Q&A - Driving Without Reasonable Consideration Ticket
I got a call from the RCMP the other day because someone accused me of driving bad. They phoned me 15 days AFTER the alleged incident and issued me a violation ticket for Driving w/o Consideration 144 (1)(b).
I was going slowly through a roundabout, and someone came flying right up to me at a high rate of speed (they have the yield sign). It looked as though they weren't going to stop, and came past the sign a little bit, where I panicked and applied the brakes. They ended up at my right rear tire/door. I thought they were going to hit me because of their speed and weren't slowing down. There is also a pedestrian crosswalk 10 ft before that persons yield sign. From living in the area, I see people flying through those things all the time, people trying to "time it" - where they don't have to really stop but slow enough to time it with the person in the roundabout. (in other words, not stopping and waiting for the traffic to clear but riding right up to you, then behind you)
1) Can the officer bring in my past driving record? I have a suspension from over 14 years ago for bad driving/unpaid tickets - but only 1 speeding ticket from about 4 years ago. I read that I can refuse to allow it - can somebody elaborate?
2) Should I take the witness stand, even though I don't have to - but wouldn't the judge just accept the witness' testamony?
3) I have one relevant case law I found:
Judge Robinson says, “Considered, in the context of the words, ‘without reasonable consideration’, there must be an onus on every vehicle owner to adhere to a reasonable standard for his own safety, the safety of his own vehicle and the safety of others using the highway”.
So, my interpretation of this is that I am responsible for my safety, and my vehicles safety - and if I felt I was going to be hit in the roundabout - that I have a right to slam on my brakes and brace for impact. Is that not correct?
4) I also asked the officer on the phone for a copy of the statement/complaint against me and they refused - saying it was a privacy issue. I told them I am not interested in the persons name or address, only what Im being accused of. I also asked down at the station where I went to get the ticket, if our phone conversation and the one at the station can be used against me - she said no.
Anyway - I plan to fight it but any thought on the matter? 6 demerit points is pretty serious esp. when its based on someones hearsay.
I'm not an expert, but will try to provide some answers.
Thank you for your
Thank you for your response.
1) But if I take the stand and the officer asks if I have ever been suspended in the past, can I refuse to answer? In other words - they try to show past behaviour is an indication of future behaviour...in theory.
2) Yes, I do intend to fight it.
3) Peoples first reaction when they are think they are about to be hit is to slam on their brakes, in the hopes of preventing the collision. I can't just "floor it" in a roundabout with a pedestrian crossing on the exit side for the safety of the people possible being there. There was no independant witnesses - just the complaintant and myself. They didn't yield, they were travelling at a high rate of speed and were hoping to sail right through the intersection, when they encountered my vehicle - then slammed on the brakes. At the corner, there is a large sound wall and trees - so visibility is poor unless you are travelling through there slowly. Due to the fence and trees - when someone races through the roundabout - you only have a fraction of a second to react. She was trying to race through, encountered my truck and slammed on the brakes at the same time as me. She honked, and gave me the finger when I didn't move out of her way fast enough. Of course I returned it out of frustration. I have a sneaky suspicion that she is neighbours or family friends with the ticketing officer or one of their colleagues.
4) I read most of those others. There is only a few posts on Drive w/o Consideration.
5) OR should this be posted in the Traffic Court section?
Keep this in mind:
What happened in reality has as much bearing on the outcome of your traffic court dispute as what-ever you ate for breakfast today - none. However what the witness had for breakfast the day of the alleged offence does.
The primary and only point in the traffic dispute is to:
Substantiate whether the evidence against you is sufficient to deem you guilty of the administratice offense.
As such, your dispute will likely to end in the evidence phase:
- If the evidence is written notes by the Officer taking the call from the witness or an affidavit from the witness, as it will be read by the officer, you can move to dismiss as soon as they finish and you don't have an opportunity to cross-examine; if you/court can't qualify the evidence, the court can't accept it.
- If the person is there, boy oh boy you can just spread their words all over their face once they finish testifying.
(If they present the situation as you describe - you have enough info to shove it right back in their face - "So you say there was a yield sign? And did you properly yield, or did you touch/cross the imaginary line which you are not supposed to cross to yield properly when the left hand traffic is present in the round-about. And then you say that the vehicle which had the right of way at the time had to slam the brakes? Did it look like they slammed the brakes to annoy you? Or did it look like they thought that you were going to blow through the yield sign and crash into them?")
All irony aside - they (the witness) should be the ones walking out with the "driving without consideration" ticket - didn't you mean to say that with your post here? Say it in court; indirectly; by carefully crafting your questions to show the right picture.
Don't testify to what happened - focus on doing a proper cross-examination instead, testifying comes as the last step, and it's voluntary; your situation does not merrit testifying for the defence at all.
If the prosecution cannot prove allegations, testifying will make your matters worse - it's like continuing to bargain yourself down after the buyer says yes.
