OHTA.ca

Greetings all drivers,

Would like your take on an unusual circumstance that happened to me two days ago. Please read....

My personal vehicle was in the shop for recall work. It was delayed and the dealership offered me a "loaner" car for the evening. It has permanent Ontario plates and new car sticker in the back rear window. That evening I went to my local bar/pool hall after refereeing indoor soccer. I sustained a foot injury. I had a cup of coffee...absolutely no alcohol. I left around 8:45 pm and noted an opp cruiser at the intersection. As I walked down the street, the cruiser followed behind. I got into my car. The cruiser pulled into a parking spot ahead. I drove out on the street and an officer exited the passenger side and pointed me to an open parking spot. I pulled over, stopped, parked and turned the ignition off.

Another officer got out of the drivers side. They went to the rear of my vehicle and I began to run the plates. The first officer approached my side and asked for my license. He states the reason they stopped me was because "I was walking funny" and asked if I had anything to drink. I denied and stated I only had a cup of coffee. So he asked again "why I was walking funny", to which I explained my foot injury. I voluntarily explained the reason I had the dealer car. The officer asked for my ownership and insurance. I had trouble finding the light to see inside. I looked in the glovebox, console....could not find it. I again reiterated that it was a loaner and I didn't know where it would be. Both officers returned to their car. I began searching for anything. I found the ownership in a plastic bag in the upper portion of the glovebox. I shouted to the cops I had the ownership and brought it over to them. The officer told me to get back in my car. Eventually I was hit with a "failure to surrender insurance card". The next morning I went to the dealership and told them about my ordeal. The service advisor found the insurance under the seat. I took the insurance to the detachment with my ticket but they weren't interested and told me it was now a court matter because the officer didnt put on the ticket I had a grace period to bring it in. So here I am. Option 3. Not guilty option to go to trial. I got the dealership to write me a dated and signed letter stating the vehicle was insured and it was misplaced under the seat and I was indeed loaned the vehicle. So I've photocopied everything - ticket, ownership, insurance, my recieot showing my personal vehicle in the shop the days in question, the letter and Written a statement of the events so it's fresh in my memory.

Side note - cop is 2 days on the road. The driver cop was his coach officer. From another officer I know

Charge - compulsory insurance act s. 31(1). "Failure to surrender insurance card" - $65

Few questions.....1) how likely am I to get this offence withdrawn?

2) should I get any other evidence or perhaps subpoena the service advisor?

3) if I get the chance should I challenge the "walking funny" reason - against the charter of rights and freedoms. (Cops don't pull people over because they have prosthetic legs). Was there a legitimate reason for the stop?

4) when the claims of DUI were unsubstantiated, did the officer require my documents as no laws were suspected to be broken?

5) I will file for disclosure to see the notes. Will there be notes from both officers? And if the coach one doesn't submit, is that grounds for a mistrial?

6) anyone know if this affects insurance, as a minor conviction. I have a completely clean driving record (til now)

Anything you can add would be greatly appreciated.

I spoke to a paralegal and he thinks there's some substance but wants $500 with no guarantees. I think this would be more if I lost this challenge. I have a completely clean driving record.

Joe

Your chances of having the charge withdrawn are high. Ask the dealership for a photocopy of the insurance slip to go with the letter. Although the prosecutor is not obligated to do so, I have always seen a charge withdrawn when the defendant brings the slip to the court to show that it was valid at the time of the charge.

As to whether the officers could pull you over, a police officer is entitled to pull a driver over at any time. In this case, your limp, unfortunately, gave the officers reason to suspect you'd been drinking. If I were one of those officers, I'd probably think the same thing.

Disclosure will probably give you both officers' notes. What each of them has written is relevant.

The charge is for not giving them the insurance card which is much different and much less serious than driving without insurance.

Hopefully the prosecutor is in a good mood and will be willing to withdraw the charge for you, although they are not required to do that, but sometimes they will if you bring all the documents in to prove that you had it. You do not need to subpoena anybody, just take copies of everything.

If prosecutor will not withdraw it, and you go to trial, you will most likely lose as the officers will testify you did not give it to them and there is no defense to that. You can certainly offer your explanation to the JP, and there is a very very small chance JP might let you off (slim to none). If you are still found guilty you can ask for a reduction in the fine and longer time to pay.

You should ask for disclosure of both officers. If you don't get it, you can ask for it in front of JP and then they should get it and will set another date for you to come back to. However I would only worry about this if you plan on pursuing what I have written below, otherwise it is probably not worth it...

Now you do bring up a good point about requirement to ask for documents when impaired was not substantiated. They originally pulled you over based on Criminal Code, and under Criminal Code they do not have right to just ask for documents. Their right to do that falls under the Highway Traffic Act and they DO have the right to just pull somebody over whenever they want with no reason to just ask for documents, but this falls under Highway Traffic Act.

So if they used the Criminal Code to stop you, can they then invoke the Highway Traffic Act? I think I read a caselaw about this so when I find it, I will post it.

