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Paralegal telling me to fight careless charge, should I?
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PostPosted: Thu Apr 11, 2013 5:08 pm 
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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.


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Re: Paralegal telling me to fight careless charge, should I?
PostPosted: Thu Apr 11, 2013 5:38 pm 
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Just so you are aware, you are clearly at fault here. Whether or not the vehicle in front of you abruptly slammed on the brakes doesn't make you any less at fault.

That being said, your rep is confident that while you're at fault you were not careless in your actions. Whether or not he will be successful, who knows.

Careless driving is not like your every day traffic ticket. It is a HUGE stain on your driving record. It's almost always worth taking a reduced sentence just to avoid it. The choice is up to you in the end, but i'd lean more towards a reduced charge. You DO NOT want to have careless driving on your abstract.


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Re: Paralegal telling me to fight careless charge, should I?
PostPosted: Thu Apr 11, 2013 7:29 pm 
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Oooh I am well aware I am at fault, and I acknowledge that. The officer also made it clear that I am at fault, but he also told me on numerous occasions that doesn't mean I was carelessly driving. I appreciate the response, and I do agree a careless driving charge is something I must avoid. I am definitely contemplating taking the option of a reduced charge and moving on.


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Re: Paralegal telling me to fight careless charge, should I?
PostPosted: Sun Apr 14, 2013 11:12 am 
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Location: 100 King Street West, Suite 5700, Toronto, Ontario, M5X 1C7
My name is Frank Alfano. I am a defence paralegal.

I'm new here to this forum and you're the first post I read.

I think your paralegal is pointing you in the right direction. Generally, they can usually prove you did something wrong but also usually just a minor infraction and not meet the threshold of careless driving. Accordingly it makes perfect sense to take most to trial.

One thing to know. If you lose, you lose on the careless. There is no taking the deal after the Justice of the Peace says guilty.

There are pros and cons to both scenarios. Firstly, the deal is a bird in the hand. There is a certainty you may not have in a trial. You will have a conviction though even if it is a minor one. With a trial, you have the chance to beat the charge completely but the down side is if you lose, you lose big. The decision to plead to a minor or go to trial is balanced by the certainty of the deal balanced against the odds of losing. If the odds are good you'd win, do the trial knowing you could possibly lose.

I would discuss the chances of either with your paralegal.

One last thing to consider, the players are a huge part of the equation in making the decision. The right prosecutor and justice can make you either unstoppable or begging for mercy. Waiting for the day of trial makes sense and you can decide then.

Hope that all helps.

Frank Alfano, Paralegal


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Re: Paralegal telling me to fight careless charge, should I?
PostPosted: Sun Apr 14, 2013 2:22 pm 
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Hello Frank,

Thanks for taking the time to respond and welcome to the forum! I'm sure I won't be the only one to benefit from your insight.

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. 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.

I feel like it is a 'risk/reward decision'... and I am trying to evaluate what my risk is based off of others experiences (and the advice of my paralegal). It really comes down to what are my odds of having the charge dropped based on the disclosed information. I have asked my paralegal what the odds are, and they are stressing that they believe the charge of careless cannot be proven and will be dropped. They aren't giving me a solid percentage% chance of having it dropped though... which I do wish I could get my hands on. I understand though (as you so eloquently described Frank) that 'it comes down to who will be sitting in as the Prosecutor and Justice of the Peace' - which is really where the 'unknown' factor comes into play.

I feel like taking the lesser charge is almost silly when I am hearing from others that 'there's no way they can prove careless based on the information you've provided/what is in the disclosed documentation' - but being so unfamiliar with how all of this works/the legalities surrounding careless driving charges... I'm not very comfortable running the RISK of getting a careless driving charge at all.

EDIT: I haven't asked my paralegal this directly, but can I wait until the 'day of' to decide one we (the paralegal and I) know who will be the prosector/justice? I will be making the trip to the trial location regardless... but do the officer/other person involved in the accident need to know ahead of time whether I'll be going to trial that day or opting for the lesser charge?


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Re: Paralegal telling me to fight careless charge, should I?
PostPosted: Sun Apr 14, 2013 2:54 pm 
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lin wrote:
EDIT: I haven't asked my paralegal this directly, but can I wait until the 'day of' to decide one we (the paralegal and I) know who will be the prosector/justice? I will be making the trip to the trial location regardless... but do the officer/other person involved in the accident need to know ahead of time whether I'll be going to trial that day or opting for the lesser charge?


They won't need to know anything beforehand. When you show up they will offer you a deal and you will go from there.


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