OHTA.ca

I was charged for disobey sign (no left turn) in a winter noon time around Bay/Edward (the prosecutor/judge said it to be a Absolute liability offences but disobey sign is actually a strict liability offence, right? And I found this: For example, if you made an illegal left-turn where there were signs clearly marking this fact, saying you didn't know or didn't see the sign will not save you. However, if the sign was physically not present (removed or obscured), then the fact that the sign was not present/clear could save you from being convicted.. does weather condition can be the reason??) I went to court (my original date) yesterday and didnt get the trial…

Detail one:

The judge asked me directly (before trial, they are trying to talk me out of trial, which they consider waste of their time) that "did you make the turn or not" at that point I quoted "human right of on one should be forced to test against himself" (Canadian Charter of Rights and Freedoms 11(c) and 13 )but the judge said he didnt want to hear about human right in this court (non criminal charge) and repeated twice the same question, which I responded at the end that I refused to answer it, and one time the judge threaten that I showed disrespect to court and he could put me to jail. And he then moved on to give me a new court date which is 3 days later even with my objection that I wont be available that day (well, now I have to, as he said the trial will go on regardless)

Question:

1. Was he fair? Does the 11(c) and 13 or 11(b) apply to traffic violation (not criminal case)

2. Did I have the right to not answer the judges question (not prosecutors question) like that?

3. What can I use from this for my next trial?

4. Can I ask for another court date when I do show up on the day the judge dictated (which is now 2 days later) and the fact was I was denied trial on my original court date bcs the uncalm judge refused (or couldnt, as he asked me that question) to proceed with trial although all parties were ready, if I ask, what are the reasons I can quote?

5. can I say I was suffered being treated with prejudice from previous judge and if so, what chapter right section I should quote on and what effect it might be?

Detail two:

I asked and received disclosure however the writing is like chicken scratch and I cannot be sure what I didnt recognize, so I asked for a typed version, which I never received, when I point it out in court, the judge said the police doesnt even need to provide his note and the officers copy of the ticket is good enough, and when I say I did received the notes but it is not fully recognizable, the judge said that is ALL I can get, nothing else.

Question:

1. Did he deny my rights to be informed about evidence against me and in a not-fully-understandable format?

2. What can I use from this for my next trial

3. Can I motion to A) dismiss the case as no typed copy being given, or B) insist for a typed copy and have it ready within 8 months from Jan xx, which is 1.5 months away? (if motion allowed and the new court date being over 8 months – assuming the cop will provide typed version, can I then motion for 11b chapter rights being violated by next court date?)

Detail three:

In the note the officer indicated that he was working with another officer for that setup. When I challenged the other cop didnt show up, the cop said he himself charged me and the other cop charged other driver, and only he is needed to present in court for my case.

Question: is that true? They setup video cameras (didnt see him bring tape to court) and he deliberately disclosed that there was another officer.

Detail four:

The note actually was a summary for the whole day event (my charge was 12:40pm and the note was a summary from noon-ish to 8pm and he indicated they stop the activity around 5pm, so apparently the note was not recorded at scene. And has nothing specifically for my case, only in second page, there is vague mentioning there is writing like WM black xxxxx(unrecognizable) 8 seconds delay left turn signal on… but still nothing in detail about if that is my car or not.

Question: What can I use from this? Does notes wrote 7 hours afterwards can be used as evidence?

Detail five:

I took picture on the offence day through the windshield from drivers seat in the lane that I turned left, the pictures show the SW sign and to be honest first you can hardly notice the sign, the intersection is 4x4 lane (2 lane on each direction for both roads) and there was no traffic light just poles on the corner of intersections. And it was quite dark even it was noonish and with the flurries and water drips on windshield, I honestly dont think anyone can make the sign (7am-7pm Mon-Fri) out from almost 3 lanes distance (2 lane on both sides or triangle, the third side is around 2.8 lane width) around 14 meters far (45 feet), in such a big intersection (like in Bay/Elm, there is full traffic light set should be used, when the no left turn sign being beside the red/green light, and hanging over the street, it is much easier to be recognized. prosecutor basically disregarded the fact that the signs were hard to recognize, esp. the small prints show the time in effect, even his own experience agree that it is hard.

Question: How shall I present my concern around signs not clearly displayed in that particular weather/light conditions? That might be my only real argument due to the fact that the signs ARE there and regardless you can see it or not, making left turn during forbidden time is an offence…

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Self-crimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

From what you write, it seems the sign isn't in French and thus is invalid.

