OHTA.ca

My wife got a speeding ticket for 60 km/h in a 50 km/h zone (officer dropped it from 72 down to 60). I already have a trial date in October and have requested disclosure.

It's my understanding that the HTA default speed limits for roads in Ontario are either 50 or 80 (or 100 on 400 series highway), and these can only be changed if the Town has a by-law setting it as a different speed. So here are some issues I want to get some insight into...

There is section of a road that she was on that is posted as 70 km/h then it drops down to posted 50 km/h, and the officer was waiting just past this point and got her on radar as she entered the 50 zone.

I asked the town for a copy of their bylaws related to speeds, and the bylaw says that this section of road (just prior to the 50 km/h) should be 60 km/h not the 70km/h that is posted. It also gives a distance from the previous intersection for how far this 60 km/ zone should extend, and from my measuring it extends past the point where the 50 km zone is posted to start (so the 50 zone should start further down the road than where it currently starts).

So several questions come to mind...

(1) Not related to this ticket, but if somebody got a ticket in the posted 70 km/h zone but the bylaw says it should be 60 km/h, is there a way that you can fight the ticket, or would you be worse off and end up getting charged for X in a 60 instead of X in a 70?

(2) Where does the distance for measuring start? At the centerline of the intersection or at the edge of the road? In the bylaw it simply states "From: County Rd 93 To: 1km East of County Rd 93". With regards to other streets mentioned in the bylaw, some specifically mention "from the centreline" but most do not mention that.

(3) If the bylaw 60 km/h zone actually does extend into the posted 50 km/h zone, how do I go about proving that? Do I take video of the odometer in several vehicles as I drive that length of the road to show where the 1 km mark is? Google maps has a measuring option, so can I use a printout that shows where the 1 km mark is?

(4) And assuming I can prove the 60 km/h zone extends into the posted 50 km/h zone, how would I fight the ticket?

Thanks

First, what your attempting to do is way, way, way beyond any measure someone should try and go after to defend a speeding ticket. Assuming you have a valid argument, you'd need expert testimony, probably a team of lawyers, and multiple exhibits to show that the prescribed speed limit is set for no reason (disproving safety concerns, road limitations, etc). Then, you're looking at $10, 000+ in legal bills, and the end result may be the speeding ticket is amended to reflect what the speed should have been, or maybe the ticket is withdrawn as the speed was unjustified by regulation, but you ended up paying $10, 000 to get out of a ticket that may have had a $2000 max (including insurance costs) affect for 3 years.

Secondly, under the HTA, section 128 with relates to speeding, under subsection (2):

128. (1) No person shall drive a motor vehicle at a rate of speed greater than,

(a) 50 kilometres per hour on a highway within a local municipality or within a built-up area;

(b) despite clause (a), 80 kilometres per hour on a highway, not within a built-up area, that is within a local municipality that had the status of a township on December 31, 2002 and, but for the enactment of the Municipal Act, 2001, would have had the status of a township on January 1, 2003, if the municipality is prescribed by regulation;

(c) 80 kilometres per hour on a highway designated by the Lieutenant Governor in Council as a controlled-access highway under the Public Transportation and Highway Improvement Act, whether or not the highway is within a local municipality or built-up area;

(d) the rate of speed prescribed for motor vehicles on a highway in accordance with subsection (2), (5), (6), (6.1) or (7);

(e) the maximum rate of speed set under subsection (10) and posted in a construction zone designated under subsection (8) or (8.1); or

(f) the maximum rate of speed posted on a highway or portion of a highway pursuant to section 128.0.1. 2005, c. 26, Sched. A, s. 17 (1); 2006, c. 11, Sched. B, s. 6 (2); 2006, c. 32, Sched. D, s. 4 (1).

Regulation

(1.1) The Minister may by regulation prescribe the municipalities to which clause (1) (b) applies. 2002, c. 17, Sched. C, s. 15 (2).

Rate of speed by by-law

(2) The council of a municipality may, for motor vehicles driven on a highway or portion of a highway under its jurisdiction, by by-law prescribe a rate of speed different from the rate set out in subsection (1) that is not greater than 100 kilometres per hour and may prescribe different rates of speed for different times of day. 2006, c. 32, Sched. D, s. 4 (3).

For your argument to advance anywhere, you'd have to go way beyond what you're trying to do. You'd have to argue that speed limits, in general, are unconstitutional under section 7 of the Charter, and that they are a violation of liberty, not supported by law in regards to safety, and artificially imposed for the purpose of a unconstitutional, hidden driving tax. While I do believe there IS an argument to be made there (in regards to the rate of speed in Ontario versus other countries, with the same rate of accidents), and there are some facts to support it - unless you have 100K+ to raise a Charter challenge to the Supreme Court, it's not worth proceeding.

If this is how you are going to tackle it then at your own risk...

I don't believe the charge can be amended once the trial starts so keep quiet about the bylaws. You allow the trial to begin (prior to start it will be amended to 72 in a 50).

