How to Fight an Ontario Traffic Ticket Step by Step

This information is written in general terms and is not to be taken as legal advice. It is always wise to retain a legal professional for your legal matter.

This article goes over the less serious offence such as speeding, failure to signal, turn not in safety etc.

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Step 1 – Are there any errors on the ticket?

The main one to look for is if the date is wrong. If the date is wrong then you want to set your matter down for trial and ask for a motion to quash the certificate of offence because it is not sufficient on its face. Make your motion before you enter a plea. Once you enter your plea the court will no longer care if the ticket is not sufficient on its face. Odds are your ticket is sufficient on its face. Please be aware that the ticket having the wrong time is not enough for your ticket to be thrown out.

Step 2  (optional step)– Attend the courthouse and file for a first attendance meeting

If you want the ticket amended to a parking ticket or amended to an offence without demerit points then you want a first attendance meeting.

At the first attendance meeting the prosecutor will offer to amend your ticket to a By-Law infraction. For the most part they will amend it to a non moving violation. This may or may not affect you insurance rates depending on your insurance company and their policies.

Will they always amend the ticket to something else? Unless it isn't in the interest of justice to amend the charge, then yes 99% of the time they will happily amend the charge. The rationale behind this is the fact that it costs the court time and money to run a trial and there is about a 30% chance the officer will not show up for the trial which will result in a finding of not guilty since the prosecutor will have no evidence. Even if you caused an accident they will likely amend the charge, I have represented people who caused an accident and the charge was amended or the fine was reduced

If you are satisfied with the amendment then you will get to enter a plea of guilty in front of a Justice of the Peace and your matter will come to an end. If you aren't satisfied then you have to move on to the next step and run a trial.

Please note that you can request disclosure in advance of your first attendance meeting. The disclosure will show you all of the officer's notes and witness statements (if there were witnesses).

Step 3 – Set your matter down for trial

If you have skipped to this step because you are hoping the officer doesn't show up and you have no real defence then be aware that in Ottawa there is a 30% chance that the officer will not show up. However, if you set the trial date around a time where something big is happening in your city such as a political summit, then the odds increase to 60%.

Depending on what city you are from, you may not receive your trial within a reasonable time (within 11-12 months). If this happens you will have to bring a motion for a stay of proceedings. I practice in Ottawa and this rarely happens so I am not going to bother going over the motion.

Request Disclosure

You want to request disclosure; it is your right to see the evidence against you. To request disclosure all you have to do is write a letter to the appropriate courthouse and provide all of the relevant information so that they are satisfied they are giving you the right information. I always attach a copy of the ticket to my letter because it contains all of the info.

They are really good about providing disclosure, but if you don't hear from them then call the appropriate courthouse and follow up. If you never get your disclosure on the date of trial before you plea you simply say the prosecution is refusing to provide me with disclosure and therefore I am unable to make a full answer and defence to the charge(s) I am facing and I request a stay of proceedings because of this. Usually the Justice of the Peace will stay the proceedings meaning the proceedings are stopped and you are free to go. However, sometimes the Justice will simply have the prosecutor hand you the disclosure and adjourn your hearing to another date. Ask for costs if the matter is adjourned.

Figure out the type of offence you are dealing with

You are either dealing with an absolute or strict liability offence. The quickest way to figure out which offence you are dealing with is to go onto CanLii (Canadian Legal Information Institute) and search for Ontario cases dealing with your offence, at some point in the decision it will tell you the type of offence. CanLii is free to use. I personally use QuickLaw because it has a wider database, but QuickLaw costs quite a lot of money.

Absolute Liability Offence

An absolute liability offence is an offence where the prosecution has to prove all of the elements beyond a reasonable doubt in order to get a conviction. The onus then turns to you to raise a reasonable doubt or use a common law defence such as duress, necessity or another defence. Odds are you don't have a defence. For absolute offences the defence of due diligence is not available, you can't say I know I was speeding, but I was careful. That will not help your case, if anything saying that makes it worse because you just admitted that you committed an offence.

