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Re: Insecure load - open for discussion
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PostPosted: Thu Oct 06, 2016 9:24 am 
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Section 111(2) reads:
Proper loading (2) No person shall operate or permit to be operated upon a highway a motor vehicle that carries a load or draws a vehicle that carries a load unless the load is loaded, bound, secured, contained or covered so that no portion of the load may become dislodged or fall, leak, spill or blow from the vehicle.

There are two things to look at:

#1
So I read the section to say that the load must be LOADED or BOUND or SECURED or CONTAINED or COVERED. It does not have to be all those things, only one of those things. So you would fall under LOADED. That is good. It looks like the officers it was reported to him as insecure by another officer. This is hearsay evidence and should be objected to if the officer says this. However the officer himself says that "none were strapped". Now again, if the officer ONLY testifies that they were not strapped, you can argue that the statute does not require them to be strapped, only loaded.

#2
The next part says that it needs to be LOADED so that no portion "may become dislodged/fall or blow from vehicle".

So now the officers notes say he moved the doors around himself. And there is the photo evidence as well. If you asked the officer on the stand something like "do you think they could be dislodged from the vehicle or blow out of the vehicle?" what do you think he would answer? Most likely he would say "yes". So this is not good for you (PS- you would not want to actually ask the officer those questions). On the flip side, his comments that he moved them does not necessarily mean they would become dislodged or blow from vehicle. So if the officer only says that he moved them with his hand but does NOT say that they could become dislodged or blow out, then the prosecution has not proved their case.

If you take the witness stand, you should NOT lie and only tell the truth. Can you take the witness stand and honestly say that you believe "it was LOADED in a way that it would not dislodge or blow from vehicle." If you can honestly say this, then you may want to take the stand and testify. If you can not honestly say this, then you should NOT take the stand and NOT testify against yourself. Now if you did testify, would this be enough to convince a JP over the what the officer will say?

Personally I would take this to trial and I would listen very closely to what the officer says and how he answers prosecutors questions. If he does not specifically say the load could be "dislodged" or "fall" or "blow" out of the vehicle (officer MUST use one of those words), then the prosecution has not proved its case. If this is what happens, then when prosecutor is done asking questions and they ask if you want to cross-examine the officer, you can say
"Motion of Non-Suit"
"The prosecutor has failed to prove an element of the charge that any portion of the load could become dislodged or fall or blow from the vehicle."

Not a guaranteed win, but a possibility to consider.

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Re: Insecure load - open for discussion
PostPosted: Sat Oct 08, 2016 9:08 am 
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Based on the disclosure: if the prosecutor wants to proceed with the case, and the officer testifies that it is possible for one of those doors to come off the truck, then I don't see a very good outcome for you.


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Re: Insecure load - open for discussion
PostPosted: Sat Oct 08, 2016 10:12 am 
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#1 of course it is loaded...that is a non issue...the hearsay thing is not happening either...the charging officer will be the only prosecution witness and he will give his own direct evidence, the other cop just brought it to his attention...there would be no value to put that other cop on the stand...and if you did not get any disclosure about what the first officer saw or said, they won't be coming to court...again, the hearsay thing is out...
#2 the biggest point to the trial is if the load MAY become dislodged or fall...the officer will say he could easily move the load...so could it become dislodged? ya, quite likely, there were no straps to stop it from possibly being dislodged...if the OP does take the stand, sure he can have his say, however, he is now open to cross examination...any good prosecutor will get him to say that he infact did not stap down the load and therefore could become dislodged perhaps during some form of evasive movement or if in an accident...


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Re: Insecure load - open for discussion
PostPosted: Tue Oct 11, 2016 9:41 am 
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Thanks for the input thus far. A point was raised about the traffic sergeant that first made note of the load - I did not receive any disclosure notes from him however he is listed as a witness on the court disposition record. Can he act as a witness without any notes? Would the prosecution not have to provide me a "will say" statement if he did not have notes available?

Should I make another disclosure request for the initial officers notes?

thanks


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Re: Insecure load - open for discussion
PostPosted: Tue Oct 11, 2016 9:55 am 
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If they try to get the other officer to testify, you can object because they did not provide you with his notes.

But they really have no reason to get the other officer to testify. So I would not worry about it. If he does show up and they are calling him to testify then you have a good reason to object to it and that should get him excluded.

