Ontariohighwaytrafficact.com

I was wondering if I can get some feedback as I am an early resolution meeting in a few weeks. Any advice and what you think my chances are of getting it dropped or reduced. Here is my defense:

On Thursday January 22 at approximately 8:15 am I was driving to work on G****Street. I was heading north on G**** and was traveling on the far right lane. As I was scanning for traffic ahead and around as I approached the intersection of G**** and S****, I did spot a school bus of the smaller kind traveling south bound on G*** Street in the far lane as it approached in the intersection. After clearing the interaction of G**** and S**** the school bus made a sudden stop at what appeared to be the second and first house from the intersection which is House numbers 894 and 892. With the bus making a sudden stop I did not have sufficient time to stop in front of the school bus, especially given the fact that it was a cold winters morning and a slamming on the brakes with potential black ice would be dangerous for me and the drivers around me. The school bus also did not have overhead flashing lights on prior to making its stop or during while it was stopped. Therefore I had no advanced warning that the bus was going to be making a stop.

As I continued to drive up G**** I stopped at the intersection of G**** and F**** to make a right hand turn onto ***** which is just over 1km away from the intersection of G**** and S****. Just as I was about to make my turn, a police officer in an unmarked car pulled beside me and asked me to pull over.

When officer K came to my car and said that she was pulling me over because I did not stop for the school bus. Officer K wrote me a ticket and explained my rights. I told the police officer that I did see the school bus but I did not have its overhead flashing lights or extended stop sign to indicate it was picking up children. Officer K did not argue and just rebutted my rights to contest the ticket.

I am being charged under the Highway Traffic Act section 175 (11) which states: every driver or street car operator, when meeting on a highway, other than a highway with a median strip, a stopped school bus that has its overhead red signal-lights flashing, shall stop before reaching the bus and shall not proceed until the bus moves or the overhead red signal-lights have stopped flashing. R.S.O. 1990, c. H.8, s. 175 (11)

I will now outline the following reasons why I am contesting this ticket

1) Officer K on two occasions told me that I was being charged with failure to stop for a school bus. She verbally told me that when she pulled me over and she also wrote it on my ticket. Section 175 (11) of the Highway traffic act does not make mention of failure to stop for a school bus when it does not have overhead lights on. Section 175 makes clear reference that the overhead red flashing lights must be on. In this case they were not. Thus I did violate section 175 (11)

2) Section 175 (6A) states : every school bus driver,

(a) who is about to stop on a highway for the purpose of receiving or discharging children or receiving or discharging adults who have developmental disabilities, shall actuate the overhead red signal-lights on the bus;

As mentioned the school bus made a sudden stop and did not activate its overhead flashing red lights prior to making its stop which it is required to as mentioned in Section 175 (6A). Thus it was in violation of this act of the Highway Traffic Act. I had no prior advanced warning that the bus was going to be making a stop and therefore could not make a proper and safe stop especially given the time of year when this occurrence happened.

Point 3: As noted on my ticket, Officer K writes that the allege occurrence happened at G*** and S****. This is important because it would give a good explanation as to why the Bus Driver would have not activated its overhead flashing lights as it states in the Highway Traffic Act 175 (9C) "

No person shall actuate the overhead red signal-lights or the stop arm on a school bus at an intersection controlled by an operating traffic control signal system; within sixty meters referred to in clause (a)

As I said before, the bus came to a sudden stop just as I passed the intersection, or in the buses case just as it approached the intersection at approximately between house 894 and 892. These house are within 60 meters of the intersection of G*** and S***. In fact it is 56m according to Google Maps. Thus it would make sense that the bus would not have its overhead red flashing lights on. And if the bus did have its overhead red flashing lights on, it would be in violation of the Highway Traffic Act section 175 (9C).

I also want to make reference to my driving record. I have a clean drivers abstract with no prior speeding tickets, accidents or moving violations. I take driving safely seriously and always obey the rules of the road. I am very familiar with this route as I have driven on it to work for the past two and half years. I have always been on the lookout for school buses travelling on G**** Street. This was the first time that I encountered a bus stopping at that location. I want to make it clear that if I had seen the school bus lights were flashing prior to me approaching the bus I would have made every attempt to stop safely. I would never ever jeopardize the safety of pedestrians, especially children. On Monday May 11 on my way to work, a similar occurrence happened again. A bus made a sudden stop on G***, at approximately 824 G****. The bus had no overhead lights flashing prior or during the stop. I ensured that I stayed stopped while other drivers where confused as to what to do as the bus was stopped but did not have light on and arm out, the other drivers proceeded to pass while I stayed stop. I called the School Transportation services and explained what happened. The lady I talked to said that it would make since as to why the bus would not have its lights on prior to stopping or during the stop as it would have been so close to the intersection. She also mentioned that children are to be on the side of school bus door for safety reasons as to not cross 3 lanes of traffic. As mentioned previously, I was approaching the bus from the front side with 3 lanes of traffic between myself and the bus. The bus was not picking up children from the side of the road I was on.

