Ontario Highway Traffic Act HTA

Beat your speeding ticket with an Expert Witness

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In Ontario, speeding tickets are very hard to beat because the caselaw basically allows the Justice of the Peace and the Judge to simply accept what the officer says as fact. If the officer says you were speeding, then it must be true! If the officer says they were trained on the Radar or Lidar device, then it must be true! If the officer says the device was working properly at the time, then it must be true! Of course we know that just because the officer believes the Radar or Lidar was working properly, does not mean it actually was. With an expert witness, you can then challenge the credibility of the officers statements and bring evidence that shows the device may not have been accurate at the time it was used.

You should also read the following post on why you need an Expert Witness: Caselaw regarding the need for an Expert Witness

Caselaw regarding the need for an Expert Witness for Speeding Trials

Posted on by ADMIN

This is not legal advice and is for informational purposes only.

The purpose of an expert witness is to bring unbiased information to the court so the Justice of the Peace or Judge can make a better informed decision. An expert witness possesses special knowledge and experience going beyond that of the trier of fact. (see R. v. Beland, [1987] 2 S.C.R. 398, at paragraph 16).

In Ontario, the courts simply take at face value the officers statement that they are a qualified radar/lidar operator and that they believe the device was working properly at the time, and therefore the speed reading was correct. Even cross-examination of the officer on these points is mostly useless because the court will say “there is no statuatory requirement as to what a qualified operator is, so they say they were trained, so it must be true, and they say it was working properly, so it must be true”.

The only way to you can beat it, is for the defence to put their own expert on the stand who can explain why the device has a very good chance of NOT being accurate (since they are NEVER calibrated in Ontario).
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What to do when pulled over by police in Ontario or Canada

Posted on by ADMIN

This is not legal advice and is for informational purposes only.

DRIVING A VEHICLE IN CANADA:
When you are detained by police (pulled over at the side of the road, DUI/RIDE checkpoint, etc), section 10(a) of the Canadian Charter of Rights and Freedoms requires them to tell you why. So whenever you are stopped, and they come to your vehicle window, immediately ask them:

* Why did you stop me?
* Am I being detained?

DO NOT ANSWER ANY QUESTIONS:
Be nice and be polite (they have guns), but remember you do not have to answer any questions. Always answer “I CHOOSE NOT TO ANSWER ANY QUESTIONS, THANK YOU” or “I DO NOT WISH TO MAKE A STATEMENT, THANK YOU” to everything they ask you. This is your fundamental right to be free from self-incrimination and therefore not provide police with evidence that may be used against you. Everything you say can and will be used against you in a court of law. Also remember that you should never lie to police. It much better to say “no comment” than to lie.
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R vs Jordan- Right to a Speedy Trial- Charter Section 11b Argument

Posted on by ADMIN

This is not legal advice and is for informational purposes only.

In Ontario, your right to a speedy trial used to kick in after 10 to 12 months, but with the Jordan decision, it was (sort of) raised to 18 months.

The following are my thoughts and comments on the R v Jordan 2016 SCC 27, [2016] 1 SCR 631 decision regarding the Right to a Speedy Trial under Charter Section 11b.

You can find it here if you want to read it yourself:
https://scc-csc.lexum.com/scc-csc/scc-c … 7/index.do
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Speeding in Ontario

Posted on by ADMIN

WHAT TO DO WHEN PULLED OVER BY POLICE FOR SPEEDING IN ONTARIO OR ANYWHERE IN CANADA

This is not legal advice and is for informational purposes only.
Click here to download PDF version.

DRIVING A VEHICLE IN CANADA:

When you are detained by police (pulled over at the side of the road, RIDE checkpoint, etc), section 10(a) of the Canadian Charter of Rights and Freedoms requires them to tell you why. So whenever you are stopped, and they come to your vehicle window, immediately ask them:

  • Why did you stop me?
  • Am I being detained?

