OHTA.ca

Hello and thank you in advance for any insight and information that the community can provide.

Scenario:

I was in a private parking lot (quiznos) and was making a left turn onto the main road - no intersection.

It was a 2 way road, 2 lanes each, no center lane.

There was a car approaching in the far right lane of the direction i wanted to turn left onto and car behind it, no immediate car in the left lane i wanted to turn into.

I made the left turn (well ahead of the car that was in the right lane) and I can only speculate as I am not sure if the vehicle came out from behind the vehicle that was in the right lane or was just going at an excessive speed and i did not see it on my initial inspection of the road, but i was rear ended !

I was already in the lane and driving forward and i happened to look up and see the vehicle approaching fast, i hit the gas but i was too late.

I was charged with turn not in safety - 142 (1) the other driver was not charged with anything.

There are no witnesses, we were both alone in the car and no bystanders willing to come forward...The cop said that someone has to be charged here and that i made the left turn first and doing so caused the rear end, since i did not provide him enough time to stop safely.

From what i can take from the actual offense listed on the ticket :

142. (1) The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement. R.S.O. 1990, c. H.8, s. 142 (1).

I don't see how 142 (1) actually applies to me in this case, the whole 142 section seems to be related to proper signalling, seems that section 139 would be more applicable but anyways... Would they be able to amend the charge under S.34 of the Provincial Offences Act?

the driver or operator of a vehicle upon a highway before turning to the left or right at any intersection - I wasn't turning left or right at an intersection

into a private road or driveway - I wasn't turning left or right into a private road or driveway, but i was turning from a private road/driveway

from one lane for traffic to another lane for traffic - I wasn't changing lanes and didn't come from a lane of traffic, i was at a private road/driveway

to leave the roadway - I wasn't leaving the roadway

shall first see that the movement can be made in safety - I was already in forward motion in the lane

if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement - i had signaled left to come into the lane, but this doesn't seem relevant in my scenario

Am i wrong in making these assumptions? can i fight this successfully? should i consult a professional to fight this for me?

any insight, advice, tips?

Thank you to all who read this and contribute!

if any more info is needed please lmk, i'm just extremely worried and upset - this is my first ever infraction/accident that i've been driving in 15 yrs. i've been int he car in quite a few accidents but this is my first!

The officer charged you with the wrong offence. You should have been charged under 139(1): Fail to yield from private road.

Since you were exiting the private road (not entering it) and you did not move from one lane of traffic to another, the prosecutor won't be able to prove the charge. So, I suggest you opt for an Early Resolution Meeting to get it withdrawn and if they refuse, then proceed to trial. Section 142(1) will however apply if you moved in to lane 1 (i.e. closest to the curb), since you would have had to cross lane 2 (i.e. the one closest to on-coming traffic). That's why you really need to see what disclosure is saying-----more than likely, someone will be saying that you moved into lane 1 and that's why 142(1) was used. In that case, it then becomes a credibility battle.

Regardless, you are definitely on the right track with your statutory interpretations. Kudos!

I wonder if choosing 'Early Resolution' will give the crown an opportunity to withdraw the charge, and issue a Part III Summons for the S. 139 (1) - Fail to yield offence? Especially if it's all within the 6 month statue of limitation.

One would be under the illusion that the crown would at the very least put in an iota of more effort to securing convictions for tickets resulting out of motor-vehicle accidents.

I think niagararearend's strategy should be to push the court date to at least +6 months, just so he's in the clear from the prosecution changing the charge.

how or when do i get to see disclosure?

oh i forgot to mention, i don't actually live here anymore ... i'm just visiting the in-laws and was driving my father in laws car.

would this help in prolonging the court date 6+ months? what can i do to prolong it?

Also, would anyone be able to comment on the nature of how it will play out with the insurance - how they will assign fault, since it was a rear end technically?

Is it worth hiring a service to fight this, as i don't know the ins and outs of the law and am just interpreting it based on common sense.

Thanks!

IFly55 makes a very good point---you would be best to simply proceed to trial and not seek the Early Resolution option. While it is practically unlikely that the prosecutor would re-file under Part 3 and even less likely to survive legal challenge (especially when challenged with a section 7 (abuse of process) argument and then an 11b for the unnecessary delay in resolving such a 'simple' matter like this) , it is definately safer and easier for the lay-person to simply proceed to trial to avoid any such possibilities from arising. Professionals usually seek the resolution meeting option since they can resolve the case faster (and get paid by their client!) and know that such possibility is very unlikely in practice and can be well-challenged without much additional effort, if the issue did arise anyway.

