Stopped for truck inspection, charter challenge 10 (b)?

Hi

Several weeks ago I got stopped driving a commercial vehicle in a truck blitz. I was driving a Ford F 450 and trailer. I was stopped by a Toronto police motorcycle officer and taken to a temporary inspection station for a truck inspection. I got 5 tickets and the owner got 5 tickets all under the HTA

My question is, does the officer have to inform me of my right to counsel? Section 10 B of the charter of Rights and freedoms

states

10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and

I am pretty sure I was not informed of my right to counsel but the officer was wearing a body cam so I should be able to find that out. I was definitely detained as the inspection took over 2 hours. If I had known I was able to talk to my lawyer I definitely would have and I believe that might have saved me some tickets. For example I admitted to talking on my cell phone in the belief that being co-operative and friendly would save me some tickets. ( it does not)

I was totally unsure of what my rights were during the inspection, whether I was able to make phone calls or whether I had to answer all the questions. The two hour delay made me miss a very important job and we had to send another truck (I was not late and speeding, rather I was early and doing 80 kph in a 90 zone)

All input is appreciated

There is no right to counsel.

There is a JP in eastern Ontario who mistakenly advises those self-representing if they waive their right to counsel - there is no right to counsel.

ok, thanks for that. Could you explain that a bit more.

I did a quick google search and I found this on the Alberta law society page

You have the right to talk to a lawyer

If you are arrested or detained by the police, you have the right to "retain and instruct counsel". This means you have the right to talk to a lawyer without delay. You should be provided with privacy, a phone, and appropriate phone books to contact a lawyer.

So this is my point. I was defanetly detained, but I wasn't advised of my right to speak to a lawyer. If I had know of that right I would have used it and not incriminated myself.

Does the fact that it is a traffic stop, where driving is a privilege not a right, change the dynamic of the situation?

I could see the crown arguing that it was an inspection and I did not face criminal charges, but I would argue that it was Toronto Police who stopped me so I could definitely face criminal charges. In my mind, and on the face of things, I was detained by the Police.

Sounds like they got you really good. Police or MTO can pull you over and make you go to a nearby inspection station to check the mechanical fitness of the vehicle. While you are there they are going to want your CVOR, Pre Trip Inspection for Truck and Trailer, Log Book, Drivers Licence, Insurance, and Ownership for Truck and Trailer. I'm sure you were told that you would be subject to an inspection. Basically with commercial inspections most truck drivers know to keep their mouths shut and make sure that they have all the proper documentation that way the tickets are only written to the owner.

Heynow999 wrote:

For example I admitted to talking on my cell phone in the belief that being co-operative and friendly would save me some tickets. ( it does not)

Generally, you should never talk to police:

http://www.ontariohighwaytrafficact.com/topic7032.html

You were not arrested. . RTC only comes into effect when You are arrested.

The HTA allows commercial vehicle inspections as part of their licensing conditions So you were not detained either

OPS Copper

So I have been doing some more research on this.

I read this " Triggering the Right to Counsel:"Detention" and Section 10 of the Charter"

It does say that you can be detained, but not arrested, and should be given your right to counsel.

I emailed the author, who is a law professor, and he sent me this comment.

"As a general rule (without in any way commenting on your specific circumstances), police can detain people for a short period of time to deal with vehicle-related offences without complying with the s. 10(b) right to counsel. But if a detention extends beyond a "brief" period, they must inform the detainee of his or her right to counsel."

So this is my point. I would like to argue that I should have been read my 10(b) rights because I was stopped by the police, not the MTO. The MTO can't lay criminal charges (I think?) so they don't need give a 10(b) caution, but when I am stopped by police, I face the possibility of criminal charges, so I should be informed of my right to counsel

Imagine this situation, MTO stops a truck and can tell the driver has been drinking. They would call police, and the first thing police would do is give the 10(b) caution

Look, I know I'm grasping at straws, but I have successfully fought many tickets a layman and I know the only thing I have to do is make a half decent, logical argument, just enough to make the judge go Hmmmmm, and I can get the ticket thrown out. I am just looking for an obvious flaw in my reasoning.

