Case review of the evidence required for the prosecution to prove a careless driving charge.
The Charges before the Court
The defendant was charged with; Careless driving contrary to the Highway Traffic Act, section 130; and Failing to have an insurance card contrary to the Compulsory Automobile Insurance Act, section 3(1) (a).
The Issues in the Trial for Careless Driving
There does not appear to be any dispute between the prosecution and the defence with respect to the identity of the defendant, which is conceded, nor with respect to the motor vehicle he was driving, the date, time location and the fact of the occurrence of the collision.
The issues are whether the driving of the defendant prior to, and in relation to the accident, constitutes careless driving within the meaning of section 130 of the Highway Traffic Act, and whether, when called upon to do so by the investigating officer, the defendant failed to produce an insurance card for the motor vehicle which he had been driving.
The Evidence the Charge of Careless Driving
The prosecution called two civilian witnesses in addition to the investigating officer. The testimony of the first civilian witness, Mr. Dieter Franke, may be summarised as follows;
On October 25, 2006 he was driving a Dodge cargo van in the curb lane westbound on Highway 401 in Toronto; the traffic was medium, and the condition of the road was good.
He saw a pick-up truck followed by a Honda motor vehicle pass him at a high rate of speed; “I noticed that the person driving this- the grey Honda had the finger out the window, and this was about 100 feet ahead of me.”
The Honda then swerved in front of the pick-up truck, cutting it off as it did so;
“And once the Honda was in front of the pick-up he had slammed his brakes on. Like there was screeching. There were even tire marks on the roadway that were left as evidence. The person in the pick-up truck did not even have a chance to go left or right,” and he struck the rear end of the Honda.
It appeared to Mr. Franke that after the impact, the Honda lost control, swerved across several lanes, and struck a minivan, and crashed into the guardrail, before coming to a stop on the right side of the highway.
When questioned by the court regarding the significance of the finger which he had seen coming from the driver of the Honda as the Honda was passing the pick-up truck, Mr. Franke replied that he “would have assumed that there was some sort of road rage going on here.”
Mr. Franke testified that the driving of the Honda was “very erratic,” not “calm and smooth” and the driver did not appear to be “focused on the road at the time.”
Mr. Franke had been driving a cargo van which is higher than most cars, and the custom seats which he had installed elevated him even more, enabling him to have a clear view of the road ahead.
He estimated the speed of the Honda to have been between 130 and 140 km/h when it made the lane change cutting off the pick-up truck.
When the driver of the Honda slammed on his brakes he was about 1 car length or less in front of the pick-up truck, which applied its brakes but was not able to avoid the accident.
Mr. Franke testified that prior to this incident he had never known either of the two drivers.
Under cross-examination Mr. Franke testified that the driver of the Honda was driving with his hand on the steering wheel, “but the vehicle was actually moving back and forth very slightly…. It was like he was jiggling the steering wheel back and forth almost like he was distracted” and under re-examination he testified that there was nothing ahead of the Honda at the time “that would have caused him to slam on his brakes.”
The prosecutor then called Mr. Francesco Pirillo, the second civilian witness. In summary his evidence is as follows;
On the day and time in question, he was driving a Dodge Ram 1500 pick-up truck westbound on Highway 401 in Toronto when his vehicle became involved in a motor collision with a Honda motor vehicle driven by the defendant.
Both he and the defendant had been attempting to enter the same lane shortly before the collision.
“I managed to enter the lane. The defendant came behind me….then proceeded to cut through traffic to catch up to me [and] ….came through on the right side of me.”
The defendant’s car was “veering side to side. Then he proceeded to pull in front of me where he slammed on the brakes for no apparent reason.” There were no vehicles or debris in front of the Honda at the time.
His pick-up truck hit the Honda from behind causing it to veer to the left, cross several lanes, and collide with a minivan before coming to a stop.
After he had entered the lane ahead of the Honda, he did not see the Honda again until “he arrived at my right hand side.” He was able to see the Honda on his right through his side-view mirror, which is a standard mirror to which he had “attached a round additional mirror on the corner, so I could see the side of my vehicle.”
At the time that the Honda made the lane change in front of him, he was approximately one car length behind the Honda, and he was travelling at between 105 and 115 km/h.
From his vantage position he saw the Honda initially “hit the brakes slightly” before slamming them on; there was nothing ahead of the Honda that could have caused the defendant to slam his brakes on. He was unable to avoid the collision, even though he did brake in an attempt to do so.
The final witness for the prosecution was O.P.P. Officer Nicholas Ariss who testified that after receiving a radio call he arrived at the scene of the accident at approximately 10:50 am, very shortly after the accident had occurred. He investigated the accident, and spoke with the drivers of the three vehicles which had been involved in the accident as well as with Mr. Dieter Franke who had said that he had witnessed the accident.
