Question: 
I was returning to Calgary from Seattle through Trans Canada 1 west of Golden and was the recipient of a ticket for driving without due care. The road conditions were poor, with a few inches of fresh snow, and visibility was poor due to blowing snow.
Traffic had slowed to around 50 km/h. I watched other drivers pass semis behind me which were moving at around 30 km/h due to the extremely poor visibility from driving behind them.
I was behind a lineup of around 10 light vehicles, and I decided to try and get further ahead.
There was a straight section of road (not a double lane passing section, to my knowledge) where I could clearly see the tail lights of all the vehicles ahead in a straight line and no oncoming traffic.
Also, my friend who was in the car with me confirmed that the GPS we were using indicated this was a straight section; it had proved to be correct on the path of the road for the past 500 km.
I made a move to pass, accelerating to around 70 km/h and passed two vehicles, the second of which was a cop. He immediately turned on his lights, and I found a safe place to pull over.
It is also worth mentioning the posted speed limit was 90 km/h.
The officer approached me and appeared upset. He informed me that we were in an avalanche area, and that I was trying to pass people with 6" of snow on the median and how I was putting my rush to get home ahead of everyone else.
I asked him what he was pulling me over for, and he replied "driving without due care and attention". I was not sure what this meant, and I repeated the question after he continued to berate me, to which he gave me the same answer.
To quell his apparent frustration, I apologized and told him I would take it easy.
He returned to his vehicle and then stayed there for around 20 minutes (in the avalanche area). He came back ticket in hand, with the offence "Drive without due care" listed and section 144(1)(a) quoted, and I received it without saying anything further.
Looking back, I don't believe that my actions warrant a ticket, let alone one with a weight of 6 demerits.
I understand that what I did carries more risk than a typical pass, due to the road conditions, however after watching drivers pass semis where there was severely reduced visibility, I felt that this was a safe pass.
He did not charge me with not considering other traffic 144(1)(b) or driving at excessive speed for the conditions 144(1)(c). I intend to dispute this charge, however I would like your opinion on how previous cases such as this were handled.
Driving Without Due Care
144(1) A person must not drive a motor vehicle on a highway
(a) without due care and attention,
(b) without reasonable consideration for other persons using the highway, or
(c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions.
(2) A person who contravenes subsection (1) (a) or (b) is liable on conviction to a fine of not less than $100 and, subject to this minimum fine, section 4 of the Offence Act applies.
Definition of Due Care
The legislation doesn't define what driving without due care is. For that, we can to look at the dictionary definition of "The conduct that a reasonable man or woman will exercise in a particular situation, in looking out for the safety of others."
In your case, others will also include the passengers in your vehicle.
We can also be guided by recent case law to see how the courts have applied it. Reading these cases should give you an idea of what evidence the justice will look for in order to convict.
From your description of the event, I can gather the following:
- Severely reduced visibility
- Driving in 6" of snow to pass
- Travelling in the median rather than a traffic lane
- Passing a line of traffic
- 20 km/h faster than that the majority appeared to find prudent
- Acknowledgement of risk
If I am seeing that, chances are good that the justice hearing your trial will to.
You will have to return to Golden for the dispute if you intend to plead not guilty. The article How to Deal With a Traffic Ticket may also be of some assistance along with some of the links on the Traffic Links page.
Thank you for the quick reply. It appears that from previous cases, the Crown must prove that my actions are outside what a reasonable, sober individual would do, given the circumstances. The definition of "reasonable" is what I am vague on. I have never been told never to pass when conditions deteorarate; just that passing must take place with extra caution. I assumed this was the norm in BC as well, after having watched other drivers pass semis, which to me is a riskier proposition. Also, all the cases show driver negligence resulting in fatalities, indicating this is a very serious charge. There were no incidents as a result of my pass, I was not driving erratically, I performed the maneouver in a controlled fashion.
In your opinion, if you were the officer pulling me over, what would you do? Would you note the offence as "driving without due care", or something less serious such as "unsafe pass on the left", or perhaps even a warning?
Your input is appreciated.
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I have had traffic court justices tell me not to write driving without due care and attention unless nothing else fit. Better that I should write each of the individual offences that led up to the stop.
With this in mind, I agree, I might want to write unsafe pass on left unless there was a good reason not to. In fact, on the trial day, you could consider offering to plead guilty to unsafe pass on the left in exchange for staying the driving without due care and attention charge. Of course, choosing this avenue would mean that you have some concern that if you went to trial that you might be convicted. If not, then plead not guilty.
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Thank you