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As you can see from my re-Tweets from this week (November 26-29), bus drivers have been in the hot seat.  I can sympathize with them; I hold a bus driver’s license, too.

For professional drivers such as those who drive buses, they have to protect their licenses by seeking legal advice as soon as possible to determine their rights and possible defences.  Not only will a conviction affect their personal driving record (including Demerit Points) and insurance, it will also affect their employer’s CVOR (demerit points for commercial vehicles), the driver’s own CVOR status, and the insurance of their employer.  If the bus driver ever gets separated from the bus company, finding new employment as a bus driver will be difficult or next to impossible as new hires are required to show a driver’s abstract that is free from moving violations.  Therefore, if at all possible, traffic tickets to professional drivers should be fought.

The two cases from this week involve Left Turn ‑ Fail To Afford Reasonable Opportunity To Avoid Collision and Having Care Or Control Of A Motor Vehicle With Open Container Of  Liquor.

s. 141(5)–Left Turn – Fail to Afford Reasonable Opportunity To Avoid Collision

Here is how this portion of the Highway Traffic Act reads:

141. (5)  No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision.

[Demerit Points = 3, Set Fine = $85, $150 in Community Safety Zone]

The word “path” is not defined in the Highway Traffic Act.  It is defined in the common law that “path” includes where the opposing vehicle has been, where it is, and to where it is going.  Therefore, if the collision with the opposing vehicle happens on the side of the opposing vehicle, that counts as being “across the path.”

One must remember that this charge can only occur in an “intersection.”  What if there were traffic lights, and the signal was red or even yellow?  That onus to avoid a collision has to revert to the driver of the on-coming vehicle.

s. 32(1)–Having Care Or Control Of A Motor Vehicle With Open Container Of  Liquor

This section is found in the Liquor Licence Act and this is how that section reads:

Conveying liquor in vehicle, boat

32.(1)  No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. R.S.O. 1990, c. L.19, s. 32 (1).

[Set Fine = $175]

A contravention of this Act does not attract Demerit Points, or affects your driving record or insurance rates.  If there is more than one or two convictions for this offence, however, the Ministry of Transportation (MTO) will get wind of these convictions.

In the events that occurred on November 26 in Innisfil,  a bus full of partiers were drinking alcohol was stopped by the local RIDE program.

The RIDE program, in of itself, is a prima facie violation of your rights to be not arbitrarily detained without reason, but it is saved by Section 1 of the Charter of Rights and Freedoms that, under that analysis, the societal good to get drunk drivers off the road outweigh the infringements of your rights to be stopped by RIDE.  Those infringements of your rights are attributed to the driver, not necessarily to the passengers.

This kind of stop also attracts another Charter right:  your right to be free from unreasonable search and seizure.  Now things get interesting.  Even with a RIDE program check-point, a police officer must have reasonable grounds or articulable cause in which to enter the bus.  The police just can’t step on in because he has a “hunch.”  There is a reasonable expectation of privacy for the occupants of the vehicle.  A driver, a little less.

On the other hand, the police have wide powers in this area of the law.  For enforcement of the Liquor Licence Act, the police can rely on this section contained within the Act:

Search of vehicle or boat

32. (5)   A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. R.S.O. 1990, c. L.19, s. 32 (5).

Reasonable grounds includes, smelling liquor from the door of the vehicle, observing a vehicle driving in an erratic manner suggesting intoxication, or seeing a beer bottle, can, or other liquor container in open view.  Inviting the police officer into the bus can also have the effect of waiving your Charter right against unreasonable search and seizure.

Conclusion

If you have been charged with any of the above offences, please contact me as soon as possible to determine your rights.