OHTA.ca

Hi, first of all, thank you in advance for all the useful input that I found in this forum.

I am charged with careless driving, the court date is coming up next week and I would greatly appreciate any suggestions you have. I have waited to get the disclosure, which I finally received today.

It was a foggy November night last year, around 9:40 p.m when the accident happened. I was driving from school (I am a nursing student) and driving to my brother's place to pick up my 2kids . I approached a roundabout which is 1 minute away from his house. This is a strictly residential area. In this foggy night, I was driving slow. Speed limit was 50, and I must have been driving 40. I saw something jump infront of me. I could have been a racoon or a child. I could not tell. I was just about entering the roundabout. It all happened fast. As I was deciding that it is not a human being, I was thinking of how not to swerve, but instead hold on to the wheel. So I held on, and went straight on top of the roundabout, instead of going around it. I took down one traffic sign that was in the middle of the roundabout, and stopped my vehicle just across on the other side of the round about. So basically, I went straight on top and through the roundabout. No other vehicle was involved, only my old sentra which was damaged due to the traffic sign.

An oncoming car came a few seconds after the incident, and we called first my brother, then CAA. Then about 5 minutes later, the police officer came. He was very intimidating. He paced around looking at the accident scene. He asked if I had been drinking. I told him no. He asked me why I had called my brother instead of the police. I said because I was 1 minute away from his house, and he was expecting me. He asked where I was coming from and where I was going. I was just in shock. I told him I was coming from school, and I was going home. He looked very busy, walking around the scene, counting steps, and demonstrating with his hands. I gave him my DL and car documents but did not have the insurance there. (But of course he saw in his computer that the car was insured). I told him I must have the insurance pink slip at home,or it is among the papers that were all over over the car due to collision. (As I said, I was coming from school, and had lots of books and papers in the car). In an intimidating manner he told me to keep looking. Next thing he said was, ... you are coming from school. So you must be tired. And I replied and said, well, I had a long day. He insisted that I must have been tired because I had driven past my house. He said, well... you drove past your house more than 20 minutes ago. Of course I drove past my house to pick up my kids from my brother's house before heading back to my house. By then, my brother had com to meet me there. And then the CAA came. The officer said we could move the car seats from my damaged car to my brother's car. So we did that and the CAA started their part to tow my car. All this while, I was still waiting and thinking that he officer was going to ask me to tell him what happened. Next I knew, he brought out a ticket. Careless driving! My mind was still numb from the accident. I could not understand how he came to that conclusion.

Today, I got the disclosure, and on it, he states that I had reported to him that I was tired. Meaning I was driving while tired! He also states on the disclosure that it was not foggy when he arrived at the scene. Now that is an outright lie. I cannot understand what he saw.

So I guess I come to the question: Should I go and fight this ticket in court or just take the lesser charge before the trial? I am having a hard time seeing my fault in this accident, or seeing how careless I was.

I would really appreciate any and every input to this matter. I have a copy of the disclosure if it would help.

Thank you very kindly.

NS.

Go to trial. If there are no witnesses, then the prosecution will have a very tough time getting a conviction. You know what you saw and the fog----the officer came after-the-fact and won't be able to state how you were driving for the road conditions, nor what those conditions were at the relevant time (i.e foggy, wet, animal crossing, etc.).

I also wouldn't take a deal to a lesser charge---I think a court will likely believe your story and simply acquit. So, review your disclosure to see if any witnesses are coming and don't worry too much about the 'tired' statement.

You should easily be able to cross-examine the officer on how many hours he worked that day and whether HE was tired; ask if being tired is a relative concept, ask if he's ever driven while tired (e.g after a workout, long shift hours, after shovelling snow, etc), get him to distinguish tired from drowsy, etc. That is, get him to agree that people are tired all the time but are able to function normally---after all, tired can mean different things to different people. Then, get him to expressly say he never saw you driving, didn't see the accident, agree that weather and road conditions can change rapidly, etc. That is----expressly point out repeatedly their weak case.

Bottom line: If the story is as you say it is---I wouldn't worry too much. Remember, the officer cannot simply state that because an accident occurred you must have been careless---they actually need evidence to corroborate your careless driving (e.g lack of due care). However, it seems they don't have such evidence in your case and are just trying to fill in the holes with implications of your tiredness and/or hoping you'll just accept a lesser charge. I wouldn't fall for it---go to trial.

maryjohn wrote:He asked me why I had called my brother instead of the police. I said because I was 1 minute away from his house, and he was expecting me.

