HTA 144(7): Fail to Yield to Pedestrian - left turn, dashcam

argyll
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Re: HTA 144(7): Fail to Yield to Pedestrian - left turn, das

Unread post by argyll on

That's valid. Sorry I appear to have taken you off on a bit of a tangent. My original thought was that unless you take the stand the officer would likely say that you were honking to hurry the pedestrian in question. I guess you could bring some doubt in asking him how he knows that was the purpose and whether there was ANY other possible reason for you to sound a horn. He can't testify as to why you may have done something.
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Bixie
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Unread post by Bixie on

I attended court yesterday, with great success!

Prior to my trial, I prepared three USBs containing digital copies of all photo and video associated with my defense, three DVDs burned with the video, and three printed copies of original still images taken from the video, and three "enhanced" (brightened to show dark areas of the shot) copies of said still images. In the end, it seemed that DVDs were a good idea, despite being lower resolution), since the TV was an older 27" CRT TV with what seemed to be a DVD player and/or VCR hooked up. I also had a laptop with me, capable of playing the videos if necessary.

I arrived at the courthouse early, at 7:45 a.m. to secure what I thought was my spot first in line to speak with the prosecutor. However, within 5 minutes of waiting at a growing line in front of a door labeled "Crown Prosecutor," I was advised by the gentleman that he did not speak to provincial offenses, and that I should sit outside in the courtroom to wait for the provincial prosecutor to call defendants into the courtroom.

So there I sat until 9:20, ten minutes before my scheduled trial, where a provincial prosecutor did call all defendants in my group into the courtroom. I was once again first in line to speak to the prosecutor in the small courtroom. The conversation went something like this:

Prosecutor: I see here you didn't actually hit the pedestrian, and I've taken that into account.

Me: (a bit miffed) Not only did I not hit the pedestrian, I drove behind him, after he passed!

Prosecutor: Yes, I see that. I can do Failure to Obey Lane Signal, that's 0 points, fine of $xxx.

Me: (showing a brightened photo still printed from my dash cam video, below): You can see quite clearly in this photograph that there are two lanes with no pedestrians in them. I also have audio and video of this as well. At this time, the pedestrian is in the farthest lane to the left, two lanes away from my destination lane. It is insufficient to prove merely that the pedestrian was in the crosswalk when I completed the turn. You must also prove that I failed to yield right-of-way, and there is a lot of distance between my car and the pedestrian at this time.

Prosecutor: If you wouldn't like to take the deal, just say, "No thank you," and we can go to trial.

Me: No, thank you.

Prosecutor: (to bialiff) We're going to need Officer [REDACTED] (let's call him officer Bob from here on) in here.

Anyway, I sit in my seat, reviewing my planned cross-examination and listening to the guilty pleas roll through for about an hour. While some MTO offenses are heard, my HTA prosecutor ducks out of the room to return ten minutes later.

Prosecutor: I spoke with Officer Bob outside.

Me: (thinking he may be trying to intimidate me into taking the plea anyway) OK.

Prosecutor: He recommended the charge be withdrawn.

Me: Ok. (now excited and relieved but maintaining my composure)

After the MTO matter was settled, the prosecutor called me. I stated my name to the JP for the record, the prosecutor stated that he spoke with the charging officer and based on that conversation, recommends the charge be withdrawn due to "no reasonable prospect of conviction."

I thank the JP, Madame Clerk, and Mister Prosecutor, and bow out of the court.

I was a bit annoyed that the officer wrote a ticket which would be withdrawn due to insufficient evidence, but I am relieved to be withdrawn.

Thanks to jsherk, argyll, and everyone else who advised in this thread. Since I spent a lot of time preparing my cross-examination, I will likely post another thread with my list of questions, to help others who may be in a similar situation, and to receive constructive feedback should there be a next time.

