Part of the strategy described on ticketcombat.com ( http://www.ticketcombat.com/step5/nonsuit.php ) is that most traffic charges in urban areas need a corresponding by-law. The example given is speeding in a community safety zone. In that case, it's quite clearly stated in the highway traffic act that a by-law is required:
214.1 (1) The council of a municipality may by by-law designate a part of a highway under its jurisdiction as a community safety zone if, in the councils opinion, public safety is of special concern on that part of the highway. 1998, c. 6, s. 1.
In my case, the charge was failing to obey a (no u-turn) traffic sign (182.2). That regulation, as far as I can see, makes no mention of requiring a by-law. Should I still propose a Motion of Non-Suit if I don't get a by-law in the disclosure?
I'm asking because ticketcombat.com says that "almost any traffic charge in urban areas, especially parking infractions [require a by-law]. In all these cases, you are being charged based on a by-law regulating traffic (speed, turns, construction zones, stop signs, etc.)".
If there is a sign, then there should be a by-law creating the no u-turn area. The exception is the general HTA provision for u-turns s. 143.painkiller wrote:In my case, the charge was failing to obey a (no u-turn) traffic sign (182.2). That regulation, as far as I can see, makes no mention of requiring a by-law. Should I still propose a Motion of Non-Suit if I don't get a by-law in the disclosure?
So where is the requirement for the by-law?
Beware the pre-trial trap! Just before court commences everyone sees the prosecutor to tell her how they are going to plead (guilty/not guilty). At that point the prosecutor may say something like "Oh, this is for you", and she will attempt to hand you some papers. It's the by-law and she's trying to give you disclosure. Don't accept it. You can't argue you didn't get disclosure if you are holding it in your hand!
Thanks for the response. However, to my non-paralegal eye, this seems to say that municipalities are allowed to create by-laws for signs, not that by-laws are required for the sign to be valid...?
(2) A single-tier municipality may pass by-laws respecting the following matters:
10. Structures, including fences and signs.
27. (1) Except as otherwise provided in this Act, a municipality may pass by-laws in respect of a highway only if it has jurisdiction over the highway. 2001, c. 25, s. 27 (1).
Thanks for the warning about the pre-trial trap, too!
ticketcombat wrote:Beware the pre-trial trap! Just before court commences everyone sees the prosecutor to tell her how they are going to plead (guilty/not guilty). At that point the prosecutor may say something like "Oh, this is for you", and she will attempt to hand you some papers. It's the by-law and she's trying to give you disclosure. Don't accept it. You can't argue you didn't get disclosure if you are holding it in your hand!
Question, But if you don't accept disclosure, then wouldn't the prosecutor tell the court that you chose not to accept disclosure when presented to you?? And will procecutor present disclosure during a non trial meeting (On date of trial setting)? Do we accept it then?
I'm resurrecting the dead because I had the same question and just found the answer from one of ticketcombat's posts. The crown cannot not serve disclosure at the last minute:
Second,in R. v. Egger,  (2 S.C.R. 451), the Supreme Court stated "disclosure must be made early enough to leave the accused enough time to take any steps that may affect that right..." In other words, you can't simply disclose at the last minute.
In R. v. Stinchcombe,  (3 S.C.R. 326), the Supreme Court stated that the element of surprise had no place in modern trials since "acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met."
I tried this defence and lost. I argued that contrary to HTA 137(a) the town had not passed a by-law authorizing the erection of the stop sign that I had been charged with failing to stop for. The Justice asked me how I knew this and I explained how my town had a website were you could review by-laws passed by council. Then she asked me for proof. This tripped me up somewhat, since I thought that the burden of proof would be on the crown. I asked the Justice how I could possibly prove the non-existence of a by-law. She said she couldn't say, but that I would have to provide her with something.
I should have gone to court better prepared. I should have found a non-existent by-law and got a certified copy of it to prove it's non-existence. This was my first time in a court room and I honestly felt like I was trapped in a Kafka novel.
