OHTA.ca

Hello everyone!

I came here before to get help in a really stressful time- my first traffic ticket, and I got an overwhelming amount of help, so I just want to say a big thank you to the kind people on this forum.

OKAY......

Here's the link to my previous post- http://www.ontariohighwaytrafficact.com/topic5290.html

tl;dr: I was originally ticketed for going 30km over the 100km/h limit (so 130km/h) on Highway 401 on Tuesday, April 30th. I am being fined $220 for the ticket, and I chose to bring it to court, hoping that it would get thrown out due to having too many cases in one courthouse. However, the case didnt' get thrown out, and now I have a few questions I hope you kind, knowledgeable people may be able to help me out on.

1.) On the scene, the officer said he got me at 137km/h, but said he "gave me a break" and "only put 130 on the ticket", and when I tried asking why it was so much (for the fine), I got a response of "It could be higher"... If the case was brought to court, would the court HAVE to amend the charge up to the highest speed recorded on the officer's notes? (which would be a charge of going 137, instead of 130) I filed for disclosure, and I don't want to risk losing another $70 to a fine, if the courts would have to amend the charge, and I lose the case. Is it likely they amend it? Does the procedure require them to overview the case and kind of "restore everything to default"?

2.) What is the minimum time/maximum time a disclosure request takes to get mailed, received, processed, and returned? I do wish disclosure could come sooner, so I can get the answer for the above question.

3.) If the answer to 1.) is that the courts DO have to amend the charge up back to 137km/h instead of 130, I would rather just pay the $220 fee than risk a potential bigger loss in losing to a 137km/h (which is a fine of $70 more). With that being said, what is the minimum time I would have to pay the ticket fine before the court date (including delivery & processing time)? Is this allowed? How would I go about doing this?

4.) To be honest, my strategy (if the courts do NOT have to amend the charge), is to:

• 1.)Hope the officer doesn't show up

• 2.)Try to get a good plea bargain (even going down to 129km/h would save me $80)

• 3.)Hope that the prosecutor tries to use evidence that wasn't properly disclosed

• 4.)Try to get the cop on proper calibration of radar gun

• 5.)Plead my case to the judge (although my friend says no matter what, judges take speeding as speeding, even if I say my reason was due to people tailgating me, and I accelerated to give my self a safe breaking distance in case of an emergency)

What do you think the chances of me succeeding in court with the above strategies? What kind of percentages does each strategy have of winning? Would you recommend I try to show up, or are my chances insignificant to make the trip all the way to the courthouse?

5.)How long do points stay on my record? I am a G2 driver, and I know if I am convicted, I have 4 points on my record, resulting in a 30-day suspension. Do I have to pay to get it reinstated? Do these points carry over to my G license? Do they remain in the system/on my record forever?

6.)Insurance- If I lose the case (or even get a plea bargain), would insurance skyrocket for this particular charge. How long would this charge take to be removed from my insurance history? I have thought about it, and I am ok with not driving for a few years in order to not get destroyed by insurance fees.

-Now I practice a habit of staying EXACTLY at the speed limit. This actually makes driving much more challenging and engaging, and eliminates any chance of you getting pulled over for speeding.

-Any help/advice/insight would be VERY appreciated. Thank you very much, and have yourself an amazing day! -

i think it's great that you're changing your driving habits to drive at the limit, and you should continue to do so

ImJayson wrote:1.) On the scene, the officer said he got me at 137km/h, but said he "gave me a break" and "only put 130 on the ticket" ... If the case was brought to court, would the court HAVE to amend the charge up to the highest speed recorded on the officer's notes? (which would be a charge of going 137, instead of 130)

if you choose to go to trial and lose, the speed will be amended back to the original 137kph.

ImJayson wrote:2.) What is the minimum time/maximum time a disclosure request takes to get mailed, received, processed, and returned? I do wish disclosure could come sooner, so I can get the answer for the above question.

