“144(8) I Got A Ticket For Running A Red... On An Amber?”

hwybear wrote:Whether under caution or not, a statement could still be used in court as evidence, as I have used it many times. What happens is we go into a "voir dire" (a trial within a trial) to determine how and what context the statement was made. If the JP agrees how the statement was obtained, it can be used in the regular trial. If the JP disagrees it won't be used in the regular trial

Oh, okay. That would make sense... I've seen one case where the defendant's apparent admission of speeding was thrown out because the officer didn't warn him. Might've been the JP?

RYOUNVS wrote:The main thing that I am concerned with is questioning the officer.

Don't sweat it too much. He'll likely be unshaken, no matter what you ask, but that's to be expected. The point is for you and your wife to provide equally unshaken testimony to you entering the intersection on amber.

And for everyone else's reference... it's worthwhile looking at the mildly controversial, but relevant, R. v. Sandhu case.

Dear RYOUNVS and Simon Borys:

Sorry about this long, but, in my opinion, necessary post.

I do this for a living -fight traffic tickets, that is. I have done it for over 20 years. I found this forum not to long ago and I thought I could help people by sharing my experience and knowledge. I have a track record of pro bono representations. Biron is my real last name and you can check the Law Society of Upper Canada at the paralegals directory

I am going to answer your questions and comments the best I can and I hope my answers will be received in good faith and with an open mind.

1.- I stated: "You have a very good chance of prevailing in court", but I also suggested to hire an experience representative.

I never said: "you HAVE to hire a paralegal", I merely suggested it.

Biron wrote:... you will not learn here everything you need to know to go for a trial. You better hire an experience representative.

I frankly believe that even a moving violation is a serious matter and that a conviction may have serious consequences, particularly for a young driver. Three demerit points and the offence record will most likely increase his insurance premiums for at least 36 months or so.

In any event, I'll give an idea of why I think he has a good chance of prevailing if properly represented. I can tell that RYOUNVS does not have the necessary experience and skills for the task, and I say this with the outmost respect.

You must be prepared to see the police officer -usually with an extensive court experience- giving very good, credible and reasonable evidence. It will not be easy to impeach his credibility. You have to focus on what most likely the police officer is not prepared and please do not ask me what that is. Go through the facts and review disclosure carefully.

However, If RYOUNVS and his wife provide solid evidence (with no contradictions between them and themselves), it will come to a question of credibility. R. v. W.(D.), [1991] is the leading Supreme Court case respecting credibility, which, if properly argued and followed, will show that the trial should result in a dismissal of the charge.

I hope you don't expect me to go through all of the little intricacies that make an adequate defence for this or any other HTA charge.

2.- I stated: "Now when he asked why you ran that light and you answered 'just stupidity', you prove the offence of fail to stop at an amber light."

I thought that one of the questions was whether the charge could be changed by the JP from red to amber. We know that in this case it may not be lawfully done, but if it could be done, "just stupidity" is not a legal reason or defence to run an amber light.

3.- Maybe I did not understand RYOUNVS' question;

RYOUNVS wrote: ... From what I researched I could have been charged with fail to yield to an amber light which carries the same fine. Is it possible that right in the trial they can change the charge to that? I will be using my wife as a witness, will I have to question her as well?

Biron wrote:In law, the charge can not be changed from red light to amber light. Case law shows that they are two different charges and one is not included in the other. Check s. 34 of the POA.

That's why I thought RYOUNVS was worried and I suggested to him not to worry.

4.- Respecting the following:

Simon Borys wrote:

Biron wrote:Find a good licensed paralegal and go to trial. [...] Even if convicted, a good paralegal will have put in evidence all necessary elements to give rise to solid grounds for appeal.

Appeal based on what? It's a traffic ticket, not a murder trial It's not that complicated. If a defendant represents them self they're not more likely to be convicted based on what they say and ask, as you have suggested. A JP will not be swayed by the fact that the defendant is unfamiliar with the process.

What you propose is contrary to my experience. For most people this is a serious matter and sometimes it may get complicated. I believe that the number of people convicted at trial of an offence as charged is much much larger for those unrepresented.

