OHTA.ca

Just wanted to get everyone's opinion on establishing a due diligence defence this case that I'm planning on self-defending in two days:

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I was turning left out of a parking lot into a busy intersection after dinner when I forgot to put my seatbelt on, even though I thought it was on the whole time. I had travelled no more than 40 metres after the turn into an stop light intersection, when I noticed that the officer was driving up behind me. At this point, even though I had a seatbelt indicator light on my dashboard I was busy paying attention to the traffic at the intersection and to the police car in my rearview mirror to notice the seatbelt indicator (I have had only one speeding ticket in 15+ years of driving, but my wife had 3 tickets last year so I become a bit panicked when I see the police car behind me). After I make a right at the intersection, the officer immediately signals for me to pull over, and asks why I had no seatbelt fastened. I advise the officer that I forgot, and she issues me two tickets, one for 106 (1) Seatbelt removed, a ticket for expired permit (which I thought was fair), along with several warnings (not signing my ownership, etc).

My argument for due diligence is that:

1) I normally always wear my seatbelt except for this incident in which I forgot.

2) I also rely on two safety features that my car has to remind me to put on my seatbelt in case I do forget. The first feature was the solid seatbelt indicator light, which was on at the time, but I did not see it since I was paying attention to the traffic conditions and was also a bit panicked from looking in my rearview mirror at the police car. The second feature is a beeping sound and a flashing indicator light, which are triggered after having driven some distance without seatbelt fastened.

When I was pulled over the seatbelt indicator light was on, but I had not been driving long enough for the second feature to be triggered before being pulled over.

Would I stand a chance in arguing that, while I had taken precautions to make sure to remind myself to wear a seatbelt (even in cases where I forget), that I was not allowed to exercise these precautions (my due diligence) before being pulled over, and thus should not be found guilty?

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In terms of evidence, I have a receipt from the restaurant that I ate at that to show I was just pulling out from the parking lot, as opposed to having driven a long distance without wearing a seatbelt. I also have my wife's three tickets from last year, as well as timestamped photos from the intersection where I was pulled over.

I have the officer's disclosure (notes only, no audio or video) and it is as follows:

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Tuesday evening, light rain, average traffic

fully marked sc xxxx

Travelling north bound on Birchmount Road, observe vehcile one car length ahead of my scout car, in curb lane with a XXXX validation sticker on the rear licence plate.

Confirm the validation expiry of XXXX, 2017.

Observe the solo male driver not wearing his seat belt. I am the passenger in the scout car and have full view of the vehicle slightly in front of us as we are moving in behind the vehicle. Observe the driver's should (sic) to be seat belt free and can see the buckle dangling above his shoulder.

Male driver, valid ON photo D/L and insurance. Permit expired same date as validation sticker. Ownership not signed. Male has an "x" condition on his licence, and is not wearing glasses or contacts. Advised he forgot to put his seat belt on, forgot to obtain his sticker, forgot to sign his owner ship and didn't change his driver's licence status after obtaining laser eye surgery.

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I'd appreciate any light anyone can shed on this. Thanks.

I can't see you winning an argument that there should be a grace period to ensure it's fastened. I'd imagine the Courts would expect you to exercise such diligence prior to operating your car.

R. v. Wilson, 2014 ONCA 212 (https://www.canlii.org/en/on/onca/doc/2 ... ca212.html) is a good read on seatbelts and due diligence.

Some choice quotes from the decision:

"I agree that because the s. 106(2) offence involves a simple act entirely within the control of the driver, situations in which a defence of due diligence arise are bound to be rare. However, it seems to me quite possible that a driver could take reasonable steps to fasten his or her seat belt, only to find that the belt did not close properly or had come undone."

"A defence of due diligence to this charge would only be made out where, although the driver was found not wearing his or her seat belt when driving, the driver had taken all reasonable care to wear the seat belt. As Doherty J.A. stated in Raham, at para. 48, citing Kurtzman at para. 37, "a due diligence defence is not made out by acting generally in a reasonable way".

I agree with Stanton - the Wilson case is an excellent example to look at, it's the authoritative case in Ontario for an offence under s.106(2) "Driver fail to properly wear seat belt"

That brings me to a question... did you get charged under s. 106(1) "Drive with seat belt removed" or s. 106(2) because there is a significant difference:

s. 106(1) means the seat belt was physically removed from the car.

s. 106(2) means you were not wearing your seat belt.

Seat belts

Seat belt assembly must not be removed or altered

106 (1) No person shall drive on a highway a motor vehicle in which a seat belt assembly required under the Motor Vehicle Safety Act (Canada) at the time that the vehicle was manufactured or imported into Canada has been removed, rendered partly or wholly inoperative, modified so as to reduce its effectiveness or is not operating properly through lack of maintenance. 2006, c. 25, s. 1.

