Wasn't wearing seatbelt, was delivering a pizza...

jsherk
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Re: Wasn't wearing seatbelt, was delivering a pizza...

Unread post by jsherk on

They may or may not have it ready at this meeting.

I you ask for it, they have to get it for you. If they have it ready then they will probably give it to you then. If they don't have it ready, they will have to get it.
+++ This is not legal advice, only my opinion +++


tryingtoimprove
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Unread post by tryingtoimprove on

jsherk wrote:Early Resolution is not a trial date so you don't need an adjournment.

When you get to meeting, the prosecutor may or may not offer you a plea deal. I would recommend you just say something like "I would like some time to review disclosure before I decide what to do." The prosecutor may have disclosure ready for you at the meeting or may have to set in motion the process to get it for you.

Most likely the prosecutor will also set the process in motion to set a trial date. Then usually when you show for your trial date you will have a chance to meet the prosecutor and if they previously offered you a plea deal they will probably still be willing to offer it to you again.

The problem with accepting a plea deal or pleading guilty before you see disclosure is that you do not really know what the evidence against you is, so it is better to review the disclosure first before you decide what to do.
I saw the justice today, I took your advice and mentioned I do not have sufficient time to prepare a defence.

He provided me my disclosure in printed form, which I will make the effort to retype here:

I was facing NB in lane 1 of Weber StN waiting for a red light at the intersection of Uni Ave E. I was several cars back of the stop line and perpendicular to the Weber St entrance to the Petro Canada gas station located at the SW corner of the intersection. To my left I observed a green toyota in SB lane 1 slow and make a right turn into gas station. From my vantage point at a range of approx 7m, I noticed the driver was not wearing a seat belt. I observed that the driver was wearing a white t shirt with a design on the front. I noticed that the chest portion of the t shirt was unobstructed by seatbelt straps, and as the car turned into the station I was also able to observe through the rear window, both straps of the seatbelt hanging parallel and vertical beside the drivers left shoulder and the buckle to the seatbelt was visible. There were no other motor vehicles in the SB direction and none in the left turn lane so my field of vision was unobstructed by any other car.

When safe to do so I made a left turn into the gas station parking lot and approached the car. I informed the driver of my reason of the stop, to which the driver made a spontaneous utterance that he was pretty sure he had buckled his seatbelt.

....Overcast at the time of the offence, roads were bare and dry. As I served the Offence notice I had the driver fasten his seatbelt to ensure its proper functionality. As the seatbelt was properly worn I noticed that the brown seatbelt strap was visible and interrupted the chest portion of the white t shirt that was being worn by the driver.




So what would be a good defence? I did honestly think I had my belt on!

What about something on the lines of " I took my belt off as I was pulling into the station, b/c I was feeling sick"..

?


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Unread post by UnluckyDuck on

I would suggest you not to lie in court. Perjury is a serious offense (Criminal) and frankly isn't worth losing a few points. It looks like the officer has a pretty air tight disclosure, mentioning your shirt colour, making you re-fasten your seat belt. I would honestly take any plea deal they offer.


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Unread post by screeech on

Great notes by the cop. Even if you do take the stand and say you took off the seat belt when you entered the gas station, the officer saw you on the highway without it on. 2 points if convicted...if they offer the seat belt inoperative deal, you may want to seriously consider that, 0 points.


rank
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Unread post by rank on

"I noticed the driver was not wearing a seat belt.......<snip>.... I informed the driver of my reason of the stop..."
I remember hearing a looong time ago that "seat belts" were "secondary offences" Anyone remember that? Did the law get changed? Maybe I'm dating myself.