You are correct when you say; "A JP will not be swayed by the fact that the defendant is unfamiliar with the process".

Further in the case of a self-represented defendant, the JP has a duty to maintain the integrity of the court and be sure to preside a fair trial. What a JP can not do is to give a defendant legal advice or save the defence pitfalls.

I have seen many, many times defendants convicted on error of law and fact, or even on a matter of jurisdiction, and if the defence has failed to skillfully cover all the angles of the matter, the chances of appealing a wrong conviction diminish tremendously. On the other hand-which is my personal experience- having painfully gone through a proper defence pays at the time of an appeal if necessary. JUST BE PREPARED on Murphy's law

To insist on self representation at trial could very well be setting RYOUNVS for failure and self-defeat.

That is my honest opinion, but it's just an opinion and if you go and represent your-self in a trial, I sincerely hope you prove me wrong.

Respectfully, I have noticed that there are many misconceptions stated in this forum. For instance:

Radar Identified wrote:

Biron wrote:Now when he asked why you ran that light and you answered 'just stupidity', you prove the offence of fail to stop at an amber light.

From what I see, it was not a cautioned statement, and therefore cannot be admitted as evidence at trial.

hwybear is correct, if at a voir dire it is shown that the statement was volunteer, not under threat or undue influence or impairment, as well as being aware that you were talking to a police officer, the statement will be, as in the great majority of cases, admitted into evidence and extremely damaging.

In this case your statement may be placed out context by a skillful prosecutor. I am not sure, but did the police asked: "Why did you run an AMBER light?". Is it possible that he asked an open and ambiguous question and later imply that your answer was in reference toa red light?

Self incriminated statements, when admitted into evidence are extremely persuasive towards a conviction.

viper1 wrote:they have to deal with your case first/or change it at the start.

That is simple not correct.

RYOUNVS wrote:I believe I have quite a few things going for me. I'm 25 years old, married, child on the way with a clean driving record. I'm responsible and not out to cause trouble.

All of that is absolutely irrelevant and immaterial when determining fault. It may help you at the penalty stage, when and if you are convicted, but not before that.

Radar Identified wrote:What I've found useful is to go in and observe trials. That gets you a feel of what the process will be.

Radar Identified; that is an EXCELLENT advice.

Radar Identified wrote:... As for photos from Google Earth... they'd only be admitted on mutual agreement with the Crown. Otherwise, you're looking at the requirements under Guidelines for Submitting Photographs (see the Courts & Procedures section of this forum).

That is not correct. The admissibility of exhibits and other evidence, i.e. affidavits, government documents, financial and accounting statements, etc. is determined under the Evidence Act (Ontario) and the Canada Evidence Act. It does not depend on the prosecutor's consent, although it is much easier when the prosecutor does not oppose to it.

The basic premise for the admissibility of evidence is relevancy and whether the proposed evidence is material to the charge or not.

I have entered Google maps and photos taken by the defendant many times in trials with excellent results.

RYOUNVS wrote:The other thing I'm concerned with is that on the day that we go to trial my wife will be 6 1/2 months pregnant. [...] Is there something that I can say before the cross examination to the JP asking them to be calm and easy on her and not try to rattle her, as I know most crown's do?

Yes; it is highly advisable to remind the court and the prosecutor of her state. It will not hurt you, but instead, it may help you and your wife tremendously.

Simon Borys wrote:Don't worry about what type of questions you can and can't ask. The JP will keep you on track. In my experience they're usually good about it because they know you're not familiar with the rules.

Respectfully, I would never give this kind of advice to anyone. That "The JP will keep you on track" simply means he/she will explain the rules and prevent you from asking improper questions and/or statements, but do not expect him or her to take you by the hand and give you legal advice. In this regard, the JP's duty is simply to maintain the integrity of the court and be sure you get a fair trial, nothing else.

In fact, you should learn as much as you can about what kind of questions you should ask. Similarly and as importantly, prepare carefully what you and your wife will state.

Best of luck

Biron wrote:Respectfully, I have noticed that there are many misconceptions stated in this forum.

