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Careless Driving Offence (HTA 130)

Being charged with careless driving, you will find yourself with a potential hefty fine with 6 demerit points. You can be fined from $400 up to $2,000, or even potential jail time with no more than six months. For a novice driver such as G1, G2, M1 or M2, one can even face the suspension of licence for no more than two years upon conviction. Careless Driving is commonly considered one of the most serious charges. So, what is careless driving?

Statute



In Ontario, section 130 of the Highway Traffic Act, RSO 1990, c H.8 (HTA) defines careless driving as below:
130 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 $2,000 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. 2009, c. 5, s. 41.

Case law interpretation



1. Offence

Three categories of offences were recognised in R v Sault Ste. Marie (City), [1978] S.C.J. No. 59, 40 C.C.C. (2d) 353. They are "absolute liability", which would arise where the legislature has made it clear that guilt would follow on mere proof of the proscribed act, strict liability in which mens rea need not be established, and "mens rea" in which mens rea, which refers to a "guilty mind", must be established. As a regulatory offence, careless driving was held by the Court of Appeal as one of strict liability in R v McIver, [1965] 2 O.R. 475.

2. Burden of proof

In order to establish there is a prima facie case of careless driving, the Crown must prove the accused conducted the "prohibited act" as set out by MacKay J.A. of Ontario Court of Appeal in McIver, supra. While in R v Beauchamp, [1953] OR 422, [1953] 4 DLR 340, 106 CCC 6, the Ontario Court of Appeal summarized the criteria for establishment of a case of careless driving as that the evidence must be proven beyond a reasonable doubt that the accused drove without due care and attention or without reasonable consideration for the others in light of the existing circumstances, owing in which a reasonable ordinary prudent driver would do, plus, the standard of care and skill is not one of perfection. According to R v Beauchamp, the use of the term "due" means care owing in the circumstances, which is constantly shifting based on factual situation.

Such reasoning was followed by MacDonnell J. in R v Globocki, [1991] OJ No. 214; (1991), 26 MVR (2d) 179 (Ont Prov Ct). MacDonnell J. noted that a court must measure the manner of the defendant`s driving at the material time "against the standard of the care that an ordinarily prudent driver would have used in the circumstances faced by the defendant" while ruling on careless driving, and such standard is not one of perfection.

Further in paragraph 3 of R v Wilson, [1970] OJ No. 1658 (Ont CA), the Court of Appeal indicated that "Mere inadvertent negligence, whether of the slightest type of or not, will not necessarily sustain a conviction for careless driving". The term "Inadvertent negligence", according to the case of O`Grady v. Sparling, 25 D.L.R. (2d) 145, 128 C.C.C. 1, [1960] S.C.R. 804, 33 C.R. 293, 33 W.W.R. 360, is dealt with under the provincial legislation in relation to the regulation of highway traffic.

3. Due diligence defence
Once the Crown proves beyond a reasonable doubt that the accused drove a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway, the burden then shifts to the accused to prove due diligence, on a balance of probability, whether his/her conduct falls below the reasonable man’s standard. If not, then he/she is not negligent or lack of due care.

4. Recent cases

In R v Ariganello, [2013] OJ No. 211, 2013 ONCJ 13, the appeal of the accused from a conviction for careless driving contrary to s. 130 of the HTA was allowed and an acquittal was entered. The accused suffered intense coughing while driving and closed his eyes resulting in his vehicle veering off the roadway and struck and killed a pedestrian on the shoulder of the roadway. His co-worker’s testimony affirmed that the accused had a heavy cough at work that day. He was convicted. On the appeal, it’s held that the accused closed his eyes involuntarily due to a coughing and choking episode. The onus of proof when raising a due diligence defence is on the balance of probabilities. The accused met the evidentiary burden of explaining that the accident occurred was not due to his negligence or fault.

In R v O`Dowd, [2015] OJ No. 6685, 2015 ONCJ 716, the accused was acquitted of careless driving and convicted of failing to remain at the scene of the accident in an ex parte trial. As to the careless driving charge, though the accused admitted to the officer that the speed of his vehicle might have caused the car to not take the curve resulting in his motor vehicle rolling over and going down an embankment, the Crown failed to establish all of the elements of the actus reus of the offence of careless driving, ie. the accused driving conduct prior to the accident was without due care and attention. As stated in para 63 of R v O’Dowd, the accused`s failure to reduce the speed was an error in judgment, which was inadvertent negligence, rather than advertent negligence, because driving at a rate of speed of between 10 and 20 kilometres per hour over the lawful speed limit as he approached the curve on the road was, not sufficient enough to be considered a breach of the defendant`s duty to the public, and therefore, deserving of punishment.

The content on this website provides only an academic overview, and does not constitute legal advice. Specific legal advice should be obtained regarding individual’s specific question.

© Sum Lau