Remember - this is NOT about what happened in YOUR head. You know what happened better than the prosecuting officer and the Justice - but it is your most primary objective to not add to what they know, instead disqualify, discredit, cast doubt on whatever THEY (their witness) say YOU did. If the witness can't recall what they had for breakfast that morning - they can't be reasonably trusted to remember that you were breaking any law that day.
Think About It
Some of Outrageous' comments need to be viewed with consideration.
"- If the evidence..." A witness needs to testify directly and be subject to cross examination if you choose to. No witness, no case. There was no need to mention the notes or affidavit, neither of which would be acceptable to enter witness evidence at your trial.
"- If the person is there..." They will be or there won't be a trial. Your cross examination is limited to the evidence that the witness gave.
"Don't testify..." That's something you will have to decide, probably at the last minute depending on how the evidence looks to you at the end of the Crown's case. You may have to give evidence to rebut that testimony.
I would urge you to look at the Links page here and read some of the case law, even if it does not cover this situation exactly. It will give you some idea of how the evidence is treated by the court.
Lets look at your questions in order:
1) Yes, the officer can enter your driving record, but only after you have been convicted and the trial has entered the penalty phase. There is an exception to this and that is if you raise the issue of your history during your testimony. You can then be cross examined on it and the JJP will hear about it prior to deciding the outcome.
2) The JJP will weigh all testimony given in the trial and give it weight according to how reliable it seems to them. It is your choice as to whether you choose to testify or not.
3) It is if you can convince the JJP that this is the most appropriate thing to do.
4) If there is a written witness statement, and there should be, you are entitled to a copy of the statement (minus the information that would identify who the witness was) in order to prepare for trial. Request that information in writing and either hand deliver it to the appropriate police office or mail it in a fashion that returns proof of delivery to you. If it is not delivered you have either a Charter defence or you can ask for an adjournment and the courts direction that the police provide that information prior to the next court date.
Cop wasn't there
A major point that has not been brought up is "identity". Have you been charged as the registered owner of a vehicle that was being driving without reasonable consideration, or as the driver ?
There is a BIG difference. 6 points difference.
What is the process ? Have you received a summons, or did the police issue you with a ticket ?
Section 83 of the MVA says that the registered owner of a vehicle is liable for any offences committed by the vehicle, but as "RO" the offense does not go on your driver's license and you don't get the points.
Did the constable that spoke with you do so in person ? If not, how can anyone put you behind the wheel ? Did the other driver talk to you ? Can they ID you, even if they can, how does the constable know this ?
Even if you told him you were driving in a phone conversation, he can't prove he was speaking with you.
The fact that the police have acted on a citizen's complaint of a traffic violation when there was no collision is strange to start with. If every time one of us saw a violation, we reported same and the police investigated, BC would need 1000's more police.
Who is this other driver ? Is there a reason this constable took this on ?
You certainly have a right to have a copy of the statement of the other driver and if you are being charged as the RO, a copy of whatever certified document they intend to use to prove same.
If, the other driver does attend (if he doesn't you walk) listen to his evidence, then ask careful calm questions. If he says he almost hit you in his direct evidence, when you get to cross examine ask what signs are at the round about. He'll say a yield sign. Ask him if he knows what the sign means. He'll say yes, I have to yield. Then why did he almost hit you ? Well I was timing my entry and you stopped. (So you didn't yield), but say it, I suggest that actually because you didn't yield, it was your actions that almost caused a collision. Were you <the witness> issued a ticket for failing to yield ?
He won't agree, but you pointing out to the JP what was really happening. Establish if he frequently uses roundabouts, then ask. "When you normally approach a roundabout and there is a vehicle already legally travelling in the round about, do you alway "time" you entry conditional on the other vehicle maintaining its' speed ?"
You don't have to give evidence. If you are charged as the driver and nobody says in their direct "that is the driver over there", or the cop tries to give evidence that he spoke with a male on the phone and he said he was Bob Smith and he said he was driving, so I issued the ticket in the name of Bob Smith. You can before testifying bring up the fact that nobdy has named a driver.
Watch out for the cop trying to talk to you before court and issue you a ticket then. "oh, are you Bob Smith, you were the guy driving at the round about on X date at X time in a blue XYZ car, license number XXX ? "I'll do my talking inside the hearing room, thanks"
Hope this helps, there is so much to say in so little room.
"Have you been charged as
"Have you been charged as the registered owner of a vehicle that was being driving without reasonable consideration, or as the driver ?"
Not sure - how can I tell the difference on the ticket?
"Have you received a summons, or did the police issue you with a ticket ?"
Violation Ticket, blue if I recall. Girlfriend forgot to photocopy it before handing it in to dispute.
"Did the constable that spoke with you do so in person ? If not, how can anyone put you behind the wheel ?
Over the phone - 2 weeks after the incident.
Did the other driver talk to you ?
No, couldn't even see me - back windows are tinted.
"Can they ID you, even if they can, how does the constable know this ?"
When the officer asked me on the phone if I was the driver at X and Y loation on this date - I couldn't remember at first. I then said " Oh I remember now when that fuckin idiot almost hit me..." or something similar. Therefore - didn't I just admit it?
