OHTA.ca

Back October I was in an accident where I hit a parked car. I was driving and my 6 year old son was with me.

I was driving West, stopped at a stop sign and turned right so at the time of the accident I was traveling North. It was 8:30am and clear and sunny. When I turned at the stop sign the sun was at my right and slightly behind and the way it reflected off my side mirror temporary blinded me. At the last second I saw the parked car...I tried to swerve and miss it but the front passenger side of my van clipped the back drivers side of the car. I didn't hit the car dead on from behind...we actually ended up coming to a stop in front of the car.

The car was 3 houses down from the stop sign so we weren't going any faster than about 20km/hr.

My wife and daughter were driving behind us in a different car at the time of the accident.

The Officer (he is a Senior Constable) who issued the ticket seemed genuine when he said he wished he didn't have to charge me with Careless Driving but said he didn't have a choice because of the fact that I hit a parked car.

I actually called him a few days after the accident to talk to him about what my best option would be with this and he suggested the trial option...he said he understands where I'm coming from and he isn't out to "screw me" or anything like that. He said he would speak to the Prosecutor on my behalf when it comes time to do so. He said, obviously it is in the hands of the Prosecutor, they have final say as to what the charge will be but he said he will definitely speak on my behalf.

I go to have my "Resolution meeting" with the Prosecutor in a couple of weeks and I requested that they send me a copy of the evidence. I got it yesterday and on the accident report the Officer states...

"driver says windshield was fogged up and sun was in his eyes. Sun was in the East not shining down while North"

The problem is...I never said anything about my windshield being fogged up...it wasn't fogged up. When he asked me what happened I said something like "I didn't see the car until the last minute...when I turned the corner, the way the sun reflected off my side mirror I couldn't see for a split second and the next thing I knew there was the car...I tried to miss it but I couldn't". I didn't say anything about a fogged up windshield.

My wife says that after the accident she was talking to a lady across the street who asked her what happened. My wife said she wasn't sure. She says the lady was kind of pushy and said something like..."was he busy talking on his phone" (which I wasn't). My wife said no...then she said she didn't know what happened...maybe the windshield was foggy or maybe I turned around real quick to say something to my son. She didn't say that is what happened...she said "maybe". Then as we were leaving my wife said the Officer said something about there being a witness who said my windshield was fogged up.

This lady didn't witness the accident...nobody did (and the Officer listed no witness on the accident report). She never even came across the street to look at my van...and if she had she wouldn't have seen a fogged up windshield because there wasn't one.

The officer who said he "wasn't out to screw me" and that "he would speak on my behalf" is saying I said something I didn't say.

What do I do now? It's not really going to look good on me to go into court calling the Officer a lier. Should I call him and ask him about it?

Any suggestions?

First, an officer NEVER has to charge you when there's an accident. They do it because they feel, often rightly so, that when there's a collision a ticket is warranted. That being said, it is often difficult to prove the charge of careless when it's used as a catch all charge, because the prosecutor needs to prove that you were driving "without due care and attention" or "without reasonable consideration for others on the road".

It may be the case in your situation, especially if there were no witnesses to the collision who gave statements. Further, your statement may not be admissible if it was not given under a caution. The bottom line is that careless is a serious charge and defending it may not necessarily be straightforward so you may want to consider hiring someone to assist you.

how can the officer put in the accident report that I told him my windshield was fogged up...when I never said it was? The windshield wasn't fogged up

Presumably he has some reason for believing that's what happened, whether it was from you or someone else, but that's something you can ask if it goes to trial.

but he can't just put on the accident report that that is what I said...because I didn't. It would be different if he said there was a witness who said that or something like that but there is no witnesses listed on the accident report. Now it will come down to my word against his with me saying I didn't say what he says I said. Which isn't going to look good for me in front of a judge. This sucks!

In all likelihood, if the officer does indeed "speak on your behalf," the Prosecutor will likely offer you a deal of something like Fail to Turn Left to Avoid Collision, which, I believe, is 2 demerit points. Some Police Services may have policies or "unwritten rules" where hitting a parked car would result in a charge of Careless Driving, which is why you were charged with it.