Strict Liability

The prosecutor has to prove beyond a reasonable doubt that you committed all elements of the offence and then the burden shifts to you to show you didn't or raise a defence. For strict liability offences you can use the defence of due diligence meaning you can say I used all reasonable care to try and avoid the situation. It helps to read case law relating to your offence to see if your actions were reasonable.

Review the Disclosure

Now that you have received your disclosure you are going to want to see if there is enough evidence to find you guilty. In order to do this you need to look at the Highway Traffic Act and figure out what the elements of your offence are and determine whether the Prosecutor has enough evidence. For the most part the Prosecutor will have enough evidence.

What if there is enough evidence? Arrive early on the day of trial and ask the prosecutor if she/he will be willing to amend the charge because you want to save the court time and money. Usually, the prosecutor will do so, if not then you'd better hope for the best.

Prepare your Cross-Examination

After the Prosecutor asks a witness his/her question you get to ask the witness questions.

What holes do you see in the Prosecutor's case, what element can you disprove and attack in order to raise doubt? You will have to determine this.

The proper way to cross examine is to ask leading questions. If you are asking questions that begin with Who, What, Where, Why, How, and When you are doing it wrong.

What you want to do is put the answer to the witness. For example, "There was a tree blocking your view." Not "What was blocking your view."

Do not follow up with an open ended question, never ask an open ended question! For example, You ask: "There was a tree blocking your view?" Officer replies: "Yes." You don't then ask "if there was a tree in your way, how were you able to see my vehicle?" This allows the witness to justify his/her answers.

Also, don't ask questions you don't know the answer to and don't ask that one question too many. Here is textbook example of asking one question too many. This is from an assault case where someone bit a man's ear off, the questions aren't verbatim.

Q: "You were at the park"

A: "yes"

Q: You were looking at a tree?"

A: "yes"

Q: "You were looking at a bird in the tree?"

A: "yes"

Q: "you weren't watching the defendant and the other man fighting"

A: "No I wasn't watch"

Q: "You didn't see the defendant bite the other man's ear off?"

A: "No I didn't see that"

The one question too many, and worst of all it is open ended.

Q: "Then how do you know the defendant bit the man's ear off?"

A: "well, I saw the defendant spit the other man's ear out."

As you can see before the last question was asked it appeared as though the witness didn't see anything.

After cross-examination the prosecutor will ask the witness questions to allow the witness to explain his/her answers. The prosecutor is not allowed asking leading questions in their direct examination or their redirect examination, nor are they allowed brining up new evidence in their redirect.  Direct happens before you ask their witness questions and redirect is after you have asked their witness questions.

You don't have to testify

In any criminal/quasi criminal matter you are not required to testify. I have seen people testify who shouldn't have because they didn't know any better.

Before you testify to raise doubt always ask for a motion for non suit. You aren't required to testify and therefore if the prosecutor hasn't proved all elements of the offence then the Justice of the Peace will grant your motion and enter a verdict of not guilty. Even if you think the prosecutor has proved all elements, ask for it anyways. The worst the Justice will say is motion not granted.

Testifying

For whatever reason it has come to this, maybe you know you weren't speeding or you know the light was amber when you went through. It is now your turn to raise doubt or raise an applicable defence.

When testifying lay your story out as clear as possible. You want to make it very easy for the Justice of the Peace to understand. You aren't allowed making up facts, you must tell the truth.

After you testify the prosecutor will cross-examine you. Feel free to justify your answers. Sometimes they will say "No, I just want a yes or no answer." Just say I have a right to justify my answers and make full answer and defence to the charge. After the crown is done cross-examining you, you may then explain your answers.

Good Luck!

Article written on January 31, 2012.

This information is written in general terms and is not to be taken as legal advice. It is always wise to retain a legal professional for your legal matter.

This article goes over the less serious offence such as speeding, failure to signal, turn not in safety etc.