There are, however at least in this forum there is the opportunity for them to be "fixed." I formed the opinion based upon things I've seen happen in court. I'm not a paralegal or a lawyer. I'm open to people pointing out errors or misconceptions that I may have. It also does not mean that most of the things that forum members have said, myself included, are wrong or should be discarded. (Well, except for the rare, occasional nutbag that surfaces.) I would also point out that some paralegals/lawyers have also given incorrect advice here, such as telling a defendant that London v. Young is no longer valid, and he had no grounds for appeal in a classic London v. Young scenario! (He won on appeal.) This is a discussion board. Not everything on here is going to be 100% correct, however most of us are careful enough to be cautious with how we say things, so it looks like an opinion (which it is) rather than absolute fact.

Biron wrote:That is not correct. The admissibility of exhibits and other evidence, i.e. affidavits, government documents, financial and accounting statements, etc. is determined under the Evidence Act (Ontario) and the Canada Evidence Act. It does not depend on the prosecutor's consent, although it is much easier when the prosecutor does not oppose to it.

The basic premise for the admissibility of evidence is relevancy and whether the proposed evidence is material to the charge or not.

I'm aware that entering anything into evidence is not dependent upon the consent of the Prosecutor. Perhaps I was not clear and didn't choose my words well. Perhaps what I should have said is "the Crown could easily object to photographs, including Google Earth." In many parts of Ontario, if a defendant simply shows up with photographs, the Prosecutor will get them excluded from the trial, even Google Earth. The point is whether the photograph has been altered or doctored. If it's trying to show what the defendant was looking at when the offence occurred, for example, a defendant cannot go back to the scene six months later, snap a photograph and wave it around in court saying "see, the sign is not visible" and expect the Crown not to get it excluded.

As was noted by the Supreme Court of Canada in R. v. Nikolovski, "Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence." This has extended to photographs as well. Several months ago, hwybear and I had a discussion regarding the admissibility of photographs. At the court he's most frequently in, if the defendant just shows up with photos, the Prosecutor will have them excluded faster than you can say "uh..." The issue is "altered or changed." So many photos and videos, even those from Google Earth, can be doctored with programs like Photoshop that we put this advice together to ensure the Crown wouldn't have a reasonable chance of excluding photographs that could help a defendant:

It's the same stuff that defence lawyers have hammered police on for years, working in reverse against the defence. In fact, taking a quote from another thread:

hwybear wrote:Glad we have a prosecutor that is on the ball....makes all photos by defendants inadmissable!! Excellent work!

In some places, they are more likely to accept photographs without question than others. I haven't seen any issues with people submitting photos in the GTA, but other peoples' experiences around the province have been very different.

Biron wrote:I found this forum not to long ago and I thought I could help people by sharing my experience and knowledge.

New knowledge and advice is always welcome, particularly from people with real hands-on experience.

Now... getting back on track...

R. v. Sandhu was an example of where a police officer was rock-solid in his testimony, versus a defendant who was equally rock-solid in his testimony. The officer insisted the defendant blew a red light. The defendant insisted it was amber. He was charged with Red Light - Fail to Stop. Both people were equally steadfast in their testimony. The JP thought about it, and found the defendant not guilty. He also laid out his reasons for it.

If the testimony of RYOUNVS and his wife is convincing and solid, as Sandhu's testimony was in his case, I think there's a good chance of winning.

Thank you Radar Identified for your kind reply. I was somewhat familiar with R. v. Nikolovski, a 1996 case and you "made" me read it again.

The burden of proof is different for the prosecution and for the defense. If the prosecutor is going to introduce evidence produced by some means like videos, photographs, alcohol levels, the defence will demand a deep scrutiny of the device, the operator and the product of them.

But when the defence introduces evidence the burden of proof -certification in this case- is lowered. It is not fair, just like the rules of disclosure appear to be not fair for the Crown.

In traffic tickets matters, though, if a defendant brings a picture and certifies it he/she was the author and that the picture has not been altered, the picture should be accepted. The prosecutor may challenge the veracity of the picture, but the objection MUST be based on evidence not just on unfounded suspicion.

