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Thursday, February 21, 2008

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.

Posted by Adam T. Yoshida on February 21, 2008 in Crime | Permalink


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Now if Ezra is to be believed, this process should have cost you tens of thousands of dollars in legal fees, like his battle has supposedly cost him. How is it possible that you could do it so inexpensively? You really should advise Ezra on how to win a case and save a buck while you're at it.

Oh yeah. I almost forgot. Don't take your "victory" too seriously. Sometimes they drop cases just because it is too much of an annoyance to deal with whiney scofflaws. You probably only "won" based on their desire not to have to deal with you, not any merits of your claim.

One last thing: If there are no cars on the road and it is a clear day, can I drive on the left-hand side if I feel like it? Is that OK in your books because I "doubt if the cop would have been able to enumerate the supposed persons that I posed a danger to"? How about driving drunk and on the left side on a clear day with no one else on the road? Your idea of justification is telling. "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." Well, then. Carry on.

Posted by: Fact Check | 2008-02-21 5:36:23 PM

Bravo Yoshida. I do also believe that it is okay to drive on the left side of the road if no one else is on it. ever driven on a gravel road? while drunk? probably just a bad idea, but if you're willing to kill yourself, well. . . no harm done. Don't act like you never dream of using the sidwalk during rush hour.

Posted by: Abaddon | 2008-02-21 6:13:23 PM

Ok Abaddon !

Posted by: Severo | 2008-02-21 6:18:09 PM

I didn't face massive fines, like Ezra did. I was going into a court of law, not a star chamber.

Posted by: Adam Yoshida | 2008-02-21 6:43:04 PM

Interesting case. I've done the same thing as Adam many times -- including this morning, when I cut through the unoccupied lot at Coquitlam Centre to get a direct bead on the Starbucks. If this broke the law, then so did the snowploughs that regularly cleared the lot this winter -- they didn't stay between the lines.

Anyway, I also congratulate Adam for fighting and winning this.

Posted by: Terry O'Neill | 2008-02-21 7:15:00 PM

Nicely done, Adam! I especially like your advice at the end. Do fight the state, especially on silly tickets like the one you got.

Posted by: P.M. Jaworski | 2008-02-21 8:59:12 PM

The charge was stayed. It should have been dropped. The law needs to get its act together.

Posted by: dewp | 2008-02-21 9:53:44 PM

dewp is right that the charge should have been dropped. Of course they wanted to save face, thus the charge was stayed.

It is unbelievable that they even have the right to treat private property - a parking lot - as a highway or public road. In any case kudos to you Adam for contesting this over zealousness of the cops. The amount of time they spend on this type of thing along with their seat-belt checks and other road side checks should be better spent dealing with real criminals.

Posted by: Alain | 2008-02-22 12:31:33 AM

Great job Yoshida. Smash the state.

I fight traffic tickets professionally in Calgary. Most people don't have a clue about their options. I can't speak for BC, but in Alberta a parking lot where the public is permitted is defined as a highway.

Speed estimations have been thrown out by a lot of judges for not being scientific.

Your charge in Alberta would have been careless driving, which is a pattern of bad driving eg speeding + not signalling + cutting people off. They didn't have that. But, you beat them on a charter application anyway.

Great job.

Posted by: Veteran | 2008-02-22 11:43:14 AM

My son was a victim of a trumped up traffic ticket recently. These people think they can lie, change their stories, invent witnesses, whatever. They sure back down when you can afford a lawyer.

Our problem was they still put a flag on his record (they called it a warning) and no amount of fighting can erase that.

Posted by: dp | 2008-02-22 11:51:17 AM

dp: If you're in Alberta that isn't true. Get an $20 abstract and you'll notice that even a lot of minor convictions (fail to produce registration) won't show up. If it does, get a hold of me and it'll disappear in a hurry.

Posted by: Veteran | 2008-02-22 4:57:15 PM

You guys are mostly idiots. Do you actually believe that the policeman has nothing better to do then write tickets. Do you actually believe, that when that officer goes home at night, he really cares how many tickets he wrote. You all believe that this is a personal attack on you. It isn't. You just drive like idiots, and were caught. None of the officers get a "bonus" for writing lots of tickets. What they get is additional paperwork, and less time off the road. And when dumb assess like yourself, who know you were wrong, take it to court, it is even more paperwork, and wasting the courts time.

A parking lot is for parking! Man, don't you understand that! It is not your personal short cut. Imagine, if everyone started driving like your dumb asses.

Posted by: Nicole | 2008-12-02 10:40:42 PM

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