Many people will go through their entire lives without having the criminal justice system affect them directly. In contrast, most people will receive a traffic ticket at some point in time. The first question most people ask is, “Should I fight it?” In other words, should they just send payment for the fine on the ticket, or contest the charge in some way. If you are interested in reducing the fine you pay and – more importantly – reducing any increase in your auto insurance premium, then you should consider your other options.
In Ontario, the reverse side of most tickets will set out three options: plead guilty by paying the fine set out on the ticket attend a resolution meeting with a prosecutor to ask for a reduced penalty or set a date for trial. These three options appear in the order of the amount of effort required and the potential benefits.
If you select the second or third of these two options, it is important that you write to the prosecutor’s office to request your disclosure prior to appearing in court. At a minimum, this should consist of the handwritten notes of the police officer. If the matter proceeds to trial, the prosecutor will need to prove the offence for which you have been charged. Your disclosure should give you a good idea of the evidence that they will be relying on at trial. Without legal training, it can be challenging to make sense of your disclosure and determine what is missing (Justice Feldman’s decision in R. v. Vancrey explains what the prosecutor needs to prove in speeding offences).
When you choose the first option and pay the fine printed on the ticket, you are likely accepting the highest penalty. The only exception is where the officer writes a ticket with a speed that is lower than the speed at which they believed you were travelling – if you proceed to trial, the prosecutor is allowed to prosecute you at the full speed. Chances are that demerit points will also be entered on your driving record (a.k.a. driver’s abstract). This is the case for any speeding ticket where you are found to be travelling more than 15 km/hour above the speed limit. In Ontario, demerit points remain on your record for two years from the date of the offence. Even where there are no demerit points associated with an offence, your insurance company may still increase your premium.
The second option is to meet with a provincial prosecutor. They can exercise their discretion to reduce your fine or your charge, which can reduce your demerit points. Their decision will depend on the seriousness of the charge, whether the ticketing officer already reduced the speed or charge, and your driving record.
In these resolution meetings, both you and the prosecutor have a common goal: avoiding a trial. The prosecutor will often offer a resolution that is better than the fine on your ticket. Make sure to bring all documentation that you think should lessen your penalty. For example, in non-speeding offences like “failure to surrender insurance card,” the prosecutor may agree to withdraw the charge if you can show them that you had a valid insurance card at the time of the offence.
By pursuing the third option and setting a trial date, you will need to show up to court. You can also send an agent on your behalf. Your agent can be a lawyer, paralegal, or someone that you designate to appear on your behalf (e.g. a family or a friend). In Toronto, it is uncommon that the trial will occur on this first date. More often, people use this date to meet with a prosecutor and ask for a lesser penalty. If you and the prosecutor are unable to agree on a penalty, then the matter will usually be set for trial. It is also possible to adjourn to consider the prosecutor’s resolution position or to collect additional materials you think might improve your position.
In the event that you end up proceeding to trial on your own, the prosecutor will be required to prove the elements of the offence beyond a reasonable doubt. They will usually present the testimony of the police officer that interacted with you on the day in question. = If any of their witnesses are not present for your trial date, the prosecutor may choose to withdraw their case against you or ask the court to adjourn to a later date. You have the right to argue why the adjournment should not be granted.
Once the prosecutor has asked the questions of the police officer, you will have the opportunity to ask your own. Your questions should be aimed towards creating a reasonable doubt about the elements of the offence that the prosecutor is required to prove. You do not need to call any of your own witnesses. If you do, you have the choice to testify on your own behalf, call any witnesses who have relevant evidence to give (often the passenger of the vehicle), or do both.
After the testimony of all witnesses, you will be given an opportunity to explain why the evidence should result in a finding that the prosecutor has failed in demonstrating all elements of the offence beyond a reasonable doubt.
In Toronto, there are dozens of companies devoted to defending traffic tickets. Most of these companies are run by paralegals. Paralegals are legal professionals who are restricted in the legal areas in which they can practice, but they usually cost less than a lawyer. For many people, hiring a paralegal to fight your ticket makes a lot of sense. Requesting disclosure and appearing in court requires time and organization. A paralegal can advise you on whether you should proceed to trial and, if not, what a favourable resolution would be. Most paralegals operate on a model where you simply provide them with your ticket and your account of what happened and they will take care of the rest, often without you being required to attend court at all. Often you can obtain a quote for this service over the phone.
When you have been charged with an offence where there is a possibility of jail or a higher number of demerit points (e.g. driving more than 50 kilometers per hour over the posted speed limit, careless driving, or driving without insurance) or a further conviction would place you at risk of losing your licence (e.g. where you already have six or more demerit points), it may be in your interest to hire a lawyer. Most criminal defence lawyers like myself defend against traffic offences.
The advantage to hiring a lawyer is that they are able to apply their knowledge and experience from their defence of more serious offences. For example, they may prepare applications for items of disclosure that the prosecutor is refusing to disclose or they may argue that your charge should be stayed because your Charter rights have been breached. Even when your lawyer does not argue these applications in court, they may be useful in negotiating with the prosecutor.
How you choose to deal with a traffic ticket will likely be affected by your driving record and the funds that you have available to hire the assistance of a trained legal professional. Before simply mailing back your ticket with a cheque for the set fine amount, it is important to understand that you have other options.
Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on www.nowtoronto.com on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.
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