If a Person Is Charged With Distracted Driving, Is It Possible to Plead Guilty to a Lesser Charge?
Although There Can Never Be Complete Assurance That a Driving Charge Such As Distracted Driving, Among Many Others Can Be Successfully Fought, There May Be Options Available That Protect Your Driving Record, Reduce the Fine, and Lessen the Effect Upon Insurance Rates, If Any at All..
Understanding Whether Negotiating a Plea Deal Is An Appropriate Solution
At the scene of a road stop or accident, the police will often charge a driver, meaning issue a traffic ticket, with the broadest and sometimes the most serious charge possible.
Generally, there are many reasons for the police to do so including, among other things:
- To charge the driver with the offence that is easiest for the Prosecutor to prove; and
- To provide the Prosecutor with opportunity to negotiate a plea to a lesser charge.
Accordingly, there are often lesser charges, that come with a lesser fine, lesser demerit points, if any, and lesser affect upon insurance rates, also if any. Knowing what the lesser charges are, and in what circumstances it is both appropriate to admit guilt and arrange a plea deal, if at all, is where the professional and experienced services of Toomey Paralegal Services comes in.
Example, lesser charge options
As an example, in a typical and common rear-end accident, the vehicle struck from behind is almost always without fault (generally, unless backing up or purposely slamming the brakes to cause an accident). In these situations, the driver operating the vehicle that rear-ended the vehicle in front is routinely charged with Careless Driving contrary to section 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8 however, the offence of Careless Driving is actually a very serious charge for what is often a relatively minor situation such as a slight bumper bump. Unfortunately, in this situation and by definition, careless driving is usually the most fitting offence within the Highway Traffic Act that the police officer can charge. It is necessary to keep in mind that the police officer has a public duty to ensure that the driver who caused the accident can be subsequently proven as the at-fault driver, if necessary; and beyond just proven as the at-fault driver in traffic court but also in civil court if, for possibilities that the police officer is unable to foresee at the accident scene, a civil liability claim arises. However, in these situations, the Prosecutor may plea deal and allow driver charged with the serious offence of Careless Driving to plea down to the section 158 minor offence of Following Too Close.
Some people might ask why the police officer charges the Careless Driving in the first place rather than placing a charge for Follow to Close in the beginning. As above, by placing the serious charge at the scene, the Prosecutor is better positioned to obtain a plea to the lesser charge. Additionally, sometimes the police officer will consider the difference in definition between the two charges and will choose the Careless Driving charge in knowing that the Careless Driving charge is defined somewhat vaguely, and is therefore sometime easier to prove in court.
However, it is important to keep in mind that accidents can, and do, happen without the legal definition of carelessness being met. For example, the courts have frequently dealt with the legal question of when does a temporary lack of attention become careless and it is decided that momentary inattention is excusable whereas in R. v. Richards, 2009 ONCJ 651 it was stated that:
 In R. v. Beauchamp (1953), 16 C.R. 270, the Ontario Court of Appeal stated the standard for careless driving is a constantly shifting one which depends on the road, visibility, weather and traffic conditions as well as other conditions which an ordinary driver would take into consideration.
In the matter at bar, clearly the visibility was limited by the fog. Nonetheless, Officer Nelson acknowledged that his visibility extended to 50 metres which provided a limited range of view for Ms Richards. While the road was wet from the fog, no evidence suggested Ms Richards could not stop due to road conditions. No evidence was led there were adverse traffic conditions. Officer Nelson testified that he was travelling at 60 kph and Ms Richards at approximately 40 kph. Therefore, Ms Richards’ was driving at a reasonable speed for the conditions of limited visibility and wet roads which existed that night. In my view, it cannot be said that she was driving “without due care and attention or without reasonable consideration for other persons using the highway”.
(6) The offence of "driving carelessly", created by s. 130 of the Highway Traffic Act, is defined as driving on a highway "without due care and attention or without reasonable consideration for other persons using the highway". The law has been clear for decades that in order to make out the offence under s. 130, the driving must be of such a nature that it amounts to a breach of one's duty to the public and is deserving of punishment: see R. v. Beauchamp (1953), 16 C.R. 270 at p. 278 (Ont. C.A.). A driver is not held to a standard of perfection, and a mere error of judgment is not necessarily sufficient to establish the offence: see R. v. Wilson (1971), 1 C.C.C. (2d) 466 (Ont. C.A.). Careless driving, generally speaking, requires proof of a departure from the standard of care that a reasonably prudent driver would have exercised in the circumstances, and normally involves, I would think, conduct that includes other less serious Highway Traffic Act infractions.
(7) Mr. Klaiman, counsel for the appellant, also referred in his factum to the pertinent judgment of Killeen Co. Ct. J. in R. v. Namink,  O.J. No. 317 (QL), where, at para. 10, the learned County Court judge stated as follows:
It is trite to say that this is a quasi-criminal charge, and that to make out a charge under this section the evidence must bespeak conduct deserving punishment in the way of a conviction under this section of our Highway Traffic Act. Mere momentary inattention, or a simple kind of error of judgment, does not bespeak the kind of conduct over which the net of this section is cast.
At the scene of an accident or a traffic stop, the police may charge the harshest offence applicable to the circumstances. By charging the harshest offence the police provide the Prosecutor with an opportunity to negotiation a resolution with the accused. In some circumstances, it may make sense for a person accused of a driving offence to negotiate a resolution or what is commonly known as a plea deal. Toomey Paralegal Services may review the situation, including the evidence disclosure of the prosecution as well as the evidence available from the accused or witnesses, and advise on a best strategy including whether to fight the charge at Trial or to negotiate a plea deal.