Just like all other human beings, police officers make mistakes. He likely heard something about a foggy windshield and, in the process of writing everything down, got confused about who said it and put it in. I'd chalk that one up to human error. A momentary lapse of attention or error does not constitute Careless Driving. What is expected of you is to drive in a reasonable and prudent manner, although the courts recognize that from time to time, reasonable and prudent drivers will make minor mistakes. The Crown can't just say it was a minor mistake; they have to prove your driving was a departure from the standard of care expected of you. Minor collision? Depends. I would agree with Simon Borys' suggestion that hiring a representative would be a good move. I've spent a lot of time helping others, but if I were charged with Careless Driving, I wouldn't hesitate for a second to hire a paralegal or traffic lawyer. They would review the evidence, figure out what the odds are of success and what the best course of action is, and likely be a strong factor in plea-bargaining (if that's the way it goes). It's your call to make, though.

I just had my resolution meeting with the prosecutor.

He offered me another charge other than careless driving. He's offering Fail to pull to left to avoid collision (Section 148(5)).

I explained about the sun reflecting off the mirror and how I started to pull to the right to make sure I didn't cross the centre line and that's when I saw the parked car and tried to avoid it but ended up clipping the corner of the bumper on the drivers side. I told him I never said anything to the officer about the window being foggy but he just kind of brushed that off.

He didn't really care about my explanation as to what happened. He said if I did go to court he doesn't have to prove what my intentions where at the time...just the fact that I hit the parked car.

I told him I'd have to think about the offer and call him back. He said I'd have to call back either this afternoon or tomorrow as he has to let the owner of the other car know if they need to come to court or not. Apparently they have to be there to say they parked the car on the road?

Just wondering what your thoughts are?

As others have mentioned above, it's a difficult charge to prove, but based on your explanation of the situation, I wouldn't say the charge is completely without merit. Plead guilty to the lesser offence, and you'll have what's commonly considered a minor offence on your record, with typically minor insurance implications. Risk going to trial and you'll either get off scot-free, or face the dreaded implications of having a careless driving conviction on your record. It's a pretty big gamble, and if you're going to fight the charge I'd seek representation as others have recommended.

Personally, I'd probably take the plea. Based on your explanation, you were at fault (certainly under insurance fault rules) and the charge is as about as fair as they get under the circumstances.

Agree with Stanton. I'd take the plea deal.

I took the plea deal which came with a fine of $216...add all the "victim surcharges", etc...the total is fine is now $325. I know it's better than what I was originally facing but it still sucks...lol

I didn't think the fine would be so high. I'm pretty sure the normal fine you'd get on a ticket for that offence is $85/$110. I guess the Crown asked for more since they dropped it from Careless.

Simon Borys wrote:Further, your statement may not be admissible if it was not given under a caution.

Simon

What does "under caution" consist of? If the officer at the reporting centre simply asks you what happened and you say you hit the car, is your statement given under caution or does the officer have to make some kind of statement first?

jetblue wrote:

Simon Borys wrote:Further, your statement may not be admissible if it was not given under a caution.

Simon

What does "under caution" consist of? If the officer at the reporting centre simply asks you what happened and you say you hit the car, is your statement given under caution or does the officer have to make some kind of statement first?

Once a police officer has formed reasonable grounds to believe youve committed an offence (i.e. careless), they need to caution you. A caution is a formal wording read from their notebook advising you youre not required to say anything and whatever you do say can be used as evidence against you.

Now in your example, the statement isnt cautioned, but at the same time the officer would have no reason to believe youve committed an offence yet. Police are allowed to make general inquires to determine what happened prior to forming grounds. Now lets say you tell the officer you hit the car because you were texting on your phone. He would now have grounds to believe you were driving carelessly, and any further questioning should stop prior to you being read the caution.

So in short, "what happened?" is allowed without a caution, but once they have a good idea of what you've done, the caution should be read.

At trial, if there is any dispute over the voluntariness or admissibility of a statement, there will be whats called a "voir dire", basically a mini trial within a trial, to determine if the Courts will accept the statement or not. There is a lot of case law on the matter.

I would qualify Stanton's statements about police being able to as preliminary questions to "figure out what happened" in the absence of grounds by pointing to White (1998) SCC and several subsequent cases which say that if the statement you give to the police is compelled (which a statement in relation to a collision may be under the Highway Traffic Act) then it is not admissible at a trial.

Whether the statement was compelled is analyzed on a case by case basis and the defence bears the burden of proof on a balance of probabilities, but if they are successful, the statement will be excluded.