Careless driving - left turn causing collision

Hi all, sorry in advance for the wall of text but I am a bit out of my depth and trying to get more information.

I received a Careless Driving ticket back in August, and received my trial notice for Jan 30th, 2017 in late October.

The incident happened as I was stopped in a major intersection waiting to make a left turn. I can't remember exactly whether the light had completely turned red yet but on my statement I said it was amber at the time I started my turn because that is all I could be sure of (Should I have said red in that situation?)

As the light was yellow (and presumably going to turn red), I saw the cars in opposing traffic slowing and coming to a stop for the red light and I judged it safe to start making my turn. However as I started my turn, a car came through the intersection and we collided. The impact was between the front driver's side corner of the other car's bumper with the front passenger's side bumper on my vehicle. From the pictures attached below, it looks like the whole front bumper section on my car was pushed/sheared over to the right.

There is a bit of a dip in the road before the light for the opposing traffic, so it's possible that the other car didn't see me, it is also possible that the other car was speeding to make it through the intersection, but I don't know how I can prove that since it would be my word against the other driver's. So I am not sure if I can have the charge withdrawn, best case is probably a lesser charge.

The statement I included below has a detailed account of what happened.

For insurance purposes, I understand that I will probably be found at fault, since I was the one who left my lane and I have a responsibility to make sure it is safe before I turn, however I am wondering what the chances are that I could get this reduced to something like Improper Left Turn, because Careless Driving seems too serious a charge for this case. I don't believe that I was being negligent, and I certainly was not trying to hurt anyone. It could be considered a misjudgement of the distance/situation when I was making the turn.

I have requested disclosure and chosen "not guilty - go to trial" option. I haven't been to traffic court before, so I was wondering what the procedure was for seeing if the prosecutor was willing to reduce the charge. Would I have to call the prosecutor's office and request a meeting? Will the court have someone I can approach (a prosecutor?) on the trial date if I get there early so I can talk about a reduced charge?

I think I won't hire a paralegal, because most of them would probably go for a reduced charge in this case, which is something I believe will probably happen with or without a paralegal

The pictures were too big to upload as an attachment, so I have created 2 albums below.

I would appreciate any help and advice at all regarding my ticket and how to argue my case, and I understand that any comments made are not legal advice.

Please let me know if you need more information or clarification.

Images of tickets and statements: http://imgur.com/a/YnHCf

Images of the car: http://imgur.com/a/qjFif

You can always try to setup a meeting with prosecutor ahead of time, but also at the trial you can ask to meet with prosecutor before trial.

If you decide to fight the charge, you will probably want to have representation as it is a SERIOUS charge for insurance purposes and will cause it to skyrocket.

If you can negotiate a reduced charge, you will want to know what impact it will have on insurance BEFORE you go see the prosecutor (others in this forum may be able to suggest what possible charges could be offered instead of carelss), so you will need to call insurance company and ask. The prosecutor will not know how it affects insurance (MINOR, MAJOR or SERIOUS). So is taking a reduced plea an option? Absolutely! Will it still affect insurance? Absolutely! But what might be significant is if the reduced charge is only a MINOR or at worst a MAJOR for insurance purposes, because these may still increase insurance, but not anywhere as bad as something like a CARELESS/SERIOUS charge.

To follow-up on what jsherk wrote, yes, Careless Driving is a very serious offence and you may wish to seek out legal representation. It is unfortunate to see self-represented defendants at court having a Careless Driving matter go off the tracks at court and ending up convicted, accepting a plea to lesser offence that is not a good resolution, or accepting a plea to a lesser offence when they have a strong defence.

It sounds like you have been charged under section 130 of the HTA:

"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. 2009, c. 5, s. 41."

These offences carry a 6 demerit point penalty, a mandatory MTO licence suspension for driver's whose licence was a class 1 or class 2 by the original offence date, and generally result in no longer qualifying for standard insurance coverage if convicted. By the sounds of your post, you appear to have been charged under a part 1 version of the offence which will carry a fixed fine and not have the court imprisonment/suspension penalties applicable.

Generally, a meeting between the defence and prosecution to review evidence is held in advance of a trial date to allow both sides of the matter to understand where a trial would likely lead and how to best proceed. I recently posted an overview of these offences in a blog post.

