Should careless driving be considered criminally negligent?
A 65-year-old woman is run over and killed by a transport truck — $500 fine for the driver.
A couple in their 70s are both killed when a teenager loses control of his car and careens into them — $1,000 fine for the driver.
A 28-year-old mother dies after she is run over and dragged through an intersection by an 83-year-old woman who runs a red light — charges against the driver, which would have amounted to $410 in fines, are withdrawn.
In all of these fatal collisions with pedestrians — which occurred in the last two years in the GTA — drivers were charged with careless driving, a violation of the Highway Traffic Act, not a criminal offence. The drivers all escaped a criminal record and jail time — some did not even temporarily lose their licences.
Eyebrows were raised earlier this week when a cyclist was charged with the same offence after a near-fatal collision with a woman trying to cross the street at a busy Chinatown intersection. The woman survived, but remains in hospital with a fractured skull.
What drew more surprise than the rarity of a cyclist accused of careless driving was the fact that he nearly killed a woman and was only fined $400.
Some suggested the man must be getting off easy because he was on two wheels. But as the above cases show, the penalty is about the same for motorists, save for the demerit points and insurance costs.
So how can it be that one’s actions can clearly cause the serious injury or death of another person and the only penalty is a fine, and perhaps some licence restrictions?
In short, a momentary lapse in judgment or attention does not a criminal make, even if that lapse proves fatal.
“It’s always emotionally enticing to say, ‘Well, a death is involved, therefore your conduct must have been very reckless or very careless,’” says Richard Litkowski, a criminal lawyer and adjunct professor at York University’s Osgoode Hall Law School. “You just can’t jump to the conclusion that the driving must have been dangerous because somebody died.”
Toronto police Const. Hugh Smith, who speaks for the police on traffic issues, said the investigating officer actually laid the highest charge he could in the circumstances. “Don’t get caught up in the amount of money,” Smith said, adding that by paying the set $400 fine — the minimum for careless driving — the offender accepts guilt, which can lead to further penalties in terms of insurance or civil litigation. The cyclist’s actions were not criminal, he said.
And there lies the point of confusion: There are two sets of laws governing driver behaviour (not including municipal parking by-laws) — the Highway Traffic Act, which is meant to regulate traffic, and the Criminal Code, which imposes penalties for serious harms and criminal wrongdoing.
Most traffic offences are strict liability, meaning police need only prove you broke the law, whether or not you intended to do so or knew you were doing so. The burden of proof is much higher for criminal offences, which almost always require police to prove criminal intent, or “a guilty mind.”
The Highway Traffic Act is, in general, not meant to punish; it’s meant to regulate behaviour. Which is why a charge of careless driving — defined as driving “without due care and attention” — does not take into consideration the injuries of victims.
In the Criminal Code, on the other hand, the dangerous driving offence is split into two categories: that which causes bodily harm, and that which causes death. The latter carries a penalty of up to 14 years in prison.
Dangerous driving, as a criminal offence, is much more difficult to prove than careless driving, leading many people initially charged with the criminal offence to plead guilty to the less-serious traffic offence.
Some say that should change — that driving up on a curb and hitting an empty bus shelter is categorically different than driving up on a curb and killing an 8-year-old.
“Clearly if you cause death or serious injury it ought to be reflected in the charge,” says Brian Patterson, president of the Ontario Safety League.
Patterson said there have been discussions over the past 18 months among safety advocates who think it is time the Highway Traffic Act separate the careless driving charge into three categories. Escalating penalties would distinguish careless driving from that which causes bodily harm or death.
“A more reasonable minimum sentence ought to be available to the judge in those situations,” Patterson said.
The fine range for careless driving was doubled last year — from $200-$1,000 to $400-$2,000 — following an amendment passed by the McGuinty government. A conviction may also include a licence suspension for up to two years, and, though rare, up to six months in jail. Insurance can increase by 100 per cent, according to traffic lawyers.
But Patterson and other critics of the law say it remains unclear, and therefore ineffective.
“Right now people have killed pedestrians and the careless driving offence may appear on your record as innocuous, that you simply rode up over the curb.”
Does the crime fit the punishment?
A 56-year-old woman suffers a fractured skull when a cyclist going the wrong-way on a one-way street collides with her earlier this week.
The 49-year-old man is given a $400 fine.
Diana Rowdon, 88, hit by BMW as she attempted to cross Hurontario St. in Mississauga, dies in hospital on Oct. 2, 2010.
Alsea Wilson, 32, pleads guilty to failing to yield, fined $500.
Eduardo and Fernandina Pascoal, 73 and 74, are killed on May 13, 2010, when their Volvo is hit by a teenage driver who careened into them after losing control of his car on Dixie Rd. in Mississauga.
An 18-year-old man is fined $1,000, barred from driving for two years and ordered to serve 100 hours of community service.
Tina Kuipers, 65, run over and killed by transport truck on Queen St. in Brampton on April 13, 2010.
Obarasiaiagbon Umanmwen pleads guilty to failing to yield, fined $500, makes $500 donation. Does not appear in court.
Marites Mendoza, 28, killed after being run over and dragged under the car of an 83-year-old woman who ran a red light at Eglinton Ave. W. and Martin Grove Rd. on Jan. 12, 2010.
Careless driving charges against Edith Lucille Jones were withdrawn.
Donald Bowes, 65, died March 1, 2008, when his Honda SUV was hit by a camper van, which ran a red light in Hamilton.
Darlene Wachznuik, 53, was sentenced to four months in jail and had her licence suspended for two years.