OHTA.ca

Hi All

I was charged with "Driving wrong way - divided highway" this past April but to the best of my knowledge the road I was on is a One Way city street.

First of all, can anyone clarify what classifies as a "divided highway" and if the charge against me is correct?

Secondly, I was in a rush the day I got the ticket so I chose the "early resolution" option and mailed it to the court services.

My meeting is this afternoon and I am a little unsure on how to pursue this.

Here are what I think my options are -

1. Listen to the prosecutor's offer and either accept a reduced charge or refuse it and take my original violation to court.

2. Tell him about the (possible) incorrect charge against me and risk him/her amending the original charge and perhaps not offering me a reduced charge.

What do you guys suggest would be the best thing to do in my case.

Thanks

Joe

What street/city were you charged on? The definition of "highway" under the H.T.A. includes all roadways, not just major roads like the 401 that you'd commonly refer to as a highway. A divided highway would basically be any roadway with some type of division (like a median) that separates traffic travelling in opposite directions.

Montcalm Ave in Toronto. Its a one way road with no median of any sort.

Sounds like you were charged under the wrong section then. The proper charge would be "Drive Wrong Way - One Way Traffic" under section 153.

Okay thanks for the conformation. So, the question is how do I pursue this? I requested a trial at my early resolution meeting yesterday (however I didn't tell the prosecutor that the charge against me is possibly incorrect). My trial date is early September (less than 6 months from the date i was charged).

First of all, good job not telling the prosecutor what the problem is. NEVER tell them their mistakes!

Once you get your notice of trial, make a disclosure request so you can get a copy of the officers notes and see what they say.

I am not sure the best way to fight this as I have not researched this particular problem before, but probably would look something like this...

Officer will testify all the details including the street. Listen carefully to his testimony. Does he say that it WAS a divided highway?

If yes:

- then during cross-examination you might ask "You stated that it was a divided highway, correct? Where is the divider on this road? How is it divided from another section of road?"

- then during your closing submissions you say "Officer stated it was a divided highway, but then agreed that there was no divider and therefore the charge of Driving Wrong Way - Divided Highway cannot be proven since there was no divided highway."

If no:

- then during cross-examination you might ask "This street is a one-way street, correct? So there is no divider separating it from traffic going the other direction?"

- then during your closing submissions you say "Officer never stated it was a divided highway in his testimony, and then agreed that there was no divider and therefore the charge of Driving Wrong Way - Divided Highway cannot be proven since there was no divided highway."

Also just remember you do NOT have to testify against yourself and you do NOT have to take the witness stand and you do NOT have to give your side of the story. Most people make the mistake of trying to explain in court why they think they should not be charged, and basically end up testifying against themselves and admitting they did it ... and of course they end up getting charged. Sometimes you may want to testify and give your side of the story, but assuming you were actually going the wrong way on a one-way street then I am not sure you would want to testify in this case as the Justice of Peace may say there is evidence (by your own mouth) that you were going the wrong way. People think they need to testify to explain why they should win or to explain the problems with what the officer said, but really you just need to cross-examine the officers testimony and point out the problems with his testimony in your closing submissions without ever testifying yourself.

Just a further thought to this ...

I am not sure when the prosecution can "amend" a ticket, so my thinking above may or may not work. If they can only amend a ticket before the officer starts to give evidence, then the above method may work well. However, if they can amend the ticket anytime during the trial, then it may not be a good way to handle it because the prosecutor could amend the charge to Wrong Way One-Way Street.

Would be good for others to chime in on the best way to handle a "wrong charge laid" scenario like this.

They can amend up until the trial starts.

jsherk wrote:- then during cross-examination you might ask "You stated that it was a divided highway, correct? Where is the divider on this road? How is it divided from another section of road?"

At the point where the officer testifies that is just a one-way street and not a divided highway, at that point, Crazeeghost, you want to make a motion of non-suit. Easy as this: "I'm making a motion of non-suit. The officer has described a highway that does not apply to this charge."

Case dismissed.

Thank you very much for the replies Radar Identified and jsherk.

Just a few follow up questions -

They delivered my notice to appear for trial, in person, right after the early resolution meeting. When can I request disclosure of information/officer's notes and What's the process to do so. Is this something that I am able to do at the trial or something I can do in advance?

What's the legal way to refuse testifying against yourself? Is there a reference to a law I can quote, something along the lines of the 5th amendment? Or am I watching too much American TV?

Do you guys see any other possible scenarios that the prosecution may come up with after I plead a non-suit? If so, what do you guys feel about me appointing legal help to represent me at the trial in case of any unforeseen scenarios.

Also, I went back to the spot where I was pulled over and charged to confirm if it was a one way street indeed. I'm confident that I was charged on a part of a road that only goes one way. However, 100-200m further north on the street, it turns into a two way street but there is still no median/lane markings except shot lines near the intersections. Does this change anything? I can post pictures if that helps with making things clearer.

