What Can Make a Traffic Ticket Invalid?

The Belief That a Traffic Charge Will Be Tossed If Information Is Mistakenly Spelled Is a Myth. A Traffic Charge Will Be Thrown Out Only If the Mistakenly Spelled Information Could Mislead the Person Charged When Deciding to Either Fight the Charge or Fail to Appear at Risk of a Conviction In Absence.

Understanding the Mistakes That Should Get a Traffic Ticket Thrown Out By the Court

Police Officer Making a Mistake While Issuing Traffic Ticket There is a common urban myth and belief that if a Certificate of Offence, colloquially referred to as a traffic ticket, is flawed, meaning imperfectly completed by the charging police officer, then the Court must quash (throw out) the charge.  This false presumption commonly circulates among the public and leads to many awkward situations where a charge survives and a conviction is registered despite an irregularity on the document.

The Provincial Offences Act, R.S.O. 1990, c. P.33, being the statute that prescribes, among other things, the way certain charges, or offences, should be dealt with, contains the requirements that a traffic ticket should be, "... complete and regular on its face ...", per section 9.1(2) of the Provincial Offences Act.  Where a flaw exists, section 34 of the Provincial Offences Act, generally, provides the authority for amendment of the flaw; however, this authority to amend is only available when the person charged with the offence, or an agent of that person such as a paralegal, is present and therefore is able to receive details of the amendment.  Accordingly, where the person charged is absent and without a representative appearing, the Court is faced with the incapacity to amend the document; and according to section 9.1(3), the proceeding shall be quashed, or in common words, the ticket shall be thrown out.  This raises the question of when is the traffic ticket, "... complete and regular on its face ...".  Troublesome for many is the misperception that the traffic ticket must be perfectly complete.  Specifically, section 9.1 and section 34 of the Provincial Offences Act state:

9.1 (1) A defendant is deemed to not wish to dispute the charge where the defendant has been issued a notice of the time and place of trial and fails to appear at the time and place appointed for the trial.

(2) If subsection (1) applies, section 54 does not apply, and a justice shall examine the certificate of offence and shall without a hearing enter a conviction in the defendant’s absence and impose the set fine for the offence if the certificate is complete and regular on its face.

(3) The justice shall quash the proceeding if he or she is not able to enter a conviction.

34 (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a)  fails to state or states defectively anything that is requisite to charge the offence;

(b)  does not negative an exception that should be negatived; or

(c)  is in any way defective in substance or in form.

(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.

(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(a)  the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or

(b)  the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.

(4) The court shall, in considering whether or not an amendment should be made, consider,

(a)  the evidence taken on the trial, if any;

(b)  the circumstances of the case;

(c)  whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and

(d)  whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

(5) The question whether an order to amend an information or certificate should be granted or refused is a question of law.

(6) An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended.

Per the case of Chow v. York (Regional Municipality), 2018 ONCJ 818 at paragraph 10, a Certificate is considered "... complete and regular ...", and therefore in compliance with section 9.1(2) of the Provincial Offences Act unless the flaw could mislead the defendant when making the decision to defend the charge or fail to appear on the charge and thereby risk being convicted ex-parte (meaning in absence).  Specifically, the Court said:

[1]  The situation in this appeal is very familiar to this court. A defendant files a Notice of Intention to Appear and a trial date is set, but on the day of trial neither the defendant nor an agent appears. The court proceeds by s.9.1 of the Provincial Offences Act (POA) RSO 1990, c P33 and enters a conviction. Days later an agent for the defendant files an appeal alleging that the certificate of offence should have been quashed due to an alleged error in the certificate.

[2]  Section 9.1 is a statutory shortcut that is a necessary part of the regime for regulatory offences. It’s important that the requirements of that section be met before a court takes any action with respect to a defendant who has failed to attend their trial. However, it’s plain that many defendants in this region are intentionally defaulting so as to trigger s.9.1 and a subsequent appeal that can be limited to a technical and often artificial exercise, without reference to the merits of the case. That use of s.9.1 is contrary to the intent of the Provincial Offences Act which seeks to eliminate technical arguments in favour of hearings on the merits.

[3]  As the citations below show, York Region has had more than its share of appeals related to s.9.1. A defendant is entitled to take advantage of any lawful procedure provided by statute, but many of these appeals are frivolous, wasting court time and the resources of the appellant.  These reasons review the s.9.1(2) examination process, cases regarding the “complete and regular on its face” requirement and the impact of the particular deficiency here – the failure of the officer to check off the a.m./p.m. box. It’s hoped that this extended discussion will help all parties identify issues that have merit and reduce court time spent on issues that don’t.