Ok so my strategy would be ask for a trial right off the bat, and after i have filed for this trial i can file for discovery and be privy to the evidence that will be used against me in trial, right?

then file for adjournment to a later date, hopefully 6 months after the original offense (since i live in the southern USA), as it is stated under the Part III offense statute of limitations?

At that point 6 months after, they couldn't refile the charges and if they asked for an adjournment or something and the date was set 8-10 months after the original offense i could file dismissal under 11b?

From what i can gather, the crown doesn't actually change the offense, only the JP or Judge has the ability to amend the face of the ticket (which i'm assuming they would do at the recommendation of the crown).

And this can only be done under:

Amendment of information or certificate – Section 34. (1)

The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a) fails to state or states defectively anything that is requisite to charge the offence; (b) does not negative an exception that should be negatived; or (c) is in any way defective in substance or in form. Idem – Section 34. (2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial. Variances between charge and evidence – Section

A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate Issued within the prescribed period of limitation; or (b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court.

Considerations on amendment – Section 34. (4)

The court shall, in considering whether or not an amendment should be made, consider,

(a) the evidence taken on the trial, if any; (b) the circumstances of the case; (c) whether the defendant has been misled or prejudiced in the defendants defence by a variance, error or omission; and (d) whether, having regard to the merits of the case, the proposed amendments can be made without injustice being done

Motion to quash information or certificate – Section 36. (1)

An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.

Grounds for quashing – Section 36. (2) – The court shall not quash an information or certificate unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice.

Irregularities in form – Section 90. (1) The validity of any proceeding is not affected by,

(a) any irregularity or defect in the substance or form of the summons, warrant, offence notice, parking infraction notice, undertaking to appear or recognizance; or (b) any variance between the charge set out in the summons, warrant, parking infraction notice, undertaking to appear or recognizance and the charge set out in the information or certificate.

Adjournment to meet irregularities – Section 90. (2)

Where it appears to the court that the defendant has been misled by any irregularity, defect or variance mentioned in subsection (1), the court may adjourn the hearing and may make such order as the court considers appropriate, including an order under section 60 for the payment of costs. (Costs respecting witnesses – maximum costs to be awarded $100.00)4

Also, when saying that its less likely to survive legal challenge if they try to change the charge, are you referring to the human rights act?

which states:

As a general principle, it is considered to be an abuse of process in our juridical and administrative law systems for a party who has been unsuccessful in a proceeding in one forum, to attempt to re-litigate the same facts in order to seek the same relief in a different forum.

Also,

if i ask for early resolution and explain to them that i'm not from here, and the charge isn't applicable... and we don't come to agreeable terms. can i go to trial after that?

My state doesn't have any reciprocity for points, so its just a matter of the fine for me ... b/c either way the insurance is going to go up on my father in laws car, that i was driving!

Plan of action:

ask for early resolution - where outcome should be dropped charges, do not indicate that there is an error in the section of the HTA on the ticket

if no resolution reached where charges are dropped, go to trial and ask for discovery

send representative to court on trial date - see if officer showed up, if he didn't then the charges will be dropped. if he did show up ask for adjournment based on the fact i do not live here

hope that the next trial date is 6 months out and covered under the statute of limitations

fight it based on fatal error

or

do not respond - forcing a conviction

appeal based on fatal error - incorrect citation of the charging act

niagararearend wrote:

send representative to court on trial date - see if officer showed up, if he didn't then the charges will be dropped. if he did show up ask for adjournment based on the fact i do not live here hope that the next trial date is 6 months out and covered under the statute of limitations

wouldn't the adjournment be his fault though thus not counted?

clone702008 wrote:

niagararearend wrote:

send representative to court on trial date - see if officer showed up, if he didn't then the charges will be dropped. if he did show up ask for adjournment based on the fact i do not live here hope that the next trial date is 6 months out and covered under the statute of limitations

wouldn't the adjournment be his fault though thus not counted?

so if i ask for adjournment, the statute of limitation is on hold?

