Challenge 11b of the Charter of Rights for your Traffic Tickets and Speeding Tickets


The Canadian Charter of Rights and Freedoms, section 11b states:

 

11. Any person charged with an offence has the right

(b) to be tried within a reasonable time;

Any unusual amount of time that has passed between the date the offence occurred to the date of your trial can be used in your favour to have your trial STOPPED (or STAYED in the legal context).

 

Any period totaling 10 months or more can be considered to be unreasonable. Just as you would when your section 7 rights to disclosure have been violated, you will need to submit an application to the Attorney General and state that your rights under the Charter have been infringed concerning section 11b.

 

To be successful here, the Justice will look at 3 items. Waiver of time periods, total length of delay, and the reasons for the delay.

 

Send a letter to the prosecutor asking for your trial date to be moved up as making this request will assist you in being successful should you need to request a stay due to 11b (Waiver of Time periods). Sending this letter isn’t required, but will only make your 11b case stronger.

 

As mentioned above, any period of 10 months or more can be considered unreasonable. Any period more than 18 months is just too extreme and will for sure allow your 11b motion to be granted by the Justice.

 

The last thing the Justice will need to look at is the reason for the delay. If any part of the delay was your fault, this will be taken into consideration. Example would be is if you made a request for disclosure less than a month before trial to which your trial was adjourned (postponed). This obviously could lead to your 11b motion being rejected.

 

Now having said all that, you need to follow some rules when you apply to STAY your trial.

 

There are 3 items you must follow to request a stay

 

Section 109 — How it Works

 

If you are making a stay application then you must follow section 109. You must inform the attorneys general of your intention to raise a constitutional issue.In order to give them proper notice, section 109 requires you to do three things:

You must follow the rules of the court.

You must use the proper form.

You must notify them at least 15 days before the court date.

(1) Rules of the Court

 

What are the “rules of the court”? Section 70 states that the rules of provincial offences court can be made by regulation. The regulation is called Rules Of The Ontario Court (provincial Division) In Provincial Offences Proceedings, otherwise known as Regulation 200. You would be wise to review these rules, especially section 7 which covers motions and applications.

 

(2) Proper Notice

 

To notify the attorneys general of Ontario and Canada you must complete this form and give them copies.

(3) Counting Days

 

Counting 15 days for you application is more complicated than it looks. According to Regulation 200, section 4.4 states that where the term “at least” is added to an expression of days, the first and last day shall not be counted. The term “at least” appears in point #3 above.

YOU MUST COMPLETE FORM 4F

 

Form 4F otherwise known as the Notice of Constitutional Question is the absolute minimum you must use if section 109 applies to you.It is a very simple form that lets the (potentially) interested parties know that at your trial you will be making a motion to stay your charge. It is literally a note telling the prosecutor and the attorneys general of Ontario and Canada: “Hey I’m going to make a motion in court.”

If all your facts and arguments do not fit on the form then you will require a “factum”

 

Factums

 

A factum is a legal brief that states your arguments. A factum for a pre-trial motion will state the facts of how you and the prosecutor handled your case. You explain how your Charter rights were infringed by the prosecutor.Factums can also contain arguments as to why you are innocent. However if you do that you risk confusing trial arguments with a pre-trial motion for a stay. You are advised not to use this opportunity to tell your side of the story about your charge. This is NOT about arguing your innocence but about how the prosecutor has committed a wrong with the handling of your case.

Although not required, you should include an Affidavit.

 

 

 

Affidavit

 

The third component to your application is an affidavit. An affidavit is a formal sworn statement of fact. You are literally taking an oath stating that the contents of the affidavit are, to the best of your knowledge, true. It is used to present evidence to the court.For your stay application, there are two kinds of affidavits you may want to use.1. The first is an affidavit of service. Basically after giving copies of your documents to the attorneys general and the prosecutor, you complete an affidavit swearing you actually gave them the documents. You submit this to the court as proof that everyone has a copy.The affidavit is a little confusing to use. There is a separate section for every type of method you could possibly use to deliver the documents (in person, by mail, by fax, and so on). You only have to complete one section depending on how you gave them your documents.