OTD Legal wrote:

To follow-up on what jsherk wrote, yes, Careless Driving is a very serious offence and you may wish to seek out legal representation. It is unfortunate to see self-represented defendants at court having a Careless Driving matter go off the tracks at court and ending up convicted, accepting a plea to lesser offence that is not a good resolution, or accepting a plea to a lesser offence when they have a strong defence.

Generally, a meeting between the defence and prosecution to review evidence is held in advance of a trial date to allow both sides of the matter to understand where a trial would likely lead and how to best proceed. I recently posted an overview of these offences in a blog post.

Thanks for the insight. I requested disclosure on November 17th to see what information/evidence was in the report and notes that the officer filed in order to see whether a trial would be worth pursuing. I was wondering if you guys could offer some opinion if I post the disclosure when I receive it.

Would you happen to know what possible charges the careless driving could be reduced to? I'm not looking for a comprehensive list, but how common is it for this charge to be reduced to something like improper left turn, and does it depend on how I explain this to the prosecutor?

The reason I am leaning more towards the plea bargain is because the only ways I can see to fight it off are either the witnesses do not show up (as in the other driver and/or officer), or finding a way of proving that the light was red/other car was speeding when they hit me. But I feel like the bulk of the evidence I have is "look! the car hit me on the passenger's side therefore I was in the middle of my turn when I was hit and not the other way around!" which I don't think will go over well with the JP.

Depending on when I get disclosure, I have read that there are also options to do with the court proceedings itself, including filing a section 11(b) charter defence etc. Are there any other defences that you know of?

This meeting between the prosecution and the defence, are you referring to a meeting on the day of the trial? or is it a meeting that I would set up beforehand to speak to the prosecutor's team?

It's a lot of information to process on a subject that I am very unfamiliar with, so I'm very thankful for the time you and jsherk have taken to post replies.

jsherk wrote:

You can always try to setup a meeting with prosecutor ahead of time, but also at the trial you can ask to meet with prosecutor before trial.

If you decide to fight the charge, you will probably want to have representation as it is a SERIOUS charge for insurance purposes and will cause it to skyrocket.

If you can negotiate a reduced charge, you will want to know what impact it will have on insurance BEFORE you go see the prosecutor (others in this forum may be able to suggest what possible charges could be offered instead of carelss), so you will need to call insurance company and ask. The prosecutor will not know how it affects insurance (MINOR, MAJOR or SERIOUS). So is taking a reduced plea an option? Absolutely! Will it still affect insurance? Absolutely! But what might be significant is if the reduced charge is only a MINOR or at worst a MAJOR for insurance purposes, because these may still increase insurance, but not anywhere as bad as something like a CARELESS/SERIOUS charge.

I have not yet received my disclosure package, so I am currently waiting for that. How much time is usually reasonable to wait for disclosure in order to ask for an adjournment in case that I receive the disclosure too late. My trial date is set for January 30th, and they say disclosure can take 6-8 weeks. 8 weeks would fall on January 12th, which would give me only a little over 2 weeks to prepare a case. Should I be contacting the prosecutor's office to see what the status is?

I will definitely be talking to my insurance company to see what kind of effects the other charges I'm looking into may have, that's a good suggestion.

Thanks for your help guys! I really appreciate it because it's given me some more things to look into that I hadn't considered before.

Disclosure requests are made in advance of the defence and prosecution being able to sit down and discuss the file. The primary purpose of an early resolution meeting is for the two sides of the case to reach a reasonable understanding about how the Court would likely rule on the matter at trial. If the merits of the Prosecutor's case are such that the matter would clearly be ruled in the favour of the defence, the case will normally be agreed to be withdrawn. If the matter could go either way or in distinctly in the favour of the Prosecutor, then it is in the interests of both the Prosecutor and the defence to try and reach a mutually agreeable resolution. If not, the matter will proceed to the trial date.

Careless Driving offences are certainly arguable at trial and they can be a difficult case for the prosecution to prove. Off hand I can't remember the last time I had a Careless Driving file go to a conviction as is, as they are generally resolvable before trial or arguable at trial. 11B arguments are not a default argument, they have to do with undue delay. Resolution meetings may either be held before the trial date or on the trial date. Generally I make that decision based upon the profile of case and the jurisdiction it what is most beneficial to the client.