I'm of the opposite opinion that it is unlikely the the Prosecutor will simply withdraw the offence. Providing an insurance card after the fact is not a defence and is not a basis upon which to have a charge withdrawn. That's not to say that the Prosecutor absolutely wouldn't withdraw the offence if you don't mind taking time off to attend court to do so, it doesn't hurt to try. CAIA s.3(1) requires the operator of the vehicle to carry proof of insurance and surrender that proof upon the request of a police officer. Providing proof to the court later that you have an insurance card for the vehicle does no negate that the card was not surrendered at the time of offence as required under the CAIA. If you were charged under CAIA 2(1)(a) for driving without insurance, then providing proof that the vehicle was indeed insured at the time of the alleged offence would be a defence and a basis to argue for the charge to be withdrawn. Ultimately you and the dealership should have made sure that you had the required paperwork before you got in the vehicle and drove away. At the end of the day, you were the operator of the vehicle and carry the ultimate responsibility for having ensured you had all required paperwork before driving the vehicle.

everyone above is right LOLZ

but I have seen after the fact (when I was in court) the prosecutor give a similar guy a bit of a telling off and said, well, ok, it's your lucky day,

go forth and sin no more !

It happens

Here is a flipped case where it started as HTA and then moved to Criminal:

R. v. Simpson, 1993 CanLII 3379 ONCA

So if the stop was originally made under Criminal Code as an alochol/driving offence but that was determined not to be an issue, then it could be argued that the officers do not then have the power to ask for drivers license because the stop was not made "for the purpose of enforcing driving laws and promoting the safe use of motor vehicles" and therefore it would be an unlawful demand and therefore a charter violation.

If stopped for a potential Criminal Code driving offence, you're still required to produce a licence, permit and insurance. Section 216 is simply authority to stop a motor vehicle. It has nothing to do with the production of the documents.

In the R v Simpson case "the police officer admitted that his decision to stop the motor vehicle had nothing to do with the enforcement of laws relating to the operation of motor vehicles. Rather, he was seeking confirmation of the report about the crack house."

Where in the criminal code is there a requirement to produce drivers license, insurance or registration? There is criminal code requirement to identify yourself IF you are being charged but identifying yourself does not have to be with a drivers license.

I didn't say the authority was under the Criminal Code. It's under the HTA and CAIA.

Please provide me more details guys. This thread looks very promising and I appreciate everything you're saying. Is there a legitimate case that once the stop didn't result in suspected impaired, it was against my rights to be asked for the ownership and insurance?

Again, the officers notes might help me in this case. They should shed light on why I was stopped. And what the officer was thinking after.

I did not commit any HTA violations and wasn't told I did.

Ok. So talking to a few people, including my brother in law who is RCMP, the charter case will likely fail because in R. V Ladouceur (1990) had a similar appeal which found section 8, 9 of the charter had been violated but section 1 was held because police had an interest in public safety. To his knowledge, it's been tried but never won successfully.

On that note. Few questions.

1) I have submitted my ticket option 3. It had been 4 days of the 15. Today would be 7 days since the charge. Can I retract it? Meaning going to the POA office and asking for it back?

I understand that after 15 days, there is another 45 days grace.

2). What steps can I do to prolong this out until August? A police officer told me court cases are running into 3-4 months. Any tips? I've heard of file of disclosure. Asking for police notes to be typed. Asking for time to seek legal counsel. Etc etc. I'm looking at 7 months to prolong this thing. I know if this was the city, there'd be a much longer wait.

No you can not retract it. But I don't see why you would want to anyways. You have the right to view the case against you (disclosure/officers notes) and you can just pay the ticket anytime up to the trial without further penalty, so there is no disadvantage to ask for a trial and then ask for disclosure.

And no there is NOT another 45 days grace... not sure where you go that from. You have 15 days to respond to the ticket, and if you do not then you will be found guilty as you would be deemed not to dispute it.

Why do you want to prolong it? You can only get it dropped IF it takes 10+ months AND the entire delay is because of the prosecution. Any delay you cause (asking for new dates, etc) does not count in that time period.

If it was me, I would plead NOT GUILTY and request a trial with the officer present (I think you already did this). Once you get your Notice of Trial, you can then request disclosure (officers notes).

Hi jsherk

Yes I've submitted my offence already option 3.

So I guess to hope the officer hasn't filed the ticket within 7 days? Or prosecutor is in a good mood at early resolution? Or disclosure evidence doesn't jive with what happened? Or hope for the drawn out process of the year charter right to a speedy trial.

My insurance renewal is in August so I thought of prolonging it as long as I can. Unfortunately I'm in an area where I don't think the courts are as backed up as say the cities. So it's wishful thinking.

I guess what are the best ways to prolong this (not me personally because then I wreck my charter right claim should it go that long)....but worse case to get it as close to renewal date.

Like I assume I'll get a notice for an early resolution first. Do I get this and go to this before filling for disclosure? Then play the game like for asking for typed notes? Etc etc.

jsherk wrote:

And no there is NOT another 45 days grace... not sure where you go that from.

The poster may have misread information or run across unclear/incorrect information. Tickets will say that there is a 15 day period with which to file with the Court. Most Ontario courts provide an additional 30 days (for a total of 45 days) with which to file before a non-response conviction. London is one court that comes to mind as not accepting filings beyond 15 days, but not convicting until day 45 for the non-response; leaving the matter sitting for 30 days before the actual conviction, but still not accepting filings.

The courts have no obligation to give a grace period. Legally, on day 16, they can convict for non-response.