It is similar to the use of police notes. On an objection, the police will say that the notes were made contemporaneously, by him/her self in ink and in his or her handwriting, that no alterations, additions or deletions have been made to them. Other than the issues of 'independent recollection', I have never seen a police officer not to be allow to use his or her notes.

Any chance to you'll tell me hwybear's jurisdiction?

Once again thanks for your kind reply.

Cheers

Wow, alot of good information here and I do appreciate it. Let me be clear Biron, I wasn't meaning to be belligerant in any way. I have, from the beginning been open to everyone's comment. I do apoligize that it seemed I was saying that you said I HAD to get a paralegal. I understand that it would be in my best interest to hire a paralegal as they know the ins and outs of the court system.

Here is my situation. I am not hugely concerned with the conviction going on my record. I've spoken with my insurance company and they have made it clear that I have a perfectly clean driving record with no accidents, no tickets what so ever, and no claims. They have informed me that this is clasified by them as a minor conviction. I called and spoke with 3 different individuals in regards to if it was or not and they all conclude that it is a minor offence. It won't raise my insurance by anything, and if it does, it won't be by much.

Here is the situation that I am, and if it sounds like I'm whining... I am! I am a first year apprentice that makes $11/hour. I am recently married to a british citizen and am going through a very expensive process of applying for permanent residency. My wife is also, at this time, 4 1/2 months pregnant. At this point she doesn't have OHIP coverage so we will be paying the fee to deliver in hospital, which is approximately $3000.00. I sincerely cannot afford to pay this fine. If I am to hire a paralegal, it is the same, and in some cases MORE to hire them than to actually pay the ticket. So in my mind, I feel that by going to court that I have nothing to lose if I am convicted. If that is the case, I intend to make a submission to the court to the effect that I cannot afford to pay the fine, and give the reasons I have stated above.

Ultimately, the best case Scenario is that I am acquitted of this charge, which I should be as I entered the intersection facing an AMBER light. But ultimately the most important thing is the financial burden that I will be put under if I am convicted.

So to clarify, the correct and acceptable way to enter into evidence a photograph is to take the picture personally, with a date and time stamp, and certify(how do I do this?) that I took it and that it depicts the true likeness of the 'scene'?

Yeah, R. v. Sandhu, 2009 is a great case. I work in Hamilton and from time to time I show up in Burlington.

His Worship K. W. Dechert is a fair and meticulous trier of fact. I have also met Ms. Diane Howarth, a nice and capable prosecutor. Lynn Carter is a very experienced, honest and intelligent paralegal. I respect and admire her.

In this case the officers credibility was impeached because of his point of view and his focus of attention, which could have led him to an error of perception.

That possible error raised a reasonable doubt in His Worships mind when applying the second branch of the W.(D.) test, which was not needed after the first branch had raised a reasonable doubt.

But if you read the decision carefully, you can tell that the officers version of facts is very inaccurate at best, or a fabrication at worst.

He said that:

o He saw the defendant's vehicle for the first time at a distance of 200 meters.

o The defendants vehicle was traveling at a rate of speed no less than 120 k/h.

o That at that moment he started to measure the duration of the amber light and counted 5 seconds.

o He said that after the amber light, the lights in all directions were red for about 2 seconds.

o He said that when the red lights were on, the Defendant had not yet entered the intersection.

o He said that the Defendants vehicle entered that intersection after the green light had been on for 1 second.

Now, lets do the math:

120 k/h = 120,000 m/h = 33.33 m/sec.

According to the officer, the defendants vehicle traveled a distance of 200 meters and crossed the intersection after 8 seconds had elapsed. (5 seconds for the amber light + 2 seconds for the red light four ways + 1 second of green light after the four way red lights).

Well…

at 120 k/h, the defendants vehicle would have traveled 33.33 * 8 = 266.67 meters and not just 200 meters as he wanted the court to believe.

Cheers.

Hey RYOUNVS

RYOUNVS wrote:... Let me be clear Biron, I wasn't meaning to be belligerant in any way

No need for the clarification at all. I never thought you were belligerent, on the contrary, you 'sound' quite friendly.

