Handheld communication device 778.1(1) ticket

hi there, I got a handheld communication device 78.1(1) ticket yesterday and I would like to get some info please.

I was stopped at a red light and I did check my cell phone - and raised the cell phone for my wife sitting on the back seat to see the time. while I am holding my cell up for her to see a cop shows up at my right and sees the cell phone in my raised hand. I know it was stupid but it happened .... it was in the air for probably just 2-3 seconds ... and I did tell the police officer that I was just showing the time to my wife sitting in the back.

I am wondering what my chances are to go to court with this ... since as I read on this forum (thanks for that) there is no lesser charge for this offence.

So if I choose option 2 on the ticket - early resolution - meet with prosecutor ... is there any chance to get the fine reduced / demerit points dropped ? is this worth it or go with option 3 - trial option ?

Also if I choose option 3 trial option - I understand that there is a chance that I could get the fine increased to 1000 ? I would like to avoid that since I will also spend the time to go to court/prepare/ ask for the disclosure ... is it worth it then if there is not lesser charge ... in your experience what is the percentage of these fines to be reduced by going to court ? I did see one topic on this forum that the ticket was reduced to 200 or so and no demerit points ...

I am more worried about the 3 demerit points than the fine - since that will affect my insurance rate. I know that it looks like the law is not on my side this time but it is a little bit extreme to get 3 points for this ...

Thanks for your time.

Demerits do not affect insurance. For example a 0 demerit speeding charge (1 to 15 over) will cause the same insurance increase as a 3 demerit speeding charge (16 to 29 over).

But in court they will NEVER lower the demerits (actually they can legally NOT lower them).

Whatever charge you end up pleading guilty to, the associated demerits will be applied but the demerits themselves do not affect insurance. The charge itself is what the insurance will look at to determine increase or not.

You might get the fine reduced if you go to court and plead guilty, but no guarantee.

I thought there was a case law were somebody picked up there phone off the floor and put it on the seat while stopped... I can't remember the outcome though, but I believe the court said "they touched it so they are guilty" and this would apply to you.

However you should still plead NOT GUILTY and request a trial with the officer present. Once you get the Notice of Trial you can then request disclosure (copy of officers notes). Once you get the notes post them back here and we can tell you whether you have a chance at beating it or not.

thanks a lot for the info - it really helps ...

but is there a risk that once in court the judge increases the fine to 1000 because the officer clearly saw the phone in my raised hand ?

thanks again.

Well that can only happen if you actually go to trial AND the JP thinks what you did was really a big issue.

So you can pay the original fine right up to just before the trial starts and then they can't raise it.

However in your situation (assuming the officer has good notes and we do not see any good defense) then you might want to consider "guilty with an explanation" in which case you and your wife could both testify and the JP might consder lowering the fine based on the fact that you were not moving and just showed her the time. So of course we want to see the officers notes first, but most likely is could probably get a reduced fine.

But if you plead guilty, even with a reduced fine, it may still increase your insurance.

thanks again for the explanation. so if I pay the original fine - and then the JP lowers the fine do I get back the difference ?

also based on what you said about the "guilty with explanation" wouldn't be a good idea then to choose "option 2 Early resolution" and meet with a prosecutor ? and explain him the situation ? could I get a reduced fine in that case ?

sorry for all the questions but I really want to get the whole picture before I make a decision.

thank you.

dudilek wrote:

thanks again for the explanation. so if I pay the original fine - and then the JP lowers the fine do I get back the difference ?

also based on what you said about the "guilty with explanation" wouldn't be a good idea then to choose "option 2 Early resolution" and meet with a prosecutor ? and explain him the situation ? could I get a reduced fine in that case ?

sorry for all the questions but I really want to get the whole picture before I make a decision.

thank you.

If you pay the fine, you are pleading guilty.

If you choose to plea guilty with an explanation you will be convicted of the same offence, but have the opportunity to go on record with your statement.