Thank you again for all the help.

You can request disclosure in writing, immediately after you get your notice of trial, so you should do it as soon as possible.

Read this post (http://www.ontariohighwaytrafficact.com/topic7041.html) and their are several websites at the bottom like TicketCombat that will give you an idea how to request disclosure.

Canadian Charter guarantees your RIGHT TO SILENCE - http://en.wikipedia.org/wiki/Right_to_silence#Canada

Trial looks kinda like this:

- They read charge and ask you how you plead. If you say Not Guilty then trial continues.

- Prosecutor calls their first witness (usually the police officer) and asks a bunch of questions.

- You get to cross-examine the witness.

- Prosecutor gets second chance to ask witness questions again, usually about anything you brought up in cross-examination (but cannot add anything new).

- You get to cross-examine witness again.

- If prosecutor has more than one witness, then process continues until they go thru all of them.

- You will then be asked if you have any witnesses you would like to call or if you would like to make a statement/testify.

- If you have a witness or if you want to testify, then the prosecutor will be able to cross-examine your witness/you just like you did to the police officer. If you DO take the witness stand, then you MUST tell the truth and answer any questions that they ask you.

- The only time you HAVE to answer questions about what happened, is if you take the witness stand. If at any other time during the trial the prosecutor asks you something about what happened, you can respond with "I am not on the witness stand and do not have to answer that" or "I have the right to silence and do not have to answer that"

- If you do not have any witnesses and do not want to testify you can simply say you have no witnesses and you do not want to testify.

- Next stage is where the prosecutor will make their closing submissions and say that they have proven all the elements of their case because of X and Y and Z.

- Then you make your closing submissions and say they have NOT proven their case beyond a reasonable doubt because of Q and R and S.

- Justice of the Peace will make their decision.

LEGAL HELP?

Most people that represent themselves really have no idea what they are doing. It's like playing chess against a world class chess player when you do not even know the rules. You are 99.9% of the time going to lose. The only way to win is to know the rules and to practice. The best place to practice is in the court itself. A paralegal or lawyer is supposed to know the rules and know how to play, so if there is a hiccup with the non-suit motion, they should better be able to handle it. Are you willing to spend a LOT of time learning the rules and learning how court works? Are you willing to accept the consequences of the ticket if you lose in court (and at an appeal)? If you can answer yes to these two questions, then you are good to represent yourself. If the answer is no to either of these questions, then you should probably hire legal help. Think about what would happen if you get to trial that day, and as the trial starts the prosecutor decides to amend/fix the ticket so that it becomes "Wrong Way One-Way Street". Now what will you do and how will you fight it? Also what will you do if they do not provide disclosure before the trial? Just some things you need to be ready for if you are going to do it yourself.

QUESTION

The charge that the officer lays should be at the location that he first saw you do it, NOT where he pulled you over. Did he first see you on a section of the road that did have a divider?

Once you get a copy of disclosure (which will include the officers notes) it should have a few more details about exactly where he saw you and what you were doing.

Hope this helps

The officer spotted me on a one-way part of the street with no median/divider.

On this page http://ticketcombat.com/offences/fatal.php it says the JP can correct any errors on the ticket if they want. Does this apply to the actual charge/violation itself?

Thanks a lot again for all this useful information, jsherk.

No and yes.

If there were a fatal error on the ticket, it could be corrected ONLY IF YOU HAVE A TRIAL. So when you spot a fatal error on a ticket, you should NOT go to trial. Then either the JP will see the error (which cannot be corrected if there is no trial) and quash the ticket, or if the JP does not see the error and allows the ticket to go thru, then you can simply file an appeal and get it quashed that way.

But in your case, this is NOT a fatal error... it is the wrong charge. A non-existent charge would be a fatal error, but you got charged with an existing one, so it is not fatal. So if you do not go to trial, you will be found guilty (even though it's the wrong charge) because you did not defend yourself.

You must go to trial to try and fight the wrong charge. BUT if the police officer or prosecutor figure out it is the wrong charge before the trial starts, then they can amend the ticket and change/fix the charge at the beginning of the trial.

Got it. Thanks again and congratulations on 100 posts, jsherk!

Might not hurt to look at other defence options in case the Crown realises the error and amends the charge. Id suggest looking at signage in the area and making sure its proper, visible and meets the legal requirements set out in the HTA. Signs are covered by the following regulation under the HTA: http://www.canlii.org/en/on/laws/regu/r ... g-615.html

Stanton, I checked the signage in the area and it seems to meet specifications. Thanks for suggesting that though.

I will be taking pictures of the street sometime soon. Any thoughts/suggestions/pointers that may be helpful in taking convincing photos? Also, how would you suggest I proceed if the officer (knowingly/unknowingly) inaccurately testifies that the street is a divided highway?

Thanks again for all the help so far.