FTC ticket: rear-ended the lady but no damage

Hi,

I'd like to start this off by saying for the last two weeks I have been browsing the forums. I'm trying to prepare myself for an early resolution meeting with a prosecutor (in Brampton, if that matters). I have a clean record and as a teacher, I always do my best to follow rules (trying to practice what I preach!)

On December 4, 2014 I was preparing to turn right at a very busy intersection. This intersection is one where you yield to oncoming traffic when turning right (as there is a dedicated turning lane). This lane is also beside a bus shelter and upon completion of the turn, you are sharing a lane with oncoming traffic. I was preparing to turn right and came to a complete stop knowing that one vehicle was ahead of me. I saw the vehicle begin to drive and began to accelerate slowly. While accelerating, I also quickly scanned the intersection to my left to ensure that upon my completion of the turn I could safely merge into oncoming traffic. While I did my quick check, the car in front of me slammed on their brakes abruptly and I was unable to stop without hitting their car once I realized what was happening.

I rear-ended the vehicle ahead of me. It was my fault because I assumed a car that began moving would not need to suddenly stop. I knew there was no damage as I couldn't have been going more than 10km/h. We both pull over. I assess that there is no damage to either vehicle. An older lady comes out of her car and I ask her if shes ok. She seems fine then suddenly changes her expression and starts saying she is having difficulty breathing. She then tells me she had to slam on her brakes because "cars were whizzing by so fast". I ask her to sit on the curb and ask her if she wants me to call 911. She says yes. By this time a random tow truck driver has stopped, sees there is no damage and asks me why I am calling 911. I tell him the lady said she's having trouble breathing and he gives me a look. He takes off after realizing he won't get paid and he's the only other potential witness. No information was taken from him.

Of course the cops show up with the ambulance and the lady is suddenly fine. She tells the cop that I am so nice for being concerned about her. At this point I know I am going to face some kind of charge. The cop tells me she has to charge me with Follow too closely 158 (1). The cop "strongly suggests" I select option 2 on the back of my ticket.

After lurking many posts I feel like I understand more that an accident (even with damage) doesn't necessarily prove FTC. I saw some references to R. v. Haddad 2009 and R. v. Borg (2005) which was also cited in the same case. Would this be what I would cite should I proceed with a trial? As well, I don't know what evidence the prosecutor has against me, is this disclosure given me the day I appear for the early resolution meeting? Or do I need to request it now even though I'm not sure I will go to trial? Is it worth it to accept a charge like "start from stopped position, not in safety" at this point? I sincerely appreciate any feedback!

Did you select an option already? What is option 2 on the back of your ticket?

Yes I did select option 2 much earlier and when I was much less informed I'm afraid. For my municipality it is early resolution meeting with a prosecutor.

Many many cases have been thrown out because officers have laid FTC in rear-end collisions. The appropriate charge should have been Careless Driving. Just because there was a rear-end collision, doesn't mean the driver was following too closely.

I don't believe they have evidence of FTC, based on what you described. You should not have picked Option 2, it's a conversation with the prosecutor where he'll ask to amend the charge... most likely to S141(5) - Left turn ‑ fail to afford reasonable opportunity to avoid collision; it carries the same fine as FTC but carries 3 pts instead of 4pts.

Don't accept any deals, until you review the crown's disclosure.

It's in your best interest to choose a trial date, the other driver who's the crown witnesses will have to appear at your trial. In the GTA, especially Brampton witnesses regularly fail to appear. If the other driver does not appear, the charge will get dropped in Brampton.

If you don't feel comfortable going about it on your own; you may also want to secure legal counsel to fight the charge.

Thanks for the reply! I didn't ask for disclosure and when I checked the form it said I need to allow 6-8 weeks for processing

Meeting with the prosecutor tomorrow! I am hoping to ask for a court date and time to get disclosure.

VERY IMPORTANT: Do NOT mention anything to the prosecutor about the charge being the wrong one!!

You do not want to give them a heads up about any issues because they can amend/change the charge if they know about it. Maybe they will figure it out themselves, but do not help them out by pointing out their mistakes to them.

Thank you! I'm going to try as little as possible!

Update from today:

The prosecutor said "you don't want to plead guilty to this. You should've gotten a careless charge. You should take this to trial. Make sure you ask for disclosure."

Well that is good and bad!

The good news is the prosecutor even told you not to plead guilty. Get a trial date and then request disclosure and then you should be able to get off with a little research. There is some case law that I read (don't know it off the top of my head) that says exactly that a rear end collision is not necessarily following too closely. You should be able to get off!

The bad news is that the prosecutor might amend the charge to careless and then you will have to deal with that. If you go to trial and they amend it at the trial date you can ask for an adjournment because it is now a completely different charge.

