SUMMONS TO DEFENDANT to attend Plea Hearing scheduled August 15, 2012

Received SUMMONS TO DEFENDANT (Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1, s.6(2)(a)(i))) FORM 3, Dated July 18, 2012, regarding ticket G281802 Not wearing a helmet in the Park.

Judge Mary Jane Richards did issue a SUMMONS TO DEFENDANT (Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1, s.6(2)(a)(i))) FORM 3, Dated July 18, 2012, regarding ticket G281802 before the first hearing of the subject helmet Bylaw matter, set-down as August 15, 2012, according to that same SUMMONS TO DEFENDANT.

Since the accused defendant did not fail to appear at a time and place fixed by a judge for trial or for the resumption of a trial that has been adjourned and the proceedings were supposed to be commenced by the filing of a notice of prosecution Judge Mary Jane Richards did not have the jurisdiction to issue a SUMMONS TO DEFENDANT, at the time of issue and under those circumstances.

A Judge only gains the jurisdiction to issue a SUMMONS TO DEFENDANT according to section 29(2) with the heading “Failure To Appear” of Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1 after the Defendant fails to appear at the scheduled first hearing, the Date of the first hearing being written on the Notice of Prosecution in prescribed form, as stated in the Act. Since the proceedings should have been commenced by the filing of a notice of prosecution, only after the failure to appear of the defendant can the Judge issue a SUMMONS TO DEFENDANT according to section 6(2) of the Act, not before.

Link to Document:

http://www.scribd.com/doc/107112857/SUMMONS-TO-DEFENDANT-Provincial-Offences-Procedure-Act-S-N-B-1987-c-P-22-1-s-6-2-a-i-FORM-3-Dated-July-18-2012-regarding-ticket-G281802

 Relevant sections of Act:

(Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1) 

Stable link to this version: http://canlii.ca/t/51vgm

Failure To Appear

29(1.1)If a defendant does not appear at a time and place fixed by a judge for trial or for the resumption of a trial that has been adjourned and the proceedings were commenced by the filing of a notice of prosecution, the judge shall,

(a)on motion by the prosecutor, convict the defendant and impose a fine in the amount of the fixed penalty set out in the ticket to which the notice of prosecution corresponds if it appears to the judge that it would not be contrary to the interest of justice to do so, or

(b)on motion by the prosecutor, proceed immediately to try the defendant in the defendant’s absence.

29(1.2)If a motion by a prosecutor under paragraph (1.1)(a) is refused, the prosecutor is not prevented from making a motion under paragraph (1.1)(b) immediately after the refusal.

29(2)If the prosecutor does not make a motion under subsection (1) or (1.1) or a motion made by him or her under paragraph (1.1)(a) is refused and he or she does not make a motion under paragraph (1.1)(b) immediately after the refusal, the judge shall adjourn the proceedings and may

(a)issue a summons in prescribed form, or

(b)issue a warrant in prescribed form for the arrest of the defendant if the judge is satisfied that it is necessary in the public interest or in the interest of the proper administration of justice to do so.

6(2)Where the judge considers that the defendant should be required to answer to the charge, the judge shall

(a)if no appearance notice has been served,

(i)issue a summons in prescribed form; or

(ii)issue a warrant in prescribed form for the arrest of the defendant if the judge considers that it is necessary in the public interest or in the interest of the proper administration of justice to do so; or