Fail to report - advice needed

Hello everyone,

I am helping someone fight a fail to report charge. The trial is this coming Monday but I wanted to wait for disclosure before posting and we finally received it 3 days ago. Several of the disclosure items are extremely low quality scans so I don't have 100% of the prosecutor's information. I have sent another request for higher quality versions of these but don't expect a reply before the court date so I will ask away here now.

Our information:

This past January the driver was turning in a subdivision, lost control of the vehicle on some ice, and bumped into a hydro transformer (big green steel box). There was no apparent damage to the transformer and a small dent on the vehicle's bumper, so the she did not report the collision. Honestly I could do more damage to the bumper by kicking it once. Three days later a police officer turned up. The driver admitted she was driving and hit the transformer and was subsequently charged with section 199.1.

Crown's information:

Three days after the collision, someone (not listed in witnesses or in notes) was walking by and called the hydro company to report a damaged transformer, and a hydro worker called the police who reported to the scene. Apparently by this time the transformer had been hit by another vehicle because the officer's notes state that it was off its base and had a large dent.

An occupant in a house near the transformer heard the collision (three days prior) and witnessed the vehicle driving away. The only information he was able to give was the vehicle's make and colour. The officer drove around the neighbourhood apparently inspecting vehicles which matched the description. Upon finding one with a "cracked bumper" the officer knocked on the door and issued the charge after taking the driver's statement. I believe the charge was only issued because the hydro employee stated that the transformer would be replaced at the cost of several thousand dollars.

1. Since the only witness to the actual collision was the driver, is it possible to get her statement dismissed? Without that there isn't even anyone to charge.

2. How serious is this charge in relation to insurance? If serious or major, is there a plea deal that it is commonly reduced to?

3. Assuming the JP denies my request for legible disclosure, is 9 days considered enough time to prepare a full defence? Or will I likely be able to obtain an adjournment?

4. Assuming we have to go to trial, I am thinking along these lines for cross examination:

- officer (in fact no one) witnessed driver in collision

- plastic bumper vs reinforced steel box would be catastrophic for the bumper, not a small dent

- possible (probable) that another vehicle caused transformer damage (3 days between collision and reporting)

5. Section 199.1 states that a collision must be reported if the apparent damage exceeds an amount set by regulation ($2000 total). Would it be enough to simply have the defendant testify as to what happened and the apparent damage at the time?

As I always say, NEVER talk to police... they are not your friend... you do not have to answer any questions they ask (other than name/address/dob if actually being charged with something). But that is for another post...

1. Since the only witness to the actual collision was the driver, is it possible to get her statement dismissed? Without that there isn't even anyone to charge.

So there are a couple questions that need answering here:

(i) Did the officer tell her he was investigating something? What was the conversation (in as much detail as possible) that occured leading up to her saying something?

(ii) Why did she answer his questions? Was she just being honest, or did she think that she HAD to answer them?

And read this thread:

http://www.ontariohighwaytrafficact.com/topic7032.html

2. You would have to call insurance company and ask whether they consider it Minor, Major or Serious, and what kind of an increase comes along with it. If asked, you can HONESTLY tell the insurance company that you have not been convicted of this charge.

3. I would make request to JP for legible disclosure and if denied, then I would ask for adjournment as you only got disclosure 9 days ago and that is not enough time to prepare. If you do not get an adjournment, for either of these two reasons, then this would be a great reason to win on appeal, if you lose at the trial.

4. Yes that is about right. That is a really good one about the bumper versus steel box (a good question along those lines would be "would you expect to see a lot more damage to a vehicle that had hit and moved a steel transformer box?"). And also the 3 days time between original collision and reporting is good ("was it slippery/snowy/icy for more than one day?", "is it possible that another vehicle could have slid into it as well, causing more damage than the her vehicle?")

5. She will have to take the stand and testify that she only saw a small amount of damage on her bumper and there did not appear to be any damage to the steel box. This will help, along with the cross examination questions above.

Thanks jsherk!

Yes this case is definitely an example of why you should never talk to police and I think this person has learned that lesson!