On another topic:

RYOUNVS wrote: ... I am recently married to a british citizen and am going through a very expensive process of applying for permanent residency. My wife is also, at this time, 4 1/2 months pregnant. At this point she doesn't have OHIP coverage so we will be paying the fee to deliver in hospital, which is approximately $3000.00.

If you are Canadian, you do NOT have to pay to have your child delivered in a Canadian hospital.

I went through a very similar situation and the hospital was sending an $8K bill to my spouse. She was not Canadian nor a Landed Immigrant.

To make a long story short, I raised the issue of sexual discrimination and they then decided to abandon their claim.

You see, it is customary to use the mother's OHIP coverage to pay for the delivery. This is done because the unborn child does not have OHIP. However, nothing prevents them from using the father's OHIP coverage and in your case they should use your OHIP simply because the child is your son/daughter.

Let me know if you need help with that.

Cheers.

Biron wrote:Any chance to you'll tell me hwybear's jurisdiction?

Hold on **look at shoulder** hey the flash does have an "O", somewhere in Ontario I'm guessing

Biron wrote:In traffic tickets matters, though, if a defendant brings a picture and certifies it he/she was the author and that the picture has not been altered, the picture should be accepted. The prosecutor may challenge the veracity of the picture, but the objection MUST be based on evidence not just on unfounded suspicion.

In the GTA, of all of the trials I've observed, it seems like that is the standard... as it should be, IMO. However, what has happened in many other parts of Ontario is that the Prosecutor hasn't even needed an unfounded suspicion, they just want to win, so they fight the introduction of the photograph... and JPs are agreeing with them! I don't think it's right, but the one thing I've realized is that the legal system is far from standardized or consistent, as you know very well.

Anyway, I don't want to sidetrack this thread, so any further discussion about photographs should probably be moved over here:

Or to a new thread.

Biron wrote:at 120 k/h, the defendants vehicle would have traveled 33.33 * 8 = 266.67 meters and not just 200 meters as he wanted the court to believe.

He probably guesstimated and, instead of qualifying with "approximately" he held it as steadfast. OOPS.

Side note: My occupation, whenever an incident happens, one of the most important rules when being de-briefed is "stay away from exact numbers" unless you are beyond certain of them. Exact numbers and data (e.g. "he was going 120 km/h for 200 metres"), if you insist on them, can easily be disproven with calculations (such as in Sandhu) or with data-recording devices, video, etc. Then your credibility is shot, and even though you may have been reasonably honest with your version of events, it's game over. (That advice should be applied to testifying.)

Biron wrote:Any chance to you'll tell me hwybear's jurisdiction?

I'm sure you'll understand that, for privacy/confidentiality reasons, I will not say specifically. It is in a more rural part of Ontario.

RYOUNVS wrote:So to clarify, the correct and acceptable way to enter into evidence a photograph is to take the picture personally, with a date and time stamp, and certify(how do I do this?) that I took it and that it depicts the true likeness of the 'scene'?

Yes, you should just be able to admit it in court and swear to it being accurate at the same time. If you're concerned, maybe you could go to a Commissioner of Oaths to swear that the photo is true and accurate, although I'm not sure that will be necessary. Just keep the originals and the data card, and bring them with you to court. (Also bring your camera so the JP can look at the photos with the original device.) That should erase any doubt, if they raise it.

Radar Identified wrote:... and JPs are agreeing with them! I don't think it's right, but the one thing I've realized is that the legal system is far from standardized or consistent, as you know very well.

You are so right!! Mostly in lower level courts. It defies the fundamental tenets of common law and many of them just do whatever the prosecutor suggests. But remember, they do not need formal education in law to become JPs, all they need is community recognition and the right connections to be appointed.

I must also say the many JPs, if not most of them, are educated and very well versed in law.

Radar Identified wrote:Side note: My occupation, whenever an incident happens, one of the most important rules when being de-briefed is "stay away from exact numbers" unless you are beyond certain of them.

Right again; experienced Police Officers know that very very well. They have a good balance on imprecision between estimations and true independent recollection.