But anyways deal with the following too closely first and only worry about the careless if they charge you with it.

I remember reading something like rear end collision is not prima facie evidence of follow too closely. I will definitely ask for an adjournment if they change the charge on me. I am hoping I can get disclosure in a month. If I get it the day off I don't feel like I will be prepared and will likely have to hire representation!

I just happened across this, so here is an article about Careless Driving if it goes that far:

http://www.trafficticketparalegal.com/e ... standings/

And also R v Hollyoake 2010 ONCJ 578:

http://www.wejustwin.ca/wp-content/uplo ... CJ-578.pdf

The only relevant decision I was able to find was this. I would check the cited decisions in this case to help prepare your defence.

If you need any help finding full decisions not on CanLII, send me a pm and I'll send you what I can find.

Toronto (City) v. Baillie [2007] O.J. No. 2178

119 In R. v. Walsh (1960), 33 W.W.R. 91, 130 C.C.C. 201, 1960 CarswellSask 45 (Sask. Mag. Ct.), it was held that not keeping a proper lookout does not necessarily mean the offence of following too closely had been committed when there is no evidence of the distance between the two vehicles immediately before the collision:

Only one thing is clear from the cases I have read, and that is that each case must be decided on its own facts. Here, I think, the deciding factor is that there is no evidence that the defendant was following too closely. He may not have been keeping a proper lookout -- that is more likely the case, since his passenger yelled "watch out" and it was then that the defendant slammed on his brakes. Only the witness, LaPlante, testified to the distance that the defendant was travelling behind the small truck -- LaPlante drove the first car. His evidence was not reliable on other points and this estimate was made by viewing the vehicles in his rear-view mirror and it seems to me to be only a guess. The other two Crown witnesses who were in the small truck did not testify as to the distance the defendant was behind them, in fact they did not notice him behind shortly before the accident. There is no evidence to indicate the distance, or to contradict the defendant, except that of LaPlante, which I cannot accept as accurate and, therefore, I must dismiss the charge.

121 In R. v. Ouseley, [1973] 1 O.R. 729, 10 C.C.C. (2d) 148, 1973 CarswellOnt 837 (O.C.A.), the court opined that the fact two vehicles had collided in a rear-end collision does not necessarily prove that the offence of following too closely had been committed, where there is no evidence of the distance separating the two vehicles:

At the trial it was proved that the respondent's car struck another vehicle which it was following, and that the driver of the lead vehicle had occasion to slow down gradually and stop just before the impact. There was no evidence whatever, apart from the impact, as to how closely behind the lead car the respondent's car was being driven at any time. As part of the Crown's case there was introduced a statement by the respondent to the following effect: "I saw her brake ahead of me. I braked and started to skid and hit her." There was also evidence that the surface of the street was icy and not in good condition.

Mr. Campbell, on behalf of the Crown, asserts that in those circumstances the Crown had made out a prima facie case. We do not agree. His proposition would go so far as to suggest that on each occasion where a rear-end collision occurs, at some fleeting second, the following car committed an offence under s. 105(1) of the Highway Traffic Act, and that nothing more need be proved than the fact of the collision. In our view, the impact itself would sustain logical inferences other than that the respondent was following too closely and contravened s. 105(1). The trial Judge held, and we agree with him, that the collision may have been caused, quite logically, by inattention on the part of the respondent, or by excessive speed by him. He was not charged with careless driving, however, and we can see no reason why he should have been convicted of this offence, where there was no evidence whatever as to the distance which separated the two cars until the actual impact.

Thank you both for your research and feedback! I have some reading to do

@iFly55 - That is good case law... I think that is the one I had read before as well.

@thisiskat - So with the above case law and your own testimony, I think it would be hard to prove following too closely as you were at a stop (which all cars are close together at a stop) and then were going less than 10 km/h at the time of collision (especially if you can say they were X number of feet ahead of you before you started to move). I am not sure of the specifics though on how they determine what following too close would be based on your speed and distance... that is the next thing to figure out.

Once I have disclosure I feel like I can build my argument. I'm really hoping I don't get it the day of, I'd really like some time to prepare my argument!

Does it make a difference jsherk that I was stopped at a yield and not a stop sign? In your opinion?

The issue with Following Too Close is whether you were too close or not for your speed. So I don't think yield or stop really matters. If you come to a full stop yourself and then waited for the other vehicle to start moving and did not move yourself until it was X number of feet away, then this is good because it proves there was seperation and you were not too close. And also if you only took your foot off the brake and let the car start to roll without hitting the gas at all, then this would suggest you were going very slow like only a few km/h.

You have been really helpful, thank you for the feedback!

@thisiskat

Are there any independent witnesses who can testify to the distance between your vehicle and the one you struck?

Just as another thought, the only witnesses will be you and the other driver.