To get out of it you will have to present certified copies of bylaws showing you were in fact in a 60 zone. You will have find some admissible way to establish the 50 zone where you were clocked was in fact a 60 zone. So if the court accepts that you were clocked in a 60 zone you cannot be found guilty of speeding 72 in a 50. Now if the officer testifies you were clocked well within the 50 zone as you describe it....you lose reasonable doubt and the case with it. Wait on disclosure and see what it says about where she was clocked before committing to this strategy.

You also might want to bring the error to the attention of the transportation department and see if they correct the signage. If they do...it will help you prove the signage was wrong.

ynotp wrote:If this is how you are going to tackle it then at your own risk...

I don't believe the charge can be amended once the trial starts so keep quiet about the bylaws. You allow the trial to begin (prior to start it will be amended to 72 in a 50).

York (Regional Municipality) v. Winlow, 2009 ONCA 643

Third issue: Is the practice of "amending up" permissible? 1. Overview

[55] We were told by counsel that "amending up" of speeding charges is a common practice among Ontario's municipalities. The appellant, the Regional Municipality of York, is one of the municipalities that engages in this practice.

[56] The facts of this case illustrate the typical use of this practice: a police officer clocks a person driving at 30 km per hour over the speed limit but uses discretion to write the ticket for 15 km per hour over the speed limit. If the driver pays the set fine on the offence notice, that amounts to a plea of guilty and a conviction, and disposes of the charge. A driver who does [page351] not pay the set fine, but instead goes to trial, risks a conviction for speeding at 130 km per hour. The prosecutor invariably will ask the court to "amend up" the certificate of offence from 115 km per hour to 130 km per hour to conform to the evidence given at trial. Even if the prosecutor does not seek an amendment, the court can order the amendment itself after hearing the evidence.

So, yes it is possible. You are incorrect and the court can amend the charge even after hearing the evidence provided it is proven you actually committed the offence that it is being amended to. The common belief of this forum is that it can be amended up until the trial commences, that is incorrect. The Provincial Offences Act clearly states:

Amendment of information or certificate

34. (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a) fails to state or states defectively anything that is requisite to charge the offence;

(b) does not negative an exception that should be negatived; or

(c) is in any way defective in substance or in form.

So, yes, with an argument like this - it is entirely possible. Usually it is not amended after the trial begins because of the prejudice it may cause the defendant (for example, a defendant might not fight the charge had he known it was going to be what it ended up becoming) but the Provincial Offences Act nonetheless gives the court that option.

To get out of it you will have to present certified copies of bylaws showing you were in fact in a 60 zone. You will have find some admissible way to establish the 50 zone where you were clocked was in fact a 60 zone. So if the court accepts that you were clocked in a 60 zone you cannot be found guilty of speeding 72 in a 50. Now if the officer testifies you were clocked well within the 50 zone as you describe it....you lose reasonable doubt and the case with it. Wait on disclosure and see what it says about where she was clocked before committing to this strategy.

You also might want to bring the error to the attention of the transportation department and see if they correct the signage. If they do...it will help you prove the signage was wrong.

I don't think he's arguing the zone he was in. He's arguing that the City bylaws say that the zone should be (X)KM/HR but the posted speed limit was different. I'm advising him that the HTA allows for individual municipalities to post signs other than the standard rate of speed, as I posted earlier.

Sonic wrote:

So, yes, with an argument like this - it is entirely possible. Usually it is not amended after the trial begins because of the prejudice it may cause the defendant (for example, a defendant might not fight the charge had he known it was going to be what it ended up becoming) but the Provincial Offences Act nonetheless gives the court that option.

I am under the impression that in practice section 34 of the POA is intended for dotting the i's and crossing the t's. Case law would support amending the rate of speed but the speed limit itself?

Sonic wrote:

I don't think he's arguing the zone he was in. He's arguing that the City bylaws say that the zone should be (X)KM/HR but the posted speed limit was different. I'm advising him that the HTA allows for individual municipalities to post signs other than the standard rate of speed, as I posted earlier.

I am reading it is that he is aware that the municipality has enacted a bylaw changing the default speeds and that if the bylaw conflicts with the actual posted sign the bylaw will supersede the actual posted limit. JSHERK please clarify.

So I think ynotp is thinking what I am thinking... the municipality has enacted a bylaw of 60 km/h that conflicts with the posted speed of 50 km/h, so the bylaw should over ride the HTA.

Sonic makes a good point about they can amend at ANY stage of the proceeding, but ynotp makes a good point of does that apply to the speed limit itself as opposed to the rate of speed?

Thanks for input ... I think this is a great discussion for getting ideas on how this type of situation could be handled. I doubt I will actually be able to use this method because I would still have the near impossible task of proving that the bylaw 60 km/h zone over runs where the posted 50 km/h zone starts. But regardless of whether I use it or not, there is still something to learn from the discussion.