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Ontario Highway Traffic Act

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No light on bike after dark
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PostPosted: Wed Nov 25, 2015 3:52 am 
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Hi! I'm helping a friend defend a H.T.A. charge of riding her bike without a light. Here's the actual law:

Lamps on all vehicles, except motor vehicles, etc.
(26) Subject to subsection (28), every vehicle, other than a motor vehicle, motor-assisted bicycle, bicycle (except a unicycle) or a vehicle referred to in subsection (24), (25) or (27), when on a highway at any time from one-half hour before sunset to one-half hour after sunrise and at any other time when, due to insufficient light or unfavourable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 150 metres or less, shall carry in a conspicuous position on the left side a lighted lamp which shall display a white light to the front and a red light to the rear or a lighted lamp which shall display a white light to the front and a lighted lamp which shall display a red light to the rear, and any lamp so used shall be clearly visible at a distance of at least 150 metres from the front and the rear of the vehicle, as the case may be.


In our absolute liability world, the Crown's win is almost a foregone conclusion. She was stopped while riding her bike on the ridewalk, though -- probably an offence in itself -- but this gives me my only defence idea so far: do you think it'd be worth arguing "sidewalk" doesn't seem to meet the definition of "highway" under the Act?

I'd appreciate any other defence ideas, of course!


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Re: No light on bike after dark
PostPosted: Wed Nov 25, 2015 8:33 am 
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Location: Ontario
Depending on the jurisdiction, sidewalks would likely be included under the HTA definition of highway

Quote:
“highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof

"Lateral property lines thereof" essentially means fencepost to fencepost. In town most property lines don't start until past the sidewalk.


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Re: No light on bike after dark
PostPosted: Wed Nov 25, 2015 11:07 pm 
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Can you scan and post copy of original ticket (with personal info blacked out)?

Did she plead not guilty and request a trial?

Do you have a trial date yet?

Did you request disclosure (officers notes)? Can you scan and post disclosure here if you have it?

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


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Re: No light on bike after dark
PostPosted: Sat Nov 28, 2015 7:32 am 
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I was thinking the same about the "lateral property lines" reference as well, honestly, but I stumbled on some possible case law. I'm not sure it would apply because it was regarding a different offence but in R. v. Green [2004] the court found:
Quote:
23 Clearly the word "sidewalk" is not included in the definition of highway and one would have expected it to be included if the legislature intended it to be a component of the highway.

27 In order for the officer's actions to be justified, they must, therefore, be in conformance with a statutory power. I am of the view that a highway does not include the sidewalks. The officer's actions, therefore, were not sanctioned by law, and they were not permitted to stop and detain the accused using the provisions of the Highway Traffic Act.

I also checked the January, 2004 version of the H.T.A. to make sure it used the same "lateral property lines" wording and it did.

Quote:
Can you scan and post copy of original ticket (with personal info blacked out)? etc.


Definitely! I'll upload it in a sec. She just got the ticket so we haven't even responded yet but she'll be going not guilty and I'll request disclosure right away of course.


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Re: No light on bike after dark
PostPosted: Sat Nov 28, 2015 7:38 am 
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Re: No light on bike after dark
PostPosted: Sat Nov 28, 2015 11:37 am 
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Yes the other case laws may apply even if it is a different charge. However a quick search on CANLII did not find the text you are mentioning related to an R. v. Green case. Can you post a direct link to the case you are referring too? A Justice of the Peace is not bound to the decisions of other Justice of the Peace in the lower provincial court. They are bound by the higher appeals court decisions though. But even if it a lower court ruling, it is still worth submitting the case law as it points the JP in the direction you want them to go and MAY sway their decision.

I would definitely plead NOT GUILTY and request a trial with the officer present. Once you get Notice of Trial then you can request disclosure (officers notes).

It will be interesting to read the notes because if your wife was on the sidewalk, but crossed a road at some point (to get from one sidewalk to the other), then it could be argued that the charge applies. The charge is not for where the officer stops you, but where the officer SAW you violate it.

A quick glance of the ticket does not reveal any glaring fatal errors to me.

Whats does it say under "Stewart Blvd"? I can not decipher the word. Is that the name of a cross-street?

