Charge of Drive/operate motor vehicle while under suspension.
This is a strict liability offense that carries no demerit points. In Ontario if convicted of this offence you will face a hefty fine and further suspension of your driver's license. This is a very serious charge with much case law attached to it. You can be convicted of this offense if you were aware that you were driving while suspended due to a court order or unpaid fines. For further reference of this offence refer to our book or contact us for information on understanding the process from receiving the offence notice to fighting the charge at trial and/or arguing sentencing to reduce the penalties.
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Suspension for Unpaid fines
You may have a defense for this if you have a reasonable excuse for driving while under suspension. We will briefly examine a lower court ruling.
Case law: Lower court ruling by J.P.- R. v. Sousa, 2011 ONCJ 289 (CanLII) can be found at http://canlii.ca/t/flrq9
In this case it is clear that the excuse of not receiving the notice of suspension was an insufficient excuse to have the charge dismissed based on this excuse. The reasoning behind the ruling is that it was the defendants' responsibility to notify the ministry of a change of their own address. The court accepts that because the ministry had the wrong address that is why the defendant did not receive the notice of suspension but the blame was on the defendant.
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What does the crown have to prove in this case?
As stated by MacDonnell J. in Montgomery, supra., in order to sustain a conviction for the offence of driving while under suspension, the Crown does not have to prove that a defendant was aware of the fact that is/her driver's license was suspended at the material time. The said jurist stated that evidence that the notice of suspension mailed by the Registrar of Motor Vehicles was not received would be an important consideration in determining whether a defendant had exercised due diligence in respect of the issue of the validity of his/her driver's license on the date of the offence. He went on to note that such evidence would not necessarily discharge the burden on the defendant to establish the defence of due diligence, "unless [he/she] also established that he did not otherwise know of the suspension and that [his/her] lack of knowledge was not due to [his/her] negligence".
Case law: r v short 2010 ONCJ ruling: -canlii.ca/t/2df4h
The burden then became Mr. Short's to demonstrate to the Court that he, acting in good faith, could not have received the notice due to absence, accident, illness, or other cause beyond his control. Clearly, the Court accepts Mr. Short's testimony that he moved residences during the relevant period. What is not in evidence is that the move was beyond his control. Given Exhibit one, the testimony of the Officer, the evidence provided in the trial and Mr. Short's explanations and defence, this Court finds on behalf of the Prosecution that they proved their case beyond a reasonable doubt and a conviction on this charge shall flow from this decision. We (the court) accepted that Mr. Short knew he had unpaid fines over a relatively long period of time and that his license was not valid. The Court also accepted the possibility, however unlikely, that a Defendant in the abstract could believe that his license is not valid without necessarily believing it was actually suspended. However, in this case the Defence fails in that assertion for the above reasons.
Charge of Driving or operating a vehicle with no insurance
This offence is a strict liability offense, so you may have a valid reason (excuse) for driving with no insurance on the vehicle. This offence carries no demerit point loss but a hefty fine can be attached. Refer to the legislation in your province or territory: for example in Ontario the Act is C.A.I.A sec 2. If this is a second time or a higher number or times that you have been convicted of the charge, you may face a suspension of your driver's license. The standards for a valid excuse are quite high and any reason for not having insurance will be examined quite harshly in these cases.
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Charge of Failure to surrender insurance card/slip
This is contrary to sec. 3 (1) of the C.A.I.A. or the Compulsory Automobile Insurance Act. This is classified as an absolute liability offence and does not carry demerit point loss but does appear on your drivers abstract. An ideal outcome would be to set a resolution meeting with the crown prosecutor and show them your insurance card before trial. By setting a resolution meeting this in itself saves the court time and money and here the crown may show leniency and dismiss the charge. The issue if not resolved at this level then a trial may still be requested..
It is always good to have a few quick answers at you finger tips!
Parking tickets
In general, parking tickets are all categorized in legislation as absolute liability offenses. So, we cannot come up with an excuse within the meanings of due diligence to be found not guilty. For example a defense to a parking ticket is not that "I only stopped there for a few seconds"..
Charge of failure to wear Seat-belt
These offenses are strict liability offenses in Ontario Canada. This means that you can have a reason why you were not wearing a seat-belt at the time. This reason must be measured against what a normal person in society would do given the same circumstances. Refer to basic knowledge on this website for further description of strict liability offences. For demerit points see the links page on this website and choose the province you're in and see the provinces ministry of transportation website.
