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Ontario Highway Traffic Act

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153 In A 100 Zone (Highway 404 Southbound In Richmond Hill)
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PostPosted: Mon Apr 12, 2010 10:34 am 
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Here's the story. 3 weeks ago my father in law was driving home at around 4:00am from work. He was pulled over and the OPP Officer who is only 3 days on the job gave him a ticket of 153 in a 100 Zone, towed and impounded his car for 7 days and suspended his license for 7 days.

Here are the problems with this:
:arrow: My father in law admits to speeding, and knows exactly how fast he was going. He was doing between 118 and 120 kmph - he is dead set that he knows thats how fast he was going as he numerous times saw it on his speedometer

:arrow: The officer gave him 2 tickets, one for stunt driving and one for speeding. But she never signed any of the two tickets. When the tow truck driver was driving my father in law home, she called him and had him bring my father in law back to the scene where she signed the tickets in black pen

My father in law is a 50 year old man, i've been in the car with him countless times, he never drives at such ridiculous speeds and he knows exactly how fast he was going (118 to 120 kmph) - how could the officer have made such a HUGE mistake? This has caused him great stress, the loss of his vehicle and over 1000.00 in towing fee's, impound fees not to mention loss of work (he's self employed and relies on his van for work)

This officer admitted to being brand new only 3 days on the job, she forgot to sign both of his tickets (had to call him back to sign them) and clearly does not know how to use her radar gun. I have requested full disclosure from the Prosecutors office already about 3 weeks ago and they still have not replied ( I need to send a follow-up )

His court date is coming fast its in 1 month. Here are my questions:
1) What do we do on the court date if we still have no disclosure from the prosecutor office?
2) What should we do about this officers mistakes and inability to properly measure his speed?
3) What other advice can you guys offer for this situation? He can not afford to pay X-Copper, he called for a quote and it was too much money for him.

He's already lossed a lot of time, money and has huge stress over this entire situation. His car should have never been impounded and he should have got a speeding ticket for 20 over. This entire situation is madding and very stressful for him - please help with whatever advice you guys can.

Thank-you for this great website.


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PostPosted: Mon Apr 12, 2010 1:53 pm 
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What your father-in-law got is probably a summons, so that court date, which I'm assuming is in Newmarket, is only to set a trial date. Probably why you haven't received disclosure yet.


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PostPosted: Mon Apr 12, 2010 6:49 pm 
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He was given two summons, one for stunt and one for speed because of the Rayham decision. Most officers were writing both while that case was being decided. This way if the stunt was deemed unconstitutional they could always fall back on the speeding. One will be dropped, likely the speeding.

Anyway don't go this alone its a serious charge. Have him pay the money to be represented or at least get a deal to 49 over.


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PostPosted: Mon Apr 12, 2010 10:08 pm 
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Hmm....I'm concerned about your comment that because someone was 3 days on the job they can't do it properly...3 minutes after I was trained on RADAR I was able to use it properly and have never had a problem with, it's ridiculously simple to use...someone with 3 days on the job has a coach officer watching all their moves so request this officer's notes, info.

People always say the officer was using the radar wrong, but it's like saying that guy was using the light switch wrong...I could teach a ten year old to use in 30 minutes, though the official training is a little more detailed...

Not exactly sure about the signing of the summons, there is some case law on it, but it does change from time to time so def. consult with a pro on this point.

As for saying he never speeds that fast...well we've ALL found ourselves going 20-30 faster than we thought thru sheer inattentiveness...the mere fact that he had checked his speed earlier. Factor in that his speedometer may be off (not a defence)...

Police have historically given drivers 15-20 km/h to account for attention span, speedos etc, but the problem is that drivers know this and drive 120, using their goodwill buffer.

If the speed limit is 100, drive 100, if you drive 120, your speedo is off by 15 and you drift over by 15...voila, goodbye car / licence / good insurance rates.


Get a pro, this can be expensive. And tell him to slow down.


