R v Kotar

R. v. Kotar

[1994] O.J. No. 763
Ontario Court of Justice - Provincial Division — Lenz Prov. Div. J. | February 23, 1994

Background

Kenneth Kotar was driving while under suspension when his vehicle drifted into the wrong lane and struck another parked car. He was charged with careless driving under the Highway Traffic Act. At the hospital, with a head injury and amnesia from the accident, Kotar told police he didn't know what happened but "assumed he fell asleep." The Crown argued this statement proved careless driving. The Justice of the Peace convicted Kotar and fined him $5,000, then sentenced him to 60 days in jail when he couldn't pay.

This wasn't Kotar's first driving offense while suspended — he had been convicted of impaired driving in 1990, received a 16-month suspension, then got caught driving while disqualified in 1991 and received 24 days in jail. Just days after getting off probation in January 1992, he was driving again when this accident happened.

Issues

1. Did the Crown prove careless driving beyond a reasonable doubt?
2. What is the proper burden of proof for careless driving charges?
3. Was Kotar's statement to police properly admitted as evidence?

The Burden of Proof Problem

The judge found a serious error in how careless driving cases were being handled in Provincial Offences Act courts. Referring to the leading case R. v. McIver, the judge noted that some courts had wrongly interpreted the law to shift the burden of proof. Under this incorrect approach, once the Crown proved an accident happened, the defendant had to prove they weren't careless — essentially proving a negative.

The judge ruled this was fundamentally wrong, especially after the Charter of Rights section 7 protections. The Crown must always prove beyond a reasonable doubt that the defendant drove without due care and attention. The defendant never has to prove absence of negligence. While the Crown can use circumstantial evidence, and defendants can offer explanations to raise reasonable doubt, the burden never shifts.

The Statement and Charter Rights

The judge also found problems with how Kotar's statement was obtained. Under Highway Traffic Act section 199, drivers involved in accidents must report what happened to police. But the judge noted that once police ask "Tell me what happened" — turning it into an investigation — the driver should be advised of their right to counsel under the Charter. Kotar wasn't given this warning before making his statement about falling asleep.

However, the judge found this statement had little value anyway — it was made while Kotar had a head injury and amnesia, and was essentially speculation about what might have happened rather than actual memory of events.

Key Takeaway

In careless driving cases, the Crown must always prove you drove carelessly — you never have to prove you drove carefully.

If you're in an accident, police may try to get you to explain what happened, but you have Charter rights to counsel once they start investigating. The Crown can't just point to an accident and make you prove it wasn't your fault.