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Hello,

I am hoping to get advice on how to proceed with my defence regarding a ticket I received for improper use of a high occupancy vehicle lane on an interprovincial bridge between Hull, QC and Ottawa, ON. The ticket was given in Ottawa by the Ottawa Police.

I was staying at my girlfriend's in Hull, QC because it was close to my new job in Ottawa. This area was brand new to me.

Needless to say, I was driving South down Maisonneuve Boulevard in Hull that morning to get to work and cross the bridge to Ottawa. After the intersection between Maisonneuve Boulevard and Laurier Street, there is a bridge that crosses into Ottawa and onto Wellington Street. This is an interprovincial bridge. I was in the furthest left lane in Hull on Maisonneuve Boulevard because it seemed to be moving quicker than the right lane but upon crossing the intersection, I noticed an HOV sign that only allows 3 passengers or more, taxis, buses, etc. So I put my blinker on to get into the right lane but no vehicles would let me in, to which point I was being honked at from buses and vehicles behind me. I decided to keep going with my right blinker on by trying to find a spot to squeeze into on the right lane until a police officer who was purposely waiting on the median got out of his vehicle and asked me to stop right then and there so he could give me a ticket.

After getting the infuriating ticket, I went back after work and noticed that the lane I was driving in on Maisonneuve Boulevard (in Hull, QC) was not a HOV lane.

In fact, the HOV lane on Maisonneuve Boulevard is on the furthest right lane. However, after crossing the intersection onto the bridge, the HOV lane switches to the furthest left lane with only an HOV warning the moment you get on the bridge.

According to the Ontario website, entering an HOV lane in Ontario must have approximately a 400m notice. Link: http://www.mto.gov.on.ca/english/ontari ... anes.shtml

Second, I assume that an Ottawa by-law comes into play as well. I found the document, and can't find much about HOV lanes in Ottawa other than page 26 that says "drive or permit to be driven any vehicle to be driven, other than a high-occupancy vehicle carrying the minimum number of persons shown on the authorized signs." I also found on page 12, regarding signage, saying: "required to regulate, direct, warn or guide pedestrian and vehicular traffic and parking for the safety and convenience of the public." Link: http://documents.ottawa.ca/sites/docume ... law_en.pdf

What I am hoping to argue is that there was not enough signage or proper warning to guide me that the HOV lane immediately cuts from the furthest to the right to the furthest to the left upon crossing the bridge. I requested a disclosure two weeks before my court date (May 2), so I hope that I can request my trial to be adjourned until I receive a disclosure.

Any advice on how to proceed with this would also be appreciated!

Thank you.

Were you charged under section 154.1 of the Highway Traffic Act (HTA) or a municipal by-law or the National Capital Commission Traffic and Property Regulations (NCCTPR)?

I was charged under section 154.1 (3) of the Highway Traffic Act.

I think we just discussed this almost identical situation in the this thread:

That is the same situation as me. From what I understand on that thread, I should meet with the prosecutor on my court date and ask them to drop the charge because it was the incorrect one. To clarify my situation, it was indeed the Ottawa Police and it was 154.1 (3) of the Highway Traffic Act. Whereas it should have been S.4(1) or an Ottawa by-law ticket (from what I am reading on the other thread).

In your opinion, what should I bring to the prosecutor to prove to them that I was given the wrong charge and therefore should be getting it dropped altogether? Does my signage defence even hold up at all or is my best bet to only bring up the wrong charge and not the signage issue too.

You should get the officer to testify as to what he saw. Then ask him or her to describe the signage and road markings. Bring four copies of Regulation 620/05 (the HOV Regulation made under the HTA): one for the officer, one for the JP, one for the prosecutor and one for you to use. Ask the officer if you were on any of the highways specified in the Regulation (obviously you weren't). Ask the officer if the road markings matched what is specified in the Regulation (obviously they don't). You can then easily prove you were charged under the wrong offence. The prosecutor may then try to change the charge to s. 4(1) of the NCCTPR or the appropriate City of Ottawa by-law, but, to the best of my knowledge, you can object to that as that charge is not included in your original charge.

Zatota wrote:You should get the officer to testify as to what he saw. Then ask him or her to describe the signage and road markings. Bring four copies of Regulation 620/05 (the HOV Regulation made under the HTA): one for the officer, one for the JP, one for the prosecutor and one for you to use. Ask the officer if you were on any of the highways specified in the Regulation (obviously you weren't). Ask the officer if the road markings matched what is specified in the Regulation (obviously they don't). You can then easily prove you were charged under the wrong offence. The prosecutor may then try to change the charge to s. 4(1) of the NCCTPR or the appropriate City of Ottawa by-law, but, to the best of my knowledge, you can object to that as that charge is not included in your original charge.

