got pulled over on a bridge bus lane in Ottawa

bez
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Re: got pulled over on a bridge bus lane in Ottawa

by: bez on
Fri Apr 07, 2017 1:32 am

Zatota wrote:The charge probably should have been under s.4(1) of the NCCTPR. That subsection requires a driver to drive "in compliance with the laws of the province and the municipality in which the driveway is situated." That wording requires drivers to comply with the Ottawa by-law that governs the 3+ HOV lane on the bridge. HTA s.154.1 only deals with provincial HOV lanes, all of which are 2+.

I'm not a lawyer or paralegal, but I would think that, so long as the trial is at least six months after the offence date, the OP will be free and clear.
I'm a little confused about this 6 month cut off period. In another thread you said that the charge can be amended even if six months have passed and jsherk said that it can happen "even DURING the trial if there is evidence to support the amendment". Does that mean that they can simply amend it at the trial even if my trial date is more than six months from the offence date?


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by: Zatota on
Fri Apr 07, 2017 9:13 am

You're right. I wasn't fully focused when I wrote that. The prosecutor can amend the charge at any time. What I meant to say was that if you do win, the prosecutor withdraws the charge, etc., you cannot subsequently be charged with the correct offence after six months.

If I were in your position, I wouldn't show up for trial. If the JP catches the incorrect section, he will quash the charge. If not, you'll win on appeal.


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by: bez on
Fri Apr 07, 2017 10:12 am

Zatota wrote:You're right. I wasn't fully focused when I wrote that. The prosecutor can amend the charge at any time. What I meant to say was that if you do win, the prosecutor withdraws the charge, etc., you cannot subsequently be charged with the correct offence after six months.

If I were in your position, I wouldn't show up for trial. If the JP catches the incorrect section, he will quash the charge. If not, you'll win on appeal.
But if I do show up and it's been six months and the original charge is still there, can they amend it once I ask the JP to quash it due to incorrect charge?




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by: daggx on
Fri Apr 07, 2017 11:36 pm

Zatota wrote:You're right. I wasn't fully focused when I wrote that. The prosecutor can amend the charge at any time. What I meant to say was that if you do win, the prosecutor withdraws the charge, etc., you cannot subsequently be charged with the correct offence after six months.

If I were in your position, I wouldn't show up for trial. If the JP catches the incorrect section, he will quash the charge. If not, you'll win on appeal.
I don't think that would work in this case. The cop didn't just put the incorrect section number on the ticket, he charged the OP using a piece of legislation that does not apply to the road the OP was driving on. I would have thought that in this scenario the best thing to do would be to show up to trial and show the JP that this piece of legislation does not apply to the road the OP was driving on at the time of the incident. While I know that they can amend tickets to fix clerical errors at trial, I don't think they can whole sale change the charge on you. To do that I think they would have to withdraw the original charge and issue a new summons, which they can't do after the six month statute of limitations.


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by: Zatota on
Sat Apr 08, 2017 7:47 am

You may be right. It's a completely different ballgame if the OP shows up having been charged under a provincial act and sees the charge changed to one under a federal act. Perhaps one of our "resident" experts could chime in.


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by: devilsadvocate on
Sat Apr 08, 2017 8:35 am

OP: S.182(2) is simply the Disobey Sign charge, same penalty, 2 demerit points.
As for the NCCTPR, the official Act is found here. All S.4(1) says is the Regs allow enforcement of any Provincial or Municipal traffic regulation by proxy.

I won't say your chances are slim, but from my personal experience I would say you have at best a 50/50. I would say you're better off talking with the prosecutor and ask for NCCTPR S.6. Penalties are lower and there are no points as far as I know.
daggx wrote:I don't think that would work in this case. The cop didn't just put the incorrect section number on the ticket, he charged the OP using a piece of legislation that does not apply to the road the OP was driving on. I would have thought that in this scenario the best thing to do would be to show up to trial and show the JP that this piece of legislation does not apply to the road the OP was driving on at the time of the incident. While I know that they can amend tickets to fix clerical errors at trial, I don't think they can whole sale change the charge on you. To do that I think they would have to withdraw the original charge and issue a new summons, which they can't do after the six month statute of limitations.
I don't agree. I've seen it time and time again, especially with the NCCTPR, where the charge was amended at trial without issue.

