RSS FeedDo Your Driving Convictions Really Disappear After 3 Years?
Records of Convictions for Provincial Charges in Ontario
Do your driving convictions really disappear after 3 years? Simon says, “No!” Keep reading to find out more about how the government keeps provincial offence records and what happens to them after three years.
Background Information on Provincial Offence Records
First some background information on provincial records. The Ministry of the Attorney General in Ontario keeps records of individuals’ convictions for all provincial charges, the most common Acts being the Highway Traffic Act (HTA), the Compulsory Automobile Insurance Act (CAIA), and the Liquor Licence Act (LLA). However these records are kept on an antiquated system, known as ICON, and are not easily searchable by police officers in the course of their regular duties. These records are primarily for the courts to maintain and use. ICON records are kept longer than three years.
This means that police officers aren’t likely to know about your underage drinking or public intoxication tickets when they run your name, unless you are dealing with the service that issued you the ticket, then they will probably have record of it on their own computer system.
MTO Records of HTA and CAIA Charges
The Ministry of Transportation (MTO) also keeps a records system, known as PARIS (Plate and Registration Information System). PARIS is accessed through the CPIC (Canadian Police Information Center) software, which is readily available to all police officers.
PARIS keeps track of individuals through their driver’s licence number and only deals with driving related provincial offences, namely Highway Traffic Act and Compulsory Automobile Insurance Act charges. It also keeps records of any driver’s licence suspensions, regardless of what they were from (i.e. medical, unpaid fines, racing, criminal conviction, etc). The PARIS record is what people are referring to when they speak of their “driving record”.
When a police officer runs (checks) your driver’s licence number, they will see your licence status and your convictions on PARIS, as well as any points you have accumulated from those convictions. Police services in Ontario (with the exception of the OPP and MTO enforcement officers) only have access on PARIS to the last three years worth of convictions and demerit points (although points actually regenerate after only two years).
The Three Year Myth
The fact that most officers can only see the last three years worth of convictions, coupled with the fact that insurance companies usually only ask about your last three years, has led to the myth that driving convictions are wiped off your record after three years. This is not the case! PARIS keeps records of your convictions indefinitely, it’s just that most officers can’t see them. The OPP and the MTO, however, can. So remember this the next time you are asked if you’ve had any tickets in the past!
From my blog: Simon Says, Category: Police Myths
Is Signalling Always Required on Roads in Ontario?
From my blog: Simon Says. Category: Police Myths
Prompted by one of the comments to my blog post, Is is legal to pass on a solid yellow line?, I will be writing today about whether signalling a turn or a lane change is always required. Simon Says: No!
First let us explore the relevant section of the Highway Traffic Act. Section 142 (1) states: “The driver or operator of a vehicle upon a highway, before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway, shall first see that the movement can be made in safety, and, if the operation of any other vehicle may be affected by the movement, shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.”
Regina v. Lebedorf, [1962] O.W.N. 233 (H.C.), creates two separate offences out of this section. The first is the offence of failing to see first that the movement can be made in safety (Turn/Change Lane Not in Safety* – $110 fine/$180 in a community safety zone) and the offence of failing to give a signal plainly visible to the operator of any other vehicle that may be affected by such movement (Fail to Signal Turn/Lane Change* – same fines). For the purposes of this post we will deal with the second offence.
In Regina v. Dillman, [2008] O.J. No. 1120 (Ont. C.J.), the court determined that the offence of turn-not in safety set out in subsection 142 (1) of the Highway Traffic Act was an offence of strict liability. I am persuaded, largely by the Supreme Court’s decision in Regina v. Sault Ste Marie, [1978] 2 S.C.R. 1299, that this classification must apply to the offence Fail to Signal as well. In Sault Ste Marie the court indicated that there is a presumption of strict liability for these types of offences, unless it has been determined otherwise. It does not appear that it has Fail to Signal has been classified as an absolute liability offence and, further, it was conceded in Dillman that the other offence in the same section is not either.
