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Ontario Highway Traffic Act

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HTA172 and police conduct
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PostPosted: Mon Jan 26, 2009 11:12 pm 
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Hey everyone. I've been trolling the forums for a while and finally decided to join up tonight. I have a few random questions, and I'm hoping this knowledgeable community can help me out!

First off, I am a student, and one day would like to pursue a career in law to some degree. I am curious about a recent case, where person I know was charged with stunt driving for his alleged speed. He was issued two part 3 summons, one for speeding, and one for the stunt driving offense under HTA s.172.

A few questions: 1) Why two charges for the same thing? (50 over the posted limit)

2) If the officer wrote "Racing" as the charge, and simply the section (172) on the summons notice, does this constitute a fatal error? If so or if not, what are the associated stipulations with this? We're under the impression that the summons should have been worded "perform stunt, to wit: 50 over, contrary to s. 172, subs. 1". Instead the word Racing appears, and in the section field it just says 172. No subs.

3) The constable claims to have observed a speed just above 50 over, verified with radar, and then paced the vehicle at the higher speed (for which the summons were issued). The problem is that he claims to have paced at a great distance (a few hundred metres, which seems very far away) for one mile. One version of his notes says paced for 1 mile and the other says 2 miles. Not only does this seem improbable, AND unreliable (2 versions of conflicting notes), but based on the assumptions of total distance traveled, and the police vehicle's ability to accelerate, the version in his notes seems mathematically impossible. Is this enough to cast reasonable doubt on the evidence or is an expert witness required to verify the impossibility of these actions?

4) Once the accused observed the (unmarked) police vehicle approaching with its lights on, the accused pulled over. The officer immediately jumped out of the police vehicle and drew his weapon, pointing it at the accused through his open window. This happened in the light of day, and the accused became fearful for his life. Is there any reasonable grounds for the officer to have drawn his firearm during a traffic stop? Is there any recourse for the accused, or any way in which the accused can lodge a formal complaint against the officer for these actions, or would this be a useless exercise?


This case seemed so strange to me, and when the facts were presented to me I was shocked, and it prompted me to learn more about the laws at play here and the options available to the accused.

Thanks!

SLYK


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PostPosted: Mon Jan 26, 2009 11:47 pm 
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Try to answer to best to what you have mentioned, which is 2nd hand...and there is always 2 sides to the situation.

1 & 2) Some court areas want both a speeding charge laid and a racing/stunt charge laid. There is no set wordings for the stunt portion, only the 172, which is "racing a motor vehicle". I have seen variances from one court to another in what each area wants....don't know why they are not all the same

3) Pace at that distance is not a problem 100-200 away. Have to remember a solid pace is about 1km or greater. Vehicles at 100km/hr travel 28m/sec, at 150km about 42m/sec......200m is only 5 seconds following, should subject vehicle makes an evasive brake, this would allow the patrol vehicle to stop in time and not rear end the subject vehicle. Only thing here is who is bringing "miles" into this? miles has not been a unit of measure on C'dn hwys since 1977.

4) Yes, there can be reasons to pull out a firearm on a traffic stop or any other situation. There is more to this than we have been told, hence no further comment.

finally the person you speak of is not an "accused" unless they are in Criminal Court.....provincial offences they are known as a "defendant".

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PostPosted: Mon Jan 26, 2009 11:58 pm 
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hwybear wrote:
Try to answer to best to what you have mentioned, which is 2nd hand...and there is always 2 sides to the situation.

1 & 2) Some court areas want both a speeding charge laid and a racing/stunt charge laid. There is no set wordings for the stunt portion, only the 172, which is "racing a motor vehicle". I have seen variances from one court to another in what each area wants....don't know why they are not all the same

3) Pace at that distance is not a problem 100-200 away. Have to remember a solid pace is about 1km or greater. Vehicles at 100km/hr travel 28m/sec, at 150km about 42m/sec......200m is only 5 seconds following, should subject vehicle makes an evasive brake, this would allow the patrol vehicle to stop in time and not rear end the subject vehicle. Only thing here is who is bringing "miles" into this? miles has not been a unit of measure on C'dn hwys since 1977.