If it was me, I would definitely fight it, even if my chances of winning were slim to none. So what I would do is see if I could find any case law that defines what "brief" is and go from there. I am not sure if the fact that it is commercial related creates a different scenario than if they stopped you personally in your personal vehicle and spent 2 hours checking your vehicle.

Were you issued Offence Notices or Summons? The fact that you go the distance by getting disclosure and showing up for trial, will probably at least get you some kind of plea deal offer where they may offer to drop some charges if you plead guilty to some of the others. You then need to decide if you take the deal, or try to fight all of them based on "brief" detention.

Anyways I am very interested in the argument you decide to present, so please post it!

You might also want to read the Supreme Court decision on this subject:

R v Ladouceur

http://scc-csc.lexum.com/scc-csc/scc-cs ... 4/index.do

As a general rule of thumb charter rights apply to any person when dealing with any agency or agent of the state.

I don't see what the Right to Counsel would have done to avoid you being subject to a commercial vehicle inspection and any charges that came about because of it unless you can demonstrate that a potential conviction can only be supported due to something you said to incriminate yourself. So perhaps you could try to argue that incriminating statements you made should not be admissible, but take note that evidence such the officers observations of your behavior, the condition of the truck and whether you presented the complete relevant paperwork is likely strong enough evidence to support a conviction.

If you really want to go down the constitutional route you might as well challenge the provisions in the HTA allowing the inspection as unconstitutional (potential breach of S. 8 and 9) due to the inspection taking an unreasonably long period of time. I'm guessing that there was some sort of long lineup of people waiting? IMO once at the station an inspection longer than half hour is unreasonable.

Other than talking on a cellphone what exactly were the charges?

There are a number of points that I understand and am not contesting

I understand that police can stop vehicles as part of an organized program like RIDE. I imagine this is why the police announce to the media that they are having a truck/seatbelt/speeding or whatever blitz. It nullifies the argument that you were stopped randomly. The can say," of course it was part of a program, we even announced it"

I also understand that driving a commercial vehicle I have to stop at inspection stations, and I have to cooperate with the inspection.

I thank you for referring to R vs Ladouceur as it supports exactly what I am saying. The case deals with section 7, 8 and 9.

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

And it was decided that random stops were not OK, but stops as part of an organized program were OK, such as Ride. The idea being that these stops would be quick. From the judgement.

"Le Dain J. held in Hufsky, supra, at pp. 636‑37 that "The nature and degree of the intrusion of a random stop for the purposes of the spot check procedure in the present case . . . is proportionate to the purpose to be served." This observation is equally applicable to the routine check made in this case. These stops are and must be of relatively short duration, requiring the production of only a few documents. There is a minimal inconvenience caused to the driver. The Canada Police Information Centre (C.P.I.C.) data system accessible to police officers from their police cars ensures the speed and reliability of the process. The driver generally is questioned in his or her own vehicle or at worst, when there is an infraction, in the police cruiser. There is seldom a need to bring the driver to the police station. Nor is there usually a need for intrusive searches of the driver or the vehicle. If they were intrusive, they would probably be subject to challenge as infringing s. 8 of the Charter . The routine check impairs the s. 9 guarantee against arbitrary detention as little as possible"

So what happened to me was anything but brief. As I mentioned "spot check" detained me for at least 2 hours. I was stopped by Toronto Police, not the MTO. I faced the possibility of criminal charges. I incriminated myself with the mistaken belief that I should offer information.

I am not claiming any infringement under 7,8 or 9

I Am claiming that I was detained by Police for two hours, and was not informed of my right to counsel guaranteed under section 10(b). Why was I not entitled to that right?

From a government of Canada website

"The Constitution is the supreme law of Canada. Generally speaking, all other laws must be consistent with the rules set out in the Constitution. If they are not, they may not be valid. Since the Charter is part of the Constitution, laws that limit Charter rights may be invalid. This makes the Charter the most important law we have in Canada"

The Constitution (and Charter) supersede other laws. Please show me where it has been decided that my right to counsel when being detained was taken away

That is my argument

To answer a few questions

There was no lineup at the inspection station. It was a temporary station in a parking lot, they would get one truck at a time, inspect it, then go get another when they were done. There were 3 Toronto police inspecting the vehicle for two hours

I got the following tickets

Handled device- I admitted to that

Fail to surrender CVOR- my employer is disorganized with their paperwork

Overweight vehicle- it wasn't, we weighted it after the stop at proper certified truck scales

Fail to surrender inspection report- I have no excuse

Fail to display device- expired safety on trailer by 9 days, again company disorganized

I can restate my argument another way

It has been established that's is OK to infringe on someone's rights under section 7, 8 and 9 because road safety is more important to the public good.