This is a legitimate question, not that your intentions were to avoid the police. Once you hit the sign and cause any damage to public property, it's your obligation to notify the police. While you weren't charged for it, it'll probably come up at your trial and used against you. Don't be taken off guard with such questions. Have a more thought out answer that doesn't leave the question on whether you planned to call the police or not. Seems like the officer showed up rather quickly, so it doesn't seem like you'd have a hard time convincing anyone you were avoiding anything.

Thank you Highwaystar and Bend for the useful replies. I am encouraged.

@ Bend: No, of course I was not trying to avoid the police. But honestly at that moment, my first thought was to let my brother know that I am close to his house, but involved in this incident. I mean I was thinking of my kids, who were still awake so late, waiting for me to pick them up. Thanks for bringing that up. I hadn't given that a second thought. At that time, that question had simply perplexed and annoyed me. And thanks for letting me know about the sign. I am a little uncertain. Will he bring it up in court? I was not charged for the damage to the sign. Will they charge me for it now? On the disclosure he does not even mention that I called someone first before calling the police.

@Highwaystar. Thank you for the useful points I can use for cross examination. I really appreciate that. This is my first time reading a disclosure and I have been reading it again closely, to see if I am missing anything. I do not see any mention of any witness coming. But there is section that looks blanked out, so I don't know if they intentionally hid that section. I mean, are they supposed to disclose if a witness is coming, or do I have to request that information specifically?

On the letter they sent me titled Ontario Evidence Act Notice, it is stated in CAPital letters that "SHOULD YOU COME TO THE CONCLUSION THAT THIS DISCLOSURE MATERIAL IS DEFICIENT IS SOME FASHION, PLEASE CONTACT THE REGIONAL PROSECUTOR'S OFFICE TO REQUEST FURTHER DISCLOSURE AS SOON AS THE DEFICIENCY COMES TO YOUR ATTENTION"... On the night of the incident, as I said, an oncoming vehicle came seconds after I had stopped. The driver stopped and came out of her vehicle, asked me if I was okay and if I wanted to call anybody. That is when I used her cell phone to call my brother and the CAA. I went back to my car and I do not know if she called the police, or if another resident who had seen it through their window had called the police (one other person had running out of his house to the scene moments after the incident.). So I don't know who called the police.

On the disclosure however, the officer writes that "Vehicle drove through a barrier I occupant Driver called 911 Stated it was foggy and went through the "circle to turn"". Does he mean that I called 911? And is that relevant? I did not call 911 and I don't know who called.

He also writes: "NO sign of impairment driver stated was tired coming from school. State it was foggy prior to the call observed a few blocks away that the fog was disipateing. Upon arrival to the scene approx 6mins after the call was entered, at the scene was not foggy at the time. The path of trail the vehicle hit the median straight on sleard off a pole 2 feet past first contact with the curb.."

Also, there is a page listing "Member's role in the case". Is this the form they would use to disclose a witness coming? He has check marked two boxes: The "Investigating officer" and "Officer-in-charge of the Case". Does this mean that these are the two people involved in the case? It was just him on the scene. Later, while we were still waiting for CAA to tow the car someone came and fixed the traffic sign. (Yes, that same night. The traffic sign was up again.). I guess what I am asking is will he call any of these people as witnesses? Not that they saw anything, but must he disclose them?

Thanks again.

Should I hire someone to fight the ticket? Money is tight and they all charge 500 or 600$ for careless driving. On the other hand I really want to avoid a conviction if it is possible. If only these paralegals could assure me that they will win, I would be motivated to sacrifice and try to find the money. But they all don't sound 100% confident. Which I understand.

So what do you suggest? Hire someone to fight or fight it myslelf. The story is exactly as I have told it. Also, is there additional disclosure that I should request?

AGain thank you for you help.

If there are witnesses to the incident, then you have the right to be informed of such. After all, they could be witnesses which are beneficial to you and your right to mount a proper defense. As for the investigating officer, if no one else attended, then most likely he is the one and only. Again, you have the right to be informed if there are others involved. You should write a letter to the prosecutor and expressly ask whether there are any witnesses, how many officers are involved, etc. Ask away!

As for retaining a lawyer/paralegal, while you certainly ARE facing the most serious driving offence, and a professional is always best, its not absolutely necessary. No one can give you guarantees. However, only you know your comfort level in doing legal research and speaking abilities. Just know that many people have self-represented themselves on careless driving charges. It actually makes it a bit more difficult for the prosecutor since the court has an obligation to help you out in understanding the process; not helping you defend your case, but that usually means they are quite attentive to YOUR needs.

