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  1. #1
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    Apr 2013
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    Question Should I Fight My Careless Driving Charge

    My question involves a traffic accident in the State of: Ontario, Canada

    ---

    Hello everyone!

    I am looking for advice: should I go to court and fight a careless driving charge, or allow my paralegal to enter into negotiations for a lesser charge? (Context & details below):

    Last summer (June 2012) I was involved in an accident on the QEW 403 highway in Southern Ontario. I was charged with careless driving and my trial date is approaching in the next few weeks.

    I hired a paralegal shortly after this happened (last June) and as of a few days ago, they received full disclosure of the incident (including the accident report, and statements from myself along with the other individual involved in the collision). The paralegal offered two options:

    1) Enter into negotiation discussions with the Prosecutor for a lesser charge of 'Fail to Turn Out to Left to Avoid Collision’ (2 demerit points, fine of $110).

    2) Appear in court 'fight the careless driving charge' ("all or nothing")

    The accident occurred as follows: the driver in front of me abruptly breaked. We were both in the far left hand lane on the highway. I immediately slammed on my breaks as well, and prior to colliding with the vehicle in front of me, I hit the cement barrier directly to my left. I then slid (at a very low speed) into the back left corner of her vehicle. No one was injured in the accident. The damage to their car was extremely minimal (almost non-visible), whereas the left front-left-side of my car was damaged from colliding with the barrier.

    After the incident, the officer on scene charged me with careless driving but told me not to plead guilty. He made it very clear he was charging me with it because he had no way of charging me with anything else (ie. it was an ‘umbrella’ charge).

    ----

    The paralegal has advised me to appear in court and fight the careless driving charge, as opposed to entering into negotiations for the lesser charge. Below is a conversation I had with the paralegal over e-mail:

    Paralegal: “If you decide to challenge the evidence, the prosecution has the burden to prove the charge beyond a reasonable doubt. There has to be evidence that your driving conduct was without undue care or attention or without reasonable consideration for other driver’s using the highway. The prosecution has a very high burden of proof and based on the statement from the other driver, she had to slam on her brakes travelling at 110km/h because of traffic ahead. You basically did what she did, but because there was a collision, you were charged. The fact that there was a collision does not constitute the charge. The defence of due diligence is applicable in this situation since you had reacted immediately by coming to a stop and swerving to the left shoulder, to try and avoid the collision. If you are able to satisfy the court why the accident happened, the charge should be dismissed.”

    ** Therefore, the other driver involved in the collision admitted in their statement to the police officer that she did slam on her breaks while driving 110km/h. I told the officer the same thing, and after colliding with the barrier (when I realized I wasn’t stopping fast enough), I collided with the rear end of their vehicle causing minimal damage. Again, no one was injured.

    ---- What would YOU do? Take the lesser charge and move on with my life, or try my hand in court, where the charge will either be completely dropped OR I will be charged with careless driving.

    I greatly appreciate everyone’s insight/advice.

  2. #2
    Join Date
    Jun 2006
    Location
    Massachusetts
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    23,891

    Default Re: Paralegal Telling Me to Fight Careless Charge, Should I

    This is a US forum. US and Canadian law are not the same.

  3. #3
    Join Date
    Jan 2006
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    38,531

    Default Re: Paralegal Telling Me to Fight Careless Charge, Should I

    Quote Quoting cbg
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    This is a US forum. US and Canadian law are not the same.
    Give it time cbg, just give it time. The norther border is so much softer than the southern border, and they, generally, speak the same language as we do, other than that "eh" thing.

  4. #4
    Join Date
    Jun 2006
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    Massachusetts
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    Default Re: Paralegal Telling Me to Fight Careless Charge, Should I

    Don't make me come back there...

    Signed, your local Canadian citizen

  5. #5
    Join Date
    Apr 2013
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    Default Re: Paralegal Telling Me to Fight Careless Charge, Should I

    Hey guys! After the fact I realized it was a US forum but I guess it doesn't hurt to ask! I completely understand that the law is different in each country though. Sorry to be a bother guys!

  6. #6
    Join Date
    Mar 2013
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    Default Re: Paralegal Telling Me to Fight Careless Charge, Should I

    I'm not Canadian but I spent 35 years in the insurance industry in the US and I learned a long time ago how to read statutes and apply them to auto accidents and citations.

    The following section of The Highway Traffic Act is quoted in its entirety:

    Careless driving - 130. Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.

    Here's my opinion for the two cents that it's worth.

    The person in front of you stopped suddenly.

    You stopped suddenly and hit the person in front of you.

    That leads me to conclude that you were either driving too fast for conditions or following too closely, either of which is likely an element of negligence but might not be an element of Careless Driving

    I found an article that refers to a 1953 case about Careless Driving. It doesn't give a citation. Maybe your paralegal can look it up.

    http://www.defencelaw.com/careless-driving.html

    To qualify as careless, the Ontario Court of Appeal held in a 1953 case, the driving must be considered a breach of duty to the public and deserving of punishment.

    "[T]he test, where an accident has occurred, is not whether, if the accused had used greater care or skill, the accident would not have happened. It is whether it is proved beyond reasonable doubt that the accused, in the light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances."

    The article goes on to say:

    Several principles have emerged over the years from court rulings on careless driving:

    The standard against which the defendant's driving must be measured is not one of perfection. The driving of the defendant must be measured against a reasonable standard or skill, what an ordinary person would do.

    A momentary lapse or a simple error in judgment is insufficient to justify a conviction for careless driving.

    Where an accident has occurred, the fact that serious injury or death has resulted is not, except in unusual cases, relevant to an assessment of whether there has been a departure from the standard of care which would justify a finding of careless driving.

    Mere inadvertent negligence will not necessarily support a conviction for careless driving. More than a bare act of negligence must be proven.

    It's interesting to note that the state must prove Careless Driving "beyond reasonable doubt."

    It looks like, under Canadian law, you have the possibility of being acquitted based on this little bit of research. I think that the state would have to show ongoing careless behavior for an interval prior to the impact, like if there were witnesses to you driving to fast or riding the bumpers of the cars in front of you. That would be a slam dunk for the state. In the absence of that kind of testimony you might be in good shape.

    Of course, there's no way to predict the outcome. It's up to you to make the decision as to whether to fight it or seek a plea bargain.

    I do suggest, however, that you have your paralegal find several appellate decisions where Careless Driving convictions were overturned (or not) and see what criteria the court applied to the incident.

    That'll give you a better idea of your chances.

  7. #7
    Join Date
    Apr 2013
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    3

    Default Re: Paralegal Telling Me to Fight Careless Charge, Should I

    Thank you for the response adjusterjack. You are clearly extremely knowledgeable on this subject.

    I have read through it on numerous occasions just to have it sink in. I really appreciate you pulling this information together. It follows very closely the rationale and explanation my paralegal is giving me, and as you state... there is a good possibility of being acquitted based off of everything you just said. The paralegal also told me that the other drivers statement did not describe me riding her bumper (which I wasn't), or driving 'carelessly' or erratically around her. Ultimately, it does sound like (based on the disclosed evidence) that it cannot be proven beyond reasonable doubt that I was driving carelessly, and that I did due diligence to avoid the collision.

    Ultimately, I would rather absorb the repercussions of the lesser charge (which my paralegal said is highly likely to be accepted) and not run the risk of getting charged with careless driving (as you said, there is no way to predict the outcome). The charge is too serious take any great risk. That being said, the officer himself said (and others I've talked to) careless driving is an umbrella charge that is difficult to prove. The paralegal also said, having looked at the disclosed documentation, that given my particular circumstance they suggest I do not take the lesser charge.

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