You have to give the crown atleast 8 weeks notice before your trial date; they require 6-8 weeks to process your request; some jurisdictions mail out discosure, in others they require a phone number/e-mail where they will contact you to come pick up disclosure at their offices

ImJayson wrote:3.) If the answer to 1.) is that the courts DO have to amend the charge up back to 137km/h instead of 130, I would rather just pay the $220 fee than risk a potential bigger loss in losing to a 137km/h (which is a fine of $70 more). With that being said, what is the minimum time I would have to pay the ticket fine before the court date (including delivery & processing time)? Is this allowed? How would I go about doing this?

even on the trial date, if the officer shows up and prosecutor doesn't want to plea-bargain to 129 or lower; you can go to the ticket office and pay the fine on your ticket

ImJayson wrote:4.) To be honest, my strategy (if the courts do NOT have to amend the charge), is to:

• 1.)Hope the officer doesn't show up

• 2.)Try to get a good plea bargain (even going down to 129km/h would save me $80)

• 3.)Hope that the prosecutor tries to use evidence that wasn't properly disclosed

• 4.)Try to get the cop on proper calibration of radar gun

• 5.)Plead my case to the judge (although my friend says no matter what, judges take speeding as speeding, even if I say my reason was due to people tailgating me, and I accelerated to give my self a safe breaking distance in case of an emergency)

You have a very good chance of getting a 129kph reduction which would save you money and it's 3 points, so you'll avoid the DL suspension

they will most likely disclose what they have; to cross-examine the officer with the calibration, you need the manual for the radar

R. v. Perka set out guidelines for Necessity Defences in Canada which can be used in Absolute Liability Offences like Speeding in Ontario

There are however four principle limitations on such a defence: (R. v. Haynen 2002 OJ No. 4943)

a) There must be "clear and imminent peril" calling out for action without deliberation.

b) There must be no reasonable legal alternative to the illegal act.

c) The harm inflicted by the illegal action must be less than would be present if the "clear and imminent peril" were manifested.

d) If the harm, which forms the basis for the defence, was foreseeable and avoidable at an earlier time without any illegality, the defence is unavailable.

If for example you say that people are tailgating you, the courts will ask which lane were you in? If you were afforded a right lane, why didn't you move to that lane? Was there a shoulder available? Why didn't you pull over and let them pass? How long were they following you? Giving the driver behind you safe breaking distance is not really enough. When you continued to accelerate, did they continue following you? Will you continue to accelerate to appease them? How long were you speeding?

How close were they to your vehicle? Did you feel they were under the influence? If so, did you call 911? Did you tell the officer about the erratic driver behind you?

The courts will unfortunately conclude there were a lot of legal things you could have done, instead of speeding. There are a lot of cases you can read where pregnant couple driving at over +56kph to the hospital and the defence of necessity was not available to them (R. v. Paraschiew); a driver was speeding up to overtake a truck which was doing the 100kph speed limit, and he was also not afforded that defence (R. v. Dryka)... very rarely does the necessity defence work, it has to be a very unique situation... where for example completely unmarked civilian type police vehicles are following you, and an undercover plain-clothes officer pulls out a gun and you bolt (R. v. Lotufo)

There was another case, where the accused tried to commit suicide by blocking his exhaust to die from CO poisoning; but he woke up and found himself alive, he was intoxicated and tried driving himself to a hospital; he saw a police car, and went towards it... subsequently pulled over and explained his story... Justice in that case believed that he successfully had all the elements to use the defence of necessity.

ImJayson wrote:5.)How long do points stay on my record? I am a G2 driver, and I know if I am convicted, I have 4 points on my record, resulting in a 30-day suspension. Do I have to pay to get it reinstated? Do these points carry over to my G license? Do they remain in the system/on my record forever?

Points stay on your record for two years from the offense date, not the conviction date. Example: if it takes two years for your trial, and you get convicted... you don't have any points. If you get a G license within the two years from the offense date, the points will be transferred/applied.

ImJayson wrote:6.)Insurance- If I lose the case (or even get a plea bargain), would insurance skyrocket for this particular charge. How long would this charge take to be removed from my insurance history? I have thought about it, and I am ok with not driving for a few years in order to not get destroyed by insurance fees.

