Defending Charge HTA 182 (2) ÃƒÂ¢Ã‚â‚¬Ã‚Å“Disobey a SignÃƒÂ¢Ã‚â‚¬Ã‚Â A Case Study
Last October at 8am on a Friday turned right from S/B Victoria Park Ave to Sloane Ave W/B. Turns are prohibited from 7 am To 9 am. Mon to Fri. There is a bus stop S/B (with a separate curb lane that accommodates right turning vehicles to Sloane and buses discharging passengers. Two signs are posted, one on the north side and one on the South side of the ÃƒÂ¢Ã‚â‚¬Ã‚ÂTÃƒÂ¢Ã‚â‚¬Ã‚Â intersection visible to south bound traffic. No other signage announces the prohibited turns for drivers approaching the intersection . There is no automatic traffic signal there only the signs. The fine was $110 and 2 demerit points. Since I had defended other traffic offences I was familiar with the process.
The driver didnÃƒÂ¢Ã‚â‚¬Ã‚â„¢t notice the sign so had no traditional defence. We did follow the axiom of ÃƒÂ¢Ã‚â‚¬Ã‚Å“never pay the ticket, always defend itÃƒÂ¢Ã‚â‚¬Ã‚Â There are too many opportunities for the Crown to foul it up. I requested a trial date and sure enough on Feb 18, four months later, I received a Notice of Trial. Examining this document I saw that it had no obvious date at the top. It did indicate that it was issued at Toronto South POA Office 2nd of February 2013. It was certified ÃƒÂ¢Ã‚â‚¬Ã‚Å“mailed to defendant Feb 4ÃƒÂ¢Ã‚â‚¬Ã‚Â, and yet the metered mail stamp was dated Feb 14th and I received it in my mail box 4 days after the meter stamp! It took two weeks to reach me after the clerk ÃƒÂ¢Ã‚â‚¬Ã‚Å“certified ÃƒÂ¢Ã‚â‚¬Ã‚Å“ it was mailed. Note to self , check all dates carefully and save the envelope. It could be important.
Trial date was April 19th, 2013 or about 2 months away. My understanding was that I should request Disclosure no less than 6 weeks before the trial . So on Mar 5th I faxed my request to the prosecutorÃƒÂ¢Ã‚â‚¬Ã‚â„¢s office. No sense giving the Crown more time than it absolutely needs. We are after all trying to give the Crown every opportunity to introduce Systemic Delay. I used the recommended wording, I provided all the necessary information contained in the Notice of Trial. I decided not to provide my phone number and I did not quote the trial date. The Crown clerk who eventually did give me the disclosure( the day before trial and only when I personally enquired at the Crown office) said I should have put the trial date on the request. I said that I provided the summons number. He made no mention of the absence of my phone number. You must personally attend to collect the disclosure package at the court office once they inform you that it is ready. They wonÃƒÂ¢Ã‚â‚¬Ã‚â„¢t mail it claiming privacy issues. I assume they would have to look up my phone number; I am in the book or send me a letter advising it was ready. DonÃƒÂ¢Ã‚â‚¬Ã‚â„¢t count on that happening. I did phone a week before trial and was told I would be called when it was ready. I told them that the trial was a week away. (remember I had not put my phone number on the disclosure request) I assume they didnÃƒÂ¢Ã‚â‚¬Ã‚â„¢t bother to check then as they did not ask for the summons number but rather chose to rely on the internal snail-like processing system.
The day before the trial I attended the court so I would know where it was and to orient myself as to court procedure; forms of address and so on. (the Justice of the Peace wears a green sash and is addressed as ÃƒÂ¢Ã‚â‚¬Ã‚ÂYour WorshipÃƒÂ¢Ã‚â‚¬Ã‚Â or Sir. Judges wear red sashes and are addressed as ÃƒÂ¢Ã‚â‚¬Ã‚Å“Your HonourÃƒÂ¢Ã‚â‚¬Ã‚Â The Crown can be addressed as Mister or Madam Prosecutor.
