OHTA.ca

So I was on the 403 Toronto-bound and driving in the leftmost non-HOV lane. A truck drifted into my lane pushing me into the HOV lane. As soon as I was able (a few KM), I moved back into the regular lane. An OPP officer pulled me over and issued me a ticket under 154.1(3). I tried to plead my case but her argument was that she didn't see any traffic disturbances in her rearview.

• Traffic was moving equally fast in HOV and non-HOV lanes. I had no motivation to be in the HOV lane.
• I had to be in TO (for a class) at 5, and was ticketed at 3pm. Even getting stopped, I was an hour early and I can document all of this. Not exactly relevant, but suggestive that I wasn't gaining any time by being in the HOV lane.

Do I have a reasonable prospect of beating this ticket?

It'll be difficult. If you'd had the licence plate of the truck, you may have been able to subpoena its log that would have shown it was likely to have been in that area at that time.

You should definitely request a trial and disclosure. The officer's notes will show what she saw and what she knows.

What happened was not a traffic disturbance. It was a split-second action by one driver. BIG difference!

In cross-examining the officer, I would ask her whether she would consider it a violation to cross the striped line to avoid a collision. Chances are she'd say no. Most people would say it's more important to avoid a collision, particularly with a truck. I'd then ask her if she would consider it a violation to cross the striped line again to get back out of the HOV lane. If she said no, I'd be in good position. My own testimony later would explain what happened and why I'd done what I'd done. If she were to say she would consider it a violation, I'd then ask her whether it would be better to cross that line again or to stay in the HOV lane until the next opportunity to get out of it.

What it boils down to is whether the JP would accept this defence as due diligence. If not, and as a last resort, if the JP insisted on a conviction, I would ask for no fine because of the circumstances. MTO would still apply the points, but I'd save $110.

Unfortunately, driving in the HOV lane is an absolute liability offence. If this goes to trial, the courts are only interested whether you were inside it or not.

They're uninterested as to why, this may only affect the fine. You will still be convicted.

Discretion really starts and ends with the officer. If you had dashcam video of the incident, showing it to the crown prosecutor may result in a withdrawal.

Bar none of these, you're not going anywhere. Best case would be an alternate charge if the prosecutor believes your explanation.

My understanding is that 154.1(3) is not an absolute liability offence but a strict liability offence.

Take for example the hypothetical scenario of an accident or debris on the road, blocking the non-HOV lanes of the highway. If it were an absolute liability offence, you could be ticketed for using the HOV lane - even momentarily - to get around the blockage.

Regardless, I am going with a defense of necessity: it provides an excuse for otherwise unlawful conduct in the absence of alternative or to ensure safety. The argument I am going to try is that I had no choice but to move to the HOV lane, that I avoided another offence and potential safety issue by remaining in the lane until I was able to safely change lanes. I can produce a Google Earth image showing where the officer and I pulled over is just a stone's throw from the entry/exit points of the lane.

Any idea as to whether Halton OPP has dashcams or bodycams? I would love to see her viewpoint of the traffic stop and have the JP hear our conversation.

I'm curious as to where the police was in relation to you, she saw this all in her rear view? If it is through the rear view, I'm wondering if it could be questioned whether she even had a clear view of the situation.

From a lay person's point of view, defence of necessity from avoiding a truck colliding with you on the highway sounds reasonable, not sure what others who have experience in court can say about it.

So, a truck drifts in to your lane and you quickly (presumably within meters) are able to move in to the HOV lane. But, somehow it took you KMs to get back into your proper lane. Why couldn't you just slow down and get back behind the truck?

I think you are going to have a difficult time overcoming the 3rd hurdle of the necessity legal test

"ceasing to engage in the prohibited conduct as soon as the danger passed"

The officer will likely testify on how long she saw you in the HOV lane.

The HOV lane is marked with a hatched "Do Not Cross" set of double lines. I figured crossing those lines - a lane change that would be very unexpected by other drivers - was a bigger deal than sticking in the lane for a minute or two. I got forced into the lane, and before the next entry/exit zone, I came up from behind the cop on her left. When we got to the entry/exit zone, I changed lanes and she turned on her flashing lights. Didn't even know she was a cop until then.

Hope it works out well for you in court. I wonder if it depends on how the JP feels about the case. I can see why you didn't cross the buffer zoned though:

"Buffer zones

3. (1) Entry and exit points at which vehicles may enter or exit high occupancy vehicle lanes are located between buffer zones, illustrated in Figure A in section 4.  O. Reg. 620/05, s. 3 (1).

(2) No person shall operate a motor vehicle or commercial motor vehicle to enter or exit a high occupancy vehicle lane by crossing a buffer zone, unless the movement can be made safely and one of the following circumstances exists:"

I think my only real questions at this point is how much proof I need to provide to put forward a necessity defence and whether the officer is going to record/note/remember how she spotted my vehicle and what was said in the conversation.

In my reading it says that once a necessity defence is established the onus shifts to the Crown to prove that I didn't act out of necessity. For example, if I had continued in the lane or that she saw me enter the lane without any other traffic. Uf she tells the truth, neither of those will occur, but as OPP HSD, she likely makes a lot of traffic stops and if the trial is in six months to a year, I can't be more than background noise in her memory.

My reading also suggests that OPP in the GTA does not have dashcams. Any information to support or refute that would be helpful. Do they wear bodycams?

From what I've read, they would have to disclose the recordings if any to you before the trial or you can object to the evidence if brought up in trial.

Also read they can't say what you said unless they can show it was done freely, they would have to do something called a voir dire.