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Ontario Highway Traffic Act

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Urgent - Illegal Stop & Arrest On Private Property
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PostPosted: Tue Sep 06, 2016 2:59 pm 
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I've searched for hours looking for a similar situation to mine on a number of forums, and I couldn't come up with anything close. I know I need to file for disclosure tomorrow (my court date is October 7th), and plan to do so regardless of what else I end up doing, but I could really use some help with this one.

I was arrested on private property after being watched and stalked for over two hours by an officer for allegedly having put the wrong licence plate sticker on my car and my ownership - use validation not furnished for vehicle, 12 (1) (a), and alter permit 12 (1) (a) - even though I did not leave private property and had no intention of doing so. Not only was I not guilty of any crime or violation, but the entire stop was clearly illegal and a result of the emotional state of the officer.

Here's a copy of the formal online complaint which I filed against the officer:

Quote:
Date: August 26, 2016

Location: Tim Horton’s / Petro Canada Parking Lot

I first moved my car to the Tim Horton’s side of the parking lot, where I noticed two police cruisers parked and the officers chatting with their windows down. I went inside Tim Horton’s with my dad and ordered coffee and food.

About 15 minutes later, I saw another police cruiser park next to the other two, and begin chatting with the windows down.

About 30 minutes later, I saw two of the three cruisers leave, with the third moving and parking directly across the window where we were sitting. I noticed the officer in the cruiser appeared to be watching us. At one point, I couldn’t ignore the feeling and told my dad I thought we were being watched. It was extremely unnerving.

About 1 hour later, I went to the washroom, then left Tim Horton’s and headed to my car with my dad. I started my car, and saw the cruiser pull out of the parking spot it had occupied for at least an hour and a half, then swing around far behind us at the end of the lot.

I then drove across the parking lot to the Petro Canada to fill the tires with air, and the cruiser followed us and parked facing us in front of the Petro Canada, then moved and parked facing us near the adjacent car wash. At this point I felt certain that I was being stalked and I wondered why, which was very distressing. I decided to park my car and ask the officer why I was being followed on private property. I actually told this to my dad before starting my car as I was putting the valve caps back on.

I moved the car slowly through the gas pumps, around the front of Tim Horton’s, then to the back of the lot in Tim Horton’s where there is no exit point, parked the car in the same spot it had been before, and shut off the engine. At that point the officer turned on his lights and pulled up behind me.

Clearly angry, he approached quickly and said “You’re under arrest. You made me, didn’t you? I stopped you just as you were pulling out.” His first statement was intimidating and I was shocked and frightened, which was clearly his intention. His second statement was in a very angry tone, telling me he was aware I knew that he was following me, which I was. His third statement was complete fabrication. At no point did I intend to leave private property, as I was extremely upset about this officer stalking me, and I knew the law and my rights. At no point during the illegal stop did the officer explain I was being arrested under the Highway Traffic Act, and at no point would the officer listen to anything I had to say. At one point the officer, again in a threatening way, implied I did not in fact own my car, which he later attempted to explain away.

The car never left private property the entire time I was with the car or it was within sight of the officer. I can attest to this, as can my witness. The G.P.S. tracking system in the cruiser will also confirm that, at no point between the time the officer was parked for at least 2 hours to when he pulled up behind me, did he even leave the parking lot. There were also witnesses who watched the officer pull up behind my parked car with his lights on and get out of his cruiser. I have detailed pictures and satellite imagery of the entire parking lot.

I was wrongfully stopped on private property, unlawfully arrested and intimidated, and unlawfully detained by this officer who clearly knew he was in violation of the law given his actions and words. I would have hoped that this officer could have followed the law and either allowed me to park and approach him for a civil conversation, or simply point out the problem to me so I had the opportunity to correct it.

This was an illegal stop with two illegal charges which I would request be both dropped and completely expunged from my record.

Thank you for your time, and in advance for your assistance.


What I didn't include in my complaint since I didn't find it relevant was that another officer appeared during my 'stop', and my arresting officer and that officer spoke at length. I'd also told my dad that I wanted to ask the officer what the problem was, and that we might have to walk home to get whatever it was taken care of.

