Section 1) Court Dates
Upon receiving a ticket for a traffic offense, you usually have five options available to you:
-The first option is to just pay the ticket. If you truly believe that you deserved this ticket and are willing to accept all the associated penalties that go along with it (most notably insurance increases), then you can just follow the payment instructions on the back of the ticket.
-The second option is to plead guilty with an explanation, as I mentioned above, this should never be used.
-The third option is to request a trial date. I will cover this option in detail in the rest of the document. Please see section 1.1.
-The fourth option is to setup a 'first attendance' with the prosecutor. This is a possibility if you are only planning on accepting a plea-bargain. This does not apply for some jurisdictions. Please see section 1.4.
-The fifth option is to ignore the ticket. You will be deemed to not dispute the charge, and a conviction will be entered against you. You will receive a notice of conviction and fine in the mail within a month or so. This has been deemed constitutional (R. v. Pilipovic,  O.J. No. 3139).
There is a sixth option, which may be your only option if you have a received a "summons" to court. This is usually reserved for serious traffic offences charged under Part III of the Provincial Offences Act, and it's to make sure that you show up in court. Please see section 1.5.
1.1) How do I set a court date?
If you want to fight your ticket, you must ask for a trial date. The procedure is fairly simple. Bring your ticket with you to any Provincial Offences Office within 15 days of receiving the ticket. At the courthouse, you will fill out a "Notice of Intention to Appear" (NIA) form, which states that you intend to appear in court to challenge your ticket. Just be careful of one thing: on the NIA form, there will be a yes/no check box stating something to the effect of "At the trial I intend to challenge the evidence of the provincial offences officer who completed the Certificate of Offence: yes/no". MAKE SURE that you choose to challenge the charging officer's evidence or else the officer doesn't have to show up, and any evidence the officer has will be deemed 'undisputable'. You can also choose to have your trial held in English or French, and you can also request an interpreter for any language if necessary. Make sure your address at the MTO is up to date, because they will send your notice of trial to the address on file.
Even if you don't actually plan on going to trial, you should still request a trial date. There is always the chance that the officer will not show up, or that your ticket will be scheduled so far away that it can be dropped based on Section 11b of the charter. Failing that, you still get to plea-bargain, or if your ticket was already reduced, you can plead guilty to the charge on the ticket instead of the actual speed (see section 5.1 for more details). The only exception to this is if you were ticketed really far away from where you live. Even though you can request a trial date at any Provincial Offences Office, your court date will take place in the jurisdiction where the ticket was issued. This means that if you get a ticket out in the middle of nowhere, your court date will also be out in the middle of nowhere. Make your decision to take the ticket to trial accordingly. Alternatively, you could hire someone to represent you (traffic lawyer, or a paralegal - please see section 5.4 for more information on paralegals).
Another note, if you were nabbed by one of those multi-officer speed trap operations, or you were paced from an airplane, you should strongly consider taking your ticket to trial! All officers present in the operation must show up for court in order for the crown to have a case. This is because one officer cannot testify for the actions of anyone but him/herself. Please see section 4.2.1 for more detail.
1.2) How long does it take to receive a trial notice?
Once you have submitted your Notice of Intention to Appear, it can take anywhere from a few weeks to multiple months before you receive your trial notice. This depends on how busy the court office is, and what the court scheduling is like at the court where your trial will take place. If you have not received notice within 3 months, it is standard procedure to call the office to check on the status. Do not hope that your ticket has "fallen through the cracks." It is very possible that your notice was mailed out, but was never delivered. In this case, you will be convicted in absentia, and will have to file an appeal to reopen the case (a big pain).
1.3) How do I change my court date?
Once you have received your trial notice, you can still change the date. In order to change your court date, you must make a motion to do so. Go to the courthouse and tell the clerk that you would like to change your court date. I do not believe that you can call in and request this, but it may depend on the courthouse. They will give you a generic 'motion' form which you must fill out (state what you want to motion and your reasons for doing so) and they will schedule you an appearance in front of a judge/justice. This appearance will be at the courthouse and scheduled at the same time as other people's trials, but it will not be a trial. You will usually go near the start, since motions take very little time.
On the day of your motion, when you are called up, state your name for the court reporter, and then tell the judge/justice that you would like to motion for an adjournment and your reasons why. The prosecution can object to your request, but it is ultimately the decision of the justice/judge. If your request is granted, another date suitable to both parties will be chosen. Generally, you can only adjourn your court date once. Furthermore, they usually don't send you a notice of the change in court date, so make sure you do not forget when your new court date has been scheduled.
1.4) What do I do at a "first appearance"?
A first appearance is not a trial date (you shouldn't be going to trial on that day). You have a chance to speak/bargain with the prosecution about your particular charge. They will almost always offer you a plea-bargain. If you accept, you can usually accept this plea-bargain on that day, so you do not have to come back for your original trial date. If you decline the plea-bargain, you will go to your original trial date as scheduled. If you have not already asked for a trial date, one can be arranged at your first appearance. You can request a first appearance by asking in person at the court house, although most courthouses will allow you to schedule one by phone.
