RSS FeedDoes A Police Officer Have To Show Up For Court?
From my blog: Simon Says, Category: Police Myths.
Does A Police Officer Have to Show Up For Court?
Today, in my continuing saga of addressing Police Myths, I will be answering the question “does a police officer have to show up for court?” Although it is well known that officers sometimes do not show up for traffic court, Simon Says: Yes, they do have to attend court!
Attending all levels of court to give evidence in both criminal and provincial offence matters is one of the duties of a police officer. Section 42 (1) (e) of the Police Service Act lists one of an officer’s duties as “laying charges and participating in prosecutions” (that means showing up for court). Usually, this duty is also spelled out explicitly in the police service’s policies and procedures. The Court Attendance policy of the service I used to work for stated, “Members shall attend court as specified in the procedure.” In fact, later in the policy, under the duties of the Officer in Charge, it states that they are to take disciplinary action against an officer who did not attend court as required.
So why do officers occasionally not show up for traffic court? Most people have heard of someone who went to court to fight a traffic ticket, was told the officer wasn’t there, and had the ticket withdrawn.
The reason for this is usually that the officer got tied up dealing with something on the road and was not able to finish it in time to get to court. Officers start their shifts early in the morning (usually 7:00 am), which gives them plenty of time to get involved in something by the time court is scheduled to start (usually 9:30 or 10:00 am). Due to the nature of situations an officer deals with on the road, they can’t always just stop what they’re doing to go to court.
The other most common reason is that the officer is on holidays or sick.
In either case, without the officer to give evidence, the crown prosecutor likely has no reasonable prospect of obtaining a conviction, which leaves them with two choices. They can either bring a motion to adjourn the matter to a latter date or withdraw the charges. Which option they choose depends on a number of factor, primarily the seriousness of the offence. In criminal court, the crown will always bring a motion to adjourn, and it will probably be granted by the Judge. In provincial offences court it is far more likely that the crown will withdraw, especially if there are civilian witnesses who would be inconvenienced by having to return on another date.
The important thing to remember about this myth is that it is not up to the officer’s discretion whether they will attend court. Regardless of what they have said when issuing a ticket or what impression they left you with, they must attend court unless they are physically unable to do so.
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! :)
Guns, Gangs and Toronto Community Housing
From my blog, Simon Says. Category: Police and Law News.
From the CBC: Toronto police raids snare 71 gang suspects
Project Corral was a Toronto Police investigation involving a number of other services, which focused on two gangs, the Falstaff Crips and the Five Points Generals, as well as the Shower Posse, a Jamaican organized crime syndicate who was supplying both gangs with guns and drugs.
Chief Blair is very proud of himself for the success of this project, as well he should be considering that, in addition to 71 arrests, police seized 10 firearms, $30,000 in cash, $10,500 in casino cheques, cocaine, crack cocaine, marijuana, hashish oil and vehicles. This is no small feat and no doubt many lives have been saved.
Most of these gang members lived and operated within the communities of Toronto Community Housing and in the aftermath of Project Corral there will either be a deadly resurgence of these gangs, as they try to reestablish themselves in these communities, or there will be a power struggle to fill the void. Either way this is not good for the officers of Toronto Community Housing!
TCH is comprised of some of the worst government subsidized housing projects in Toronto and is patrolled by unarmed special constables, provincial offences officers and parking enforcement officers! These officers operate as first responders in these communities, assisted by Toronto Police when necessary.
The problem is, Toronto Community Housing officers are significantly under equipped to deal with the situations they are put in. They are often first on scene to calls involving guns, gangs, drugs, assaults, domestic violence, suicides, and shootings. They respond to the same calls that Toronto Police officers do, but they don’t carry a firearm? Mr. Blair, give your head a shake and wake up before one of these officers doesn’t get to go home to his wife and children at the end of the day!
My friend who works for TCH once encountered a drug dealer on a call in an apartment complex. The drug dealer sicked his pit bull on the officers and, in order to save his own life, my friend was forced to kill it with baton strikes to the head. But apparently he doesn’t need to be armed.
Another officer I know in TCH responded to a call that was an hour old for suspicious activity in an apartment complex laundry room, where he had little to no radio reception. When he entered the laundry room he observed two males with marijuana and scales in plain view. He moved in to make an arrest and the males fled. He caught one of them and while patting him down he felt the butt of a pistol sticking out of the back of the his waistband. As soon as he touched it the fight for his life was on. He was eventually able to wrestle the gun away from him and call for help but the male escaped. The pistol was a 9mm semi auto with a do-rag wrapped around the ejection port to catch the spent casings. I guess this officer didn’t need to be armed either.
I can pretty much guarantee that every crazy thing you’ve heard about Toronto has been dealt with by a Toronto Community Housing officer at one point or another. They have a very difficult job to do I sincerely hope, for the sake of these officers and their families, that Mr. Blair and the Toronto Police get a reality check soon and arm them!
Can a police officer still give you a ticket if they’re not wearing their hat?
From my blog, Simon Says. Category: Police Myths
I don’t know how many times I’ve heard people say that a police officer can’t give you a ticket if they’re not wearing their hat or if they did, you can get out of it if you tell the justice of the peace this in court. Well, Simon Says: WRONG!
I don’t know where this idea first came from, perhaps it’s true in some jurisdictions in the United States and people who watched too many episodes of Cops thought it was true here as well, but it’s not. Nowhere in the Highway Traffic Act does it say anything about officer’s being required to wear their hats.
The only thing that even comes close to dealing with the appearance or dress of an officer is found in Section 216 (1), which deals with the power of an officer to stop a vehicle. It says “A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.”
This just means that you have to stop your vehicle for an officer who is readily identifiable as an officer. Even without the police forage cap, you can still readily identify them by their uniform, the flashes on their shoulders, and their duty belt, not to mention the usual presence of a police cruiser. That being said, this section still has nothing to do with the issuance of tickets.
Now you know that it doesn’t matter if an officer is wearing their hat or not when they give you a ticket. So don’t make a big deal of it with the officer and definitely don’t take your ticket to court with that as the only thing you have to say to the justice of the peace – you’ll just look like an idiot and annoy the JP.
Of course, if you just obey the rules of the road, you won’t have this problem at all 