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Re: No light on bike after dark
PostPosted: Sat Nov 28, 2015 11:54 am 
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I haven't been able to find it in Canlii. I'm still looking elsewhere but it's being hard to track down and I don't know what to make of that. I saw the case mentioned in a few online articles but the quotes came from this article, which is ironically enough essentially a petition to the government to correct the law so sidewalks are considered highways.

I believe it just says Brockville. It's pretty poor handwriting, though.


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Re: No light on bike after dark
PostPosted: Sat Nov 28, 2015 12:04 pm 
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Okay so the full name of the case mentioned is this:
R. v. Green, [2004] O.J. No. 5757(QL) (C.J.)

This is a lower court (Ontario Court of Justice ruling) which means it is not binding on other JP's (but still worth mentioning and submitting).

Not all cases are reported on CANLII, but they may be available on other "paid for" services that most Lawyers have access to.

Let me check with my contacts and if they can get me a copy of it, I will post it here.

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Re: No light on bike after dark
PostPosted: Mon Nov 30, 2015 4:43 pm 
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Great! If not, I'll see what I can do to track it down, somehow. I've self-represented a couple times but I've never referenced case law: would it quote this making defence submissions or would I need a copy of the case or decision to share with the Justice and prosecutor?

Also I've been e-mailing the court about filing Notices of Motion without affidavits made in support. Maybe I shouldn't have asked first but they don't seem willing to accept anything other than documents sworn in front of commissioners. In this case, do I need affidavits of support or could I just give Notice and introduce my arguments orally at the time?


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Re: No light on bike after dark
PostPosted: Mon Nov 30, 2015 5:05 pm 
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The only time you can enter evidence that will be considered is either while you cross-examine a witness, or when you are testifying yourself. You can not add anything new during your closing submissions that was not mentioned during cross-examination/testimony.

Howerver this does not apply to case law... you do not need to mention case law during the cross-examine/testimony. You can wait until your closing submissions.

You should have 3 copies of the full case law. One for you, one for prosecutor and one for JP. During your closing submissions, you will make you comments about each aspect that you think they did not prove, and then you can say "And I have case law R. v Bla Bla Bla to support my position. Would you like a copy? If you refer to paragraph [123] you will see it says ABC and 123 and this supports my position."

From what I can see, and notice of motion is supposed to have a "sworn" statement for it to be valid. However take a look at this post topic7284.html and download the linked file and go to page 9 and you will see a Notice of Motion with a Sworn Declaration instead of an Affadavit.

An Affadavit must have a notary witness/sign it, where as a Sworn Declaration can just be signed by yourself.

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Re: No light on bike after dark
PostPosted: Mon Nov 30, 2015 10:10 pm 
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Thanks! That'll definitely help present the case law. I saw your sworn declaration, too -- I hope to skip the affidavit and do the same! Curiously, though, is there any reference allowing them in lieu of affidavits in the first place? I'll certainly file mine but I'd love to have something in writing in case the court gives me a hard time...


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Re: No light on bike after dark
PostPosted: Mon Nov 30, 2015 11:09 pm 
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I do not see any legislation that specifically requires a Notice of Motion to have an affadavit. There may be something somewhere or it may just be common practice and that is what they expect.

What is an Affadavit: it is a notary swearing that you are who you say you are and that you are saying what is in the affadavit is true.
What is a Sworn Declaration: you saying that you are who you say you and that you are saying what is in the declaration is true.

So if they do not like your Sworn Declaration you can say "I will testify under oath that what is in the decalaration is true."

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Re: No light on bike after dark
PostPosted: Tue Dec 01, 2015 1:22 pm 
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You can download the full case law here:
R. v. Green, [2004] O.J. No. 5757(QL) (C.J.)
https://copy.com/vekUvtgF8xpNLgx4

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Re: No light on bike after dark
PostPosted: Tue Dec 01, 2015 8:21 pm 
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You're a life saver! That'll help a lot. We'll see how much weight the justice gives it...


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Re: No light on bike after dark
PostPosted: Wed Dec 02, 2015 2:44 am 
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I'm sorry to burden this thread with so many questions but here's one more! I don't see any mention of the $85 set fine in the Act -- or mention any penalty whatsoever. I've tried to find a reference for the fine and I've come up short. Any idea where the Act might cite the penalties for this offence?


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