Does that mean that it is OK to infringe upon other Charter rights in the interest of road safety? Do I still have my rights under 10(b) when I am detained for a traffic stop? The answer is obvious, of course I still have my other rights. If I didn't, I could be pulled over if I were say Jewish

"Fundamental freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion"

Or when I was pulled over the police could waterboard me

"Treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

So of course I have the right to counsel, and I was not told of that right

"10. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right"

There is detention and there is arrest in Canada. Detention does not automatically trigger the RTC and such where as arrest does. Basically when the Officer tells you that you are under arrest that is when RTC kicks in. Sometimes based on evidence a charge will get tossed when the courts believe that someone was actually arrested and not detained even though the subject was not told they were under arrest. But this is usually under criminal law and not HTA

Again in this case Neither applies as comercial vehicles accept they are subject to these inspections as part of their operation conditions. There fore there is no detention or arrest it is a traffic stop ans inspection that is explicitly allowed under Ontario laws and regs of the road.

ops

OPS Copper wrote:

Again in this case Neither applies as comercial vehicles accept they are subject to these inspections as part of their operation conditions. There fore there is no detention or arrest it is a traffic stop ans inspection that is explicitly allowed under Ontario laws and regs of the road.

ops

I've never heard it phrased as a part of the operating condition. The way I see it is that if you want to drive in Ontario have to follow the laws though if the laws are not constitutional that is a matter you have to resolve through the courts.

Section 82 of the HTA specifies that you can be "required" to submit to and assist with inspections and tests the officer considers "expedient".

If you had done the pre-trip inspection you would have seen an expired inspection sticker for the trailer and missing CVOR and parked the truck and told your employer you cannot drive the vehicle as it is. If you only have a G license you may have not ever really been trained on how to perform one, but I would hope from a worker safety standpoint you employer would ensure that you were.

As it stands most of the tickets are for things that would be apparent as soon as you were pulled over and have very little to do with an in depth inspection itself (cracked springs or tires, loose steering. etc). Even a successful constitutional argument might only offer you relief from the officer stating as evidence that you admitted to talking the phone while driving but as I said would not stop him from saying he saw you using it while driving.

Weighing a truck on mobile scales is problematic as they usually only weigh one axle at a time and are not always certified devices. When you leave a gravel pit their certified scale ticket will trump a portable scale for gross weight. If you don't already, you need to understand that the trucks plates need to be registered for at least the entire weight for both truck and trailer when fully loaded and that every axle needs to be loaded evenly in a manner that does not exceed its manufacturer's weight rating. I don't know that an after the fact weigh in will help much.

Most of the time when you get a whack of charges they tend to offer a pretty good deal in exchange for pleading guilty. It may be your best outcome.

I was taught differently from OPS Copper. Detention or arrest triggers RTC but there is an case law exception for traffic stops that are of a brief duration, ie a speeding ticket. If I was to inspect a vehicle for 2 hours I would have been giving RTC.

Having said that, it's all up to the judge on the day and I can't imagine a judge throwing out the evidence even if they do think there was a breach.

OK, lots of good advice, some disagree, some agree.

I do have my A license, but I am not a trucker. My job is delivering trailers to film sets and maintaining them. Our primary job is not trucking, it is just something we have to deal with. It was my first inspection, and I have never been into a weigh station as all my worker is local.

My point is that the stop was by Police, not MTO or at a weigh station.

I believe I can get off on some tickets like the ones that were given to both myself and the owner, but the one I really want to beat is the handled device ticket. That is the one that I admitted to, incriminating myself, because I had not been told of my right to counsel.

