OHTA.ca

Good morning drivers, law enforcement, and traffic enthusiasts,

I recently received a ticket for "FAIL TO YIELD TO PEDESTRIAN." I was stopped at a red light in the left lane, signalling to turn left. The light turned green and as I pulled into the intersection, a pedestrian on the left crosswalk began crossing in the opposite direction. As I approached the crosswalk to complete the left turn, the pedestrian was already on the other side of the road, across the yellow dividing line, in front of that direction of travel's left-turn lane. By the time I had entered the crosswalk, the pedestrian was now in front of the right-turn lane of the other direction of travel.

In my opinion, I did yield to the pedestrian. My dash cam video, although grainy, shows that the pedestrian was past my lane of travel at the time I entered the crosswalk to complete the left turn.

In addition to the HTA 144(7) ticket, the officer cautioned me to:

a) Update my drivers' license within 6 days of changing permanent residence; and

b) Keep vehicle registration in the vehicle.

My questions:

1. Do I have a compelling case for a "not guilty" plea in a trial?

2. I live more than 75 km from the jurisdiction's courthouse, and therefore have the option to meet the prosecutor by telephone. Is it plausible to negotiate the HTA 144(7) charge to a non-moving violation i.e. it does not affect insurance rates? I would plea guilty to either of the officer's cautions (a and/or b) if the moving violation were dismissed.

3. When I meet with the prosecutor (over phone), would it be wise to show my dash cam video in order to negotiate the charge to non-moving violation, or would it be preferable to keep my defense private until a trial.

4. Are ticket-fighting paralegals equipped to prepare such a defense on my behalf, or would it be advisable to attend court myself, taking a vacation day at work?

Thanks for all of your advice, in advance.

-Bix

In the HTA it says: "crosswalk" means,

(b) any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface; ("passage prot©g© pour pi©tons")

So was there "lines" indicating the crosswalk at this intersection?

144(7) in the HTA says

So the question here is, did you yield the right of way to the pedestrian? In my opinion, not yielding the right of way would mean that you made the turn in front of the pedestrian and they had to stop or slow down while crossing because you drove in front of them. If the pedestrian had already passed in front of you and you were passing behind them, then I believe that you yes you did yield the right of way and you should be able to beat this charge easily, especially with the video.

Now there is a new law in Ontario that says you must wait until the pedestrian is all the way across the road before you can proceed, but this only applies at School Crossings and Crossovers, but it does NOT apply to Crosswalks. So it could be that the officer thinks this new law applies to Crosswalks as well, but they are mistaken. Therefore you do NOT have to wait at a crosswalk for the pedestrian to reach the other side, but you must yield the right of way to let them cross in front of you.

1. Yes you have a great case for a not guilty plea and to get the charge dropped.

2. A prosecutor is not obligated to offer you any kind of plea deal, and if they do, they usually do not offer non-moving violations in exchange for a moving violation. If you were in the USA, this is a very common practice, but is very rare in Ontario. At these meetings with the prosecutor, they do not usually care about your side of the story and do not care about the evidence you have, and in my opinion these meetings are usually a waste of time. If you just ask for trial right a way, then you get to meet with prosecutor before trial anyways and they may offer the same kind of plea deal they would have offered at an early resolution meeting. Also note that they do not have the officers notes and therefore are not aware of any of the cautions/warnings that were issued to you. Had the officer also charged you with these other offences, then sometimes a prosecutor will offer to drop one or two of the offences in exchange for a guilty plea on the others. But in this case the prosecutor only sees one charge, so there is really not much for them to negotiate or offer you.

3. If you decide to do the early resolution (which I do not recommend) either in person or by phone, then I personally would NOT show them the video and would NOT even mention it. They most likely will not even be interested in hearing your side of the story anyways, and will say to save it for trial if that is what you want to do. Now there is also something else to consider here... the officer has up to 6 months to charge you with any of the offences they noticed that day. There is a possibility that meeting with the prosecutor prior to trial and advising that they do not have a case or that they laid the wrong charge, could (not always, but could) lead to the prosecutor withdrawing the charge but then advising the officer and then the officer going ahead and laying a different/corrected charge. If you ask for a trial date instead, then most likely this will be more than 6 months away and then they can not chrage with with a new or corrected offence.

