Can a Novice Driver Appeal a Traffic Ticket Conviction Even After Voluntarily Filing a Guilty Plea and Paying the Fine?

Generally, Subject to Conditions, Drivers Convicted of a Traffic Offence May Appeal the Conviction and Do So Even If the Driver Already Filed a Guilty Plea and Paid the Fine.

Understanding the Rights and Process to Appeal Traffic Ticket Convictions Involving Novice Driver Penalties and Sanctions

Any driver that is convicted of any traffic ticket, meaning a Certificate of Offence issued pursuant to Part I of the Highway Traffic Act, R.S.O. 1990, c. H.8, including a novice driver that is convicted of a novice driver violation, is entitled to commence an appeal against the conviction, subject to compliance with certain conditions and timelines.

The Law

As per section 135 and section 136 of the Provincial Offences Act, R.S.O. 1990, c. P.33, a driver holds a right to commence an appeal within thirty (30) days in circumstances where an error in fact or error in law has occurred.  Additionally, as per section 85 of the Provincial Offences Act, a process exists for the requesting of more time to appeal.  Specifically, section 135, section 136, and section 85, state:


Appeals, proceedings commenced by certificate

135 (1) A defendant or the prosecutor or the Attorney General by way of intervention is entitled to appeal an acquittal, conviction or sentence in a proceeding commenced by certificate under Part I or II and the appeal shall be to the Ontario Court of Justice presided over by a provincial judge.

Application for appeal

(2) A notice of appeal shall be in the prescribed form and shall state the reasons why the appeal is taken and shall be filed with the clerk of the court within 30 days after the making of the decision appealed from, in accordance with the rules of court.

Simultaneous application

(2.1) Despite subsection (2), the notice of appeal may be filed at the same time as an application under section 85 to extend the time to give notice of appeal.

Notice of hearing

(3) The clerk shall, as soon as is practicable, give a notice to the defendant and prosecutor of the time and place of the hearing of the appeal.


Conduct of appeal

136 (1) Upon an appeal, the court shall give the parties an opportunity to be heard for the purpose of determining the issues and may, where the circumstances warrant it, make such inquiries as are necessary to ensure that the issues are fully and effectively defined.

Review

(2) An appeal shall be conducted by means of a review.

Evidence

(3) In determining a review, the court may,

(a)  hear or rehear the recorded evidence or any part thereof and may require any party to provide a transcript of the evidence, or any part thereof, or to produce any further exhibit;

(b)  receive the evidence of any witness whether or not the witness gave evidence at the trial;

(c)  require the justice presiding at the trial to report in writing on any matter specified in the request; or

(d)  receive and act upon statements of agreed facts or admissions.


Extension of time

85 (1) Subject to this section, the court may extend any time fixed by this Act, by the regulations made under this Act or the rules of court for doing any thing other than commencing or recommencing a proceeding, whether or not the time has expired.

Limit on number of applications

(2) No more than one application for an extension of the time for filing of an appeal may be made in respect of a conviction.

Interestingly, even after filing a traffic ticket, formally known as a Certificate of Offence, and paying the applicable fine, a driver may seek to appeal the conviction that results.  The right to appeal despite failing to defend the charge, filing the Certificate, and paying the fine, arises from basic principles of justice that expect, and require, an accused person to plead guilty only where the accused person believes in the guilt and is adequately informed of the consequences of a guilty plea.  Whereas a driver, and especially a novice driver, may be stopped by the police and issued a traffic ticket, the police officer will be without the knowledge and without the duty to inform the driver of the potential consequences of conviction such as the number or demerit points applicable to the alleged offence or whether a conviction will result in even more concerning consequences as an escalated sanctions penalty applicable to a novice driver.  Additionally, police officers may provide drivers with inaccurate information which a driver may detrimentally rely upon.  Ultimately, it is inappropriate to seek, or to receive, legal advice from a police officer, and especially so, to obtain legal advice from the very police officer who is issuing the relevant traffic ticket.

Addressing Plea Convictions

A conviction for a Highway Traffic Act offence may occur where the accused person pleads guilty by way of filing the traffic ticket (Certificate of Offence) and paying the applicable fine, by appearing in court and pleading guilty on the record, or by being judicially convicted following the hearing of evidence at a Trial.  As discussed above, an accused person may plea guilty without being properly informed of the consequences of the plea; and, in certain circumstances, the resulting conviction may be set aside and the matter permitted to proceed to a Trial.

The requirement that an accused person must be allowed to plead guilty only where the accused person is fully informed of the direct consequences as well as the indirect consequences of pleading guilty was stated within the cases of, among others, R. v. Dingwall, [2002] O.J. No. 1194, as well as R. v. Wong, [2018] 1 S.C.R. 696 (a criminal case rather than a traffic ticket case), wherein each it was respectively stated:


2  In my view, there is an obligation on every judicial officer to ensure that a person who is entering a plea (especially, where there is no counsel) is fully informed. That they understand the nature of the charge, that the plea is made freely and voluntarily, and they understand the consequences of making the plea. And that the plea responds to the charge that is alleged or the facts underlying the charge alleged.