I ask today that the offence I am charged with be dropped for the reasons I outline today or a resolution be made considering that I did not violate section 175 (11) of the Highway Traffic Act, especially considering Section 175 (9C) and section 175 (6A)

Fighting a ticket and early resolution meetings are going to be two different things.

It sounds like you plan on going through this whole defense during your meeting. They most likely aren't going to care. The moment you start going on with a defense, they are going to just end the whole thing and schedule you a trial. Early resolution meeting isn't a trial. It's an opportunity to plead guilty to a lesser offense should they offer one. Unless there's some glaring mistake that would halt a trial before it even started, they aren't dropping anything.

The second problem you have here is you've typed out an entire defense without having any idea what will be written in your disclosure. You have no idea what the officer saw. You have no idea what has been written down regarding your charge and have made an entire defense out of assumptions. You are jumping the gun.

If you want a trial, request one. Then you can request disclosure and prepare a case.

What would be a better approach to do? The police officer who issued the ticket did tell me that the prosecutor could give me the charge as owner of the vehicle which means I would pay the $490 fine but no demerit points and no effect on insurance. I know I was not in the wrong but at this point I just want this headache to be over with and if I have to pay $490 so it does not effect my insurance then its tough luck for me but that is life.

The better approach is to choose the trial option. Once you get your notice of trial in the mail with the trial date. Request disclosure (ie. officer notes, witness statements, dashcam video) from the office of the prosecutor.

Sample disclosure form: http://www.ontariohighwaytrafficact.com/topic2959.html

You can only mount a defence, once you know what the officer is going to say. Maybe the bus driver will also appear as a witness?

It's in your best interest to look at all the evidence they're going to use against you, before accepting a deal or fighting the charge.

If you get a trial date, they'll do the same early resolution routine right before the trial.

You can request disclosure and make a case based on the officers notes. If there's no case to be made, see what they offer you on your trial date and go from there.

If you're looking to get this over with as soon as possible, you can always hear them out at your upcoming resolution meeting.

iFly55 wrote:

The better approach is to choose the trial option. Once you get your notice of trial in the mail with the trial date. Request disclosure (ie. officer notes, witness statements, dashcam video) from the office of the prosecutor.

Sample disclosure form: http://www.ontariohighwaytrafficact.com/topic2959.html

You can only mount a defence, once you know what the officer is going to say. Maybe the bus driver will also appear as a witness?

It's in your best interest to look at all the evidence they're going to use against you, before accepting a deal or fighting the charge.

Do you know if there is a chance at the Early Resolution they can just charge me as the owner of the vehicle and the driver just like the police officer said? I would rather get that at the meeting then having to go to trail. Even though I know my defense is strong and that I did nothing wrong, I do not want the stress of going to court and going through the trail as I know the cop will have a different view of events. If I have to pay the $490 to get this taken care of I am fine with that.

Also if I went to trial, do you think my defense is strong based on what you see? Especially the fact that the occurrence happened close to an intersection (which is written on the ticket) and that a bus driver cannot have its signal on within 60 meters.

coolhandluc wrote:

Do you know if there is a chance at the Early Resolution they can just charge me as the owner of the vehicle and the driver just like the police officer said? I would rather get that at the meeting then having to go to trail. Even though I know my defense is strong and that I did nothing wrong, I do not want the stress of going to court and going through the trail as I know the cop will have a different view of events. If I have to pay the $490 to get this taken care of I am fine with that.

No they can't charge you as the owner of the vehicle. You've been ticketed as the driver. You could try to plea-bargain to that, but I'm not really confident that they would accept it. Most Prosecutors I've seen, even if they're lenient on things like speeding and traffic light offences, are hardcore on school bus offences.

coolhandluc wrote:

Also if I went to trial, do you think my defense is strong based on what you see?

