I Had a medical condition where i passed out momentarily and rear ended another vehicle.
I was taken to the Hospital by Ambulance and was admitted for 2 days to run tests.
I have found lots of Case Law such as:
R v Ariganello - R v Beauchamp
Im not in a position to hire anyone for financial reasons and will have to do it myself and would like to know when do I present the case law and what part do u present?
Also how many times can you ask for an adjournment?
Please offer some help here...
Asking for an adjournment isn't automatic. You have to have a good reason. Not being ready is not a good reason if you have had access to all the disclosure (evidence) for a good amount of time.
Of course, the downside to your claim is that you'll likely never be able to drive again. If you go on the record with medical evidence that your illness makes you unable to safely drive because you pass out then you will likely be medically suspended from driving. And to have your license ever re-instated will be a very lengthy and costly process (depending on whether they make you do rehabilitation driver training courses). So, be aware of the long-term consequences of what you put on the record.
My Medical condition was determined to be an isolated incident called VasoVagul, I had countless tests done immediate;y after the accident and and was required to Have a Medical form sent into the Ministry so that they could determine if I could continue to drive and it was accepted by the Ministry.
I never experienced anything like this before and am in perfect health now and prior to the Accident.
The condition is caused from sudden stress and lack of nutrients, ( i was running around that day).
I did not Drive with Undue Care and attention or without reasonable consideration for others.
It was not marked pre-emptry by the JP.
Again NO Prior History, perfect Health currently and an Isolated Incident.
If you look at R v Arignello where the defendants conviction was overturned in Appeal court, he had a bad coughing incident and was coughing the whole day, sweating and as he was driving he began coughing violently for a few seconds and had a fainting spell and went off the road and killed a pedestrian who was retrieving her mail at the side of the road.
His License was not revoked.... It was a moment of inadvertance, his eyes close for a few seconds and it happened, it was uncontrollable.
R v Beauchamp:
To support a charge under s. 29(1) of The Highway Traffic Act, the evidence must be such as to prove
beyond reasonable doubt that the accused drove in the manner prohibited by the subsection, namely, without
due care and attention or without reasonable consideration for others. The standard of care and skill to be
applied has been long established and is not that of perfection. It is, I think, correctly stated in Mazengarb,
op cit., at pp. 176-7, as follows:
"The law does not require of any driver that he should exhibit 'perfect nerve and presence of mind,
enabling him to do the best thing possible.' It does not expect men to be more than ordinary men. Drivers
of vehicles cannot be required to regulate their driving as if in constant fear that other drivers who are under
observation, and apparently acting reasonably and properly, may possibly act at a critical moment in
disregard of the safety of themselves and other users of the road.
"But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential
source of danger to other users of the road. ... The question always is 'What would an ordinary prudent
person in the position of the plaintiff have done in relation to the event complained of?'" (Pollock on Torts
uses the term "average man".)
In this case, and in some of the cases to which I have referred, evidence has been admitted to show that
the accused had a good record as a careful driver. Such evidence is not relevant on the issue of guilt or
innocence. As was said by Lord Hewart C.J. in McCrone v. Riding, supra, at p. 158: "That standard is an
objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It
is in no way related to the degree of proficiency or degree of experience attained by the individual driver."
There is a further important element that must also be considered, namely, that the conduct must be of
such a nature that it can be considered a breach of duty to the public and deserving of punishment. This
further step must be taken even if it is found that the conduct of the accused falls below the standard set out
in the preceding paragraphs. This principle may be somewhat difficult to apply, but I think it might be
illustrated by the common example of a motorist attempting to park at the curb in a space between two other
parked vehicles. Frequently one or other of the parked vehicles is bumped in the process. Damage seldom
arises, because cars are equipped with bumpers, but if damage were caused it might well give rise to a civil
action for damages, but it could hardly be said to be such a lack of care or attention as would be considered
to be deserving of punishment as a crime or quasi-crime.
Applying these principles to the facts of this case, I am of the opinion that the appellant is right in his
submission that there is no evidence to justify a conviction. The uncontradicted evidence is that the
appellant looked while coming out of the garage and there was then no motor car parked on the street. He
looked through the back window of the bus and also in the rear-view mirror before backing and then backed
very slowly. He did not see the parked car, apparently because of the length of his vehicle, the position of
his rear window and the relative position of the car at that time. It was 7 a.m. in a small town, when he
might reasonably have anticipated that a car would not drive up behind his bus into a position where it could
not be seen through his rear window in the very brief period of time that elapsed between his comming out
of the garage and his backing up. It was clearly not such a lack of care in these circumstances as could be
considered deserving of punishment. It is perhaps unnecessary to add that had the accident occurred during
a busy time of the day, when traffic might reasonably have been expected, the result might have been
different; nor do I entend to suggest that his conduct was not such as might give rise to civil liability.
