I feel like I am getting screwed here.. advice appreciated

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seahawksfan78
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I feel like I am getting screwed here.. advice appreciated

by: seahawksfan78 on
Tue Jan 28, 2014 2:12 am

Hello, I'm a new user though long-time lurker. My case has been going on for over a year and a half now, with the 3rd trial date coming up in March (I'll get to this later).. though I feel uneasy about some things and could really use a second opinion.

This case involves a failure to remain charge (posted it in general because, as you will see, there is much more to it than that). I was approaching a stop sign when I noticed a kid (about 13 yrs old) standing on his scooter at the left, not proceeding and chatting with his friends. As I came to a stop he was still there, I look right and nobodys there so I begin to pull away. Within those two seconds the kid pulled out infront of me and I nudged him. As you can imagine, I just barely tapped on the accelerator so it was a super slow-speed collision. Nonetheless, I pulled over and walked with him to the side of the road. I asked him multiple questions: if was hes okay, where he lives, if he wants to use my phone to call his parents, etc. He said he was fine and to leave him alone. I insisted that I wanted to speak with his parents, to which he replied they weren't home. I offered to take the kid for ice cream until they got home.. nope, instead he starts walking away. I assume he is walking home so I follow the kid home to note where he lives, as I was going to return later on and tell the rents what happened. Im following right behind him when he gets to his house, which is about 200m away from the scene of the 'collision' and walks inside. I return to my car and head to the golf course. I will note that there were no injuries (he confirmed this), and no damage to my car.. essentially I thought everything was fine.

Hour later I get a phone call from the cops, asking to speak. I tell them where I am and they come to the golf course., ask me questions and I comply and answer.. and still get issued an HTA 200(a) Failure to Remain. The lady officer said she decided not to give me a "failure to stop at a stop sign" due to the young age of the witnesses, though interestingly she has all of them cited as witnesses in the failure to remain disclosure. For some additional context: the officer had an ambulance called for the kid, despite him and his parents telling the officer he was okay (this is in the disclosure). Additionally, there is no hospital report or whatever in the disclosure.

Anyways, here is where things get even more frustrating. I discussed this charge with my father-in-law who happens to be a a superintendent for a large police org. in Canada. He says its a weak charge, I 'maybe' should have received a failure to yield to a pedestrian or failure to report, though even those would have been weak. (In the former charge, the kid was on a scooter therefore not legally defined as a 'pedestrian' and in the latter, there generally needs to be damage and/or injury to merit a requirement to report) Regardless, a failure to remain it is. He confidently agrees to represent me in court.

Our date in court comes and the prosecutor asks the judge to ask if my agent is a licensed lawyer, paralegal or law student, to which he replies no. He stated he was representing me as a friend/family, though the prosecutor said he shouldnt be allowed to due to the sensitivity of the matter, etc. We argued that he had more than enough experience to effectively serve as my agent, though the prosecutor said it was against the law. The judge adjourned the case and we set another trial date. It is important to note that we did not waive our 11b here, though she asked us to.

Now, I've done some research and I'm hearing some conflicting advice. Reflections, the moderator on this board, stated that anybody can represent anybody: http://www.ontariohighwaytrafficact.com/topic2666.html

The Manitoba court website provides a pleasingly succinct response to this question:
"You can go to court on your own or have an agent go on your behalf. An agent is someone you give permission to represent you in court. It can be a friend, relative, business associate, lawyer or paid agent. A paid agent represents people in court for a fee."
http://www.gov.mb.ca/justice/fines/faq.html#6

Unfortunately, I can't find a comprehensive answer/law for the Ontario provincial courts anywhere online! And even if he was able to represent me and the prosecutor falsely convinced the judge not to let him to, does it matter? Can we use this to claim an 11b argument, even though on the record it states that the delay was caused by me as I did not have proper representation?

This brings me to Part II of this saga. I was a student during all this so I was eligible for legal aid via the student legal aid clinic at my university. This student has been my representative since, though I have some questions/concerns. We went to our second trial date, wasted half a day until finally our case was called (very end). The prosecutor asked the judge for a stay because she 'just learned' that the witnesses werent served their subpoenas. At this point i'm fuming, there is nothing I want more than to get this thing over with.. so I nudge the law student to interrupt and say something.. though unfortunately he had nothing prepared. The judge granted the stay, and told me that I had also previously waived my 11b. Obviously I had not done so but I am thinking perhaps not having 'proper representation' was akin to me waiving my 11b? I was certain that when asked during the first trial we explicitly declined. Anyways.. our third (and hopefully last) trial is in a month and a half, so I am trying to learn as much as I can before hand.

This brings me to my final point/question. While obviously frustrated that the law student wasn't prepared for what happened during his first trial, I could understand.. though it still got me thinking. The questions that he had prepared seemed fairly rudimentary and straightforward, and when I asked he did not have any type of closing statement prepared. Additionally, I asked if he thought we could make an 11b argument and he immediately dismissed that notion. Finally, he has absolutely no previous case law prepared to raise during the trial. Should this worry me or not? He seems to think that "while nothing is a slam dunk case.. i'm pretty confident in this one".. although I can't stop worrying about another potentially unique instance being raised in court with him not being prepared.

In summary, I guess I am just asking for some advice about anything you may seem fit to advise on. Should my step father should have been able to represent me? If so, is there any action I can now take since he was initially denied to do so? Do I have an 11b argument or was the first delay really my fault? Does it seem like I have a solid case and my law student is right, or should I be worried that he doesn't have any case law/closing arguments to support our argument? Could I perhaps have two agents (law student and step father)? Unfortunately hiring a lawyer/paralegal is out of question due to my finances/student loans. Again, this is why any and all advice is much appreciated.

