FATAL ERRORS

Fatal Errors on a Speeding Ticket

Fatal errors that cannot be amended under any circumstances and will get the offence dismissed are: no jurisdiction recorded, the offence is not properly listed on the document, no accused's name on the notice, incorrect fine or total payable recorded on the ticket, and if the police officer issuing the charge did not sign the certificate. These defects are considered fatal because they deny the accused the ability to defend him or herself against the charge due to the missing information, and would result in an injustice being done.

Jurisdiction not listed

If there is no jurisdiction listed it becomes difficult to determine which court should hear the trial in regards to that particular charge, because there is no record of where the offence in question occurred. Section 29 (1) of the Provincial Offences Act requires that a proceeding be heard in the same territorial jurisdiction as the offence occurred. The Honourable Mr. Justice C.C. Shaw deals with matters of jurisdiction and location in the case of Corporation of the City of Thunder Bay v. Kamenawatamin, 2009 CanLII 15905 . In the original trial the charges were quashed because the Court ruled that the location on the offence certificate was not sufficiently identified. The Crown submitted an application to have this decision set aside, and received a favourable ruling. The Judge ruled that the location was identifiable, and so the offence certificate was complete and regular, and should never have been quashed.

Offence not listed

A certificate that does not have the offence, and the sections of the Act that have been contravened, is fatally flawed because the accused may not be able to determine what they are being charged with. This would make it impossible for them to defend themselves, which would result in a clear prejudicial effect on their case. In the case of R. v. Maniccia [2004] O.J. No. 5566 the conviction was quashed and the appeal was allowed, due to the confusion created for the accused. Because the officer failed to enter the correct section number that coincided with the accused's actions, it was found that the charges against the accused was invalid, and the convictions must be set aside.

The conviction is also set aside in R. v. Montone, 2007 ONCJ 251 (CanLII) , due to errors relating to the offence recorded on the offence certificate. In this circumstance, where the charging officer should have recorded the Act that the accused had contravened, he instead recorded the offence and its accompanying section of the act. Lampkin, J. ruled that this caused the offence certificate to be defective, and that it must be quashed because no such Act existed and could not be recognized by the Court. He set aside the conviction and allowed the appeal.

If the accused's name is not listed on the offence notice the charge may be dismissed, as shown in the case of R. v. Wilson [2001] O.J. No. 4907 . In this case Livingstone, J. allowed the accused to appeal his conviction for speeding. There was no informant name on the offence notice, so the Court ruled that the notice was not proper and regular on its face, and determined that the accused should never have been convicted.

Incorrect fine

Although already mentioned as a non-fatal flaw, an incorrect fine amount, or total amount payable on an offence certificate can also be a fatal flaw, but only if the accused chooses to do nothing with the notice. If the accused chooses to go to court and fight the charge, the judge will amend the amount to the proper total during trial. However, if the accused does not respond to the offence notice, the court will find them guilty by default. In order to do so, under s. 9(2) of the Provincial Offences Act , the judge must examine the certificate of offence to ensure that everything is complete and regular on its face before registering a conviction. If it is not, and the defendant is not present, then a judge cannot enter a conviction and must quash the proceedings. In the Ontario Court of Appeal case London (City) v. Young, 2008 ONCA 429 , it was decided that the set fine was an important piece of information on the offence certificate, and therefore the lack of it resulted in a fatal error, and the charges were quashed. There is some risk involved with this method. There is no guarantee that a judge will be aware that the fine listed on the certificate is not correct and the accused may still be convicted. If this happens, there are grounds for appeal based on a mistake of law.

The case of Corporation (City of Greater Sudbury) v. Leikermoser, 2008 ONCJ 452 also supports the finding that an incorrect fine is grounds to quash the charges. In this situation both the set fine and the total payable amounts were recorded as lower than they should have been. Even thought this error did not prejudice the defendant, because he would have been paying less than the actual amount of the fine, Lalande, J. found that it was sufficient to make the offence notice irregular on its face. This case differs from that of London (City) v. Young through the action of the defendant. In Corporation (City of Greater Sudbury) v. Leikermoser, the accused responded to his ticket and requested a trial, instead of doing nothing with it. He then failed to appear for trial, and the judge convicted him in absentia. Leikermoser appealed, and the judge ultimately set aside the conviction and allowed his appeal, due to the incorrectly filled out offence notice.

Officer fails to sign the offence certificate

If the issuing police officer fails to sign the offence certificate the charges may be quashed because the officer has not certified that the accused was served with their offence notice as required. In 2001, Libman J. decided in favour of quashing a charge, in the case of R. v. Khoshael, 2001 O.J. No. 2110 , based on the officer’s lack of a signature on the offence certificate. The defendant did not appear for his trail, and so was deemed not to dispute his charge, which triggered the Court's responsibility to review the certificate of offence and ensure that it is correct. Because the officer did not certify service to the accused, Libman, J. ruled that the charges should have been quashed. Based on this he set aside the conviction and allowed Khoshael's appeal.

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