I'd suggest looking up the French Language Services Act defense.

The weather conditions, if they obscured the sign itself, can save you. Did the officer actually note the condition of the sign at the time? If there were a few little snowflakes on it, that's not enough. If it was completely covered in snow and unreadable, that's a valid defence. Keep the condition of your windshield out of your defence, because they'll jump on it and say that you did not ensure you had sufficient visibility. I think Frozenover has given you a good idea: Try the bilingual defence. It isn't air-tight but it might work.

Let me guess. This Justice of the Peace is from the Old City Hall Courthouse, right? If it's the same one I'm thinking of, he's got an interesting take on how things work. Anyway, as far as his claim that the Charter of Rights and Freedoms doesn't apply to HTA charges, 1. he's wrong, 2. both of these cases talk about the right to not self-incriminate on HTA infractions:

So if he uses similar thinking to rule against you, you've got a nice avenue for an appeal. As for "did you make the turn," obviously you did, but there was a reason for it. He's also mistaken when he says that all you can get is a copy of the ticket for disclosure. This is not correct. If evidence in the officer's notes may affect the outcome, they have an obligation to disclose it. If the notes are so illegible that you can't gather the important parts, asking for an explanation of the notes from the Crown is not out of the question. Unfortunately it may take an appeal for this one to be properly sorted out. If you lose, it may be worthwhile to talk to a paralegal or traffic lawyer about what to do next.

The other officer's presence is irrelevant. He does not have to show up, unless he observed your offence and told the officer who stopped you to pull you over. Doesn't sound like that happened. As for the notes, you can object to the officer using them, because 7 or 8 hours is a long time and that the details and observations would not be that "fresh" in his mind. I don't think that will work, but you can try it. Also, ask him if he has an "independent recollection" of the events. If he says "no," object to the use of notes as well. He then has to testify from memory.

It's a bit too late to file a stay application, so present the bilingual defence (Frozenover's suggestion), then the "weather made the sign unreadable" defence.

Hi Radar Identified,

thanks. French thing won't work for me as I do not understand French at all...

I am interested in knowing how to talk to them to get me charged under city by-law, my main objective is to get off insurance, paying $110 is no issue.

To plead to a by-law infraction, show up early on Friday and seek out the Prosecutor. Tell them that you want to avoid a lengthy, unnecessary trial, because you want to save the court and the Prosecutor a lot of time, and you'd like to discuss what options are available. (Bring a big stack of paperwork with you just for show.) Tell them that you want to look at the possibility of pleading guilty to a municipal by-law infraction. See what they say. The earlier you're there, the better.

As for the French issue, you don't have to speak any French. The whole "bilingual defence" came out in a case in Toronto, where the defendant also did not speak French. It's not your language capabilities but the validity of the sign that matters. Check out ticketcombat's website for an explanation:

It's not 100% bulletproof, but it is usable if the plea-bargain fails. You might need to use it if the Prosecutor is in a particularly ornery mood.

Good luck and let us know how it turns out.

Thanks Rader!!!

now I understand the impact of the french language act, the city is so lazy... after 2004 case they still have not changed that very same sign on Bay/Edward, what a ...

I cannot think of how they can not pay attention to this as this happened in the same court, same intersection, same charge!

You gave me real hope tonight!

thanks

Hi all that interested:

on last Friday my case was once again requested by prosecutor to be postponed to November.

have a couple of questions now:

1. I heard the R v Meyer case was appealed and overturned? is it true? who can provide the case for this appeal?

2. the prosecutors/some cops are all aware of the appeal (if it is true) and if you use that in court, I am sure they will say the case was over turned later

3. for HTA charges that are signs related, e.g. 182(2), the HTA indicated that The Lieutenant Governor in Council may make regulations to effect the signs, so suppose prosecutor has to proved the copy of the by-law (that shows the left turn sign was legally erected there), but the prosecutor said they never need to provide that (she mentioned R v Clark (1974), R v McLaren(1981) and R v Margetis (1988) for a speed sign that "proof of the erection of the signs consitituted prima facie proof of complaince with the regulation, the Crown was not required to prove in addition the by-law setting the speed limit in order for the court to register a conviction" what is your interpretation to this? do they need to provide the by-law or not?