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Unread post by Decatur on

What do you mean by a secondary offence?


bend
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Unread post by bend on

tryingtoimprove wrote: From my vantage point at a range of approx 7m, I noticed the driver was not wearing a seat belt. I observed that the driver was wearing a white t shirt with a design on the front. I noticed that the chest portion of the t shirt was unobstructed by seatbelt straps, and as the car turned into the station I was also able to observe through the rear window, both straps of the seatbelt hanging parallel and vertical beside the drivers left shoulder and the buckle to the seatbelt was visible.
screeech wrote:Great notes by the cop.
I'd second that. These are some of the best notes i've seen on this forum.


tryingtoimprove
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Unread post by tryingtoimprove on

bend wrote:
tryingtoimprove wrote: From my vantage point at a range of approx 7m, I noticed the driver was not wearing a seat belt. I observed that the driver was wearing a white t shirt with a design on the front. I noticed that the chest portion of the t shirt was unobstructed by seatbelt straps, and as the car turned into the station I was also able to observe through the rear window, both straps of the seatbelt hanging parallel and vertical beside the drivers left shoulder and the buckle to the seatbelt was visible.
screeech wrote:Great notes by the cop.
I'd second that. These are some of the best notes i've seen on this forum.
Ok so do I have any defence? Plead guilty to wearing a seatbelt?


screeech
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Unread post by screeech on

I do not think you do have a valid defence, that is why I say you should consider any deal the prosecutor is willing to give. Some prosecutors will let you plead to inoperative seat belt, and some won't.


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Unread post by screeech on

I have never heard of anything being a secondary offence. I am guessing you mean if the cops stop you for a primary type offence, then you can lay a secondary? in this case, that being the seat belt...if I am correct then, no, it is not a secondary offence, but then again, there are none in the HTA. I think the only secondary type thing in the HTA is secondary means of attachment, for trailers, which is also a primary type charge. Please correct me if I am wrong.


jsherk
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Unread post by jsherk on

There is always a defence! Whether you can win or not is another story.

If you take the stand and testify this will most likely make your case worse, so you probably don't want to do that.

The officers notes (which is what he will testify) are about as perfect as they could be, so you will have a hard time bringing reasonable doubt to them on cross-examination.

The one area you could attempt is cross-examination on officers independent recollection of the event. The other area is to show you were compelled to give your drivers license because the law requires you too, and that you did not give it voluntary and therefore the information used to create the ticket should not be admissable. Both of these methods require somebody with some good knowledge of how court/trial work and most people would not win with either of these techniques. Most likely taking a plea deal will be better for you.
+++ This is not legal advice, only my opinion +++


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Unread post by bend on

tryingtoimprove wrote:Ok so do I have any defence? Plead guilty to wearing a seatbelt?
It's hard enough to defend this charge with bad notes, let alone ones that are just shy of making note of what song you were listening to.

There's no harm in hearing an offer (if any) from the prosecutor, but I don't think i'd brush them off for a full blown trial.

Let's ignore the fact that you'd be lying when you say you were sick so you had to take off your belt. I don't even know how far that would get you even if you were telling the truth. That being said, the officers notes are so good that there's no mention of you being sick. He does however mention you were not exactly aware of your belt situation. Had you been sick and taken off your belt, it would have been brought up at the time and not several months later. While it's not an absolute liability offense, I don't believe the tummy ache defense is going to fly. Either you'd be sick enough to pull over and discontinue driving, or you'd be sick enough to drive to the nearest hospital.


bend
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Unread post by bend on

jsherk wrote:The one area you could attempt is cross-examination on officers independent recollection of the event. The other area is to show you were compelled to give your drivers license because the law requires you too, and that you did not give it voluntary and therefore the information used to create the ticket should not be admissable.
:roll:


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Unread post by argyll on

Agreed with the eye roll. You'd be laughed out of court trying you say that any identification should be thrown out of court because you were compelled to give your drivers license. Jsherk had given some good advice in the past but appears to be becoming more and more 'out there'. From counseling offers to counseling purgery to recommending a Supreme Court level Charter argument. Wow !
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


jsherk
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Unread post by jsherk on

bend wrote::roll:
argyll wrote:Agreed with the eye roll. You'd be laughed out of court trying you say that any identification should be thrown out of court because you were compelled to give your drivers license. Jsherk had given some good advice in the past but appears to be becoming more and more 'out there'. From counseling offers to counseling purgery to recommending a Supreme Court level Charter argument. Wow !
With regards to the purgery statement I addressed that in the other thread when I said: "It has not been my intention to offer any advice that is illegal or perceived as illegal. I will try to be more diligent in the future and consider my answers more carefully to avoid this."