Quite unfortunately, you could not prove that there was no by-law. However, this is not your responsibility. The crown MUST provide a copy of the bylaw that made the placement of the sign possible. Otherwise the ticket should result in "no charge".
You may want to file an appeal here, due to mistrial.
"The hardest thing to explain is the obvious"
www.OHTA.ca & www.OntarioHighwayTrafficAct.com
I'm not sure I am capable of handling an appeal myself. I didn't conduct myself too well in court due to my inexperience. And I have read several members here post that an defendant should hire a professional to appeal a decision. That simply isn't an option for me right now.
I will give some thought about appealing, but I feel that I would first need to find some case law that proves the crown is required to provide a by-law. The Justice and the prosecutor in my case conferred with one another and agreed that the crown was under no such obligation.
OK, I've spent some time with the HTA and POA and I can't find any mention of the crown being required to provide a by-law for moving violations. I think that whoever though up this strategy might have it confused with with the requirement for a by-law in respect to parking violations:http://www.e-laws.gov.on.ca/html/statut ... .htm#s17s5
A certificate of parking infraction issued for an infraction under a by-law of a municipality is not insufficient or irregular by reason only that it does not identify the by-law that creates the offence if the notice of trial given to the defendant identifies the by-law. 1992, c. 20, s. 1 (1).
I would love to be wrong about this.
Not saying this will help in any way...
Recently, there was a case in a neighbourhood in Ottawa where a man was really peeved at people speeding down his street, so he created two STOP signs that looked identical to real stop signs. He placed them at an intersection, so motorists were slowing down dramatically and stopping there, but the city of Ottawa had not, at any point, passed any by-law or made any attempt to put the signs up. (They did later, though.) I think that was reported in the Ottawa Citizen but I haven't looked it up yet.
There is some case law out there that the existence of the sign is prima facie evidence of the existence of the by-law, but that example is a good reason why it should not be sufficient. (That's not legal advice, it's just my opinion.) What if a cop saw someone do a rolling stop at the stop sign that was not put in place by the city, but instead by Mr. Goodie Two Shoes, and ticketed him for it? Police officers don't keep track of the little nuances and motions of city council, so how would the officer or the defendant know the sign was bogus if it looked exactly like a real stop sign? New signs pop up all the time. In that case, if the defendant got charged, he'd probably get convicted, based upon disobeying a sign that was illegally placed by some well-intentioned but very self-righteous and brain-dead individual.
My argument would be, based upon that real-life example, the only way to know that, in fact, the sign itself was legitimate and not placed by some random individual, is the existence of the by-law, which the Crown failed to provide during disclosure or at trial. Oh, another thing... while we're at it, the way we're supposed to differentiate between "legit" and "fake" signs is legit signs are compliant with O. Reg 615... strangely enough, that stop sign WAS just as it was supposed to be, according to O. Reg 615, except it didn't have the by-law. It may be something to think about... but I'm not really sure that angle will work in court, unfortunately. I'll see if I can find some case law...
If I file an appeal, can I drop it before it goes to court if I change my mind? I'm not sure I should be fighting this, as I have more pressing things in my life to deal with right now. But I'm getting hooked on this. I'd like to keep my options open on fighting this.
I just learned how much it cost to file an appeal. Forget it, no way.
pinch wrote:I just learned how much it cost to file an appeal. Forget it, no way.
How much does it cost?
From TC's website:
The cost of the transcript depends on how long your trial was. The longer it took, the greater the amount to be transcribed. You will be asked to pay a nominal $25 deposit to start the process. When the reporter examines the recording, she will provide an estimate that you will have to pay. It will cost a minimum of $60 to upwards of several hundred dollars. When the transcript is ready, you will likely be charged a final settlement amount if it was higher than expected. This is on top of the fine you've already paid to start the appeal process.
The key point is, this is on top of the original fine you have to pay. I'll grant that this does not seem like much to many, but I'm unemployed and am facing the prospect of bankruptcy soon unless I can turn things around. I want to be very responsible with my expenditures in case I have to file. That way, the bankruptcy court will be more willing to discharge me sooner, so I can get on with my life.