The relevant aspects of Officer Ariss’ testimony in relation to the charges are as follows:
At the time of his arrival on scene, traffic was moderate and flowing well at around 100 km/h.
Other than as a result of the accident, there was no debris on the roadway which could have contributed to or caused the accident.
The roads were dry, the weather was clear, and the temperature was about 3 degrees centigrade.
When requested by the officer, the defendant was not able to produce a current insurance card for the vehicle; the officer cautioned the defendant, took statements from him, and then charged him with the offences which are before the court.
Motion for Non-Suit for Careless Driving
After the close of the prosecution’s case, the defendant’s legal representative, made a Motion for Non-Suit, which the court denied. The reasons for that Ruling are attached hereto as Appendix “A”.
The Evidence for the Defence in the Trial
The defendant’s testimony may be summarized as follows;
On the day and time in question, he was driving his Honda motor vehicle westbound on Highway 401 in Toronto. In order to overtake a vehicle which was ahead of him, he changed lanes, and then noticed a pick-up truck driving very slowly ahead of him.
He changed lanes again, and overtook the pick-up truck. The pick-up truck then changed lanes, passed him, and moved into the lane in which he was travelling, and began to drive very slowly in front of him. “I was confused why this is happening,” he said “so I realized [that] it should be because when I changed to the fast lane, the pick-up truck changed at the same time, so he assumed I’m trying to cut him off.”
He again changed lanes, passed the pick-up truck, and continued driving for a few kilometers until he again changed into the lane in which the pick-up was driving. At that time the pick-up truck “started driving right behind me very close; it was almost as if he was tailgating me.” He was unable to change lanes at that time because there were other vehicles in the lanes on either side of him, so he kept on driving until he saw “the brake lights from the car in front of me” at which time he slowed down, and his vehicle was rear-ended by the pick-up truck, “which was right behind me.”
His vehicle then veered to the left, crossed several lanes, collided with a minivan, and hit the curb before coming to a stop on the right hand side of the highway.
Before his vehicle was struck by the pick-up truck, he had only been in that lane for “around 15 seconds or something” and he had been travelling at about 100 km/h.
However, under cross-examination he testified that just prior to the accident, he was travelling at about 100 km/h, and noticed that the pick-up truck was about one car length behind him when he saw the brake lights from the vehicle ahead of him, and he slowed down.
Analysis of the Evidence of Driving Carelessly by the Defendant
Let me first deal with the charge of failing to surrender insurance card. Section 3(1) (a) of the Compulsory Automobile Insurance Act provides as follows:
“An operator of a motor vehicle on a highway shall have in the motor vehicle at all times, an insurance card for the motor vehicle, and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer.”
There is no evidence before the court to contradict the evidence of officer Ariss who testified that while in the process of investigating the incident, he made a demand for the defendant’s insurance card, which the defendant failed to provide.
Consequently, I find that the prosecution has proven that charge beyond a reasonable doubt, and a conviction is registered.
In regard to the charge of careless driving, Section 130 of the Highway Traffic Act provides 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 that $200 and not more that $1000 or to imprisonment for a term of not more than six 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.”
Our courts have held that the standard required of drivers in the context of Section 130 H.T.A. is an objective one which is constantly shifting, depending on the road, visibility, weather and traffic conditions that exist at the time or that may reasonably be expected, as well as any other conditions that ordinary drivers would take into consideration.
In R. v. Weedon (1987), 7 M.V.R. (2d)21 (B.C.Co.Ct) the Court held that in Careless Driving cases “the actus reus is improper driving judged on an objective basis. The lack of due care and attention can then be inferred from the objective indicator.”
In R. v. Globocki [1991], O.J. No. 214 (O.C.J.), the Court found that where an accident has occurred, the fact that serious damage, injury or even death has resulted is not, except in unusual cases, relevant to an assessment of whether there has been a departure from the standard of care which would justify a finding of careless driving. The Prosecution is required to show sufficient departure from the standard of a prudent and reasonable driver to render the driving “deserving of punishment.” In R. v. Belisle [1992] Y.J. No. 119, the Court expressed that principle in this way: “…in law the Court must focus on the elements alleged to constitute careless driving, and not on the consequences of the driving, regardless of how serious or tragic the consequences of Careless Driving may be.” In Globocki, the Court held that in each case “it is necessary to consider whether and to what extent the defendant departed from the standard appropriate to the factual circumstances facing the defendant.”
There is clearly conflicting evidence between the Prosecution and the defence with respect to the defendant’s manner of driving. As I am required to do, I shall give due consideration to both versions before coming to a conclusion.