Biron wrote:Any chance to you'll tell me hwybear's jurisdiction?

I was half serious and half kidding. I am just curious about those tough prosecutors.

Radar Identified wrote:

Also bring your camera so the JP can look at the photos with the original device.) That should erase any doubt, if they raise it.

I never done it, but it sounds like an excellent idea.

Cheers.

Alright I will have to do that as far as the pictures are concerned. I definately feel that I am 'onto something' as far as me feeling that the officer, from his viewpoint believed that I had entered into the intersection on a red light. In his notes he says that I 'cut the corner'. This only strenghtens my belief that from the angle that he saw my vehicle, that what he 'saw' was my car entering into the intersection on a red light, when this in fact is incorrect.

I'm going to work my case based around that I think, as well as my testimony and the testimony of my wife.

Biron was kind enough to give me a phone call and we talked at length for about 45 minutes about the legal system, and in specific my case. It does sound as though it's going to be difficult to effectively fight my case on my own. The crown is much more experienced than I, and that may well be my biggest downfall. I can only hope that the JP sees that both my wife and I are being honest about what happened.

Biron, FYI, I called my insurance company AGAIN and they AGAIN confirmed that they view this charge as a MINOR charge and that it won't increase my insurance astronomically. So again, for me it's stricly an attempt to save money, so hiring a paralegal for $350 to fight a $300 fine seems pointless. I do want to see what would come of this case if it was argued effectively though! But oh well.

Alright well I'm not sure what other questions that I have, I will update more when I have specific questions that I intend to ask the police officer and my wife your imput.

Thanks All!

Biron wrote: This is done because the unborn child does not have OHIP. However, nothing prevents them from using the father's OHIP coverage and in your case they should use your OHIP simply because the child is your son/daughter.

Excellent point there Biron. I would never have thought of that!

Good for you RYOUNVS. Go and give them all you got.

RYOUNVS wrote: ... It does sound as though it's going to be difficult to effectively fight my case on my own. The crown is much more experienced than I, and that may well be my biggest downfall. I can only hope that the JP sees that both my wife and I are being honest about what happened.

I believe the leading case on the duty of a judge when trying an unrepresented defendant is R. v. Tran. You can read it here:

The distinguished and counterpart is R. v. McGibbon:

Both of them cite a number of other cases. They will give you and idea of your rights in terms of getting a fair trial. I think that, under the circumstances, you will do well.

London, isn't it? Let me see. I have a client who has asked me to represent her there four times:

PON 81555456 - Fail to signal - Accident - Won on a White application.

PON 81397879 - Speeding - Resolution

PON 81388786 - Careless - Accident - Withdrawn on a White application.

PON 81361441 - Fail to Yield - Accident - Client represented herself - convicted - Won on Appeal.

One of my best clients. Not sure if she should be driving

In London prosecutors are tough and one of the officers is very cocky and presumptuous (they are the best to cross-examine).

They are beatable though.

Cheers.

Hey admin, thanks for you comment.

admin wrote:

Biron wrote: This is done because the unborn child does not have OHIP. However, nothing prevents them from using the father's OHIP coverage and in your case they should use your OHIP simply because the child is your son/daughter.

Excellent point there Biron. I would never have thought of that!

It was a traumatic and enduring experience. A few years back my girlfriend, visiting from Costa Rica, got pregnant. When she was in her 24th week of pregnancy she got a miscarriage and in the process she spent eight days at McMaster hospital.

After her miscarriage she suffered from postpartum depression. Shortly after, the hospital sent her a bill for $20K ($2.500 per day) and later on they hired a collection agency to go after her.

During all that time I was telling them that I, as the father of the child, should be responsible for the bill and that it should be covered by my OHIP. I made it clear that we would not be paying the bill.

To make it short, I raised the issue of sexual and civil status discrimination and threaten them with a lawsuit for harassment. I never heard of them anymore. My girlfriend had gone back to Costa Rica and that was the end of it.

I would have loved to test my contention in court, but the risk for the hospital and OHIP was too great for them to even try. It could have created a problem for hospitals and OHIP coverage.

Thanks again.

Cheers.