4. Just like any profession, there are good paralegals and bad paralegals. But if you do not understand the court process, then it is hard to distinguish the good from the bad as they will all "sell" you on how great they are. I usually recommend that most people should learn to fight tickets themselves, and honestly with your scenario you pretty much have a slam dunk win without trying too hard.

So after all that, I recommend you plead NOT GUILTY and request a trial with the officer present. Once you get your Notice of Trial with the trial date on it, then you can request disclosure (officers notes). Once you get these notes, post them back here for us to look at and we can then tell you how to proceed.

As a side note, if you want to show your video in court you should:

(1) copy the dashcam video (unedited) and put it on a USB stick, and

(2) bring a laptop to court with you that will play the video on the USB stick, and

(3) keep the original video on the dashcam and bring the dashcam to court with you as a backup.

They will need to keep the video as evidence, so if you only bring the dahscam they will take the dashcam from you, and if you bring it direclty on the laptop they will take the laptop from you, but if you bring it on USB stick, then you can hand them the USB stick to keep and you can take your laptop/dashcam back home with you.

Thanks for the advice; it's a big relief to hear that you think I have a good shot. You seem quite experienced and you have a lot of posts on this forum. May I ask what your background is so I know where your perspective is?

I'll look into research about court procedures to fight the ticket myself, and I'll prepare both a raw, uncut video, as well as an edited video (increased brightness, slow motion) to present in court.

-Bix

I am just a guy that likes to study the law and stand up for my rights.

jsherk wrote:

So was there "lines" indicating the crosswalk at this intersection?

The crosswalk is indicated by the pedestrian control signal (walk/don't walk), as well as parallel lines, which arr barely visible in the daylight (see attachment).

I'm not sure what effect this has on my case. I think it is in my favour to have the crosswalk marked by lines because they are further from the road than the curb of the sidewalk on either side.

I think the basis of my defense should be that I did not impede the movement of the pedestrian.

In order for the charge to apply at all, there has to be a crosswalk as defined in the HTA, so that was why I was asking. My opinion is that yes there is a crosswalk based on the fact that there are pedestrian control signals, so this does not become a defense.

So yes the only defense you have (and I believe it is a good one) is that you did in fact yield to the pedestrian so therefore the charge should be dropped.

I received disclosure today:

I observed the accused's motor vehicle stopped in the left turning lane on columbia st facing westbound. I observed 3 pedestrians on columbiaa st facing eastbound waiting to cross albert st. I observed a male driver and a female front passenger in m/v. The traffic light turned green and observed the waling sign for the pedestrians to cross. I observed a pedestrian proceed to cross albert st walking with in the cross walking eastbound . I observed the accused begin to turn left onto southbound albert st and started honking at the pedestrian crossing albert st. I observed the pedestrian to be in the middle of the crosswalk and i observed the accused continue to make left turn and proceed to complete left turn turning behind the pedestrian.

I generally agree with this statement except for two parts.

I observed 3 pedestrians on columbiaa st facing eastbound waiting to cross albert st.

There was in fact only one pedestrian waiting to cross Albert St. The other two had just finished crossing on a red signal, and appeared to be about to cross Columbia St, again against a red signal which had now just changed. This is shown on dash camera video.

I observed the accused begin to turn left onto southbound albert st and started honking at the pedestrian crossing albert st.

I was in fact honking not at the pedestrian crossing Albert St., but at the two pedestrians which had already illegally crossed Albert St. and seemed about to illegally cross Columbia St, into oncoming traffic. In my opinion, I was warning them and other drivers to a potentially dangerous situation.

Then there is the third part, which I believe can be used to request a dismissal following the close of the prosecution's case:

I observed the pedestrian to be in the middle of the crosswalk and i observed the accused continue to make left turn and proceed to complete left turn turning behind the pedestrian.