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PostPosted: Mon Apr 12, 2010 11:10 pm 
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Fear of lawsuits makes all speedos indicate a speed that is a bit lower than the actual speed. The faster you go, the more pronounced it gets. Some are pretty bad (when the speedo on my 95 Jetta is showing 130, I'm really doing 116-117, but when it's showing 60, I'm really doing 55) while others can be a bit tighter (a Kia Rio 5 that I've driven was off by 1-2 km/h at city street speeds and 4-5 at highway speeds).
And I wish all cops had my fellow firebug's tolerance.. Once I got nailed for going 5 over the limit and being uninformed at the time I just paid up, which resulted in a 20% rate hike (b/c I already had a 10km/h over ticket on my record).

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PostPosted: Tue Apr 13, 2010 5:32 am 
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You got a 5 over..... :shock:

I'll take that one to court on principle alone.

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PostPosted: Tue Apr 13, 2010 10:40 am 
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At the time I suffered from demerit disinformation syndrome.. I figured since it didn't involve demerit points, it wouldn't affect my insurance rates and also figured that it wouldn't be worth the special trip out to Sudbury to fight it (the constable was camping on the only road leading up to the campus, at 2am, at a time of the year when the court dates would come up smack in the middle of summer break).
Had I known what I know now, I would have taken it to court.

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153 In A 100 Zone (Highway 404 Southbound In Richmond Hill)
PostPosted: Tue Apr 13, 2010 11:36 am 
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Thanks guys for all your posts really appreciate it.

FyreStorm: I asked him (my father-in-law) many times, are you "sure" you were going no more than 120, then asked him are you "positive" - each time he replied, "yes I am sure, yes I am positive, I know exactly how fast I was going". He wouldn't lie to me, he's got nothing to gain or loose. I believe him hes not one to make up stories or lie. He admits to speeding but only by 20 over.

The officer was alone, there was no trainer or supervisor with her - she was the only one in the police car. I take your point about the RADAR Gun being simple to operate, but how can the reading be so far off? The reading is off by 34kmph which is too much.... I also know his speedometer works perfectly fine, when we got his car from the impound I followed him home, he was doing the speed limit exactly 60kmph I gauged this by looking at my own speedometer while following him.

So we know his speedometer works properly. I am at a loss with how / what could have caused such a mis-reading to happen. Any ideas what could have caused this?

Secondly, does anyone know about the issue of the officer not signing his tickets and then calling him back to sign them? At the very least it shows lack of due diligence how can we trust she operated the RADAR properly or that something else didn't interfere with it? Clearly something went wrong to get a reading of 154 when he was going max 120.

I don't understand this and would like to get to the bottom of it or at least better understand what could cause such a mistake.


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PostPosted: Tue Apr 13, 2010 2:00 pm 
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I wouldn't go into court against this charge without professional help. Shop around, see who seems the most professional and willing to tackle the case. The consequences of a conviction are quite steep, namely $2000 in fines and 6 demerit points, possible additional licence suspension and a huge insurance increase.

The thing is, Stunt Driving is a "strict liability" offence and the Ontario Court of Appeal has ruled that if your father-in-law can demonstrate he took all reasonable care to avoid going 50 km/h or more over the speed limit, he should win, particularly if he's adamant that he was driving 20 km/h over and not 54 over. In fact, Justice Doherty in the decision wrote that "pulling into the passing lane for a few seconds" would be a situation where a defendant could be found not guilty. So there's a chance. If nothing else, as cruzmisl indicated, there may be an opportunity for a plea-bargain.

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PostPosted: Wed Apr 14, 2010 3:58 pm 
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Thanks again for the pointers guys. Couple of questions.

1) Where can I read information about the info you guys mention? Specifically about the case which determines if this "stunt driving law" is constitutional or not, and as well about the decision relating to proving you were not "stunt driving" to beat that charge?

2) How is it possible that these 2 driving offenses for which he has not had a trial yet are already on his Drivers Abstract? I ordered a copy of his Drivers Abstract to prove he has a clean driving record and both of these charges (Speeding and Stunt Driving) are listed on his abstract. How is this possible?

