R. v. Yoshida: The Tale of the Parking Lot
I fought the Queen – and I won. And, in some cases, perhaps you can win too.
A year and a half ago, I was cited for violating Section 144(1)(b) of the B.C. Motor Vehicle Act, which forbids “driving without reasonable consideration for other persons using the highway.” In English – I was charged for driving clear across a mostly-empty parking lot on my way to work in the morning. Frankly, I thought it was a stupid ticket. It was a clear August day. It was early in the morning. The sun was out. The section which I cut across was pretty much totally unoccupied. I was travelling at, maybe, thirty. The RCMP Constable claimed that she thought it was closer to forty. I doubt it. I also doubt that, in a span of two hundred or so meters, that the difference between thirty and forty can be reliably attained from simple visual observation.
Anyways, as I said, I was prepared to fight the case out on the merits. I don’t think I did anything wrong – and I mean that in a legal sense, not merely in the sense that I admire Winston Churchill’s habit of driving on the sidewalks when necessary out of his conviction that he was far more important than ordinary people. In particular, I think that I had solid ground for reasonable doubt both because I doubt if the cop would have been able to enumerate the supposed persons that I posed a danger to. As well, it appeared to me that he Constable stopped me by following the exact same path across the parking lot as I did. But, as it turned out, none of that was necessary.
Instead, I prevailed by relying on the Charter of Rights and Freedoms. Yes, in general I’m not a fan of what that document hath wrought but, in this case, it saved me something like $500.
From when I got the ticket, on August 31st, 2006 (quota, anyone?) to the trial, close to eighteen months elapsed. Therefore, I made an application for a stay of proceedings on the grounds that my right to be tried within a reasonable time, as contained in Section 11(b) of the Charter had been violated.
This wasn’t a shot in the dark. In R. v. Askov the Supreme Court ruled that a delay of eight to ten months from charge to trial was appropriate and that, as delays extended beyond that point, they become increasingly hard to justify. Further, they ruled that delays resulting from inadequate resources weigh against the Crown. Since, in this case, the only factor (at least that I’m aware of) delaying this case was the lack of institutional resources, these facts tended to weigh in my favour.
However, a few years later, in R. V. Morin the Court raised the burden a little bit – holding that he accused, In order to prevail on an 11(b) motion must demonstrate some sort of prejudice arising out of the delay. In this particular case, I felt that this definitely existed – since there were numerous witnesses to the incident at the time but, by the time a trial was scheduled more than a year later, I couldn’t find anyone with a confident enough recollection of the incident to testify in my defense. Moreover, in a case where detailed facts would have mattered a great deal, any testimony that either the Constable or myself could have offered would have been, for the most part, to recap our own notes from the time of the incident.
Now, I wouldn’t encourage anyone to make frivolous motions. But, I would suggest that the Crown has both a legal and moral obligation to dispose of matters in an orderly and rapid fashion. It should not take a year and a half to deal with an ordinary traffic ticket. If you have one that’s taking that long, I recommend copying my practice and seeking a stay of the charges on the grounds that the delay has violated your rights. After all, it can’t hurt.
In order to properly make the application, I had to write it up and deliver it to the court, to the BC Attorney General, and to the Attorney General of Canada. I’m told that people have done this by fax and ordinary mail but, not wanting to take any chances, I sent mine registered. A few days later, I got a letter from the Department of Justice telling me that they wouldn’t be intervening in the case.
So, today, I went to court for the first time in my life. Frankly, I was a little bit nervous – especially when I found that, while most the traffic cases where scheduled in one courtroom, I was set for another room whose docket was filled with longer-form items. I became even more concerned when I saw that, rather than the RCMP Constable, there was a Crown lawyer to argue the case.
But, when I got up, the Crown Counsel told the Judge that because the combined time of arguing the application and following it with the trial would force the trial to be scheduled for some time even further into the future, the Crown was going to stay the charge. Boom. I won.
The lesson to be had – always stand up for your rights. Don’t bow down before the state, especially when the state is wrong. Perhaps if more people would fight their tickets on a consistent basis and do so using a sound and aggressive strategy, the tactic of using traffic policing as a method for revenue generation would stop working and instead police would be freed up to arrest actual criminals – like the drug gangs waging war upon eachother across the Lower Mainland.
