OHTA.ca

So last friday I was charged with Careless driving, here is my personal details of the account

I was making a left turn at the intersection of Bay/Wellesley in the

designed turn lane, going eastbound turning north onto Bay, it was

pouring rain and quite windy... I came to a complete stop in the

intersection after the light had turned green (I was going eastbound).

After viewing one pedestrian pass the crosswalk and checking to the

left of me quickly and my blind spot I checked for oncoming traffic,

noticed there was none, and proceeded to make the turn slowly.

Next thing I know there's a blur to my right and I've made contact

with a pedestrian dressed in black and gray she hit my bumper, landed

on my hood and then fell off the side... I hadn't even completed the

turn I was going about 10km/h... I was shocked. I slammed on the

breaks, flipped the flashers and got out expecting her to be pissed

and screaming at me... needless to say she appeared to be unconscious

on the ground. There were plenty of witnesses and she regained

consciousness within a few moments (I was on the ground beside her

with a doctor who happened to be waiting on the corner). The

police/ems/fire showed up in two minutes and I was separated from her

at this point....

After I calmed down slightly and they took her away on the ambulance

the cops began their investigation... feeling completely distraught

and in a state of shock with the knowledge that I had injured another

human being, I cooperated and gave a voluntary statement from the best

account of my memory. I did not include in my statement an admission

of being 'at fault. I was informed during the procedure she had

broken one or two bones, beyond that she was alright... there is no

physical damage to my car minus one small dent on the hood where I

believe her elbow made contact gauging from the dent and where her

body contacted...

the initial cops investigating the scene were quite helpful, or as

much so as they can be in such circumstances... i was told I would be

charged with failure to yield to a pedestrian at a crosswalk. Being

pretty familiar with the law, I explained that seemed

understandable... However, then highway traffic officers took over

because it was a PI (pedestrian injured)... 2 hours later a separate

officer slaps me with a careless driving charge... 6 demerit

points and 325$. All officers without officially advising me (because,

of course, they cannot do that) suggested I fight the ticket in hopes

for a reduction on a guilty plea to failure to yield to a pedestrian

at a cross walk... I do think I am partially at fault because I did

not *see* her, but I do not agree with a careless driving charge...

considering the weather conditions and speed of the collision (however

again, I am not traffic law expert). I do remember doing all the

appropriate checks, I think I simply missed her in my line of vision

given the poor visibility due to the rain..

I have been to 5 different places in person, 2 of which were official law firms. I definitely understand I need at least a paralegal to defend (or plead down) this charge...

There were 2 police officers who dealt with my case, the initial one told me I would be charged with failure to yield to a pedestrian at a crosswalk. However, the second officer (who I was informed was a specific traffic officer) charged me with the careless driving charge, explaining despite my speed any PI (pedestrian injured) was mandatory.

Out of the places I have spoken to, the prices range from 500-4g's for an official legal defense... my question is given the circumstances, these are the scenarios I have deduced thus far

*NOTE - I got the 325$ charge with the 6 points, not the more serious no charge and mandatory summons.

** I am 22 years old, male, I have my full license and no previous violations what-so-ever.

1. Proceed with a paralegal / non-professional lawyer for the sequestering of the notes, technical review, and initial court date with the prosecutor for potential plead down or dismissal and THEN if I have to go to trial consider a lawyer? (The lawyers really pushed for this considering I have a PI... they said it would almost be essential given that factor)

2. Hire a lawyer to deal with the entirety of the case, regardless of whether or not it goes to trial, have them personally examine all of those factors for at least 2000$'

Of the paralegals I consulted with, they did advise their service because I have not officially been charged with a *criminal* offense and thus a criminal lawyer would not have as much 'experience' etc...

I'm really quite distraught with the entire scenario, so I apologize if anything is unclear. I'm hesitant to spend thousands of dollars initially if I don't have to... I'm young, in school and don't have that kind of disposable income sadly .