It seems like you don't have a very good grasp of the laws and procedures. You might therefore wish to retain a local paralegal or traffic lawyer to help you. It will also spare you having to come to court (if you're in the US).

To clarify then, your steps should be:

1) Request a trial;

2) Request disclosure and see if there is any evidence to establish the offence (e.g. change lane)

3) Go to trial and see if the prosecutor drops the matter. They almost certainly will if there is no evidence to establish all the elements of the offence.

4) If there IS evidence to establish the offence, then proceed to trial.

That's it----you seem to be under the confusion that your ticket might be defective. Its likely not. The officer is certainly able to charge you with whatever they wish---if they fill in the proper forms and paper work---then the charge stands. However, that does not mean the prosecutor/Crown will be able to get a conviction on that charge. That's what you are hoping for in your situation!

So, stop reading about 'defects', 'amendments', statues of limitations, human rights legislation, etc. You seem to only be confusing yourself and are barking up the wrong tree.

Just know that if there is NO evidence presented to the court regarding ALL the elements of the offence (e.g. change lanes) then when the prosecutor closes their case, you simply motion the court for a 'directed verdict'. That is---the prosecutor has failed to establish a case for you to meet (i.e. they didn't present some evidence on all the elements)).

However, if there IS some evidence on each of the elements, then you will either want to negotiate a deal with the prosecutor for a different charge and/or fine, or try your luck at attacking the evidence and/or credibility of witnesses to gain an acquittal.

The reason you are asking for a trial instead of the early resolution meeting is that it will almost certainly take more than 6 months to get a trial date---well past the deadline for the prosecutor to be able to charge you under Part III. If you took the Early Resolution meeting (as I originally suggested), then it IS possible (though almost never done!) for the prosecutor to realize the lack of evidence and could theoretically dismiss that charge against you and proceed with a different charge (because they'd still be within the 6 month limitation). The downside with proceeding to trial is that you have to appear in person or by legal representative (i.e. lawyer or paralegal). An Early Resolution meeting can be held via telephone when you are from outside the area. So, its a judgement call on your end.

Anyway, I hope that explains things a bit for you and steers you away from confusions.

thanks for the advice!

yes i think i am just confusing myself with too much info here ... i shall keep it simple.

the only reason i brought up the point about the appeal is a read it as a defense on a ticket website, basically to prevent them from amend the charge to part III, i would just not respond and get a conviction under my original ticket, then appeal it, and have it thrown out based on fatal error. This is a highly risky strategy though.

Also, looking up reasoning's for fatal error it seems that incorrect section or section doesn't apply to the offense could be legitimate but there is no way to know for sure until discovery.

So i will proceed to trial and then ask for discovery and go from there.

Ultimately my state does not have a reciprocal arrangement with Ontario, but I don't want a conviction to be held against me on the basis of insurance fault - as i was driving my father-in-laws car. OR i would just pay the ticket, b/c points will not follow me.

Thanks for the help and to those who contributed, i'll be sure to update as time goes along.

One note:

You ask for disclosier when you get a court date.

Cheers

Viper1

niagararearend wrote:

Ultimately my state does not have a reciprocal arrangement with Ontario, but I don't want a conviction to be held against me on the basis of insurance fault - as i was driving my father-in-laws car. OR i would just pay the ticket, b/c points will not follow me.

If you are in a state without a reciprocal agreement with Ontario, the charge will not follow you. You can simply pay it and move on if you choose.

Whoever the insurance finds at fault and whether or not you are convicted of the charge are going to be two different things. Insurance wont care if the ticket was dropped. They will come to a conclusion using Ontario Fault Determination Rules. If someone drops the ball during your trial process, it wont mean the insurance is going to be willing to hand out free repairs at their own expense. Not all accidents see someone being charged, but someone has to open up the wallet at the end of the day. Insurance rates can change even if your ticket is dropped.

right, discovery, got it, thanks!!

yeah i don't know how fault determination will work here... since technically i was rear ended, he should be 100% at fault.

I also spoke to an RCMP who teaches police foundations at my wife's college, he said that they can not increase my charge, they can amend it to 139(1) which is the right charge, but they can not amend it to a more severe charge ie. part I to part III.

So i'm going to ask for trial, see the discovery evidence, go early and talk to the prosecutor and hopefully get it dismissed.