153 In A 100 Zone (Highway 404 Southbound In Richmond Hill)

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Decatur
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Re: 11B Victory, How To Remove Record From Drivers Abstract?

Unread post by Decatur on

I'm not quite sure why they would use the term "police privilege', when in fact the police have nothing to do with adding or removing anything from a driving abstract. That's all done by the MTO. I'd start with calling them.


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Unread post by Decatur on

"Did you know the Prosecutor is not a lawyer? He/She is a regular person like you or me with just as much training – so don't think your in there fighting some lawyer with a law degree, your not, the prosecutor is a civilian like you and me!"

This may differ from jurisdiction to jurisdiction. All prosecutors for our area are lawyers.


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Unread post by Stanton on

Decatur wrote:I'm not quite sure why they would use the term "police privilege', when in fact the police have nothing to do with adding or removing anything from a driving abstract. That's all done by the MTO. I'd start with calling them.
I think they may be referring to the fact that such suspensions are added at the request of the police. There are methods in place for police revoking such requests, but that would be typically if the suspension was issued in error (i.e. cases of impersonation). While the MTO would remove the record, it would have to be at the request of the police. I'm not aware of any set process to make such a request. I'm assuming each matter would be dealt with on a case by case basis by the Police service. I'd suggest writing a polite letter to the detachment commander seeking their assistance and asking how to proceed.


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Simon Borys
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Unread post by Simon Borys on

Well done on preparing and arguing the 11(b). I’d just make a couple of points:

1) The stunt driving legislation and the seizure powers are not actually unconstitutional, as you suggested.
2) It should only be the record of the suspension that is on your record, not the record of the charges, since you were never convicted. The suspension itself should not affect your insurance rates for the same reason that a 90 day ADLS suspension does not – because the facts supporting it have not been proven. There is a bulletin on this from the FSCO. I wrote about it in this post here: http://www.simonborys.ca/2010/06/new-ro ... explained/
3) It’s actually not always the case that the prosecutor is not a lawyer – some of them are lawyers, or at the very least have paralegal training.
4) You did a great job on arguing the 11(b) before entering a plea!
5) You also did a great job articulating the prejudice that goes along with the delay in bringing the matter to trial. That is one of the essential components to arguing an 11(b) and one that most untrained people don’t do. Again, well done!
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Unread post by clyrrad on

Thanks guys for all your feedback and suggestions its really appreciated.

Simon Borys thanks very much for that link to the article you wrote on your site, I read it in its entirety and found it very helpful. Thanks also to your points 1-5 above. I'd like to respond to a couple if I may.

1) As I see it, and I am sure a great many other Canadians do, a road side suspension with out a trial is infact a direct violation of Section 11 (d) of the Charter. I know the law as it stands now does not stand behind that, but in my opinion, if you look at it fairly and impartially then its a clear violation of this Charter. I mean seriously, how much sense does it make that your presumed innocent of murdering a person, but your not presumed innocent if you drive your car 50km over the limit... it just makes no sense. You go out and kill someone your innocent until proven guilty, you go out and speed in your car and your guilty until proven innocent. I am sorry, but that is just crazy backwards mentality in my view. I actually eluded to section 11 (d) while I was prepare the 11 (b) motion for my father-in-law. I use it to try and add more momentum to his "unconstitutional" argument.

2) Thanks very much for that article you posted its very helpful. What particularly drew my attention was the "insurance companies cannot use an Administrative Driver’s Licence Suspension (ADLS)" part of your post.... If the insurance companies are not allowed to use this, do you have any idea why my father-in-laws premiums have been raised? His insurance company specifically told him they raised his premium because of this. How can this be the case? What should his next step be to have this corrected if his insurance company is telling him they raised his premium based on this?

Finally, could I please clarify... am I understanding you guys correctly that there is no possible way to have this removed from his drives abstract now? If so, when is it automatically removed from his record, and what should he be doing with his insurance company to get his rates back to what they are supposed to be?

Thanks again you guys are great!


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Unread post by Simon Borys on

I'm not clear on whether there is a conviction on his record or just a notation about the fact that he was suspended. If there is a record for conviction and he hasn't been convicted, then that is a mistake and should be able to be rectified. I don't know who you'd talk to for that. Someone at the MTO, I imagine.

If the record is just about the suspension then that's fine to be on his record, because, as I said in my article, insurance companies aren't supposed to use things like that (that haven't been proven), in calculating your risk category. If they are, I would contact them and direct them to the FSCO bulletin. As I said, it does reference ADLS suspension and not roadside suspensions for speeding, but the principle is the same.
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Unread post by Radar Identified on

If the insurance company still keeps his rates up, point them to the bulletin issued by FSCO. If they still refuse, ask them if they would like to deal with FSCO; if they still refuse, file a complaint with FSCO and let them deal with it, or, better yet, simply change insurance companies.
clyrrad wrote:You go out and kill someone your innocent until proven guilty, you go out and speed in your car and your guilty until proven innocent.
Well actually, as you know, you can get arrested and detained, and then you are held for a bail hearing. You can be imprisoned until your case is brought to trial, even if you are found not guilty in the end. You do not get a criminal record per se, but there is a good chance that you would lose your job, house, etc., during that time period.

