Quash Proceedings Due To Flaws

You say, " Prior to entering a plea Your Worship, I move that these proceedings be quashed on the grounds that ..." There are a couple of grounds you can argue:

  • the charge is insufficient
  • the information (your ticket) bears a fatal flaw on its face

Your strategy here is that the flaw on your ticket is fatal to the charge. You can also argue that the flaw has somehow misled you in preparing a defence. Let’s look at these in detail…

Procedural Defence – Insufficient Charge

You say, "Prior to entering a plea Your Worship, I move that these proceedings be quashed on the grounds that the charge is insufficient." This procedural defence argues that the charging document must clearly identify what you did wrong. It should indicate:

  • the date, time and place of the offence;
  • What act you violated;
  • Who has laid the charge.

In order for you to prepare an adequate defence you need to know what wrong you allegedly committed. If they haven't provided it, the trial should not continue. Please note that in this case the justice may rule that the charge be amended or that you be provided with additional information. It may not be enough to get the charge withdrawn.

Errors And Fatal Flaws On The Ticket

You say, " Prior to entering a plea Your Worship, I move that these proceedings be quashed on the grounds that the information (your ticket) bears a fatal flaw on its face."

The idea of fatal errors comes literally from the old formal and very technical penal system where many crimes were punishable by death. In an effort to alleviate the severity of the law, judges would dismiss cases on minor technicalities based on a desire to avoid mandatory harsh penalties for relatively slight offences.

In 1978, the Supreme Court of Canada ruled in R. v. Sault Ste. Marie, 1978 CanLII 11 (S.C.C.) that those days had passed. In modern law, judges "look for substance and not petty formalities." In other words, the chances of getting off on a minor technicality are extremely difficult.

Many people mistakenly assume that an error on a ticket will get it thrown out of court. In reality the Court may amend the ticket at any time under Section 34 of the Provincial Offences Act. The only flaws that gets the ticket thrown out (fatal flaws) are:

  • no offence date;
  • no defendant’s name (if your name is misspelled, the ticket still counts);
  • no location;
  • missing officer’s signature;
  • unknown offence (e.g. speeding 70kh/hr in a 64km/hr zone);
  • the filing date is beyond seven days.

You can try to argue that the error in the document produces a failure to comply with regulations or legislation. However, this failure must be more than minor or inconsequential. It should void the document.

Or an alternative would be to argue that correcting the defect would lead to a substantial injustice that cannot be corrected by an adjournment. You must argue that the error deprives you of your right to know and defend the charge against you. You must show how it will impact the possible outcome of your trial.

Here the court will not be concerned about you getting off on a technicality. You must demonstrate that the error mislead you. The court will examine the effect of this error upon your defence. You prepared your defence based on this error. If the error is corrected, you should ask for an adjournment to prepare your defence once more. (This opens up the possibility for a stay).

Or it might prove wise to ignore the error until the trial begins. You can then "discover" the error at an appropriate time and argue that it prejudiced you, caused an injustice or created a substantial wrong. You were misled in the preparation of your defence and this error will prove unjustly "fatal" to your defence.

How to Force a Fatal Error

There is one method to force the errors to be fatal. This is discussed in the fines section. However this strategy must be used before you challenge your ticket.

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