1. Case Name:
R. v. Prescott
Between
Her Majesty the Queen, and
Ian Prescott
[2008] O.J. No. 2710
Ontario Court of Justice
Toronto, Ontario
M. Omatsu J.
Heard: May 14, 2008.
Oral judgment: May 14, 2008.
(9 paras.)
Charges: S. 158(1) Highway Traffic Act - Follow Too Closely.
Counsel:
K. Peterkin, Ms.: City Prosecutor.
M. Riddell, Mr.: Counsel for the Appellant.
JUDGMENT
1 M. OMATSU J. (orally):-- Regarding the matter of Ian Prescott who is charged with following
too closely under the Highway Traffic Act Section 158(1). The facts were on July the 12th, 2006 at
4:35 p.m., in Willowdale and Olive Avenue in Toronto, there was a rear-end collision. The roads
were wet, it was two-lane street, the cars were lined up at a red light, possibly as many as 10 cars
according to a civilian Mr. Lagos. Mr. Lagos' car was second to the end in the lineup and behind
Mr. Lagos was a stopped car.
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2. 2 The defendant Prescott denied that he was speeding, however, the civilian witness, Mr. Lagos
testified that he saw the defendant speeding and heard the defendant's screech of brakes. The
defendant hit the car, the last car in the line, which then hit Mr. Lagos' car. The defendant admitted
that he did not see the yellow light, so he did not see the change in light. There was no evidence of
the distance between the hit car and the defendant's car, and the police officer did not see any skid
marks. The learned Justice of the Peace found Mr. Prescott guilty of following too close. Section
158(1), says:
"The driver of a motor vehicle or streetcar shall not follow another vehicle or
streetcar more closely than is reasonable and prudent having due regard for the
speed of the vehicle and the traffic on and the conditions of the highway."
MY DECISION
3 On the evidence that Mr. Prescott was traveling too quickly paying insufficient attention, that is
to say he did not see the lights changing, and as a result he banged into a stopped car, on appeal, I
am directed to the following two issues.
4 The first issue, there was no evidence as to the distance between the two cars. In the Ontario
Court of Appeal decision in Ouseley, (1973) 10 C.C.C. (2d) 148, in dismissing a finding of guilt for
following too close, the Court held:
"The Crown position would go so far as to suggest that on each occasion where a
rear-end collision occurs at some fleeting second, the following car committed an
offence under section in those days it was 105(1) of the Highway Traffic Act and
that nothing more need be proved other than the fact of the collision. In our view,
the impact itself would sustain logical inferences other than that the respondent
was following too closely. The trial judge held and we agree with him, that the
collision may have been caused quite logically by inattention on the part of the
respondent or by excessive speed by him. He was not charged with careless
driving, however, and we can see no reason why he should have been convicted
of this offence where there was no evidence whatsoever as to the distance which
separated the two cars until the actual impact."
5 More recently this decision was adopted by the Alberta Court of Queen's Bench in the case of
R. v. Guenter, [1990] A.J. No. 1276. There, the Court adopted the decision of the Ontario Court of
Appeal in R. v. Ouseley, and they said:
"Clearly established how a charge of following too closely should be interpreted.
Where there is no evidence of how closely the accused was following the car into
which he collided. There are many logically inferences that can be drawn
concerning the reason for the accident, one of which may be following too
closely. But there are many other inferences which can be drawn. Without any
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3. evidence as is the case here to support the closeness of the accused vehicle, this
cannot be a prima facie case against the accused.
In my judgment where there is a rear-end collision such as occurred here, the
accused should be charged with careless driving. If this is a charge then a prima
facie case can be established by the Crown and the burden then shifts to the
accused to give an explanation. This is not the case before me accordingly, the
appeal is allowed and the conviction is quashed." That is the end of that quote
from Guenter.
6 The second issue that was directed to me by the appellant was, the hit car was not moving, and
in that case the defendant relied on the B.C. County Court decision in [1990] B.C.J. No. 367
Robbins, in which the judge held that:
"The essence of the offence is following too closely." The judge said, "The
section instructs the trier of fact to determine whether the driver behind was
following more closely than is reasonable and prudent having due regard for the
speed of the vehicles and the amount and nature of the traffic and on the
condition of the highway."
7 The phrase quotes, "speed of the vehicle," indicates to me that the section contemplates that
both vehicles are moving. If that is the law in Ontario and I have not been advised to the contrary by
the Crown, then the appellant cannot be guilty of this offence as the car that he struck was stopped.
In my research by inference I found referring to Ontario civil decisions, which are in the 2007
Annotated Highway Traffic Act volume of Murray Segal, this does indeed appear to be the case in
Ontario.
8 We have the Ontario Court of Appeal decision of De Courcey v. London Street Railway [1932]
2 D.L.R. 319, which says, "A bus operator has no right to drive so closely to the car ahead that if an
emergency in traffic arises as he or she is unable to cope with it without injury to passengers." Then
there is another decision, Whiddon v. Wickstrom [1948] O.W.N 336 and that is an Ontario Court of
Appeal decision, and the case of Toronto v. Waite, [1955] O.W.N 227, a High Court decision, "A
driver who ran into the rear of a vehicle in the front which made a sudden turn was held at fault for
not keeping at a reasonable distance."
9 With respect and deference to the learned Justice of the Peace, in my view on the facts and on
the law for the offence of following too close, (1) there was no evidence of the distance between the
two cars and (2) there was no evidence that the first car which was rear-ended, was moving. Both in
my view are required for a finding of guilt for the offence of following too close. In my view the
defendant was charged with the wrong offence and he probably should have been charged with
careless driving. Since we are unanimous on that point, an acquittal will be noted for Mr. Prescott.
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