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

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

by: Bluegirl on
Mon Mar 22, 2010 8:43 pm

Here's the deal. Ford Escape pulled over in S bound lane with side smashed in. I'm assessing whether anyone is hurt or needs help and also can't figure out why it is in such condition when no other smashed up cars are near it. Although baffled I decide to carry on in the N bound lane and as I begin to accelerate (20kph is my guess at the time) I see a white Toyota just in front of me and I brake hard but still hit it. It in turn gets pushed into the pickup infront of it. Turns out there is a dead deer in our lane and that is why they are stopped and hence the damaged vehicle in the opposite lane.
Now, the burden of proof. The disclosure has no mention of any witness seeing me until I hit. What's my best defence here? Do they have to actually mention a distance of some sort or witness the fact that I was behind them at all before they were struck? None of the witnesses in the other vehicles saw me before they were struck. The word "follow" indicates to me some sort of driving motion of which there are no witnesses until after the fact. Any advice on how to defend this would be greatly and graciously appreciated. I'd just like to keep my clean record clean. Thanks in advance.


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by: FyreStorm on
Tue Mar 23, 2010 7:24 am

Well you hit a vehicle that was ahead of you that stopped?

If the evidence doesn't clearly describe follow to close not sure what would?

Careless Driving also fits, so I suspect the officer cut you a break.

You did cause the accident, and the duty of the vehicle in front of you doesn't include braking in a user friendly manner so they'll bare no responsibility...

Follow Too Closely doesn't involve measures or times, it involves 'did you allow yourself sufficient space and time to prevent a collision'

Pretty sure we know the answer.

Sorry.


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by: Radar Identified on
Tue Mar 23, 2010 11:22 am

You could try plea bargaining to "fail to turn to avoid collision." I believe that's 2 demerit points and $110 fine. Same price, fewer demerit points, and, depending on your insurance company, they will look much more favourably on that than "follow too closely." If you had fully stopped and started moving forward, you could also plea-bargain to "start from stopped position, not in safety." Based upon the circumstances, I think that's your best bet... unless the person you hit doesn't show up for court. Collision witnesses are usually subpoenaed, so they will show up.

Follow too closely is difficult to get a conviction on... IF no collision occurs (depending on the defence). With a collision, it is much easier. If it goes to trial, you'll need to show that you were faced with a rapidly changing circumstance on the highway (e.g. vehicle cut you off, and immediately slammed on the brakes, giving you no chance to react or re-attain proper following distance). A dead deer on the highway with vehicles that had already stopped for it is not a rapidly changing circumstance.

You could also consult a paralegal and see what they say about it, but chances are, they'll go for a plea bargain to a lesser charge as well.
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by: Traffic Law on
Tue Mar 23, 2010 5:36 pm

Follow Too Closely doesn't involve measures or times
Respectfully, It is absolutely wrong!

Based on the scenario posted by Bluegirl there is a case. On this evidence I dont see how conviction can be entered. The defendant may even beat this allegation by NOT TESTIFYING AT ALL. Let the prosecution prove their case....

Regarding "following" there are many caselaw materials that specifficaly address variables like speed, time and distance.


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by: Radar Identified on
Tue Mar 23, 2010 6:52 pm

Some case law regarding following too closely...

R. v. Haddad, 2009

Couple of key points:
- Follow too closely is an offence of strict liability (paragraph 6);
- A rear-end collision is NOT "prima facie" evidence of following too closely (paragraph 8, reference: R. v. Ouseley, 1973);
- The officer's opinion that a vehicle was following too closely, on its own, is too subjective to render a conviction;
- "...there must be some evidence that the following distance constituted a danger having due regard to the speed of the vehicles, and the traffic and highway conditions. This evidence needs to be more substantive than a concern in the mind of the driver being followed." (Paragraph 47)

City of Toronto v. Baillie, 2007

This one did involve a collision.
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by: hwybear on
Tue Mar 23, 2010 7:21 pm

Radar Identified wrote:- "...there must be some evidence that the following distance constituted a danger having due regard to the speed of the vehicles, and the traffic and highway conditions.
how much more danger do you need? just plugged a vehicle from behind
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by: Bluegirl on
Tue Mar 23, 2010 8:50 pm

Just wondering how I would go about arguing this case. In their statements the witnesses in the forward vehicles did not see me coming so therefore no mention of distances etc. My theory is, that, a unit of measure or notification there-of need be noted. Also I really wasn't doing any "following" of the previous vehicles. I do realize this is just a matter of definition.
If I were in the NHL I would have gotten 10 games and no driving record...Hee.