I plan to ask for the following disclosure:

o a full copy of the police officer’s notes;
o a copy of both sides of the officer’s copy of the ticket (Notice of Offence);
o a typed version of any hand written notes;
o if short-form writing is used any of the officer's notes, please have the officer provide an explanation for the short forms;
o the full Global Position System (G.P.S.) records for police cruiser the police officer was driving for that day, August 26, 2016;
o the full Global Position System (G.P.S.) records for any other police cruisers who parked in that parking lot on that day, August 26, 2016;
o a full copy of the other police officer’s notes who arrived during my stop;
o a typed version of any hand written notes of the other police officer who arrived during my stop;
o witness will say statements;
o witness statements;
o any statements made by the defendant;
o copies of the original notes of such statements; and
o the names and address, occupation and criminal record of the persons providing such information.

The officer likely saw me arriving on that side of the parking lot, but did not see me driving the car on a public highway. His behaviour clearly demonstrates that, as he could have stopped me the moment I arrived if I had in fact driven the car there, and he certainly would not have waited over two hours and followed me around the parking lot were he following the law himself. I know for a fact that, regardless of his notes or what he said to me, the officer's cruiser did not leave private property during the entire time I went through this ordeal. The G.P.S. record of his cruiser can't lie. I also have my dad as a witness who was with me the entire time (and who also suffered harassment as a result of this mess).

Just to add to my defense, the area of the parking lot where I was stopped has no exit points other than through the drive through. I took pictures of the entire parking lot, though I did so with my mobile and I'm not sure if they'll be admissible. I was parked (and 'stopped' while stopped) just above the red car in this Google Earth image:

https://goo.gl/maps/wuQDj8kdLG72

Now, for my questions:

1.) Am I missing anything in my disclosure request? Should I mention that there is precedent set for the disclosure of G.P.S. records of police cruisers based on Halton Regional Police Services Board (Re), 2012 CanLII 69028 (ON IPC), 2012-10-26, dockets MO-2805 & MA11-487?

2.) Could I file right now for a Charter of Rights and Freedoms violation to get these charges quashed?

3.) Could I get these charges quashed in a motion before entering my not guilty plea?

4.) How do I correctly document the area in which I was stopped has no exit?

5.) Can I handle both charges together, or do I need to present separate disclosure letters and essentially double everything I do to cover both charges?

6.) Any other thoughts or advice I need to know right now?

Thank you all so much in advance for your help!


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 4:04 pm 
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Posts: 38
Not telling you not to attempt a trial. However ... S. 217(2) permits the officer to arrest you for an offence under 12(1) of the HTA and the offence under 12(1) can occur anywhere even on private property. So the arrest and charge wasn't unlawful. You may have not liked the manner in which it occurred but nothing unlawful about it. The officer was within his authorities under the HTA from what you describe.


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 4:08 pm 
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Posts: 711
A few quick points as I'm heading out.

a. There is nothing in the Act that says a vehicle involved with this offence has to be on a highway.
b. The area where you are stopped does have an exit, both through the drive through and also back through the entrance - there is an arrow on the tarmac visible on the photo
c. You say you had no intention of driving it away ? While irrelevant, see point a, what else were you going to do with your car ?
d. by private property, you don't mean your property. Tim Hortons are big supporters of the police. Unless they told the police to leave then you have nothing.

To answer your questions:

1. you need to show why you want items being requested. The GPS records prove nothing relevant.
2. you can file but you won't win.
3. ditto
4. don't use the picture you posted here because it says the opposite
5. both charges are dealt with together
6. it appears to be a valid stop, whether or not you didn't like the officer's attitude.

It seems pretty clear that you knew you were committing an offence and that you were aware of what the problem was and that's why you didn't drive away. It is not normal behaviour to leave the parking lot, fill up the tires, and then return to the parking lot again.

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Former Ontario Police Officer. Advice will become less relevant as the time goes by !


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 5:20 pm 
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I agree...at no time did the OP state he did have the correct validation on the plate and that everything else was in order...given those types of charges there likely wasn't any insurance on the car either...and as the others have stated, it is an anywhere offence, it does not have to be on a highway...if there were no cops around the OP would have left the lot after his visit to the coffee shop...I am curious what the OP would have to say if he were indeed stopped elsewhere on the highway...


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 5:29 pm 
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Joined: Thu Jul 26, 2012 1:18 pm
Posts: 1654
So I am confused...