Your defence is solid. See what the officer's notes say. If, during the officer's testimony, she says that the overhead red lights were not activated, immediately make a motion of non-suit. For an unrepresented defendant, it is actually as easy as saying: "I'd like to make a motion of non-suit. The Prosecutor has failed to prove an essential element of the offence." If the officer says the lights were on, your job is to state, clearly and in an unshaken manner, that at no point were the lights on and you were clearly looking for them. The standard for testimony is, if you, as the defendant, have given believable and credible testimony, it ought to be believed. Although some JPs treat it as a credibility contest "cop vs. civilian," that's not how the higher courts have ruled. It's testimony vs. testimony. If yours is solid, that should be enough. It doesn't sound like you committed an offence at all.

Why do you have an early resolution meeting? Did you choose NOT GUILTY on the back of the ticket, or did you choose the GUILTY WITH AN EXPLANATION? If you chose GUILTY WITH AN EXPLANATION then you have already pleaded guilty and will be charged and your explanation is simply to get the fine amount reduced and you will not get the charge dropped regardless of your explnantion. So hopefullt you chose the NOT GUILTY option.

So I would suggest you do NOT give your defence away at the early resolution meeting. Giving the prosecutor a heads up on your defence, just allows them to plug those holes up at the trial.

For early resolution, just go in and listen to what they have to say. Do NOT try to explain anything at this stage and do NOT give your whole big defense you have above. You can ask if they will change the charge to OWNER instead of DRIVER. If they say yes and you are satisfied with that, then great. If they say no, then you might want to mention that the lights on the bus were not flashing (but that may or may not be a good idea so you will have to decide on the spot if you think it is worth mentioning). If they still say no, then tell them you would like to proceed to set a trial date and you would like disclosure. Once you get your trial date, then make a written request for disclosure as well.

My personal opinion is that early resolution is waste of time as it is an extra day you have to take off. Personally I would just opt straight for the trial.

Anyways DISCLOSURE is the most important that you can get because the officers notes will tell you what you are up against. If the officer wrote in her notes that "the lights were flashing" then you have to dis-prove that statement and bring reasonable doubt to her statement (which is very hard to do). If she did NOT put that in her notes, then you can much more easily bring reasonable doubt as to whether they were flashing or not. You will need to understand when/how to do this by learning about CROSS EXAMINATION which is when you get to ask the officer questions (which is different from when you will give your testimony/point of view). If you decide to go to trial, read these:

http://www.ontariohighwaytrafficact.com/topic7039.html

http://www.ontariohighwaytrafficact.com/topic7041.html

jsherk wrote:

Why do you have an early resolution meeting? Did you choose NOT GUILTY on the back of the ticket, or did you choose the GUILTY WITH AN EXPLANATION? If you chose GUILTY WITH AN EXPLANATION then you have already pleaded guilty and will be charged and your explanation is simply to get the fine amount reduced and you will not get the charge dropped regardless of your explnantion. So hopefullt you chose the NOT GUILTY option.

So I would suggest you do NOT give your defence away at the early resolution meeting. Giving the prosecutor a heads up on your defence, just allows them to plug those holes up at the trial.

For early resolution, just go in and listen to what they have to say. Do NOT try to explain anything at this stage and do NOT give your whole big defense you have above. You can ask if they will change the charge to OWNER instead of DRIVER. If they say yes and you are satisfied with that, then great. If they say no, then you might want to mention that the lights on the bus were not flashing (but that may or may not be a good idea so you will have to decide on the spot if you think it is worth mentioning). If they still say no, then tell them you would like to proceed to set a trial date and you would like disclosure. Once you get your trial date, then make a written request for disclosure as well.

My personal opinion is that early resolution is waste of time as it is an extra day you have to take off. Personally I would just opt straight for the trial.

Anyways DISCLOSURE is the most important that you can get because the officers notes will tell you what you are up against. If the officer wrote in her notes that "the lights were flashing" then you have to dis-prove that statement and bring reasonable doubt to her statement (which is very hard to do). If she did NOT put that in her notes, then you can much more easily bring reasonable doubt as to whether they were flashing or not. You will need to understand when/how to do this by learning about CROSS EXAMINATION which is when you get to ask the officer questions (which is different from when you will give your testimony/point of view). If you decide to go to trial, read these:

http://www.ontariohighwaytrafficact.com/topic7039.html

http://www.ontariohighwaytrafficact.com/topic7041.html

Thanks for the advice. I do not believe I have pleaded guilty to anything. It was almost 6 months ago that the occurrence happened so i cannot remember what I choose, all I know is that I choose option 2. My theory about going to the Early Resolution meeting is that it will give me two chances to lower the conviction. If I do not get a resolution at the meeting, than I will go trail and try again. Also the police officer recommended it to me and said that they can change it to the Owner of the vehicle. I wonder if my clean driving record and the scenario of which it happened is why she said that. It is not a clear incident where the bus was stopped for 2min and I drove past it, it all happened within a second.

