OHTA.ca

Long story short, friend got a speeding ticket for 65 in a 50 and I am representing him. Plead not guilty and requested trial and disclosure. Received disclosure one day before trial in May, so at trial asked I for additional disclosure and an adjournment. New trial set for July.

One interesting side note (will come into play later in this post), is that when I told JP disclosure was incomplete, he asked what was missing and then suggested that the prosecutor get me some of the additional information I had asked for. I asked the JP for an order to specifically get the prosecutor to get me some information I had requested, but the JP made the comment "I am not making any orders because the trial has not started yet. These are only suggestion I am making." I then asked "So when does the trial actually start?" and he said "After the arraignment when the defendant pleads." So keep this in mind for later.

Reviewing the disclsoure I noticed the following:

- Date at top of officers notes provided says March 7, 2016 with a section at 11:43am being not blacked out.

- Date on ticket says March 8, 2016 @ 11:43am

- Date at top of another form (some kind of radar test form) also says March 8, 2016 @ 11:43am

Now I understand that the wrong date on a ticket is not a fatal error in itself because prosecutor can ask for certificate of offence to be amended at trial if evidence is brought forward about the error. On the flip side, if you do not go to trial, then the JP simply reviews the certificate of offence to make sure there are no errors on it's face and in this case there would be no evidence that the date was wrong, so a conviction would be entered.

So here is something to try...

At court, PRIOR to the arraignment, ask for a Motion to Quash the ticket due to there being an error on the face of the ticket, specifically that the date is wrong and is different from the date in the officers notes provided in disclosure and that the defendant was not present at the location on the ticket at the date and time specified. Now what you would want to happen, is for the prosecutor to start talking and admit that the date is wrong. A smart prosecutor probably would not admit that the date is wrong at this time, but if they do admit to the date being wrong, then you can say "The prosecutor also agrees that there is an error on the face of ticket. The arraignment has not occured yet and therefore the trial has not started yet and the defense will not be entering a plea and will not be proceeding to trial. The certificate of offence can only be amended once the trial starts, and since the trial has not started it can not be amended. Therefore the ticket should be quashed as you (the JP) are now aware of an error on it's face."

While creative, I don't think your strategy would work based on my read of the relevant sections. It sounds like you're relying on section 9.1, which only applies when the defendant fails to respond or appear before the Court. Since you'll be before the Courts though, sections 34 and 35 would apply, which allow amendments at any stage of the proceedings, including prior to trial. While you can certainly argue against the amendment under section 36, you'd have to show good reason why it shouldn't be allowed.

When did the alleged offence actually occur ? Was it the 7th or the 8th ?

On the 7th.

Stanton wrote:While creative, I don't think your strategy would work based on my read of the relevant sections. It sounds like you're relying on section 9.1, which only applies when the defendant fails to respond or appear before the Court. Since you'll be before the Courts though, sections 34 and 35 would apply, which allow amendments at any stage of the proceedings, including prior to trial. While you can certainly argue against the amendment under section 36, you'd have to show good reason why it shouldn't be allowed.

I was relying on POA Section 34(2) where it says "during the trial" but had not noticed Section 36 and Section 34(1), so I think you are right.

Section 34(1) says "at any stage" and Section 36(2) says "The court shall not quash an information or certificate unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice."

So I was thinking outside the box, but it probably would not work.

You are essentially trying to create an ethical dilemma that puts the law on its head. On this train of thought...

If you gave written notice that you were planning on exploiting a hole in the POA that does not compel you to attend trial and creates an ethical dilemma for the prosecutor based on the fact that they have been made aware that the certificate of offence had an error on it but it was "regular on it's face", did not plan to attend trial and 6 months had elapsed (summons cannot be issued).

Assuming that there are no other options for obtaining a proper conviction then ethically the prosecutor aught to withdraw the charge before it goes to default judgement as they would be allowing a conviction to be registered for an offence that they know you did not commit (though you may have committed it at another time).

My guess is that they are not going to allow you to have your cake and eat it too when it comes to the conviction. You will be told that if you are aware of an error then the proper venue to address this is at court.

So my feeling is that the conviction would stand, but would the prosecutor be breaching professional standards for failing to act to prevent injustice? If so what are the repercussions?

@ynotp - Nice. This will give me more to ponder and think about!

ynotp wrote:If you gave written notice that you were planning on exploiting a hole in the POA that does not compel you to attend trial and creates an ethical dilemma for the prosecutor based on the fact that they have been made aware that the certificate of offence had an error on it but it was "regular on it's face", did not plan to attend trial and 6 months had elapsed (summons cannot be issued).

Assuming that there are no other options for obtaining a proper conviction then ethically the prosecutor aught to withdraw the charge before it goes to default judgement as they would be allowing a conviction to be registered for an offence that they know you did not commit (though you may have committed it at another time).

An interesting idea but Im not sure it would actually compel the prosecutor to withdraw the charge. The law in general allows for a variance in date/time, hence when youre arraigned the wording is always "on or about the X day of...". Section 34 of the POA even states that errors regarding time and location are not material:

A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or

(b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.

I'd argue that a prosecutor would NOT be acting unethically to allow a conviction to stand IF the only apparent error was the date since the law allows for it.

Still though, you really don't have anything to lose unless you don't want to forgo an actual trial.