4. when negotiating to a municipal by-law infraction charge v.s. a HTA charge, she showed me that some municipal by-law offence do have demerit points! I am wondering if someone knows that if a municipal by-law offece with demerit points will go into driving record (thus affect incurance) or not

5. anyone can suggest a "close enough match" municipal by-law infraction that can be the substituion of HTA 182(2) charge and carry NO demerit points? so I can negotiate a bargain next time?

6. in light of not all JP will honor "French Language Service Act" (BTW, this is unbelievable, the JP doesn't 'care' about this law published by this very province and I heard JP said in court to an agent:''I don't care about what Attorney General" said, when the agent was trying to argue the illegal-color/sized the sign not being compliant with Attorney General's describe). I asked for French trial in my next trial, but prosecutor objected by saying French trial is only for people who speak french, can someone confirm whether or not it is the case? she said I asked for English trial with translation service (to my mother language) and now asking for French trial with translation service (from French to my mother language) is abusing the system, (actually I knew she was trying to cut me off by avoiding me having a French speaking JP to trial my case in refering to French Language Service Act, but of course she was not saying that but accusing me abusing the system). when I was trying to object, JP didn't allow and asked/confirmed me do not speak French at that time, and went ahead denied my French trial rights.

7. the two delayed of my trial will now bring my case over 8 months, and none of the delay was caused by me, I was just asking for full disclosure and the prosecutor keep throwing dirt on my by suggesting to JP that I was trouble maker and would take long hours in court to be trialed, and no surprise my case were always called at the end of the session when only "not-guilty" people were left behind. so they never had the time to trial me although every time I was ready. can I quote 11(b) right to motion for a stay next time?

Thank all. (esp. Radar)

The R. v. Myers case was appealed by the City of Toronto. During the appeal, the defendant pled guilty! (HUH?) So the actual ruling was not overturned; the defendant, Jennifer Myers, just threw in the towel on the day of trial. Go figure. So no, it was not overturned, she just caved in before the trial. The initial ruling is still available.

zhulin_can wrote:when negotiating to a municipal by-law infraction charge v.s. a HTA charge, she showed me that some municipal by-law offence do have demerit points!

Which ones? Municipal infractions aren't supposed to go on your driving record, e.g., parking tickets.

EDIT: My mistake earlier - eight months is not enough to get a stay based on 11B. However, it is the Crown's responsibility to come prepared for trial. If there was not enough time, that's their problem, not yours. If they try to get another adjournment, don't let them - drop the hammer and say that it's been your third trip to court, the Crown appears to be trying to "wage a war of attrition" and that you have sacrificed enough time off work to appear. If the Crown is not ready to go, ask the Justice to stay the charge.

Now for the French Language Services Act stuff. Don't request the trial in French. Why would you do that? You do not need a trial in French to use "bilingual defence" for a road sign infraction. The JP does not need to speak French to understand the bilingual defence. You have a right to a translator if you do not speak English or French well enough, but they are well within their rights to hold the trial in English with a translator. Asking for a trial in French is totally unnecessary.

The actual reason that R. v. Myers case ruled the sign invalid had less to do with the French Language Services Act (FLSA) and more to do with Ontario regulation 615. This is the law that outlines how road signs in Ontario must look. Scroll down to sections 21 & 22 of regulation 615. It shows that road signs in designated bilingual areas (bilingual areas are designated by the FLSA) must have French on them. If they aren't compliant with O.reg 615, the sign is not valid. The road sign at Bay and Edward is not compliant with O.reg 615, so it is not a valid sign.

Thanks for keeping us posted.

Hopefully a few fellow members will chime in with additional advice here.

thanks Rader,

only the ruling from higher rank court will have an effect on lower rank court, e.g. if the appeal ruled in favor of the original R v Meyers ruling, then everyone JP will need to follow that, however since the appeal court didn't rule whether the original court ruling was valid or not, so the court JPs may or may not agree with JP in R v Meyer's case... so it is 50-50. and the reason I asked for French trial/JP? bcs the JP in R v Meyers' case was a French speaking JP!

as for the municipal by-law, I didn't remember which one the prosecutor showed me, but I did read it black and white in her red-covered HTA book under demerit points section, it said HTA 14x.x OR municipal by-law will carry 2/3(?) points. so the prosecutor said to me there is no benefit for me to ask for municipality charge... we need to clarify this to make sure, who can help? a cop told me municipal by-law infraction e.g. city HOV lane will go into driving record, and has demerit points.

thanks for the instruction for filing a stay. which items I shall mention in the documentation? 11(b) only? or I can also quote 11(c) - I was asked to testify against myself in the first court appearing, and the rights to get full disclosure but not being given? (I don't know the law I shall quote), prosecutor refused to give the by-law copy in front of the JP.