At the meeting will the prosecutor ask me my events of what happened or just go straight to what they will or will not offer?

If I do go to trail, in addition to asking questions do I get a chance to give a testimony of what happened? Im trying to stay calm and positive that this will all work out OK. Its so frustrating when you know you did nothing wrong, but going to trail and taking the risk of losing and the sever consequences with insurance and what not is scary, that is why I would take the ownership charge , pay the $490 and be done with it.

Well Option 2 as far I am aware is always GUILTY WITH AN EXPLANATION. Maybe others in this forum can confirm that. If this is the case, you will only be given option to give an explanation as to why the FINE amount should be lowered, and probably not anything else (although does not hurt to ask about the OWNER thing). If you have a trial and you chose GUILTY then you are already guilty and it is simply a plea to the JP to reduce the fine. If the prosecutor does not change the charge to OWNER then neither will the JP.

Another question for others in this forum...

Can coolhandluc change plea from GUILTY to NOT GUILTY? I am not aware of reading about that anywhere and not sure if it is possible or not.

Whatever Police officer tells you on the side of the road should be totally disregarded and means nothing. It is up to the prosecutor, not the police officer, on how to change/modify/amend the charge.

I am honestly not sure how the early resolution meeting will go, as I have never gone to one... I just go straight to trial.

If you go to trial (with a NOT GUILTY plea) then yes you will have an opportunity to testify. If you honestly believe the lights were not flashing then you should testify. If you testify you MUST tell the truth. If you know the lights WERE flashing then you should choose your right to remain silent and you should not testify against yourself. Never lie on the stand and never lie to police (better to not say anything at all).

Option 2 in some jurisdictions is an early resolution meeting and they do not have the "guilty with and explanation option"

This was changed several years ago in some jurisdictions.

Does early resolution count toward the insititual delay for 11b?

MYOHTA wrote:

Does early resolution count toward the insititual delay for 11b?

Nope. It's considered a neutral intake period.

bend wrote:

MYOHTA wrote:

Does early resolution count toward the insititual delay for 11b?

Nope. It's considered a neutral intake period.

So its adds to the initialy 45 days ?

It starts from the day you request a trial.

bend wrote:

MYOHTA wrote:

Does early resolution count toward the insititual delay for 11b?

Nope. It's considered a neutral intake period.

That's not conclusive, it's been debated.

R. v. Jair, 2013 ONCJ 142

19. Ms. Penkow argued that the 5 month delay for the Early Resolution Meeting rests at Ms. Jairs feet. I do not agree with that argument. In Andrade, supra, at paragraph 58, Justice Libman noted that:

While the City may consider that if a defendant finds the date or time of day given for trial to be inconvenient, an adjournment request can be arranged, this is not the approach adopted for police witnesses, and I do not therefore consider this to be an even-handed way of scheduling trials, particularly for the growing number of unrepresented defendants who may lack the means or understanding of how to change their assigned trial date, and are given no instructions in the notice of trial as to how to do so. Stated shortly, a delay caused by an unfair practice or procedure cannot be reasonable within the meaning of s. 11(b) of the Charter.

20. Ms. Penkow cited the case of R. v. Syed Khan (unreported- Jan.27, 2011- Halton Prov. Offences Office- File No. 95128045) which is noted at paragraphs 70 to 74 of the Szewczyk decision. In Khan, supra, referred to in Szewcyk, at paragraph 72, Justice Zisman concluded that if a self-represented defendant was unhappy with how long an early resolution meeting was taking, she could always cancel the resolution meeting and proceed straight to trial. By accepting an early resolution meeting, there was an implicit waiver by a self-represented defendant.

21. Where the Khan and Andrade decisions are in conflict, I prefer Justice Libmans analysis. With respect to the Intake Period, Justice Libman was working on an evidentiary basis and heard evidence from a court manager on how trial matters are scheduled. Second, there was a comparative jurisdictional analysis of Intake periods throughout Ontario. Finally, Justice Libman referred to the recommendations of the Law Reform Commission and the specific concerns in which dates are set involving self-represented persons. See Andrade supra at paragraphs 58 to 61.

Decatur wrote:

Option 2 in some jurisdictions is an early resolution meeting and they do not have the "guilty with and explanation option"

Okay that is good to know! Hopefully thats what Option 2 was in this case!

If Option 2 was the GUILTY WITH AN EXPLANATION option, can you change your plea from GUILTY to NOT GUILTY? Just curious if anybody knows whether this is possible or not?