Thanks!


Stanton
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by: Stanton on
Tue Jan 28, 2014 12:10 pm

The Law Society of Upper Canada By-Law #4 deals with representation in Court: http://www.lsuc.on.ca/WorkArea/Download ... 2147485805

Read section 30, it deals with friends, family, etc. representing you in Court. I believe your father in law could have represented you, though it sounds like the Crown argued the charge was too serious for a non legal professional.

In regards to the strength of the charge, it`s very difficult to speak to without being able to review all the Crown`s evidence. Hopefully the law student is competent, but that`s also something very difficult to judge.


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by: seahawksfan78 on
Tue Jan 28, 2014 3:27 pm

In the by-law it states that I cannot be represented if the individual fits the criteria of somebody "whose profession or occupation is not and does not include the provision of legal services or the practice of law, ".. would a police officer/superintendent fall under this category, or is it reserved for those who 'practise' law such as a lawyer?

so it seems like an 11b argument will be tough to make, regardless?

and the students competency may be tough to judge, though is it fair to say that an individual fighting this charge should be prepared with some case law precedent, or is that not always the case?

Thanks!


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by: ynotp on
Tue Jan 28, 2014 7:43 pm

In short the answer is: Yes you are being screwed? By whom? The answer is by you. Your unwillingness/inability spend on an experienced professional to defend you against what is a very serious charge. It doesn't matter if the charge is trumped up having inept representation against a seasoned prosecutor is a serious mistake. If you plan to fight this and not deal down, you need to find the money for a proper defense somewhere. No matter what you decide I hope it goes well for you. Good luck.


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by: seahawksfan78 on
Tue Jan 28, 2014 8:09 pm

ynotp wrote:In short the answer is: Yes you are being screwed? By whom? The answer is by you. Your unwillingness/inability spend on an experienced professional to defend you against what is a very serious charge. It doesn't matter if the charge is trumped up having inept representation against a seasoned prosecutor is a serious mistake. If you plan to fight this and not deal down, you need to find the money for a proper defense somewhere. No matter what you decide I hope it goes well for you. Good luck.
well.. I appreciate the support :wink:


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by: highwaystar on
Wed Jan 29, 2014 12:47 pm

Did you or father-in-law even bother to read the Provincial Offences Act? Read section 82 which says "A defendant may act by representative". Then, read the definition of a "representative" in section 1 where it says a representative is "a person authorized under the Law Society Act to represent a person in that proceeding".

If your agent can't even figure out basic statutory interpretation and where to look for such answers, it only reaffirms their lack of competency!




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by: highwaystar on
Wed Jan 29, 2014 1:08 pm

Hopefully, your father-in-law will learn from this. His 30+ years in policing likely gave him very little experience in actual court advocacy. He may have been a witness numerous times and have an excellent knowledge of the court players and procedures---but that doesn't make him qualified for legal representation. For example, there are a lot of nurses who have assisted numerous surgeries throughout their careers---but I suspect there would be very few who would actually trust that nurse to do their own surgery without the physician present! The same principles apply to legal representation. You need to hire the trained and qualified professional. Officers are only qualified to 'enforce' laws, not provide advice on them.


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by: seahawksfan78 on
Wed Jan 29, 2014 2:13 pm

When it comes down to it, going through a trial is a fairly straightforward process. People represent themselves all the time, weather its a fail to remain or failure to wear a seatbelt. Comparing surgery to a traffic court trial is ludicrous, regardless of the 'severity' of charge--no matter the competitive level of hockey, the rules are the same. I would like to also clarify that while I did ask many different questions, I'm not really here to discuss the competency of my father-in-law to represent me in traffic court. With that said, I will say he has done so for family and friends on numerous occasions without contestant. Additionally, I think 30+ years navigating his way through the court system, working as lead detective in homicide/other serious cases, dealing with crown attorneys regularly, heading a tribunal tasked with determining the fate of other officers, etc., would place him in an adequate roll to tackle this 'serious' HTA charge.

In any regard, I find it interesting that my first choice of representation is being criticized yet there has not been discussion about the competency of the law student. I was under the impression that if a prosecutor failed to have their witnesses and police officer present the case would be thrown out, yet the law student failed to make an argument regarding that. Should he have? Is there an argument to be made? Additionally, since we've established that I legally could have been represented by my father-in-law, is there an 11b argument to be made stating the prosecution unjustly delayed the first trial and now the second trial??


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by: highwaystar on
Wed Jan 29, 2014 4:15 pm

I don't know how you have justified it to yourself that your father-in-law was legally able to represent you when he is neither a lawyer, paralegal or law student governed by the Law Society Act. If you and your father-in-law can't even do basic statutory interpretation (heck, I even gave you the POA section numbers for your reference!)---do you really think you'll be able to argue a winning case, let alone proceed with a winning Charter argument.

I think you just want to hear what you want to hear. In any event, good luck with your case.


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by: seahawksfan78 on
Wed Jan 29, 2014 6:54 pm

highwaystar, whats your deal bud? like I already mentioned, this discussion is not intended to be centred around my father-in-law or his qualification to represent me. he isn't representing me and he isnt going to be making a charter argument.. at no time was that even suggested.


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by: highwaystar on
Wed Jan 29, 2014 7:36 pm

I have no deal with you, nor have any vested interest in your case. I'm also not your 'bud'. If you ever want people to help you (especially free of charge), you best learn how to be respectful and appreciate the kindness others display by taking time out of their lives to provide you with valuable information. So, good luck with your case. I'm moving on...


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