BTW, can someone help me to proof that the certified by-law copy is required? any previous case or law to support it? (prosecutor has provided her case to show that it wasn't needed - well this one I still have a doubt, I have quoted word for word on the case in my previous post, see point 3, anyone can comprehend if it does say the by-law is not needed?

Couple of points. R. v. Myers backs up the bilingual defence. Bilingual defence is not solely based on the R. v. Myers case. The issue is that, as ticketcombat explains, section 195 (1) of the Highway Traffic Act says that any municipal by-law that contradicts the HTA is deemed repealed. Then, the FLSA says Toronto is a designated bilingual area. After that, the Regulation (O. reg 615), made under the HTA that shows how road signs in Ontario must look, specifically requires that all road signs in a designated bilingual area must be bilingual. The road sign is illegal because it is not compliant with Ontario law. The only thing R. v. Myers did is point that out, so R. v. Myers is not the primary argument here, it's the fact that Ontario law explicitly shows that the sign is not valid.

Come to think of it, there are a couple of municipal by-laws that can net demerit points. That's thanks to O.reg 339/94. You weren't charged with making a prohibited turn, though. You were charged with disobey sign, that's entirely different than section 143 or 144 (9), which is what she was getting at. If there is a municipal by-law infraction that mirrors "disobey sign," it would not have demerit points. Example: I got ticketed for "disobey official sign," which is a by-law infraction - no demerit points, nothing on the driver record. See if that's available. The Prosecutor is mistaken - there is a huge benefit to a municipal by-law infraction, namely the insurance implications.

As for your driver record, check out this link to MTO:

According to them, the part of your driver record that the insurance company gets to see:

Contains driver's name, licence number, class, expiry date, conditions/restrictions, height, date of birth, gender and status information, driver's Highway Traffic Act and Criminal Code of Canada convictions, suspensions reinstatements over the past 3 years as well as conviction dates, earliest licensed date available, demerit point total and medical due date for commercial drivers. Available to anyone, however, no residential address information will be provided.

Nothing about municipal infractions going on your driver record. Demerit points, maybe. Main thing is, if you get a municipal by-law infraction that doesn't carry demerit points, your insurance company won't find out about it. You might also want to read this:

Hi rader,

you are right on, she showed me row #29 in the table in O.reg 339/94 for 143/144(9) and bylaw. I was trying to seach for the bylaw related to Bay street prohibited turn issued by City of Toronto, but I couldn't find it on toronto city website at all. lots of amendments, but none of them mentioned bay st/edward st left turn sign being approved. the prosecutor said to me (as she quoted those three cases that she doesn't need to provide bylaw according to her explaination to those cases) it is ME need to prove that the bylaw doesn't exist and they do not need to prove that it does exist. I wonder if she is correct? prove a thing is not existent? how? how to make them agree THEY need to provide bylaw certified copy? they refused when in court. but if I can show that they NEED to (according to ticketcombat website, that is the minimum you should ask in disclosure request) provide? if they show me in court, 11b will be even greater impact!

secondly, I still want to avoid confronting and spend time in court, so if you or someone can help me to find a bylaw that is relevant (even only remotely) to 182(2) disobey sign. and carry no points, I don't mind pay more than needed for that bylaw infraction... main intend to keep the HTA/ins. record clean.

last but not least, what is your take on FLSA s14(1) (they might pass bylaw) and Reg 615 s52 (not required). I know from the ticketcombat how city argued and lost, however that case is not bullet proof now and a new JP might have different interpretation to this, what shall I do?

the last link you provided seems is in contrary to row 29 in O.reg 339/94, so how I can confirm one way or the other? I noticed the author of that article is staff sgt. Fergie Reynolds.

thanks a million

I sent you a PM.

Maybe try: City of Toronto by-law 32-92 section 39 (1): "Disobey official sign." (I think that's the section.) Anyone else know for sure?

I think the Prosecutor is playing games, or is just not understanding. Instead of filing an 11B application (unreasonable delay) file a motion for a stay based on improper disclosure. The by-law does not need to be entered into evidence by the Crown, but you need the by-law to make a full answer and defence to the charge. You asked for an "explanation and clarification," right? If they haven't given you a copy of the by-law, they have no explained and clarified what you supposedly did wrong. Therefore, you could argue that you do not fully understand what you were charged with and why, and the Crown deliberately tried to prevent you from understanding. That is a violation of your Charter rights... not 11B, but section 7. Again, point to the "attrition" stunt that they seem to be pulling. The whole thing that she's arguing about with respect to "I don't need to prove the by-law exists" is stuff for trial, but you can't have a fair trial if you don't have the explanation of the charge! (At least that's my take on it.)

