FTC ticket: rear-ended the lady but no damage

thisiskat
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Re: FTC ticket: rear-ended the lady but no damage

Unread post by thisiskat on

Once I have disclosure I feel like I can build my argument. I'm really hoping I don't get it the day of, I'd really like some time to prepare my argument!

Does it make a difference jsherk that I was stopped at a yield and not a stop sign? In your opinion?


jsherk
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Unread post by jsherk on

The issue with Following Too Close is whether you were too close or not for your speed. So I don't think yield or stop really matters. If you come to a full stop yourself and then waited for the other vehicle to start moving and did not move yourself until it was X number of feet away, then this is good because it proves there was seperation and you were not too close. And also if you only took your foot off the brake and let the car start to roll without hitting the gas at all, then this would suggest you were going very slow like only a few km/h.
+++ This is not legal advice, only my opinion +++


thisiskat
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Unread post by thisiskat on

You have been really helpful, thank you for the feedback!


karra
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Unread post by karra on

@thisiskat
Are there any independent witnesses who can testify to the distance between your vehicle and the one you struck?


jsherk
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Unread post by jsherk on

Just as another thought, the only witnesses will be you and the other driver.

So if the other driver does not show up to court then do NOT testify against yourself and the charge should be dropped.

If the other driver does show up, then the prosecutor will ask them a bunch of questions about what happened to try and establish their case against you. You can then cross-examine them. Depending on what they say, you may decide that should testify because your testimony is significantly different from theirs and will help bring their testimony into reasonable doubt. But you might also choose NOT to testify as well... if their witness can not testify to the distant, then you do not want to testify against yourself and actually help the prosecutors case.

Most of the people I see go to court and represent themselves end up testifying against themselves, and if the prosecutors witness had not already met all the elements then they end up driving the final nail in their own coffin. They would have been better off not saying anything at all!

So it is important to know the elements the prosecution must prove, and then have a check list and go thru them as the prosecutor covers them in the examination of the witness. Then you cross-examine their witness and then you decide whether it will be to your benefit or not to testify.

For a Follow Too Close your testimony is probably okay. But for a Careless Driving charge, your testimony by itself would probably be enough to convict you.

Keep us updated with the case.
+++ This is not legal advice, only my opinion +++


thisiskat
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Unread post by thisiskat on

There is no independent witness.

I'm hoping with the month notice the other driver won't show up at all. Once I get disclosure I can know more about what the prosecution will try to prove right?


karra
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Unread post by karra on

thisiskat wrote:There is no independent witness.

I'm hoping with the month notice the other driver won't show up at all. Once I get disclosure I can know more about what the prosecution will try to prove right?
I ask because if they do not, then there is nothing to answer - there is case law out there, I don't recall which, that clearly states a witness is required who can testify to the distance between cars - if there isn't you're clear.
Most prosecutors know this and will immediately withdraw at the trial date - get your disclosure - examine it for a witness who is not the driver of the vehicle you struck - and show up. If that prosecutor refuses to withdraw, go with the trial and listen carefully - when the crown has concluded its case, then it's your turn - bring a motion for 'directed verdict' and present your case law. That should be the end of it.

Do not, ever, count on the other driver or a witness not showing up.


thisiskat
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Unread post by thisiskat on

Wow thank you Karra, you laid that out wonderfully for me! I really appreciate it


jsherk
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Unread post by jsherk on

Another good Careless reference I found basically says the courts have frequently dealt with the legal question of when does a temporary lack of attention become careless and it is decided that momentary inattention is excusable:

R. v. Richards, 2009 ONCJ 651 on Canlii http://canlii.ca/t/27sj1 says:
[16] In R. v. Beauchamp (1953), 16 C.R. 270, the Ontario Court of Appeal stated the standard for careless driving is a constantly shifting one which depends on the road, visibility, weather and traffic conditions as well as other conditions which an ordinary driver would take into consideration.

In the matter at bar, clearly the visibility was limited by the fog. Nonetheless, Officer Nelson acknowledged that his visibility extended to 50 metres which provided a limited range of view for Ms Richards. While the road was wet from the fog, no evidence suggested Ms Richards could not stop due to road conditions. No evidence was led there were adverse traffic conditions. Officer Nelson testified that he was travelling at 60 kph and Ms Richards at approximately 40 kph. Therefore, Ms Richards’ was driving at a reasonable speed for the conditions of limited visibility and wet roads which existed that night. In my view, it cannot be said that she was driving “without due care and attention or without reasonable consideration for other persons using the highway”.

[17] In R. v. Ereddia, [2006] O.J. No. 3421 (OCJ), Justice Fairgrieve also commented on the standards for a conviction of careless driving. He stated:

(6) The offence of "driving carelessly", created by s. 130 of the Highway Traffic Act, is defined as driving on a highway "without due care and attention or without reasonable consideration for other persons using the highway". The law has been clear for decades that in order to make out the offence under s. 130, the driving must be of such a nature that it amounts to a breach of one's duty to the public and is deserving of punishment: see R. v. Beauchamp (1953), 16 C.R. 270 at p. 278 (Ont. C.A.). A driver is not held to a standard of perfection, and a mere error of judgment is not necessarily sufficient to establish the offence: see R. v. Wilson (1971), 1 C.C.C. (2d) 466 (Ont. C.A.). Careless driving, generally speaking, requires proof of a departure from the standard of care that a reasonably prudent driver would have exercised in the circumstances, and normally involves, I would think, conduct that includes other less serious Highway Traffic Act infractions.

(7) Mr. Klaiman, counsel for the appellant, also referred in his factum to the pertinent judgment of Killeen Co. Ct. J. in R. v. Namink, [1979] O.J. No. 317 (QL), where, at para. 10, the learned County Court judge stated as follows:

It is trite to say that this is a quasi-criminal charge, and that to make out a charge under this section the evidence must bespeak conduct deserving punishment in the way of a conviction under this section of our Highway Traffic Act. Mere momentary inattention, or a simple kind of error of judgment, does not bespeak the kind of conduct over which the net of this section is cast."
+++ This is not legal advice, only my opinion +++


thisiskat
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Unread post by thisiskat on

Thank you jsherk, you have provided invaluable feedback!






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