[4]  For regulatory offences such as speeding, where the defendant fails to appear for trial they are deemed not to wish to dispute the charge – s.9.1(1) Provincial Offences Act (POA) RSO 1990 c P33. The failure to appear triggers s.9.1(2) which directs the presiding Justice of the Peace to examine the certificate of offence and, without a hearing, enter a conviction and impose a fine if the certificate is “complete and regular on its face”.

[5]  In London (City) v. Young 2008 ONCA 429 at para 34, Justice Feldman of the Ontario Court of Appeal described the default provision this way:

The purpose or scheme of Part I of the Act is to facilitate an inexpensive and expeditious procedure for dealing with a large volume of less serious offences. The default procedure put in place by the Act is intended to be inexpensive and expeditious for defendants who wish to acknowledge the offence and pay the fine. This procedure also saves the cost to the government of holding trials in cases where people are content to be found guilty of a relatively minor offence and pay a disclosed set fine. However, the trade-off for these savings is that where the default procedure is used, the certificate of offence must be "complete and regular on its face". If it does not comply, it cannot be amended and must be quashed.

[6]  The purpose of the s.9.1(2) examination is to determine whether the defendant received effective notice of all the information needed to decide whether or not to default – London (City) v Young at para 29.

[7]  The important restriction in the ex parte hearing is that the certificate must be “complete and regular on its face”, a phrase which is not defined in the statute. As Justice DeFreitas (as he then was) observed in R v Busu [2012] OJ No 5823 (CJ) at para 2, “Much judicial ink has been spilled on the meaning of the words, ‘complete and regular on its face’.” The interpretation of that phrase is guided by the test in London (City) v Young that links effective notice to the decision that the defendant has to make as to whether or not to default. It’s not the case that any deficiency or variance will do. A certificate of offence will only be quashed on a s.9.1 review where there is potential prejudice to the defendant in that he or she does not have the necessary information required in order to decide how to proceed.

[8]  Cases have established that effective notice of the alleged offence requires the following information:

• Informant – The name of the informant – R v Wilson [2001] OJ No 4907 (CJ).

• Accused – The name of the person charged – R v Wilson [2001] OJ No 4907 (CJ).

• Place – A description of the place of the offence as being within the jurisdiction of the court which typically includes evidence that a certificate was issued and offence notice served at the place of the alleged offence – Thunder Bay (City) v Matzov 2016 ONSC 4557

• Offence – A description of the offence, or the relevant section number or both – R v Hargan 2009 ONCJ 65 (CJ),

• Set Fine – the amount of the penalty if the defendant defaults – London (City) v Young 2008 ONCA 429.

[9]  Where the certificate contains incorrect information that has the potential to mislead or cause prejudice to the defendant and her or his choice regarding default, the certificate is not regular and complete:

• Incorrect Set Fine – The stated amount of a set fine has to be correct so the defendant can decide whether to default and be subject to that penalty – London (City) v Young 2008 ONCA 429.

• Misleading Wording – Where the description of the offence is at odds with the section number such that a defendant would be confused as to the offence being charged there is a significant defect and the certificate must be quashed – R v Farah 2015 ONCA 302, R v Romero 2016 ONCJ 347, R v Stuparayk 2009 ONCJ 394, R v Bargis [2004] OJ No 5565 (CJ).

[10]  A certificate is complete and regular despite omissions or errors that involve information that is not required to provide notice of the offence (surplusage) and could not mislead the defendant with respect to the choice as to whether to defend or default:

• Electronic Signature – Electronic signatures on electronic certificates of offence are sufficient – London (City) v Caza 2010 ONSC 1548.

• Filled Boxes – it’s not necessary that every box on the certificate be filled out to be “complete” – R v Wilson [2001] OJ No 4907 (CJ).

• Location Description – Identification of the regional municipality is sufficient – York (Regional Municipality) v. Askender [2015] OJ No 2010 (SCJ), York (Regional Municipality v Di Vito) [2014] OJ No 4598 (SCJ), Identification of a location on a highway and the municipal district was sufficient, particularly where the certificate showed that it was served at the location of the alleged offence so the defendant knew of the location – Thunder Bay (City) v Matzov 2016 ONSC 4557, A short form name is sufficient to identify the regional municipality – York (Regional Municipality) v Di Vito [2014] OJ No 4598 (SCJ), Not stating the town name wasn’t fatal where it was identified by other information in the document – York (Regional Municipality) v Abadehee [2004] OJ No 918 (SCJ), R v Busu [2012] OJ No 5823 (CJ), R v Deveau [2006] OJ No 3312 (CJ), Hundreds of offence certificates improperly quashed for the omission of “Ontario” from the description of the Highway Traffic Act. The word Ontario is surplusage – R v Baldasare [2000] OJ No 5515 (SCJ), Including “public” before the word sidewalk at the listed address was unnecessary – Thunder Bay (City) v Kamenawatamin [2009] OJ No 1422 (SCJ).

