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Guilty or not

Posted: Thu Feb 02, 2017 9:26 am
by sduong
So i got charged with Hand Held Device, just want to ask everyone if i could use this as my defence

It was midnight, I was dropping my fiance to pick up something on north bound Yonge st (near church) with my emergency lights on, Officer came and asked me to move along so i went up a few streets and turn back, stop with emergency lights again (after i read the sign on the road of no stopping on certain time and pretty sure i can pull over on the right lane). I was pulling the phone out to call her, The office came back and ask me to go again, so with the phone in my hand i wave up as i'm sorry, put it down and drive. I got pulled over and giving a ticket, he had a body cam on.

Re: Guilty or not

Posted: Thu Feb 02, 2017 9:30 am
by sduong
He asked me if i was using the phone, i denied but after a few back and forth i said i was trying to call my fiance. Also I asked him weather i pulled over legally he said i wasn't and started explaining that no stopping sign is there. It was dark so not sure if he was actually pointing at an actual sign.

So my question is: If i was legally pulled over with my emergency lights on, not impending traffic (it was midnight), I was allowed to use my phone?

Re: Guilty or not

Posted: Thu Feb 02, 2017 8:13 pm
by jsherk
If you are stopped in a place you can legally park, then you can use your phone. Just pulling over on the side of the road is not sufficient. If there is a no stopping sign but it only applies to certain times of day, then you might be okay if it was not during those times AND you can park there when it is outside those times.

Re: Guilty or not

Posted: Thu Feb 02, 2017 9:14 pm
by sduong
So it was the south bound Yonge St @ 632 Yonge (Cash Shop). There's a no parking sign, and a no stopping sign 7:30am - 9:30am.

I got this on the MTO website:
When driving, you are not permitted to use hand-held communication and entertainment devices or view display screens unrelated to the driving task, with the following exceptions:
Calling 9-1-1 in an emergency situation
When the driver is lawfully parked or has safely pulled off the roadway and is not impeding traffic.


So the tricky part here is, was i legally parked with my emergency lights on, do i need to be on Park? Note that it was midnight so there weren't any traffic. I was allowed to stopped there for few minutes to wait for my fiance so i was rushed by the officer to keep moving and i had my phone in my hand so i waved at him to say sorry, put it down and go, he pulled me over right away.

Not guilty?
640 yonge st.JPG
640 yonge st.JPG (160.83 KiB) Viewed 1096 times

Re: Guilty or not

Posted: Thu Feb 02, 2017 9:38 pm
by jsherk
If there is a No Parking sign then you were not legally parked, which also means you probably can not argue that you "has safely pulled off the roadway and is not impeding traffic."

Re: Guilty or not

Posted: Thu Feb 02, 2017 9:54 pm
by sduong
I guess my best hope now is the officer doens't show up?

Re: Guilty or not

Posted: Fri Feb 03, 2017 8:27 am
by bobajob
most of the time now they do

Re: Guilty or not

Posted: Fri Feb 03, 2017 9:03 am
by jsherk
This is a very hard charge to win because it is basically the officers word against your word.

Re: Guilty or not

Posted: Fri Feb 03, 2017 11:40 am
by Whenaxis
You can always request a trial and then ask for disclosure to see the case against you.

(Ideally) we live in a society where you are presumed innocent until proven guilty. So let the prosecution prove it.

There is always a chance that the prosecution makes an error or mistake along the way:
- police officer does not submit his copy of the ticket on time to the courthouse
- the trial is not scheduled within a reasonable time
- the prosecution fails to provide disclosure
- the disclosure is inadequate
- police officer falters under cross-examination
etc. etc.

Requesting a trial will give you several months to research and it gives you more time to decide what you want to do.

Re: Guilty or not

Posted: Sat Apr 22, 2017 6:59 pm
by sduong
Hi guys, so i got the disclosure and need some advise on what question to ask on trial date

"weather = overcast, cool
roads = dry
on yonge n/b just north of Alexander st enforcing no standing zone.. I ovserve a wht honda just north of alexander st in no standing zone.
traffic is heavy re: halloween night parties and church st closed from wood st to dundonald st.
veh moves to s/b yonge st, which is also a no standing zone. I pull up next to wht honda and observe driver on his c phone w his left hand. screen of cell phone lights up driver's face. Driver waves me off to signal he is moving on but is still on his cell phone. i activate roof lights/icc. veh pulls over. I inv driver. I make demands for docs. I confirm driver's id through his DL. I issue POA ticket for cell phone. Black Samsung
Driver =m/asian
veh=wht honda
passenger=none"