The second ground of appeal is that the charge is bad for duplicity. Since this point was not raised in
either of the Courts below, I do not think we should now permit it to be raised in this Court.
Leave to appeal should therefore be granted, the appeal should be allowed and the conviction should be
quashed, the fine and any costs paid by the appellant in the Courts below to be returned to him forthwith.
In any event, if you refer to the decision in Devlin v. Ontario at paragraph 30[a] (referring to section 6 of the CMA Medical Guidelines)---you will see that "There is no need to restrict the driving privileges" of a patient who experiences Vasovagal when its only been an isolated incident.
So, if the MTO does attempt to restrict your licence, you can simply appeal their decision and cite the CMA guidelines (and Devlin v. Ontario (Registrar of motor vehicles)) case. By the way, vasovagal cases have been before the court, so if the court needs corroboration of the disorder, you can refer to various cases that explain the ailment---just do a search on Canlii.
As the MTO accepted the Medical Report forwarded by my Physician, can the Crown attempt to restrict me from Driving if the Charge is to be withdrawn?
Also when searching for more information for Vasovagal, i see lots of information in cases in "Ontario Workplace Safety and Insurance Appeals Tribunal ÃƒÂ¢Ã‚â‚¬Ã‚â€ Ontario"
Should i be looking for HTA cases? Please advise what and how to find please .
thank you in advance.
As for HTA cases dealing with vasovagal, there aren't any reported on Canlii. However, there ARE 6 court cases that mention the disorder. You can view them here. If anything, these court cases serve to corroborate that the illness is a medically recognized one---even the Court of Appeal dealt has heard of it! By the way, paragraph 72 and 74 of the Mussleman case has a blurb on describing some of the symptoms of vasovagal.
Bottom line: I think if you approached the prosecutor with the medical corroboration you have, I would be quite surprised if they continued with pursuing this matter. Undoubtedly, they would just dismiss the case. With such a diagnosis, I think the prosecutor would be hard-pressed to believe they have a 'reasonable prospect of conviction'. Even if the trial does proceed, I would be very surprised if you are convicted since the likelihood that a vasovagal episode occurred will raise reasonable doubt.
So i could use some guidance please..... I return Feb 23rd to set a date for trial.
Question # 1.
Should i provide the Crown with different Cases before the 23rd in hopes she will reconsider and withdraw the charge?
Are the cases below applicable to my Defence?
8821 V MTO ( Appeal)
This case just clearly said that the Driver could not be restricted from driving due to the Isolated episode of Vasovagal.
R v Namink
(11) * No evidence of speed, No evidence of Risk taking and whether the effective cause of this Accident was momentary inattention or.....( i believe it was non medical ) which could not be anticipated, the criteria for the conviction under this section.... ( goes on to explain)
R v Ariganello ( Appeal)
Judge Lesley Baldwin ->
This is a case of Involuntary physical reaction to " Coughing/Choking" episode which through no fault of the Appellant resulted in his eyes closing for a matter of seconds.
MR.JUSTICE DURNO STATED IN THE CASE OF r V kINCH - Reflex O>J> No. 486 (Ont.SCJ) at paragraph 50:
The test for careless driving has remained constant since the court of Appeal decision in Beauchamp 1952 CanLII 60 (ON) 1953 O.R. 422 the main criteria are the starting point in determining whether the Crown has established the trial judge erred in Law.
* The evidence must be such as to prove beyond a reasonable doubt that the accused drove without due care and attention without reasonable consideration of others.
Does this apply to me.........
32 - In Cases Involving accidents, the gravamen of the offence is whether the prosecution established the accused was driving carelessly, and not the consequences of the driving: R v Pyszko reflex (1988) O.J. No.1218 ( OCJ).
R v Beauchamp (1953) O.R. 422-434
Ontario Court of Appeal
Could you please tell me if Page 1 of 8 and page 8 of 8 of Beauchamp would be applicable in my defense.
And would the other cases above be helpful and if so which parts.
Thanks In advance
Give this information to the prosecutor and ask them if they still believe they have a reasonable prospect of conviction.
If you proceed to trial you will likely have to summon the doctor who diagnosed/treated you to give testimony unless someone can think of some other way. At trial citing Vasavagul as condition that can cause temporary imparement in other case law will support your arguement.
Which ones do i use?
Also with regards to Vasavagul i believe there was only one that was related to Motor Vehicles and it was an Appeal to not restrict driving, all other cases were not related to HTA or MTO., will they still be helpful or irrelevant?