4) Yes, there can be reasons to pull out a firearm on a traffic stop or any other situation. There is more to this than we have been told, hence no further comment.

finally the person you speak of is not an "accused" unless they are in Criminal Court.....provincial offences they are known as a "defendant".


Thanks for the quick reply.

1/2) I suppose could be attributed to the fact that the law is still pretty new territory? Still, to me it's like charging someone twice.

3) I guess in that light, it makes some sense. Believe it or not, all of the LEO's notes indicate miles. It's weird!

4) Well, to be honest, there is not that much more to it. The only thing I left out, is that the leo says that the defendant was trying to lose the police by getting off the highway at an exit (which is where the officer caught up and ticketed/towed him). The defendant in this case claims he had no idea the police were even behind him, due to the unmarked, brown police vehicle being used. But he asserts that once the vehicle was close enough behind him that he saw the lights, he pulled over immediately.

That part is actually an interesting debate, because would a JP still give the cop a higher degree of credibility? It is reasonable that a driver would not notice an unmarked vehicle...

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"Bad laws are the worst sort of tyranny." - Edmund Burke"

"Never forget that everything Hitler did in Germany was legal" - MLK Jr.


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PostPosted: Thu Jan 29, 2009 5:56 pm 
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Well, it went to court and he was acquitted. Does he have any recourse against the suspension and/or the towing and impounding fees through any means?

Thanks!
SLYK

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SLYK
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"Bad laws are the worst sort of tyranny." - Edmund Burke"

"Never forget that everything Hitler did in Germany was legal" - MLK Jr.


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PostPosted: Thu Jan 29, 2009 7:15 pm 
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Yup. Sue them for theft (they took a vehicle away for 7 days without permission, and now, quite apparently, any lawful reason, thereby constituing theft).

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"The hardest thing to explain is the obvious"

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PostPosted: Thu Jan 29, 2009 8:05 pm 
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racer wrote:
Yup. Sue them for theft (they took a vehicle away for 7 days without permission, and now, quite apparently, any lawful reason, thereby constituing theft).


But who? The OPP, the province? both?

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"Bad laws are the worst sort of tyranny." - Edmund Burke"

"Never forget that everything Hitler did in Germany was legal" - MLK Jr.


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PostPosted: Thu Jan 29, 2009 8:20 pm 
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This law has been wrong since day 1. We already have laws for speeding and racing. For going 50 over you could just increase the fines. Speeding is not necessarily street racing or Stunt driving. It doesn't catch real street racers. Instead it makes criminals out of what tons of people do all the time when our highways permit it (low volume)

I think this law fails what is designed to do. We could have just made increased fines for over 50 km/h over limit. I am sure a real street racer drives alot faster than 150. Give me a break a Honda civic with a 1.8L 4 Cylinder engine with R Rated speed tires can go 150 km/h. I hardly call someone in a Honda civic on the 400 at 5 am in the morning go 151 km/h with no one else around " street racing." That may be speeding but i think to call that street racing is ridiculous. I dont think Radar Traps catch real street racers. It is my guess that real street racers dont drive stock 4 cylinder engines in a basic economy car. Nor is speeding down 1 lane street racing. This law really should be removed. We didnt need it.

The biggest problem with this law is your are quilty without the right to a fair trail. 172 makes the officer on the side of the highway the judge, jury and executioner. You have to pay for the towing, inconvenience of impoundment etc and you havent even had the right to a fair trial.

One day as someone else said the province is going to owe alot of people alot of money for this. I saw charge them for the towing, impoundment, and any other fees as a result of having to get to work for 7 days without a vehicle.


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PostPosted: Thu Jan 29, 2009 8:36 pm 
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Slyk wrote:
But who? The OPP, the province? both?


Everyone. The OPP, the officer, the Attorney-General of Ontario. Not saying that the lawsuit would be successful, but people who had their vehicles impounded and subsequently got acquitted of the charge should get reimbursed. If several similar lawsuits are successful, they'll mothball the law or repeal the egregious sections. When something starts costing the government money, they'll stop doing it.

