Reopenings

If you have been convicted without going to trial you can request a reopening. A request for a reopening asks a justice permission to have a trial since you were convicted by default.

Typically default convictions occur because:

• you did not request a trial; or
• you did not receive a notice of trial; or
• you did not attend your trial.

Appeals vs Reopenings

Reopenings are different than appeals. With appeals a trial has been held and you have been convicted. You can also appeal a default conviction where no trial has been held. In either case, an appeal argues that you should not have been convicted. You take you case to the next court level. The judge can overturn your conviction or order a new trial.

With a reopening you were convicted "in absentia". You were not present when they convicted you by default. A reopening asks the court to hold another trial so that you can be there.

Reopenings are only available for default convictions.

How to Request a Reopening

You will have to go to the court office and request a reopening. In some jurisdictions reopenings are handled in a separate area than where you go to request a trial or file court papers. You will first see a court clerk who will hand you some forms to complete. They will ask for your details: you name, address, offence number, date of conviction, etc.

When did you know?

One of the questions on the form will ask for the date you became aware of the conviction.

Many court clerks mistakenly think that you have 15 days from the date of conviction to request a reopening. This is not true. It is 15 days from the day you became aware of the conviction which could be months later.

11. (1) If a defendant who has been convicted without a hearing attends at the court office during regular office hours within fifteen days of becoming aware of the conviction and appears before a justice requesting that the conviction be struck out, the justice shall strike out the conviction if he or she is satisfied by affidavit of the defendant that, through no fault of the defendant, the defendant was unable to appear for a hearing or a notice or document relating to the offence was not delivered. (Provincial Offences Act)

Defendants "learn" that they have been convicted when:

• they receive a notice of conviction from the court; or
• they receive a notice of license suspension for unpaid fines from the Ministry of Transportation; or
• they discover there are outstanding fines when they attempt to renew a license plate sticker; or
• a collection agency comes after them, or
• the owner of a vehicle they borrowed starts yelling at them.

When you learn about the conviction you then have 15 days to request a reopening. How to count 15 days is not as straightforward as you might think. Under section 4 of the Rules of the Court:

4. The following apply to the calculation of a period of time prescribed by the Act...

1. The time shall be calculated by excluding the first day and including the last day of the period.
...
3. Where the last day of the period of time falls on a Saturday or a holiday, the day next following that is not a Saturday or a holiday shall be deemed to be the last day of the period.

The important point to remember is that from the date you became aware of the conviction to the day you are standing in the court office requesting a reopening should be 15 days or less. If you found out about the conviction on the first of the month, you have until the 16th day of the month to request a reopening. If the 16th day is a Saturday or a holiday, then you get one extra day.

Reopening Reasons

One of the forms you have to complete will be an affidavit on which you state the reasons your case should be reopened. Some of the reasons the court will like are:

• You did not receive a Notice of Impending Conviction (applies to parking tickets).
• You did not receive a Notice of Trial .
• An unforeseen situation occurred which prevented you from attending your trial. It can be a medical emergency, an accident or a work issue that threatened your job security.

Excuses That Don't Work

• I forgot about the trial.
• I had to study for an exam.
• I went on vacation.
• I can't afford to pay the fine.
• A collection agency is after me.

Swear an Oath

After you complete the affidavit, you will have to swear an oath that the statements you wrote on the affidavit are true.

The clerk you are dealing with is likely a commissioner for taking oaths (someone who you can swear before). You will have to present picture identification like your driver's licence to prove you are the person named on the affidavit. Raise your right hand and state your name. The clerk will ask you if the information contained in the affidavit is true. Say "yes". Next sign the affidavit in front of the clerk. He will then sign it, stamp it and keep it along with the other documents.

Appear Before a Justice

In most jurisdictions (except Toronto, see below) you will be told to wait and then you will be called before a justice in an office. Justices will not wear robes in their office. Do not make the mistake of thinking this person is a prosecutor or municipal employee. They are the court. You must be extremely polite. Do not sit until the justice motions for you to take a seat. She will start a tape recorder so that there is no misunderstanding of what you say. The justice will ask you why you want a reopening while examining your paperwork.

If a reopening is granted, the original conviction and fine are struck and a new trial is given, normally at the same time.

Toronto Reopenings

In Toronto they have a "streamlined" process. Toronto takes your paperwork (and everyone else's) and delivers it to a justice for review. This eliminates your ability to convince the justice in person. What you write becomes paramount to your success since you do not appear before a justice, just your paperwork does.

After you affirm the affidavit, the court clerk will hand you a slip and tell you to call a number or go to the website after 48 hours to find out if your request has been allowed. In fact, it never takes less than two weeks.

If you call the automated system it will tell you almost nothing. First they will tell you how you can pay the fine. Next they will tell you again how you can pay the fine! Don't give up. Don't zero out. If you press "0" to speak to an operator, you will be put on hold for 20 minutes and then the system will hang up on you.

If you can find the prompt to punch in your offence number, the system will not tell you the status of your reopening. If the message states the fine was due on a date that has already passed it means your request has been either denied or has not been considered yet. If the message states your trial has not been scheduled then your reopening has been allowed.