• Offence Description – Use of older short-form language “unsafe lane change” with the correct section number could not confuse a defendant even though the new regulation changed the description to “unsafe move – lane or shoulder” – R v Mikhow 2018 ONCJ 248, R v Badhan 2018 ONCJ 747. Omission of the short form wording “speeding” not important where the certificate showed the accused was charged with travelling 120km/h in a posted 100km/h zone and the offence section 128 was cited – Niagara (Regional Municipality) v Kosyatchkov 2013 ONSC 713 (not a 9.1 case).

• Proof of Service – Failure to complete the proof of service portion of the certificate is not fatal where the defendant filed a notice of intention to appear which shows he or she was served – Durham (Regional Municipality) v Verma 2011 ONCJ 19, Contra – R v Khoshael [2001] OJ No 2110.

• Section Number – Omission of the section number could not create confusion where the offence was otherwise properly described – York (Regional Municipality v Martinez 2014 ONSC 6305, R v Hargan 2009 ONCJ 65.

• Speed Description – Omission of kmh after the speed alleged could not have misled the defendant – York (Regional Municipality) v Billinger [2005] OJ No 2627 (SCJ).

• Total Payable – Surcharges and costs are added to the set fine by statute upon conviction. An error in the calculation in the total amount does not render the certificate irregular where the set fine is properly identified – R v Alfonso [2004] OJ No 5409 (OCJ), R v Galeazza [2010] OJ No 6054 (CJ), R v Gandhi [2011] OJ No 2642 (CJ), Haldimand (County) v Mungar [2011] OJ No 6505 (CJ), Toronto (City) v Arcos-Nava 2012 ONCJ 773.

[11]  Note that where an officer identifies an error prior to filing the certificate of offence with the court, the officer is entitled to make corrections even though an offence notice has already been served on the defendant – R v Davis 2017 ONCA 45.

[12]  Some cases have taken a strict view towards any technical deficiency and argue that a lack of prejudice to the defendant is irrelevant in determining whether a component of a certificate is essential or surplus. See for example R v Hands 2013 ONCJ 682. However, virtually all of the cases cited above including the Court of Appeal decisions refer to potential prejudice including the impact of the omission or error on the defendant’s ability to decide how to proceed when considering whether a particular deficiency or omission means the certificate is not “complete and regular on its face”. In my view this approach is consistent with the goal of the act to avoid having proceedings determined on technical objections that could have no prejudicial impact on the defendant – Davis at para 49.

In the Chow case, upon Appeal review, the Court deemed that where the police officer failed to check the AM/PM box so to indicate the complete time-of-day details, such was an insufficient flaw in that the person charged (Chow) would know whether the charge occurred during the day or at night and therefore the lack of this information upon the Certificate was insignificant and incapable of influencing the decision of whether to defend or default; and accordingly, the Certificate was unquashed and the previous ex-parte conviction remained.

What Are Some Commonly Occurring Mistakes?

Some mistakes, as errors or omissions, occur more often than others, usually as an accidental mental slip by the charging officer.  Remember, for you a traffic ticket is likely an infrequent occurrence; however, an officer likely issues many traffic ticket charges each day and officers, being human, will make some mistakes.  The common mistakes are:

  • The name of the person charged is spelled incorrectly;
  • The license number of the person charged is incorrect;
  • The license plate number for the vehicle involved is wrong;
  • The address where the offence allegedly occurred is incorrect;
  • The date or time that the offence allegedly occurred is wrong;
  • The officer forgot to sign the traffic ticket;
  • The amount of the applicable fine is wrong; and
  • The offence charge is incorrectly shown.

Of the above listed common mistakes, most are amendable, meaning correctable; and accordingly, most are insufficient to automatically result in a traffic ticket getting quashed (thrown out or tossed).

Summary Comment

It is an urban myth that a traffic ticket must be quashed (thrown out) due to an error. Only when errors are very specific will a traffic ticket be quashed. Accordingly, relying on the urban myth that any error will result in a traffic ticket being thrown out is risky. Prior to assuming that a traffic ticket will be quashed, get legal advice from a professional by contacting Benchmark Legal Offices to review and discuss your available options.

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