Strict liability means that the prosecution is required to prove actus reus (that the prohibited act itself was committed) beyond a reasonable doubt. But, in strict liability cases, the defendant can make a defence of due diligence, based on a balance of probabilities, by showing that they took all reasonable steps to avoid the offence.
Whether signalling a turn or lane change is always required hinges on one word in the section: if; “if the operation of any other vehicle may be affected by the movement, shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.”
Signalling applies to motor vehicles, trailers, and bicycles and can be accomplished by either electronic means (blinkers) or by way of hand signals, as outlined in Section 142, subsections 3-6. But, if there is no one else on the road to be affected, it is not an offence to fail to signal. If an officer observes a driver fail to signal a turn or lane change and wishes to lay the charge against them, they will be required to articulate in court what other vehicle was affected by the turn and how.
Common sense would dictate that “being affected” requires that the person being affected actually be forced to make a course correction, accelerate, or decelerate, in order to avoid a collision with the vehicle that failed to signal. I would suggest that a person (including a police officer) cannot “be affected” if they simply observe the failure to signal from a distance.
However, whether or not it is legally required to signal in a particular situation, we must remember the intent of the legislation: to create an orderly and predicable flow of traffic in order to avoid collisions. Based on that premise it seems prudent to form a habit of signalling, in order that it not be forgotten when needed.
*These are the approved short form wordings for the offences under Section 142 (1)
Does a police officer have to show you the number on the Radar?
From my blog: Simon Says. Category: Police Myths.
Another question I was asked frequently during my time as a police officer is, “Does the officer have to show you the number on the Radar they used to clock your speed?” Simon Says: No!
This is another myth that probably began from some jurisdiction in the United States, but in Ontario this is not required. I believe this holds true in all other Canadian jurisdictions as well. This applies for both Radar and Laser units, which are the two types of speed measuring devices in common use by police services in Ontario.
Speeding is considered an absolute liability offence, which means that the Crown does not have to prove that you intended or even knew that you were speeding. They only have to prove that you were. An absolute liability offence means that there are no defences of due diligence available to the defendant to excuse their actions. The key piece of evidence the Crown needs to prove the offence of speeding is the measurement from the speed measuring device. The officer’s verbal evidence in court as to what reading he locked on the device will be sufficient evidence to prove the speed (though not necessarily the whole case). The officer’s verbal evidence can be challenged but if all you do is disagree with the speed they testify to, it is not likely you will be believed, unless the officer has credibility issues. The court usually weighs officer’s accounts of numbers heavily, since they were specifically in the execution of their duties at the time and made notes of everything during the incident or shortly thereafter.
With respect to not being allowed to view the device, Section 46 (2) of the Provincial Offences Act entitles defendants to “make full answer and defence.” However, creating a proper defence for a speeding trial does not require that the defendant viewed the speed measuring device to confirm that the officer read it correctly. Reading the numbers on a digital display is one of those things that police are trusted to be able to do accurately so claiming that the officer read the numbers wrong will probably not be the key to creating a proper defence. It would be up to the defendant to articulate why they feel the officer was wrong in their particular case and how their inability to confirm the reading prejudiced their ability to make a proper defence. To my knowledge no one in Ontario has successfully made this argument yet, but if you’d like to be the first, give it a shot!
Personally, I rarely ever showed people the Radar or Laser I used, except maybe if it was a confused old grandma who didn’t speak English very well and clearly had no idea what was going on. First, because it’s just not relevant to a person’s ability to make a defence, since I was confident in my ability to read the digital display properly and second because I know an officer who showed a roadside device to someone to check the reading and had the person grab it from them and smash it on the ground! In my experiences the bosses are not very happy when you cost the service more than twice as much as it would have cost them to pay you to stay home for the day…ask me how I know! :)
A car means less freedom
An old cliché says that a car gives freedom. But if freedom means the absence of state intrusion in our personal choices, then that cliché is plain wrong. Drivers are less free than pedestrians or transit passengers. There are three main areas in which driving impairs our freedom. Loosely phrased, they are liberty, privacy, and regulation.