Even if it reaches an out-of-court settlement, it still costs the government. It is one way of fighting 172, not necessarily the only or most effective way, though. By the way, have you or your friend signed the petition against the law?


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PostPosted: Thu Jan 29, 2009 8:42 pm 
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Now i am taking a wild guess but the OPP dont make laws. Its the province and the MTO the OPP enforce them. They have regional detachments and highway safety detachments. I am sure some officers know that it is not right to essentially make someone guilty without the right to a fair trial.

But it is not the officers fault. The officer was just doing his job.

Now this is a neat question i have for hwybear. What would the court do if you argue you were only going 30 over because everyone else was going 120 km/h?. Has anyone brought up that case of the Teahcer with the last name Thompson who got a ticket for going 117 km/h. Later he and a freind stayed in the 2 left lanes of the 401 going 100 km/h. They managed to cause a 4 KM traffic jam and were later accused of public mischeif and some other fine. Anyways i know the POSTED limit is 100. But what if you argued that?


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PostPosted: Thu Jan 29, 2009 9:31 pm 
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Slyk wrote:
racer wrote:
Yup. Sue them for theft (they took a vehicle away for 7 days without permission, and now, quite apparently, any lawful reason, thereby constituing theft).


But who? The OPP, the province? both?


Why not those who put the law in place (Queen's Park)? Start a facebook page/group, that can help with getting a class action rolling. We will help as far as this site goes.

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"The hardest thing to explain is the obvious"

www.OHTA.ca & www.OntarioHighwayTrafficAct.com


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PostPosted: Thu Jan 29, 2009 11:00 pm 
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tdrive2 wrote:
Now this is a neat question i have for hwybear. What would the court do if you argue you were only going 30 over because everyone else was going 120 km/h?.


I do not know that. I have heard the usual going with "the flow" blah blah blah defence heard in court thou, with a conviction still at the clocked speed. JP basically indicated that just b/c someone does "X" speed unlawfully does not make it lawful for anyone else to drive at that speed.

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PostPosted: Fri Jan 30, 2009 9:00 am 
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hwybear wrote:
tdrive2 wrote:
Now this is a neat question i have for hwybear. What would the court do if you argue you were only going 30 over because everyone else was going 120 km/h?.


I do not know that. I have heard the usual going with "the flow" blah blah blah defence heard in court thou, with a conviction still at the clocked speed. JP basically indicated that just b/c someone does "X" speed unlawfully does not make it lawful for anyone else to drive at that speed.


The laws are designed to get everyone to drive the same, few do.

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PostPosted: Fri Jan 30, 2009 2:43 pm 
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hwybear wrote:
I do not know that. I have heard the usual going with "the flow" blah blah blah defence heard in court thou, with a conviction still at the clocked speed. JP basically indicated that just b/c someone does "X" speed unlawfully does not make it lawful for anyone else to drive at that speed.


Seemed to be quite acceptable for THIS guy ;)

Bookm wrote:
So the Crown calls an officer of the court (police officer) who testifies under oath that she witnessed excessive speeds by the defendant for an extended period of time. The defendant (also an officer of the court... Police Constable Tapp) states that he never looked at his speedo and was just moving with the flow of traffic.... AND IT WORKED??!!!

This is the same lame defense the majority of the speeding public uses and it NEVER works!!