OTD Legal wrote:

Disclosure requests are made in advance of the defence and prosecution being able to sit down and discuss the file. The primary purpose of an early resolution meeting is for the two sides of the case to reach a reasonable understanding about how the Court would likely rule on the matter at trial. If the merits of the Prosecutor's case are such that the matter would clearly be ruled in the favour of the defence, the case will normally be agreed to be withdrawn. If the matter could go either way or in distinctly in the favour of the Prosecutor, then it is in the interests of both the Prosecutor and the defence to try and reach a mutually agreeable resolution. If not, the matter will proceed to the trial date.

Careless Driving offences are certainly arguable at trial and they can be a difficult case for the prosecution to prove. Off hand I can't remember the last time I had a Careless Driving file go to a conviction as is, as they are generally resolvable before trial or arguable at trial. 11B arguments are not a default argument, they have to do with undue delay. Resolution meetings may either be held before the trial date or on the trial date. Generally I make that decision based upon the profile of case and the jurisdiction it what is most beneficial to the client.

As a follow-up question, if I decide to go to trial without accepting a plea deal, and the presiding JP or judge decides that the prosecution is not able to prove careless driving, is the charge just dismissed? Or is it possible they could find me guilty of a lesser offence resulting in a similar situation as the plea deal?

No, your trial is for the offence that you are charged with. It's all or nothing for the Prosecution.

I initially received my notice of trial in the mail at then end of October, however I was out of the country at the time so I didn't see it until I returned on November 5th. I then consider getting legal representation, however I thought it best to do that after I had requested disclosure, so that I could provide them with information to decide what my best options are with this ticket and particular case. I did this in person at the office of the prosecutor on November 17th and was told it would take 4 to 8 weeks to receive.

My trial is on January 30th and I still have not received any information so I plan to give the office a call tomorrow to check on the status of my request and then document this conversation. Do I need to send a new request?

What are the best next steps to prepared in case I don't receive disclosure in time? Is there paperwork to be filed for an adjournment or stay in advance of my court date?

What if I don't have time to consult with legal help after I receive my disclosure really late?

Just call them and ask if it is ready. If you still have not received it by the trial date (or get less than 2 weeks before the trial) then you can ask for an adjournment at the trial and say you want to have time to review the disclosure with a lawyer.

argyll wrote:

No, your trial is for the offence that you are charged with. It's all or nothing for the Prosecution.

That's actually not correct.

There are several included offences as part of a careless driving charge. For example, Follow Too Closely is one such offence. There are other included offences as well. So, OP COULD be found guilty of another offence even if he is found not guilty on the careless charge. And, just to be clear, no amendment is required; as its included within a careless charge.

Of course, this means that Op therefore needs to either hire a professional or must be comfortable doing case law research and be able to argue law in court. After all, no professional is going to publish that information free of charge. Careless driving charges are big money makers for defence paralegals and lawyers because of their complexity.

In reality, Prosecutors aren't afraid to proceed to trial on a careless charge because they know they have other options to win on. After all, they can lose on the careless charge but win on another offence whereas the defence must always tread lightly because if they admit one thing they could be found guilty on the other offence. Its actually more difficult for the defence; not the prosecution. Virtually all the risk is on the defence side. That's also why its such a commonly laid charge on most car accidents.

Post from 27 Jul 2010:

follow too close is not an included offence in careless. It's just often the offence that people plea to when charged with careless. However, you can not be convicted of follow too close at a trial for careless, or vice versa.

_________________

http://www.boryslaw.ca

NOTHING I SAY ON HERE IS LEGAL ADVICE.

screeech wrote:

Post from 27 Jul 2010:

follow too close is not an included offence in careless. It's just often the offence that people plea to when charged with careless. However, you can not be convicted of follow too close at a trial for careless, or vice versa.

This just proves my point. Careless driving is a very complicated offence because it requires thorough legal research and understanding. Unfortunately, many practitioners can't actually argue it successfully in court because they rarely go trial on that charge, instead pleading out their client.

