OHTA.ca

I received a couple of tickets last summer. It was the Friday, July 29th (before the Civic Holiday) at 4:30pm (rush hour) in downtown Toronto (making a right on Bremner from Navy Wharf). As I sat waiting for the light to change on Bremner to make a left into Spadina, I was stopped by a bicycle cop who at the point in time sees me holding my phone.

I recall clearly that I stopped at the red light. It's impossible not to stop at that light as it is almost always congested and with pedestrians crossing all the time, it was impossible. I was not sure how the bicycle cop saw the light since he actually came from in front of me from Spadina. I am fighting the ticket for sure as I am positive that I stopped.

In regards to the handheld, my phone had fallen from the compartment underneath the radio onto the floor of the driver's seat. I was in the midst of cleaning my screen when the cop came up to me.

He didn't say much when I opened my window, in which I at that point mentioned that I wasn't actually using my phone. He wasn't interested in what I had to say and said that I hadn't stopped at the red light. I said I did. He ignored me again and said it was clearly red and asked me to drive past Spadina and pull over. I said sure without any argument. I waited patiently for him. He came back with 2 tickets one for the Failure to Stop at Red Light and Drive- Hand Held Device. I explained to him that I wasn't using my phone but rather cleaning my screen at the red light just before I was about to place it back in the compartment. He said it didn't matter as my hands should be at 10 and 2 at all times. (This is obviously ridiculous!)

When I got my Trial date papers it indicated it was Use of Handheld Device. My trial is tomorrow morning. I've never done this before and so I am quite green. I never requested for a disclosure but I did indicate when I was filing for a trial that I would like all evidence presented. I'm not sure if this is the same as a disclosure. I've printed out copy of my Wireless Usage for that day which clearly indicates that I was not using my phone. As for the red light, I am planning to plead that I did stop as I felt the car jerk back. Maybe the officer did not see me do a complete stop. I am hoping he just doesn't show up for the trial.

What are my chances of winning this? Are my arguments valid?

144.) Traffic control signals and pedestrian control signals

Red light

(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown. R.S.O. 1990, c. H.8, s. 144 (18).

Exception – turn

(19) Despite subsection (18) and subject to subsection (14), a driver, after stopping his or her vehicle and yielding the right of way to traffic lawfully approaching so closely that to proceed would constitute an immediate hazard, may,

(a) turn to the right

Hand-held devices prohibited

Wireless communication devices

78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2.

for your red-light right turn, the officer may need a clear line of sight to your "rims/tires" to see whether they stopped spinning (complete stop); you may need to revisit the intersection to see if that was possible from his vantage point

the fact that you admitted to holding the phone at roadside is more than enough to convict for the HTA 78 (1)

if the officer is present, he can definitely give you his notes and give you an explanation for short-form or illegible writing

you may be able proceed directly to trial, but your better off requesting for an adjournment and take some time to go through the disclosure

disclosure should be requested atleast 8-weeks prior to your trial or as soon as you get your notice of trial in the mail; i believe R. v. Stinchcombe set out guidelines where the crown is not obligated to give you disclosure without your request

Sample Disclosure Request: http://www.ontariohighwaytrafficact.com/topic2959.html

So it looks like for the turning right portion of it, I have a case as I did stop. In regards to the phone, I can basically decide to go guilty with a reason. holding but due to possibility hazard as it fell on the driver's floor so I was worried that it may slide under the break, in which I waited until the I reached a red light to safely pick up the phone.

If you're planning on pleading guilty to the cell phone, I'd enquire about a plea deal. They'll probably drop one charge if you plead to the other.

disclosure should be requested atleast 8-weeks prior to your trial or as soon as you get your notice of trial in the mail; i believe R. v. Stinchcombe set out guidelines where the crown is not obligated to give you disclosure without your request

Relevant portion of R. v. Stinchombe http://canlii.ca/t/1fsgp:

"...The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information. In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done. At this stage, the Crown's brief will often not be complete and disclosure will be limited by this fact. Nevertheless, the obligation to disclose is a continuing one and disclosure must be completed when additional information is received."

I'm curious to know if the section in bold above would apply to POA Summary Offences?

I don't think POA cases are those "rare cases". Quite the opposite, in fact. I think the rare cases are the particularly serious criminal ones where the accused is self-represented and doesn't know any better. Because of the seriousness of the charge (and the potential sanctions), it seems incumbent on the prosecution to make them aware of the fact that they are entitled to disclosure, just as a judge has a duty during trials with self-represented accused to make sure they don't get steamrolled. POA cases (being the least serious) probably don't fall under this criteria.