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Fail to obey stop sign sec. 136(1)(a)
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PostPosted: Sun Nov 16, 2008 11:02 pm 
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This weekend my father was involved in an accident with a transit bus in Burlington, ON. After the police showed up he was charged with "Fail to obey stop sign" Sec. 136(1)(a). At this particular intersection there NO stop signs but there are traffic lights. There is construction going on there so one of the light posts is smaller.
Driving conditions were terribly wet and visibility was low. If my father had indeed stopped (he was under the impression that the light was still green) he would have crashed right into the bus. He veered to the left and the bus nicked the right side of the rear bumper.

What my question is, did the officer mess up by stating the he failed to obey the stop sign or are traffic lights considered "stop signs"? Is there a chance for victory if we fight this? Or should he just go to court and plead guilty with an explanation in the hopes that the judge will reduce the ticket and not apply any demerit points?


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PostPosted: Sun Nov 16, 2008 11:46 pm 
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Fight it.

A stop sign is not a traffic signaling device.

Do not inform the police of the error on the ticket.

If you are correct that there is no stop sign, go take pictures of the traffic lights at this location. Be sure the camera posts a date on the picture.


Then, do not respond to the ticket at all. Fight it on appeal that the ticket was defective on its face.

If you go to fight it, the Justice can fix the error, enter a conviction and fine.

By not fighting it, the Justice cannot fix any errors. He will look at it, see no errors, and convict you. But on appeal ou can produce evidence that it was indeed defective because there are traffic lighs at the intersection in question and not a stop sign.

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PostPosted: Mon Nov 17, 2008 2:33 pm 
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I want to discuss this one a bit more. There are definitely situations to use the "do nothing" strategy but getting charged with the wrong offence may not work. Here's my thinking. On the face of it, there is nothing wrong with the ticket. It has a charge, a correct fine, etc. There is nothing to correct or quash.

On appeal the judge may rule that if the accused thought he was innocent of the charge, he should have fought it.

The problem with fighting the ticket is that you are exposed to an amendment more appropriate to the offence. In other words they can change the charge. But the focus on the amendment is whether it will prejudice the accused. See R. v. Vanier, 2005 ONCJ 318
Quote:
I see no useful purpose in absolutely foreclosing an amendment to make a charge conform to the evidence simply because the amendment will substitute one charge for another.As long as prejudice to the accused remains the litmus test against which all proposed amendments are judged, it seems unnecessary to characterize the effect of the amendment on the charge itself. If the accused is prejudiced, the amendment can not be made regardless of what it does to the charge. If no prejudice will result from the change, why should it matter how the change to the charge is described?

The defendant prepared his defence on the basis that the charge is not possible. There is no stop sign. To change the charge amounts to a completely new charge and is blatantly prejudicial to the accused. The key is to not say or do anything until the trial when it is too late.

The con of this strategy is that if the trial is within 6 months, a new charge can be laid.

I think any other option (e.g. decoy the prosecution with disclosure about witnesses, etc.) raises too much of a risk that they will catch the error. The smartest thing might be to watch the timeline, perhaps even use adjournments to get past the six month limitation and then use the error at trial to get the charge tossed.

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PostPosted: Mon Nov 17, 2008 3:19 pm 
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The 6 month limitation period can be tricky. If you were issued a certificate of offence under Part I of the POA, it must be served upon the accused within 30 days.

If one makes the cop or court aware any errors after 30 days, but within 6 months, it appears the cop can simply reissue the ticket with corrections under Part III of the POA, but he needs consent of the Attorney General.

Section 11(a) of the Charter articulates that any person charged with an offence has the right to be informed without reasonable delay of the specific offence.

Since Part I of the POA only provides for a 30 day limitation period to lay a charge, in my view, Part III, that provides for 6 month limitation period, is unconstitutional as the 5 additional months is an unreasonable delay in light of the Part I 30 day limitation period.

And since a charge can be laid under Part I or III, the limination period is 30 days under either section of the POA, as the limination period under Part I, in my view, applies to Part III as well. The only way around this is if the Act the charge was laid under articulates a limination period of more than 30 days but less than 6 months, in which case the charge must be filed under Part III of the POA.


POA Part I

Service

3(3) The offence notice or summons shall be served personally upon the person charged within thirty days after the alleged offence occurred.

Part III

Commencement of proceeding by information

21. (1) In addition to the procedure set out in Parts I and II for commencing a proceeding by the filing of a certificate, a proceeding in respect of an offence may be commenced by laying an information.

Exception

(2) Where a summons or offence notice has been served under Part I, no proceeding shall be commenced under subsection (1) in respect of the same offence except with the consent of the Attorney General or his or her agent.