(2) Every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat belt assembly as required by subsection (5). 2006, c. 25, s. 1.

(5) A seat belt assembly shall be worn so that,

(a) the pelvic restraint is worn firmly against the body and across the hips;

(b) the torso restraint, if there is one, is worn closely against the body and over the shoulder and across the chest;

(c) the pelvic restraint, and the torso restraint, if there is one, are securely fastened; and

(d) no more than one person is wearing the seat belt assembly at any one time. 2006, c. 25, s. 1.

Stanton is correct; your arguments don't meet the due diligence defence for that charge. A reasonable person would ensure their belt is fastened by tugging on it and if relying on some dash light or audible beep would certainly do everything to look for those triggers BEFORE entering the highway (e.g. look at the dash for such warning). Your argument that you couldn't see the indicator on your dash seems unbelievable. I therefore suggest you take a deal if they offer one. If your warning light was malfunctioning, you MIGHT have a defence (but then, you'd need to provide proof of that malfunctioning and copy of the repair bill---more costly than the ticket itself!). Even that wouldn't necessarily be a guaranteed due diligence defence.

Thanks for the quick response everyone.

@Whenaxis, Up until a few days ago I thought I was charged with 106 (2), but I took a closer look at the ticket and I was actually charged with 106 (1) seatbelt removed, which I thought was strange. The officer didn't mention anything about reducing the charges so I would have assumed that it was 106(2). If the charge is in fact 106(1), it seems like I would just be able to cross examine the officer on whether she made sure that my seatbelt was removed from the vehicle/malfunctioning, or offer the prosecutor to examine my vehicle, is that true?

So, for greater clarity, what is the wording and section you have actually been charged with?

The choices should be one of the following:

Drive with seat belt removed 106(1)

Drive with seat belt inoperative 106(1)

Drive with seat belt modified 106(1) or

Driver fail to properly wear seat belt 106(2)

If it's one of the first 3 offences, then you'll simply show that the car DID have a seat belt that was not modified and was operative---it does not matter if you were actually wearing it properly or not at all (that's the 4th offence!). The officer's notes should have details about this. So, if your seatbelt was factory installed and worked properly, you have a great case if you've been charged with one of the first 3 offences. Do tell.

If you've been charged with the first offence but your car DID have a seatbelt (just not an operative one) this too is a defence since she charged you under the wrong offence. In that case, she should have charged you with the 2nd.

@highwaystar The offence on the ticket states "Drive with seat belt removed" Highway Traffic Act 106(1). So it sounds like I have a case!

Two questions though -

1) Is it likely that I will just be charged with an amended charge of 106 (2)? Clearly the officer must have meant 106 (2) instead of 106 (1), since her notes say that the buckle was dangling above my shoulder and that she observed me not wearing my seatbelt.

2) How would I show that the car DID have a seatbelt that was not modified? It's a used vehicle that I purchased from Honda in Markham, and I have the purchase documents from the dealership. Would that be enough?

If they try to amend, just argue prejudice---this is the offence you prepared to make answer and defence to. I highly doubt they would even attempt to seek an amendment, let alone succeed. Worst case scenario, that would be grounds for an appeal. Its not just based on a typo or a simple change but rather a completely different charge with different elements to prove---there's either a belt or there isn't!

Remember, you don't need to prove anything---they have to prove there was no seatbelt. Given the buckle visual by the officer, that's going to be VERY hard to prove. Personally, I would take a photo of your car interior showing the seatbelt and show it to the prosecutor before court, then point out the officer's notes about seeing the buckle hanging. If there's a recent safety inspection certificate, that also boosts your claim the belt was not removed. More than likely, after talking to the officer, the charge will simply be withdrawn by the prosecutor. If not, just cross examine the officer politely on what the buckle was attached to, whether she inspected the harnesses, the bolts, etc.

Remember, you are not being charged with whether you were wearing your belt or whether it was even functioning---rather that it didn't exist. Sounds like you got really lucky!!!

Talking to the prosecutor beforehand is definitely one route as highwaystar has suggested. But from previous experience, I know that prosecutors really don't want to hear any of it before the trial. They just want to know if you're pleading guilty or not guilty, and whether they can make a deal with you. As soon as you start talking about why you think you're not guilty, they'll tell you to sit down and wait for your trial.

Another way to do this is through cross-examination (which I explain further below).

As highwaystar said, you don't need to prove anything. They need to provide the evidence to support the charge, but it wouldn't be a bad idea to take a picture of your seatbelt to back yourself up.