I find that the combined evidence of the two civilian witnesses for the prosecution present a picture of a defendant who is driving without due care and attention and without reasonable consideration for other persons using the highway. For the reasons which follow, I find that the Prosecution has made out a prima facie case of careless driving.
Mr. Franke testified that he was driving westbound on Highway 401 at about 100 to 110 km./hr. when he saw two vehicles, a Honda and a pick-up truck pass him at a higher rate of speed. The vehicles were about one or two car lengths apart when they passed him. About 100 feet after the vehicles passed him, he noticed that the driver of the Honda had his finger out the window, which indicated to Mr. Franke that the driver of the Honda, namely the defendant, was upset with the driver of the pick-up truck for some reason. The pick-up truck remained in its lane, but the Honda sped up, made a sudden lane change, and swerved in front of the pick-up truck, thereby cutting him off. The defendant’s driving appeared to be erratic, and he did not appear to be focused on the road, but rather I find that he was focused on his rage against the driver of the pick-up truck, Mr. Pirillo.
I accept Mr. Franke’s evidence that, seated in his custom seats in his Dodge Cargo van, he was seated higher than most motor vehicles, and had a clear view of the road ahead of him. I also accept the evidence of Mr. Franke, which is corroborated by Mr. Pirillo that the defendant was travelling at between 130 and 140 km. /hr. when he made the sudden lane change.
I accept the evidence of Mr. Franke that after the defendant had made the sudden lane change, he initially put on his brakes, and then slammed his brakes on when he was about one car length ahead of the pick-up truck, causing it to rear-end the Honda, slightly to its right rear-end resulting in the Honda’s veering to its left, and colliding with another motor vehicle before coming to a stop on the right side of the highway.
I also accept the evidence of Mr. Pirillo, the driver of the pick-up truck that the driver’s seat of his vehicle is higher than most other motor vehicles so that he had a clear view of the road ahead and the actions of the person driving the Honda. Both civilian witnesses testified that the road ahead of the Honda was clear at the time and there was no apparent reason for having to slam on his brakes.
Furthermore I find the evidence of Officer Ariss to be compelling in that he found no debris or anything else on the roadway that could have contributed to or caused the accident. He told the court that the roads were dry, bare and level, the weather was clear and the traffic was moderate.
Accordingly, I find that the Prosecution has established a prime facia case of careless driving, and it behoves me now to consider whether the evidence of the defendant creates a reasonable doubt.
The defendant’s explanation is basically that the driver of the pick-up truck was the aggressor in that he kept on changing lanes, and then driving slowly in front of the Honda, requiring the Honda to change lanes in order to overtake the pick-up truck. His evidence is that the pick-up truck then sped up and tailgated him so that when he had to brake because of a slower vehicle ahead of him, he had no opportunity to change lanes, and the pick-up truck rear-ended him.
I find that the evidence of the defendant is lacking in veracity for various reasons: In contrast to the defendant’s version of events, both civilian witnesses testified that there were no vehicles ahead of the defendant, which could have caused him to brake suddenly. The defendant’s version is not consistent; at one point he said that after he had passed the pick-up truck just prior to the accident, he continued to drive until he saw the brake lights from the car in front of him, at which time he slowed down and was rear-ended. In contrast, he subsequently told the court that before his vehicle was struck, he had only been in that lane for “around 15 seconds or something.” Moreover, he also testified that after making that final lane change, he was concerned that the pick-up truck was “traveling fast and coming closer and closer” to him. In my view, it flies in the face of reality that all this could have taken place in about 15 seconds.
I also reject the evidence of the defendant that he did not slam on his brakes, and relying on the evidence of all three prosecution witnesses, I find that there was nothing ahead of the Honda which would have required him to slam on his brakes. Further, I find that after the initial lane change which the pick-up truck made ahead of the defendant, he became enraged, drove erratically, increased his speed in order to pass the pick-up truck and, according to the defendant’s own testimony, within fifteen seconds after making that lane change, the collision occurred. In all the circumstances I draw the inference that the defendant aggressively slammed on his brakes in the hope that thereby he would force the pick-up truck to do the same. However, I believe that he was in such a rage that he misjudged the distance between his vehicle and the pick-up truck and therefore, the sudden braking caused the collision.
I therefore reject the defendant’s version of events, and find that his explanation has not raised a reasonable doubt with respect to his driving.
In my view, the erratic, seemingly out of control driving of the defendant, speeding up, swerving in front of the pick-up truck and then slamming on his brakes constitute careless driving judged on an objective standard against what would be expected of a reasonable driver in the circumstances.
Disposition of the Charge of Careless Driving
On the totality of all the evidence, I am satisfied that the prosecution has proven its case and the evidence supports a conviction for careless driving against the defendant on the charge of careless driving beyond a reasonable doubt, and there will be a conviction registered.
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