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PostPosted: Mon Jan 25, 2010 7:53 pm 

Joined: Fri Dec 11, 2009 2:12 pm
Posts: 15
Location: Belleville, ON
I'm going to repost in this thread....

Offence Descriptions and Testimony

As an example, being charged under OHTA 136 (1) (a) "Stop at Through Highway":

The ticket specifies the offence as "Disobey Stop Sign - Fail to Stop"

1) Where are these official offence descriptions specified?

Ticket states the Contrary To as "Highway Traffic Act, section 136(1)(a)"

2) How do I know the offence description properly relates to the "Contrary To" section.

3) What does the Prosecution have to prove (in this case)?
The officer's written statement describes location of a stop sign, but states only "The vehicle did not stop at the sign and proceeded across..."

He then describes issuing the ticket, specifying the offence as per above

Is this sufficient proof of the offense, or does he specifically have to state his observations per the description of 136 (1) (a).
I.E. Did not stop at marked stop line, or before entering intersection,...?

PostPosted: Mon Jan 25, 2010 9:38 pm 
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Joined: Tue Apr 22, 2008 7:21 am
Posts: 2933
Location: In YOUR rearview mirror!
there is a list of "set fines" that officers have to follow, along with the "set fine" is a "short form wording" which is pretty much standard, however the officer does not have to use the "short form wording" but 99% of the time it is used.

set fines are listed on the "ontario court of justice" website on set fines.

The important part is that the set fine for the section indicated is correct.

If the short form wording is not so easy to understand, I will add an extra word or two in....the wording/description is just that, to let the person know what the offence was. The section indicates what section of whatever act was violated.

what evidence required all depends on what offence, what the officer thinks they need to prove the offence beyond a reasonable doubt. Sometimes the crown wants more and withdraws the offence notice in court, the officer then learns and will gather more in the future. Or if it goes to trial the officer might learn that a certain point is missing and the charge be dismissed, however the officer will not make that same mistake on that offence again.

Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca

PostPosted: Wed Jan 27, 2010 4:10 am 

Joined: Fri Dec 11, 2009 2:12 pm
Posts: 15
Location: Belleville, ON
Hi hwybear,

Thanks for your views in this thread.

In the end the charge was withdrawn.

After cross examination I moved the charges be dropped, based on being charged with the wrong infraction - should have been under HTA 163 and not 136. I originally thought the officer had to write it under 163 (1) (a) because the By-Law that established the STOP Sign had put it under the "Stop Signs at Intersections" schedule, but I'm thinking now that he would not have known that (or that it would matter anyway).

The JP went through the definition of intersection / hence highway / hence vehicle and concluded the description was too broad. I think she was just going through the determination that a railway crossing is not an intersection, as you had mentioned earlier.

It was challenging as I had prepared my case without fully considering how restricted you are in cross examination. I had a lot of information to get out regarding non-compliance, by-laws, etc, but found I couldn't bring any of that out.

The JP was extremely helpful, given that she had established this was my first go in court, but had to caution me a number of times about not presenting evidence during cross-examination. She said she was being tolerant as this was the only case on the docket that morning.

I was getting a sinking feeling as I couldn't see where I would be able to present my evidence, or get concurrence on items needed to be established for a "due diligence" defence.

The situation was compounded as she had stated from the beginning that if I was acting as agent, there would be difficulty in me trying to present evidence later. You can either act as agent and have the defendant testify (didn't want her testifying, as she was of the attitude"but I'm guilty - I did go through that stop"!), or you can act as witness,...not both.

I'm not sure how this works when you defend yourself...I guess you are allowed to testify and present evidence on your own.

As I had gathered all the evidence myself, this left me in a bad situation.

Here's a few pointers I picked up, for others to consider:

Even though the crown had not yet responded to my second disclosure request, the JP determined this was not grounds for adjournment (even though the period from notice of trial, to the trial was 26 days).
I stated the crown had provided officer statement, "censored" copy of officer notebook pages re the occurrence, and copy of both sides of ticket. JP asked"well what else did you want?" I said that was what a full disclosure would reveal. JP said I couldn't go on a fishing expedition, but she would consider situation if further evidence was presented by crown.

The crown had not provide in disclosure the By-Law that established the STOP Sign, and this was not considered sufficient grounds for a Stay , or Adjournment. There was comment that if the sign existed it was presumed to be legitimate, unless proven differently by defendant

Was not allowed to use Google maps printout of location (wanted to establish distances and location of officer).
With a few exceptions was not allowed to use photos I had taken of the location (crown had to review and accept any photos I wanted to present). JP allowed a couple based on discussion of my reason.
Now this was during X-exam, but I got the impression it would have been difficult even later, esp. with me as Agent.

Strictly speaking, you can only discuss matters directly relating to the details of the evidence presented by the crown (in this case the officer's testimony). If the officer talked about sign "a", you cannot discuss sign "b", unless it directly relates to sign "a" (how far is sign "b" from sign "a"?).
Some latitude is given in traffic court on the range of discussion, but the prosecutor may (and will) object, and also the JP will decide what's relevant and allowed.
The court doesn't look kindly on you getting the witness to repeat favourable testimony for emphasis.
Be careful what you ask. In the case of trying to establish distances, if you ask the witness to estimate, he may be way off, and that could contradict what you will state later. Once a statement is made, it's "out there"!

One critical point of defence was establishing distance from intersection to STOP Sign (ie beyond maximum allowed in HTA), but how do you gather this evidence in a fashion that is admissible? The municipality did not have a survey map with enough detail (or couldn't find one), and I had gone and measured myself, and had plotted on top a Google map. JP said they wouldn't admit Google maps into evidence. We never got to that point but I think it would have been a hard sell to present it.
I'm not sure how well measurements you state you made yourself would be received by the court. You might have to get a witness, like a city or municipal engineer to measure and testify.

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