"Without due care and attention" means driving below the level of care that an ordinary careful driver would have shown in the same conditions. It is the first of the two ways to commit the offence in section 130(1) of Ontario's Highway Traffic Act, the section behind a careless driving charge.
The phrase is short, and the statute does not define it. Its meaning comes from the courts, and the Court of Appeal for Ontario has described how the burden is split between the prosecution and the driver. This article takes the phrase apart, then follows how a court tests driving against it, using two decisions of that court that anyone can read on its website.
Which words of section 130 does a court look at?
Section 130(1) names two failings joined by "or": a lack of "due care and attention", and a lack of reasonable consideration for the other people on the road. The charge can allege either half or both. Read piece by piece, the first half raises four separate questions.
- "without"The prosecution has to show something missing from the driving. A collision, damage or injury is not itself the missing thing; it is evidence about it.
- "due"Due means the amount of care that the conditions called for. Fog, ice, a school zone or heavy traffic raise it. An empty dry road at noon lowers it.
- "care"Care is about how the vehicle was handled: speed, distance, signalling, lane position, braking.
- "and attention"Attention is about where the driver's mind and eyes were: on the road, on a phone, on a passenger.
The second half, "reasonable consideration for other persons", looks outward at the people sharing the road. Section 130(5) adds that a person is treated as driving without reasonable consideration when they drive in a manner that may limit their ability to adjust prudently to changing circumstances on the road.
Is the measure a perfect driver or an ordinary one?
An ordinary one. The comparison is with a reasonable driver placed in the same circumstances, not with an expert and not with a driver who never makes a mistake. That is why the facts around the driving carry so much weight at a trial: the weather, the light, the road surface, what other vehicles were doing and what the driver could see from the seat.
Careless driving is a provincial offence, not a crime, and it is prosecuted in a Provincial Offences Court. It is often started by a summons rather than a ticket, a route explained in what a Provincial Offences Act summons starts.
Why is careless driving called a strict liability offence?
Canadian law sorts offences into three groups. The Supreme Court of Canada set them out in R. v. Sault Ste. Marie in 1978, and the Court of Appeal for Ontario restated them in R. v. Raham, 2010 ONCA 206, at paragraph 32.
Mens rea offences
The prosecution proves a guilty state of mind, such as intent or knowledge.
Strict liability offences
The prosecution proves the prohibited act. The accused can avoid liability by showing all reasonable care was taken. Careless driving sits here.
Absolute liability offences
A conviction follows proof of the act, and no amount of care is an answer.
Strict liability is the middle path. The driver's intention is not the question, and neither is how experienced the driver is. The question is what a careful driver would have done.
Who has to prove what at a careless driving trial?
In R. v. Veseli, 2015 ONCA 795, the Court of Appeal adopted this summary of the law, at paragraph 6:
Careless driving is a strict liability offence where Crown counsel at trial was required to prove that Mr. Veseli drove without due care and attention. However, if Mr. Veseli could show, on the balance of probabilities, that what was done was without negligence or fault on his part he would avoid conviction.
R. v. Veseli, 2015 ONCA 795, para. 6
The prosecution
Proves beyond a reasonable doubt
that the defendant drove without due care and attention, or without reasonable consideration, on a highway or in a place the Act covers.
The driver
May show on a balance of probabilities
that what was done happened without negligence or fault on the driver's part. The same paragraph adds that a reasonable mistake leads to no conviction.
A balance of probabilities means more likely than not. It is a lower standard than proof beyond a reasonable doubt, which only the prosecution carries.
Does a rear-end collision prove careless driving on its own?
The Veseli case turned on exactly that argument. The record of the case, as the Court of Appeal describes it, runs in four steps.
- 9 June 2014A justice of the peace of the Ontario Court of Justice convicted a taxi driver of careless driving in his absence. He had missed the trial because he lost the trial notice. The conviction carried six demerit points.
- 10 November 2014His appeal to the Ontario Court of Justice was dismissed. The prosecutor argued that because he was the following car in a rear-end collision, no defence was available, and the appeal judge agreed.
- 15 April 2015A judge of the Court of Appeal granted leave to appeal on one question of law: whether the appeal judge was right that he had no defence to the charge.
- 19 November 2015The Court of Appeal allowed the appeal, set the conviction aside, ordered the fine money returned and ordered a new trial.
The driver had told the appeal judge that the car ahead pulled out of a long line waiting for a lifted bridge, changed its mind and cut back into the line in front of him. The Court of Appeal said, at paragraph 9, that those statements, if given as testimony and believed by the trial judge, could provide a defence. It also noted that he never had a trial on the merits and that English is not his first language.
The case does not say what happened at the new trial, and it does not say that every rear-end collision is defensible. What it settles is narrower: the type of collision does not, by itself, end the inquiry into fault.
What does "all reasonable care" cover, and what does it leave out?
Raham was a stunt driving case, but the Court of Appeal used it to explain how the due diligence answer works for any strict liability offence. Paragraphs 47 and 48 draw the line this way.
Counts
- Steps taken to avoid the specific act charged, at the moment it happened.
- A reasonable but mistaken understanding of the facts, which the court calls a reasonable mistake of fact.
- What a reasonable person would have done in the same circumstances.
Does not count
- Acting reasonably in a general sense, apart from the act charged.
- Showing that the person was acting lawfully in a broader sense.
The court put it plainly: "a due diligence defence is not made out by acting generally in a reasonable way". The same paragraph adds the other side. The answer is not necessarily lost because of conduct around the act, legal or illegal, unless that conduct shows a failure to take reasonable care in doing the act itself. Either way, the inquiry stays on the act the charge describes.
Where does careless driving end and dangerous driving begin?
Dangerous operation is a separate offence in the Criminal Code, and it is the one that can lead to a criminal record. The two are often confused because the same event can be charged either way.
| Point | Careless driving | Dangerous operation |
|---|---|---|
| Law | Highway Traffic Act, s. 130 | Criminal Code, s. 320.13 |
| Words of the offence | A lack of due care and attention, or of reasonable consideration for others on the road | Operating a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public |
| Kind of offence | Provincial, strict liability | Criminal |
| Where it is heard | Provincial Offences Court | Criminal court |
| Who is measured against whom | The driver against an ordinary careful driver in the same conditions | The manner of driving against the danger it posed to the public |
How the Criminal Code splits offences into summary and indictable routes is set out in what a summary offence means in Canada. Penalties and demerit points for section 130 are listed on the firm's careless driving page.
Angelina Shuster, who leads Karb Law, holds a paralegal licence from the Law Society of Ontario, and a careless driving trial is a provincial offences matter that falls inside that licence. What you have read here explains how courts read section 130 in general; it is not legal advice and does not make anyone a client of the firm or create a paralegal-client relationship. A careless driving charge can be sent in for a free assessment.
