some lack of credibility BUT it will not be enough because the make and model and color of car are not part of the charge of speeding and it will not prove lack of credibility in the relevent areas. You need to bring reasonable doubt to (i) identifying you as driver, (ii) that you were driving a motor vehicle (make/model/color irrelevent), (iii) that you were driving it on a highway, (iv) the speed you were driving at, and (v) the posted speed limit.

Wow, the speed of everyone's answers is highly appreciated (as the trial is tomorrow). Here is my ticket - all thoughts are appreciated.

Well right under where it says HIGHWAY TRAFFIC ACT there is a little that says SECT./L'ART.

This where it should say the Section number, which in this case should have been 128.

So congratualtions, this is a fatal error!

However, if you show up for your trial and point out the error, they can amend the ticket and correct it. An amendment to the ticket can only happen if you show up and the trial starts. If you don't show up, then they can not start the trial and therefore they can not amend the ticket. Instead, when you do not show up, you are deemed not to dispute it and the Justice of the Peace has to review the ticket and can either (i) convict you or (ii) quash the ticket because there is an error on it's face.

So in this case the JP should, in theory, quash the ticket. However they sometimes miss these types of errors and wil convict you anyways. So if you find out that you have been convicted, you then need to immediately file an appeal (not a re-opening, but an appeal).

And your appeal reason is this:

There was an error at law. The Justice of the Peace should have quashed the proceeding as the certificate of offence was not complete and regular on its face per Provincial Offences Act 9(2)(b).

Brilliant, thank you very much for the quick response

This may be a stupid question, however how would I find out I've been convicted (if the JP doesn't notice the error) - do they have to send me a notice of conviction?

Yes they should mail you a notice of conviction.

I would wait one week and then call the clerk of the court next week and ask them what the status is as well, then you should know for sure the outcome.

Keep the original ticket (or the copy that you have) in a safe place because you will need that if you have to appeal.

I'm surprised the JP didn't quash it when it was first filed.

Well, there is case law to the contrary...it is not a fatal error...

R v Wong: in part: " The Court is of the view that the section number is not needed, was unnecessary in these circumstances, was superfluous. All reasonable and accurate information was provided to the justice of the peace, which permitted the justice of the peace to enter into a conviction. The certificate was complete and regular on its face. Accordingly, the appeal is dismissed".

York Region V. Brillinger: in part: "Respecting R. v. Sarafraz, the failure to include the section number did not make the ticket irregular on the face such that it had to be quashed. In the absence of the section number but with the offence described in the appropriate words, the provisions of R.R.O. 1990, Regulation 950 s. 5 (as amended) apply to make the ticket regular on its face".

There is more case law as well to support this...

Do you have canlii links to those cases you mentioned above? There are 26 R. v. Wongs and the Brillinger one does not come up at all.

Thanks

I've done my share of digging on the fatal flow, prior to jsherk's reply, and I guess what causes me concern is that the issue was addressed in Khoshael years ago, the city of London case subsequently, and most recently by the Ontario Court of Appeal in Farah and Mirza.

The Khoshael reference specifically says that there is no authority to such omissions, so it sounds like everything greatly depends on the JP.

I think I will still go, and have a look if the cop is there - if he isn't, then we're good, and if he is, I can always walk away and go home.

I'd tend to agree that a missing section number is not a fatal error if the short form wording identifies the offence. That being said, J.P.'s are not legal scholars (though they tend to think otherwise) and many might have quashed the ticket. Unfortunately the one reviewing your ticket appears to have not been in that group.

I was not aware of any cases with regards to missing section number, so my advice was based on the assumption (never assume) that it was a fatal error. So if there is specifically an APPEAL case that says the missing section number is not a fatal error, then all Justice of the Peace would have to follow that ruling and unfortunately you will need to show up and fight the ticket in court.

If there is no appeal case, then it becomes a *EDIT* shoot... maybe the JP will quash it because of the error but maybe not. And if JP does not quash, then will the Judge on an appeal quash it or not!

R. v. Hargan, 2009 ONCJ 65 is one case available on Canlii that deals with a missing section number:

The case is very similar to the OP's in that the ticket is correct save for the missing section number. The Judge ruled that this was NOT a fatal error.

In the circumstances of this case I am of the view that there was no confusion created by the absence of the section of the Highway Traffic Act on the certificate. The offence was properly described...

...the description used by the officer to refer to the offence on the certificate may be used to describe an offence under s. 106(2) of the Highway Traffic Act and the section number is surplusage.

And my new word of the day is "surplusage"

Note to self... A judge ruled on appeal that it was not required, so a missing section number is NOT a fatal error.