Law & Disorder: Linda Mosher hearing to resume in three months

Councillor Linda Mosher was charged with the wrong offence, says her lawyer, Gavin Giles. Mosher is charged with improperly changing lanes on May 7, 2013, in an incident that led to the injury of a bicyclist. But at best, argued Giles at a hearing last night, Mosher could have been charged with an improper turn—but he would contest that as well. Giles asked Justice of the Peace Kelly Shannon to make a directed verdict that the improper lane charge doesn’t apply, effectively ending the matter. Shannon said he’d consider it, and issued a continuance in the hearing to March 25.

This entire matter has turned into something of a farce. Mosher faces a fine of $222.41. Even if they think they are innocent, most people simply pay the fine and are done with it—the time and hassle of fighting a ticket just aren’t worth it. But Mosher has gone to extraordinary lengths to fight her ticket. She’s hired the high-profile Giles to represent her, no doubt at many thousands of dollars. The cost to the justice system must be enormous—last night, the courthouse stayed open an hour past its normal 9pm closing time, so the bailiff, court reporter and other courthouse staff were making overtime. There are additionally the crown prosecution’s costs, and myself and another reporter were present. Councillor Steve Adams showed up as well because he and Mosher are good friends, and that’s what friends do when a friend is facing injustice, ya know?

Mosher certainly has every right to fight a ticket, so no taking that away from her. But had she just paid the fine and mouthed some words of contrition, that probably would’ve been the end of it—we all make mistakes, accidents happen, yada yada. Heck, Reg Rankin drunkenly drove into his own house, and everyone’s forgiven him for that. But by fighting this ticket, Mosher has managed to make all the ugly details of this incident reportable. And Oh.My.God.

White SUV

To back up, let me explain how I discovered Mosher’s alleged infraction.

Last December, there was a horrible accident at the corner of Agricola and North Streets. As the Chronicle Herald reported:

Halifax police are gathering some information but have yet to locate a white sport utility vehicle involved in a hit-and-run collision Wednesday [December 11, 2013].

[…]

Two women suffered serious injuries in the incident, which took place just after 2 p.m. The victims were walking near the intersection when the SUV, which was northbound on Agricola Street, hit a car that struck another car. 

The second car spun out of control and hit the women. One was knocked flying and the other was pinned between the car and a utility pole.

Both were rushed to hospital, where they remained Thursday. 

The woman who was pinned has more serious injuries. 

“A lot of broken bones, internal injuries and the like,” [police spokesperson Pierre] Bourdages said.

For now, investigators can only speculate about why the driver fled the scene, he said.

“From the top of my head: the vehicle could have been stolen, the driver might have been impaired, the driver might have panicked, the driver might be wanted.”

For a few days, the white SUV was a mystery. How could it simply disappear in the densely populated north end, when there are only five routes off the peninsula, all of which are heavily monitored by video cameras?

Turns out, the police said the white SUV thing was all a mistake:

Halifax Regional Police has located the vehicle and driver initially believed to have been involved in the December 11 collision at the intersection of North and Agricola Streets that resulted in two pedestrians being struck. 

At this time, in light of new evidence, police do not believe this vehicle was directly involved in the collision. Investigators are continuing to work to determine the circumstances surrounding this incident. 

But between the day of the accident and the day the police said the white SUV was a red herring, I was all about that white SUV: the thing couldn’t just disappear, I thought, it had to be somewhere. So I spent a couple of days walking around the north end, looking over fences, into back yards, peering into garage windows, and tweeting about my search throughout.

And one night after my white SUV searching escapades, I got an email from an anonymous tipster: back in May, the emailer said, there was another incident involving a white SUV just a block west of the December incident, at Robie and North Street. In the May incident a white SUV hit a bicyclist and drove away. And, said the emailer, that white SUV was owned by a city councillor.

It took some doing, but I finally tracked down the story, and wrote about it for The Coast:

As Halifax Regional Police spokesperson Pierre Bourdages describes it, [Halifax city councillor Linda] Mosher hit the cyclist with her white SUV, causing “minor injuries,” and left the scene without stopping, driving north [it was actually south] on Robie Street. Another driver, who had witnessed the incident, followed Mosher until she “pulled into a garage,” says Bourdages. The witness informed Mosher that she had struck a bicyclist.

At that point, Bourdages says Mosher drove to the police station on Gottingen Street. She was given a ticket for a motor vehicle infraction for “Changing Lanes Unsafely,” which comes with a fine of $222.41. Mosher was not charged with leaving the scene, because she said she did not know she had hit the bicyclist, says Bourdages. Despite an injured bicyclist, and at least the appearance of a hit-and-run, police did not publicize the incident when it happened.

Mosher sits on the Board of Police Commissioners, the body that oversees the Halifax Regional Police Department, but Bourdages says the May 7 incident was not treated any differently than any other similar “summary offence” tickets. A summary offence is an infraction, not a criminal charge, and those receiving them can simply pay the fine without going to court. Reached for comment, Mosher says she is contesting the ticket, therefore won’t discuss it further because the matter is before the courts. 

Police policy has been to not make public the names of people—including police officers—charged for summary offences. However, as a result of this article, that policy has changed. When The Coast began investigating the May 7 incident, police declined to make Mosher’s name public, but we asked for the legal justification for withholding the name, and the department could find none. From now on, says Bourdages, police will make public the names of those issued summary offence tickets “when asked.”

I’ve subsequently been told that Mosher paid for the bicyclist’s physiotherapy.

Mosher contested the $222.41 ticket, and got one court delay for medical reasons (she was given medical leave from her council duties as well) and a second delay so that her newly hired lawyer, Giles, could get up to speed on the case.

Oh, I still think the Agricola/North white SUV story is odd, but there’s no indication that it involves Mosher—the white SUV said to be involved in that incident (and then not involved) was of a model and year completely different from Mosher’s white SUV. It was just dumb luck that Mosher also has a white SUV.

Allegations against Mosher

Last night, before we got into the hearing proper, Giles gave an impromptu lecture to the courtroom, intended for the bicyclists who were attending as spectators—all four of them. He told all assembled that he is a bike rider, an advocate of bike safety, and has “probably written more op-ed pieces about bicycling than everyone in this courtroom combined.” The judge thanked Giles for his insight and talked a bit about the joys of an open court. We in the gallery were properly edified.

Crown prosecutor Rick Woodburn then called three witnesses: Karen MacLean, Nicholas Wilkinson, and Nicole Arsenault.

Karen MacLean testified that she was driving on North Street towards the Macdonald Bridge, behind a white SUV. The traffic light at Robie Street turned red, and cars backed up as far as Clifton Street, which MacLean estimated is about 20 car lengths from Robie Street. The white SUV stopped just past the Clifton Street intersection, but MacLean stopped some distance back to keep the intersection clear for turning cars.

MacLean said that two bicyclists passed her to the right, near the curb, and then passed the white SUV, also on the right. She said the light at Robie turned green, and all the cars in front of the white SUV travelled through the intersection, but the white SUV didn’t move, for what she estimated was between 10 and 30 seconds. “I was just about to blow the horn,” she said, when the white SUV “revved its engine” and took off. Very close to the intersection, the driver of the white SUV turned on the turn indicator, and swung slightly to the left before turning right. At that point, the first bicyclist was just entering the intersection and the SUV clipped the bike, sending the rider tumbling to the ground.

Having seen the accident, MacLean jumped out of her vehicle to assist the bicyclist, but he seemed to be OK. “I’m going to follow that car,” she said. “What’s the point?” the bicyclist told her, but she followed the SUV anyway. She said she followed it to a garage, where she got out, tapped on the window of the vehicle and said, “you know you hit a bicyclist?” MacLean testified that since she grew up in Spryfield, she recognized the driver as councillor Linda Mosher. The very first thing Mosher said, testified MacLean, was “I wasn’t texting!” This somewhat contradicted MacLean’s written statement, which said that Mosher had said “I wasn’t on the phone!” but MacLean said that she was now sure it was “texting,” not “on the phone.”

It wasn’t discussed at last night’s hearing, but at a recent meeting of the Police Commission, Mosher talked about her cell phone use while driving. As I reported afterwards:

At the meeting, councillor Linda Mosher wondered aloud if there was a connection between the new requirement to dial the 902 area code and the increase in pedestrian incidents. She explained that before the area code requirement, she could push a single button in her car, and the car would dial up Steve Adams—her example, not mine—and she could have a conversation with him, presumably hands-free. But after the change, for some reason the system doesn’t work beyond Fairview, and she has to manually use her phone to dial all ten digits. She presumably does this on the side of the road, not while driving, but I understood her to mean that other less scrupulous drivers are barrelling down the road, phone on lap, typing in 10 digits. I don’t know… maybe? For some reason, Mosher got upset with me when I reported this on Twitter, but I stand by it: what I’ve written above is the gist of what she said at the police commission.

Anyway, a couple of other interesting points came out in MacLean’s testimony. First, she is married to Don MacLean, a superintendent at the Halifax Regional Police Department, one of the highest-ranking officers in the force. MacLean said she called her husband to ask what she should do, and Superintendent MacLean said she should call the incident in.

Another interesting remark was that after she confronted Mosher, Mosher “called her superintendent.” If true, I find this odd behaviour on Mosher’s part. See, a police superintendent is assigned to each city councillor—Mosher’s is Cliff Falkenham. The relationship is intended as a sort of informal liaison between the department and politicians for municipal issues related to policing; the superintendent is not intended to be a personal representative of a councillor facing charges. It’s unknown what, if anything, Falkenham told Mosher.

MacLean is dyslexic, so there was much confusion over directions. She had written in her statement to police that she was travelling north on North, an east-west route, and she had written that Mosher had swung slightly “right” before turning right. “I’m not good at east-west-north-south,” she explained, and “I get my lefts and rights confused.” But even so, she was a very credible witness—the wife of a high-ranking cop, and a successful professional in her own right, in property management.

Nicholas Wilkinson is the bicyclist who was hit. Nicole Arsenault is married to Wilkinson and was the bicyclist following behind him. Both worked at the Nova Scotia Nature Trust office on Agricola Street and regularly biked to work, travelling up North and then turning right on Agricola.

Wilkinson’s and Arsenault’s testimonies were nearly identical. Both said they were riding up North and had stopped behind Mosher’s vehicle, but after the light turned green Mosher didn’t move, so they passed her. Both heard Mosher’s vehicle zooming up from behind them, and of course both saw the accident, Wilkinson as the victim and Arsenault as the horrified witness behind. Both said that Wilkinson shook off his injuries and continued to work, where he called the police to report the incident.

The only significant difference between their testimonies was that Wilkinson said he was travelling at 28 km/hr. On cross examination he said he didn’t have a speedometer on the bike, but he does on his other bike, and so he can estimate speeds well. Arsenault said she was travelling at 15 km/hr, and when Giles asked on cross-examination if she might have been travelling as fast as 30 or 40 km/hr, she answered “I’m not capable of 30.” Giles seemed to suggest that 28 km/hr was too fast for what he repeatedly said was a “busy” intersection, but the posted speed limit is 50 km/hr.

Giles asked both Wilkinson and Arsenault if they had used a horn or bell to warn drivers they were passing on the right. Both said no. “No bell?” Giles asked Wilkinson. “No,” he replied. “Bells are for geeks?” asked Giles. “You want me to answer that?” Wilkinson replied, before saying that he thought no, bells are not geeky.

Giles’ cross-examination of MacLean was particularly bizarre. He entered a bunch of photos of the Robie/North intersection as evidence and said he had taken the photos himself, one batch taken using an iPhone while riding his own bike through the intersection, and another batch “taken from my iPad while I was driving” a pickup truck. Giles seemed to be admitting to violating several traffic laws himself, but the judge let it pass. The photos were taken in the last few weeks, at a different time of year and a year-and-a-half after the incident, so I’m not sure what they were supposed to be illustrating, but we in the gallery were have great fun with it—working on our second hour of of highly paid lawyers battling over a $222 traffic ticket, the hearing was beginning to feel like the most absurd episode of Law & Order ever made.

This is the point where I tell readers that while all the above reporting is accurate, a judge has rendered no verdict in the case, and so the allegations of the witnesses are just that, unproved allegations. The presumption of innocence remains.

The legal argument

After cross-examination, the lawyers chased the witnesses out into the hallway, and Mosher followed along as well. The judge looked around the suddenly empty courtroom and mumbled something about taking a break. “Don’t get up,” he told us in the gallery, as he headed out to the washroom.

After a while court reassembled, but the hour was getting late. Shannon suddenly remembered that he was also the on-call JP for the evening, so if the cops were to need an emergency search warrant to bust a grow-op or whatever, his phone might ring and he’d be called away.

Giles proceeded his motion for a directed verdict. He cited a couple of cases in northern Ontario, one of them involving the horrible death of man run over by a truck. But I long ago learned that reporters watching in the gallery are in no position to follow case citations closely, so we’ll just have to wait for Shannon’s ruling to understand the full legal argument.

The gist of Giles’ argument, however, is that since there is only one lane in each direction on North Street, and there is also only one lane on Robie in the southward direction from North (the direction Mosher had turned), it is impossible for Mosher to have made an improper lane change.

Mosher was charged with violating Section 111 of the Motor Vehicle Act:

As Giles reads the law, an improper lane change involves a situation where there are two or more lanes travelling in the same direction, and the driver moves from one to the other lane without care. It took him half an hour to make this argument.

Woodburn, the prosecutor, for his part said that when he first took the case (he’s the second crown attorney to handle the Mosher file), he too thought that Mosher may have been mischarged. “But then I read the legislation,” he said. And, from his point of view, section 111(b) is what applies—you’re supposed to stay in your lane until it’s safe to leave it.

“It doesn’t matter if there’s only one lane,” he said. “Councillor Mosher should’ve stayed in her lane—that lane going straight, through the intersection and continuing along North Street towards the bridge—until it was safe for her to leave it.” And, he reasoned, making the turn onto Robie was indeed leaving her lane.

Shannon, the judge, said these were interesting arguments and he’d need to ponder upon them for a while. The hearing will need to resume at a later date, he said, and at the point either he’ll grant Giles’ motion for a directed verdict and Mosher will be a free woman, or he’ll reject the motion and Giles will be free to mount a defence, if he so chooses.

Shannon then suggested a continuation date of January 15, but Giles said he would then be handling an honest-to-god important case, not a battle over a traffic ticket but rather one involving the dissolution of a medical practice involving millions of dollars in assets. Everyone fumbled around with their calendars for a while, and finally hit upon March 25 as the first clear date for all involved.

The wheels of justice turn slowly, but grind exceedingly fine.

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