1. I will try to get together a detailed "transcript" of the conversation hopefully by tomorrow and post it. I am not sure if she felt compelled but she was cautioned about halfway through the conversation. The police report states that the officer said it would "be in her best interest to tell the truth" regarding the incident.

2. I will call her insurance company anonymously and inquire, but looking at some websites it seems it that it is considered major:

http://highriskinsurancebroker.ca/blog/ ... nvictions/

https://www.insurancehotline.com/driving-convictions/

On a side note, I know the grass boulevard between the sidewalk and the road is public property, but is it considered part of the highway?

HTA definition:

"highway" includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; ("voie publique")

Not sure what that last part means but I think the boulevard is not intended for the passage of vehicles.

It seems that it in fact is included and that the correct charge would have been this:

201. Every person who, as a result of an accident or otherwise, operates or drives a vehicle or leads, rides or drives an animal upon a highway and thereby damages any shrub, tree, pole, light, sign, sod or other property on the highway or a fence bordering the highway shall forthwith report the damage to a police officer. R.S.O. 1990, c. H.8, s. 201.

Section 201 does not have the damage threshold requirement. Should I bring this up to the prosecutor since the wrong charge was laid and it is now >6 months?

What is the exact section she was charged under? You said 199.1 above but that is IRREPARBLE VEHICLES. Did you mean 199.(1) which is different from 199.1

In 199.(1) there is no reference to highway anywhere... just that if there is an accident, you have to report it, so Section 201 thing is irrelevent. 199.(1) is probably the correct charge.

NOTE:

As a side note to my comments above about not talking to police, in the case of reporting an accident you are compelled to report it by accident, so I am not suggesting you should not talk to them if indeed you are in accident with over $2000 damage. But when they come to your door asking questions, you have no obligation to talk to them.

Oops. I was writing from memory and didn't realize 199(1) is different from 199.1.

Unfortunately she did not make a scan of the ticket before filing it, and the officer's copy given in the disclosure is completely illegible. But on the notice of trial it states "FL REPORT/FURNISH ACC/REQ. INFO", section 199(1). The furnishing info applies to 199(3) so I will have to talk to the prosecutor to determine the full extent of the charge. The officer's report states "I issued [defendant] a PON for fail to report accident".

Indeed I agree that no one should fail to report an accident over $2000 but in this case the damage was far less. There seems to be a lot of conflicting arguments regarding the admissibility of the defendant's statement with respect to section 7 of the charter. Will definitely try but expect to lose the viore dire.

I read through some cases in canlii and it is well established that the definition of highway only matters when the the term "highway" is used in a section. So I will not be pursuing that line of thought.

You can go to the Provincial Offences office and ask for a copy of the Notice of Offence (her copy of ticket) and also ask for a copy of the Certificate of Offence (original that police officer filed).

I am still a little confused about the 199(1) and the 199(3) you are mentioning above. If what the officer wrote on the ticket applies to 199(3) but he wrote Section 199(1) then it is a fatal error and should NOT be brought prosecutors attention. If this is the case you definitely need to get copy of originals from office before proceeding.

I just mean that in the act itself, 199(1) references 199(3):

199. (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). R.S.O. 1990, c. H.8, s. 199 (1); 2002, c. 17, Sched. F, Table.

I don't think anyone other than a police officer could actually be charged under 199(3):

(3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident. R.S.O. 1990, c. H.8, s. 199 (3).

So I doubt that the officer wrote 199(3) on the ticket but I will definitely make a stink to get a copy of it. Most likely "FL REPORT/FURNISH ACC/REQ. INFO" is just the standard summary of the entirety of 199(1).

When you arrive at court, you can go up to the clerk before trial starts and ask to see the original Certificate of Offence and they will show it to you. They should probably have the ticket that she mailed in as well so you can compare that they are the same.

Update: received a notice of motion from the prosecutor. Apparently one of the crown's witnesses is on vacation and won't be able to make it so the crown wants to adjourn. It doesn't specify if it's the police officer or the home owner but if it is the latter I don't know why he is considered essential as his evidence offers no value. So I will still continue to prepare as best I can for the trial.

Can I push back and argue that the charge should be dropped?

