R v Kinch

R. v. Kinch

2004 CanLII 11464 (ON SC)
Superior Court of Justice — Justice Durno RSJ | January 26, 2004

Background

On November 23, 2001, William Kinch was driving a fully-loaded dump truck northbound on Highway 10 when he collided with a tractor-trailer making a right turn into a driveway. The tractor-trailer had swung left into the southbound lane to execute the wide turn, then began turning right across both lanes of traffic. Kinch's dump truck struck the tractor-trailer on the shoulder, killing the other driver instantly.

Two witnesses in a mini-van behind Kinch — David Henderson and Lois Osborne — testified that they could see the tractor-trailer was going to turn and slowed down accordingly. They said Kinch's dump truck showed no brake lights and actually appeared to speed up as the tractor-trailer began its turn. Kinch was charged with careless driving under section 130 of the Highway Traffic Act and tried before Justice Morneau in the Ontario Court of Justice.

Issues

1. Did the trial judge err by acquitting Kinch despite finding he drove carelessly?
2. Should the charge have been heard in Provincial Offences Court instead of Ontario Court of Justice?
3. Was there sufficient evidence to establish Kinch's identity as the driver?

The Careless Driving Analysis

The trial judge made devastating findings of fact against Kinch. She found he failed to slow down when the tractor-trailer moved into the southbound lane, despite ideal weather conditions and clear visibility. She rejected his testimony about when he started braking, finding instead that he only applied brakes 20-25 metres before impact. Most damning, she found he actually sped up when he should have slowed down, calling this decision "imprudent."

Under the established test from R. v. Beauchamp, careless driving requires proof that the accused drove "without due care and attention or without reasonable consideration for other persons using the highway." The standard is objective — what would an ordinary prudent driver have done? The trial judge found Kinch fell below this standard, noting that Henderson and Osborne in the mini-van behind him could see what was unfolding and reacted appropriately.

But then the trial judge made a critical error. After finding Kinch drove carelessly, she acquitted him because she had "doubt" whether the accident could have been avoided even if he had driven properly. This fundamentally misunderstood the law. As the Superior Court explained on appeal, the test is not whether better driving would have prevented the accident — it's whether the accused's driving fell below the standard of care. The consequences are irrelevant to guilt.

The Crown's Right to Choose Court

Kinch argued the Crown acted improperly by bringing the charge directly to Ontario Court of Justice instead of Provincial Offences Court. The Superior Court firmly rejected this argument, noting that section 38 of the Courts of Justice Act gives provincial judges the same powers as justices of the peace for POA matters. The Crown has prosecutorial discretion to choose the appropriate forum, similar to choosing between summary and indictable procedure in Criminal Code cases.

Key Takeaway

A finding of careless driving cannot be overturned simply because an accident "might have happened anyway."

This case demonstrates a crucial principle: careless driving is about the quality of your driving, not whether better driving would have prevented the specific accident. If you drive below the standard of an ordinary prudent driver in the circumstances, you can be convicted regardless of what the other driver did wrong.