Getting a professional opinion

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287
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Getting a professional opinion

by: 287 on
Tue Feb 18, 2014 6:44 pm

Hello,

My daughter has been charged with careless driving, and I would say that the case involves "momentary inattention". There was an accident, a rear end collision, with under $1000 of damage to both cars combined. She has obtained disclosure, and has an appointment with a prosecutor for early resolution in a few weeks.

I am interested in getting a professional opinion regarding what her chances are of defending against the charge is; from someone with recent experience in court, successfully defending this charge. I have no problem with paying for the opinion.

The few people I have talked to offer a flat rate for everything, (ER meeting and court representation if it goes there). I would like to know if she has a good chance of winning before going into the ER meeting. I am not comfortable with the flat rate approach, as I feel it lends itself to plea bargaining, and offers little incentive to take a chance in court; we are not calculated risk adverse. Consulting with someone before the ER meeting will help us to better understand her position. I am not feeling I should trust that they will withdraw the charge if there is not likely a chance of conviction, I feel they will still try to plea bargain as I have seen it happen in the past (was ticketed, and had a strong defence, but was bullied into believing otherwise, and plead guilty to a much lower charge, and a $10 fine - I had not heard of 11b at the time either, it took 18 months to get to court on the first date given)

Can anyone provide any suggestions of where to try to get a solid opinion? We are in Brampton, the charge is out of Caledon.

The assistance is greatly appreciated. Thank you.


iFly55
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by: iFly55 on
Wed Feb 19, 2014 2:44 am

The crown most likely listens to the "momentary inattention" story everyday. They'll definitely have you test it with the JP to see if they believe it and if your daughter is unshaken under cross-examination.

There's a lot of decisions and precedent cases at http:///canlii.ca regarding "momentary inattention". You could do some research yourself and see if there's any relevant cases.

There are plenty of places that offer "free consultations", where you can bring the disclosure and your daughter's story to see how they feel about your chances.

There are a lot of experienced folks here as well, but you'll have to be pretty specific about the inattention part of the story & disclosure details. I guess you can test the story here, to see how the folks here feel about it.


JayElle
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by: JayElle on
Wed Feb 19, 2014 12:52 pm

Hello!

Most people will not give an "opinion" without having you sign a retainer agreement. We have to be very careful when speaking with clients about their cases due to the potential to have "ghost clients"; Most people won't even look at your disclosure without you signing a retainer agreement beforehand, regardless of what you want. I don't review a potential client's disclosure prior to retaining for that exact reason, aside from the fact that there could be a conflict of interest if the other party was charged, so there are several factors here as to why someone won't do that for you.

Your best bet is to go in to your first attendance meeting and see what the Prosecution says. "Momentary inattention" is a common reason for a collision, but if you're not careful with your caselaw, it will be very easy for the JP to convict your daughter of careless since she wasn't driving with undue care and attention.

If you decide that you don't want a resolution and only want a trial, then seek some guidance from a professional. They will definitely help you out with that and that way you can sign your agreement, pay them, and they will do everything in their power to run a trial and win for you. If your daughter signs a retainer saying "trial only", you will have only a trial and no resolution for sure.


karra
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by: karra on
Wed Feb 19, 2014 6:43 pm

Here's my take on Careless,

A conviction is so serious many young people and adults can't afford the insurance - there is one insurance company that will immediately increase rates to 20k per annum upon conviction - others may not be so bad, but believe me, it is very, very bad.

I have watched numerous people defend themselves and family members re this charge - while some of them do a fairly credible job - once convicted, and they usually are, the only option left is an appeal - appeals are more expensive than engaging a paralegal to defend the charge in the first instance.

When there is a collision involving two or more vehicles, someone made an error in judgement - all too often cops lay a Careless as they're usually too lazy or stupid to look up the appropriate charge. So, if you don't have a legal background and you're defending your daughter, I would seriously advise against it - for the above-noted reasons.

In your case what I would do is review the disclosure - attend a meeting with the prosecutor and see if there is an offer to resolve - if there is, give it some thought and maybe accept it if the new and lesser charge fits the circumstances - the new charge will be a two or three point offence (don't agree to Follow Too Closely as that's almost as bad as Careless re insurance implications) - and maybe accept it.

The important thing here imo is to get out of the Careless - don't get hung up on pride or anything else - just get her out of the Careless - if you don't and she's convicted you'll know where to point the finger while you're writing the cheque to a professional for the appeal and to the insurance company.

When it comes to Careless, it's all about insurance.


287
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by: 287 on
Fri Feb 21, 2014 9:58 am

The crown most likely listens to the "momentary inattention" story everyday. They'll definitely have you test it with the JP to see if they believe it and if your daughter is unshaken under cross-examination. --- Interesting, hadn't thought of it this way. So, if the testimony never changes and it was a matter of a sneeze, and a very dirty road surface (construction in progress, she did not stop when the brakes were first applied as she slid) provided it held up to cross examination, it could be accepted as a valid defense by the JP? This is what happened.

There's a lot of decisions and precedent cases at http:///canlii.ca regarding "momentary inattention". You could do some research yourself and see if there's any relevant cases. --- I have read everything there, and could not find one conviction where there was a minor accident as the only evidence of careless driving behaviour....feel I am missing something as it is charged so often looking at these boards. Even in the Wong vs. R case, I read she was found to be driving below the standard expected of a driver, but acquitted as it was believed the behaviour she not be punishable by law.