3  I do not think that any particular wording must be used by a judicial officer in coming to a conclusion ... or coming to the conclusion that the plea was entered freely and voluntarily and the consequences were understood, et cetera, but I do think that there is a higher obligation on the judicial officer in cases where a defendant is unrepresented, than in cases of representation by counsel.

4  I do not think that the nature of the inquiry substantially changes, whether this is a Criminal Code offence or a Highway Traffic Act offence, because the consequences for Highway Traffic Act convictions can sometimes be as serious if not more serious than for Criminal Code offences. Particularly in situations where there is loss of licence; substantial monetary fines in the many thousands of dollars (for driving without insurance for example; and possibility of jail for driving under suspension) may result.

5  With that background, therefore, and looking at the particular facts of this case, it seems to me that after reading the transcript and reviewing the affidavit of the appellant, it is clear that the appellant was not fully apprised of the consequences of his guilty plea. He was not told and he did not understand the significance of pleading guilty, in terms of the consequences to his licence.

6  Whether or not he would have changed his plea really is of no consequence in terms of making a determination of this appeal. It seems to me that the obligation on the judicial officer is to bring home very clearly, through a direct inquiry with the unrepresented defendant that by pleading guilty his licence will be suspended for a specific period of time and ensuring that this individual understands that.

7  The failure of the judicial officer to do that is, in my view, fatal in this case and so I will allow the appeal and order a new trial on both charges.


[2]  The decision of an accused to plead guilty is plainly significant. By pleading guilty, an accused waives his or her constitutional right to a trial, relieving the Crown of its burden to prove guilt beyond a reasonable doubt. Taking this step is of such significance that it represents one of the very few decisions in the criminal process which an accused must personally take. Indeed, defence counsel are ethically bound to ensure that the ultimate choice is that of the accused.

[3]  The plea resolution process is also central to the criminal justice system as a whole. The vast majority of criminal prosecutions are resolved through guilty pleas and society has a strong interest in their finality. Maintaining their finality is therefore important to ensuring the stability, integrity, and efficiency of the administration of justice. Conversely, the finality of a guilty plea also requires that such a plea be voluntary, unequivocal and informed. And to be informed, the accused “must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea” (R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519).

Addressing Default Convictions

A default conviction occurs when an accused person fails to take necessary action such as failing to give notice of intent to appear or subsequently failing to appear at a scheduled meeting or scheduled hearing. as per section 9(1) of the Provincial Offences Act which states:


Deemed not to dispute charge

9 (1) A defendant is deemed to not wish to dispute the charge if,

(a)  at least 15 days have elapsed after the defendant was served with the offence notice and the defendant did not give notice of intention to appear under section 5, did not request a meeting with the prosecutor in accordance with section 5.1 and did not plead guilty under section 7 or 8;

(b)  the defendant requested a meeting with the prosecutor in accordance with section 5.1 but did not attend the scheduled meeting with the prosecutor; or

(c)  the defendant reached an agreement with the prosecutor under subsection 5.1 (7) but did not appear at a sentencing hearing with a justice under subsection 5.1 (8).

Where a court date is missed or the traffic ticket was filed outside of the prescribed time period for doing so, and as a result a default conviction occurred, there are processes available to seek a reopening or appeal of the conviction and thereby to set aside the conviction and set aside the applicable demerit points, license suspension, and other sanctions, penalties, and consequences, including the escalated sanctions faced by a novice driver.  As the circumstances of each person are unique and will vary, a review by a qualified legal professional will be necessary to determine how best to proceed.

Summary Comment

Novice Drivers are encouraged to seek proper legal advice; and by doing so, the notice driver may be able to avoid a conviction for a traffic ticket and the applicable demerit points, fines, licence suspension, or license cancellation, among other sanctions and penalties faced by a novice driver. Additionally, by seeking legal advice the notice driver may be able to avoid significant insurance rate increases or even cancellation of insurance.

Furthermore, novice drivers should remain aware that, while appealing a conviction, the surrender of a drivers licence due to the escalated sanctions applicable to a novice driver is avoided unless the conviction is sustained upon the appeal.  Depending upon the specific circumstances involved, NoviceDriver.legal may be able to prepare and file an appeal with the Court and serve the Ministry of Transportation (Ontario) prior to the date of license surrender indicated on a Notice of Suspension for the escalated sanctions applicable to novice drivers.  Even where the license surrender date passes, where the appeal is properly filed and served upon the Ministry of Transportation (Ontario), the novice driver remains without a requirement to surrender a license while the outcome of the appeal remains pending.

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