76. (1) A proceeding shall not be commenced after the expiration of any limitation period prescribed by or under any Act for the offence or, where no limitation period is prescribed, after six months after the date on which the offence was, or is alleged to have been, committed.

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Wow!
PostPosted: Mon Nov 17, 2008 11:13 pm 
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My head is now spinning with confusion. Seems like he should just bow down to the man and just pay. I was thinking that since we have pictures go to court with them, plead guilty and provide an explanation.


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PostPosted: Tue Nov 18, 2008 12:04 am 
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No, do not do that.

Once you plead guilty you are found guilty of all elements of the offence. A stop sign is not a traffic signaling device. You cannot be found guilty of that charge. A guilty plea also includes demerit points which could also increase insurance rates.

We don't mean to confuse you with what we posted, but the law regarding trials is a wee bit confusing.

There are a few ways you can win this.

You ticket was required to be issued in both French and English because the demerit points are a provincial matter. The province has guaranteed you services and procedures will be provided in both languages even if you don't speak both languages.

You have them beat. Twice over.

My advice is that you do not respond to the ticket at all and file an appeal within 15 days of receiving the conviction notice. You will then argue that (a) the ticket was defective on its face for not being in both languages and (b) there is no stop sign at this location.

If you bring this information forward now, the court and fix it and you will be found guilty and a fine and points will be imposed, along with possibly higher insurance rates.

It's your choice though.

The Provincial Offences Act articulates that laying a charge is a procedure under Part I and III.

The French Language Services Act guarantees you that all services and procedures will be provided in both French and English.

Provincial Offences Act

Certificate of offence and offence notice

http://www.e-laws.gov.on.ca/html/statut ... _e.htm#BK4

3. (1) In addition to the procedure set out in Part III for commencing a proceeding by laying an information, a proceeding in respect of an offence may be commenced by filing a certificate of offence alleging the offence in the office of the court.


French Language Services Act

Definitions

1. In this Act,

http://www.e-laws.gov.on.ca/html/statut ... 0f32_e.htm

“service” means any service or procedure that is provided to the public by a government agency or institution of the Legislature and includes all communications for the purpose.

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PostPosted: Tue Nov 18, 2008 9:50 am 
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lawmen wrote:
My advice is that you do not respond to the ticket at all and file an appeal within 15 days of receiving the conviction notice. You will then argue that (a) the ticket was defective on its face for not being in both languages and (b) there is no stop sign at this location.



Other that the (short form wording) the complete offence notice is already in both languages, including instructions how to challenge the offence. How would one using that defence not respond to a bilingual document?

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PostPosted: Tue Nov 18, 2008 10:47 am 
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lawmen wrote:
We don't mean to confuse you with what we posted, but the law regarding trials is a wee bit confusing.
That is an understatement! It's a LOT bit confusing. We are trying our best to come up with a strategy for you. We won't always agree on what is the best course, that's for you to decide. But we will go back and forth on the finer points till we settle somewhere. You have 15 days, so be a little patient with us.

hwybear wrote:
Other that the (short form wording) the complete offence notice is already in both languages
I don't believe a bilingual argument can be made in this case. If there is no error, than there is likely no grounds for appeal.

I don't know Burlington's performance for getting cases to trial. In Oakville and Peel it is now under 6 months. I still think the best thing to do is request a trial, if it is scheduled within 6 months of the offence request an adjournment ("my father is sick, cough cough") until it is over six months, then argue that any change to the ticket is prejudicial to you since you prepared your defence against the charge as stated.

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PostPosted: Tue Nov 18, 2008 3:42 pm 
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Bear, The French Language Service Act requires all services and procedures to be in both languages. It applies to ALL communications. If the part of the certificate or notice of offence that the cop fills in is not in both languages it doesn't pass the smell test.

The street name sign is also not in French, in most cases.

One can also argue when the cop talks you at the vehicle he must do so in both languages because it a form of communication included in the procedure of commencing the proceeding which is also covered by the Act.

If a truly Frennch person gets stopped by an English cop, what do you guys do?

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PostPosted: Tue Nov 18, 2008 9:00 pm 
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This is a Quebec Court Decision (550-61-002550-040 ) 20JAN06
Quebec vs SAVAGE
(offence notice not written in ENGLISH)

Section 133 of the Constitution Act, 1867 says as follows:

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

[22] In accordance with the finding of the Supreme Court of Canada in the MacDonald case, the Court finds that Section 133 of the Constitution Act, 1867 confers no language rights to the accused as the recipient of a summons” It imposes no duty on the State or anyone else.

[23] One must not confuse the protection of the language rights in section 133 and the right of an accused to a fair hearing, including the right to be informed of the case and make full answer and defence. The right of the accused to understand the charge and make a defence is not a language right, but rather a right to a fair hearing.

