Hello, got stopped today for rolling a stop sign. Ticket says failure to stop, but quotes hta 1361b.
Doesn't 1361b mean failure to yield?
Is this a fatal error? Or could it be amended at trial. How can I prepare a defence if I don't know if I'm defending the failure to stop or the failure to yield?
The section does refer to a stop sign but adds the element that you must have failed to yield to a vehicle
Stop at through highway
136 (1) Every driver or street car operator approaching a stop sign at an intersection,
(a) shall stop his or her vehicle or street car at a marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection; and
(b) shall yield the right of way to traffic in the intersection or approaching the intersection on another highway so closely that to proceed would constitute an immediate hazard and, having so yielded the right of way, may proceed. R.S.O. 1990, c. H.8, s. 136 (1).
Agreed. The section provides two elements for stopping at a stop sign. The first one ends in "and", meaning both are required to fulfill your obligation.
It's saying it's not simply enough to just stop and proceed. You must yield to the right of way before continuing.
Should not Eclipse2017's ticket then have referred simply to 136(1)? If the officer specifically cites clause (b), does that not suggest that clause (a) was complied with, namely that he did come to a complete stop (clause (a)) but failed to yield right of way (clause (b))? If that's the case, the charge should have been fail to yield right of way, not fail to stop. Or am I using too fine-toothed a comb?
Oops, I was totally wrong on this one.
Ticket probably should have been written 136 (1)(b) "Fail to yield to traffic on through highway" or just fail to yield.
136 (1)(a) would be "Disobey stop sign, fail to stop".
I don't think it's a fatal error though. If there was no other vehicle involved then the case can be made at trial that (b) was not relevant.
If there's no other vehicle involved, rendering (b) irrelevant, does that not then make the mistake a fatal error? If there's no need to yield, a driver can't be charged with failure to yield.
A fatal error is something on the face of a ticket that a JP can see is obviously an egregious error. An example would be no city or location, no name of an accused, etc. Remember that the JP does not have the privilege of knowing the evidence related to the ticket at the time and they are also not privilege to the defendants copy of the ticket so the original may have been modified after service which is now permitted in some cases.
In a case where someone is convicted by the JP in this way, you can always attempt an appeal to theirs decision.
thanks for the input so far. still seems to be confusion for everyone. i still can't figure out what exactly ive been charged with. what takes precedence.....the wording of the offense or the section quoted? how should i proceed? meet with the prosecutor first to determine the charge or go straight to trial?
UPDATE: Original ticket was written as Disobey stop sign - failure to stop contrary to HTA 136 (1) (b).
I request a court date......today i received a notice of trial. On the Notice of Trial.....the charge has been changed to FAIL TO YIELD...contrary to 136 (1) (b).
how do i handle this ongoing discrepancy on the ticket?
So you have now been informed of the charge against you in advance of the trial, giving you time to prepare a defence.
On an older post, someone described the same scenario. They however claim that the original ticket, or certificate of offence, is the official document that lists the correct charge. If the Crown did want to change what you were charged with, they would have to withdraw the original one in Court, then serve you with a summons for the new offence. The notice of trial with the amended charge (remember, the original ticket said failure to stop, not failure to yield as the notice of trial stated) is the official charging document, not the notice of trial.
If we assume that is correct, how can I prepare a defence if the HTA section and charge description do not match on the original offense notice?
sooooo....9 days til my trial.....still haven't received disclosure after 2 attempts made sept 5 and oct 20........i guess i attend court and ask for a new trial date? I'm moving 2 hours away next month....does that impact anything?
Might as well ask for a dismissal. Say that you've done your bit by asking for disclosure and that, had you received it, you would have been ready to proceed with a trial. By the crown not providing it you are now disadvantaged due to your relocation. Unlikely it will work but it won't if you don't ask.
Thanks for the help thus far.
1. What is the official charging document......the Certificate of Offense (ticket issued by the officer) OR the Notice of Trial. In my case, the charges listed are different on each document.
2. At my trial next week, do i tell the prosecutor that I haven't received disclosure before the trial starts? (I assume they will try and plea). Or do I simply tell them i plan to plead non guilty, then do i inform the jp that I haven't received disclosure as wish to dismiss or adjourn?
3. At what point would the prosecutor withdraw the charge if the officer isn't there? Before the trial, or just as the trial starts?
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