About 30 minutes before the court starts the crown invites all the defendants to speak to them about a negotiated plea. There were over 60 defendants that afternoon(there is a AM and PM session) which is about average. Court is in session for only 2 Ãƒâ€šÃ‚Â½ hours. The last thing the crown wants is to have a trial. There is only time for one or two actual trials. You should always try to negotiate downward to a charge with no points or fewer point or less speed. Less than 16 Km over is no points but still a ÃƒÂ¢Ã‚â‚¬Ã‚Å“minor convictionÃƒÂ¢Ã‚â‚¬Ã‚Â insurance-wise. Indeed after viewing your Offence notice the crown may open with ÃƒÂ¢Ã‚â‚¬Ã‚Å“Do you want to plead to a no points offence?ÃƒÂ¢Ã‚â‚¬Ã‚Â ÃƒÂ¢Ã‚â‚¬Ã‚Å“How about Fail to proceed on a green no pointsÃƒÂ¢Ã‚â‚¬Ã‚Â
Or ÃƒÂ¢Ã‚â‚¬Ã‚Å“ I will take this down to 15Km over; no pointsÃƒÂ¢Ã‚â‚¬Ã‚Â Of course this is always at the CrownÃƒÂ¢Ã‚â‚¬Ã‚â„¢s discretion and there is limited time to negotiate. DonÃƒÂ¢Ã‚â‚¬Ã‚â„¢t expect a no points deal if your are 30 km over or it is a 6 point offence. There are 59 other defendants behind you. I summarized my defences:
Disclosure was late I had only received it yesterday and could not read it. The Crown said I should have allowed 8 weeks for processing. The single page disclosure had 12 ÃƒÂ¢Ã‚â‚¬Ã‚Å“wordsÃƒÂ¢Ã‚â‚¬Ã‚Â on it only 3 of which were remotely decipherable. The notes are on a blank page in the summons book. The officer doesnÃƒÂ¢Ã‚â‚¬Ã‚â„¢t want to take up valuable real estate in his investigative notebook. The crown said I could have a ÃƒÂ¢Ã‚â‚¬Ã‚Âsit downÃƒÂ¢Ã‚â‚¬Ã‚Â with the officer today he was in attendance(nuts). Two or three of the 60 defendants lucked out on this point. If the officer doesnÃƒÂ¢Ã‚â‚¬Ã‚â„¢t show up the Crown has no case. ÃƒÂ¢Ã‚â‚¬Ã‚Å“Case Dismissed /withdrawnÃƒÂ¢Ã‚â‚¬Ã‚Â .
Typically the Crown schedules all of the officerÃƒÂ¢Ã‚â‚¬Ã‚â„¢s trials on the same day to avoid the possibility that he will not attend. So if you can get an adjournment to another day in the future It is likely that he may have only you as a defendant. Will he show for that single trial/ offence? Maybe not; vacation, busy on duty, day off who knows.
The HTA citation on the Offence Notice was not legible: The Crown was not impressed. She dismissed it as just poor handwriting. Not fatal. I saidÃƒÂ¢Ã‚â‚¬Ã‚Â letÃƒÂ¢Ã‚â‚¬Ã‚â„¢s see what His Worship thinksÃƒÂ¢Ã‚â‚¬Ã‚Â. Reasoning was that only two things are fatal on the Offence Notice wrong date and wrong offence citation if you canÃƒÂ¢Ã‚â‚¬Ã‚â„¢t read the HTA citation then there is no offence. All else is forgivable i.e. repairable by a Crown motion. Which actually happened that day to a luckless Defendant who pointed it out (too soon).
Disclosure was defective; The crown failed to provide a certified copy of the municipal bylaw enabling the prohibited turn. The Crown said no problem we donÃƒÂ¢Ã‚â‚¬Ã‚â„¢t have to provide that any more. She said an assistant Crown would speak to me. Perhaps the moderator will comment on that.
I considered the Bilingual Sign Defence. All the features of R. vs. Meyer were present. However I had seen no recent instructions on this site about this defence and on at least one site I "Googled" they said that the so called ÃƒÂ¢Ã‚â‚¬Ã‚Å“Bilingual Sign DefenceÃƒÂ¢Ã‚â‚¬Ã‚Â was no longer viable. I would appreciate a definitive comment from the moderator on this point.
