Charged with incorrect section of 148 - How to fight it?

Before Christmas I was following a truck on Highway 28 near Peterborough, two lane highway divided by yellow line. As it was moving quite slowly I pulled out to pass, in a legal dashed-line passing area. However, once I was out in the left lane I realised there was a car in front of the truck, which I couldn't see (because the truck was following so closely) and I now had to pass 2 vehicles. I looked at the road ahead and there wasn't any approaching traffic so I stepped on it to pass both vehicles.

All of a sudden there was approaching traffic - they must have really been going fast because they approached at a tremendous rate and I just barely got in front of the car I was passing to avoid a head on collision (or more likely the approaching traffic having to brake way down).

Turns out the car approaching was a cop. He pulled me over, but was very unclear about the reasons. He asked me if my brakes were working, wrote me a ticket, and then sped off. I didn't fully understand what I was being charged with - I'd passed in a legal area and frankly I think the cop's high rate of speed resulted in our near miss.

So here's the issue: When I got home and looked at the charge and it's 148(8)(b) - Roadway must be clear to the left of the vehicle from overtaking traffic. I think he meant to charge me with 148(8)(a) - Roadway must be clear from approaching traffic.

There was absolutely no issue with overtaking traffic. Nobody was trying to pass me. There wasn't anyone behind me at all.

What's the best way to fight this? I had a friend in the car that can back up my story - the offence I'm being charged with didn't happen. There may have been an offence under 148(8)(a), but that's not what I was charged with.

Thanks!

What does the wording on the ticket specifically say? Does the wording match the 148(8)(a) or 148(8)(b)?

Regardless, I would plead NOT GUILTY and request a trial with the officer present. Once you get your notice of trial, then you can request disclosure (copy of officers notes) and then better decide if there is a chance to beat it or not.

"He pulled me over, but was very unclear about the reasons" So...you had no Idea why the cop pulled you over? Remember that part where you said "just barely got in front of the car I was passing to avoid a head on collision" I wonder if that had anything to do with it...

In all likelihood the prosecution will seek an amendment to the charge if they discover that the wrong subsection was used. It will be up to the JP whether to grant it or not.

Hi jsherk, thanks for getting back to me.

The cop's notes on the ticket say "pass - roadway not clear overtaking traffic". So his wording matches the Section I've been charged under. But the fact remains that there was no issue with overtaking traffic. The lane beside me was clear when I pulled out to pass, and nobody was trying to overtake me from behind.

I've already got a date to meet the prosecutor for a pre-trial. Is there any point of discussing this? Does it matter that I had a friend in the car who will make a statement this didn't occur? Will it help me if the cop's full notes all relate to approaching traffic and don't at all match the Section I'm charged under? Is there a chance they might change the charge (can they do this after the fact?)?

Appreciate your advice here.

Just remember that when you show them they made a mistake, this gives them an opportunity to correct it. In my opinion, you should cancel early resolution meeting and say you plan to plead not guilty and want a trial date. Do NOT tell them about the mistake. On the trial date you and your friend can show up, and when the officer is on the stand giving their version you will be able to cross examine them and ask them questions and get them to say it is wrong charge.

jsherk wrote:

Just remember that when you show them they made a mistake, this gives them an opportunity to correct it. In my opinion, you should cancel early resolution meeting and say you plan to plead not guilty and want a trial date. Do NOT tell them about the mistake. On the trial date you and your friend can show up, and when the officer is on the stand giving their version you will be able to cross examine them and ask them questions and get them to say it is wrong charge.

Really? They are allowed to go back in time and change the charge? They can look at the cop's notes and say "actually we meant to charge you with X"? That seems a bit unfair....

Also, my friend lives out of town and it's unlikely he can come to court. Is it acceptable, or would you recommend having him type up and sign a statement?

thanks again!

For provincial offences, they have up to 6 months from the date of the offence to issue a ticket. So if they realize it was the wrong charge, before the 6 months is up, they could withdraw/drop the existing charge and re-issue a new ticket with the correct charge on it. Once you pass the 6 month mark, then it is okay to tell them about the problem, but before you hit 6 months I would not mention it.

For friend to testify, he has to be there in person. A typed statement will not be accepted.

