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Careless charges call for careful defence

Friday, June 19, 2020 @ 10:26 AM | By Nathan Baker


Lexis Advance® Quicklaw®
Nathan Baker %>
Nathan Baker
Careless driving is the regulatory offence which fits between civil and criminal liability. It overlaps with both areas and gives rise to significant confusion. While criminal law exists to punish morally blameworthy acts and civil law exists to put people back in the position they were before incidents occurred, regulatory matters like careless driving exist to encourage good behaviour and work primarily to increase safety in otherwise risky activities that have useful social benefit. Driving is a highly regulated activity because of the high risks that exist. Regulation leads to predictability and safety. 

Careless driving is a strict liability offence. As a result, the defence of due diligence is available. This makes sense in a negligence based offence such as this because by definition, if you are being diligent then you are not being careless. 

Penalties range from $400 to $2,000, up to six months in jail and a licence suspension up to two years. If death or bodily harm occur the penalties rise to $2,000 to $50,000 up to two years in jail and up to five years of licence suspension. 

This offence is often used by police as a catchall offence and is sometimes laid when police do not know what else to lay after an accident takes place. It is easy to think that every accident involves some act of carelessness, or else the accident would not have taken place, but the legal test requires more. 

A moment’s inattention is not enough to ground a conviction for careless driving. It requires something more like not taking into account the conditions of the road or weather and then becoming inattentive. Failing to take these conditions into account would be careless but if the issues arose in an unapparent manner, as in R. v. Gareau 2018 ONCJ 565, then the actions do not warrant blameworthiness to the careless driving standard. The question has been stated in Burlington (City) v. Boyd 2019 ONCJ 584 at para. 85 as: what would be expected of a reasonably prudent driver? For example, losing consciousness unexpectedly would not be careless but falling asleep while driving knowing you are tired would be, as in R. v. McCullough [1999] A.J. No. 837.

The sort of disclosure available in a careless driving case can vary significantly. It may amount to a few pages of an officer’s notes up to a full accident reconstruction with scientific analysis undertaken. Being able to ascertain what the evidence is, how strong it tells a story and whether any defences are available is as widely varied as the cases careless driving encompasses.

The onus is always on the prosecution to prove the case to the standard of proof beyond a reasonable doubt. There may be facts which are only known to the defendant though which may require them to testify to establish a defence. Since carelessness is a type of negligence, it does not require an intent to drive poorly but instead rests on the actions which do not show proper care and attention for other users of the road. 

A conviction for careless driving, like stunt driving, carries with it significant consequences for insurance. The Insurance Bureau of Canada lists both offences as “serious” and would usually cause a premium surcharge of 100 per cent for even a single conviction. Six demerit points accrue for a conviction. Careless driving may be proceeded by a ticket under Part 1 of the Provincial Offences Act or in court via Part 3. The set fine for a Part 1 ticket is $400.

While fines and suspensions are often discussed, other consequences are not always known by a person charged who then pleads guilty or pays a ticket. Paying the ticket is pleading guilty and accepting the points and insurance increases.

As well, pleading guilty to careless driving is an admission of guilt which can be used at a civil trial to establish liability. It is almost always worthwhile to obtain disclosure and negotiate with the prosecution in a careless driving case as there are often lesser and included offences which also fit. Where such offences cannot be agreed to, tailoring the facts to limit civil liability may be possible and desirable.

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at nathanbakerlaw@gmail.com.

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