 

However, if you deliver the documents by hand, they can affix their stamp on the court’s copy. This stamp is all you need to prove you gave them a copy and you don’t need to complete the affidavit of service.2. The second kind of affidavit you could use contains key facts relevant to your case that you wish to submit in writing. The facts are presented without embellishment or opinion. This kind of affidavit can be used to assist your case on paper by presenting evidence or to affirm the factual contents of your stay application.Here are some resources to help you understand this second type of affidavit:

 

A general guide to preparing an affidavit (this example is from British Columbia).

A more complex affidavit example.

The affidavit must be signed in front of a notary, a lawyer or a commissioner of oaths. They all charge a nominal fee to do this. But you can avoid this fee and take the convenient route by completing it at the court house. Most of the clerks at the court house are commissioners of oaths and do it free of charge.

 

There are two methods you can use to complete your applications for stay, the method you use is up to you

 

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  • bobby

    I just had my ticket thrown out using the charter 11b argument (tried within reasonable time).

    I will try and map out a chronology here;

    -I got a ticket for driving without license and failure to produce license (i forgot my wallet at home and the cop was being a dick) in Vancouver, BC in February 2012. My girlfriend and I were standing outside of my car and they would not let her drive the car home even though she had a license….long story, just a real jerk of a cop.

    -I disputed the fines (instructions on reverse of fines) 30 days later, the last possible day I could file a dispute.

    -In April, two months after filing dispute, I got a response from BC informing me that my dispute for ONE of the fines was successful, the failure to produce fine as it was redundant to fine me that and also driving with out.

    -I then requested disclosure from crown so that I could prepare my defence in traffic court and received disclosure within two weeks. *note that at this time I was prepared to fight it in traffic court and was not yet aware of charter 11b argument, besides that is hasn’t been long enough since offence yet*

    -Fall arrived (September 2012 now) and I still had heard nothing about a court date for the remaining offence so I called the court registry to inquire, they informed me that I would receive notice in the mail soon. This step is important, I found later that doing all you can to speed up the process is to your benefit when filing 11b argument. So note down dates of when you inquire when you court date notice is coming.

    -Winter 2012 my girlfriend and I split up, I maintained contact until xmas 2012 with her mother and employer at which time she had moved on and out of town. My central witness was now gone.

    -Beginning of 2013 I research 11b argument because it has been a year since offence and still no date for court sent and my central witness is gone.

    -Spring 2013 I call court registry and again inquire about a date, they replied I should get a letter in the mail soon.

    -Spring 2013 I seek free legal advice in Vancouver (google, there is lots of resources). I tell pro-bono legal advisor that I want to pursue 11b argument and they provide me with details of how to proceed.

    -Spring 2013 I receive letter with court date, it is set for July 2013 (17 months after offence)

    -June 2013 I fill out 11b forms and send them to crown, attorney general etc…I keep my fax verifications for proof and file them away.

    -June 2013 trial date is set for September 2013 for a provincial judge to rule on my 11b argument. It has now been 19 months since offence took place.

    -To prepare for my defence I must have a case, a delay is not good enough in that it is simply inconvenient, you MUST prove that the delay has caused you prejudice. I write down a chronology of events including my travel to and from legal advice as I had to miss class as a result (prejudice), I take note that I have seen a doctor for stress as a result of the lengthy delay and bring include note for proof (prejudice), I carefully date out when and whom I called to try to remain in contact with ex-girlfriend (her mother, her employer) until she moved away and became unavailable for court.

    -September I arrive at hearing and am asked to the bench where I tell judge that I am defending my self, that I seek a stay of proceedings because the delay has caused my prejudice. I then list out my chronology of events for the judge, try to convey that there was prejudice caused by the delay. Crown decided to cross examine me and then I had an opportunity to argue any of her accusations and defences. The judge ruled within minutes in my favour stating that the delay did indeed cause me prejudice, the main factor being loss of my central witness.

    -Judge ruled stay of proceedings and it is over, I win.

  • S. Jaffri

    Hello,
    Is there a way the ticket can be dismissed if I did not get a proper resolution meeting? I was not given the opportunity to meet in person, and my schedule did not allow an over-the-phone conversation. The ‘prosecutor’ just emailed me my options for an early resolution, would that be considered inadequate?