"Even if you told him you were driving in a phone conversation, he can't prove he was speaking with you."
After the phone convo, officer said either come and get the ticket at the station or they'd bring it up to me. I went to get it. Therefore, when I went to the station and annouced, "Hi - I'm D. Smith here to see Officer Bad. Didn't I just identify myself as the person the officer was speaking to?
"Who is this other driver ? Is there a reason this constable took this on ?"
Not sure who she is but she's a young little race car driver with total disregard for others on the road. Races around with a lowered vehicle (for great cornering = like through roundabouts). A week later while coming out of my driveway - she went racing by at a high rate of speed. I quickly followed to clock the speed. It was a 50 zone and I gave up once I reached 60. She must've been doing 80km. I did catch up a bit later when the road turned to gravel on one section - since I was behind her and it was ashphalt again - THEN she drove like the lil princess she is - even putting her signal on to enter the roundabout.
I think the constable is doing this as a family favour or neighbourly favour or a favour for another officer who knows this girl. Or maybe they're just getting too many complaints about my driving. Who knows.
"If, the other driver does attend (if he doesn't you walk) listen to his evidence, then ask careful calm questions. If he says he almost hit you in his direct evidence..."
She will say she was driving normal, into the roundabout - when he slammed on his brakes for no reason. There is a pedestrian sign too, then the yield.
"If you are charged as the driver and nobody says in their direct "that is the driver over there..."
My name is on the VioTicket. When the case is called and they call my name to stand up in front - won't the officer just point and say, "that's him there" Since I'm standing there as Mr X?
"or the cop tries to give evidence that he spoke with a male on the phone and he said he was Bob Smith and he said he was driving, so I issued the ticket in the name of Bob Smith. You can before testifying bring up the fact that nobdy has named a driver."
But I went to the station and picked it up, therefore identifying myself. Or am I missing something here?
"Hope this helps, there is so much to say in so little room."
It certainly helps a lot, and it is very much appreciated! Maybe I can email you for more help?
No Disclosure yet....
I emailed the ticketing officer and asked for disclosure over 3 weeks ago and never received a reply.
I had also asked for disclosure on the phone when she was accusing me of this BS charge - she refused then due to privacy concerns.
Is that sufficient to go to court and say, "I emailed them for disclosure, they didn't respond"? How can I defend the ticket with no disclosure?
Of course I kept a copyy of the email and attached the Violation Ticket and file # in the email as well.
What to do Next
There is a good possibility that this whole thing will fold up and disappear on the trial date.
If it doesn't, I would wait until the case is called and when asked for a plea DO NOT enter one. Rather ask that the matter be dismissed because your request for disclosure was not responded to or, failing that, ask that the court direct the officer to provide disclosure within a certain time and have the matter adjourned so that you can study it and prepare a proper response.
If it is not dismissed and you do not receive disclosure, then contact the court registry where your trial is to be held and ask for their assistance in initiating a Charter argument because disclosure was not provided as requested.
Thx for the prompt and
Thx for the prompt and thorough response.
So do you feel the email request was sufficient? Does over 3 weeks seem too long to you?
I'm a little foggy on your last paragraph. Ask the court registry for assistance for a Charter argument - this is different then an Appeal correct, since it is done through the Registry? Because if I don't get it tossed or receive disclosure - then I technically could lose/found guilty.
The Last Paragraph
An appeal is where you have a lower courts decision reviewed by a higher one in hopes of having the verdict or penalty changed. It usually involves a mistake in law. A Charter argument is when you argue before the court that your rights as set out in the Charter have been infringed and ask for a remedy. This is usually exclusion of evidence or setting aside a guilty verdict.
The traffic court JJP cannot hear a Charter argument, which is why I (and the JJP if you try) direct you to the registry to set it up in front of a provincial court judge. The registry will reserve the court time and help you with the necessary procedures.
Three weeks may or may not be long, it depends on the circumstances. If the officer has been sick for an extended length of time for instance, then 3 weeks might not be considered too long at all. I can only comment on how I dealt with the same situation. I would receive a file with a diary date for action because the request was usually in writing via the mail. I would have to prepare my reply, have it reviewed by my supervisor and then it would be mailed out. It shouldn't take too long and as long as it arrives within reasonable time prior to trial that should be sufficient. If not, you can appear at trial, decline to enter a plea or plead not guilty and ask for an adjournment to deal with late disclosure.
In a case like this, I would write out what I expected to give as evidence at trial and include copies of witness statements with the witness identities removed. If there were diagrams or photos, you could expect to receive copies of these too.
Thank you for clarifying this
Thank you for clarifying this for me. I understand now. Registry will set it up and help me out if need be.
So, is it written somewhere that the disclosure request be "written" - as in receiving it in the mail as opposed to email? Certainly I could argue an email qualifies as "written". I had asked for disclosure over the phone too when the officer phoned me accusing me of all this. They never gave it citing privacy concerns. Even when I said I didn't want the persons name or address - only what I was being accused of, they still refused.