Thank you. I will try just that.

Zatota wrote:You should get the officer to testify as to what he saw. Then ask him or her to describe the signage and road markings. Bring four copies of Regulation 620/05 (the HOV Regulation made under the HTA): one for the officer, one for the JP, one for the prosecutor and one for you to use. Ask the officer if you were on any of the highways specified in the Regulation (obviously you weren't). Ask the officer if the road markings matched what is specified in the Regulation (obviously they don't). You can then easily prove you were charged under the wrong offence. The prosecutor may then try to change the charge to s. 4(1) of the NCCTPR or the appropriate City of Ottawa by-law, but, to the best of my knowledge, you can object to that as that charge is not included in your original charge.

I received my disclosure. They are typed out notes of the officer. They say:

"Enforcement of the Ottawa bound HOV lane. Signs posted clearly for bus/taxi person or more vehicles. Police truck parked NB on centre median. officer on foot. Vehicle observed in bus lane is a grey Hyundai sedan solo male drive4r in bus lane ID w ONT LD"

I still think what I suggested will work. Signs may have been posted, but I'm guessing from what you've said that (a) there were no "HOV lane ahead" type signs on the Quebec side and (b) the signage did not conform to the Regulation (I believe someone who's in a similar situation said the lane is 3+). The officer clearly charged you under the wrong Act.

Zatota wrote:I still think what I suggested will work. Signs may have been posted, but I'm guessing from what you've said that (a) there were no "HOV lane ahead" type signs on the Quebec side and (b) the signage did not conform to the Regulation (I believe someone who's in a similar situation said the lane is 3+). The officer clearly charged you under the wrong Act.

Ok, thank you. So there is a sign that advises you HOV +3 taxi/bus ahead but it is as soon as you cross the intersection onto the bridge. If you see in my image it says HOV sign furthest left. That arrow is where all of a sudden it tells you it is now an HOV lane ahead. But the HOV lane was actually on the furthest right before the intersection/crossing on the bridge. Do you think that even though there was a "warning sign" right away that it will constitute a fair warning that it is HOV? It seems that the Ontario HOV says it should be 400m notice (again being the wrong charge he gave me anyway).

From what I read about the previous person having this issue, it seems that people are saying if six months doesn't pass by time you go to court that the prosecutor can give me a new charge that would be the proper one? Or should they just end up dropping it based on my arguments you mentioned earlier. Thanks again.

The 3+ HOV lane that exists on the bridge is municipal and is covered by an Ottawa by-law. The provisions of the HTA do not apply. Had you been charged under the NCCTPR, you'd have been guilty. The officer charged you with the wrong offence.

If you're in court within six months of the alleged offence date, the officer (not the prosecutor) could theoretically charge you with the "correct" offence. Whether he would, however, would be entirely up to him.

Zatota wrote:The 3+ HOV lane that exists on the bridge is municipal and is covered by an Ottawa by-law. The provisions of the HTA do not apply. Had you been charged under the NCCTPR, you'd have been guilty. The officer charged you with the wrong offence.

If you're in court within six months of the alleged offence date, the officer (not the prosecutor) could theoretically charge you with the "correct" offence. Whether he would, however, would be entirely up to him.

My court date was today. After trial, the prosecutor didn't believe it was my first time on this bridge and therefore should have been more aware. The judge later proceeded to give my sentence as guilty. The prosecutor claims that there is a subsection within the HTA that applies to this offence. I do not recall what it was. Notably, the judge mentioned that wrong offence or not that I have confirmed I was on that lane and that is enough to make me guilty.

I have taken papers to appeal. Not sure if I should. If anyone can please advise. Thank you.

Did they change the charge then to a different section of the HTA or to a bylaw offence or to the NCCTPR?

If you want to appeal, you need to pay for 3 copies of the transcript in advance. So now you have to decide if your time and money is worth appealing it. Personally I encourage the appeal on principle alone, but that of course does not mean you will win! And since we were not there, we do not really know what was said or what went down.

There's no way the JP could have found you guilty of the offence with which you were charged. It refers to a situation that's completely different from the one covered by Section 154.1. Even if you say you were driving in the lane, you did not violate s. 154.1 and cannot be found guilty of violating it. Unless the prosecutor amended the charge, you could not have been found guilty. In this case, the JP would have made an error in law and you should be able to win on appeal (my non-professional opinion, of course).

If the prosecutor did amend the charge, the question becomes whether the new charge is included in the original. There have been discussions here as to what "included" means, including some excellent examples. I'm hardly an expert on this subject, so, perhaps, someone else can chime in.

Was the officer present? Did you question him? Did you meet the prosecutor before the trial?