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Affidavit Evidence?
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PostPosted: Wed Dec 24, 2014 8:55 pm 
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Hi all,

Quick question for those on the site. I was driving a motor vehicle which began to have issues with its seat belt (it was faulty). The vehicle was not mine.
I got pulled over and got a ticket for failure to wear a set belt. I'm looking to move forward on a due diligence defence, that there was nothing I could do.

The mechanic who fixed the seatbelt may not be able to (or want to) show up in court to testify. Can I get him to simply swear an Affidavit and use that as evidence?

Thanks


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Re: Affidavit Evidence?
PostPosted: Thu Dec 25, 2014 11:44 am 
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The simple answer is No. If you really need the mechanic for your case, you can simply ask for a subpoena. The mechanic doesn't get to choose whether to attend or not. Only in very exceptional cases will affidavit evidence be permitted in lieu of viva voce evidence----accommodating the schedule of reluctant witnesses is not one of them!

By the way, why is the mechanic needed anyway? After all, driving a vehicle with a known defect does not excuse your liability. If your plan is to introduce a mechanic's evidence that the belt was indeed defective, yet you continued to drive the vehicle, how does that help your due diligence defence? If anything, it might actually establish that you did have knowledge of the defect, had opportunity to take reasonable alternatives (i.e. get it fixed right away or simply not drive the car), and yet, intentionally drove the vehicle with such known defect. Bottom line: seriously think about your defence----moreso since the due diligence defence on seat belts is VERY limited.


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Re: Affidavit Evidence?
PostPosted: Thu Dec 25, 2014 3:30 pm 
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Thanks for the response.

This was my first time driving this vehicle. I had no idea the status of the seatbelt. While driving, I noticed the belt didn't stay fastened. It'd keep opening and Id have to keep closing it. There was essentially nothing I can do, short of stopping the car and walking. If this was something known to me and I chose to drive the car anyway, I'd agree that it'd be a far shot... But this was my first time and I didn't know the status of the belt.

What is the name of the statue that determines the rules and procedures of HTA cases (such as evidence). Is it the provincial offences act?


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Re: Affidavit Evidence?
PostPosted: Thu Dec 25, 2014 5:25 pm 
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There rarely is any one-stop-shop legislation in common law based jurisdictions like Ontario. Rather, you have to refer to many sources of legislation, regulations and case law. You'll therefore need to at least be acquainted with the following (to name the most obvious ones):

and

And for case law, you'll definitely need to be well-acquainted with the Court of Appeal decision in R.v.Wilson.

The above information should prepared you well for your case. Merry Christmas!


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Re: Affidavit Evidence?
PostPosted: Thu Dec 25, 2014 9:26 pm 
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My apologies. These are the correct links to the Provincial Offences Act and the Courts of Justice Act

The R v. Wilson decision is found here.


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