As an aside, I was amused that other defendants came up to ask me during recess for advice on what happens if a cop doesn't turn up. I warned them that I'm not a legal professional (although I did wear a suit and have a very impressive stack of papers... :roll: ), but I would make a motion of non-suit based on the lack of evidence, to which the prosecution will likely respond with a motion of adjournment. I advised them that they should oppose the motion of the adjournment by emphasizing the efforts you made to make it here today, e.g. taking time out of work/school, travelling from out of town, etc. The court clerk overheard us and warned us that the adjournment would likely be granted anyway. I countered that it would still be worthwhile to oppose it on record to support a potential Section 11(b) Charter argument, if the trial goes past 11 months after the date. The court clerk suggested that the amount of time is now 18 months, not 11 months. Is this true?

I felt badly for one particular young man who asked me about cop no-shows, who was facing a Careless charge based on a single-vehicle collision where the officer showed up after the fact. His plea offer was simply a reduction in fine, and he seemed to be banking on the officer not attending court. He had no idea about what disclosure was or why he should have requested it. I advised him to ask for an adjournment and seek professional legal advice ASAP.
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Bixie
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Unread post by Bixie on

Motion of Non-Suit After Prosecution Rests

"Your Worship, if this is the prosecution's only witness and evidence, may I file a motion of non-suit prior to cross-examination?"

"Your Worship, I would like to file a motion of non-suit. The officer testified that the accused turned behind pedestrian after they had already passed, showing that the accused did in fact yield to the pedestrian, and therefore the prosecution has failed to prove a required element of the charge, specifically that the accused did not yield."

Cross-Examination

Pedestrian Background

According to your own notes, there were three pedestrians all waiting to cross Albert Street, in the Eastbound direction, at the intersection of Albert St. and Columbia St. West prior to the alleged infraction. Do you believe that to be true?

You must have made some observation which caused you to think that the pedestrians were all waiting to cross Albert Street. Were all three pedestrians standing stationary, facing Eastbound at Southwest corner of the intersection?

For approximately how long did you observe the pedestrians to be stationary, at the Southwest corner of this intersection, prior to the signal change?

For approximately how long in total did you observe this particular intersection?

During that time, did you witness any pedestrians crossing on a red signal?

So no pedestrians crossed on a red signal Westbound across Albert Street, on the Southbound side of Columbia St. West, prior to the signal changing. Is that correct?

In your notes, you refer to, "a pedestrian beginning to cross," and, "The pedestrian crossing Albert St." In both cases, you used singular terms, "a pedestrian," and, "the pedestrian." How many pedestrians crossed Albert Street after the signal changed?

What were the other two pedestrians doing while one pedestrian crossed the crosswalk?

During the traffic stop, the accused stated to you, "There were two people crossing the road. The first people crossing the road, the sign was red," indicating that at least one pedestrian had crossed the road prior to the signal change, on a red signal. Is that correct?

Did you dispute the accused statement at the time?

You responded to the accused's previous statement by saying, "Any alcohol tonight?" and questioning the accused about his plans for the evening, before asking for insurance and registration. Is that correct?

So you didn't dispute the driver's statement that two pedestrians had crossed on a red signal, correct?

Is it fair to say that despite your notes (and testimony), that these two other pedestrians weren't in fact, waiting to cross Albert Street, given that they didn't enter the crosswalk after the signal changed, and appeared instead to be walking Westbound away from the intersection after the signal had changed?


The Honk

(if/when it is brought up during examination-in-chief) "I object, your worship. Whether or not the accused honked his horn is immaterial to the case of whether the accused failed to yield. Furthermore, the witness is only speculating on why the defendant may have honked his horn."

Which section of the Highway Traffic Act restricts the usage of a motorist's horn?

Prior to the honk, did the accused's vehicle have your undivided attention?

Two other pedestrians were not waiting to cross Albert St. Westbound as you said, but rather appear to have just crossed Albert St. Eastbound on a red signal. Is this correct?

Is crossing on a red signal at night a potentially dangerous situation?

Is honking a horn a reasonable response to a potentially dangerous situation?

(If not a reasonable response) HTA 75(4) states, "A person having the control or charge of a motor vehicle shall not sound any bell, horn or other signalling device so as to make an unreasonable noise." If you thought the noise was unreasonable, you could have charged him under this section, correct?

But you did not charge the accused under HTA 75(4), correct?