Lastly, I don't see how this law can be considered constitutional. It allows any officer to suspend anyone's license and impound their car for 7 days with out any appeals process or right to a trial. How "can" this be considered constitutional? With this law in place its "guilty until proven innocent" and allows any officer to be "judge and jury" on the spot - as we can see in this case that's a horrible deplorable law which has cost my father-in-law a great amount of money and stress. I cant imagine that he's the only one who's fallen victim to this. I am referring strictly to the people who were "not" going 50km over the limit but were towed, suspended and impounded in the same way my father-in-law was.

Thanks for your continued support and information. I continue to try and understand this and make some sanity of an insane situation. :roll:


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PostPosted: Wed Apr 14, 2010 5:39 pm 
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Quote:
The officer was alone, there was no trainer or supervisor with her - she was the only one in the police car. I take your point about the RADAR Gun being simple to operate, but how can the reading be so far off? The reading is off by 34kmph which is too much.... I also know his speedometer works perfectly fine, when we got his car from the impound I followed him home, he was doing the speed limit exactly 60kmph I gauged this by looking at my own speedometer while following him.


In order to prove that the officer made a mistake, you'll have to gather a large amount of information. Weather conditions, road attributes, sources of interference, picture would work well here. Also, you will need a copy of the officers notes, disclosure is where you can get these. If the officer was using a LIDAR gun, there is the possibility of sweep error, google that to find info. You really can not build a case until you have the disclosure info.

I wonder how S.172 will hold up if an officer was proven to have made an error? Not throwing stones, cops are human.

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PostPosted: Wed Apr 14, 2010 6:10 pm 
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Thanks for your response
Reflections wrote:
I wonder how S.172 will hold up if an officer was proven to have made an error? Not throwing stones, cops are human.

Yes that's my biggest issue with this whole 172 thing. Even if an officer makes a mistake as she did not once, but twice in this case, people (namely my father-in-law) are still made to suffer huge financial loss and health with undo stress. Everything "fair" in this world needs to have "checks and balances" - given the nature of 172 there is nothing here to stop a rogue officer writing nonsense tickets in malice, and likewise there is nothing here to save you if the officer makes a mistake - either-way your car is taken, your license suspended and your forced to pay thousands of dollars. Its not right! How can anyone consider this constitutional? The only entity which should have power like this is a Court, not a brand new officer 3 days on the job or otherwise on the side of the road.

If anyone has answers to my questions 1 and 2 from my last post, i'd really appreciate it. Thanks again


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PostPosted: Wed Apr 14, 2010 8:54 pm 
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clyrrad wrote:
1) Where can I read information about the info you guys mention? Specifically about the case which determines if this "stunt driving law" is constitutional or not, and as well about the decision relating to proving you were not "stunt driving" to beat that charge?

2) How is it possible that these 2 driving offenses for which he has not had a trial yet are already on his Drivers Abstract? I ordered a copy of his Drivers Abstract to prove he has a clean driving record and both of these charges (Speeding and Stunt Driving) are listed on his abstract. How is this possible?


1. R. v. Raham, 2010. Click on the hyperlink for that case.

2. Don't know about that one, call MTO. A roadside licence suspension can be listed on the abstract as far as I know, but the speeding charge probably shouldn't be there.

As for the up-front penalties being constitutional or not, a roadside licence suspension would hold up as constitutional (has already been ruled as such in drunk driving cases with the ADLS), but the vehicle impoundment has not been thoroughly challenged as of yet. Personally, I think that unless the purpose is to prevent continuation of the offence (ie., drunk driving, drive suspended, drive without insurance, unsafe vehicle), the motorist should be allowed to continue on their way after the ticket is issued. But that's a different matter... Almost no one who gets stopped is going to resume driving exactly the same way they did beforehand...

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PostPosted: Wed Apr 14, 2010 10:53 pm 
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Quote:
given the nature of 172 there is nothing here to stop a rogue officer writing nonsense tickets in malice,


Already happened....OPP Mississauga, google it.

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PostPosted: Thu Apr 15, 2010 12:04 am 
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Quote:
Already happened....OPP Mississauga, google it.


And here's the fella:
Image
Quote:
The OPP is investigating whether a senior officer at the force's Port Credit detachment received kickbacks from tow-truck drivers after motorists had their vehicles impounded, according to towing companies interviewed by police.

http://www.thestar.com/news/ontario/article/645345

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