OHTA.ca

Hey guys,

I was with my boyfriend yesterday and he was pulling into a plaza parking lot (private property). We took our seat belts off once we pulled in (not parked) and there was a cop about to make a right onto the road, still in the plaza though.

We drove to a parking spot and he followed us. A little bit of a debate broke out before the ticket was issued and the officer was surprised that my boyfriend knew so much about the laws. He issued the ticket nonetheless even though there was no proof what so ever on his end and we were on private property.

The issue is, on the ticket he did not tick off there was a witness, yet once the ticket was already issued he had then asked me for my name to put it in the report.

Also he put driver failed to wear seatbelt but under sec put 106(3) which according to http://www.ontario.ca/laws/statute/90h08#BK182, is :

Use of seat belt assembly by passenger

I was not issued a ticket and was not asked my name until after my boyfriends ticket was issued, so I handed the cop my license for proof so that he put it in the report, so he said.

So is the ticket void if he did not put that there was a witness and if he put the wrong number under section?

Thanks for you time guys!

Unfortunately, your boyfriend's stuck in a legal uncertainty. You see, several courts have held that citing the wrong section number with a conflicting offence description IS a fatal flaw. See the case of R.v.Stuparayk and Firmino.

However, the Ontario Court of Appeal has also permitted leave to appeal in another case because a different case held otherwise. See R.v. Farah.

In other words, the law is unclear right now whether citing the wrong section number along with a conflicting offence description is indeed a fatal error.

Fortunately, your boyfriend's case is precisely on point. You are correct in that he should have been charged under section 106(2)--"Driver--fail to properly wear seat belt" instead of under section 106(3) which deals with passengers.

If the law was clear and it was considered a fatal flaw, then the suggestion would be to do nothing and force the JP to rule on it, then appeal if the JP convicts.

That's what I would suggest he do anyway.

After all, even if the Court of Appeal later changes the law by saying such errors are NOT a fatal flaw, then your boyfriend should be able to re-open the case by saying that he was waiting for the court's decision and that's why he forced the error. An appeal court would most likely allow him to have a new trial since any ambiguity should always flow in favour of the defendant.

I hope the above makes sense. Bottom line: the law is quite unclear right now. My suggestion is to force the fatal error and appeal if necessary. The prosecution might eventually just stay the charge (which means no conviction anyway!).

Thank you kindly for your response! I really appreciate it and I will let him know.

All the best.

highwaystar wrote:Unfortunately, your boyfriend's stuck in a legal uncertainty. You see, several courts have held that citing the wrong section number with a conflicting offence description IS a fatal flaw. See the case of R.v.Stuparayk and Firmino.

However, the Ontario Court of Appeal has also permitted leave to appeal in another case because a different case held otherwise. See R.v. Farah.

In other words, the law is unclear right now whether citing the wrong section number along with a conflicting offence description is indeed a fatal error.

Fortunately, your boyfriend's case is precisely on point. You are correct in that he should have been charged under section 106(2)--"Driver--fail to properly wear seat belt" instead of under section 106(3) which deals with passengers.

If the law was clear and it was considered a fatal flaw, then the suggestion would be to do nothing and force the JP to rule on it, then appeal if the JP convicts.

That's what I would suggest he do anyway.

After all, even if the Court of Appeal later changes the law by saying such errors are NOT a fatal flaw, then your boyfriend should be able to re-open the case by saying that he was waiting for the court's decision and that's why he forced the error. An appeal court would most likely allow him to have a new trial since any ambiguity should always flow in favour of the defendant.

I hope the above makes sense. Bottom line: the law is quite unclear right now. My suggestion is to force the fatal error and appeal if necessary. The prosecution might eventually just stay the charge (which means no conviction anyway!).

Whether the witness box is ticked or not makes no difference, and will not void the ticket.

My question to others in this forum would be: since the private property was a plaza, so does that qualify as a "highway"?

Unless I was sleeping though new legislation private property is not a "highway" as defined in the HTA and the seatbelt law would not apply there. But I would imagine the officer testify that he saw the infraction on the road before you turned off.

Unfortunately, its not possible to make a general statement that all private property is not considered a 'highway' under the HTA. There are several examples of 'private' locations such as mall parking lots which have been designated 'highways' by by-law, making them subject to the HTA. Usually that is in very busy places like some spots of Yorkdale Mall (in Toronto) where public transit rides along. To find out whether a precise 'private' location qualifies as a 'highway' requires a by-law search or subdivision site plan search which can actually be quite cumbersome. Still, its definitely something to consider if the 'fatal error' argument is unsuccessful.