Following too close due to deer in lane-court May 4 2010

siriusone
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Re: Accident Report makes no sense

Unread post by siriusone on

Bluegirl wrote:In my disclosure statement an accident report is present. The diagram makes no sense. There is a drawing of the road on which the accident happened and all 3 of the vehicles are indicated on the diagram. The diagram includes some measurements of the intersection just south of the accident and the measurements are way off. I drove the road last week and they have indicated that it is 140m to the next intersection but it is easily 500m unless it is a driveway that is actually being depicted. No markings as to what road is what. Also they have drawn a road that travels west but the next nearest intersection goes east. Any thoughts on this matter?
Why don't you pm the poster 'traffic law' and ask for some guidance he/she seems to be on the right track.


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FyreStorm
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Regarding "following" there are many caselaw materials that specifficaly address variables like speed, time and distance.
Can you name some?


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Keroba
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Unread post by Keroba on

Careless is an even harder offence to prove for the prosecution, as it involves mens rea on top of the actus reus needed to convict for a FTC.

Said another way, if you can’t successfully prosecute for FTC, you’ll never win a Careless Driving prosecution.

I don’t know the whole story from Bluegirl … the deer was hit by the southbound vehicle and thrown into the northbound lane? The damaged vehicle to your left caught your attention, which caused you to look over momentarily at a most unopportune moment, as it meant you couldn’t see the stopped vehicle just a short way up, correct?

There was no willful disregard for others in such driving, so a Careless would never stick.

I’ll take it to extremes here, but if you’re driving along on the highway, and a tractor-trailer blows up in the opposite lanes, of course it’s going to grab your attention. If in those moments of inattention you have a collision, it is NOT careless driving.

Did the pickup in front of the Toyota hit the deer as well? If not, the prosecutor will probably say “well, they were able to avoid hitting the deer and each other; that is, until you slammed into them.” Thing is, their attention was likely never diverted to the side as yours was. They would’ve seen the southbound vehicle hit the deer, but then instead of following the direction of the damaged vehicle, they would’ve concentrated on (for the pickup) the deer coming into his/her lane, and for the Toyota, the pickup in front of them. You on the other hand had your attention diverted to the side, which I think is understandable in the circumstances. FTC needs actus reus, which means a voluntary guilty act. You were never “following” too close, b/c the car ahead was stopped, and so no following could take place.

Can I ask why you had slowed to 20 kph? Was it just from spotting the damaged vehicle on the side of the road, or was there anything else? How far up the road did you see the Escape (the less time you saw it, the more understandable and reasonable your diverted attention would be)? What was the normal speed limit on that road?

Are you planning on defending yourself? When was the original offence date if you don’t mind me asking?


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FyreStorm
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Unread post by FyreStorm on

I have laid well over 1000 careless drivings...and continue too...despite what you think, it's a very winnable charge...

You can't blame 99.999999% of collision of exploding trailers etc...


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Unread post by hwybear on

Keroba wrote:
I’ll take it to extremes here, but if you’re driving along on the highway, and a tractor-trailer blows up in the opposite lanes, of course it’s going to grab your attention. If in those moments of inattention you have a collision, it is NOT careless driving.
Rubbernecking describes the act of drivers trying to view the carnage resulting from a traffic accident. The term literally refers to the craning of a person's neck in order to get a better view. It can be the cause of traffic jams, as drivers slow down to see what happened in a crash. It is also a cause of accidents as drivers become distracted and change their rate of travel while other drivers are legitimately stopped for the collision. Rubbernecking has also come to be used more generally to describe voyeuristic interest in someone else's "business"
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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Radar Identified
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Unread post by Radar Identified on

Keroba wrote:There was no willful disregard for others in such driving, so a Careless would never stick.
I disagree. The "disregard" does not have to be willful. It only has to be lack of due care and attention, or put another way, falling below the standard expected of a reasonable and prudent (but not perfect) driver. However, you're right - momentary, brief distraction or a minor mistake is not careless driving (as per case law).
FyreStorm wrote:Can you name some?
Have you looked at the R. v. Haddad and Toronto v. Baillie case links earlier in this thread?
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Keroba
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Unread post by Keroba on

This sums up the caselaw around Careless Driving quite nicely:

http://dynamiclawyers.com/DL_blog/careless-driving/28/

FyreStorm, do you have any research showing the percentage of Careless Driving charges in any given year in Ontario that result in convictions? If so, please post it here, ‘cos I’d love to see it. From only anecdotal evidence, I would suspect that less than a quarter of Careless Driving charges actually result in convictions. For the other 75%, I bet half of those are plead down to Follow Too Close, and the other half withdrawn altogether. And w/o doubt it’s partly because too many police officers still hold a layman’s conception of what Careless Driving means (i.e. something akin to “you rear-ended him? Well, that was pretty careless of you, wasn’t it?”) instead of its actual legal concept in Ontario jurisprudence.


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hwybear
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Unread post by hwybear on

Keroba wrote:This sums up the caselaw around Careless Driving quite nicely:

http://dynamiclawyers.com/DL_blog/careless-driving/28/
and no way is this marketing to buy into what they are trying to sell :roll:

kind of like stats published by whatever company, how is it going to benefit them?
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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Keroba
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Unread post by Keroba on

I don’t believe the author of that post was a lawyer or paralegal advertising his services, but whatever.

Perhaps this summary will meet with wide approval?

