So this is my situation:
Location: Durham Region, Westbound 401 On-Ramp
Ticketed by: OPP
Charge: Driver fail to wear seat belt assembly
Contrary to: Highway Traffic Act 106(1)
So that is what the law sees, driver, no seat belt, one prior conviction (speeding 60km in a 50km per hour zone).
Now for the details of the matter. In March 2010, I had a laproscopic surgery to install a weight loss device and fix a hiatial hernia (stomach herniated through diaphragm). During the procedure, there was a pierce of a nerve in my diaphragm leading to excruciating pain in my left shoulder. I am also still pretty severely overweight, although I am losing a little more each day!
Now, with the pain being in my left shoulder, it makes wearing a seat belt intolerably painful: the belt binds and compresses against the shoulder, and it feels like a knife twists in and out as it does. Also, I have pain where the implants are for the weight loss device: unfortunately, the pain is exactly where the belt crosses my stomach. Finally, due to my weight it is difficult to wear the belt at all, leading to even more pain from having everything tightly strapped.
These problems have existed since the surgery in March 2010. I was aware that there was a medical exemption for seat belt use, and spoke about that with a physician. However, neither myself nor the surgeon was aware of a certificate needed for exemption. Ignorance is a terrible thing.
So, I was ticketed by an OPP officer at 09:50 AM, who was pretty glib about it; he suggested that the prosecutor might take it easy on me if I asked him nicely. On that day, I was on my way to the burial of my grandmother's remains (she passed in August, but my family chose to hold onto the ashes until we were all mentally ready to let her go). Immediately after the burial, I went and spoke with my family doctor. On the spot, she issued me a medical exemption certificate, stating that due to the pain I've described, I am unable to use a seat belt. That certificate was issued at 12:21pm THE SAME DAY.
I am meeting with a prosecutor on Tuesday, October 18 (tomorrow). Here is what I am going to present:
1: The officer mentioned a medical certificate; thus, he must have imagined to some extent that a medical reason may exist
2: I realize NOW that, lacking a certificate, the officer had no other choice but to issue a ticket
3: The conditions that led to me not being able to use a seat belt were in place long before the ticket was issued or else:
4: My doctor wouldn't have issued the certificate immediately, based on my medical record and her knowledge of the problems I face.
5: Because of all of this, I am going to ask the prosecutor to drop the charges because:
6: The only thing I was guilty of was not having a certificate; this was due to my own ignorance, which true, isn't a defense but:
7: Had I known, as I do now, that I needed a certificate, I would have had one on me.
8: Thus, charges should be dropped as it reasonably assumed that the certificate would have been in place when the ticket was issued had I known I needed a certificate
I wanted to get people to weigh in on this strategy. Note that tomorrow is NOT my court date: I am opting to have a first appearance / meeting with the prosecutor BEFORE pleading anything. If the prosecutor is willing to drop charges, there is no need to plea.
I spoke with a lawyer, who suggested I follow this strategy. She said that there was no harm in asking the prosecutor, presenting the ticket and the certificate, and asking for them to consider the situation.
Should the prosecutor not drop the charges, I am going to retain counsel and pursue a trial option: while a lawyer is not cheap, I can't really afford the ticket either. I also can't afford the demerit points or increase in my insurance (I am a student, and OSAP isn't exactly a gravy train). I have a discounted lawyer available to me. One of the lawyers I spoke with also seems to think there is room for a discriminating suit in all of this; I don't want that! I just want my ticket dropped!
While I know now that I should have had the certificate on hand, does the fact that my doctor issued one based on conditions that existed before the ticket help mitigate, at least in a prosecutor's eyes, the situation enough to drop the case?
Any help or guidance is greatly appreciated. Ultimately, we won't know until the prosecutor makes a decision tomorrow. I don't have time to go to court, but I'll do what I have to. The officer clearly recognized there was medical problems, or else he wouldn't have even mentioned a certificate. Like I said, the only thing I am guilty of is ignorance to the requirement for a certificate...
Let us know how it went...
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca
http://www.OntarioTicket.com OR http://www.OHTA.ca
So, yeah, I met with the prosecutor today without representation. I presented the ticket, the certificate, and the situation. She withdrew all charges, no questions asked.
All in all, I'm pretty happy.
Also recommend during an annual check to get an updated certificate!
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca