I don’t practice in traffic court very much anymore, mostly because the penalties at stake for defendants don’t justify the legal fees. As a former Assistant Crown Attorney, I once did a six-month stint prosecuting traffic court. The procedure hasn’t changed much since then.

In criminal court, a guilty plea is generally given greater weight the earlier it is entered into by the accused. The reasons for that are fairly straightforward. First, an early plea shows remorse – an indication that the accused is well on the way to rehabilitation. Second, it saves the court the time and expense of a trial – the earlier the plea, the greater the savings. (Criminal prosecutions consume valuable court space and high-priced labour.) Third, it saves the victim and witnesses the stress and inconvenience of preparing for and testifying at trial.

In traffic court, the exact opposite often occurs. The best deals (“plea bargains”) are often available on the day of trial. The reasons for that are less obvious. In criminal court, 1-3 trials are carefully scheduled into about 5 hours of court time each day. In traffic court, 10-12 trials are randomly loaded onto a 90-minute docket. Although traffic court trials are generally simpler, a prosecutor would never get through the list if all 10-12 defendants went to trial. Many matters would be adjourned to a later date, resulting in costly delay and triggering a possible remedy under section 11(b) of the Charter (unreasonable delay). Traffic offences aren’t worth the extra resources. As a result, a good prosecutor will aggressively entertain plea bargains on a trial date.

What considerations are relevant to plea-bargaining in traffic court? First, is the officer there? A good prosecutor should tell you that up front, but they often don’t because they dislike defendants who play “witness poker”. If the officer is not in attendance, and is not “on standby”, the prosecutor is probably not in a position to prove the case. In that event, he or she will usually be more than willing to plea bargain or even withdraw the charge(s) outright.

Were you polite to the officer on the side of the road? If you gave the office a hard time or said, “I’ll see you in court,” you can be sure you will see him in court. And he’s the first person the Crown will consult when considering a plea bargain.

Did the officer already give you a deal at the roadside? For example, did he clock you at 30 over the speed limit, but only charge you for 15 over? Did he cite three infractions, but only write up two? Don’t be greedy. The officer will remember.

Do you have a good driving record? Do you present as patient, polite, respectful and remorseful? Remember, it’s a human process; you are asking a busy prosecutor to exercise his or her discretion in your favour.

One final word about plea-bargaining. Once you plead guilty, demerit points are automatic – the court has no discretion. Points stay on your driving record for 2 years. (The conviction stays for 3 years.) So choose your offence carefully, if you can. Even if a fine is stipulated as a minimum, s. 59(2) of the Provincial Offences Act allows the court to reduce it in exceptional circumstances.

Never plead guilty to careless driving (unless pleading down from a Criminal Code offence). Aside from the case law – which favours the defendant – the penalties for careless driving are substantial: a fine ($400-$2,000), plus a “victim fine surcharge” (about 25% of the fine), up to 6 months in jail, 6 demerit points, and a possible licence suspension (0-2 years). In addition, you run the risk of a substantial increase in your car insurance premiums for up to 5 years. I’ll have more to say about careless driving in another blog.