DO NOT ANSWER ANY QUESTIONS:

Be nice and be polite (they have guns), but remember you do not have to answer any questions. Always answer “I CHOOSE NOT TO ANSWER ANY QUESTIONS, THANK YOU” or “I DO NOT WISH TO MAKE A STATEMENT, THANK YOU” to everything they ask you. This is your fundamental right to be free from self-incrimination and therefore not provide police with evidence that may be used against you. Everything you say can and will be used against you in a court of law.

EXCEPTIONS:

In Ontario, there are some exceptions when you MUST give them information:

  • When you are doing something that requires a license (like hunting or driving) then you MUST produce that license when asked for it. When driving you must also produce your registration and insurance as well, if asked. But you still do NOT have to answer any other questions and do NOT have to give them any other information.
  • When being charged with an offence then you MUST identify yourself by giving them your Name, Address and Date of Birth. But you still do NOT have to answer any other questions and do NOT have to give them any other information.
  • If you are involved in an accident you may be required to report it and/or give a statement about it.

NEVER VOLUNTEER ANY INFORMATION:

Any information you are compelled to give them (like the exceptions above), is not admissible in court as long as you can prove that you did not volunteer it. Therefore it is imperative that you never volunteer any information. Always wait for them to ask for it. This includes your name, address, date of birth, drivers license, registration, insurance and/or any statements they ask you to make. The worst possible thing you can do is start giving them information they did not ask for. When they ask you for something, ask them back:

  • Am I required to give that to you?
  • Can I be charged if I do not provide that to you?

WHAT TO SAY BEFORE YOU GIVE THEM ANY INFORMATION OR STATEMENTS:

Before you give any information to them, make sure you say:

  • I am only giving this information to you because I am required to do it, and it is NOT voluntary.

If you can prove in court that you only gave them information that you were compelled to give them, and that you did not volunteer any of it, then this becomes inadmissible evidence and they can not use any of it to convict you.

OTHER THINGS TO SAY BEFORE GIVING THEM LICENSE, INSURANCE AND REGISTRATION:

  • Drivers License is for proof of competency only, and is not for identification purposes.
  • Registration is for proof vehicle is registered only, and is not for identification purposes.
  • Insurance is for proof vehicle is insured only, and is not for identification purposes.

SEARCH YOUR VEHICLE:

  • You do not have to let them search your vehicle or your trunk. They need a warrant to do this.

PASSENGERS IN VEHICLE

  • Passengers in your vehicle do not have to identify themselves UNLESS they are being charged with an offence (see Exception (2) above).
  • Passengers in your vehicle do not need to answer any questions either. Best answer is again “I CHOOSE NOT TO ANSWER ANY QUESTIONS, THANK YOU” or “I DO NOT WISH TO MAKE A STATEMENT, THANK YOU” to everything.

COMMON QUESTIONS AND ANSWERS YOU SHOULD GIVE

Questions:

– Have you been drinking?

– Do you know why I stopped you?

– Why were you driving so fast?

– In a hurry?

– Where are you going?

– How are you today?

– Why is your car so loud?

– Are you trying to hide something?

– Do you have a gun/drugs/alcohol in the vehicle?

– What’s in your trunk?

– Is that yours [pointing to something in the vehicle]?

Answer these with:

I CHOOSE NOT TO ANSWER ANY QUESTIONS, THANK YOU.
I DO NOT WISH TO MAKE A STATEMENT, THANK YOU.

Questions:

– Can I see what’s in your trunk?

– Open your trunk please!

– Can I see what’s in your glove box?

– Open your glove box please!

– I need to search your vehicle!

Answer these with:

DO YOU HAVE A WARRANT? IF NOT, THEN NO!


