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How to make sure my evidence is admissible in appeal court?
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PostPosted: Thu Jul 23, 2015 8:45 pm 
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Joined: Wed Jun 11, 2014 2:44 pm
Posts: 23
This is for an appeal I was charged under the wrong subsection of the HTA which I will explain below but my main question is how do I make sure my evidence can be submitted? I remember watching a trial before but for some reason the judge wouldn't accept the guy's evidence because she said it wasn't verifiable???

Further info for those that care. I was charged under the wrong subsection of the code. I was charged under 154(1)(c)

(c) any lane may be designated for slowly moving traffic, traffic moving in a particular direction or classes or types of vehicles and, despite section 141, where a lane is so designated and official signs indicating the designation are erected, every driver shall obey the instructions on the official signs. R.S.O. 1990, c. H.8, s. 154 (1); 2015, c. 14, s. 45.

In my case there was never a sign erected only painted signs on the ground. The officer even states this in his own testimony in the transcript. I was in the left lane which has a painted sign that has a left arrow but allegedly I went straight and merged into the single lane.

Here's a post from a user iFly55 on this forum when I was first convicted and made a thread venting on here (really appreciated this info from him, never would've launched this appeal without the info and this forum)

iFly55 wrote:
Streetview of Riverside Dr E (facing eastbound) & Pillette Rd: http://goo.gl/gX9uKO T

The picture was taken back in Jun 2012, but approaching the intersection there doesn't appear to be any enforceable 'black & white' lane designation signs.

Lets entertain the idea that there was a sign, how can the officer see the sign if he's approaching from the west? Maybe he can say he's familiar with the area, or that he checked to see the sign after the traffic stop? None of that due diligence & vertification appears to be in his notes.

http://www.e-laws.gov.on.ca/html/statut ... .htm#BK230
Quote:
Where highway divided into lanes
154. (1) Where a highway has been divided into clearly marked lanes for traffic,

(c) any lane may be designated for slowly moving traffic, traffic moving in a particular direction or classes or types of vehicles and, despite section 141, where a lane is so designated and official signs indicating the designation are erected, every driver shall obey the instructions on the official signs. R.S.O. 1990, c. H.8, s. 154 (1).
The appropriate charge could be HTA 142(1) - Change lane — not in safety

Lines and arrows painted on the ground are merely guidelines in Ontario, they're unenforceable unless they're backed by posted 'black & white signs'.

Disobeying a sign is an absolute liability offence, there are no due diligence defence available to you; no idea why the CLA even bothered introducing that, it's either you obeyed the sign or you didn't. If a sign wasn't even erected, well... then you didn't actually commit the offence.


So if I go there and take pictures/video and can prove there are no signs erected how can I make sure the judge will accept it? My trial is for this Monday... I know, last minute... if only I could change it (procrastination) I'd be so much better off.

Thank you guys for any information

(btw in the case anyone needs any further info let me know will upload whatever, transcript, disclosure, etc.)


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Re: How to make sure my evidence is admissible in appeal cou
PostPosted: Thu Jul 23, 2015 10:31 pm 
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Joined: Tue Feb 01, 2011 9:49 pm
Posts: 2110
Location: Ontario
You won’t be able to introduce any new evidence at your appeal. An appeal is essentially a review of the evidence presented at your first trial. The Court will be looking for any errors in law or fact that the Justice of Peace may have made based on the evidence that was presented. I don’t know all the details of your matter but you’ll want to review the transcript and see if the Crown properly established that the offence occurred. Looking at your original post, it doesn’t look like the officer’s notes make mention of any lane signs. If no evidence was presented to the Court suggesting the presence of lane signs then imho the conviction should be overturned. The presence of the signs is a key element of the offence.

On a side note, even if you were able to present photographs of the intersection, it’s far too late to be taking them now. The offence occurred in late 2013. The Courts would be very hesitant to accept photographs taken almost two years later. They would quite rightfully question what changes may have been made to the intersection including lane markings, signage, etc.