The first area is liberty. Driving is a privilege, not a right. Everybody knows it. That’s why we have driver’s licences. It is a conditional privilege granted and revoked by the state. When you receive this privilege, you consent to greater state intrusion and scrutiny than non-drivers. The police have more powers to stop and detain you, and because so much of people’s lives are in their car—in plain view, the police have more opportunities to engage in a warrantless, plain-view search of your car interior when they stop you. That affects your freedom.
Whenever you are pulled over, you are detained. Detention doesn’t necessarily mean going to jail. If you feel you cannot refuse a police demand that constrains your movement, you are detained. If you are behind the wheel, the police can detain you more easily than if you are walking on the sidewalk. In Ontario, the Highway Traffic Act allows a police officer to stop cars “in the lawful execution of his or her duties and responsibilities” (s. 216(1)). This stop does not require a warrant or reasonable and probable grounds that you committed an offence. The police can stop you to smell your breath (the RIDE program in Ontario) or to see if there are mechanical issues with you car, for example.
There are at least two justifications for this curtailment of freedom on the road. First, the car is inherently dangerous. A lot more Canadians die in traffic accidents than in the most violent armed conflicts Canada is involved in. Second, driving is privilege with conditions, and when you accept it, you give the state the right to verify your compliance with the conditions. Of course, the state’s power to do so is not boundless, but it results in drivers having less freedom than pedestrians or transit riders.
The second area is privacy. Driving sacrifices privacy, and courts held that reasonable privacy expectations in the car are lower than in a home or in a person. When the police stop you, you must identify yourself, which means at least giving your correct name and address. You must also show proof of your driving privileges. But even when you are not stopped by the police, the name and address of the owner of the car you are driving is always apparent to authorities through the licence plate. By the way, bicycle riders have to give at least their name and address if stopped by the police on the street (s. 218(1) of the Ontario’s Highway Traffic Act), and they can be arrested if they refuse. Of course, pedestrians or transit riders do not have these burdens.
The third area of restriction is regulation. When you drive you are subject to much more state regulation than when you walk or ride transit. The complexity and dangerousness of road traffic result in a web of rules of the road, some of which drivers customarily break giving the police a chance to curtail their freedom even more. Take highway speed limits, for example. Most drivers exceed the 100 km/h limit, and the police often ignore it due to enforcement costs or for other reasons. But it means that a great deal of drivers are offenders and subject to sanctions at the most unexpected moment. So not only do drivers have inherently less freedom, they often have even less freedom than they should because they routinely break road rules.
With all this state intrusion, lower privacy, and massive regulation, drivers are less free than pedestrians or transit riders. In fact, sidewalks are true freedom zones where you are free from state interference unless there is an emergency or reasonable and probable grounds that you committed a crime (which is a pretty high bar). And due to distances, a lack of transit, and the resulting reign of the car, small town or suburb residents may very well be less free than big city dwellers, with all other things held equal.
(Post sponsored by AdviceScene)
On grandmothers and stunt driving
Sometimes a court case comes along that I simply love. Usually I love a case because it teaches me something about law, or because it is uniquely Canadian, or because it’s worth blogging about. This week’s stunt driving decision out of the Court of Appeal does all three. In R. v. Raham, Ontario’s highest court taught us how badly some of our laws are drafted and how lucky we are to have Francophone Canadians. There is also a reminder about a shockingly easy way to risk jail for making a left turn. I love this case.
Highway 7 between Ottawa and Toronto and grandmothers—I don’t know if there is something about this mix that leads to major debates in penal law, but on April 29, 2008 a woman passing a truck began an important case that culminated in an Ontario Court of Appeal decision on Thursday. Ms. Raham was driving home to Oakville from the Ottawa area and speeding. Closely in front of her was a tractor trailer, also speeding. They both were speeding at about 90 km/h in an 80 km/h zone. Ms. Raham stepped on it and started passing the truck.