Perhaps the strongest part of what I think is a fairly weak case is this bit though:

Accused started apologizing and stated " he thought he had the right of way , didnt know what i was thinking"

Frankly, I was so flustered at having been pulled over that I couldn't articulate what I was thinking. Lesson learned: Keep your mouth shut during traffic stops. Speak only when spoken to. I don't think this alone is sufficient for a conviction, but I do worry that it will hurt my argument that I was honking at the illegal-crossers.

My questions for the ladies and gentlemen of this forum are as follows:

1. If the Justice of the Peace is convinced that I was honking at the legally-crossing pedestrian, is honking considered a failure to yield? For that matter, what is a legal definition of, "yield?" The most official source I have found is the Ontario Drivers Handbook, which is not a legal resource, but states, "There are times when you must yield the right-of-way. This means you must let another driver go first." In this case, by the officer's own admission, I let the pedestrian go first before completing the turn, although not before honking my horn.

2. How does my case look now, given full disclosure? Any general advice?

3. My plan of defense is to ask for a dismissal after the prosecution case closes, on the grounds that essential elements of the crime have not been established, namely, that I did not fail to yield to the pedestrian, given that honking does not compromise a pedestrian's right of way, regardless of who is being honked at. Only if this plan fails will it be necessary to argue that I was not honking at this pedestrian, but at the illegal crossers, and therefore, I did not compromise the pedestrian's right of way. Any suggestions or general advice?

1. Honking has nothing to do with yielding. You can honk at them all you want.

2. I still think you have strong defense as even the officer says you turned behind the pedestrian. So if you end up at cross-examination stage, you will want to ask the officer on this point with questions like "So did I turn in front of the pedestrian before they reached the other side?" and "You say I turned behind the pedestrian. So you mean that AFTER the pedestrian had passed and was almost at the other side, I proceeded behind them?" and "So according to your own notes, I did actually yield to the pedestrian and let them pass before I proceeded?" and "Can you quote the part of the act or regualtion that says the pedestrian MUST be all the way across to the other side of the crosswalk before a vehicle can proceed?"

3. Yes when the prosecution says NO MORE QUESTIONS and the JP asks you if you want to cross-examine the officer, then you can say "Motion of non-suit- The officer testified that I turned BEHIND the pedestrian after they had already passed, showing that I actually did yield to them, and therefore the prosecution has failed to prove a required element of the charge, specifically that I did not yield."

Assuming the motion of non-suit does not work, then see #2 above for some cross-examination questions to possibly ask the officer.

And as a side note, if the officer starts to say anything about what you said to him (even what is in the notes) immediately object and say "statements made are not admissable unless there is a voire dire". Most of the time I have seen the JP's immediately agree to the objection. It is up to the prosecutor to say they want a voire dire, which means a trial-in-a-trail where they will then decide (based on your and the officer testimony) if what you said to the officer should be allowed to be admitted or not. But worst case is that you have a good story and your explanation seems believable, so I don't think it is a real issue.

And watch out for the prosecutor trying to throw in the "you must wait until the pedestrian has finished crossing the street" thing...

Section 140(1)(c) relates to a pedetrian crossover and says you must wait until they have completely crossed the street before you proceed. However this was NOT a pedestrian crossover, but was instead a pedestrian crosswalk. And as such you were charged under section 144 (not section 140) and section 144 has no such requirement to wait for them to completely cross the street, only the requirement to yield to them, which you did.

What should I do if the officer testifies beyond the scope of his disclosed notes, e.g. "The defendent did drive behind the pedestrian, but was so close, he nearly hit the pedestrian."

I disagree with that statement, and I believe my dash cam would cast some doubt on that statement, but how exactly should I argue against this?

Alarm bell to be sounded

(5) Every motor vehicle, motor assisted bicycle and bicycle shall be equipped with an alarm bell, gong or horn, which shall be kept in good working order and sounded whenever it is reasonably necessary to notify pedestrians or others of its approach. R.S.O. 1990, c. H.8, s. 75 (5).