See paragraph 20 of The City of Greater Sudbury v. McNeil that discusses the Smith decision (an appeal decision) where it says:

"In the case of R v. Smith [2002] O.J. No. 3270, Justice Halikowski, sitting as a Provincial Offences Appeal Court Judge upheld the decision of the Justice of the Peace who found the defendant guilty of "Follow too closely" rather than "Careless Driving". In paragraph 8 he states; "...all the elements of the offence of following too closely clearly being part in the totality of the offence of careless driving in this particular set of circumstances."

There are other included offences but like I said, they aren't easily found---no one is going to give such valuable information freely. This example was my contribution to this site but I don't intend to share more.

http://www.canlii.org/en/on/oncj/doc/20 ... cj343.html

This quotes the case to which you refer in para 15 but also has a Supreme Court decision at para 12 which would appear to contradict the ruling.

I've been involved with trials when a lesser offence conviction has been the outcome but it has been because of a mid trial bargain between crown and defence. I had an impaired care or control go down to a careless driving in this manner (which was ludicrous because the accused hadn't been driving !)

In the Reiber decision, JP Cuthbertson actually follows the Smith decision (as mentioned in Para 21). He can't overrule it since he is only a JP (and its not the same issue-charge anyway). He simply uses it to help him assess whether FTS:amber light is included within FTS:red light. He rules its not.

Regrettably, a lot of cases don't proceed to appeal, causing confusion in the law and inconsistent rulings. The SCC did not overrule the Smith decision nor eliminate included offences. It could have provided greater clarity on the topic but just made general statements that created more chaos than good.

Included offences are very common in criminal court, especially dealings with various types of assaults and robbery/thefts. I doubt they'll ever get rid of such a concept.

Indeed. Criminal court, they happen all the time. I've never come across one in a Provincial Court setting.

It's always to joy of case law. One can find cases to support both sides of an argument. The worst we ever discussed at work was whether a police officer could be disturbed criminally....masses of case law on both sides. But I digress.......

argyll wrote:

...The worst we ever discussed at work was whether a police officer could be disturbed criminally...

Disturbed mentally is a given, but criminally is a whole different issue!

In Ontario Court of Justice, one JP's decision is not binding on another JP.

But when you find an Ontario Court of Justice appeal case (not Ontario Court of Appeal) that was decided by a Judge, is that case binding on JP's since a Judge decided it?

jsherk wrote:

In Ontario Court of Justice, one JP's decision is not binding on another JP. But when you find an Ontario Court of Justice appeal case (not Ontario Court of Appeal) that was decided by a Judge, is that case binding on JP's since a Judge decided it?

That's correct.

To further clarify, a Superior Court of Justice decision is binding on an OCJ judge, and an Ontario Court of Appeal decision is binding on both (and the JP for that matter). Of course, the Supreme Court is binding on everyone.

Of course, that's the theoretical rule. However, keep in mind that in practice, lower courts are notorious at 'distinguishing' their case from the 'precedent' case. In other words, they hold that THEIR case is different from what the higher court (precedent) ruled (to get around being bound by that decision!). Plus, equal level courts sometimes disagree with the other's interpretation. So, one OCJ appeal judge will decide differently than another OCJ appeal judge!

That's when you get conflicting decisions, and then you need a higher court to clarify things. It happens all the time.

jsherk wrote:

Just call them and ask if it is ready. If you still have not received it by the trial date (or get less than 2 weeks before the trial) then you can ask for an adjournment at the trial and say you want to have time to review the disclosure with a lawyer.

Most Prosecutor Offices will not mail out disclosure packages and you will likely be required to pickup your disclosure in person. While I can not directly advise you how to act on your own behalf at court as a self-represented defendant, a second formal and documented disclosure request would generally be my standard practice. Should disclosure not be provided by trial, it would be a basis to request the charge be dismissed although the Justice may grant an adjournment to allow the Prosecutor more time to remedy the lack of disclosure.

OTD Legal wrote:

jsherk wrote:

Just call them and ask if it is ready. If you still have not received it by the trial date (or get less than 2 weeks before the trial) then you can ask for an adjournment at the trial and say you want to have time to review the disclosure with a lawyer.

Most Prosecutor Offices will not mail out disclosure packages and you will likely be required to pickup your disclosure in person. While I can not directly advise you how to act on your own behalf at court as a self-represented defendant, a second formal and documented disclosure request would generally be my standard practice. Should disclosure not be provided by trial, it would be a basis to request the charge be dismissed although the Justice may grant an adjournment to allow the Prosecutor more time to remedy the lack of disclosure.

Thanks for your advice,

I did call the prosecutor's office last week to follow-up on my disclosure request, but the clerk said that they hadn't received the brief yet. I made a note of the time, date, who I spoke to, and their position within the office. I then sent a second disclosure request by fax to the number they provided, and kept the fax receipt.

As of Jan 19th, I still have not received disclosure prior to my January 30th trial date. Can I still ask for the charge to be dismissed? If I ask for an adjournment, how will this affect my chances at getting a plea deal with the prosecutor, or of getting a better deal?

Thanks!

So lets assume that on the trial date they still do not have the disclosure ready for you. In this case, I would NOT ask for adjournment but instead I would state all the dates that you made the requests for disclosure and then ask for the charge to be dismissed. However, most likely it won't be dismissed and the JP will tell the prosecutor that they need to get you disclosure and will adjourn it anyways. But by you asking for it to be dismissed, the delay will count against the prosecution and not against you.

There is also the possibility that they give you disclosure on the day of trial. In this case I would do the exact same thing as above... I would NOT ask for adjournment but instead I would state all the dates that you made the requests for disclosure and then ask for the charge to be dismissed. Of course since they just gave the disclosure the JP will not dismiss it. If the prosecutor does not make the motion for an adjournment but instead wants to proceed to trial, then you object and say you need time to review the disclosure and prepare your defense, and then you will most likely be given an adjournment. Some JP's however may say "no adjournment. go out in the hall and review disclosure and then we will start trial". If this happens, then you should object again, but then after the trial, if you lose, you have a great reason for an appeal.

jsherk wrote:

So lets assume that on the trial date they still do not have the disclosure ready for you. In this case, I would NOT ask for adjournment but instead I would state all the dates that you made the requests for disclosure and then ask for the charge to be dismissed. However, most likely it won't be dismissed and the JP will tell the prosecutor that they need to get you disclosure and will adjourn it anyways. But by you asking for it to be dismissed, the delay will count against the prosecution and not against you.

There is also the possibility that they give you disclosure on the day of trial. In this case I would do the exact same thing as above... I would NOT ask for adjournment but instead I would state all the dates that you made the requests for disclosure and then ask for the charge to be dismissed. Of course since they just gave the disclosure the JP will not dismiss it. If the prosecutor does not make the motion for an adjournment but instead wants to proceed to trial, then you object and say you need time to review the disclosure and prepare your defense, and then you will most likely be given an adjournment. Some JP's however may say "no adjournment. go out in the hall and review disclosure and then we will start trial". If this happens, then you should object again, but then after the trial, if you lose, you have a great reason for an appeal.

Thanks for your reply jsherk.

I was wondering if you had any experience with:

1) how an adjournment might affect my chances at getting a plea deal from the prosecutor, would dragging it out mean I'm less likely to be offered a deal to plead guilty to a lesser charge?

2) what happens in the case of an appeal? is the trial re-done?

(1) Prosecutors do not have to offer you a plea deal at all. It is up to them if they want to do that or not, and it is up to them whether they choose to offer you one later or not. It is completely up to the prosecutor and an adjournment may or may not make a difference later on. It is completely up to each individual prosecutor.

(2) An appeal is NOT a new trial. At an appeal, you basically are saying that the Justice of the Peace or the Prosecutor made some kind of mistake, and Judge will look at the transcripts and decide if there really was an error made or not. If the Judge agrees an error was made, they can either order a new re-trial or order the charge dismissed. With charges like speeding tickets, they will usually just order the charge dismissed.

Quick update: my trial date is tomorrow, I have not yet received disclosure, although I have followed up at least a couple weeks ago (noted the date/time, name of the person I spoke to, and his position in the office), and on the same day I submitted another disclosure request (just faxed my previous one again, while noting on the copy that it was my second time requesting disclosure) and kept the fax receipt.