REFERENCES

https://www.youtube.com/watch?v=T8Qc3OnwCOY

http://www.criminaltriallawyers.ca/?q=know-your-rights

http://www.hosseinilaw.com/talking-to-the-police/

http://robichaudlaw.ca/right-to-silence-oickle-mccrimmon-sinclair

http://www.trafficticketparalegal.com/statements-snatching-defeat-jaws-victory/
[NOTE: Website appears to be gone, try searching https://web.archive.org/ to see if you can find copy of webpage]

http://canadian-lawyers.ca/Understand-Your-Legal-Issue/Personal-Injury/Motor-Vehicle-Accidents/Reporting-A-Motor-Vehicle-Accident.html
[NOTE: Website appears to be gone, try searching https://web.archive.org/ to see if you can find copy of webpage]

 

Summary

Pulled over by police or stopped at RIDE checkpoint:

  • Why did you stop me?
  • Am I being detained?

Best answers to give:

  • I choose not to answer any questions, thank you.
  • I do not wish to make a statement, thank you.

Never volunteer any information and Never answer any questions:

  • Am I required to give that to you?
  • Am I required to answer that question?
  • Can I be charged if I do not provide that to you?

What to say before you give them any information or statements:

  • I am only giving this information to you because I am required to do it, and it is NOT voluntary.

Other things to say before giving them license, insurance and registration:

  • Drivers License is for proof of competency only, and is not for identification purposes.
  • Registration is for proof vehicle is registered only, and is not for identification purposes.
  • Insurance is for proof vehicle is insured only, and is not for identification purposes.

 

Click here to download PDF version.
This is not legal advice and is for informational purposes only.

How to Win in Court (because loosing is easy)

Posted on by ADMIN

HOW TO WIN IN COURT

Let’s talk about loosing first… Losing in court is easy. But most self-represented individuals find this out the hard way. We have a pre-conceived idea that the court system is somehow about truth and justice and is concerned with doing the right thing. Once we get to court though, we find out that our un-justice system really does work best for those with the cash to hire the best lawyers.

My first time going to court was a huge education in how the system works. The charge was “Driving While Using Hand Held Communication Device” or “talking on my cell phone”. Having never been to court before, I spent hundreds of hours studying and learning all I could about trials and coming up with a plan to beat the ticket. In my studies I discovered that I should not testify (as I would only end up incriminating myself), but should instead concentrate on cross-examining the officer and bringing reasonable doubt to his testimony.

With my plan in place, I attended my first trial and when it was time for me to cross-examine the officer, I actually succeeded in showing the officers observation skills where completely wrong on a few points. My closing arguments were very persuasive as well, so imagine my surprise when the Justice of the Peace came back with her decision of “guilty!” While giving her reasons though, the light bulb went on as to what I had missed. The officer testified that he saw me with a phone in my hand, and I had not brought any evidence to contradict that fact. I had shown the officer had poor observation skills in identifying the vehicle model, the vehicle color and the number of occupants in the vehicle but I had not shown that these poor observation skills extended to his testimony about an actual element of the charge. Vehicle model, vehicle color and number of occupants are all irrelevant to the charge. The charge was “driving while talking on cell phone” and the officer testified that I was “driving while talking on cell phone” and I did not bring any reasonable doubt or contradiction to that element of his testimony.

HOW TO WIN IN COURT

Although I lost my first trial in court, I still came out a winner with the experience and education that I gained. The key points that you need to understand in order to win are:
– What are the “elements of the charge” that the prosecution must prove, and
– How to bring doubt to those elements by cross-examining the witness, and
– Whether or not you should testify to bring additional doubt to those elements. Most of the time you should NOT testify as you will just end up incriminating yourself.

There is no quick and easy way to win in court. You need to spend a lot of hours understanding the process and laws and researching case law.

I will now go through three different cases that I won and explain what happened.

