You can appeal a deemed conviction for a missed appeal deadline

Appealing Your Deemed Conviction

There are two ways in which you can receive a deemed conviction for a violation ticket. The first way is when you do not dispute the violation ticket within the 30-day dispute period. The second way is if you do not attend your scheduled court hearing for your traffic violation.

Late dispute

If you do not dispute your ticket within the 30-day dispute period, you can still apply for a late dispute. To apply for a late dispute, you need to fill out and swear or affirm an affidavit under Section 16 (2) of the Offence Act.

There are five legal tests that you need to meet in order for your affidavit to be successful:

  1. The first legal test is that you had a genuine intention to dispute the ticket within the 30-day dispute period.
  2. The second legal test is that “through no fault of your own” you were unable to dispute the violation ticket within the 30-day dispute period. This can be a difficult burden as the excuse “I forgot” or “I was too busy” is not going to cut it. You need to be able to explain in detail why through no fault of your own you did not dispute the ticket.
  3. The third legal test that needs to be met is that you have an arguable defence to the violation ticket. Did you do actually commit the offence that you were ticketed for? This legal test is delicate. You cannot put too much information in or you risk admitting to the offence, but you cannot put too little in or you risk having the affidavit denied for no arguable defence.
  4. The fourth legal test is that no undue prejudice will result from the extension of the dispute period.
  5. The final legal test is that you believe that it is in the interests of justice to allow the dispute period to proceed. A Judicial Justice of the Peace will review the affidavit and either allow the dispute period to be extended or they will deny the extension.

Appealing a deemed conviction for a missed hearing

Now, let’s say that you did dispute your violation ticket within the 30-day dispute period. You will be sent a Notice of Hearing in the mail with a date and time in which you are to attend a hearing for the violation ticket. There are two ways that you can be deemed convicted if you did dispute your ticket and were given a hearing date.

The first way is that you may not have received the Notice of Hearing in the mail informing you of your court date. Typically, the timelines for a hearing date will be within three to six months of when you disputed the ticket. If you have not received any letter in the mail, you should follow up with the court registry of the courthouse where your hearing is to be held to follow up.

The second way that you can be deemed convicted after you dispute your violation ticket is if you miss the hearing date for your violation ticket.

You can appeal the deemed conviction if either of these events happens to you. There are two separate forms that are used depending on your circumstances. If you missed the hearing date and you are aware within 30 days of the hearing date taking placed that you missed it, you can file an affidavit under Section 15 (10) of the Offence Act.

There are three legal tests that need to be met for this affidavit:

  1. The first legal test is that you had a genuine intention to appear at the scheduled hearing.
  2. The second legal test is that not more than 30 days have passed since the hearing date.
  3. The third legal test is that “through no fault of your own” you were unable to appear before the Provincial Court. This is a high standard. You cannot say “I forgot” or “I could not take the time off work”, those are not through no fault of your own.

The second form that is used for a missed hearing applies if more than 30 days have passed since the hearing date. If this is the case, you will need to file an affidavit under 16 (2) of the Offence Act, the same affidavit you would file if you did not dispute your ticket. The legal tests for this affidavit follow the same guidelines as those listed above under late dispute.

Appealing a deemed conviction can be technical and tricky to navigate. If you need help with appealing your deemed conviction, call us for a free consultation on 604-608-1200.

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