Wednesday, November 28, 2012

"Change Lane Not in Safety" and "Fail to Drive in Marked Lane", are not lesser and included offences of "Careless Driving"


Greater Sudbury (City) v. McNeil 2012 ONCJ 157, 99 W.C.B. (2d) 754 has a careful analysis of what is, and more important is not, included as a lesser offence for careless driving.  Especially note the passage “I would go so far as to say that unless particulars are provided which would spell out a manner of committing "Careless Driving" that includes all of the essential elements of another offence then there can be no lesser and included offences for "Careless Driving."”:


13          Section 55 of the Provincial Offences Act states as follows: "Where the offence charged includes another offence, the defendant may be convicted of an offence so included that is proved, although the whole offence charged is not proved."


14          The Prosecutor referred me to the head notes of two cases in the 2011 Annotated Provincial Offences Act by Murray D. Segal and Justice Libman to support her position that "Change Lane Not in Safety" contrary to section 142(1) of the Highway Traffic Act and "Fail to Drive in Marked Lane" contrary to section 154(1)(a) of the Highway Traffic Act are lesser and included offences of "Careless Driving." Her position was that if I find the defendant not guilty of Careless Driving I should find him guilty of either of these two charges based on the evidence and the fact that they are lesser and included offences.

15          Before reviewing those cases referred to by the Prosecutor I will review other cases which deal with the issue. In R. c. R. (G.), [2005] 2 S.C.R. 371 (S.C.C.), the Supreme Court of Canada considered the issue of included offences pertaining to criminal matters. Although the wording of section 662 of the Criminal Code is not identical to section 55 of the Provincial Offences Act I am satisfied that they are close enough and based on the case law that the test to be applied in interpreting these sections is the same. At paragraph 27 Justice Binnie speaking for the majority accepted the findings of the Ontario Court of Appeal in a previous decision of R. v. Simpson (1981), 58 C.C.C. (2d) 122 (Ont. C.A.) when it stated: "Martin J.A. of the Ontario Court of Appeal also insisted on making clear to an accused the precise extent of his or her legal jeopardy: "The offence charged as described either in the enactment creating the offence, or as charged in the count, must contain the essential elements of the offence said to be included....the offence charged, as described either in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet." Justice Binnie also stated at paragraph 25 that the test is a strict one and the lesser charge must "necessarily" be included and if it is not "necessarily included" then it must be excluded.

16          A case that is quoted in many other cases as being a short but clear  interpretation of lesser and included offences is R. v. Foote, [1974] N.B.J. No. 32 (N.B. C.A.). Justice Limerick speaking on behalf of the New Brunswick Supreme Court Appeal Division stated at paragraph 6: "An included offence is not merely a "lesser offence" as it is sometimes referred to but is an offence that the accused necessarily commits in the commission of the offence charged."

17          Justice of the Peace Cuthbertson in the case of R. v. Richards, 2009 ONCJ 651 (Ont. C.J.) applying the analysis of the law which he sets out in his prior case of R. v. Reiber, 2007 ONCJ 343 (Ont. C.J.), finds that the charge of "Failing to stop for a red light" is not a lesser and included offence of the charge of "Careless Driving" as the actual wording of section 130 (Careless Driving) does not contain the essential elements of section 144(18) (Failing to  stop for red light). He also finds that since the charging certificate states only "Careless Driving" the certificate does not inform the defendant that she may have to defend herself against a charge of "Failing to stop for a red light."

18          Applying section 55 of the Provincial Offences Act and the case law above which illustrates this section to this case, I find that the offences of "Change Lane Not in Safety", and "Fail to Drive in Marked Lane", are not lesser and included offences of "Careless Driving." "Careless Driving" as set out in section 130 is a very broad and general charge. It can be committed in countless ways. One can imagine many scenarios where a person never leaves  their lane of travel and yet still commits the offence of "Careless Driving." Must a person commit an offence of "Change Lane Not in Safety" during the course of committing an offence of "Careless Driving"? Clearly the answer is no and therefore the charge does not meet the test for a lesser and included offence. The same must be said of "Fail to Drive in Marked Lane." I cannot find the defendant guilty of either of those two charges simply because the evidence may better support those charges rather than a charge of "Careless Driving."

19          Applying the second part of the test as set out in R. c. R. (G.), to the case at bar...would the defendant be aware that he was facing the possibility of defending himself against the charges of "Change Lane Not in Safety" and "Fail to Drive in Marked Lane"? The answer is no as the charging document is a Certificate of Offence which does (and must) state the approved short form wording for the offence, which in this case is simply "Careless Driving". As this offence can be committed in numerous ways the defendant would not be aware of which other possible charges he may be facing. I would go so far as to say that unless particulars are provided which would spell out a manner of committing "Careless Driving" that includes all of the essential elements of another offence then there can be no lesser and included offences for "Careless Driving."

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