Now the op asked for possible defenses, which I offered, none of which are illegal. And at the end of my advice I said: "Most likely taking a plea deal will be better for you."

So you may not like or agree with my opinion/advice about compelled evidence (which includes handing over driver's license), but it is valid. These are all cases that support compelled evidence being thrown out:
R. v. Slopek 1974 OJ No 826
R. v. Soules, 2011 ONCA 429
R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32
R. v. White, [1999] 2 SCR 417, 1999 SCC 689
R. v. Dick, 1947 CanLII 12 (ON CA)
R. v. Barrett, 1993 CanLII 3426 (ON CA)
R. v. Moore-McFarlane, 2001 ONCA
R. v. Sabri, 2002 ONCA
R. v. Panko, 2010 ONCA 660
Horvath v. The Queen, [1979] 2 SCR 376, 1979 CanLII 16 (SCC)
R. v. Hodgson, [1998] 2 SCR 449, 1998 SCC 798
R. v. Oickle, [2000] 2 SCR 3, 2000 SCC 38

Just a few excerpts:

Paragraph [90] of R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32
[90] This case concerns s. 24(2). However, it is important to note at the outset that the common law confessions rule, quite apart from s. 24(2), provides a significant safeguard against the improper use of a statement against its maker. Where a statement is made to a recognized person in authority, regardless of whether its maker is detained at the time, it is inadmissible unless the Crown can establish beyond a reasonable doubt that it was made voluntarily. Only if such a statement survives scrutiny under the confessions rule and is found to be voluntary, does the s. 24(2) remedy of exclusion arise. Most commonly, this will occur because of added protections under s. 10(b) of the Charter.

Paragraph [9] of R. v. Slopek 1974 OJ No 826
[9] It should be pointed out that this Court affirmed the judgment of Mr. Justice Addy only insofar as it held that a statement made by the driver at the scene of the accident with respect to his having the care, control or the car, was not automatically admissible by virtue of the statutory obligation imposed upon him, but that it was necessary to prove such statement was not otherwise involuntary. In giving judgment Jessup, J.A. speaking for the Court said: "I would dismiss the appeal on the sole ground that I am of the opinion that the existence of a statutory duty under section 233 of the Criminal Code does not dispense with the onus upon the Crown to establish a statement made pursuant to that section was not otherwise involuntary. I do not wish to be taken as accepting otherwise the reasons which Addy, J.'s judgment proceeded."

Paragraphs [40],[42],[43] of R. v. Soules, 2011 ONCA 429
[40] In Powers, the majority referred to Orbanski/Elias and held that White was determinative of the issue. That is, statutorily compelled statements were not admissible for any purpose including for the purpose of establishing reasonable grounds: Powers at para. 38. It is this portion of Powers that the Crown contends cannot be correct.
[42] I disagree. The Crown’s reliance on Thomsen and other like cases is misplaced, and for a very noteworthy reason: the questioning by police in those cases does not involve compelled answers. In each of them the motorist can refuse to answer if he or she chooses; they are not forcefully enlisted in aid of their own prosecution. For example, in the case of a breath demand made by a police officer pursuant to s. 254(5) of the Criminal Code, the motorist is legally obligated to comply with the demand; nevertheless, s. 7 continues to furnish him or her with the right to choose whether or not to speak with the police – a choice statutory compulsion clearly eradicates. There is absolutely no legal compulsion to speak or provide information in any of the cases cited.
[43] In the result, Powers was correct to hold that White was determinative of the issue. The statutorily compelled admission from Mr. Soules in our case is not admissible for the purpose of establishing grounds for making either the ASD or the breath demand. Indeed, as Iacobucci J. made clear in White at para. 70: "The protection afforded by the principle against self- incrimination doesnot vary based upon the relative importance of the self-incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement. Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter."




+++ This is not legal advice, only my opinion +++


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