The argument might be that if you were yielding to the pedestrian then why would you need to sound your horn.

I appreciate your response, argyll.

As I stated earlier, I honked my horn because there were two pedestrians that had just illegally crossed Albert Street, and seemed about to cross illegally across Columbia Street West. This is a neighbourhood very close to University of Waterloo and Wilfred Laurier University, and it was late on a Friday night. It would not be the first time I've seen an intoxicated pedestrian do something dangerous, and I sounded my horn to warn of a potentially dangerous situation. Hypothetically, I could have been sounding my horn to say hello to a fellow motorist, to make some nosie, to play along to the song on the radio, etc. It may be distasteful, and potentially a bylaw noise violation, but I'm not aware of any HTA regulation which restricts the use of horns.

HTA 75(5) which you quoted, it states that the horn shall be used to warn pedestrians or others of its approach, but this doesn't mean it is the only allowable use. In this case, I was using it to warn the pedestrians and other drivers that they may be in danger.

I don't mean to be antagonistic, argyll; thank you for playing devil's advocate.

Now, I hope I can argue all of this as my own defense with supporting video evidence, and not as a testifying witness.

In order to argue in your own defence and to submit your video as evidence, you will have to testify. If all you are doing is defending yourself, you can only ask questions of the other witnesses.

Really, a defendant cannot present logical arguments or evidence to the court without testifying?

How would that even work? Who would question for examination in chief when I am on the stand? Do I just speak freely?

Should I hire a paralegal, then?

Bixie wrote:I appreciate your response, argyll.

As I stated earlier, I honked my horn because there were two pedestrians that had just illegally crossed Albert Street, and seemed about to cross illegally across Columbia Street West. This is a neighbourhood very close to University of Waterloo and Wilfred Laurier University, and it was late on a Friday night. It would not be the first time I've seen an intoxicated pedestrian do something dangerous, and I sounded my horn to warn of a potentially dangerous situation. Hypothetically, I could have been sounding my horn to say hello to a fellow motorist, to make some nosie, to play along to the song on the radio, etc. It may be distasteful, and potentially a bylaw noise violation, but I'm not aware of any HTA regulation which restricts the use of horns.

HTA 75(5) which you quoted, it states that the horn shall be used to warn pedestrians or others of its approach, but this doesn't mean it is the only allowable use. In this case, I was using it to warn the pedestrians and other drivers that they may be in danger.

I don't mean to be antagonistic, argyll; thank you for playing devil's advocate.

Now, I hope I can argue all of this as my own defense with supporting video evidence, and not as a testifying witness.

Not antagonistic at all. It's all about debating the issue and people coming up with various viewpoints.

You are correct, that section is a shall as opposed to a shall not section.

The only other bit is:

Unnecessary noise

(4) A person having the control or charge of a motor vehicle shall not sound any bell, horn or other signalling device so as to make an unreasonable noise, and a driver of any motor vehicle shall not permit any unreasonable amount of smoke to escape from the motor vehicle, nor shall the driver at any time cause the motor vehicle to make any unnecessary noise, but this subsection does not apply to a motor vehicle of a municipal fire department while proceeding to a fire or answering a fire alarm call. R.S.O. 1990, c. H.8, s. 75 (4).

What is unreasonable is very much open to interpretation.

Unnecessary noise

(4) A person having the control or charge of a motor vehicle shall not sound any bell, horn or other signalling device so as to make an unreasonable noise, and a driver of any motor vehicle shall not permit any unreasonable amount of smoke to escape from the motor vehicle, nor shall the driver at any time cause the motor vehicle to make any unnecessary noise, but this subsection does not apply to a motor vehicle of a municipal fire department while proceeding to a fire or answering a fire alarm call. R.S.O. 1990, c. H.8, s. 75 (4).

I may or may not be guilty of this offense, but that is not what I am charged with, and I would therefore declare an objection on the fact that any statements related to this section of the HTA are irrelevant.