How does the legal system compel you to appear in court to answer to a charge brought against you?
This article will deal with the Charging Document, an Information, and the Summons to Appear.
I am sure we have all received either a parking ticket or summons for speeding or some other infraction under the Highway Traffic Act or some other Provincial Act such as Labour or Building Code.
An investigation is conducted, evidence is gathered, the evidence is matched against an appropriate charge, a Summons is written for you to appear in court on a certain date, time, and place.
As part of your Disclosure package you must ensure that you have copies of all these documents and that they are proper before the court, otherwise the charges can be brought into question and the possibility that the charges could be dismissed.
For this article, I will not deal with the Part I or Part II of the Provincial Offences Act. This article will deal with Part III offences. We will start with the following web site link, https://www.ontario.ca/laws/regulation/900200.
Courts of Justice Act
R.R.O. 1990, REGULATION 200
RULES OF THE ONTARIO COURT (PROVINCIAL DIVISION) IN PROVINCIAL OFFENCES PROCEEDINGS
Form 105 and 106 are the numbers we will deal with.
When you are charged by a By-law Enforcement Officer or a Provincial Offences Officer or some other government agent authorized to do so, these are the typical forms that you will receive or should receive in your disclosure package.
The first document is the Summons to Appear, Form 106. The STA will have the date time and place for the court to attend and what you have been charged with. The Charging document is called the Information, Form 105. This is the document that the government agent uses to obtain the Summons to Appear, Form 106. For details, refer to the Provincial Offences Act and start reading at Section 21. https://www.ontario.ca/laws/statute/90p33#BK35
Part III
Commencement of Proceeding by Information
21 (1) In addition to the procedure set out in Parts I and II for commencing a proceeding by the filing of a certificate, a proceeding in respect of an offence may be commenced by laying an information. R.S.O. 1990, c. P.33, s. 21 (1).
The agent must take the evidence that they have gathered in the investigation and stand before a Justice. The agent informs the Justice why they are there and what they want. The Justice will review the evidence, ask the agent questions and if the Justice is satisfied with the answers and the evidence presented, then the Justice will issue the Summons to Appear.
Standing before the Justice is called the Laying of an Information. That is, the agent lays before the Justice the evidence that would be sufficient to convince the Justice to bring the accused before the court. The entire evidence gathered in the investigation is not required to be shown to the Justice, only enough evidence to convince, on Reasonable and Probable Grounds, that the offence may have occurred, to bring you before the court.
It is important to ensure that the Information and Summons are sworn to, signed by the agent and Justice, that the dates coincide, that the documents have been served upon with proper service and so on. If any of the information is not correct, then there is a flaw in the Information. Depending on the severity of the Flaw, the Information could be Quashed, and the charges Dismissed.
If the Flaw can be corrected in court and the Justice agrees, then the amendment is made and the hearing proceeds. If your address was 151 Somewhere Street and on the Summons to Appear, which was served personally, had a wrong address of 115 Somewhere Street, would not be a Fatal Flaw, would be corrected in court and the hearing continue.
However, do not let any part of an error go unchallenged. For every error, raise the issue for correction. This undermines the validity and confidence of the agent and raises a reasonable doubt that may lead to a dismissal. This also brings into question the prosecution in checking for errors on the documents and the content of the Disclosure.
A Fatal Flaw would be the failure to sign the Information which was to be sworn to. Section 34 of the POA gives authority to the court to make amendments.
Motions that may be brought before the court. Motion to Quash, Adjourn, for Disclosure, Amend, for Particular, Non-Suit, to Amend or Divide a Count. There are also Motions under the Charter of Rights and Freedoms.
We are coming to the end of this series of articles in the preparation for your trial. Preparing for trial will be the next article. Once we have completed this, hopefully you will be highly confident to proceed or have retained a lawyer or paralegal to represent you.