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Re: Insecure load - open for discussion
PostPosted: Tue Oct 11, 2016 10:42 pm 
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The law of physics that allows an airplane to take off is the same law that causes the lifting of flat objects in the back of a pick-up.
The air moves faster over the top surface than the bottom surface, thereby creating "lift".
That's why you often see drywall all over the road.
You must tie it down.


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Re: Insecure load - open for discussion
PostPosted: Thu Oct 20, 2016 10:05 am 
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So went to court. The morning was dedicated to the traffic tickets issued by those two officers during a traffic blitz. Mostly seat belt and cell phone type charges.

Met with the prosecutor first thing and he suggested that we adjourn the trial to another date so I can provide a letter saying I can attend on my friends behalf. I said I had that discussion when I picked up disclosure and was told that it would not be an issue. Whatever – might have worked to my benefit anyway. They did not have the officers schedule for 2017 so a date of December 8 was set to set a date in 2017.

Now what’s interesting is that it would appear the prosecution fully intended of having both officers as witnesses. At least this was the situation during the other cases I observed. Like I mentioned in a previous post, I did not receive disclosure from the one officer (sergeant). I overheard the officers and prosecution talking and the traffic sergeant in these cases is retiring at the end of the month. I am curious now how that works for those cases still before the courts where he is a witness. Does he still have to appear even though he is retired?

As well, there was a girl that showed up for her appearance. She had her disclosure request form and that was it. The prosecutor said she could adjourn or go to trial today. She said she would go to trial and took a seat. I spoke to her and advised her to take the adjournment otherwise she was going to sink herself by going to trial today. She went back up and got her adjournment. I briefly explained to her how the trials work and advised her to read up on this website. So here’s a shameless plug for ontariohighwaytrafficact.com.


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Re: Insecure load - open for discussion
PostPosted: Fri Oct 21, 2016 11:45 am 
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Good Morning riggyzomba,

A good starting point might be the NSC Standard 10.

http://www.cvse.ca/nacs/NSC_10_Cargo%20Securement.pdf

This standard does not apply to your friend, because he is not a commercial vehicle, but it does afford some guidance on the topic. If it's good enough for a tractor trailer, it should be good enough for your friend.

Key words in this standard are in Sections 3 and 5. It appears that the tailgate was up and in good working order (Section 3(1)(a)), and that the cargo did not interfere with the driver's ability to drive (3(1)(b)).

Section 5 is the sticky part. Section 5(2) states that the securement system should apply a downward force equal to 20% of the weight of the item. In the case of the doors, you would only need a small strap that was pushing down with marginal force. In reality, each door applied a force on the door below it, so TECHNICALLY only the top door was an issue.

Again, the argument that the officer has to make is that the load could blow from the vehicle. I can't possibly fall, leak, or spill. A door is not a piece of drywall, it's heavy and the liklihood of it blowing off of a truck, especially on the roadway you were on (PSL = 50 km/h? 60 km/h?) is probably small.

I hope that helps.


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Re: Insecure load - open for discussion
PostPosted: Fri Oct 21, 2016 2:21 pm 
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Good info!

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Re: Insecure load - open for discussion
PostPosted: Fri Oct 21, 2016 8:06 pm 
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The NSC (National Safety Code) wouldn't apply as the person was charged with insecure load, not insecure load-commercial motor vehicle...and yes, it is a commercial motor vehicle...


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Re: Insecure load - open for discussion
PostPosted: Fri Oct 21, 2016 8:49 pm 
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+1 to what screech said. By HTA definition, pickup trucks are a "commercial vehicle"


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Re: Insecure load - open for discussion
PostPosted: Sat Oct 22, 2016 10:13 am 
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In part: “commercial motor vehicle” means a motor vehicle having permanently attached thereto a truck or delivery body...People often argue that their pick up truck is not "commercial" as they use it for private use only...that belief is wrong...there are different definitions, rules and regulations for commercial motor vehicle depending on their registered gross weights, but they are all cmv's...


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Re: Insecure load - open for discussion
PostPosted: Tue Oct 25, 2016 8:58 am 
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Thanks for the link to the NSC - some interesting reading in there.
I am still pondering the one officer being retired. As he is mentioned in the disclosure notes, if he does not show up at trial time (because he will be retired by then) can I ask for the charge to be stayed as I would not have the opportunity to question him?


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Re: Insecure load - open for discussion
PostPosted: Tue Oct 25, 2016 1:20 pm 
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Yes

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Re: Insecure load - open for discussion
PostPosted: Tue Oct 25, 2016 4:18 pm 
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Retired officers still come to court...They still get paid to be there...It happens all the time...


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