You can try to argue against an adjournment, but most likely you won't be succesful. I would suggest that you DO argue against it, that way the delay fully counts against the prosecutor and not you.

The home owner is the one that reported it, so they will be asked what they saw and when they saw it. Did you get their witness statement in the disclosure you received?

I did receive the witness statement of the home owner. He heard the collision, came to his window and saw the vehicle driving away. He did not report it, the police got his statement by knocking on his door. He did not see the driver, the licence plate, or any damage on the vehicle, and he even reported the wrong colour so his evidence is not only circumstantial but also weak.

Some other person (who is not called as a witness) was walking by three days later, saw the damage and reported it to the hydro company. Hydro employee (who is also not called as a witness) called the police.

Do I argue with the prosecutor, or the JP, or both?

Okay well the home owners testimony is good for you then...

Some good cross-exam questions might be: "So you did not actually see any vehicle hit the transformer?" and "You just heard a noise?" and "Did you go look at the transformer to see how much damage there was or how much it was moved?" and "You did not see the driver or get a licens plate number?" and "In your statement you said the car was color XYZ, correct?" and "So is it possible that more than one vehicle hit the transformer over the three day period?"

Basically if you can get your friends statement excluded then they do not have any evidence to convict. And if you can get statement excluded then they do not have to get on the stand and do not have to testify at all. If you can NOT get statement excluded, then they should probably testify that there appeared to be no damage to transformer and very little to car and that they thought is was way less than $2000.

When in front of the JP and the prosecutor brings the motion forward for the adjournment, then you will OBJECT. You do not have to tell the prosecutor before hand if you don't want to, but it does not really matter one way or the other... if you do tell prosecutor before hand, you can say something like (as nicely as possible) "I am going to object to adjournment, just so it is on record and the time delay will not count against me." Now on the flip side to this is that you actually want typed notes to disclosure, so if you are objecting to the adjournment, then that is like saying you are ready to proceed with the notes you got. So maybe you do not want to object, but you do want to ask JP to tell prosecutor to get you typed copies of notes.

Ok so here is my plan depending on which witness it is:

a) If the police officer is absent I will object and ask for the trial to proceed, as even without full disclosure the crown has no evidence to go on.

b) If the home owner is absent I will object and ask for a stay instead, citing the witness issue (crown's unpreparedness) and the fact that the disclosure was not timely and incomplete. When that is denied I will accept the adjournment.

Actually I don't even need typed notes, the officer's writing is very clear and easy to read. It just looks like they used the worst scanner in the world or the glass was extremely dirty. Some other documents suffered the same fate.

Yesterday I learned it sometimes pays to keep your mouth shut. I was unable to meet with the prosecutor and the JP was very grumpy so I decided not to play games and said I didn't object to the adjournment but just wanted to make sure the court noted that it was the crown's fault for the delay. There were a lot of adjournments for February (which would have put us well into 11b territory) but they managed to squeak us in for October.

I do have a question regarding the trial - am I able to call myself as a witness? Who would be asking the questions? I did see the dent on the vehicle and would like to enter an accurate description of it into evidence in case the officer exaggerates.

After the prosecutor is done with their witnesses, JP will ask if the defense has any witnesses to call, and you can say "yes, myself".

You will take the witness stand and instead of asking yourself questions, you just tell them all the information you want them to know. So think of the questions you would ask if it was somebody else on the stand, and then answer them and then put your answers into a statement. When you are done the prosecutor can ask you questions about what you said and you will need to answer.

So this is coming up next week and of course still no response from the prosecutor regarding the additional disclosure request. Since it would be a charter violation should I just ask for adjournment so that I can prepare a section 7 application? Do I have to notify the prosecutor beforehand that I will be making that motion?

Of course I have to assume the JP will ignore my arguments and allow the trial to continue. Here is the interaction between the police officer and the accused:

- few days later, officer comes to see me

- Officer asks if I hit the box

- I said yes

- Officer asks why I didn't report it

- I said I've never hit something before, was scared and was quite shaken up by the whole ordeal and didn't know what to do.

- We go sit in Officer's vehicle and Officer read my rights and then wrote up a ticket.