It must have been a long truck because she kept accelerating until a diligent police officer driving behind her clocked Ms. Raham at 131 km/h (51 km over the limit). She did slow down after passing the tractor trailer—to 110 km/h. It was probably then that the officer pulled a surprised Ms. Raham over and charged her with “driv[ing] a motor vehicle on a highway while performing a stunt, to wit: driving at a rate of speed that was 50 kilometres per hour or more over the posted speed limit.” And that’s how a grandma was charged with stunt driving—a provincial offence punishable by a fine between $2000 and $10,000 or by up to six months of jail, or both. I am not even talking about licence suspension.
Ms. Raham’s lawyer, assuming she had one, didn’t like this charge. In Canada, if a penal law allows for jail time, it must contemplate the state of mind of the accused. There are two options: either the prosecutor must prove that the accused knew or should have known he/she was committing the prohibited act (full mens rea offences), or the accused should be able to raise the defence of due diligence (strict liability offences). This defence means you did everything you were supposed to do but the prohibited act still took place. In both cases the state of mind of the accused matters for conviction or acquittal. Our constitution always requires this when you are accused of something that can get you in jail. No jail without fault.
For some offences fault is not required. You can never go to jail for those. Ordinary speeding, parking, talking on your cellphone while driving (unless you kill someone), etc. come to mind. It doesn’t matter if you knew you were parking in the fire lane or if your speedometer was broken when you went 10 km/h over the limit. The law will punish you regardless of your fault. These offences are called absolute liability offences. Because punishments are relatively light, offences are frequent, and the threat to public safety is serious, the law wants quick justice without delving into your moral blameworthiness.
So Ms. Raham or her lawyer thought the stunt driving law allowed jail for an absolute liability offence. On their reading of the law, all you needed to do to commit the offence of stunt driving was to go 50 km/h over the limit. The law didn’t say anything about the mental state of the accused or if the fault was relevant to conviction. But it did threaten jail. Regular speeding offences are absolute liability offences. And the act they prohibit is identical to the stunt driving offence. The cop who pulled Ms. Raham even had a choice between a regular going-50-over-the-limit charge or a stunt driving charge. I guess the cop wasn’t in a forgiving mood that day.
The Justice of the Peace who tried Ms. Raham threw the constitutional argument out of the window and convicted the grandmother. She appealed to the Ontario Court of Justice, which acquitted her and declared the Ontario stunt driving law unconstitutional. It is from that decision that the government appealed to the highest court of Ontario. On Thursday, the Court of Appeal said the stunt driving law was constitutional.
The lower court’s theory that the Court of Appeal rejected was simple. Even, if stunt driving was a strict liability offence, its nature gutted any due diligence defence. The judge couldn’t wrap his head around how anyone could prove they did everything they should have done to avoid going 50 over if they were obviously speeding. He said you can’t prove you didn’t know you were speeding if you were going at least 50 over. And if you certainly knew you were speeding, how could you prove you did everything you were supposed to do to avoid going over 50? So your defence of due diligence would always fail making the offence effectively an absolute liability offence.
The Court of Appeal disagreed. Justice Doherty wrote that “[t]he defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense.” Even if you are going 49 over, but try really hard not to go 2 km/h faster, you will not be convicted of stunt driving if you do go over despite your reasonable efforts. Well, good luck with that in court, if you are accused of stunt driving. But you get the idea.
Of course, the legislature could have spared the courts so much legal wrangling if they drafted their laws better. We wouldn’t even be talking here if the Ontario Parliament expressly included the due diligence defence in the law. But they went far beyond just forgetting the defence. Here is the wording of the statute: “No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.”
A big part of the appellate decision is figuring out if these words mean two offences: a stunt or a bet, both in a race on a highway, or if they mean three offences: a race, a stunt, or a bet, all while driving. In the first case, the stunt offence would include elements of the race offence that contemplates the state of mind (no constitutional issue). In the second case, the stunt offence is stand-alone and figuring out the state of mind component is up to the courts (a constitutional issue).