Were you actually arrested (put in back of cruiser and taken to station)?
What was the specific charge you were arreted for?
I do not see how you can arrested for 12(1)(a) under the HTA!

However (although I disagree with this) 12(1)(a) does not require you to be driving on a public road/highway. If you put the wrong plate on your car on your own property and never left your property they can still charge you with it.

Why did the officer think you had the wrong sticker on your plate and ownership? Did you have the wrong one on it?

Anyways, yes you need disclosure before you can figure out how to deal with this as you need the officers notes to know what he will say.
- This is how I ask for officers notes: Provide a full copy of the notes of ALL officers involved (there were at least 2 officers that I am aware of). Include a typed copy of any of the above notes that are hand written, since hand writing is usually very hard to decipher. Also provide an explanation of any short-forms or abbreviations used in the above notes.
- A full copy of the officer copy of the ticket is called the Certificate of Offence, which is filed with court. The Notice of Offence is your copy that you got already. Unless you were given a summons and then I am not sure of the terminology.
1) You can mention the case about GPS records having to be disclosed, but I do not think it is binding so you may have to present the same argument to the JP to try and get them.
2) I don't know.
3) I don't know.
4) Pictures you took yourself. They need to be printed out at a place like WalMart and they need to have date stamps on them. You will need 3 copies of each picture.
5) I think you can deal with them with one request, as it would all be the same disclosure.

_________________
+++ This is not legal advice, only my opinion +++


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 5:53 pm 
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Posts: 711
Arrest powers
Assisting officers
217. (1) Every person called upon to assist a police officer or officer appointed for carrying out the provisions of this Act in the arrest of a person suspected of having committed any offence mentioned in subsection (2) may assist if he or she knows that the person calling on him or her for assistance is a police officer or officer appointed for carrying out the provisions of this Act, and does not know that there are no reasonable grounds for the suspicion. R.S.O. 1990, c. H.8, s. 217 (1).

Arrests without warrant
(2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9 (1), subsection 12 (1), subsection 13 (1), subsection 33 (3), subsection 47 (5), (6), (7) or (8), section 51, 53, subsection 106 (8.2), section 130, 172 or 184, subsection 185 (3), clause 200 (1) (a) or subsection 216 (1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention. R.S.O. 1990, c. H.8, s. 217 (2); 1993, c. 40, s. 8; 2009, c. 5, s. 55.

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Former Ontario Police Officer. Advice will become less relevant as the time goes by !


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 6:00 pm 
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Joined: Thu Jul 26, 2012 1:18 pm
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Okay well I guess you can be arrested for 12(1) !!!

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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 7:02 pm 
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Joined: Tue Sep 06, 2016 1:51 am
Posts: 7
I'm really surprised by the some of the responses so far.

I've read repeatedly that Highway Traffic Act is not applicable in Ontario on private property. It doesn't matter who owns the property, only that it is private property. There's a massive amount of current supporting information on that out there:

https://www.google.ca/?q=does+highway+t ... e+property

What I intended to do with my car is park it, then approach the officer and ask him what the problem was. That's actually what I told my dad before we were 'stopped'. The officer's abnormal behaviour is what caused my abnormal behaviour. It's not normal for a police officer to stalk someone when they're out for coffee with their dad for hours, then around a parking lot.

If I don't even need insurance or any plates whatsoever to drive the car on private property - I could draw a numbered plate with crayon - I find it really hard to believe something like this should stand. Even the officer himself felt compelled to stalk me around the parking lot until he realized I would not be leaving private property and gave up. Why wait for me to leave, and make a false statement to that effect, if it isn't relevant to the charge?

If I were stopped on the highway - not elsewhere on the highway, as I was not on a highway - I would be guilty of the charges. I was not and am not.

I really don't appreciate the comments about my character, too. I did in fact have my plates on the car, and valid insurance for those plates as well. I was also able to walk home with my dad, take another car to Service Ontario, and correct the problem with the stickers that same day. The officer did not remove my plate from the car as it was properly attached and I had insurance.

The stickers for my other car were allegedly erroneously applied to the car that was in the parking lot. That took me a good long walk on a hot day and 45 minutes at Service Ontario to straighten out. The officer attempted to coerce me to admit I had done this intentionally, but I did not and would not admit to that.