As for the demerit points issue. The O.Reg seems to be "the law," but maybe call MTO. Their Licensing Administrative Office can be reached at 416-235-2999 or 1-800-387-3445. Hopefully they'll have a definitive answer.

And for the FLSA/O. reg 615 issue, ticketcombat talks about that very issue under "counter arguments." Scroll to the bottom of the page.

PM received; standby, response is enroute.

Has there been a development in case law recently or did my friend just get snowed by a prosecutor? Here's the story;

A woman I know was going in today to fight an illegal right hand turn ticket she got in downtown Toronto. It was one of the signs that was only in effect Mon-Fri at certain times. As such I provided her with all the info to fight it on the basis of its unenforceability under the HTA due to the French Language Services Act. I told her about r.Myers and gave her the argument she needed to make.

When she got there the usual nonsense happened with the clerk at the desk who suggested first that Toronto wasn't one of the regions governed by the act and that she'd need to be French anyway. She called me panicked and I reassured her that both were false. She just called me again during a recess prior to her matter being heard and she was again panicked. The prosecutor approached her during the recess and said that while she admired my friend for trying to argue the case on the merits of law rather than excuses the argument wouldn't stand up. She provided my friend with a summary of an appeal she alleged had overturned the finding of R. v Myers and that it had been thrown out as a viable defence. My friend even read me the summary over the phone but, without seeing it myself I have no idea whether it was legitimate or not. My understanding was that Toronto had appealed the original Myers finding using the argument that city signs were not subject to the FLSA but that was rejected as the sign in question was a provincially enforced sign which WAS subject to the FLSA. Has something changed? Did the case get overturned? Is this defence no longer valid?

The Prosecutor offered my friend the standard half the fine and no demerits to plead guilty. I really wasn't sure what to advise her since I was fully under the impression that this defence was still valid. Did she get hoodwinked here?

UPDATE:

My friend just called. She went up when her name was called. The Proscecutor offered the no demerits reduced fine for a guilty plea but cautioned her if she pled not guilty the offer was off the table. My friend proceeded to plead not guilty. She made the argument based on R v.Myers and the FLSA. The Prosecutor then replied by referring to the appeal and what she described as the "overturning" of the original finding. The JP looked at the paperwork while my friend argued that the original finding hadn't been overturned (even though she wasn't aware that in the appeal Myers pled guilty which meant a conviction but didn't mean the original case was overturned). The JP suggested that surely anyone, French or not, could reasonably understand that a sign saying no turn means no turn and that she shouldn't have turned. He then scolded her for wasting the court's time and found for the Prosecution. My friend left humbled, embarrassed and slightly concerned that I had given her bad advice. What the hell happened there? Did the JP make a finding in error since he disregarded the case law or did the Prosecutor just pray on his apparent naivete and snow him too? Does my friend have any recourse for appeal since she now has the entire fine to pay plus three demerits?

I'm not aware of any newer developments. Back in January, I watched a JP in Toronto throw out a charge because a road sign wasn't bilingual. The defendant presented photographs and said that the sign isn't bilingual, therefore it's not valid. The JP referred to Ontario regulation 615 and the FLSA, and the defendant was found not guilty. The defence should still be valid because of O.Reg 615 (which shows what road signs must look like), the fact that FLSA says Toronto is a designated bilingual area, and the fact that the province committed to providing French language services and the charge primarily affects her provincial driving record and demerit points.

JPs are there to expedite the justice process. They are not lawyers. They've never been to law school. For that reason, "erroneous" rulings happen ALL the time. Example: one of the most common errors JPs make in Ontario is failing to quash tickets with glaring fatal errors on them when the defendant fails to appear or respond to the ticket. They've been repeatedly corrected by higher courts but it still happens. So, the "French or not" response isn't surprising. My advice: File an appeal, get it before a real Justice and see what happens. The recourse should be that the JP erred in law - not following O.Reg 615, FLSA, etc. At least, then, if there is a definitive ruling by a higher court Justice that says "this defence is no longer valid because of X Y and Z," we'll be able to put this issue to rest. But I think her conviction will be overturned on appeal. Good luck with it.