Insurance consequences for a 130kph or 137kph conviction on a G2 Novice Class DL would be deadly. The 30-day License Suspension would normally mean that insurance companies will not touch you, you will have to go to the more expensive facility insurance. The insurance companies will only be able to see that suspension for upto 5 years. The actual speeding conviction will only be accessible to insurance companies for upto 3 years from the date you were convicted (ie: trial).

edit: R. v. Dixon, [1998] 1 SCR 244 - Supreme Court of Canada

55 It must be remembered that defence counsel is not entitled to assume at any point that all relevant information has been disclosed to the defence. Just as the Crown's disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel's obligation to be duly diligent in pursuing disclosure. To do nothing in the face of knowledge that relevant information has not been disclosed will, at a minimum, often justify a finding of lack of due diligence, and may, in certain circumstances, support an inference that counsel made a strategic decision not to pursue disclosure. In this case, the summary in the occurrence report indicates that Daye's statement would very likely meet the test for relevance set out in Stinchcombe. When defence counsel reviewed the occurrence report, he knew or should have known that the Crown had failed in its disclosure obligations. When this became apparent, defence counsel should have brought this matter to the attention of the trial judge at the earliest opportunity. In the circumstances of this case, the Court of Appeal was right to conclude that at this point, defence counsel was faced with a choice: "call for the statements or live without them" (p. 93).

if you know that the crown has disclosure (ie. additional notes, video, witness statements) and you choose not to request for it; you can not object to the use of this information at trial; the crown will most likely disclose all the information that they will use at trial. it's also in your best interest to ask for additional information that may assist you (ie: radar manual)

disclosure issues have to be remedied before the trial; if there are problems with disclosed & non-disclosed items during the trial, it may be your fault because you failed to exercise due diligence and made a "strategic decision not to pursue it"... therefore crown will be allowed to proceed with their case

Thanks alot iFly55, I appreciate you taking your time to help a friend in need.

iFly55 wrote:even on the trial date, if the officer shows up and prosecutor doesn't want to plea-bargain to 129 or lower; you can go to the ticket office and pay the fine on your ticket

How would I do that? So on the morning of the case, I would show up and ask for a plea bargain? And if they don't allow for one, I would just go to the office and pay? Would the court still continue (as in, would I have to stay the whole day) Would there be additional paperwork to do to if I choose to do this? If I don't wish to go to the office at all, could I mail the fine to the office? What kind of information would I need to attach with it? Would I still have to go to court if I mailed it? How many days before the court day does it have to be mailed?

iFly55 wrote:You have to give the crown atleast 8 weeks notice before your trial date; they require 6-8 weeks to process your request; some jurisdictions mail out discosure, in others they require a phone number/e-mail where they will contact you to come pick up disclosure at their offices

I got booked in Woodstock, Oxford County. How do they do it there? I mailed out disclosure on June 24th, 2013. Would there be enough time to get it back? The disclosure only came in the mail the thursday before (June 20th). I do not have an obligation to include my phone number, right? I didn't want them calling me, and only want responses through the mail (to try to get into 11b territory)

iFly55 wrote: Points stay on your record for two years from the offense date, not the conviction date. Example: if it takes two years for your trial, and you get convicted... you don't have any points. If you get a G license within the two years from the offense date, the points will be transferred/applied.

Insurance consequences for a 130kph or 137kph conviction on a G2 Novice Class DL would be deadly. The 30-day License Suspension would normally mean that insurance companies will not touch you, you will have to go to the more expensive facility insurance. The insurance companies will only be able to see that suspension for upto 5 years. The actual speeding conviction will only be accessible to insurance companies for upto 3 years from the date you were convicted (ie: trial).

Do insurance companies look at the points or the suspension to determine rates? Both points and the charge become "invisible" over time (max 5 years, right?)? Do they disappear? or are they still on record? As well, if I choose not to drive in the time that my insurance will go up, will they, like, wait until I renew my insurance to hit me with premiums, or can they only do in the time frame of 3 years after conviction date?

Again, thanks alot iFly55. You da man.