CASE 1 – IMPROPER MUFFLER Section 75(1) of Ontario Highway Traffic Act

Let me tell you how I won. I showed up for court and checked in and although the prosecutor usually calls everybody up to meet with them before the trial starts, they never called me up which I thought was a little strange. Anyways the Justice of the Peace comes in and they called a few names for people that were pleading guilty and then about the fifth or sixth name in, they called me. I was kind of surprised since they usually put you off to the end if you are going to trial. I went up, said my name and the prosecutor said they were not prepared to go forward and were withdrawing the charge! Yahoo, I win! One of the elements that the prosecution must prove for this charge is that the noise was “excessive or unusual” and another element is that the “muffler is improper”. My personal opinion is that the officers notes did not support the charge, meaning the officer never made any mention that the noise was “excessive or unusual” and never made any mention of the “muffler being improper”. I believe the prosecutor recognized this and dropped the charge. I suppose it could also be that the officer did not show up, but I do not remember what the officer looked like and there was a row of a dozen officers sitting there so he may or may not have shown up.

Here is a link to a PDF with the defense that I had been prepared to use if I had gone to trial:
Click here to download PDF file of Case 1

CASE 2 – SPEEDING Section 128 of Ontario Highway Traffic Act

My wife was charged with 133 in a 100 and I represented her at the original trial. This was only my second time going to court so I had a paralegal assist me in preparing to represent my wife, so I was pretty well prepared and thought I did a great job, but I still lost! Because I did not want to lose the appeal, I hired the paralegal to do it for us. Our paralegal had prepared the defense in writing ahead of time and sent it to the prosecutor about week before the appeal so he would have time to review it. Basically we showed up and the prosecutor asked to meet with our paralegal. His comment was that he did not necessarily agree with everything that our paralegal said in the document, but did agree with some of the issues and felt that the appeal would probably be successful even if he tried to fight it, so he would just concede. The Court starts, case is called, prosecutor tells Judge he is not going to argue against the appeal, Judge says “appeal allowed, not guilty”. Thank you very much! An important point is that I had done a good job during cross-examination setting us up for an easy win on appeal. One of the tricks I learned is to use a shot gun effect and try to hit as many different issues as you can because even if you lose at trial, you still have a chance of winning on the appeal.

An important point to take away from this case, is that you need to be preparing for an appeal, even at your initial trial. At an appeal, you can not enter any new evidence. An appeal is simply a review of what was said at the initial trial. So this means that you MUST present all your evidence and all your defense at the original trial in order to have it considered at the appeal.

CASE 3 – SPEEDING Section 128 of Ontario Highway Traffic Act

My wife was charged with 76 in a 50 charge and the officer knocked it down to 60 in a 50 and I represented her at the trial. I checked the original ticket but no fatal errors. I asked for a trial with the officer present and requested disclosure. Got the full radar manual and officers notes. His notes were pretty much bullet proof. He had included a tracking history, comments that the radar had been tested (and passed) both before and after enforcement, and all the other elements they needed to be proved were in his notes. I went to court and the officer was there and sat thru 2 hours of people mostly pleading guilty and setting trial dates. Then at 11am prosecution asked for short recess. There was only three of us left in the courtroom at this time. He spoke with the other two and sent one person off to go over notes with an officer, then called me over and said “Well your charge is only a 10 over and this other guy has a failing to stop which is more serious. If he wants to proceed to trial then we won’t have time for your trial because you filed a couple motions that we would have to deal with even before we start the trial. So if he wants a trial that will work in your favor and I will drop the charge. Any problems with that?” Of course I said “No, that sounds good to me.” When the other guy came back in from talking to officer, he told prosecutor he wanted to go to trial, so prosecutor told the officer (for my wife’s charge) that he could leave and told me he would withdraw charge when Justice of the Peace came back in. I will take a win anyway I can! One thing to note with this case is that I filed a couple of Notice of Motion ahead of time. By filing these motions, I essentially made this case the most complex one of the day for the prosecutor, so he moved it to the bottom of the pile. This ended up working in my favour as they ran out of time.

Here is a link to a PDF with the defense that I was prepared to use if I had gone to trial:
Click here to download PDF file of Case 3

RELATED POSTS

– Representing yourself in court
– What to do when pulled over by the police