Duhaime.org


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Keroba
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Unread post by Keroba on

Or this:

<u>Keeping a Proper Lookout</u>

The last three paragraphs are quite topical:

<i>In Dalby v Reece, Justice Oliver of the British Columbia Supreme Court heard of a 2 a.m. motor vehicle accident. At issue was a fatal multiple vehicle accident on a busy international highway. As Dalby approached, his gaze was diverted to one of the vehicles and not realizing that others lay strewn on the highway just before him, by the time he returned his gaze to the road, it was too late and he plowed into the defendant's car. The argument was made that if Dalby had of kept his eyes to the road, the collision could of been averted.

The judge disagreed, not wanting to impose upon drivers superhuman lookout powers:

"The plaintiff was keeping a proper lookout at all material times and that the momentary diversion of his gaze from the road immediately ahead to the scene of an apparent accident was not, in the circumstances, negligent."</i>

Or higher up …

<i>While a driver cannot be excused for failing to keep a proper lookout, it may not be unreasonable to expect a driver to keep a sharper and more vigilant lookout for something he or she may reasonably expect to be on the highway than he or she would for something he or she is entitled to expect would not be there.</i>


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Radar Identified
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Unread post by Radar Identified on

Good summary.
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Unread post by Bluegirl on

My date is May 4th and I am defending myself with no previous court experience. I know I will be at the table to the left. Do I let the prosecutor and/or JP lead the case? I have no independent witnesses, but I am assuming the officer and the 2 others involved in the accident will be witnesses. Do I interview them first or the prosecutor? In closing statements can I summarize why I think I am not guilty or do I need to do that on the stand and defend myself. Does that leave me open to self incrimination? Oh so many questions with all sorts of associated stress and anxiety. Will be glad to get this overwith so I can sleep peacefully again.


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Radar Identified
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Unread post by Radar Identified on

The best suggestion I have is that, if you have any time between now and then, go over to the courthouse and observe a few trials. It is free of charge (except for parking). This will give you an idea of the procedure/protocols.

For the day of trial, show up early and check in with the Prosecutor, who may offer you a deal. Trials are usually held last. They'll deal with plea-bargains and withdrawn charges first, then they'll handle trials.

They'll "arraign" you, saying "you are charged on or about the (whatever date) with the offence of follow too closely blah blah blah, how do you plead?" That part is easy. Then the Crown will present their case. You may cross-examine each of the witnesses as required.

You may take the stand to defend yourself if you wish. The JP will ask you some questions for clarity, and the Crown will cross-examine you, or you can present your defence in closing arguments. That avoids having to testify.

You have a Charter right to not incriminate yourself. A rear-end collision is not "prima facie" evidence of following too closely. You can admit you rear-ended another vehicle but that does not necessarily mean you were following too closely.... if this is the same offence as under "follow too closely."

(Note: If this is the same offence, I'm going to merge this thread with the one you started originally to keep the topic in one place.)
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Bluegirl
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Unread post by Bluegirl on

Trials are usually held last.
I am in London & have an actual appointment with a time frame of 45 mins. Is this not customary?
Then the Crown will present their case. You may cross-examine each of the witnesses as required.
They go first and if I don't agree with what they have to say I can reword questions to lead them in another direction? Only information from the disclosure is admissible? I can object if it's not found in the disclosure?
You may take the stand to defend yourself if you wish.
How does one decide whether it is necessary to take the stand in their defense? I was planning on revealing why I think I am not guilty in closing arguements.
I am using the fact that neither driver saw me and that they were stopped at the time which to me indicates the inability to follow something not moving. Also the distraction of the previous accident to me explains the "reasonable and prudent" portion.

Thank you for clarifying things for me you have been a wealth of information & this is exactly what I have been looking for. Although I am not looking forward to it, I am feeling a bit more confident about my trial.


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Unread post by Radar Identified on

Bluegirl wrote:I am in London & have an actual appointment with a time frame of 45 mins. Is this not customary?
They usually schedule several people for that "time frame," depending on how the court handles things and their workload.
Bluegirl wrote:They go first and if I don't agree with what they have to say I can reword questions to lead them in another direction? Only information from the disclosure is admissible? I can object if it's not found in the disclosure?
They can admit information beyond what is in disclosure. You can object if the "new" information is significant, would have a real impact on your ability to offer a complete answer and defence, and if you had no reasonable way of knowing about it. Given the circumstances, it's highly unlikely that any sort of evidence like that would exist. Witness testimony, officer testimony, etc., all of that could reasonably be inferred from the collision report and officer's notes. If there is a substantial deviation from the information you were given, that would best be used during cross-examination, trying to show the witness is not credible.

As far as not agreeing with what has been said, take notes, think of questions to ask that will introduce reasonable doubt that you were not following too closely.
Bluegirl wrote:How does one decide whether it is necessary to take the stand in their defense? I was planning on revealing why I think I am not guilty in closing arguements.
If you need to give a different perspective on what happened, then you'd testify. Example: Driver says you were tailgating him, then he stopped slowly and you hit him... but instead, you came around a bend, got distracted by something, he was stopped with his lights shut off at night, and you hit him. That would be a reason to testify (meaning you weren't actually following him, but came upon him when he was stopped). Use your best judgment at the time. Remember, though, your closing arguments are not subject to cross-examination by the Crown - only rebuttal. If you testify, you WILL be cross-examined.

If you believe that the Crown and the testimony of the witnesses is not sufficient for a conviction, and you can rebut it by referring to case law, statutes, etc., then there is no need to testify. Keep in mind all of the case law that is out there. They have to show that you were following at an unsafe distance. As has been discussed above, this is not so easily done, even with a rear-end collision.

Also, the standard stuff applies: Bow went entering/exiting the courtroom as a sign of respect, dress for the occasion, etc. Provincial offences courts deal with (for lack of a better expression) a lot of punks and rednecks, so if you go in there looking and acting like a respectable member of society, it will have some impact. Sounds so obvious as to be ridiculous but it's true.




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