|Posted by Kruse Law on December 13, 2017|
Unlike ‘dangerous driving’, ‘careless driving’ is not a criminal offence. However, careless driving is sometimes referred to as a quasi-criminal offence and is certainly considered a serious charge under Ontario’s Highway Traffic Act. A conviction for careless driving may result in significant consequences, including a loss of licence for up to two years. The Highway Traffic Act s. 130 defines careless driving as follows.
“Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2000 or to imprisonment for a term of not more than 6 months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.”
In addition to the above penalties, a careless driving conviction carries six demerit points. Demerit points remain on your driving record for three years from the date of the offence. If a fully licenced driver has between 9 and 14 demerit points, they may be required to attend an interview with a Ministry of Transportation official to show evidence why their driver’s licence should not be suspended. However, if a person is convicted of careless driving and the Court also suspends their licence for any period of time, they will not receive any demerit points.
Note that the definition of ‘highway’ under the Highway Traffic Act includes streets, driveways, bridges and other areas intended for vehicle use by the general public. This suggests that a person cannot be found guilty of careless driving if they are driving in a private parking lot or on a sidewalk.
As stated by the Ontario Court of Appeal in the landmark case, R. v. Beauchamp (1952), ‘objective’ driving conditions, such as visibility, road conditions and traffic, are constantly changing, but the legal standard for careless driving remains the same – it is what an average careful and prudent driver would have done in the same circumstances. The test for careless driving defined in Beauchamp, is:
“Whether it is proved beyond reasonable doubt that this accused, in the light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances?”
This means that drivers should not be held to a standard of perfection. It also implies that a momentary lapse in judgement is generally insufficient to justify a conviction for careless driving. Also, as noted in R. v. Globoki (1991), accidents resulting in serious injury or death are not, except in unusual circumstances, relevant in an assessment of whether a driver departed from the required standard and to a finding of careless driving.
Careless driving is a strict liability offence and the fact that an accident occurred can alone establish the “actus reus” (i.e. the actionable conduct or wrongful act) of careless driving, depending on the circumstances of the accident. Once the Crown has proven the wrongful act of careless driving, the onus is on the defendant to show that he or she took reasonable care in the circumstances.
R. v. Shergill is a 2016 Crown appeal of a case where a driver was acquitted of the charge of careless driving. The defendant, a tractor trailer driver, was charged with careless driving after he rear-ended a milk truck (also a tractor trailer), on Hwy. 24. The accident occurred during clear driving conditions when the milk truck had stopped and was in the process of turning left at an intersection. The Justice of the Peace based her decision to acquit the defendant on R. v. Beauchamp, where the Court found, to qualify as careless, a driver’s conduct should be both deserving of punishment as well as departing sufficiently from the standard of care expected of a prudent and reasonable driver. The Justice of the Peace concluded that the defendant’s action constituted ‘inadvertent negligence’ and the accident occurred due to an error in judgment, although she acknowledged that the accident would perhaps not have occurred if the defendant kept a further distance or reduced his speed.
On appeal, Justice Epstein disagreed with the Justice of the Peace’s reasoning, including the fact that the burden was placed on the Crown to show that the defendant’s driving was ‘deserving of punishment’. After hearing evidence on the circumstances of the accident and the drivers’ testimony, the Justice of the Peace had been left wondering why the accident occurred on a clear day and in light traffic. Justice Epstein asserted that, because careless driving is a strict liability offence, the onus was on the defendant to satisfy the Justice of the Peace that he had done all that was reasonable in the circumstances and that the accident occurred through no fault of his own. As the defendant failed to meet this onus, Justice Epstein concluded he should have been convicted. On this basis, the Crown’s appeal was allowed and the earlier decision was overthrown.
Dangerous driving, otherwise known as ‘dangerous operation of a motor vehicle’ is a criminal offence under the Criminal Code s. 249(1)(a). The Code defines this offence as operating “a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.”
A conviction for careless driving and dangerous driving both have a significant impact on an offender’s vehicle insurance rates. However, because dangerous driving results in a criminal record, more substantial consequences will result from a dangerous driving conviction, such as lengthier licence suspensions, potential employment problems and additional serious repercussions if an offender is found guilty of a further criminal offence.
Under the Criminal Code, a person convicted of dangerous operation of a motor vehicle may be sentenced to up to five years in prison. If the person’s conduct results in injury or death to another person, the consequences are even more serious. Dangerous operation causing bodily harm may result in up to 10 years in prison and dangerous operation causing death carries a maximum 14-year prison term.
In addition to a criminal record and prison time, anyone found guilty of dangerous operation of a motor vehicle will receive an automatic one-year licence suspension for a first offence, and longer suspensions for subsequent convictions.
There are some similarities between the offences of dangerous driving and careless driving. Like careless driving, a momentary lapse of attention during otherwise normal driving actions is not sufficient to establish conduct that constitutes ‘dangerous operation of a motor vehicle’ within the meaning of the Criminal Code s. 249.
In R. v. Beatty (2008), the Supreme Court of Canada stated that a finding of dangerous driving requires a ‘marked departure’ from normal driving conduct. The Court found “a moment of lapse of attention, in the context of totally normal driving is insufficient to establish the marked departure required for the offence of dangerous driving”. Not unlike careless driving, the Court asserted that drivers are not held to a standard of perfection. However, the Court went further to say that “even good drivers are occasionally subject to momentary lapses of attention”; and depending on the circumstances, a lapse of this nature may result in civil liability or a careless driving conviction, “but they generally will not rise to the level of a marked departure required for a conviction for dangerous driving”.
A person accused of dangerous driving may be able to have their charge reduced to careless driving. This is a far better outcome since careless driving does not result in a criminal record or lead to an automatic licence suspension. Kruse Law Firm is often able to negotiate with the Crown to reduce a dangerous driving charge or impaired driving/’over 80’ charges to a careless driving conviction where circumstances warrant it.
If you are charged with careless driving or dangerous driving, you need representation by an experienced and skilled criminal defence lawyer who understands what is required in building a strong defence with the goal of having the charge dismissed. At Kruse Law, our criminal law team focuses on defending driving offences, including dangerous driving, impaired driving/DUI and careless driving offences, and we have successfully defended many such cases for well over 24 years. You can be assured that the Kruse Law team will do everything possible to win your case and allow you to maintain your driving privileges.
|Posted under Criminal Charges, Criminal Records|
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