1. The Legislation in Ontario Canada it is sec 106(2) of the Highway Traffic Act: Reads as follows: Note this legislation is generally uniform throughout Canada and the United States.
"(2) Every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat belt assembly as required by subsection (5)."
The issue of increasing the set fine of the offence at trial
A fine or a set fine located on the ticket for part 1 and part 2 tickets. If you take the matter to court they can raise the fine up to 1000 Canadian dollars. This may be done in a severe case but 99% of the time it says at the original fine. The case must be made by the crown of gross negligence in order to raise the fine any further.
Case law general review: Issue of police officer observations
R v Duma, 2012 oncj 94 www.canlii.org
Please review the case law above to better follow the discussion below:
The issue in this case is that a person was charged with not wearing a seat-belt. The defendant intended to give evidence that the police officer could not have seen him not wearing his seat-belt. In the initial trial the defendant lost but upon appeal the court found the defendant not guilty. He gave evidence at trial that he knew the seat-belt was important to safety and never said that he was not wearing it. It is here that we must understand that he was giving evidence that the police officer could not see that he was not wearing the seat-belt. When the police officer gave his evidence the officer never said directly to the court that he was not wearing the seat-belt.
The evidence of the police officer was that he noticed that the defendant was wearing a white t-shirt and did not see and black strap over the defendant's shoulder that would indicate that he was wearing a seatbelt. The key issue now is that the police officer never said that the defendant was not wearing the seat-belt only that he could not see the strap over the defendant's shoulder. When the officer approached the vehicle the defendant was wearing the seatbelt.
The evidence of the defendant was that the officer could not see that he was not wearing the seat-belt. The defendant did not say that he was wearing the seat-belt either but the appeal Judge found that the logical inference from the evidence that the defendant gave was that he was wearing the seat belt.(line 40 of the case law)
We can infer or reason that from this case law that the police officer must say that a person was observed not wearing a seat-belt.
How the police officer came to the conclusion that the defendant was not wearing the seat-belt is an issue that must come out at court. Order the disclosure to see the officer's notes and it may be that in their notes that the police officer just writes down that he saw the defendant not wearing their seat-belt. The important issue raised in this case was how it was that the police officer saw that the defendant was not wearing their seatbelt. The officer never said that he observed the defendant not wearing the seat-belt. The police officer implied that because he could not see the strap of the seat-belt over the defendants shoulder that the court must conclude that the defendant was not wearing the seat-belt.
Charge of Careless driving
This is a strict liability offense and for the same reasons as above you may come to court and explain the reasons of what happened to prove your innocence.
For demerit points refer to the province in your area and search for the Ministry of transportation of affiliated ministry for an up to date demerit point loss if convicted of this offense. For example in Ontario it carries a total of 6 point demerit loss.
www.ontario.ca/driving-and-roads/understanding-demerit-points
The Legislation reads from sec 130 HTA:
In regard to the charge of Careless Driving, section 130 of the Highway Traffic Act
130. Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her license or permit may be suspended for a period of not more than two years. 2009, c. 5, s. 41.
Case law:
R. v. Weizman, 2013 ONCJ 9 (CanLII) canlii.ca/t/fvmfk
In this case you can see the basic elements of what is required to prove a charge of careless driving. This charge depends on factors such as weather, road visibility, traffic conditions, all that exist at the time of the incident. The crown must show a reasonable departure from what a normal reasonable driver would have done in a similar circumstance. The focus of the court is on the elements of careless driving and not the act of driving itself.
At Trial: If the evidence of the crown and defence conflict
The rule of evidence is that if the court believes the defense or doesn't believe the defense but is still left with doubt then the court will rule in favor of the defense. If the court finds that the defense was credible then the court must find in favor of the defense.
The court will examine to the best of its ability, the facts presented. In doing so, the issue is how did the defendant depart from what would be considered normal driving. To consider what would be normal the court will see what conditions were present and given those circumstances look at what the elements of careless driving are. It is not considered careless driving just because an accident took place. Do not just think that you will be found guilty just because an accident happened.
Charge of Unsafe Lane change
This is contrary to section 142(1) of the Highway Traffic Act Ontario. This is a strict liability offence. There is a strong possibility that this offence may involve a car accident. If it did not involve a car accident, then the police possibly observed you moving into a lane or moving over two lanes not in a safe manner.
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