OHTA.ca

Hi all,

Hoping to get some insight.

I got a notice for a handheld and requested an ERM. The Original date for the ERM was December 17, 2019.

I requested to reschedule.

On January 31, 2020 I received (through email) a notice for a new ERM date on February 12, 2020.

The email went to my junk folder so I didn’t even see it until today and I looked online to see a conviction was entered.

My question is, the original notice says that the new meeting date must be within 30 days of the original ERM date.

How can they convict me when the new ERM date wasn’t within 30 days?

How do I fight this?

Any advice?

Thanks

Go to your local POA court and file the paper work requesting a re-opening. They'll grant it.

Once they do, don't bother with an ER meeting on that offence since the prosecution can't reduce anything----the $500 set fine on your ticket is already the minimum statutory fine (which neither they nor the court can lower any further). Plus, no one (prosecution or court) can do anything about the points nor the 3 day suspension. So, bottom line: your ONLY two options with that offence are either pay your ticket or go to trial. If you go to trial, know that they CAN seek a higher fine---the range is $500-$1000 (plus court costs).

I hope that clarifies things for you.

But if they didn’t schedule the ERM within 30 days shouldn’t it be thrown out?

highwaystar wrote: ↑Thu Feb 13, 2020 2:11 pm

Go to your local POA court and file the paper work requesting a re-opening. They'll grant it.

Once they do, don't bother with an ER meeting on that offence since the prosecution can't reduce anything----the $500 set fine on your ticket is already the minimum statutory fine (which neither they nor the court can lower any further). Plus, no one (prosecution or court) can do anything about the points nor the 3 day suspension. So, bottom line: your ONLY two options with that offence are either pay your ticket or go to trial. If you go to trial, know that they CAN seek a higher fine---the range is $500-$1000 (plus court costs).

I hope that clarifies things for you.

Thanks but my question is more about the ERM not being scheduled within 30 days. Is that cause for the ticket to be dismissed?

You're right that they had to reschedule your ERM within 30 days of Dec. 17/19 (as per POA s.5.1(4)). That would mean your second meeting should have taken place by Jan. 16/20. Of course, this is all assuming that you requested the rescheduling of the ERM BEFORE Dec. 17/19. If you didn't then you were convicted on that day.

However, in seeking recourse, the appropriate remedy is not to dismiss the charge but rather to re-open the matter. That's how the courts treat those things (see s. 85). That's why I said they will grant your re-opening application. Remember, it would be prejudicial to the prosecution if your matter were simply to be dismissed based on a court error/delay, especially without a hearing on the matter. So (as is consistent with the legislation's intent and court interpretation on POA matters), they just re-open the matter and everyone gets their fair day in court.

highwaystar wrote: ↑Thu Feb 13, 2020 4:06 pm

You're right that they had to reschedule your ERM within 30 days of Dec. 17/19 (as per POA s.5.1(4)). That would mean your second meeting should have taken place by Jan. 16/20. Of course, this is all assuming that you requested the rescheduling of the ERM BEFORE Dec. 17/19. If you didn't then you were convicted on that day.

However, in seeking recourse, the appropriate remedy is not to dismiss the charge but rather to re-open the matter. That's how the courts treat those things (see s. 85). That's why I said they will grant your re-opening application. Remember, it would be prejudicial to the prosecution if your matter were simply to be dismissed based on a court error/delay, especially without a hearing on the matter. So (as is consistent with the legislation's intent and court interpretation on POA matters), they just re-open the matter and everyone gets their fair day in court.

Thanks for the response.

I guess that what doesn’t make sense is that the prosecution didn’t reschedule within 30 days (I did request the reschedule prior to the date of the first meeting - about a week earlier). I was convicted on February 12 the day of the late rescheduled ERM.

So let’s say I hadn’t been convicted yet. And the prosecution didn’t reschedule The ERM within 30 days. Then what? I would have to go to court? There’s no repercussions against the prosecutor? That doesn’t make sense.

And as far as I understand you have to apply for an extension of time which the prosecutor would not have done.

I think my point is that the conviction should never have been entered in the first place and I should be entitled to dismiss based on the prosecutor not scheduling the erm meeting in time and not filing a request to extend time.

So, did you not attend your ERM on Feb. 12? If so, then the conviction is correct since you failed to attend. I hope you didn't just rely on the 30 day time frame provision as some sort of perceived fatal error and not attend your ER--is that what you did? If so, I wouldn't say that because it will not be re-opened. If we were talking several months in delay, you might be able to appeal and raise the 'prejudicial effect' of such an error, but in your case, we are only talking a matter of a few weeks and they would send you home quickly.

The good news is that JP's are generally good about allowing a re-opening if you can establish that you didn't know about the ER date (or some other emergency prevented you from attending). In your case, you'll have to establish that you didn't read your emails before then and did not know about the Feb. 12 date, especially since you are the one who requested a re-scheduling. The court's view is that you should have been following up on when your new date was. That said, the chances are still good that they'll allow the re-opening if you simply word things correctly (without lying of course!).

Oh, and by the way, early resolution meetings are actually scheduled by the court office; not the prosecution's office. Its all done by court staff; not employees of the prosecutor's office since the notice is a court document.

The original notice says “by law, the rescheduled date of your meeting must be within 30 days of your original meeting date”.

I was actually checking the regular mail for the notice. Instead it came by email and it was in my junk folder which is why I didn’t see it. I called the courts today to find out what was going on, went online and saw the conviction, called in and the call centre said it was emailed which is when I went to check my junk mail. It was sent in January 31 which is still post 30days.

If the 30 days are a “guideline” then that should be articulated but they aren’t and as far as I understand, barring a motion to extend etc, they are to be strictly adhered to. Otherwise what’s the point?

As you mentioned I really only have two options (trial or plead guilty and pay) then is there really even a point in re-opening if I’m not taking it to trial?

If you don't plan on going to trial, then you really shouldn't waste your time and just pay the ticket. As previously mentioned, all this will do is re-open the matter. The court will correct any flaw via its jurisdiction in s. 85 of the POA and rely upon the OCA decision of Wadood.

In paragraph 14, the Court of Appeal says:

Curious if you’re a lawyer?

As I read the case it’s specifically about mistakes on a certificate of Offence.

Not the same as missing a legislated deadline.

I really appreciate all your input!

Well, you seem adamant that such a deadline is indeed crucial when the legislation and case law says otherwise. I've even given you sections and case law. So, it seems the only way you are going to be satisfied of the answer is if the court specifically rules on your matter. You should therefore file for an Appeal then; not a re-opening. And if you lose on that, by all means, take it up to Superior Court by filing an Application for Certiorari and try your arguments.

Let us know how you make out. Good luck!

I wasn’t being sarcastic...I was enjoying the discussion.

And yes, you have referred to case law which I’ve looked at and countered.

You’ve provided legislation, as have I where the provision that I reference clearly mentions 30 days. If it was a loosey goosey timeline then it would say “the rescheduled meeting should be within a reasonable time”. Courts interpret grey areas yes but they don’t necessarily question hard deadlines and, where they are allowed to (such as the section you mentioned where a court can extend a deadline), a court doesn’t do that without the request of a party to do so.

Why does a defendant have a hard deadline of 15 days to dispute a ticket or request a meeting but the requirement to schedule a meeting within 30 days of the original date can be extended without any judicial review?

The re-opening and appeal remedies are there to address such 'hard" deadlines. Nothing is preventing you from trying your arguments except time and money. So, I say, go for it---maybe you'll end up changing things. Someone's gotta be the first.