Where many self-represented defendants unnecessarily convict themselves is in assuming that they should explain or justify what occurred at court, invariably helping the Prosecutor and convicting themselves. A defendant may be a good person, but even good people break the law unintentionally or otherwise. Having a charge withdrawn or dismissed come down to the legal merits of the Prosecutor's case, the evaluation of which is the primary focus of an early resolution meeting. Aside from such a resolution, the decision then comes down to whether to proceed to trial or whether the two parties can reach a mutually agreeable resolution.

For a part one DRIVE WITH HANDHELD COMMUNICATION DEVICE offence, it would be incredibly uncommon to see a Justice issue an elevated fine.

If you pay before the trial, then you are admitting guilt and there is no trial. You payed full price so everything is done and there are no refunds and no opportunity to get it lowered.

I do not recommend early resolution because you will not have an opportunity to see disclsoure (officers notes), which you have the right to see. Early resolution might lead to an offer from the prosecutor to agree to a reduced fine, but may not. Whatever is decided at early resolution, still requires you to attend again for a trial, so in my opinion it is just a wasted trip as you can speak to prosecutor before the trial starts (instead of early resolution) and they may or may not agree to reduced fine at that time as well. Either way it does not matter because you still have to go to trial anyways and you can ask the JP at trial for a reduction in the fine whether the prosecutor agrees or not.

many thanks for both of you ! it's nice to see people helping others even if they don't have to.

Just a quick note, I have HEARD, but not actually SEEN that certain jurisdictions will plead this down to a lesser charge. No idea if your jurisdiction is one of those that may be willing to make a deal.

So even if the prosecutor does offer some sort of lesser charge, remember that insurance may not see any difference.

Insurance companies classify convictions as either MINOR, MAJOR or SERIOUS, so a lesser charge (from Highway Traffic Act and fine perpsective) may still cause the same inusurance increase.

You can ask your insurance company for a list of charges that fall under each category to get an idea of what each one is.

Hi all, thanks for everyone's comments. I need to find a bit of time to go through them again when I have a free moment.

One thing I want to note though - the region I'm in apparently got rid of "early resolution" as of January 2017. So I was a bit confused about this... Because I was told by some that they had opportunities to speak with prosecutors (even prior to the initial step of pleading not guilty) and then they would be able to negotiate the fine and/or the charge. But as I'm reading these comments... It sounds like "early resolution" is not the new option 2 (guilty with submission for negotiating the fine), but that it is something that comes up before the actual court date / trial (that is, after you choose option 3 - not guilty, and wait for the court date).

The admin told me the district opted out of the "early resolution" option. And then the JPM I spoke with told me that he can only do something about the fine, but not the charge. When I asked him if there was any downside with pleading not guilty now, and talking to the prosecutor prior to trial to negotiate with him/her then to potentially adjust both the fine AND the charge, he said "no, other than time".

So after you submit not guilty and you're waiting for them to send you details in the mail... How do you go about getting disclosure on the officers' notes? Also, how do you go about speaking with the prosecutor prior to trial? If possible I'd like to talk to a prosecutor even before going to trial... But this may or may not be an option in this region now? (I guess besides 30mins before the trial)

Are you in York Region?

If you request for a trial, you can request for disclosure after you receive a Notice of Trial. Some jurisdictions provide you with a form that you can fill out, or you can submit your own detailed request for disclosure.

Despite popular belief, you have the ability to speak with a prosecutor at any time between now and your trial, even without the option of Early Resolution on the ticket. Most municipalities will have prosecutor's offices that you can go to speak to a prosecutor; you can also send in a letter or fax or make a phone call to discuss the possible resolution of your matter.

In general, the court system wants to avoid having a trial because it's costly and time consuming. This is still true for Provincial Offences. The prosecutor will be happy to talk about a possible resolution if that means avoiding a trial. That's why almost always the prosecutor will offer a plea deal again on the day of trial.