Motion of Non Suit

After the prosecution has rested (they have no more evidence against you to present) you can make a motion of non-suit. Here you are arguing that the prosecutor hasn't proven his case and your charge should be dismissed.

Under Step 3, you were encouraged to look up the section of the Act that covers your charge. An example of speeding in a community safety zone was given. Under the Highway Traffic Act the community safety zone is created by a municipal by-law stating the months, days and hours that the safety zone is in effect. The only way to know if you were speeding during the affected time is if the prosecutor presents the by-law. If he doesn't, there is no evidence that you were breaking any law.

This is true of almost any traffic charge in urban areas, especially parking infractions. In all these cases, you are being charged based on a by-law regulating traffic (speed, turns, construction zones, stop signs, etc.). That means the city created a by-law stating you can't park here, or the speed limit is 40km/hr[1] or let's put a stop sign at this intersection. The prosecutor must disclose the by-law to you and file the by-law in court. In both cases, they must be certified copies.[2]

If there is no by-law filed how can there be a charge since there is no evidence you broke any rule? Or if there is one, and you didn't get a copy of it, that's improper disclosure.

The nice thing about this non suit motion is that you likely will have argued improper disclosure and unreasonable delay prior to proceedings. If the justice didn't agree with you then, this motion will force his hand. You argued you didn't get disclosure and now the prosecution is claiming you broke a by-law that you have never seen. How can you prepare a defence against something they won't show you?

Think of all the charges that are being covered during your court session. Typically, 25 cases. That means the prosecutor had to look up 25 by-laws, get certified copies and file them in court. But guess who doesn't know this? The 24 other cases. The odds are with the prosecutor. He's not going to bother doing this because no one is going to challenge him on this. Except you.

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1. Keep in mind that there are default speeds for highways (80km/hr) and urban streets (50km/hr). So if the sign isn't there or you are arguing the sign isn't valid, the speed will revert to the default speed. For example, if you are charged with going 70km/hr in a 40km/hr zone and you argue there is no by-law, that means the speed limit is, by default, 50km/hr and you are still speeding.

2. Judicial notice cannot be taken of subordinate legislation or municipal by-laws. The prosecutor must provide a copy of the by-law certified by the proper officer of the municipal corporation to be a true copy and under the seal of the corporation. Don't get confused by the term "corporation". All cities are corporations. For example, the legal title of Toronto is "The Corporation of the City of Toronto". And all corporations have corporate officers and corporate seals. The prosecutor has to get one of those officers to sign the copy of the by-law and affix the corporate seal in order to submit the by-law as evidence under the Evidence Act.