So again, all I am hoping is that I can raise an argument that is good enough to put a little doubt in the judges mind, enough for him to throw it out. If I can back it up with a little case law I think I am good to go

Here are a couple threads you should read:

Don't talk to police:

http://www.ontariohighwaytrafficact.com/topic7032.html

Representing yourself:

http://www.ontariohighwaytrafficact.com/topic7039.html

This is an update to this thread

http://www.ontariohighwaytrafficact.com/topic7160.html

I retained a paralegal, and he requested disclosure for me. The trail was on Feb 23, 2016. I didnt attend because we had not received disclosure, so we weren't ready to proceed. We were given a new trial date of April 4th, 2016. That works out to 9 months, 15 days from the date of the offence. So no go for 11B (I guess?)

So this really sucks for me on many levels. I feel I am being jerked around by the prosecution by them giving disclosure on the day of the trial. They must know that this will mean a new trial date. So this is basically the worst outcome for me. The trial is not far enough away for an 11b, I will have to pay my paralegal more money, and I still have these charges hanging over my head. Personally they are causing a great deal of concern because of the possible insurance penalties, and how it may effect my ability to work. I have been looking to change jobs but this is making the decision more complicated and it is holding me back advancing to a better job. It has caused a lot of tension between my employer and myself because for some explainable reason the police did not submit the tickets that my employer got and my employer has basically said its my problem now.

I have not seen the disclosure yet, the trial was 2 days ago.

How should I proceed? The officer had a body camera. I feel it is important to see the video of the initial stop to see if he followed the proper procedure. Should we ask for the body cam video? I think this may be difficult for them to produce because it happened 6 months ago, it is a new technology that they have to deal with, and maybe they dont have the procedures in place to save and reproduce the video.

Should I hire a lawyer? I feel that the paralegal may just look to negotiate the fines down as much as possible, rather than mount a tough defense. He has even mentioned that he knows the officer who stopped me.

thanks for the help

You are not the first truck driver to ever be stopped. Don't you think that if there were any chance at all for a charter arguement it would have been used, successfully in the past? Do not waste your time on it...The MTO and Police are well covered by statute to do what they did in regards to your stop. Yes, a class G licence is perfectly fine for many, not all, commercial motor vehicles and for doing the pre trip inspection reports. What is your Registered Gross Weight? and how much did you weigh in at? These all seem like legitimate charges, with the only questionable one being the over weight one. I would bet large money if you go in looking for a deal, they will give you one. They will likely drop 2 or 3 depending on your record and the company's record.

Yes, I think the 10B challenge is a dead end.

I am looking for ideas going forward. I actually started a new thread because I think we beat my last argument to death, but the moderator merged the threads into one.

Heres the thing. When the police were giving me the stack of tickets, they were giving a similar stack of tickets to the owner of the truck. The expired safety, no cvor, and overweight vehicle, plus two more different tickets were given to the owner. It was explained to me that they police understand that some charges such as the expired saftey, cvor and overweight were somewhat the responsibility of the owner, so they give the same tickets to both the driver and the owner, expecting that the owner will take responsibility for the ones that are his. Yes, I understand that as the driver I should just refuse to drive the truck, but that is basically just quiting, I was not ready to quit that day, though I am looking to move on. The police did not submit the owners tickets, so he got off. So 3 of these tickets I feel are not mine. At the very least these should be dropped. I also got a ticket for not doing an inspection report. I dont care about that and would be happy to plead guilty to that. That leaves the handheld device ticket. It was from last summer so it was the old $280 ticket. I want to get off that one.

I am thinking an early resolution meeting, after I review the disclosure, to see what deal they are willing to make?

any suggestions going forward?

Thanks for looking

If you are going to hire a paralegal, then you should hire one that is willing to discuss the disclosure with you and possible defenses. You said they gave it to paralegal at trial? Then you should get a copy of it from paralegal. Did the original request for disclosure include a request for the video? If not, then you should send another request for the video (assuming you think it will help your case, not hurt it).

You need to review the disclosure and see if the elements of each charge are in the notes. Again, your paralegal should review this with you.

If all the elements of charges are in the notes, then a plea deal may be worth considering. If there are elements missing, then taking all the way to trial might be an option.

The tickets you got are more on you than the owner. If you hold an A class then you already know that in addition to insurance, ownership and validation, that you are responsible for making sure that you have the CVOR Certificate, the pre-trip inspection and valid inspections for truck and trailer. If the owner does not provide them you don't drive until they are provided to you, it's not a matter of quitting, any professional driver would not be willing to break the law to make his boss happy.