There are a lot of experienced folks here as well --- the input from this forum and it smembers has been great! Really helps me get my head around this. I have rear ended, no less than 4 times, was asked once if I wanted the other driver charged, I said no (my car was written off) and none of the others were charged either. This has been an eye opener for me.

Your best bet is to go in to your first attendance meeting and see what the Prosecution says. "Momentary inattention" is a common reason for a collision, but if you're not careful with your caselaw, it will be very easy for the JP to convict your daughter of careless since she wasn't driving with undue care and attention. ---- would taking Wong v R. be a good thing to take, along with the decisions quoted in that case to the ER meeting? Is there a chance of coming off as cheeky and getting under the prosecutor's skin? I would not go to trial unrepresented I feel up to the ER meeting however. Thank you for explaining the otherside for the paralegals and lawyers out there representing people; I understand it more.

The important thing here imo is to get out of the Careless - don't get hung up on pride or anything else - just get her out of the Careless - if you don't and she's convicted you'll know where to point the finger while you're writing the cheque to a professional for the appeal and to the insurance company. --- Thank you. This is a reality that has hit me, and rubs me so hard the wrong way. It seems that the charge is so broad and serious that they can slap it down knowing they are almost guaranteed a lesser conviction out of very serious consequences alone. When the accident happened she was devastated, and insisted on paying for the damage, picking up extra shifts (she is in grade 12; she needed to concentrate on school) She could not stand to think that someone would be out their deductible because she did not react, and then could not stop in time. I was proud of her for doing the right thing. She was charged 3 weeks later. If someone I knew was in similar circumstances later today, I would tell tell them 2 things: it could cost you a lot later on, think twice about paying for the damage (especially if it is reported) and do not talk to the officers, you know nothing. Both of those pieces of advise go against how I have lived my life until this incident. There really needs to be a charge under HTA that fits, as careless does not!

Thank you for the help, it really is invaluable




argyll
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by: argyll on
Mon Feb 24, 2014 11:06 pm

I have to disagree with karra regarding the following too close being as bad as a careless. I'm with cooperators and they showed me the chart that lists major and minor tickets and any minor has the same impact on insurance as any other minor and the same for majors. Careless is a major, follow too close is a minor. While follow too close doesn't apply here you may wish to consider accepting it if it's offered or you spin the dice with a trial for careless.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


Stanton
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by: Stanton on
Tue Feb 25, 2014 8:45 am

argyll wrote:I have to disagree with karra regarding the following too close being as bad as a careless. I'm with cooperators and they showed me the chart that lists major and minor tickets and any minor has the same impact on insurance as any other minor and the same for majors. Careless is a major, follow too close is a minor. While follow too close doesn't apply here you may wish to consider accepting it if it's offered or you spin the dice with a trial for careless.
The problem with follow too close is that it's a 4 point offence. Assuming the OP's daughter is a G2 driver, that would result in a licence suspension which would have a greater impact on her insurance rates then a 2-3 points offence with no suspension.


287
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by: 287 on
Tue Feb 25, 2014 1:00 pm

You are correct Stanton, her license will be suspended with a 4 point conviction...the problems that will create are very large. She will not be able to work this summer (already has a full time job li ed up) and even though she has offers from 2 universities, she may not be able to attend. The fall out from such a minor collision is astounding to me.

My spouse had his license medically suspended after a head injury and even though he got it back, when we get quotes for insurance the question asked isn't has your license been suspended in the last three years? They ask if it has EVER been suspended. With a 4 point or more conviction it may be incredibly expensive for years to come.

If the prosecutor is unwilling to offer a three point or lower, it only makes sense for us to take our chances at trial, as it delays the suspension if convicted until after she works the summer. It will also impact her future plans as she will not be driving for years to come because we cannot afford the insurance if convicted. It is tough on her, she is a straight A, highly responsible student and was accepted into pre med life science program. Anyone think any of this will matter when we talk to the prosecutor? If they don't offer a 3 point or less, should we let her/him know why it is worth the risk to us? Not interested in whining about how crazy this whole thing is to the prosecutor, but if it helps to influence their offer it could save the time of trial.


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by: MegaSilver on
Tue Feb 25, 2014 3:39 pm

Don't know your daughters exact scenario, but here is something to consider. The standard that drivers are held to is not one of perfection. In R. v. Beauchamp Justice F.G. Mackay stated that “the law does not require of any driver that he should exhibit 'perfect nerve and presence of mind, enabling him to do the best thing possible.' It does not expect men to be more than ordinary men” (R v Beauchamp, [1952] O.J. No. 495). - See more at: http://www.careless-driving.ca/careless ... 7qMkD.dpuf


iFly55
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by: iFly55 on
Tue Feb 25, 2014 4:21 pm

For rear-end collisions I have the seen the crown reduce S.130 Careless Driving to S.141 (5) Left turn ‑ fail to afford reasonable opportunity to avoid collision

The amended charge carries a $110 fine and 3 Demerit Points; so a novice class suspension can be avoided if this was on the table.

http://www.e-laws.gov.on.ca/html/statut ... .htm#BK215
http://www.ontariocourts.ca/ocj/how-do- ... hedule-43/
https://www.e-laws.gov.on.ca/html/regs/ ... 0339_e.htm


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