The Crown began by disposing of all the negotiated guilty pleas, and hearing the various agents appearing for defendants; X Copper and the like. These agents are thoroughly familiar with the procedures and rarely take more than a minute or two to state the matter and allow ÃƒÂ¢Ã‚â‚¬Ã‚Å“my friendÃƒÂ¢Ã‚â‚¬Ã‚Â (the Crown) to endorse and dispose of it. The agent has previously spoken to the Crown about a negotiated plea. Case ÃƒÂ¢Ã‚â‚¬Ã‚Å“wonÃƒÂ¢Ã‚â‚¬Ã‚Â the agent gets $300-$400 to represent you and you get to pay for a ÃƒÂ¢Ã‚â‚¬Ã‚Å“winÃƒÂ¢Ã‚â‚¬Ã‚Â( no points is considered a win but still a conviction) zero points fine(about $60-$80). Your cost about $500 for an outcome you could have negotiated yourself.
While the court was conducting its business an assistant crown interrupted and called me to meet outside the court. In the corridor I was allowed to speak to the officer who explained what each squiggle and cryptic mark meant. It seemed to cover the bases: position, occupants gender, weather , call sign. I could have argued for an adjournment based on insufficient time to prepare my defence.
I offered to plead to Municipal Bylaw 32-92 sect 39 or 40 Prohibited turning movements. I believe this is available as there are no Automatic Traffic Controls at the intersection.
The cop said that pleading would still be assigned points and be reported to the Province resulting in demerit points. I did read that the fine is substantially lower (about $20) and because the City and the Province could not agree to a spit on the fine proceeds the city doesnÃƒÂ¢Ã‚â‚¬Ã‚â„¢t bother to report to the Province. The CrownÃƒÂ¢Ã‚â‚¬Ã‚â„¢s response was ÃƒÂ¢Ã‚â‚¬Ã‚Å“We donÃƒÂ¢Ã‚â‚¬Ã‚â„¢t do thatÃƒÂ¢Ã‚â‚¬Ã‚Â. The ModeratorÃƒÂ¢Ã‚â‚¬Ã‚â„¢s comments would be appreciated.
By the way I attempted to find a copy of the Municipality of Metropolitan Toronto Bylaw No. 32-92. It was mentioned a lot on the site as an alternative to a HTA pleading. I could not find it. In fact I had to attend the 12th floor of City Hall to obtain a copy. I asked why it was not available on line. The clerk explained that only the bylaws enacted since amalgamation were on line. Those enacted before amalgamation were not. I would be pleased to send the moderator a reference copy if that would help others.
So what to plead; if I got an adjournment then it would have been only another 2 months (June seemed to be the rescheduling date that day) That is only another 2 months of Systemic Delay for a total of 8 months from offence date. Although an 11B Charter argument could be made you need at least 8 months delay to have any hope of success. More is better. An 11b complaint is an involved and for a novice a complicated motion. The courts also measure the length of delay against the complexity of the charge. But it is a bargaining chip for negotiation. It takes time and the Crown must actually send a special prosecutor (lawyer) to argue it. it is above the pay grade of most Crown ÃƒÂ¢Ã‚â‚¬Ã‚Å“clerksÃƒÂ¢Ã‚â‚¬Ã‚Â who typically process traffic cases.
I wanted this matter concluded. Crown offered HTA 170 Parking on roadway
170. (1) No person shall park, stand or stop a vehicle on a roadway,
(a) when it is practicable to park, stand or stop the vehicle off the roadway; or
(b) when it is not practicable to park, stand or stop the vehicle off the roadway unless a clear view of the vehicle and of the roadway for at least 125 metres beyond the vehicle may be obtained from a distance of at least 125 metres from the vehicle in each direction upon the highway. R.S.O. 1990, c. H.8, s. 170 (1).
Essentially a parking ticket. No points; $80. I capitulated. Best to avoid a trial if you can.
Incidentally I was ready to argue obscured sign based on heavy rush hour traffic, the frequency of bus traffic and large trucks. I had photo examples of each and a bus schedule.
Oh and finally, wear a suit. If you look like you know something then chances are they will treat you as if you actually do.
I would appreciate any constructive comments?
I was doing some research to defend my own case, and the small dash of hope I saw on this forum quickly faded away after a quick check on CanLII.
Remember to always substantiate things for yourself before believing in what you read anywhere, never mind on public forums. Even text books are often wrong. Supreme Court Judges don't agree with each other. The Priminister is often wrong. etc....
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