I would make sure that s. 106(1) "Drive with seat belt removed" appears on your ticket, your Notice of Trial and in the disclosure evidence. If this is the case, simply tell the prosecutor you would like to plead not guilty and proceed to trial. The prosecutor will make his case and call the officer to the stand to testify.

When the prosecutor is done asking questions, it's your turn to cross-examine. Here is an example of what you could do:

Q: So, you have charged me with s.106(1) "Drive with seat belt removed", is that correct?

There may be a copy of the Highway Traffic Act in the courtroom. You can ask to use it; or to be prepared, print a copy yourself. Ask to approach the officer and ask them to read the section.

Q: Officer, can you please read for me what section 106(1) of the Highway Traffic Act says?

Then, you would simply say, "There is no evidence before this court that the seat belt assembly was 'removed, rendered partly or wholly inoperative, modified so as to reduce its effectiveness or is not operating properly through lack of maintenance'. The prosecution has not made a prima facie case and has not set out the essential elements of the offence. I would like to make a motion for a non-suit and have this charge dismissed."

Hope this helps. Let us know how it goes - looking forward to hearing back.

Thanks alot guys. That was really helpful. Will let you know what happens tomorrow.

A motion for non-suit should only be made after the prosecution/Crown has 'closed their case' ; it should't be done during a cross-examination. Do it too early and you simply alert the prosecutor of a weakness in their case for which they can simply call up another witness to 'close the weakness', which they are allowed to do since they have not 'rested' their case yet.

@highwaystar

So just so I understand, I've been to the courtroom a few times in the last month to observe trials, and the process looks like this:

1. I plead not guilty

2. Officer takes the stand and gives testimony based on notes, and I get to cross-examine

3. I take the stand and get cross examined

4. I give evidence that supports my case

5. Submissions

I would need to make the motion for non-suit during step 5 after the crown gives their submissions, correct?

Also, would the crown have a chance to modify their case and call additional witnesses if I take the stand and get cross-examined on whether I was wearing my seatbelt?

The Crown will rest their case and before you start to give the defence evidence you would make the application. You do not have to disprove the offence, the crown needs to prove it. If they have not covered the elements of the offence then the case should be dismissed.

As Argyll states, you make the motion for non-suit AFTER the prosecution closes its case (before the Defence decides whether to give evidence).

So, the steps are:

1) Prosecution calls its witness;

2) Defence cross-examines;

3) Prosecution may re-examine its witness on "new" matters brought up during cross-examination (often called 'reply' evidence) (but such examination is only limited to the 'new' matters;

4) Defence can seek to re-cross-examine based on the Prosecutor's 'reply' evidence only;

5) Cycle is repeated for each of the prosecutor's witnesses until the prosecutor says they close their case (i.e. aren't calling any more evidence!)

6) Motion for non-suit (i.e. directed verdict) is made by Defence if the prosecutor has not introduced ANY evidence on an element of the offence. The court does not 'weigh' the evidence; it simply decides whether there is any evidence for each element of the offence that could yield a conviction. In other words, the Crown has not introduced speed evidence where the offence is speeding or has not introduced identification evidence, etc.

7) Defence can then choose not to call evidence or may do so. If the Defence calls evidence then steps 1-5 are repeated but with the Defence examining and the prosecutor cross-examining.

*** note: the Defendant does not need to take the stand----they can call other evidence or none at all. Its their personal choice whether to take the stand. If they do though, they are subject to cross-examination.

8 ) When the defendant is done introducing their evidence (i.e. calling their witnesses) and the cross-examination/reply examinations have ended, the defendant will rest their case.

9) If the defendant called evidence, they then go first in giving closing submissions (i.e. it is not a time to introduce new evidence as each party has closed their case already!); each party is just seeking to convince the court why a conviction should or should not register. Its here that you generally introduce case law!

10) The prosecutor then gets to make their closing submissions.

* note: if the defendant did not call any evidence, the prosecutor must make their closing submissions first.

11) Once closing submissions are completed, the court makes its decision.

12) If a conviction occurs, a sentence hearing then commences. Technically, another hearing can occur (in elaborate cases where victim impact statements, etc. are introduced) but that will not happen in virtually 99% of HTA cases----the prosecutor will simply state what they are seeking for penalty and the defendant then makes their pitch on why it should be less or a suspended sentence.

That's the process in a nut-shell.

Good luck!

Thanks for the input argyll and highwaystar.

Does this mean I also have a good chance of nullifying the "Drive motor vehicle, no currently validated permit" 7 (1) (a) ticket as well by casting doubt onto the officer's testimony from the seatbelt charge?