- Traffic was moving equally fast in HOV and non-HOV lanes. I had no motivation to be in the HOV lane.
- I had to be in TO (for a class) at 5, and was ticketed at 3pm. Even getting stopped, I was an hour early and I can document all of this. Not exactly relevant, but suggestive that I wasn't gaining any time by being in the HOV lane.
You should definitely request a trial and disclosure. The officer's notes will show what she saw and what she knows.
What happened was not a traffic disturbance. It was a split-second action by one driver. BIG difference!
In cross-examining the officer, I would ask her whether she would consider it a violation to cross the striped line to avoid a collision. Chances are she'd say no. Most people would say it's more important to avoid a collision, particularly with a truck. I'd then ask her if she would consider it a violation to cross the striped line again to get back out of the HOV lane. If she said no, I'd be in good position. My own testimony later would explain what happened and why I'd done what I'd done. If she were to say she would consider it a violation, I'd then ask her whether it would be better to cross that line again or to stay in the HOV lane until the next opportunity to get out of it.
What it boils down to is whether the JP would accept this defence as due diligence. If not, and as a last resort, if the JP insisted on a conviction, I would ask for no fine because of the circumstances. MTO would still apply the points, but I'd save $110.
They're uninterested as to why, this may only affect the fine. You will still be convicted.
Discretion really starts and ends with the officer. If you had dashcam video of the incident, showing it to the crown prosecutor may result in a withdrawal.
Bar none of these, you're not going anywhere. Best case would be an alternate charge if the prosecutor believes your explanation.
Take for example the hypothetical scenario of an accident or debris on the road, blocking the non-HOV lanes of the highway. If it were an absolute liability offence, you could be ticketed for using the HOV lane - even momentarily - to get around the blockage.
Regardless, I am going with a defense of necessity: it provides an excuse for otherwise unlawful conduct in the absence of alternative or to ensure safety. The argument I am going to try is that I had no choice but to move to the HOV lane, that I avoided another offence and potential safety issue by remaining in the lane until I was able to safely change lanes. I can produce a Google Earth image showing where the officer and I pulled over is just a stone's throw from the entry/exit points of the lane.
Any idea as to whether Halton OPP has dashcams or bodycams? I would love to see her viewpoint of the traffic stop and have the JP hear our conversation.
From a lay person's point of view, defence of necessity from avoiding a truck colliding with you on the highway sounds reasonable, not sure what others who have experience in court can say about it.
I think you are going to have a difficult time overcoming the 3rd hurdle of the necessity legal test
"ceasing to engage in the prohibited conduct as soon as the danger passed"
The officer will likely testify on how long she saw you in the HOV lane.
3. (1) Entry and exit points at which vehicles may enter or exit high occupancy vehicle lanes are located between buffer zones, illustrated in Figure A in section 4. O. Reg. 620/05, s. 3 (1).
(2) No person shall operate a motor vehicle or commercial motor vehicle to enter or exit a high occupancy vehicle lane by crossing a buffer zone, unless the movement can be made safely and one of the following circumstances exists:"
In my reading it says that once a necessity defence is established the onus shifts to the Crown to prove that I didn't act out of necessity. For example, if I had continued in the lane or that she saw me enter the lane without any other traffic. Uf she tells the truth, neither of those will occur, but as OPP HSD, she likely makes a lot of traffic stops and if the trial is in six months to a year, I can't be more than background noise in her memory.
My reading also suggests that OPP in the GTA does not have dashcams. Any information to support or refute that would be helpful. Do they wear bodycams?
Also read they can't say what you said unless they can show it was done freely, they would have to do something called a voir dire.
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