The Turn

Defining "Yield the Right of Way"

The Ontario Driver's Handbook defines yielding the right of way as, "letting another driver go first." Is it possible to yield the right of way before a pedestrian leaves the roadway, but after they had passed a motorist's line of travel?

Can you quote any part of the HTA or regulation that says a pedestrian must be all the way across to the other side of the crosswalk before a vehicle may proceed?
- Note: HTA 140(1)(c) only applies to crossovers, not crosswalks

HTA 140(1)(c) states, "When a pedestrian is crossing on the roadway within a pedestrian crossover, the driver of a vehicle approaching the crossover, (c) shall not proceed into the crossover until the pedestrian is no longer on the roadway. 2015, c. 14, s. 39 (1).
However, HTA 144(7) merely states that when, "a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk."
The pedestrian was in a crosswalk, not a crossover, correct?
So a driver merely has to yield the right of way, and not wait until the pedestrian is no longer on the roadway, correct?


Establishing that Right of Way was Yielded

According to your notes, the pedestrian was in the middle of the crosswalk before the accused completed his turn. Is that right?

By the middle of the crosswalk, do you mean approximately 50% across Albert St?

Did this crosswalk span two Northbound lanes, including one going straight across Columbia Street West, and another left turn lane onto Westbound Columbia St. West?

And are all 3 lanes approximately the same width?

So if the crosswalk spanned two Northbound lanes and one Southbound lane, then the middle of the of the crosswalk was directly in front of the left turn lane, correct?

The pedestrian was therefore in front of the Northbound, left-turn lane before the accused completed his turn, correct?

Did the accused strike the pedestrian with his vehicle?

Did the accused complete a turn in front of the pedestrian before they crossed the centre line of Albert Street?

When the pedestrian crossed the centre line of Albert Street was the accused's car located inside the intersection?

You notes (and testimony) have indicated that the accused turned behind the pedestrian. Do you mean that after the pedestrian had passed, the driver drove behind the pedestrian?

So according to your own notes and testimony, the accused did in fact yield to the pedestrian, and left the intersection after the pedestrian had passed the accused's target lane, correct?


The Pedestrian
(if the officer testifies that the pedestrian had to take evasive action to avoid a collision)

Was the pedestrian male or female?

Approximately how old was the pedestrian?

What was the pedestrian wearing?

Did the pedestrian seek medical attention after the alleged infraction?

Did the pedestrian continue walking in the same direction after crossing Albert St.?

For offenses with a direct victim such as this Failure to Yield charge, is it typical to question the victim for a statement?

Is this the first HTA 144(7) you have charged?
(if yes) How long have you been a police officer for?
And how long have you been enforcing traffic violations?
Approximately how many tickets do you typically dispense in a month?
And none of them have been under 144(7)?

(if no) Have you taken statements from witnesses in cases of HTA 144(7) before?

The alleged victim and two other pedestrians were all walking on foot. Would it have been difficult for you to catch up to them to take a statement?

Yet you did not seek a statement from any witnesses, correct?

You activated your lights immediately after the accused completed the turn, and stopped near the intersection, correct?

And you were fully dressed as a police officer, in a marked car, correct?

Again, there were three pedestrians in the vicinity at this time, including the alleged victim. Would it have been difficult for the witnesses to walk over to you to make a statement?

Yet no witnesses attempted to make a statement, correct?

Particularly for this case, where your notes indicate that the accused drove his motor vehicle behind the crossing pedestrian, establishing whether or not the pedestrian's motions were impeded seems rather important for proving guilt beyond a reasonable doubt. Would you agree?

So even though establishing whether the witness' motion was impeded is important to prove guilt beyond a reasonable doubt, you did not seek a statement from the alleged victim, (depending on previous answer: even though you have taken statements for this charge previously). Is that correct?

And you also neglected to seek a statement from either of the other pedestrians at the intersection, nor of any other motorists at the scene. Is that correct?


Voir Dire (or: Statements Made by the Accused)
(If the witness quote the accused at the traffic stop) I object, your Worship. Statements made are not admissible unless there is a voir dire.