Any help as to which option I should go with would be greatly appreciated, thanks guys.

Just a note, both officers will have to be present to testify.

You definitely do not need a lawyer for this. Paralegals advising you were right about not needing lawyer. A traffic ticket paralegal is a professional who specializes in the OHTA law. Lawyers are those who deal with criminal law - ie DUI.

You can also get a free quote from site's sponsor at the bottom of this page!

racer wrote:Just a note, both officers will have to be present to testify.

both officers do not need to be present, unless the officer that laid the charge is relying on evidence from the other.

Just to add to what racer said, a paralegal is probably your best option here. While it may sound more of a "sure bet" to hire a lawyer for a careless driving charge, a paralegal will cost less, and in many cases, the paralegal has more experience with the Highway Traffic Act. As far as an injury occurring, I do not think that a lawyer would be necessary even for the trial. Professional legal help for sure, but it does not have to be a lawyer.

The paralegal may, based upon the evidence obtained from disclosure and talking to you, either decide to go the route of plea-bargaining down to a lesser charge of Fail to Yield to Pedestrian, or may decide to fight Careless Driving itself and not plead it down. That is because careless driving, while it is one of the most serious HTA charges, is also one of the hardest to prove. Momentary inattention can cause collisions, but the courts have held that a brief lapse of attention is not sufficient to warrant a careless driving conviction. See what your paralegal says; they'll have a better idea of how to proceed and what can be done after they get more information.

It is not mandatory to charge a driver with careless driving if a pedestrian is hit or injured. Other traffic officers may have used the lesser charge of fail to yield, but the ones who charged you felt that careless was appropriate based on the evidence they were looking at.

My opinion is, having been a traffic cop who did accident investigation in that area is that the proper charge should have been fail to yield to pedestrian.

The careless driving charge may fit the situation, as all they have to prove is that you were "driving without due care and attention".

I think that you might be able to take care of this yourself, but if you hire a paralegal, someone who understands accident investigation that the charge should be dropped to the fail to yield, or it would get dropped completely.

When you hire a professional you have someone who will make sure that everything is done properly and that you get every chance of winning the case on a technicality.

Fill out the Form at the Bottom of this Site to get a Professional Paralegal!

UPDATE:

I have my 'trial' if you will on tuesday, I have yet to receive disclosure... I have been instructed by my paralegal that they will probably present it pre-trial and attempt to negotiate a plead down.

I doubt 10-20 minutes will be sufficient time to decide whether or not we are 'adaquetly' prepared to go to trial if the evidence seems insufficient for conviction.

At any rate, I have found 5 previous ontario cases which strongly suggest, based on the circumstances as per my statement, this charge was not validated.

In addition, I will be bringing Environment Canada's weather report for the day/time of my ticket to confirm the poor weather conditions.

Of course, it is somewhat moot without the actual complete disclosure... I suppose I will have to we will have to ask for an adjournment... which is unfortunate as I would like to get this matter resolved and MOVE ON with my life.

Thoughts?

If the adjournment is for more than a few months, at what point can I request 11b? It's already been over 5 months since the initial ticket, we filed for disclosure with over 8 weeks to spare...

Thanks guys, this forum has been an invaluable resource.

Your paralegal is doing a fine job. My main legal contact in your area is a toronto lawyer who defends drunk drivers and after passing along the question he essentially said "no worry" indicating you'll be fine if everything here is honest and clearly presented to the judge properly.

I didn't ask him about the 11b, but why bother? Seems to me that you don't need to fret, and time shouldn't be any issue as you're not looking at a refund or a payout?

Here's some more 11b info if that's really interesting to you:

Canadian Charter of Rights and Freedoms - Section 11b

Any person charged with an offence in Canada has the right to be tried within a reasonable period of time under section 11b of the Canadian Charter of Rights and Freedoms.

What is a reasonable period of time?