I was notified of my arrest, and was honestly shocked and really freaked out. Arrested for no front plate in a parking lot?! The officer said he did not care about my front plate, but would not tell me that I was being arrested under the H.T.A. He told me I was free to go after the arrest.

How does 12(1)(a) does not require you to be driving on a public road / highway when the entire act (as of 2013 outside of very serious accidents) isn't enforceable on private property? I need that one explained to me in detail as it doesn't agree with everything I've read outside of this thread.

Thanks for the time you've all taken to respond so far.


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 7:21 pm 
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Maybe it's just me, but I am guessing you drove the car there...you admit your guilt when you were on the highway...So you were guilty then, but not on the private property, and you would have been guilty again when you were going to leave the private lot?...several different people have pointed out why the enforcement action was ok, even though it was on private property, argyll even went so far as to quote the relevant sections...but because you disagree with the law, there is no way any of these learned people can be right...Hmmmm
and just for clarification: some secitons of the HTA apply to a highway only, and some are anywhere offences...


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 7:24 pm 
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Joined: Thu Jul 26, 2012 1:18 pm
Posts: 1654
I totally agree that tickets like this on private property should not stand. But you will need to fight for that hard, as it will not be an easy one to win. Would love to see all your arguments and case law you will be using!

Were the plates on the vehicle the correct plates for that vehicle?

So just the sticker was the wrong one and not for those plates?

Where are the plates that the stickers were actually for? Did these other plates also have the incorrect sticker on them (meaning you criss-crossed stickers and placed them on the wrong plates)?

Did he say you are under arrest and put you in the cruiser?

Once you get the disclosure, scan and post it here (black out any personal/officer info) so we can comment further.

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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 7:32 pm 
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I admit no guilt whatsoever as I did NOT operate the vehicle in question on the highway. The officer waited for over two hours for the opportunity to catch me doing so, but I did not do so. I feel that makes the G.P.S. records of his cruiser not only relevant, but crucial to my defence.

Here's my point with these "anywhere offenses":

Quote:
Case law in Ontario has determined that the Ontario Highway Traffic Act does not apply to private parking lots. The Supreme Court of Ontario decided an appeal in the matter of R. v. Tresham, and the applicability of the Ontario Highway Traffic Act in matters involving parking lots. It was held that the purpose of the Ontario Highway Traffic Act was not to regulate vehicles on private property, including, private parking lots. When reading the Ontario Highway Traffic Act, the definition of a Highway it stated to include any public place, but one must consider the purpose of the parking lot as well. In R. v. Tresham, it was held that a parking lot adjacent to a business or businesses was not public property, but rather a parking lot created to facilitate the parking of vehicles by those patrons who are conducting business at that location.The case goes on to cover some circumstances when the Ontario Highway Traffic Act might apply. Examples given include a vehicle that is about to enter the highway, or a vehicle that was observed on the highway, entering a private parking lot. In those circumstances, it was held that the Ontario Highway Traffic Act does apply by virtue of the the vehicle being on a highway or about to enter the highway. Keep in mind there are offences for Failing to Remain under the Criminal Code of Canada, which applies everywhere in Canada, including private property.


http://www.seniorsafetytips.ca/askbob_p ... glots.html

If the officer knew I drove the car to that parking lot, he could and would have arrested me as soon as I arrived, or as soon as I got back in the car to move the car. He did not, suggesting he was and is aware of the applicability of these charges, and my not having left the parking lot was an effort to avoid breaking any laws and correct them in good faith before having done so, as I did immediately upon being released.

The car obviously had been driven to that parking lot at some point, but that isn't relevant to these charges.

jsherk wrote:
I totally agree that tickets like this on private property should not stand. But you will need to fight for that hard, as it will not be an easy one to win. Would love to see all your arguments and case law you will be using!


I'm very happy you've responded, as I was hoping for your input in particular.

jsherk wrote:
Were the plates on the vehicle the correct plates for that vehicle?


Yes, they were.

jsherk wrote:
So just the sticker was the wrong one and not for those plates?


Correct.

jsherk wrote:
Where are the plates that the stickers were actually for? Did these other plates also have the incorrect sticker on them (meaning you criss-crossed stickers and placed them on the wrong plates)?