According to your notes, the accused presented identification and insurance, and you informed the accused of the reason of the traffic stop, and then the accused apologized and said that, "he thought he had the right of way, didn't know what he was thinking." Is this the true order of events?

The accused apologized and said, "I'm sorry sir, I shouldn't have honked at that guy", and, "I thought I had the right of way; I didn't know what I was thinking," before you had asked for identification and informed the accused for the reason of the traffic stop. Is it possible that your notes are out of order?

Following the accused saying, "he shouldn't have honked at that guy," you said, "You'd better have a good explanation for it." Is this correct?

Was the purpose of your statement to threaten or intimidate the accused?

Your notes indicate the driver was upset during the traffic stop. Did the accused seem upset after you said, "You'd better have a good explanation for it?"

Given that he said he shouldn't have honked, is it possible the accused was apologizing for honking his horn, and not for failing to yield the right of way?

Closing Argument

The prosecution's only witness testified that the accused drove behind the pedestrian, indicating that the accused did in fact yield to the pedestrian. Despite there being many other witnesses present, including the alleged victim and several other pedestrians, in close proximity to the event, the charging officer made no attempt to take any witness statements.

The pedestrian had continued across the centre line of Albert Street before the accused left the intersection to complete the turn. The accused safely completed a turn behind the pedestrian, after yielding to them.

The evidence presented by the defense highlights inconsistencies of the officers notes (and testimony), specifically that the two of the three pedestrians were not waiting to cross Albert St. Eastbound as he stated, but rather they had previously crossed Westbound on a red signal. Additionally, the witness described events out of order, including when certain statements were made by the accused, and statements allegedly made by the accused were made after the officer stated that he'd, "better have a good explanation" for honking.

These inconsistencies in the witness testimony raise reasonable doubt about the accuracy and reliability of the testimony. Specifically, it is reasonably probable that the officer was mistaken in his observations relating to both the distance between the accused and the pedestrians, the movement of the pedestrian, and statements allegedly made by the accused. Unlike the prosecution's witness, the defence's video, audio, and photographic evidence is objective and not subject to the pitfalls of a witness testimony nearly eight months after the alleged infraction.

The evidence presented by the prosecution is inadequate to prove an essential element of the charge beyond a reasonable doubt, specifically that the accused did not yield to the pedestrian. I therefore motion for a dismissal of charges. Thank you, your Worship.

If Adjournment is Proposed

"I object to an adjournment, your Worship. This is the day scheduled for my trial and I took time off work to be here and if there witness was not going to be here they could have informed me ahead of time. I motion for you to drop the charges because they have no witness."


argyll
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Unread post by argyll on

I agree that if the case was not going to be argued then they should not have had you attend and waste your time.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


Bixie
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Unread post by Bixie on

Argyll, is there any consequence for writing frivolous tickets like this? I spent hours reviewing my case, agonizing over and preparing evidence, travelling to court, finding accommodations overnight to make the morning trial, etc. and the cop just drops the charge at the last minute. It doesn't seem fair.


jsherk
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Unread post by jsherk on

@bixie - Congratulations on the win! And excellent preperation in case it did proceed to trial.
+++ This is not legal advice, only my opinion +++


viper1
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Unread post by viper1 on

congrats bixie

In my first post here I went in with a big pile of pics and stuff.
They just don't have time to deal with it.(so just dropped)

Be thankful for experience

Cheers
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use at your own risk"


argyll
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Unread post by argyll on

Bixie wrote:Argyll, is there any consequence for writing frivolous tickets like this? I spent hours reviewing my case, agonizing over and preparing evidence, travelling to court, finding accommodations overnight to make the morning trial, etc. and the cop just drops the charge at the last minute. It doesn't seem fair.
Not that I am aware of. Any compensation would have to be won civilly which would incur the same time and expense considerations.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


EphOph
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Unread post by EphOph on

argyll wrote:I agree that if the case was not going to be argued then they should not have had you attend and waste your time.
Yes, but if the defendant doesn't show up, the prosecutor will get the conviction no matter how frivolous the ticket (as long as the certificate is complete and regular on its face).






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