Regardless, I suggest you review this site for information on careless driving (there is a lot of useful info on these forums) and then use Canlii to get your case law.

The officer notes that the fog was clearing up by the time he arrived, actually confirms that their must have been fog at some point! As for calling 911, you are not being charged with failing to report, etc. So, while you certainly can clarify that issue,don't really get bogged down on minor things----after all, you had just been in an accident and that actually helps you out a bit----you may have been reliant on the cell phone owner's assistance in calling the police.

Bottom line: there doesn't appear to be much evidence in your case to establish careless other than the fact that an accident occurred. As previously stated, that doesn't justify the charge. They need more evidence. Stick to your guns and point out the weakness in their case and I doubt they'll proceed to trial and if they do, highly doubt a conviction will occur. So long as you cross-examine on the lack of witnesses about your driving, the road conditions at the relevant time (not 6 minutes afterwards!), the concept of tiredness, inconsistencies in report making, etc. then too much doubt will exist to justify a conviction.

Definitely DO empower yourself. Do lots of research and you should be fine. Remember, many people self-represent themselves. If you are a nursing student, then you likely already know how to do research, can communicate well in English, and definitely have a financial interest in the outcome. People with a lot less have been successful. Best of luck!

@Highwaystar: Thank you, you are trully a Star. I feel more empowered. I will continue to Research and read more cases to Build a defense. Thank you for all the Points you brought up for Cross examination. I will get to work to Write them all down. I'll keep you posted.

maryjohn wrote:... It was a foggy November night last year...

Are you stating that this happened ~12 months ago? And you just received disclosure this week? Perhaps an 11B filing fits?

@ Megasilver:

11 B filing? Wow. I am learning many things here. I just googled it and found it interesting. .

Well yes, the incident happened 12 months ago. I was not very informed at the time, so I'd checked the box for "early resolution". This is one of the options here in York Region. So anyway, I met with a prosecutor sometime in April or so... can't remember exactly. She offered a lesser charge, which I did not quite register what is was, but I was still getting 3 points and more than 200$ fine. I was not happy. In my mind, I was resignatedly accepting the offer. JWhen she asked If I was okay with that. .. I replied something along the lines of ... I guess I have no choice. I do not see my fault in this matter, but I guess I have to take the offer.

That is when she said "No". She said I sounded like I hadn't spoken with any experts about this, and that this was a serious offence which I didn't seem to fully comprehend its impact. She suggested that I go back and speak with a parlegal and some experts, and that she will adjourn this and set a trial date instead. That is how I got to get the trial date for this November.

So, I'm not sure when they start counting for the 11 B filing. I guess it could have been an option if I hadn't been in for early resolution.

I do have one question though. I requested the disclosure back in July, and they are only giving it to me now. Is this normal? In July, they told me that I will receive it about 1 month before the trial. Now they're saying that they've been trying to reach me by email to let me know that the disclosure was ready since october 28th, but that my email address was not correct. They finally sent me an email to the address though. I just mean that I need time to prepare. Can I request to have the trial date moved based on the late disclosure? I have a lot going on in school now, and I want to be really prepared for this, but school is distracting me a little.

Thanks again.

@ Highwaystar.

Canlii is another new one for me, and I am browing their website for all the info I can get. I am learning lots of new things here. Thanks again for your time and input.

I went to court today, spoke with the prosecutor before the scheduled trial time. First she offered to drop charge to 2 demerit points and 85$ charge. I was not happy. I reminded her that I had requested additional disclosure about if any witness was coming etc, and I had not received that information. She ultimately offered to dropped down the charge to zero demerit points and an 85$ fee. (I think she said the amended new charge would be lane switch without looking... or something like that. I decided to take the offer. I figured 85$ is better than running that slight risk in a 50/50 trial. I knew I had a good chance of winning, thanks to all your advice here, but I also thought the only difference would be the 85$, and I followed my guts and accepted that.

I guess one thing I could have done differently would have been to ask her to dismiss the charge completely based on the fact that I had not received the additional disclosure I had requested. I didn't think of this until afterwards.

Once again thank you for all your help.

Thank you for posting the follow up, this is very helpful to know. I am very glad it was a good outcome for you. I wouldn't feel bad about not asking that it be thrown out, there is a good chance that they would have adjourned to allow you time to review disclosure; you paid the $85 and it is done, rather than dragging out. Best wishes.