OHTA.ca

Good afternoon.

My 18 year old daughter (G2) was charged with failing to yield 140(1)(a) at a busy four way stop.

As she was making a left turn in sequence, two children aged 7 and 10 entered the crosswalk followed by their mother and all were on bicycles.

Luckily there was no collision.

The same section, subsection 6 states "No person shall ride or operate a bicycle across a roadway within a pedestrian crossover."

If a person on a bicycle is not a pedestrian, then there were no pedestrians in the intersection.

Would this be a valid defence?

Thanks,

Tom

I'm not in a position to easily check the HTA at the moment, but I believe section 140 deals strictly with pedestrian crossovers, not regular crosswalks as you'd find at an intersection. Your daughter may have been charged under the wrong section.

I'd have to see if there's any case law on your actual question. I remember a high profile case about 15 years ago in the Kitchener area involving a Judge who struck a cyclist on the sidewalk while leaving a shopping plaza. I seem to recall the Courts ruled in the Judge's favour saying that the cyclist shouldn't have been on the sidewalk.

But without knowing the details of the case, I could see arguments going both ways in Court. Although the cyclists actions were unlawful, it wouldn't entirely negate the driver's responsibility from operating with due care. I can see it factoring on whether the cyclists stopped prior to riding into the intersection and afforded drivers a reasonable opportunity to yield.

Regardless, I'm glad there was no collision. Striking a child on a bike would have been a horrifying experience.

Section 140 is for crossovers only. There are no crossovers at a four way stop as those are crosswalks.

So your daughter was charged with the wrong charge, which means if you take it trial, you will beat it easily. The issue as to whether being on bikes is a pedestrian or not is irrelevent here because it is simply the wrong charge.

IMPORTANT ... Do NOT tell the police or the prosecutor that you know it is the wrong charge because they can withdraw it and issue a new corrected charge within 6 months. Keep it a secret right up until you are at trial standing in front of the Justice of the Peace.

For now, she should plead NOT GUILTY and request a trial with the officer present.

Whoever is going to go to court for her should go take pictures of the intersection to show it is four way stop with crossWALKS and not crossOVERS.

Thanks to both of you.

I'll go with your ideas about the wrong charge.

I'll let you know what comes of it.

She was charged with:

140. (1) When a pedestrian is crossing on the roadway within a pedestrian crossover, the driver of a vehicle approaching the crossover,

(a) shall stop before entering the crossover;

So a crossover defined under the HTA is defined here (https://www.ontario.ca/laws/regulation/150402#BK0). Most likely, it was a 4 way stop which is a crosswalk, not a crossover, therefore it would be pretty easy to get the charge dropped. Like JSherk Recommended, take photos using the proper format to admit them into court (I can't remember the topic off hand, but a search of this forum would bring it up) as soon as possible. Plead Not Guilty, Request a trial with an officer present, and once you get a trial date, request your disclosure. Ticket Combat has a nice template for a disclosure request.

If this does go to trial, remember, you do not need to go on the stand to testify (better to do this so you don't incriminate yourself). Print off 3 copies of the section your daughter was charged under, and make sure the officer defines the crosswalk as a cross walk, not a cross over. If he testifies it was a crossover you have the pictures proving otherwise. Following him saying it is a crosswalk, then you can ask for a motion of non-suit since the act defines a crossover, not a crosswalk. Case should be dismissed, and if not, it has great grounds for an appeal.