As I suggested in my previous blog, never plead guilty to careless driving (unless pleading down from a Criminal Code offence). Although a conviction for careless driving is not a criminal record, it does carry serious penalties. More importantly, the case law favours the defendant.
Section 130 of Ontario’s Highway Traffic Act penalizes driving “without due care and attention” or “without reasonable consideration for other persons.” (The driving must have occurred on a public road, not a private road or parking lot.) At first blush, it sounds like a two-pronged test. In practice, the courts have held that inadvertent (unintentional) negligence is enough to make out the offence (R. v. Shergill). The concern is with a lack of attention, NOT a lack of skill. Careless driving is one of the most serious offences in the HTA, and has been characterized as “quasi-criminal” (R. v. Beauchamp). Perhaps for that reason, the courts have held that a driver is not held to a standard of perfection (R. v. Ereddia). A momentary inattention or simple error of judgment is invariably not enough (R. v. Namink). In summary, what is generally required is a pattern of careless driving, even if the pattern is very brief.
Notwithstanding the sympathetic jurisprudence, police routinely lay careless driving charges where there’s been a motor vehicle accident, especially a rear-ender. One client told me that an apologetic officer said he had to lay a charge of careless driving because it was a rear-ender. That is undoubtedly not the law. In other scenarios, a driver’s roadside comments may be the difference in deciding whether to lay a charge. Although the legal test is objective, the officer invariably makes a subjective assessment.
If you are involved in a motor vehicle accident that results in personal injuries or in damage to property exceeding a prescribed amount (currently $1,000), section 199 of the HTA requires you to report the accident to a police officer, including the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, and any other information the officer may require to complete a written report of the accident. (If an officer does not attend the scene, you are required to report the details to a collision centre.)
Because this requirement undermines your right to silence (embedded in section 7 of the Charter), the Supreme Court of Canada has held (R. v. White) that your statement can’t be used against you at your trial (even if that’s the only way to establish that you were the driver). In practice, absent the necessary Charter application, such statements go in all the time. One client involved in a sudden rear-ender explained to the rookie officer, “I guess I just wasn’t paying attention.” Needless to say, the officer recorded that statement in her notebook for use at trial. My advice is that you choose your words more carefully, focusing on facts (“The car in front of me stopped suddenly”), not conclusions (“I guess I just wasn’t paying attention”). Remember, “a momentary inattention” or “a simple error of judgment” does not amount to careless driving.
A final word about insurance. If you never report the accident to your insurance company, it may not find out about it, even if you are subsequently convicted of careless driving. However, if you attempt to switch insurers within the next three years, the prospective insurer will discover the conviction. Even if you have so-called “accident forgiveness” or “accident-free protection”, a conviction for careless driving (if discovered by your insurer) will almost certainly increase your premiums dramatically for several years. Insurance companies view all careless driving convictions (regardless of the facts) as serious offences, right up there with Criminal Code convictions like impaired driving and dangerous driving.