A few details that i wanted to point out
- My car is a white KIA, not honda.
- I wasnt' holding my phone up my face as i wasn't making any phone call. I used the lights from my phone to wave at the officer, put down my phone and start driving.
(my gf's phone was in the car as well so obviously i wasn't making any call. i can get a report from my cellphone company stating i wasn't making calls/text)

So i know i will have to ask the officer on trials date and exploit any thing that doesn't make sense. So i need some guidance on the questionnaire i would be asking.

Re: Guilty or not

Posted: Sat Apr 22, 2017 11:40 pm
by Whenaxis
Unfortunately, it doesn't matter if you were holding your phone up to your face and it doesn't matter if you were making a phone call or sending a text. Just the fact that you were holding your phone means that you committed the offence.

"78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages." (emphasis added)

Also, you said that you weren't making a phone call. But in your post from earlier, you said "i denied but after a few back and forth i said i was trying to call my fiance"

Re: Guilty or not

Posted: Sun Apr 23, 2017 9:07 am
by jsherk
The charge is for USING or HOLDING the phone... so even if the phone was off, just holding it is enough to be charged.

If you can question the officer and get him to admit that what you were holding maybe was not a phone, and was instead possibly a media device like an iPod, then you might beat it, but officers notes look pretty good.

Re: Guilty or not

Posted: Sat Apr 29, 2017 10:59 pm
by sduong
So based solely on the officer's note. I will need to cross-examine his note against some facts to prove that it's not reliable. Would like to hear from you guys how i would do it.
My car is a KIA, he noted it as Honda
It was just after midnight - no standing zone only in effect Mon-Fri 7:30 AM to 9:30 AM (can you please confirm through the pic?)
He indicated the traffic was heavy, in fact it was light south bound (people heading out) - only a few car passed by us for that whole time, but not sure how i can prove this
His note doesn't indicate i was holding the phone and waving it at him.
Any suggestion on the questions to ask?

If i say i parked and turn off the engine, would i get a parking ticket instead? LOL...

Re: Guilty or not

Posted: Sun Apr 30, 2017 9:42 am
by jsherk
The fact that the officer got your car wrong is irrelevent. The fact that the no standing zone is in the morning only is irrelevent. The amount of traffic is irrelevent. This has nothing to do with parking so whether you turned your engine off or not is irrelevent.

The officer notes you had a device that illuminated your face and later in the notes he says it was a Black Samsung... again this is very very very hard to beat. The ONLY two ways you can beat this are if (1) the officer does not show up to trial (very very rare), or (2) under cross-examination you can get officer to admit that it could have been a MEDIA device like an iPod and not a COMMUNICATIONS device.

Questions would be something like this:
- You say the device you saw me using illuminated my face? (officer will say yes)
- Is it possible then that it could have been an iPod MP3 player instead of a cell phone?

If officer answers, "yes it is possible" then great news for you... you say "no more questions" and in closing submissions you point out that the officer agreed that it may have been an ipod and not a cell phone and therefore it brings reasonable doubt to the charge of 78.1(1) as the proper charge should have been 78.1(2) using handheld entertainment device instead.

If officer answers, "no I am sure it was a cell phone" then you have to ask "why are you so sure it was a cell phone and not an ipod?" Again, you are trying to get him to admit it may not have been a cell phone.

The fact that the officer notes it as being a Black Samsung is not good for you as most likely he will say he is sure it was a cell phone and saw the device beside you on the seat or cupholder and it was the same one you were holding.

Anyways read this case on CanLII as it shows this example of how you might be able to bring doubt and win:
R. v . Marujo 2015 ONCJ 717 http://canlii.ca/t/gmlbd

Re: Guilty or not

Posted: Sun Apr 30, 2017 9:32 pm
by Zatota
sduong wrote:It was just after midnight - no standing zone only in effect Mon-Fri 7:30 AM to 9:30 AM (can you please confirm through the pic?)
Your picture shows two signs: No Stopping 7:30 to 9:30 am Monday to Friday and No Parking (all times). Those signs mean that a driver cannot stop at all during weekday morning rush hour, but cannot park at any time. Unfortunately, for you to be able to use your phone, you would have to be legally parked.