The Due Diligence Defence

Are stop sign offences absolute or strict liability offences? If you don't know what these are, you should read Step 5.

According to Montréal (Ville) v. Maione, 2004 CanLII 58320 (QC C.M.) they are absolute liability offences. But more recent jurisprudence suggests otherwise. Step 5 provides extensive information about how to establish a strict liability offence and then submit a due diligence defence.

Basically you will establish that the offence is a strict liability offence based on the language of the legislation. You will then argue that you believed you came to a complete stop. You always obey stop signs and are diligent about stopping and proceeding with caution. As the law requires you to stop only momentarily, you believed you had done that.

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What the officer observed will be different than what you perceived to be reality in your vehicle. If the only issue at bar is that the vehicle did not come to a complete halt, it is not worthy of the courts attention to quibble over the minutia of a complete stop. If the intention of the driver was to come to a complete stop and proceed with caution, and he believed that he had done so, then he is morally innocent.

This is completely different than a case where an individual does not even slow down but drives through a stop sign or exhibits only the slightest decrease in speed. If the speed of your vehicle was so slow, that you perceived it to be stationary, it clearly exhibits your intention to stop at the sign and proceed with caution.

The argument above is even stronger if you can get the officer to admit that the vehicle "almost stopped" under cross-examination. That is, get him to admit that it was not a full stop but very close.

Example Cross-Examination

Q.  Were you facing the vehicle as it approached the intersection or were you off to the side?

A.  I was parked at the corner, off to the side.

Q.  Were you visible to traffic as it approached?

A.  No. (He may say yes but get him to admit that traffic could not see him from a distance.)

Q.  Did you see the vehicle slow down?

A.  Yes but it didn't stop at the sign.

Q.  We'll get to that in a minute. So you saw the vehicle slow down?

A.  Yes.

The driver has slowed down. If he was going to run the stop sign, he wouldn't have slowed down. If he could see the police cruiser, he is less likely to run the stop sign and even more likely to come to a complete stop. By not seeing the cruiser and slowing down, you have established the intention of the driver to stop at the sign on his own volition. Make sure you say this when it's your turn!

Q.  How fast was the vehicle going? (You want the officer to admit the vehicle was going as slow as possible, less then 5km/h would be great!)

A.  10km/h.

If he states too fast a speed, get him to admit that his ability to visually estimate the speed of the vehicle is much worse from the side than it is from in front or behind. Think about it. You cannot be caught for speeding from the side. The cop is always in front or behind. And up above, he's stated that he was hidden to the side of your approach. Push him to admit there can be a margin of error of several km/h. This should bring your speed down to almost 0 km/h.

Q.  Do you think you had a better perspective of whether the vehicle stopped watching from where you were located or did the occupant driving the vehicle have a better perspective?

A.  I would say I did. (If he says you did, he's admitted that your perspective is better than his and your testimony is more valid!)

Q.  So you are in a better position to see if the vehicle stopped?

A.  Yes.

Q.  So the driver may think he has stopped but you could see whether he has or not?

A.  Yes.

You've now got the basis to argue that your perception that you stopped is valid. The cop has just admitted that you could think you have stopped when you have not. And that is the basis of the due diligence defence! Without seeing the police cruiser you started to slow down which shows your intention to stop at stop signs. You were traveling relatively very slowly and you had a (albeit false) perception that you had in fact stopped.