They were for my other car. I was not aware that the stickers on my plate and registration were for the wrong car. Both cars are owned and insured by me, before anyone asks.

jsherk wrote:
Did he say you are under arrest and put you in the cruiser?


No, he arrested me and read me my rights through my window.

jsherk wrote:
Once you get the disclosure, scan and post it here (black out any personal/officer info) so we can comment further.


Will do!


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 8:40 pm 
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How is 12(1)(a) enforceable on private property if the entire Highway Traffic Act (as of 2013 outside of very serious accidents and charges under the criminal code) isn't enforceable on private property? Where is the case law supporting these "anywhere offences"?

If 12(1)(a) is enforceable on private property, why did the officer clearly have to wait until I left private property to arrest me (and give up and arrest me anyway with the false statement that I was intending to leave - as if he can legally determine my thoughts - when I did not)? That strongly supports my interpretation of my rights, case law, and so on.

Was this arrest even handled properly?

Literally everything I'm reading - including the case law that I referenced above and multiple interviews and quotes from both current and retired police officers - states that the entire Act isn't enforceable on private property, yet I'm getting the opposite message here.


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 8:53 pm 
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+1 for R. v. Tresham - I have not dealt with a situation like this before, so will be interesting to follow. You may not even have to testify... in cross-examination if you ask the officer if he saw you arrive or saw you drive on the highway, then most likely he will have to say no. Then you provide case law, and then there are no grounds for the charge and then there is no ground for the arrest and then the arrest was therefore unlawful and therefore a violation of your charter rights.

I think when there is charter violation, you can bring that up right away and then it gets dealt with first before the trial starts. If you win then the charge is dropped and goes no further. If you lose, then the trial continues as normal.

Completely independent of the trial, you can also file a complaint against the officer with the OIPRD http://www.oiprd.on.ca

And completely independent of trial or oiprd complaint, you can make a civil suit against the officer for violating your rights. There are a few recent cases I remember reading where people have won between $2500 and $15000.

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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 9:09 pm 
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jsherk wrote:
+1 for R. v. Tresham - I have not dealt with a situation like this before, so will be interesting to follow. You may not even have to testify... in cross-examination if you ask the officer if he saw you arrive or saw you drive on the highway, then most likely he will have to say no. Then you provide case law, and then there are no grounds for the charge and then there is no ground for the arrest and then the arrest was therefore unlawful and therefore a violation of your charter rights.

I think when there is charter violation, you can bring that up right away and then it gets dealt with first before the trial starts. If you win then the charge is dropped and goes no further. If you lose, then the trial continues as normal.


He will either have to say no or explain his behaviour... and I can't think of an explanation that would cover that at all.

Thank you again for help!!! It felt like the officer from the scene was writing some of these replies himself, and those replies do not agree with case law and our rights under the Charter!

jsherk wrote:
Completely independent of the trial, you can also file a complaint against the officer with the OIPRD http://www.oiprd.on.ca


I reported the officer that same night.

jsherk wrote:
And completely independent of trial or oiprd complaint, you can make a civil suit against the officer for violating your rights. There are a few recent cases I remember reading where people have won between $2500 and $15000.


I'll certainly consider that once I'm comfortable with the outcome of these charges.

On a related note, I had no way of knowing it was the wrong sticker on the car if I didn't affix the stickers myself. They aren't identified in any way to a specific car, and if you have more than one car as I do this is an easy mistake to make.

I just wish the officer had allowed me to park, walk over and politely ask him what the issue was, and correct it before moving the car onto the road. I know the owner of the Petro Canada and some of the staff who work there and at the Tim Horton's, and they would have certainly let me leave the car there for a few hours as I ended up doing anyway.


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Re: Urgent - Illegal Stop & Arrest On Private Property
PostPosted: Tue Sep 06, 2016 9:24 pm 
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I just quickly read thru R v Tresham and here are my thoughts (well more questions than thoughts)...

1) I am not sure I 100% agree with your earlier statement that the case is saying the HTA only applies on highways. Again just a first quick read does not necessarily give me that impression. Lots of nuances when reading and presenting case law though, so maybe it is possible to get that out of it.

2) How has the definition of highway in Ontario changed since this case?

3) Is there any newer Ontario Court of Appeal cases that have maybe changed the view of this at all?

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