The Justice reduced my fine from $85 to $60. She asked me if I had any problem with paying the $85. I said no, no problem. Then she asked me if I was employed. ?(':shock:') What, am I wearing a sign or something? "Well... no" I said. So she reduced it to $60. Cool, that reduction pretty much pays for the victim's surcharge. All in all, it wasn't a bad experience. Normally I would have just bent over and taken the charge. But I read TC's website and decided to fight. I had my fist court experience, learned a lot, and still managed to pay less on a guilty conviction than what I would have normally had to pay.
Here's the article that Radar Identified is referring to (its no longer on the Ottawa Citizen website):
OTTAWA - McKellar Park residents, tired of drivers using Windermere Avenue as a shortcut, have been benefiting from fake stop signs at a key intersection for nearly a year.
In July someone installed three stop signs at the T-intersection of Windermere and Crossfield avenues. They were identical to authentic City of Ottawa stop signs and the culprit painted the road with the standard white lines to match.
The plan went off without a hitch until an alert crew of city workers noticed the signs werent set in concrete, the way official stop signs are. And so last week, the city took them down.
The intersection is on the eastern side of McKellar Park. Residents say drivers looking for quick passage from Carling Avenue north to Richmond Road zoom down Windermere, right by the park.
The move has angered residents. Catherine Adam, who lives on Windermere, notes that the city provides recreational activities in McKellar Park, but wont take steps to protect the children entering the park.
"Its a tragedy waiting to happen," she said.
"Cars often will race along here at 70 to 80 kilometres an hour," said another resident, Chris McKillop.
"If theres any place in the world that deserves a stop sign its right there," said Geoff Wright, adding that kids from nearby Nepean High School often use that intersection to get to the park.
Residents kept mum about who they thought put up the signs. Kitchissippi Councillor Christine Leadman supports a stop sign for the area, but, contrary to rumours relayed by some residents, she says did not have a hand in supplying the illicit signs.
She recently sent an e-mail explaining that illegal, improperly installed signs could fly off in an accident or bad weather and hit someone, or the installer could damage wires or pipes in the ground, leaving him or her on the hook for costs.
A criminal investigation is under way, searching for the perpetrator. Violators of the citys various bylaws governing signage face fines of $5,000 per infraction.
It is also possible ÃƒÂ¢Ã‚â‚¬Ã‚â€ though unlikely ÃƒÂ¢Ã‚â‚¬Ã‚â€ that the perpetrator would be charged with public mischief, which, at its extreme, carries a penalty of five years in jail.
Residents on Windermere are not alone in feeling neglected by the city. A Barrhaven resident recently spent $300 of his own money on signs reminding motorists to avoid rolling stops. Added to existing stop signs, his notices fell afoul of a bylaw meant to keep views at intersections from being obstructed and the city ordered them taken down.
In October, residents of Grenfell Crescent in Nepean staged a demonstration to discourage commuters from using it as a shortcut.
Since 2003, Ottawa police say theyve been treating traffic enforcement as a top priority, adding 18 officers to the traffic section and cracking down on particular offences on a monthly schedule: This past May, stop-sign violations were the theme; this month its impaired driving; in July, it will be pedestrian safety.
While councillors have input, the citys traffic department has final say about where to put signs. A study two years ago showed the traffic on Windermere didnt warrant stop signs, but another study is under way.
"There has to be recognition that these communities are now having to cope with more and more traffic," Leadman said, pledging to fight for a legal set of stop signs. "Ive certainly let (the citys traffic) staff know my position on this issue."
With the departments approval, new signs could be up in a matter of weeks. Otherwise Leadman will have to take the matter to a council committee for a vote ordering the signs be erected, but she said new staff at the traffic department had "really taken the community needs into consideration."
Viewing this intersection on Google Street View it seems that this intersection is well deserving of at least one stop sign. Looking at the signs, I'm wondering if the neighborhood installer "borrowed" these signs from another location!
Has anyone here successfully used the by-law argument in court for a stop sign yet?
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