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Re: How to make sure my evidence is admissible in appeal cou
PostPosted: Fri Jul 24, 2015 1:21 am 
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Joined: Wed Jun 11, 2014 2:44 pm
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well I guess I will take some pictures/video just in case. that intersection is pretty well known in Windsor and everyone knows there is no erect sign, in-fact erected signs like that are extremely rare around here.

from what the officer said in his testimony it would clearly indicate I was charged based on a painted lane sign, he never mentioned an erected sign but goes out of his way to mention the painted sign and the code clearly states "where a lane is so designated and official signs indicating the designation are erected" being the wording which is very specific. They mention "official signs" and they mention "erected." To me it's clear I was charged under the wrong part of the code.

Here's the main chunk from his testimony.

*after they allow him to use his notes to refresh his memory*

Quote:

CA: Officer *****, please tell the court how you came in contact with this individual

Officer: On November 5th, 2013 at approximately 3:05 pm., I was on routine patrol in a marked Windsor Police cruiser, number *****, travelling eastbound on Riverside Drive approaching Pillette. At his location I stopped for a red light for east and westbound traffic. Pillette had a green light going north and south.

At this time I observed a school bus directly in front of me which was stopped at the stop light, facing eastbound. Next to the school bus was a grey Chev Cavalier in the left hand turn lane, to turn left into Pillette into the park just north of Riverside Drive.

The light for east and westbound traffic changed from red to green, at which point the grey Chev Cavalier accelerated heavily into the intersection, cutting off the school bus which was also travelling into the intersection. The left turn lane that the grey Chev Cavalier was stopped in is clearly marked and signed with painted left turn arrows, four in total, as well as a solid white line separating eastbound traffic and the left hand turn lane directing drivers that they are unable to change lanes after entering a left turn lane.


Me cutting of a school bus is non sense. I don't even remember a school bus in my vicinity unless it was a few cars behind or in my blind spot. My guess is he was trying to play up the unsafe factor making it more difficult to defend. And I also argued at trial that my left turn was blocked by construction to which the officer agreed there was construction in the area in the following portion of his testimony when the prosecutor recalled him.

Quote:
CA: Officer *****, you heard ***** indicating - stating to the court that the entry point was blocked. To your recollection, is that what happened that day?

Officer: There was construction taken on, on the building which be on the north east corner which had construction equipment in the parking lot. Entrance into the parking lot was accessible. In my duties as a traffic officer over the past seven years, if there is not an entrance made available to make a left hand turn, they would block that actual left turn lane. They just wouldn't cut off the entrance for a parking lot.



then my guy cross examines the officer.

Quote:
Defense: You said there was construction going on in that area.

Officer: On the building, not on the roadway. There's a building on the northeast corner of Riverside and Pillette which would be the parking lot for Reaume Park, I believe, and there were construction vehicles in the parking lot but there was no - they weren't blocking the entrance. Again, if they were going to block the entrance, in my seven years of traffic, you have to block off that whole entire left lane to prohibit people from just going up and trying to turn and causing a traffic hazard.

Defense: Okay. And you don't feel that there was a build up of activity in the parking lot which they hadn't yet gotten around to blocking off the left hand turn lane for?

Officer: No. That would be one of the first things they would do.



Well it seems like I have a couple of angles of attack here at least. I think I do have a good leg to stand on.

Will definitely keep everyone posted and updated. The more we compile strategies the better chance we have at beating them and making them think twice about tangling with the public.


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Re: How to make sure my evidence is admissible in appeal cou
PostPosted: Fri Jul 24, 2015 4:58 pm 
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Joined: Wed Jun 11, 2014 2:44 pm
Posts: 23
was also wondering if I win my appeal will they reimburse the money I paid for the transcript? I remember reading originally during some study that there is a possibility. How can I make the right argument in this regard?


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Re: How to make sure my evidence is admissible in appeal cou
PostPosted: Sat Jul 25, 2015 8:23 am 
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High Authority

Joined: Thu Jul 26, 2012 1:18 pm
Posts: 1722
As far as I am aware you can not get reimbursed for your transcript costs, legal fees, your time or anything else you can think of, even if you win!