OPP officer cleared of stunt-driving charge

Racism behind allegation, constable says

Posted By GALEN EAGLE, EXAMINER COURT WRITER


Peterborough County OPP Const. Lloyd Tapp was found not guilty yesterday on charges of stunt driving and careless driving.
The 43-year-old officer had strong words for the fellow officer who made the allegations against him and those that investigated the case.
"Like I have been saying all along, the whole charge was a crock of lies," Tapp said. "The evidence you have heard today in court is a clear indication of the shoddy investigations of the Ontario Provincial Police."
Questioning why charges were laid against him, Tapp said he is a visible minority who has made four claims to the Ontario Human Rights Commission against the OPP since 2005.
"One might ask then, why were charges laid when such a strong prima facie case existed with a lack of evidence to even substantiate a charge?" he said. "What the public has heard today in court, the public should take heed to the type of so-called professional investigations and integrity of investigations by OPP."
Tapp was charged April 8 with driving at least 50 km/h over the speed limit and careless driving on Highway 115 in Cavan Monaghan Township on March 25.
Tapp was one of several Peterborough County OPP officers who agreed to provide security detail at Queen's Park during the release of the provincial budget March 25, court heard.
OPP Const. Brenda Donnelly travelled with Tapp to Toronto in a marked cruiser, she testified. The two left the Peterborough detachment at about 3:37 a. m. and arrived in Toronto for briefing at about 4:45 a. m., she said.
En route to Toronto, Donnelly said Tapp was driving 180 km/h along Highway 115, between 140 to 160 km/h on the 401 and was obeying the speed limit on the Don Valley Parkway.
"We started going fast, excessive speeds," she told court. "The speedometer was pointing in my direction ... it was at the 180 km/h mark. We travelled that speed for quite a ways, most of the 115."
Donnelly said she didn't say anything to Tapp because she had to work with him for the rest of the day. She made a formal police statement six days later, court heard.




Defence lawyer William MacKenzie questioned why Donnelly didn't stop Tapp if he was driving at such speeds.
"On your evidence, you sat there quietly while a member of the police service broke the law. You failed to uphold your duties as a sworn officer, correct," MacKenzie asked.
"Yes, yes I did," Donnelly replied.
Tapp testified he wasn't paying attention to the speedometer but was going with the flow of traffic. He said he would never drive at such "ridiculous" speeds.
"Personally, it's against my code of ethics to travel at that speed," Tapp testified.
MacKenzie argued Donnelly was a poor witness who didn't take any notes of the incident. Her testimony also diverged from her police statement, court heard. She told police Tapp travelled 180 km/h the entire way to Toronto, MacKenzie noted.
Given the 134 kilometres between the detachment and Queen's Park and the timeline Donnelly provided, MacKenzie said Tapp couldn't have driven more than 50 km/h over the speed limit.
"The mathematics don't lie here," MacKenzie said.
Justice of the peace Douglas Clark ruled the Crown did not prove its case beyond a reasonable doubt.


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PostPosted: Fri Jan 30, 2009 3:15 pm 
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Given the 134 kilometres between the detachment and Queen's Park and the timeline Donnelly provided, MacKenzie said Tapp couldn't have driven more than 50 km/h over the speed limit.


So, they left at 3:37 and arrived at 4:45.........68 minutes. 120 km/h=2km per minute. 134 divide by 2= 67 minutes. DVP = 90 km/h

Driving directions to Queen's Park Crescent W, Toronto, ON, Canada
16.3 km – about 15 mins

Unknown road
1. Head west
1.1 km
2. Merge onto Don Valley Pkwy S
10.8 km
3. Take the BAYVIEW Ave exit toward BLOOR St
0.2 km
4. Merge onto Bloor - Bayview Ramp
1.2 km
5. Slight right at Castle Frank Rd
67 m
6. Turn left to stay on Castle Frank Rd
80 m
7. Turn right at Bloor St E
2.2 km
8. Turn left at Queens Park
0.3 km
9. Slight right at Queen's Park Crescent W
0.4 km

Queen's Park Crescent W
Toronto, ON, Canada

Don't forget to find parking, lets drop 20 minutes off the travel time for the 401-DVP-Queens park route and 48 minute to travel 118KM. Lets see 6 goes into 48 8 times........divide 118 by 8 and multiple by 10 and survey says 147.5 KM/H "average". Nope he never even came close to 150.......... :?:

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PostPosted: Fri Jan 30, 2009 3:57 pm 
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Not to mention that case does not have radar/lidar involved. The cruiser was not "run through radar" to confirm that the speedometer was in fact working properly. There was no "black box" download from the cruiser to obtain a speed either. So without any evidence to confirm the visual observation...what do we have? no evidence!

Nothing to do with "going with the flow of traffic".

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