[24] As stated in R. c. Côté[2], Justice de Grandpré states:

“The “golden rule” as regards the sufficiency of an information is whether the accused was reasonably informed of the transaction alleged against him, thus giving the opportunity of making a full defence and ensuring a fair trial.”

[25] Section 133 ensures a constitutional protection of language rights and the rights such as legal rights are entrenched in the Canadian Charter of Rights and Freedoms [3].

[26] In the Attorney General c. Blaikie [4] decisions, the Court held that a summons was a document which was considered as a command or as a charge issued from the Court or under its authority. These two decisions confirm that the accused has no infringed right to be summoned before a court of Québec by a process issued in his own language.

[27] In the Blaikie decisions, the Supreme Court of Canada stated clearly that Section 133 provided to all persons an option to use either the French or the English language before the courts of Québec or its other tribunals, and that documents emanating from such courts or tribunals or issued in their name or under their authority may be in either language, this option extending to the issuing and publication of judgments or other orders.

[28] Thus, the summons, may be issued unilingual, in either the French or the English language. The beginning of the proceedings is the summons as it is the only document where the charge is described and is essential for the jurisdiction of the Court

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PostPosted: Tue Nov 18, 2008 9:58 pm 
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That case was in Quebec. That guy relied upon the Charter. This is Ontario. The French Language Services Act (FLSA) applies in Ontario. We're not relying on the Charter.

The FLSA requires ALL communications for any service or procedure to be in both languages.

The POA articulates laying a charge is a procedure; therefore it's a service.

Street name signs are a communication; thus they must be in both languages if demerit points are involved.

Besides, the Charter doesn't provide the cops rigths and freedoms, it provides the accused rights and freedoms.

The cop must speak French and English to the person they stop. The summons or notice of certificate and notice to appear must be in both languages in ONTARI-ARI-ARI-O.

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PostPosted: Wed Nov 19, 2008 9:04 am 
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lawmen wrote:
That case was in Quebec. That guy relied upon the Charter. This is Ontario. .


And why do you keep bringing in cases from BC, Manitoba etc...this is not only a Quebec case but Blaikie is directly from the Supreme Court of Canada which indicates service is one language is acceptable, does this not mean Canada wide?

I'm not trying to be offensive towards you....being front line I do not have the time to ponder over words (and, or, shall, etc...) in law, mix match them to best fit my point. Nor do I have the background. training to do so. I act in good faith a roadside and let the courts decide later if need be.

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PostPosted: Wed Nov 19, 2008 1:34 pm 
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The ticket does not even indicate whether he had received any demerit points or not. Just states the offence, $85 fine, and $110 total payable fine. Nothing is mentioned about points and the cop didn't say anything to him either.


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PostPosted: Wed Nov 19, 2008 4:43 pm 
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The Charter applies countrywide. The offences of mens rea, strict or absolute liability that were classsified by the SCC apply countrywide.

The French Language Service Act only applies in Ontario. It doesn't apply in Quebec or elsewhere.

I never read Blaikie but I will. From what you posted it sounds like a Charter issue case. Again, we're not relying on the Charter. The Province on Ontario enacted the FLSA and THEY must abide by it. The ticket forms you use and hand out are biligual, but when a cop fills it out, that too must be bilingual. The street name sign must be bilingual. The cop must speak to the driver in both languages. That what the FLSA requires.

The reason many tickets get tossed is because the police send cops for annual use of force training but no training requiring or understanding the law is really required. The Charter is a living law. It keeps growing, yet cops are not kept up to date on the law. It's not your fault, it's the Provinces fault.

I don't have a new copy of the Charter of Rights, but s. 30 applies to the Yukon and Northwest Territories. I haven't heard about them updating it to include Nunavut. I wonder if it was added yet.

Peter, I'm not sure if demerit points must be noted somewhere on te ticket. It's a great point which I will research.

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PostPosted: Wed Nov 19, 2008 6:32 pm 
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Blaikie is a pre-Charter case where Quebec want the law printed only in French. It deals with the Constitution Act 1867, not the Charter. Quebec lost the case and laws must be in both French and English.

http://scc.lexum.umontreal.ca/en/1979/1 ... -1016.html

I support laws being printed in both languages BUT only one should be the official law. When both languages are used the same law sometimes says two different things. When this occurs, the broader of the two is the law. This works to the accused advantage, but I disagree with this process. There should only be one offical version o the law.

R. v. Côté, [1993] 3 S.C.R. 639, deals with criminal law.

http://csc.lexum.umontreal.ca/en/1993/1 ... 3-639.html

Do you have a link to the Quebec vs SAVAGE case? I can't find it.

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