This is how our great canadian justice system works --> Do you want justice? Then you need to be able to pay for it! :(

_________________
+++ This is not legal advice, only my opinion +++


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Re: How to make sure my evidence is admissible in appeal cou
PostPosted: Sat Jul 25, 2015 10:44 pm 
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Joined: Wed Jun 11, 2014 2:44 pm
Posts: 23
I do recall a case where a guy did receive reimbursement for his transcript cost. However I lost the bookmark on my old laptop.


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Re: How to make sure my evidence is admissible in appeal cou
PostPosted: Tue Jul 28, 2015 10:14 pm 
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Joined: Mon Nov 29, 2010 8:08 pm
Posts: 550
It's better to keep all of your posts in one thread. The forum rules don't allow for multiple threads on the same topic: topic2871.html

Regarding your recent appeal post, my recommendation is to point out that only the signs in the HTA REG 615 are official signs. You can also see the "lane designation sign" here as well.

If you also look under "Interpretation, general" in the HTA http://www.ontario.ca/laws/statute/90h08#BK0

“official sign” means a sign approved by the Ministry; (“panneau officiel”)

It's really unfortunate that this particular learned justice acted in that manner; they should give self-represented defendants some assistance with procedure. It's in your best interest not to get a re-trial but get the acquittal. It's clear that the trial JP made an error in law to convict you based on the facts that were present at the time.

Do not use the "Driver's manual": http://www.mto.gov.on.ca/english/dandv/driver/handbook/

Opening page says "This handbook is only a guide. For official purposes, please refer to the Highway Traffic Act, the Motorized Snow Vehicles Act and the Off-Road Vehicles Act of Ontario."


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Re: How to make sure my evidence is admissible in appeal cou
PostPosted: Tue Jul 28, 2015 11:41 pm 
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Joined: Wed Jun 11, 2014 2:44 pm
Posts: 23
iFly55 wrote:
It's better to keep all of your posts in one thread. The forum rules don't allow for multiple threads on the same topic: topic2871.html

Regarding your recent appeal post, my recommendation is to point out that only the signs in the HTA REG 615 are official signs. You can also see the "lane designation sign" here as well.

If you also look under "Interpretation, general" in the HTA http://www.ontario.ca/laws/statute/90h08#BK0

“official sign” means a sign approved by the Ministry; (“panneau officiel”)

It's really unfortunate that this particular learned justice acted in that manner; they should give self-represented defendants some assistance with procedure. It's in your best interest not to get a re-trial but get the acquittal. It's clear that the trial JP made an error in law to convict you based on the facts that were present at the time.

Do not use the "Driver's manual": http://www.mto.gov.on.ca/english/dandv/driver/handbook/

Opening page says "This handbook is only a guide. For official purposes, please refer to the Highway Traffic Act, the Motorized Snow Vehicles Act and the Off-Road Vehicles Act of Ontario."


Thanks for the reply.

I was sure to point out the definition of "official sign" and "erected" but she kept trying to twist around my words and use them against me. when I refused to answer her questions where she demanded a yes or no answer she went off like a time bomb. I think I made my case though very well. The way she was fuming I have no doubt in my mind that she would've loved to throw my appeal right out the window but she knew in her heart that she couldn't as the wording was oh so clear. I think what really drew her ire was the fact that in her calculation I was simply trying to get out of this through a "loophole." When I reminded her that the painted lane sign is unenforceable she shouts out "according to who?" to which I respond "the highway traffic act."

I should really get the court recording lol it's gotta be a classic.

the manual I was referring to isn't the drivers manual, I said that in error in my OP. It is referred to as the "ontario traffic manual" it's from the MTO and it's extremely detailed in regards to these official signs.

can be found here:

http://www.library.mto.gov.on.ca/query. ... rch&hide=1

I'm pretty confident as long as the judge follows the law that I have this in the bag. this one just seemed to think she was above the law or something. I will be filing a complaint against this judge for her behavior.

on the 19th I am going to be sure to have this portion of the HTA with me which details the signs. http://www.ontario.ca/laws/regulation/900615


thanks


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