Careless driving (HTA 131) deal down: lessons I learned
Careless Driving (6 demerit points) seems to be a “favourite” charge among police officers. It is certainly serious enough to get your attention and any plead down to say 2 or 3 points seems a gift. Here is a case where quick action and systemic delay got a very favourable result.
In January 2009 I flipped my new Toyota Corolla while south bound on the Don Valley Parkway. During a moment of inatentativeness my left wheel hit the roadside snow accumulation and pulled left. I overcorrected and wound up in the ditch upside-down on the right side of the DVP. On reflection I believe I was unconscious for a few moments. I crawled out through a broken window. Though I did not realize it at the time I had struck another car on the bumper. No one was seriously hurt. My car was destroyed. The police and ambulance arrived and I was examined. The police encouraged me to skip the trip to the hospital and stay for the interrogation in the back seat of the cruiser. “Let the paramedics go about their business” said the officer. My first mistake. My next mistake was talking to the police and giving a statement. To quote my lawyer”No one ever improved their situation by talking to police at the scene” This was my first accident and first traffic ticket in ten years of driving. For my honesty I was rewarded with a “Careless driving” ticket $325 and 6 points. At the time I didn’t know it but potentially HTA 131 carries a maximum $ 2,000 fine, 6 months in jail and a 2 year license suspension. The officer did suggest that I “fight the ticket”. Duh, ya think?!
I retained a lawyer. We asked for disclosure and in fact filed it with the demand for an early trial two days after the charge. He followed up with four written requests for disclosure which eventually arrived in September. But still no Notice of Trial. As it turned out no Notice was ever received. Late in September a phone call to the prosecutor’s office yielded the information that the trial was scheduled only a week away for the first week in October. A hastily scheduled attendance produced an adjournment to the second week of January 2010. The delay was entirely the fault of the Crown (the officer was a “no show”) my lawyer had already asked (In writing) for an adjournment needing time to prepare the defence and schedule his attendance. This was a Joint request by the Crown and Defendant. But arguably it was inevitable on the part of the Crown because of the officer no show and failure to provide timely advice of the trial. In any case “We are not relinquishing our 11b rights”.
At this point we were 8 months and a few days along. The criteria for a successful 11b motion is a delay, not attributable to the defence of between 8 – 12 months (R v Askov and R. v. Morin), depending on the complexity of the matter. We were just over the “minimum delay goal line”. Arguably the adjournment to January 2010 was a joint request but more the fault of “systemic delay” by the Crown (no witness and no trial notice) than delay by the Defendant. Twelve months would put me solidly into “dismissal territory”; Eight months and a couple of weeks, less so.
The lawyer prepared an 11b Motion. It must be filed no less than 15 days before trial and is a very large and detailed filing. It involves transcripts of all previous trial proceedings, precedent cases, R. v. Stinchcombe (1991) , R. v. Askov , R. v Morin, etc. including relevant sections of the Charter of Rights and Freedoms itself, your own affidavit and a lot of preparation for effective at trial argument. This is not a job for an amateur! This was a serious quasi criminal charge.
The day of the trial and the weeks before were very anxious for me. I took Gravol just before the trial. I did not want to barf on the Prosecutor’s shoes! My lawyer had told me flatly that because of what I said in the police car during the interrogation he could not win the case if it went to trial. The 11b might get the charge stayed if the Crown and more importantly the JP had more than the average legal training, could appreciate the various legal arguments and wouldn’t just dismiss the motion because they “don’t like them”. Unfortunately our trial JP was of the latter variety. Because of the 11b motion the Crown office had sent a “special prosecutor” to handle my trial. We assumed this was because the regular prosecutor was the typical Crown in traffic court, a clerk with legal training, rather than a lawyer. My solicitor estimated the time to argue the 11b Motion at around 2 hours. He believed this Motion and the detailed argument at trial would give us some negotiating power. Turns out he was right.
While we waited for the special prosecutor to arrive and the “legal clerk” Crown handled other traffic charges my lawyer spoke directly to the Police officer (who was in attendance this time). They discussed what charge the officer would be content with. Most Defendants speak to the Crown. Why not go directly to the source? It turns out that he would be content with a HTA charge with no points. No points was his idea. Good news. At first the prosecutor had other ideas. “We don’t plead down Careless to no points.” My lawyer said “Well then let’s see how the 11b motion goes”. I guess the prospect of two hours of legal wrangling that would put a serious dent in the remaining court time convinced her to agree with the officer. They had to search but found:
HTA 151 Non-authorized use of shoulder prohibited sect (5) No person shall drive on the paved shoulder of any part of the King’s Highway except in accordance with this section and a regulation made under it. 2005, c. 26, Sched. A, s. 24.
Insurance wise although this is still a HTA conviction it is a minor one and carries no demerit points.
Always, always, always fight the ticket!
Never, never, never, tell your story to the investigating police officer if it is serious and you think you will be charged. Your Charter rights permit you to do this. Don’t complain. Don’t explain. That said always appear to cooperate with police, just tell them nothing about what you think happened.
Always apply for disclosure and demand an early trial date.
Never minimize the effectiveness of an 11b Motion. Systemic delay is always a possibility.
Always be prepared to negotiate. A significantly lesser charge in hand is worth more than an only possible acquittal of a serious conviction. Approach the charging officer if he is there; get him on board, then talk to the Crown. You might be surprised.
And finally; yes I did spring for a lawyer rather than a paralegal. This was about as serious a charge as it gets outside of Criminal Court. Not a time for half measures. I spent over $2,500 and that was a discounted rate. It was equal to about one year’s 100% insurance surcharge that would have stayed on my policy for minimum 3- 5 years. That is cheap even at twice the price. I hope this helps. Drive carefully. Keep quiet.