So if the other driver does not show up to court then do NOT testify against yourself and the charge should be dropped.

If the other driver does show up, then the prosecutor will ask them a bunch of questions about what happened to try and establish their case against you. You can then cross-examine them. Depending on what they say, you may decide that should testify because your testimony is significantly different from theirs and will help bring their testimony into reasonable doubt. But you might also choose NOT to testify as well... if their witness can not testify to the distant, then you do not want to testify against yourself and actually help the prosecutors case.

Most of the people I see go to court and represent themselves end up testifying against themselves, and if the prosecutors witness had not already met all the elements then they end up driving the final nail in their own coffin. They would have been better off not saying anything at all!

So it is important to know the elements the prosecution must prove, and then have a check list and go thru them as the prosecutor covers them in the examination of the witness. Then you cross-examine their witness and then you decide whether it will be to your benefit or not to testify.

For a Follow Too Close your testimony is probably okay. But for a Careless Driving charge, your testimony by itself would probably be enough to convict you.

Keep us updated with the case.

There is no independent witness.

I'm hoping with the month notice the other driver won't show up at all. Once I get disclosure I can know more about what the prosecution will try to prove right?

thisiskat wrote:

There is no independent witness.

I'm hoping with the month notice the other driver won't show up at all. Once I get disclosure I can know more about what the prosecution will try to prove right?

I ask because if they do not, then there is nothing to answer - there is case law out there, I don't recall which, that clearly states a witness is required who can testify to the distance between cars - if there isn't you're clear.

Most prosecutors know this and will immediately withdraw at the trial date - get your disclosure - examine it for a witness who is not the driver of the vehicle you struck - and show up. If that prosecutor refuses to withdraw, go with the trial and listen carefully - when the crown has concluded its case, then it's your turn - bring a motion for 'directed verdict' and present your case law. That should be the end of it.

Do not, ever, count on the other driver or a witness not showing up.

Wow thank you Karra, you laid that out wonderfully for me! I really appreciate it

Another good Careless reference I found basically says the courts have frequently dealt with the legal question of when does a temporary lack of attention become careless and it is decided that momentary inattention is excusable:

R. v. Richards, 2009 ONCJ 651 on Canlii http://canlii.ca/t/27sj1 says:

[16] In R. v. Beauchamp (1953), 16 C.R. 270, the Ontario Court of Appeal stated the standard for careless driving is a constantly shifting one which depends on the road, visibility, weather and traffic conditions as well as other conditions which an ordinary driver would take into consideration.

In the matter at bar, clearly the visibility was limited by the fog. Nonetheless, Officer Nelson acknowledged that his visibility extended to 50 metres which provided a limited range of view for Ms Richards. While the road was wet from the fog, no evidence suggested Ms Richards could not stop due to road conditions. No evidence was led there were adverse traffic conditions. Officer Nelson testified that he was travelling at 60 kph and Ms Richards at approximately 40 kph. Therefore, Ms Richards was driving at a reasonable speed for the conditions of limited visibility and wet roads which existed that night. In my view, it cannot be said that she was driving "without due care and attention or without reasonable consideration for other persons using the highway".

[17] In R. v. Ereddia, [2006] O.J. No. 3421 (OCJ), Justice Fairgrieve also commented on the standards for a conviction of careless driving. He stated:

(6) The offence of "driving carelessly", created by s. 130 of the Highway Traffic Act, is defined as driving on a highway "without due care and attention or without reasonable consideration for other persons using the highway". The law has been clear for decades that in order to make out the offence under s. 130, the driving must be of such a nature that it amounts to a breach of one's duty to the public and is deserving of punishment: see R. v. Beauchamp (1953), 16 C.R. 270 at p. 278 (Ont. C.A.). A driver is not held to a standard of perfection, and a mere error of judgment is not necessarily sufficient to establish the offence: see R. v. Wilson (1971), 1 C.C.C. (2d) 466 (Ont. C.A.). Careless driving, generally speaking, requires proof of a departure from the standard of care that a reasonably prudent driver would have exercised in the circumstances, and normally involves, I would think, conduct that includes other less serious Highway Traffic Act infractions.

(7) Mr. Klaiman, counsel for the appellant, also referred in his factum to the pertinent judgment of Killeen Co. Ct. J. in R. v. Namink, [1979] O.J. No. 317 (QL), where, at para. 10, the learned County Court judge stated as follows:

It is trite to say that this is a quasi-criminal charge, and that to make out a charge under this section the evidence must bespeak conduct deserving punishment in the way of a conviction under this section of our Highway Traffic Act. Mere momentary inattention, or a simple kind of error of judgment, does not bespeak the kind of conduct over which the net of this section is cast."

Thank you jsherk, you have provided invaluable feedback!