Does section 78.1 include paper?

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metalman
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Does section 78.1 include paper?

Unread post by metalman on

Hello, I am sure people are getting tired of asking about this hand held electronic device section, but I would like to know if a piece of paper is included in this description? I was ticketed just a few days ago for holding a gas station receipt in my hand to stop it from flapping in the breeze in my car. When the officer asked what i had in my vehicle, I produced everything I had, but nothing matched the description he gave me, except for the paper which he discounted and said I was obviously distracted and handed me a ticket. I do not even own a device of the description he gave me. Do I have a leg to stand on if i decide to go to trial?


Stanton
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Unread post by Stanton on

No, a piece of paper is not considered a hand held electronic device. :)

If the Court believes you, that should certainly be sufficient to beat the charge.


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Unread post by iFly55 on

i too was super confused when media outlets were reporting during Operation Distracted Driving: ontario provincial/municipal police were targeting drivers drinking coffee, eating food, playing with stereo system and holding objects (paper & cards)

were they all charged under s78.1 or s130 Careless Driving?

http://www.thestar.com/news/article/113 ... g-campaign


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Unread post by Stanton on

While the article states that certain activities like eating or adjusting the radio can be dangerous, it doesn't actually state that they're illegal. You could possible be charged with careless, but there would have to be some evidence supporting this (i.e., weaving in and out of lanes cause you have both hands on your sandwich instead of the steering wheel). Cell phones, etc. are much easier since the law simply states it's illegal to hold them.


metalman
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Unread post by metalman on

I kind of thought that paper was a little far from electronis device...I have never had a ticket to fight before, so when I give my notice to appear in court, do I also ask for a first attendance meeting then? Or is this something i arrange later with the court?..Or do I even need a meeting?...i have no idea...please help a confused driver...


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Simon Borys
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Unread post by Simon Borys on

It would be more efficient to try to have the charge withdrawn at a resolution meeting in advance. If the officer's notes support what you're saying that may not be a problem. If they don't the prosecutor may not believe you. Then you'll have to address it at a trial.
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metalman
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Unread post by metalman on

I may be a little nieve about the laws and what the police think, but if the officers notes state I am holding an electronic device, but has a mention that I claim to be holding paper, why was I given a ticket in the first place? Is this a money grab? And how exactly would I prove i was not holding an electronic drvice? The officer didn't believe me, so why would the court?


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Unread post by Stanton on

The officer probably genuinely believed you were talking on a cell phone. You have to keep in mind many people stopped by the police aren’t honest and will give every excuse under the sun to get out of a ticket.

In terms of Court, it’s not your job to prove you weren’t on a cell phone, but rather the Crown’s job to prove that you were. While there’s never a guarantee, it's quite possible to be found not guilty if the Justice of the Peace finds your testimony to be credible. Even if they believe the officer just as much, it could be enough to raise reasonable doubt. They're not supposed to put any more value on the officer's testimony simply because they're an officer.


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Simon Borys
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Unread post by Simon Borys on

Stanton wrote:They're not supposed to put any more value on the officer's testimony simply because they're an officer.
Quite right. Consider:

R v Graat: "The credit and accuracy of the police must be viewed in the same manner as that of other witnesses and in the light of all the evidence in the case. If the police and traffic officers have been closely associated with the prosecution, such association may affect the weight to be given to such evidence."

or R v Favourite (about a jury charge): As you are aware, most/a number of (all of) the witnesses in this case were police officers. In assessing the credibility of a police officer, it is wrong as a matter of law for you to arbitrarily accept or reject the testimony of any officer. Assess the officers' credibility as you would the credibility of any other witness. They, too, can make mistakes. They, too, are subject to the same frailties and forces of life experienced by the rest of us. While you may have strong feeling for or against the police, as judges of this court you must cast any such feelings aside and assess the evidence of the officers in a fair-minded and impartial way. You should treat their evidence in the same fashion as you would treat any other witness' evidence.
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Unread post by admin on

Note the time, check your phone records, most give each call you made and show the time...simply take that to the prosecutor and show you were not making any calls at that time.


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Simon Borys
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Unread post by Simon Borys on

That may be persuasive, but not definitive, since you don't have to actually be using the phone, just holding it.
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metalman
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Unread post by metalman on

The officer was looking for a camera type device, and clearly stated that, not because I was talking on a phone. I had a gas station receipt in both my hands on top of the steering wheel folding it up, therefore making it look like a camera type device. I showed him everything I had in my car and nothing looked like what he saw cell phone included. Do I still hold a chance?


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Unread post by Radar Identified on

If you can give clear, unshakable testimony on the witness stand at trial, you have a reasonable chance.




* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
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