The six month limitation is to amend or charge a defendant in the first instance, but in this case the charge was laid within that time obviously. The amendment I am referring to is during the trial, thus as long as it goes to trial it can be done. Mind you the JP may always decline it and it does happen but not often; I'm only speaking from my personal experience though. Furthermore, case law has supported these amendments in the past as long as they are not prejudicial, i.e. if the spirit - and more importantly the jeopardy of the charge remains the similar. Swapping HTA to NCCTPR pursuant to the HTA is essentially the exact same charge, with the exact same penalties.

Without getting into the weeds with the NCCTPR and all that, the fact is that it is not incorrect to charge under the HTA directly, because the NCCTPR is a higher Act referring to provincial legislation. In other words it's the exact same charge, but under a federal act instead of a provincial one. I know this sounds whacky to most people but it's one of those very many oddities in Ottawa...

Where the OP has a better ground for negotiation is the 154.1 vs. 182(2) or NCCTPR 6. But even this is more or less a good ground because again, the idea is the disrespect of the HOV lane, which idea is the same whether you use 154.1, 6, 182(2) or even a By-Law. The only difference is the type of road, which is accessory to the action itself IMO.

Hope this helps!
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by: bez on
Mon Apr 10, 2017 10:40 am

devilsadvocate wrote:OP: S.182(2) is simply the Disobey Sign charge, same penalty, 2 demerit points.
Where the OP has a better ground for negotiation is the 154.1 vs. 182(2) or NCCTPR 6. But even this is more or less a good ground because again, the idea is the disrespect of the HOV lane, which idea is the same whether you use 154.1, 6, 182(2) or even a By-Law. The only difference is the type of road, which is accessory to the action itself IMO.

Hope this helps!
What is the penalty for NCCTPR 6?
From what I can see 182(2) is essentially the same fine carrying 2 instead of 3 demerits but since I live in Quebec I shouldn't get any points.


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by: kodgkffc on
Tue Apr 18, 2017 11:58 pm

So I got the same thing in January. Link: improper-use-of-high-occupancy-vehicle- ... t8039.html

My court date is May 2. I assume I will be going to court before you about this matter, so I can certainly report back with what happened. So far, my understanding is to request them to drop the ticket once I meet with the prosecutor because of the wrong charge and show them that 154.1 (3) only applies to HOV lanes and not the Portage Bridge lane.


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by: bez on
Mon Oct 16, 2017 11:02 am

So I ended up missing the court date. I was expecting to receive a notice of conviction in the mail but when nothing arrived after a few weeks I called city to check the status of the ticket. They said "no funds owing" and instructed me to call the court and inquire. I called the court and the agent said that the ticket was withdrawn. Not sure why exactly, I guess I got lucky. If the officer didn't show up either would I still have gotten convicted in absence?


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by: argyll on
Mon Oct 16, 2017 2:19 pm

No, if you've set a trail date then the trial has to go ahead even if you are not there to give evidence on your behalf. The officer would take the stand and give evidence of the charge and you'd be convicted (except in one legendary case when the officer messed up the testimony and lost an unopposed trial !!). So, no, the charge was withdrawn prior to trial, likely because the crown saw something that was wrong.
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by: Decatur on
Mon Oct 16, 2017 3:44 pm

If the defendant does not show up at trial, under the POA, a section 9.1 is conducted and without a hearing or the officer being on the stand a conviction is registered if the certificate of offence is regular on its face.
The offcer is not required to be there for this process.


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by: argyll on
Mon Oct 16, 2017 4:13 pm

Decatur wrote:If the defendant does not show up at trial, under the POA, a section 9.1 is conducted and without a hearing or the officer being on the stand a conviction is registered if the certificate of offence is regular on its face.
The offcer is not required to be there for this process.
Not where I worked. Ex parte trials definitely occurred - very infrequently. Maybe it was only for summonses as opposed to trials as a result of a normal ticket........or else our courtroom worked differently ? You are, of course, correct about the Section 9.1 though so I'm not sure what was going on.
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