1.5) What do I do if I have received a summons?
You will receive a summons to court instead of a regular ticket if you have been charged under Part III of the Provincial Offences Act (POA), instead of the more common Part I. This can happen for a multitude of reasons, but primarily because charges under Part I of the POA have a penalty limit of $500 and no potential for imprisonment. Also, the 30 day limitation period for Part I offences may have expired and the officer intends to charge you 'after the fact'. Usually, charges laid under Part III of the POA are for very serious charges such as Careless Driving, driving under the influence, speeding 50km/h+ over the speed limit (stunting/bill203), etc.
The officer has the power to write you a summons at the scene of the offence. However, a summons can also be served at a later date at your home/place of residence. In extreme cases, a warrant for your arrest can also be issued by a Justice. Generally, the date for your court appearance (note, this is NOT a trial) will be fairly soon - usually within a month, sometimes within weeks of receiving your summons. At this 'court date', basically all that happens is the officer brings the facts to the justice and swears that they are true. The justice makes sure you understand the nature and severity of the charges against you, and that's basically it. You will then receive a date for your trial. Sometimes the prosecution will offer you a plea-bargain on the day of, in the interest of (the court's) time and money.
An interesting side note - any person with reasonable cause can initiate proceedings under Part III of the provincial offences act - you can, in effect, lay charges (including criminal charges) yourself. However, the procedure requires time and a bit of money, to prevent frivolous charges.
Section 2) Options before your Court date
The rest of this document will assume that you have chosen to take your ticket to trial, and that you have correctly marked on your NIA form that you intend to challenge the charging officer's evidence. At this point, I will also assume that you have received your trial notice, and that a date has been set.
2.1) Preparation and Disclosure
Instead of idly passing the time until your court date, you should be preparing for your court date. Do not leave preparation until the last minute, as the court system (as with any government institution) can be quite slow. The first thing you should do once you have received your trial notice is to ask for disclosure. Asking for disclosure is your right as a defendant, and it is the means through which you will discover what evidence the prosecution has against you. Obtaining disclosure is critical for choosing a course of action. You cannot even start to prepare your defence until you know what evidence the prosecution will be relying on. Even if you feel you have been caught 'in the act' with no defence, obtaining disclosure may reveal avenues of defence that were not obvious or even known to you. Conversely, obtaining disclosure may reveal a bulletproof case, and you may instead wish to accept a plea-bargain rather than waste time with a trial.
2.1.1) How do I obtain disclosure?
In order to obtain disclosure, you must submit in writing (registered mail, fax, or personally delivered) your request for disclosure to the Provincial Prosecutor's office. The address is on the back of your ticket. Be sure to include your full name, the offence date, and ticket/offence number in your request. Also, be specific in what evidence you ask for: e.g. "please send me: 1) Both sides of the officer's ticket, 2) the officer's notes on the day of the offence, 3) etc." If you just say "send me all evidence you will be relying on in the trial", they'll probably be lazy and not send you very much. If you happen to already be at the prosecutor's office, they may have a disclosure request form that you can use and submit right there. Just make sure you get a copy for yourself. In any event, the letter can be as simple as "My name is X and I am requesting disclosure for offence number Y that is to take place on Z date. Please provide to me the following:
Please note, it is very important that you document all communication and contact you have with the Prosecutor's office. If you have a phone conversation, ask for names and keep records of the times and dates you spoke to people. If sending mail, use registered mail and keep the receipt and signature of the person who received it. For faxes, keep transmission records. If you submit your disclosure request in person, ask the clerk to make you a copy after it has been marked and signed as received. You want a paper trail documenting your actions, so in the event that the prosecution does not cooperate with you or claim they never received your request, you have proof of this. This is especially important if you intend to make an 11b charter challenge (see section 2.2).
Once you have submitted your request for disclosure, it will usually be several weeks, sometimes a month or two, before it is ready. Usually the Prosecutor's office will call you (if you left a phone number on your request). However, sometimes they do not as they can be very busy. If it has been more than a month, you should call the Prosecutor's office to check on the status of your request. Usually, you will have to go into the office to pick it up.
2.1.2) What do I do if the disclosure is incomplete or unclear?
Generally, all that is in posession of the prosecutor's office will be a prosecution sheet, which usually only has things like a copy of the ticket, and the officer's notes. If your disclosure is incomplete, or you need more information, usually only the officer in question will have this information. For example, for a speeding charge, generally, only the officer will know which make and model radar unit he used, which he may or may not have written in his notes. If you need any other evidence, you have to ask the officer in question for this evidence. As before, document all contact you have with the officer. Write down the name(s) of who you spoke to, and the time and date of your call. If the officer gives you a hard time, tell the officer that the "Freedom of Information Act" (for Ontario) gives you the priviledge to obtain this information. If the officer still refuses, make note of this, and then read section 2.1.3.
The same procedure applies for illegible or unclear disclosure. You will request 'disclosure disclosure' . This is very common, as many officers often use some kind of shorthand when writing their notes.