The Court of Appeal preferred the second interpretation. And one of the decisive factors in its decision was the French version of the law, which was pretty straightforward unlike the English version. There you go: thankfully we have French-speaking Canadians and a constitutional requirement of bilingual laws. If one version of the law looks like it was drafted by a serpent from the tree of knowledge, we always have the other version for backup.
And the final lesson of this case is that you can go to jail for dashing in front of the waiting traffic in the opposing lane to make a left turn when the light switches to green. Seriously, check s. 172 of the Highway Traffic Act and s. 3, item 8-iv of Ontario Regulation 455/07.
(Post sponsored by AdviceScene)
The finger as a traffic offence
One-digit salute earns driver second ticket
After he received the ticket and began to pull away, the driver raised his hand and flashed an obscene gesture toward provincial police Const. Bettina Schwarze.
Do you think the officer did the right thing?
Aussie Man Charged with Drunk Driving… in a Wheelchair
Police in northern Queensland have charged a 64-year-old man with drunk driving after he was caught sleeping at the controls of his motorized wheelchair on a four-lane highway.
Other motorists on the highway had to swerve to avoid hitting the man.
After being awakened from his slumber, the police smelled alcohol on the man’s breath. He blew over 0.30 on a breath test, which is more than six times the legal limit.
The man told police that he was on his way to a friend’s house in Trinity Beach, which was 14 km from where he was found. Most of the route was to be along the highway.
The AP quoted regional traffic inspector Bob Waters as saying:
“The vehicles that we normally hear about with drink driving are the family car, the truck, the motorbike … [b]ut there are also other classes of vehicles that are subject to drink-driving laws,” including horses, bicycles, and motorized wheelchairs.
That’s fine for Australia, but what about Canadian Law?
This type of case has actually been litigated in many other jurisdictions, including Ontario.
Under the Criminal Code, which sets out the various drunk driving offences, a “motor vehicle” is defined as:
“a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.” (Criminal Code, s. 2)
Certainly this definition would seem to cover motorized wheelchairs, which are typically propelled by an electric motor.
Indeed, in 2004, Peel Regional Police pulled over a wheelchair-bound man who was drunkenly swerving from curb to curb on a major street. The operator of the wheelchair, one Mr. Shanahan, was subsequently charged with “driving over 80″ under s. 253 of the Criminal Code.
In R. v. Shanahan (No. 2), 2007 ONCJ 242 (CanLII), Mr. Shanahan submitted that the inclusion of motorized wheelchairs within the Criminal Code‘s definition of “motor vehicle” violated the anti-discrimination provisions of the Charter of Rights and Freedoms.
Counsel for Mr. Shanahan argued (at para. 12) that:
A person who is confined to a motorized wheelchair cannot get drunk in their home because this would be a violation of s. 253 of the Criminal Code. They cannot travel on a public sidewalk because they would be breaking the law. They have no mobility when they are drunk because they cannot be in care and control of their motorized wheelchair. To the extent that s. 253 of the Criminal Code prevents people in motorized wheelchairs from getting drunk in situations where otherwise able bodied persons can become intoxicated, these provisions discriminate against disabled persons who use a motorized wheelchair as a means of mobility. Hence, disabled persons do not enjoy equal protection of the law.
This rather novel argument was rejected outright by judge Wake (at para. 20):
it must be remembered that the essence of s. 15’s purpose is the protection of a person’s dignity… it is difficult to understand how that purpose can be advanced by permitting a person on a motorized personal mobility device to consume alcohol to the extent that his ability to drive is impaired. The argument in favour of striking down s. 253 seems to be that the dignity of a disabled person can only be sustained if he is afforded the right to behave with a lack of dignity. In my view s. 15 of the Charter should not be used to support the result of such inverted reasoning.
Nice try, Mr. Shanahan.
