Fail to Drive in Marked Lane – section 154(1)(a) of the Ontario Highway Traffic Act


Ontario Provincial Police Highway Cruiser

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For anyone charged last year and awaiting trial on “fail to drive in marked lane” under S. 154(1)(a) HTA, after having driven onto marked shoulder areas, Stephen Parker of Pointts, a ticket-fighting paralegal firm, provides this important update.

“This charge used to be laid, until a Court of Appeal case last year. A judge presiding in the traffic Appeals Court overturned a conviction under these circumstances but the prosecutor tried taking the matter to the highest court in Ontario to restore the original conviction.

A three-judge panel unanimously denied the prosecutor’s appeal of the acquittal on the basis that there had been no evidence that the crossing was unsafe, stating that apart from evidence that a person did not drive entirely within a marked lane, there also had to be evidence of the movement being unsafe. In the above noted case, there was no such evidence and the appellant, the Region of York, conceded there was none.

Where highway divided into lanes

154.  (1)  Where a highway has been divided into clearly marked lanes for traffic,

(a) a vehicle shall be driven as nearly as may be practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety;

(b) in the case of a highway that is divided into three lanes, a vehicle shall not be driven in the centre lane except when overtaking and passing another vehicle where the roadway is clearly visible and the centre lane is clear of traffic within a reasonable safe distance, or in preparation for a left turn, or where the centre lane is at the time designated for the use of traffic moving in the direction in which the vehicle is proceeding and official signs are erected to indicate the designation;

(c) any lane may be designated for slowly moving traffic, traffic moving in a particular direction or classes or types of vehicles and, despite section 141, where a lane is so designated and official signs indicating the designation are erected, every driver shall obey the instructions on the official signs. R.S.O. 1990, c. H.8, s. 154 (1).

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This precedent-setting decision effectively put an end to police laying the charge of “fail to drive in marked lane” under S. 154(1)(a) HTA for crossings onto marked shoulder areas — unless, of course, a collision occurred as a result.

That said, if there was no signal as the motorist transitioned lanes, then police might still lay a charge of “fail to signal — lane change” under S. 142(1) HTA.”

Q: When a defendant requests disclosure (i.e. copy of officer’s notes) prior to traffic ticket trial but doesn’t get it, what happens?

I can understand if they just give you a later court date if you waited until just before trial to ask, but if you asked a month, or several months prior, is the ticket tossed because the prosecution failed to provide disclosure?

A: Stephen Parker of Pointts replies:

Unfortunately, the disclosure issue is not “cut and dry.”

Most prosecution offices want six to eight weeks to process disclosure requests. But, before a court will stay a charge for lack of disclosure, they will typically want evidence of more than one request. Sometimes two is not enough. Three unanswered requests over a period of months will probably result in the charge being stayed — but not necessarily. Depending on the seriousness of the matter, a prosecutor may well be granted an adjournment to provide disclosure.

This will not affect the defendant’s Charter right to have their trial within a reasonable period of time. The clock is still ticking.

On the other hand, I have seen prosecutors — on their own volition — withdraw charges where disclosure requests have not been met where no explanation could be provided by the officer.

There have been instances where defendants or their paralegals have been told by the court to go outside of the courtroom and look at the officer’s notes and come back and conduct the trial. Where convictions have resulted, the Provincial Offences Appeal Courts have frowned on this practice and usually grant a new trial.

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