The commercial truck tickets that you got are hard to beat because you either gave the officer the proper paperwork or you didn't. I would expect your paralegal to ask for a deal. I assume you hired a paralegal that specializes in commercial truck offences. Being convicted of all of these charges will make you essentially uninsurable and unemployable as a driver.

Without disclosure you do not know the nature of the overweight charge. This one is possibly winnable depending on the details.

If the ticket was for having an expired CVOR, you should be able to get out of that one because as a driver you have now way of knowing the status of the CVOR. But if you didn't surrender the form then it's on you.

At the end of the day I you can't anything but hire the best guy you can afford and hope he knows what he's doing.

"Being convicted of all of these charges will make you essentially uninsurable and unemployable as a driver." Not so, there are many, many truck drivers out there with horrible records, and yet they are still employed. He was driving an F450, so he may, or may not require an "A" licence...it depends what the registered gross weight is and if he is towing over 4,600kg...he may require a Restricted "A" or even a "D".

Either way, he will get a deal in court, it is very rare they would want to go to trial on all of the charges. The truck inspectors usually have their stuff tight so I wouldn't risk a trial. The company has shown their true colours, they are not backing their boy. Time to look for a new company...

Update

My paralegal has been requesting disclosure, and it has been either incomplete or the notes have been illegible. We then had a date ' to be spoken to" which got no results, and another trial date has been set

My new date is July 26 which is 13 months and 7 days after the initial traffic stop. Please tell me I now can get off with an 11b?

I also imagine I will get off the handheld device ticket because the officer who stopped me on the highway, who may have seen me talking on the phone, is not the officer who wrote the ticket and that officer is not the officer in charge and has not been showing up to court. How can I be convicted of using a handheld device if the officer does not come to court?

Thanks

The officer that witnessed you supposedly talking on your phone MUST be at the trial in order to testify, otherwise if the trial starts and the officer is not there, then they will have to drop that charge.

You can google information on filling an 11b, however you will need transcripts of all your previous court appearances because they need to be reviewed to determine if any delays should be counted against you or the prosecution. For example if you asked for a new trial date because you could not make the one set up already, then that would count against you and not the prosecution and the time between trials would not be counted towards an 11b because YOU requested the delay.

And the timer starts counting from the date you asked for a trial, not from the date you got charged.

Ok, I asked for a trial on June 26, 2015. My trial is now July 26, 2016. I know that all of the delay has been because of the prosecution. We asked for disclosure and it was incomplete, or the notes were illegible. We are still waiting for disclosure for the July 26 court date.

So it has been 13 months exactly from when I asked for a court date.

Is that long enough? It has been a nightmare having all these tickets hanging over my head

Yes it should be, but you will still need copies of the transcript from any court appearances already.

3 weeks before the July 26th trial date, I would file the 11b.

Update

So the saga continues

My paralegal's boss called me today at 9am. My trail is supposed to be at 1:30 today. He said that last friday my paralegal was in court and he noticed my name was on the docket for that day! The police officer was there, so without phoning me, and without my consent, he settled the case for me and plead guilty to the Handheld Device charge in exchange for all the other charges being dropped. I called the court office today and they listened to the transcript while I was on the phone. My paralegal told me the wrong date! I am not happy with this result for a number of reasons.

The officer who stopped me on the highway and who may have observed me talking on my phone was not in court. The officer who did the actual inspection was in court.

The Handheld device charge seems to me to be the most damaging charge to my driving record, even thought it is from the pre demerit point time.

It had also been 13 months since I asked for a trial. I asked my paralegal to apply for an 11B about a month ago and they didnt do it.

What should I do? Live with the result or ask for an appeal?

any advice?

I'm not an expert on such matters but I think there is a lot for you to do. I suspect you could have the paralegal's licence to practice taken away as he has no authority to plead guilty for you without instruction. Things like having a case reopened have strict time limits so you don't want to sit on this one.

I'd be having a conversation at volume with the paralegal office boss and see what they are prepared to do for you. Certainly your bill to them has disappeared and I'd think there might be some compensation coming the other way.