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Driver to fight ticket after crash, but does he have a case?

Published November 19, 2012
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Eric Lai answers readers’ auto questions every week for Wheels.

Q: Recently, my wife and I encountered a man standing on the far left lane of the Gardiner Expressway westbound. There’s no shoulder or sidewalk there and he was waving wildly.

Unfortunately, we thought it was a suicide attempt, or perhaps somebody on drugs. We only had a second before we were past him, around the blind curve, saw his stalled taxi, braked and tried to swerve (into the next lane), but ended up hitting the taxi at high speed.

The taxi driver claimed his hazard lights were on. They weren’t, but his emergency “bandit” light was on.

I was ticketed under “S. 148 15 HTA” for failing to change lanes to avoid collision, which I’m going to fight in court. The officer even had the nerve to say that I could’ve been charged with careless driving. Can you believe that?

A: Stephen Parker of Pointts (www.pointts.com), a ticket-fighting paralegal firm, replies:

Frankly, I’m surprised that Careless Driving, the usual charge under these circumstances, wasn’t used.

On the ticket, what the reader describes a “1” before the “5” is actually the left bracket (parenthesis). The section number is, in fact, S. 148 (5) HTA.

Section 148 (5) HTA states that “every person in charge of a vehicle or on horseback on a highway who is overtaking another vehicle or equestrian shall turn out to the left so far as may be necessary to avoid a collision with the vehicle or equestrian overtaken, and the person overtaken is not required to leave more than one-half of the roadway free.”

The case law surrounding this charge requires the vehicle being overtaken to be moving at the time of the collision. This obviously was not the case here. Without more information as to the volume and position of any other traffic in other lanes, it is not possible to provide a proper opinion but it certainly appears that this reader has a valid defence.

However, it has to be argued on the basis of the evidence and the law, not emotion. That’s where an experienced, licensed paralegal or lawyer can argue for you.

Eric Lai adds:

The officer initially wrote “left” on the ticket before changing it to “right.” I’d question whether this is permissible as the HTA section specifically requires drivers to “turn out to the left to avoid collision.”

The officer’s decision to lay a charge suggests that, in his opinion, this collision could have been avoided given the visibility, road and traffic conditions at the time. However, the court will ultimately decide whether any charge was warranted.

More from Eric Lai:

When should I report a parking lot crash to police?

Is it illegal to ride facing backwards on the TTC?

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