By pleading guilty, you can't change it. That's why some jurisdictions have Early Resolution, since they are leaving it open for discussion. The plea bargaining would take place on the day of trial anyway, so an early meeting with a Prosecutor saves court time versus a "guilty, guilty with explanation or not guilty" offence certificate.

sorry havent seen if anyone mentioned this,

but demerit or no demerit points has no effect on insurance

only convictions count, so if you get a conviction, major or minor, its on your record and "could" effect you renewal

coolhandluc wrote:

What would be a better approach to do? The police officer who issued the ticket did tell me that the prosecutor could give me the charge as owner of the vehicle which means I would pay the $490 fine but no demerit points and no effect on insurance. I know I was not in the wrong but at this point I just want this headache to be over with and if I have to pay $490 so it does not effect my insurance then its tough luck for me but that is life.

I had the meeting today. They only offered to reduce the fine amount as the prosecutor said that is all she could do at this point. The meeting was rather pointless as it lasted maybe 2 minutes and she got up twice to go check on something. I don't even think she was listening to me. She just read the officers notes pretty much to herself and then said this is all I could do for now. She said to bring ownership to trail as maybe they could do the ownership charge. Gave me the request for closure form and told me to file it when I get my trail date.

Interesting however is that when she read the officers notes, the officer notes it happened at a different location than what she has written on the ticket and I am pretty sure the officer only made mention to the stop arm being out and nothing about the overhead lights being on which to my understanding section 175(11) for which I am being charged with, only makes mention to the overhead lights.

I am going to wait for the officers notes before deciding weather or not the hire a paralegal to fight this for me. Anyone have any recommendations for Hamilton?

Yes definitely get your disclosure of the officers notes and then decide what to do. Section 175(11) reads:

Duty of drivers when school bus stopped

(11) Every driver or street car operator, when meeting on a highway, other than a highway with a median strip, a stopped school bus that has its overhead red signal-lights flashing, shall stop before reaching the bus and shall not proceed until the bus moves or the overhead red signal-lights have stopped flashing. R.S.O. 1990, c. H.8, s. 175 (11).

So a couple of the elements they need to prove are:

(1) You were the driver of a vehicle.

(2) You were on a highway.

(3) You did not stop for the school bus, and

(4) The overhead red signal-lights on the bus were flashing.

The key one here will be if the officer does or does not state in his notes that the lights were flashing. There is nothing in section 175(11) about the Stop arm, so if the Stop arm is out but the lights are not flashing then you do not have to stop according to 175(11).

Will be interesting to see what the notes say! Please post them when you receive them.

jsherk wrote:

Yes definitely get your disclosure of the officers notes and then decide what to do. Section 175(11) reads:

Duty of drivers when school bus stopped

(11) Every driver or street car operator, when meeting on a highway, other than a highway with a median strip, a stopped school bus that has its overhead red signal-lights flashing, shall stop before reaching the bus and shall not proceed until the bus moves or the overhead red signal-lights have stopped flashing. R.S.O. 1990, c. H.8, s. 175 (11).

So a couple of the elements they need to prove are:

(1) You were the driver of a vehicle.

(2) You were on a highway.

(3) You did not stop for the school bus, and

(4) The overhead red signal-lights on the bus were flashing.

The key one here will be if the officer does or does not state in his notes that the lights were flashing. There is nothing in section 175(11) about the Stop arm, so if the Stop arm is out but the lights are not flashing then you do not have to stop according to 175(11).

Will be interesting to see what the notes say! Please post them when you receive them.

jsherk : Lets say no notes of some important fact about the case. Can the police bring it up with prosecutor in the trial and that will consider valid? Since if police make a point that is crucial to the conviction, judge will believe them anyway assuming the defendant doesnt know how to defend themselves which many have no idea what they are doing in the court.

In order to win, you would need to understand cross-examination. If you have never been to court and do not understand how it works and do not know how to cross-examine, then you will most likely lose.

So yes, they can bring it up, however a good cross examiner can bring reasonable doubt to items that are not in the notes.

And if they do not bring it up at all and it is one of the elements they must prove, you can make a motion of non suit right before your cross examination.

You could hire a paralegal, but you might want to interview several and find one that is willing to share how they will cross examine officer about missing items in notes. Just like everything else, there are good ones and bad ones, so if you are going to pay one, you better know what you are getting.

You might want to read this:

http://www.ontariohighwaytrafficact.com/topic7039.html

Im not going to trial. Im just trying to learn something using that scenario. I went to court, but dont see any trial much. Maybe went there the wrong time. It would be hard to know which paralegal is good as well.