We've been through this debate before, though. I don't have a problem with a relatively short roadside licence suspension if the purpose is to get a driver off the road immediately, and where continuing to operate would pose a threat to public safety (impaired driver, etc). As for seizure and impoundment, I still have an issue with it, unless it is where the vehicle is not roadworthy or insured, or the driver is suspended or disqualified. It's an access-of-property issue, but, again, the courts have had their say.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
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Unread post by clyrrad on

Radar Identified, thanks for your post and I take your point with respect to being held pending a bail hearing however we are comparing apples to oranges. With a murder or criminal trial there is an elevated risk of flight so I can understand a person being detained under that scenario, however in this particular case there is no real risk of flight. Suspending a persons licence does not mean they cant or wont drive even if you do impound the vehicle so why have it guilty until proven innocent? While I agree with you the court has had their say and it is what it is, its my position that this law is still unconstitutional as is the seizure of property.

Simon Borys, i've got some clarification from his insurance company. I asked them to fax me a copy of the Drivers Abstract they are using to raise his premimums and here is whats written on it.
25/03/2010 REINST - SUSP. EXPIRED OR RECINDED SUSPENSION NO. XXXXXXX
18/03/2010 SUSPENDED UNTIL 03:50 AM ON MAR 25, 2010, RACING CONTEST OR STUNT - ADMINISTRATIVE SUSPENSION SUSPENSION NO. XXXXXXX

Does that help clarify matters? Should the "Stunt" part not be removed given the charges were stayed? Or is it still true that they are not allowed to raise his premiums even with this on his abstract?

Many thanks guys


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Unread post by Stanton on

That's the normal record of suspension which appears on an abstract. It doesn't get removed even if the charges are stayed.

The suspension record is still just an administrative one (i.e. not the result of a conviction) so therefore should be excluded by your insurance provider.

Here's the actual link to the bulletin Simon is referring to: http://www.fsco.gov.on.ca/en/auto/autob ... 04_06.aspx

It's over 5 years old, but I don't see any newer bulletins relevant to this matter that indicate a change in policy.


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Unread post by Simon Borys on

As it says on your printout, it is an ADMINISTRATIVE suspension, which is why I think it is covered by the FSCO bulletin.
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Unread post by jayjonbeach on

clyrrad wrote:VICTORY! Guys we won!!! We beat both the Speeding & Stunt Driving charges got them both 'stayed' - in order to say thanks and contribute back to these forums for all the help we were given, i've posted this thread http://www.ontariohighwaytrafficact.com/topic3722.html explaining the entire process and how we were able to win.

Thank-you all so very much and thanks for these amazing forums!

First off HUGE congrats for getting off this ridiculous charge (I agree having car towed unless actually racing or drinking is a breach of rights)

This is a VERY helpful thread overall thanks for updating it.

Could someone in ADMIN answer why the link above with more helpful info does not work???

Seems it would be also be a very helpful post and something the OP wanted to share with people.


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Unread post by Stanton on

I'm not an admin, but I believe his other post was simply merged into this one, so all the information would be in one place. I think all the info is on page 3 of this thread.


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Unread post by hwybear on

Stanton wrote:I'm not an admin, but I believe his other post was simply merged into this one, so all the information would be in one place. I think all the info is on page 3 of this thread.
B I N G O!
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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Unread post by Stanton on

hwybear wrote:
B I N G O!
Sweet! What have I won?


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Unread post by clyrrad on

jayjonbeach wrote:
clyrrad wrote:VICTORY! Guys we won!!! We beat both the Speeding & Stunt Driving charges got them both 'stayed' - in order to say thanks and contribute back to these forums for all the help we were given, i've posted this thread http://www.ontariohighwaytrafficact.com/topic3722.html explaining the entire process and how we were able to win.

Thank-you all so very much and thanks for these amazing forums!

First off HUGE congrats for getting off this ridiculous charge (I agree having car towed unless actually racing or drinking is a breach of rights)

This is a VERY helpful thread overall thanks for updating it.

Could someone in ADMIN answer why the link above with more helpful info does not work???

Seems it would be also be a very helpful post and something the OP wanted to share with people.
Many thanks jayjonbeach, yes I can confirm my posts were merged by an ADMIN into this thread, I posted them in the different spots initially as I thought it would be more helpful to people, but I am not an ADMIN so I must go with the flow. I tried to detail as much of the process as I could 11B's are alot of work, but I was able to save my father-in-law alot of grief with the 11B application. Thanks for your post.






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