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by: Radar Identified on
Tue Mar 23, 2010 10:07 pm

hwybear wrote:how much more danger do you need? just plugged a vehicle from behind
Actually, that was my point.

Haddad did not have a collision and was found not guilty. Baillie did have a collision and was found guilty.

Rear-end collision is not prima facie evidence of follow too closely because the defendant may have been cut off (no fault), had another vehicle pull out in front of them (no fault), or come around a corner too fast and hit a stopped vehicle (careless driving), etc.
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by: Keroba on
Sat Mar 27, 2010 8:32 am

Yes, an accident doesn't prove Following Too Close (FTC) by itself. The relevant caselaw is in that Haddad decision, specifically:

Regina v. Borg, [2005] O.J. No. 1823 (Ont. C.J.);
Regina v. Ouseley, [1973] 1 O.R. 729 (Ont. C.A.);

Both of those are higher court decisions, so the JP is bound by them (they will many times disagree with previous decisions that have been made only by other JP's).

In R. v. Robbins (which is a BC case, so does not bind any Ontario court, although other Ontario cases might have cited it and incorporated it into their decisions) the judge said ...

I think the words “follow another vehicle more closely than is reasonable and prudent”, import the concept of distance between two moving motor vehicles. It seems to me that if the vehicle ahead suddenly stops that creates an emergency situation which is not contemplated by the enactment.

Read the rest of the Haddad case. You would think that guy would be dead to rights, considering the evidence given (i.e. followed within less than a car length on the 407 for over a half-km, at 115 kph). But because no objective reasonable distance data was led, the prosecution failed to tick all the boxes. This w/o the defendant taking the stand to offer any contrary evidence.


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by: Keroba on
Sat Mar 27, 2010 8:52 am

Just read the Toronto v. Baillie decision. It's unfortunate, as I think the JP's erred here. The test for FTC is not stopping distances in case of a stopped vehicle in front of you. It's the distances needed to stop when "following" another car (i.e. the other car is also moving). As JP Quon says in his judgment, you would need to be behind any car by 8 car lengths to conform to that chart. That might even be more than the distance that is enumerated in the HTA for big commercial vehicles (CVOR's), in the very next section. If that was the criteria, then the police could hand out FTC's to pretty much any vehicle following another on the 400-series of highways.

I think the defendant could've appealed, and won. Dunno if they did or not.


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by: FyreStorm on
Sat Mar 27, 2010 10:24 am

Once again, if you hit the vehicle in front you, you didn't have time to stop...if you didn't have time to stop, where you not following to closely to stop / avoid collision...

Had you been farther back would you have avoided the collision...


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by: Radar Identified on
Sun Mar 28, 2010 1:12 pm

Keroba wrote:Just read the Toronto v. Baillie decision. It's unfortunate, as I think the JP's erred here.
At least the Crown introduced some evidence that purported to show that the following distance was "unsafe." All it did, though, was just show the distance required to stop if approaching a stationary object, not following a moving one.
Keroba wrote:I think the defendant could've appealed, and won.
JP Quon normally releases some pretty detailed and well-thought-out decisions. This one, I don't agree with. The defendant probably could have appealed.
FyreStorm wrote:Had you been farther back would you have avoided the collision...
Yes but you cannot "follow" a stopped vehicle.
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by: FyreStorm on
Sun Mar 28, 2010 2:52 pm

Agreed, hence why most officers lay a CARELESS...


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by: Bluegirl on
Mon Mar 29, 2010 10:11 am

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?


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by: Radar Identified on
Mon Mar 29, 2010 11:38 am

FyreStorm wrote:Agreed, hence why most officers lay a CARELESS...
In that case, yes.
Bluegirl wrote:Also they have drawn a road that travels west but the next nearest intersection goes east. Any thoughts on this matter?
Main issue is, does the accident report depict the actual collision scene more or less correctly? (Cars/angles/etc) Unless the intersections were involved in some way, it's not a big deal.
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