2.1.3) What do I do if they haven't given me disclosure after I asked for it?
There are two cases to consider. If you have asked for disclosure and received nothing, check to make sure the Prosecutor's office even got your request. If you followed the instructions in section 2.1.1, no more than two months should have passed since your original request. If the office claims they did not get your request, resubmit it (double check infraction numbers and addresses), again documenting every exchange. If the office tells you that your disclosure is not yet ready, ask them for an approximate time frame, so you don't have to keep calling them every few weeks. If the office keeps giving you the runaround, or your court date is coming up very soon, you may want to consider an 11b charter challenge (see Section 2.2).
If you only received partial disclosure, and the Prosecutor's office or the officer refused to give you additional information, you can use it as ammunition if you intend to make an 11b charter challenge (see section 2.2). Also, on your court date, if the information that was refused is deemed vital to your defence by the Justice, then the justice can schedule an adjournment and force the officer to give this information to you. Be careful, though, as if the Justice decides that the information is not vital to your defence, then the trial will continue on that same day. Be ready!
2.2) 11b Charter challenge
The Canadian Charter of Rights and Freedoms guarantees under section 11 subsection b, that "any person charged with an offence has the right to be tried within a reasonable time." This section will deal with the inner workings of 11b, and how you can use it to your advantage.
2.2.1) How much delay does there have to be before I can make an 11b challenge?
While it is true that the Charter of Rights explicitly states that "any person charged with an offence has the right to be tried within a reasonable time," the charter does not define explicitly what is considered to be a "reasonable time." The test for infringement was set out in the case of R. v. Morin  1 S.C.R. 771. The criteria used to see if your section 11b rights have been violated are as follows:
1. the length of the delay; (you have to show that the length is unreasonable)
2. waiver of time periods; (did you waive your section 11b rights?)
3. the reasons for the delay, including
(a) inherent time requirements of the case, (some cases have a huge amount of evidence to go through)
(b) actions of the accused, (did you cause delay in any way? changing court dates, etc.)
(c) actions of the Crown, (did the crown cause delay in any way? fail to give disclosure, changing the court date, etc.)
(d) limits on institutional resources, and (if everyone is waiting 1 year for their court date, a 1 year wait time might not be seen as unreasonable).
(e) other reasons for delay; and
4. prejudice to the accused. (have you suffered any prejudice as a result of the delay?)
There is no absolute time period wherein all 11b challenges will succeed. Whether or not your 11b challenge will succeed is up to the discretion of the JP (influenced of course, by how convincing your arguments are, as well as whether or not the JP is having a good day), although you could appeal the decision if you feel that the JP made a mistake in law in his/her ruling.
2.2.2) How do I make an 11b challenge?
If you are serious about making an 11b challenge on your own, I suggest you first start by reading the ruling in the R. v. Morin case. Also, there is an 11b decision digest available on Canlii that is also fairly helpful.
The first step is to file a Notice of Constitutional Question, or Form 4f, with the crown prosecutor, The Attorney General of Ontario, and the Attorney General of Canada. This lets the court know that you intend to dispute the charge with a charter claim. Again, if mailing the forms, use registered mail. The most economical route is if you own a fax machine. Here are two examples of a sample form:
Sample form from government website
Sample from FYST
You should ideally start your 11b charter challenge as soon as you are made aware of the violation of your rights. I would usually wait until disclosure is obtained, but this is not strictly necessary. In the event that the prosecution refuses to provide disclosure, or does not provide you with disclosure in a timely manner, you can use this as additional 'ammunition' in your 11b challenge. However, you should not leave the challenge until the last minute. Failure to do so can be constrewed as an implicit acceptance of the pace at which things are happening (Number 4 in the list in section 2.2.1). E.g.: You didn't say anything before your trial date, so you are implicitly agreeing that the time taken to bring your case to court is acceptable to you. Similarly, if you do not actively pursue the prosecution for your disclosure, your complacency can be seen in the same way. In any event, you must file these forms no later 15 days before your court date.
Once you have filed these forms, You may be contacted by the Prosecutor's office to have your court date moved forward. This is rare, as the courts are usually quite backed up, but in the 'unlucky' event that this happens to you, you will pretty much have to abandon your 11b challenge, unless disclosure still has not been provided.
At your court date, before court is in session, you should tell the prosecutor that you intend to make your 11b challenge. Sometimes, they will acquiesce, and you will be off the hook. Other times, they may fight you tooth and nail. Once court is in session and you are called, you must immediately motion for a stay of proceedings based on your section 11b charter rights (and explain why you feel your section 11b rights have been violated). You must make this motion pre-plea (i.e.: before you have plead guilty/not-guilty). If your motion is accepted, the justice will enter a 'stay of proceedings' based on a violation of your charter rights (you are off the hook). If your motion is denied, you will have to proceed to trial, so be ready.
Also, please note that generally speaking, making an 11b challenge and accepting a plea-bargain are mutually exclusive. If your charter challenge fails, you will not be able to plea-bargain, and you must then make a plea of either guilty (accept the ticket at face value) or not-guilty (proceed to trial immediately).