You guys have been truly helpful with the advice, and because of the stressful situation, it helps to have someone with a calm mind to bounce ideas off of.

I think that the case will probably be adjourned because I have not received disclosure yet, is there anything I should be doing? because I have no experience in the courts, and because of the seriousness of the charge, I was going to accept a plea deal if one is offered tomorrow.

In the scenario that my case could be seen as an improper left turn, or turn not in safety, would I possibly be able to argue that my turning left and being in an accident was a misjudgement that the other car would stop/miscalculation of the distance between our two vehicles prior to initiating my turn? I am not trying to shift the blame, but if trial is an all-or-nothing type of thing, could this argument convince the justice/judge to dismiss the ticket?

However, because I assumed that because the cars were stopping that it was safe to turn, I didn't really notice the car coming, and I guess that could be seen as "careless" by the cases I have seen before. In this case it would be better to see if I can negotiate a plea bargain with the prosecutor, correct?

Thanks!

Since you do not have disclosure yet, you should be able to get an adjournment.

If you are offered a plea deal, you can ask "Can I wait until I see the disclosure before I decide whether to take the deal or not?" Most likely the prosecutor will probably agree to this which is good, although they could say "no, the deal is now or never" in which case you have to make a hard choice.

If you agree to accept a plea deal, you are agreeing to simply plead guilty to that offer and you do not get a trial and do not get to try and get the plea deal offer dismissed.

The options are that you can:

(1) accept and plead guilty to a plea deal offer (no trial, although you can ask JP for reduced fine due to financial hardship), or

(2) accept and plead guilty to the original charge (probably a bad idea), or

(3) plead not guilty to original charge and have a trial where you make the prosecutor prove it.

how common is it for charges to be dismissed because of non-disclosure without submitting a section 7 charter rights argument?

like you said in a previous post, I will state the date that I followed-up on my disclosure and the date that I faxed a second request to the prosecutor's office (with fax receipt) and ask for the charges to be dismissed (is this how I have to say in court?)

if they give me an adjournment, then I will wait until I get disclosure and seek legal advice to see if my case can be fought, or contact the prosecutor and see if we can work something out

On the first trial date, the caselaw has determined that the proper solution to no disclosure is to give an adjournment and tell prosecutor to get disclosure.

so I didn't receive disclosure until I spoke with the prosecutor today. He wasn't even aware that I had requested it, even though he had my request in front of him...

officer was there, the other driver was not (apparently she was stuck in Egypt for an operation)

The justice was very forthright and helpful in explaining my options, and seemed frustrated about the prosecution's lack of disclosure prior to the trial date saying that things like these are a drain on resources, wasting not only her time, but the time of officers, witnesses, paralegals etc.

Prosecutor initially offered a plea to "Fail to stop for amber light" which is 3 demerit points, but I asked if "Turn not in safety" might not be more appropriate (2 points), and he didn't even seem aware that the case involved a left turn.

Anyway, I ended up pleading guilty to the lesser offence because I don't think I would have gotten a better deal, and Careless driving being what it is, I didn't want to risk it.

The other way it could have gone:

- the justice mentioned she would be inclined to allow the prosecution a first adjournment, and because I was diligent in requesting disclosure, not leaving it too late and following up on it, she said that at the next trial date, it would be "peremptory on the prosecution"? She explained this to mean that whether or not the witnesses were there, the case would be settled on that date, and she proposed a date of March 21st, 2017.

Because the witness (other driver) in the case was going through an operation, I had no idea when she would be coming back, there is a chance that by mid-March, she may not have made it back to Toronto yet, and there's no saying whether the officer would have shown up. If the officer and witness did not show up, I guess the charge would have been withdrawn by the prosecution, however in the case that they did show up, there was no guarantee that I would get as good a plea deal, I also do not know if I would have been able to defend myself properly against this charge because of my inexperience in court procedures, which is why I ended up taking the deal.

This was a valuable learning experience, as I also have a speeding ticket to deal with from last year as well. Last year was not a good year in terms of decisions for myself. I will learn from this and drive more carefully this year, maintaining posted speed limits and making sure everything is safe before making any decisions. Other cars can honk and be unhappy, but ultimately I'm the one in charge of my own safety.

Well congratulations on not being charged with careless driving!