- I asked Officer if there was anyway I can get let off on a warning as I don't have any previous convictions

- Officer said no

- I take the ticket and said thank you

What is the best strategy of getting the defendant's statement omitted from the police officer's testimony? Do I object when the officer starts reading the defendant's statements? The reasoning seems a bit circular to me because she would only be required to give a statement if she was in a collision totaling more than $2000, which is the whole point of the trial.

Yes I would object anytime they try to say anything the defendant said. They would need to have a voire dire and determine if the statements made were voluntary in order to admit them (and this would require the defendant to be there).

Is there any proof of amount of damage?

The amount of damage to the vehicle was probably around $200. This was to the plastic bumper (a small dent) and I will personally be testifying to that as I had a larger rust hole in my own car's door fixed for close to that last year.

The only witness to the damage on the steel hydro box is the police officer and the estimate was $6000, but only because it was the hydro rep who called the police and said it would be completely replaced for that amount. Sounds like getting a fender bender and expecting the other party to buy you a new car.

So looking back thru the thread, the charge (you think) is

199. (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

So the key word in this section is the word APPARENTLY.

In this case you would probably need your friend to actually take the stand and testify that they did not believe the total damage was more than the $2000 limit. From what you have said, your friend did not believe the amount was more than $2000, so you would ask them the following question when they are on the stand: "Did the damage to your vehicle and the box apparently seem to be $2000 or more?"

Note to anyone defending a friend or family member: bring a copy of the Law Society Act with you to trial!

The JP absolutely refused to talk to me because I do not hold a licence to practice law. I knew he was wrong but couldn't get the research done in time to argue.

Because of this we were forced to take a deal. Luckily the crown was having difficulty with their witnesses and in desperation offered an unrelated bylaw offence which will not affect the person's insurance. So I suppose it is a victory in that regard.

Representing self, family, friend or neighbor

LAW SOCIETY ACT

Not practicing law or providing legal services

1. (8) For the purposes of this Act, the following persons shall be deemed not to be practising law or providing legal services: 3. An individual who is acting on his or her own behalf, whether in relation to a document, a proceeding or otherwise.

LAW SOCIETY ACT

Interpretation

1. (1) In this Act, "person who is authorized to provide legal services in Ontario" means, (b) a person who is not a licensee but is permitted by the by-laws to provide legal services in Ontario;

Exception, non-licensee practising law or providing legal services

26.1 (5) A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.

Same

26.1 (7) A person who is not a licensee may hold themself out as, or represent themself to be, a person who may provide legal services in Ontario, if,

(a) the by-laws permit the person to provide legal services in Ontario; and

(b) the person specifies, in the course of the holding out or representation, the restrictions, if any,

(i) on the areas of law in which the person is authorized to provide legal services, and

(ii) on the legal services that the person is authorized to provide.

LSUC BY-LAW 4 - PART V - PROVIDING LEGAL SERVICES WITHOUT A LICENCE

Providing Class P1 legal services without a licence

30. The following may, without a licence, provide legal services in Ontario that a licensee who holds a Class P1 licence is authorized to provide:

Acting for friend or neighbor

30. 4. An individual,

i. whose profession or occupation is not and does not include the provision of legal services or the practice of law,

ii. who provides the legal services only for and on behalf of a friend or a neighbour,

iii. who provides the legal services in respect of not more than three matters per year, and

iv. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.

Acting for family

30. 5. An individual,

i. whose profession or occupation is not and does not include the provision of legal services or the practice of law,

ii. who provides the legal services only for and on behalf of a related person, within the meaning of the Income Tax Act (Canada), and

iii. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.

Unfortunately some JPs aren't as well versed in the law as one would hope. If you are satisfied with pleading to the Bylaw infraction then I wouldn't do anything, but for anyone else in this situation you could almost certainly appeal and at least win a new trial.

Sadly this is true. I was once acting as Crown in a Criminal Show Cause hearing regarding a sexual assault charge where the offender was accused of grabbing the breasts of the victim. The JP said "I don't understand this charge. If there is no penetration then how is it sexual assault" !!