I recall clearly that I stopped at the red light. It's impossible not to stop at that light as it is almost always congested and with pedestrians crossing all the time, it was impossible. I was not sure how the bicycle cop saw the light since he actually came from in front of me from Spadina. I am fighting the ticket for sure as I am positive that I stopped.
In regards to the handheld, my phone had fallen from the compartment underneath the radio onto the floor of the driver's seat. I was in the midst of cleaning my screen when the cop came up to me.
He didn't say much when I opened my window, in which I at that point mentioned that I wasn't actually using my phone. He wasn't interested in what I had to say and said that I hadn't stopped at the red light. I said I did. He ignored me again and said it was clearly red and asked me to drive past Spadina and pull over. I said sure without any argument. I waited patiently for him. He came back with 2 tickets one for the Failure to Stop at Red Light and Drive- Hand Held Device. I explained to him that I wasn't using my phone but rather cleaning my screen at the red light just before I was about to place it back in the compartment. He said it didn't matter as my hands should be at 10 and 2 at all times. (This is obviously ridiculous!)
When I got my Trial date papers it indicated it was Use of Handheld Device. My trial is tomorrow morning. I've never done this before and so I am quite green. I never requested for a disclosure but I did indicate when I was filing for a trial that I would like all evidence presented. I'm not sure if this is the same as a disclosure. I've printed out copy of my Wireless Usage for that day which clearly indicates that I was not using my phone. As for the red light, I am planning to plead that I did stop as I felt the car jerk back. Maybe the officer did not see me do a complete stop. I am hoping he just doesn't show up for the trial.
What are my chances of winning this? Are my arguments valid?
144.) Traffic control signals and pedestrian control signals
(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown. R.S.O. 1990, c. H.8, s. 144 (18).
Exception ÃƒÂ¢Ã‚â‚¬Ã‚â€œ turn
(19) Despite subsection (18) and subject to subsection (14), a driver, after stopping his or her vehicle and yielding the right of way to traffic lawfully approaching so closely that to proceed would constitute an immediate hazard, may,
(a) turn to the right
for your red-light right turn, the officer may need a clear line of sight to your "rims/tires" to see whether they stopped spinning (complete stop); you may need to revisit the intersection to see if that was possible from his vantage pointHand-held devices prohibited
Wireless communication devices
78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2.
the fact that you admitted to holding the phone at roadside is more than enough to convict for the HTA 78 (1)
if the officer is present, he can definitely give you his notes and give you an explanation for short-form or illegible writing
you may be able proceed directly to trial, but your better off requesting for an adjournment and take some time to go through the disclosure
disclosure should be requested atleast 8-weeks prior to your trial or as soon as you get your notice of trial in the mail; i believe R. v. Stinchcombe set out guidelines where the crown is not obligated to give you disclosure without your request
Sample Disclosure Request: http://www.ontariohighwaytrafficact.com/topic2959.html
Relevant portion of R. v. Stinchombe http://canlii.ca/t/1fsgp:disclosure should be requested atleast 8-weeks prior to your trial or as soon as you get your notice of trial in the mail; i believe R. v. Stinchcombe set out guidelines where the crown is not obligated to give you disclosure without your request
"...The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information. In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done. At this stage, the Crown's brief will often not be complete and disclosure will be limited by this fact. Nevertheless, the obligation to disclose is a continuing one and disclosure must be completed when additional information is received."
I'm curious to know if the section in bold above would apply to POA Summary Offences?
NOTHING I SAY ON HERE IS LEGAL ADVICE.
NOTHING I SAY ON HERE IS LEGAL ADVICE.