Even if you don't mention it to the prosecutor, ever, and this goes to trial, the prosecutor can ask to amend the charge. You will be given a chance to object to it but the prosecutor will have a very good chance at getting the amendment. The evidence will show exactly what happened and the amendment is to another subsection within the main section of 148(8)...it is merely going from 148(8)(b) to 148(8)(a)...this is not a huge leap, there is no real change in the substance of the charge...the way I see it is, at best, the JP would put the matter over to another trial date to allow you to prepare a defence. If the prosecutor was asking for an amendment to a totally different, and unrelated section, you would have a much easier time to argue against the amendment

Thanks for the advice.

Is it worth meeting with the prosecutor to see what she's got up her sleeve? Maybe I'd get a chance to see the cop's notes?

If 6 months goes by can they still amend the charge?

Also, is there a chance by meeting with the prosecutor I might be able to plead down to something lesser? I have a perfect driving record.

thanks again

Forget Early Resolution. You won't have disclosure, so you won't know all the "facts." Any deal the prosecutor may offer would likely be a "take-it-or-leave-it" offer that wouldn't be made again at the trial. If, however, you plead not guilty and request a trial, you'll be able to obtain disclosure. The day of the trial, by all means, speak with the prosecutor ahead of time (in many courts, the prosecutor waits outside to meet defendants and try to work deals before even going in).

The charge can be amended at any time prior to the start of the trial, even if six months have passed. Once the trial starts, the prosecutor can no longer amend.

Once the trial starts, yes the prosecutor can still amend... the amendment can happen anytime DURING the trial if there is evidence to support the amendment.

I stand corrected.

I think if the charge is changed well into the trial then a request for a mistrial would not be unreasonable as a person may have decided not to fight the charge or seek out a plea if there was no error. Worst case scenario an adjournment should be awarded. At the very least any delay caused should not be considered your fault getting you some 11b points.

Thanks Everyone,

A few questions: What are 11b points?

Also, if I move to have the trial, how do I get the disclosure? Do I need to apply for it or is it simply provided?

If the disclosure looks bad, is there still an opportunity to try and work a deal with the prosecutor? As you say, on the day of the trial?

thanks again

RESOLUTION:

In case anyone is interested I had my trial this week. My plan was to: A) ask for dismissal because they charged me with the wrong section of the Act [148(8)(b) instead of 148(8)(a)]. I planned to tell the JOP that there was no evidence to support the charge; B) if they would not dismiss I'd ask for an adjournment to prepare for the amended charge to 148(8)(a).

There was good evidence in the cop's notes to support my side of the story that the road "in front and to the left" of me was clear when I made the pass. The cop's own notes indicated he was around the bend, and couldn't see me until he rounded the bend, and I was already in the act of passing. So by logic, if he couldn't see me then I couldn't see him. So from my perspective the road was clear.

However.... I had a chance to talk to the prosecutor before the trial. He was making deals all morning. To the point where I was the only trial that might have a chance of proceeding, out of a list of about 20. He asked what I wanted and I told him "I want the charge dismissed, but I'd settle for something with no points". So we had a chat with the cop (who was there) and we all agreed to Interfere with Traffic - it's $85 fine and no points.

Bottom Line for me: Always fight it. Always go to trial. There are so many opportunities to deal along the way. Right up until they call you to the stand. And at that point if you have no case you can still ask the JOP to go easier on you. But from what I could see they are looking to deal. Nobody wants a trial. The cop actually thanked me afterward since he could get out of there.

I don't know if a simple fine like that will hit my insurance. I still have a conviction - but a far lesser charge that carries no points. So we will see. Enjoy the weekend!

jcorn wrote:

I don't know if a simple fine like that will hit my insurance. I still have a conviction - but a far lesser charge that carries no points. So we will see. Enjoy the weekend!

Your insurance provider doesn't base its surcharge percentages off of how many demerit points a charge has. It just so happens that more serious charges tend to come with more demerit points. Demerit points last 2 years from the date you were charged. If you were charged December 2016, the points will disappear December 2018. For your average fully licensed driver, they tend to be completely useless.

Your provider will put everything in 3 categories. Practically every run of the mill charge will fall into the first category.

The second category is usually the same charges with a safety element (school zone, school bus, school crossings, etc), breaking graduated license conditions, false statements and things of that nature.

The third is for the worst. Careless, racing, speeding over 50, impaired, driving with no insurance, etc.

Trading one minor charge for another isn't going to necessarily help with your insurance, no matter the points or the lesser fine. However, your provider may not charge you for the first minor conviction, so you might not end up paying anything extra at all. Hopefully that will be the case. Good luck.