A year and a half ago, I was cited for violating Section 144(1)(b) of the B.C. Motor Vehicle Act, which forbids “driving without reasonable consideration for other persons using the highway.” In English – I was charged for driving clear across a mostly-empty parking lot on my way to work in the morning. Frankly, I thought it was a stupid ticket. It was a clear August day. It was early in the morning. The sun was out. The section which I cut across was pretty much totally unoccupied. I was travelling at, maybe, thirty. The RCMP Constable claimed that she thought it was closer to forty. I doubt it. I also doubt that, in a span of two hundred or so meters, that the difference between thirty and forty can be reliably attained from simple visual observation.
Anyways, as I said, I was prepared to fight the case out on the merits. I don’t think I did anything wrong – and I mean that in a legal sense, not merely in the sense that I admire Winston Churchill’s habit of driving on the sidewalks when necessary out of his conviction that he was far more important than ordinary people. In particular, I think that I had solid ground for reasonable doubt both because I doubt if the cop would have been able to enumerate the supposed persons that I posed a danger to. As well, it appeared to me that he Constable stopped me by following the exact same path across the parking lot as I did. But, as it turned out, none of that was necessary.
Instead, I prevailed by relying on the Charter of Rights and Freedoms. Yes, in general I’m not a fan of what that document hath wrought but, in this case, it saved me something like $500.
From when I got the ticket, on August 31st, 2006 (quota, anyone?) to the trial, close to eighteen months elapsed. Therefore, I made an application for a stay of proceedings on the grounds that my right to be tried within a reasonable time, as contained in Section 11(b) of the Charter had been violated.
This wasn’t a shot in the dark. In R. v. Askov the Supreme Court ruled that a delay of eight to ten months from charge to trial was appropriate and that, as delays extended beyond that point, they become increasingly hard to justify. Further, they ruled that delays resulting from inadequate resources weigh against the Crown. Since, in this case, the only factor (at least that I’m aware of) delaying this case was the lack of institutional resources, these facts tended to weigh in my favour.
However, a few years later, in R. V. Morin the Court raised the burden a little bit – holding that he accused, In order to prevail on an 11(b) motion must demonstrate some sort of prejudice arising out of the delay. In this particular case, I felt that this definitely existed – since there were numerous witnesses to the incident at the time but, by the time a trial was scheduled more than a year later, I couldn’t find anyone with a confident enough recollection of the incident to testify in my defense. Moreover, in a case where detailed facts would have mattered a great deal, any testimony that either the Constable or myself could have offered would have been, for the most part, to recap our own notes from the time of the incident.
Now, I wouldn’t encourage anyone to make frivolous motions. But, I would suggest that the Crown has both a legal and moral obligation to dispose of matters in an orderly and rapid fashion. It should not take a year and a half to deal with an ordinary traffic ticket. If you have one that’s taking that long, I recommend copying my practice and seeking a stay of the charges on the grounds that the delay has violated your rights. After all, it can’t hurt.
In order to properly make the application, I had to write it up and deliver it to the court, to the BC Attorney General, and to the Attorney General of Canada. I’m told that people have done this by fax and ordinary mail but, not wanting to take any chances, I sent mine registered. A few days later, I got a letter from the Department of Justice telling me that they wouldn’t be intervening in the case.
So, today, I went to court for the first time in my life. Frankly, I was a little bit nervous – especially when I found that, while most the traffic cases where scheduled in one courtroom, I was set for another room whose docket was filled with longer-form items. I became even more concerned when I saw that, rather than the RCMP Constable, there was a Crown lawyer to argue the case.
But, when I got up, the Crown Counsel told the Judge that because the combined time of arguing the application and following it with the trial would force the trial to be scheduled for some time even further into the future, the Crown was going to stay the charge. Boom. I won.
The lesson to be had – always stand up for your rights. Don’t bow down before the state, especially when the state is wrong. Perhaps if more people would fight their tickets on a consistent basis and do so using a sound and aggressive strategy, the tactic of using traffic policing as a method for revenue generation would stop working and instead police would be freed up to arrest actual criminals – like the drug gangs waging war upon eachother across the Lower Mainland.
posted by Adam Yoshida at
4:02 PM
1 Comments:
Congratulations! You helped add to the burden on the court, making it more likely that other criminals will have their trials delayed and thus their charges thrown out. And you reduced the revenue of the government of BC, making it even harder for them to have timely action on charges.
Good for you, traitor!
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