An infringement of an accused persons 11(b) rights speaks to the principle in Canadian law that any person charged with an offence has the right to be tried within a reasonable amount of time. The Charter of Rights is Canadas supreme body of law, subsequently all other legislation and laws fall under the scrutiny of "the Charter". The 11(b) principle applies to all traffic ticket proceedings in Canada.

The Provincial Offences Act (the law that deals with traffic tickets in Ontario) was developed with the idea that fairly routine matters, like speeding and traffic tickets, should be dealt with a simplified and expeditious process, so an excessive time delay goes against the spirit and intent of this process.

When considering if there is an infringement to a persons 11(b) right, four factors have to be considered for the court to dismiss or "stay" the charge.

How long of time was the Delay?

Did the defendant waive their right to an earlier trial?

What were the reasons for the delay?

Did the defendant suffer any prejudice as a result of the delay?

Length of Delay

There is no "set time limit", or length of delay when considering if there is an 11(b) infringement as each case is considered on its merits and on a combination of the four listed factors. Generally the courts consider a period of 11 to 12 months sufficient to support an 11(b) argument.

Each Justice is permitted to have their own opinion as to what they believe is an unreasonable time period, as such different court jurisdictions and Justices will have different opinions.

The reason for the delay is important when considering this issue. If a person waives his/ her 11(b) right or if a defendant was the reason for the delay, then the court might not consider the delay to be an infringement of the accused's 11b rights.

Systemic delay, meaning that because of "the system or the court system was too busy", there was a infringement of the accused's rights. This is the most common cause for the 11(b) infringement.

The courts do not consider systemic delay a reasonable reason to infringe on a persons right to have a trial within a reasonable amount of time.

Issues regarding a lack of court time, resources, disclosure, or other institutional issues, might not be enough for the Crown to explain unreasonable delay.

Waiver for an 11b Argument

Waiver means, did the defendant waive the right to have the trial held within a reasonable period of time. Usually the answer to this will be no, but on occasion a defendant would appear for their trial and ask for a remand or adjournment. At that point the Justice or Judge may ask the defendant to "waive" any complaint about any time delay for the case to come to trial.

Reasons for the Delay

When considering an 11b application the trial Justice will want to hear evidence from the defendant or the defendants agent as to what were the reasons for the delay, what were the actions of the accused, what were the actions of the Crown, were they issues regarding the institutional resources, and were there any other reasons for the case taking too long to come to trial.

Prejudice to the accused

When considering the prejudice to the accused, the courts have accepted that there is a presumed prejudice for a person that is charged with an offence and facing disposition at a trial. Memory, anxiety, or negative social stigma are all common factors that are presented to demonstrate the issue of prejudice. Because we go by a system of ‘innocent until proven guilty, prejudice to the accused is considered a paramount factor when dealing with issues of a Charter infringement.

What is the point of an 11(b) argument?

Where it can be demonstrated that a persons right to a fair trial has been infringed, the court is in a position to grant a remedy. The best remedy for an 11(b) infringement is a stay of proceedings, which means the charge is withdrawn.

11(b) arguments require that timelines are met and proper forms are filed, and it must be noted that one can not simply raise the issue on a trial date.

To file an 11b complaining that your case has taken too long to come to court, the applicant must file a legal motion with the court prior the trial date.

There is case law that should be presented to the court by way of a factum, so there is a benefit to having these arguments presented by a qualified professional.

Cheers!

I believe a lot of officers lay Careless cause it's 'all encompassing' and really if there was a collision, there generally was a degree of carelessness.

Some will disagree with the above statement, but I do this for a living and have layed this charge at hundreds of collisions...having said that, contact the prosecutor's office yourself, see if you can arrange your own deal.

Hey, I hit a pedestrian, first officer said this, second one said that, I wasn't driving like a fool, weather, pedestrian clothing, admit you were in the wrong (they can't / won't use it against you as it's considered off the record) and say you can live with the lesser of two.

People do it all the time...for free, not the heaps the paralegals charge...