Failure to stop. 136(1)(b)

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.

Three questions.

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?

Eclipse2017 wrote:

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.

The official charging document is the Certificate of Offence (your copy is the Offence Notice). If the charges shown are different, that means the officer has likely amended the Certificate of Offence after giving you the ticket and before filing the Certificate with the Court. You have the right to ask for a clarification since your version of the documentation is different.

Eclipse2017 wrote:

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?

You should call, e-mail or fax the Court one more time to say your trial is next week and you still haven't received disclosure. Remember, it's your obligation to follow up. You may received a call, e-mail or fax with a status update (with my last case, I had a call the day after my final follow-up saying the Court still had not received the officer's notes; the notes still hadn't arrived as of the time of the trial and the prosecutor withdrew the charges). If you're given disclosure the day of the trial, you should ask for an adjournment to give yourself time to make a full answer and defence. If you're lucky, the JP will dismiss the charge or the prosecutor will withdraw it. You're more likely to receive the adjournment, though.

Eclipse2017 wrote:

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?

Just as it's about to start. If the officer isn't there when you check in, the prosecutor will make a notation on the trial list. When you're called up, the officer will be called three times. If, at that point, the officer still isn't there, the charge will be withdrawn. The officer does not have to be at the Court when the session begins.

any other opinions on how to proceed. trial is 2 days from now. asked for disclosures 3 times..nothing received. although disclosure in peel taked 6-8 weeks and my trial was scheduled in 8 weeks. we're moving 2 hours away in 3 weeks.......is a dismissal warranted? or is it expected i return to peel once disclosure is provided?

A dismissal wont even be on the table. They may provide you with disclosure in two days and reschedule the trial.

had trial today. received adjournment and finally got my disclose. officer is claiming i went through the stop. is the "failure to yield" charge, the correct charge? why wasn't "fail to stop" levied? can either charge be laid when going through a stop sign?

i was also offered "disobey lane light"....what's the advantage of accepting that plea?

any opinions on my disclosure? been charged with failure to yield...although it appears the officer has notes on failure to stop (and failure to stop was what was discussed during the traffic stop).