Changes to Distracted and Careless Driving (feat. Careless Driving Causing Bodily Harm or Death)

The charge of Careless Driving in Ontario is already a well-established offence under the Highway Traffic Act and provides a number of penalties up to and including a $2,000 fine and six months in jail. What if Careless Driving causes serious bodily harm or death, without crossing over into the criminal realm? What if the driver’s conduct doesn’t reach a marked departure or a recklessness disregard to engage criminal negligence or manslaughter respectively? Some parliamentary advocates have argued that this leaves a gap in the legislation. Others retort that Dangerous Driving (s. 249 of the Criminal Code, which carries a maximum penalty of 5-10 years depending on the Crown election) already bridges this gap.

Despite this, deep in the Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, in Schedule 4 specifically, there are three changes to the Highway Traffic Act.

Section 78 of the Highway Traffic Act prohibits the use of display screens of televisions, computers, portable DVD players, or any other device in the motor vehicle is visible to the driver. The section states:

78 (1) No person shall drive a motor vehicle on a highway if the display screen of a television, computer or other device in the motor vehicle is visible to the driver.

Exceptions

(2) Subsection (1) does not apply in respect of the display screen of,

(a) a global positioning system navigation device while being used to provide navigation information;

(b) a hand-held wireless communication device or a device that is prescribed for the purpose of subsection 78.1 (1);

(c) a logistical transportation tracking system device used for commercial purposes to track vehicle location, driver status or the delivery of packages or other goods;

(d) a collision avoidance system device that has no other function than to deliver a collision avoidance system; or

(e) an instrument, gauge or system that is used to provide information to the driver regarding the status of various systems of the motor vehicle.

The Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, changes the penalty for this section as follows:

(5) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $300 and not more than $1,000.

(5) Every person who contravenes this section is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $500 and not more than $1,000;

(b) for a first subsequent offence, to a fine of not less than $500 and not more than $2,000; and

(c) for a second subsequent or an additional subsequent offence, to a fine of not less than $500 and not more than $3,000.

(6) If a person is convicted of an offence under this section, the Registrar shall suspend his or her driver’s licence,

(a) for a first offence, for three days;

(b) for a first subsequent offence, for seven days; and

(c) for a second subsequent or an additional subsequent offence, for 30 days.

(7) An offence under this section committed more than five years after a previous conviction for an offence under this section is not a subsequent offence for the purposes of subsection (5) or (6).

Section 78.1 of the Highway Traffic Act prohibits the use of cellphones, mp3 players, portable game consoles, or any other hand-held device not related to the safe operation of a vehicle. The section states:

78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.

Exception

(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.

(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

1.  The motor vehicle is off the roadway or is lawfully parked on the roadway.

2.  The motor vehicle is not in motion.

3. The motor vehicle is not impeding traffic.

(6.1) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $300 and not more than $1,000.

(6.1) Every person who contravenes this section is guilty of an offence and on conviction is liable,

(a) for a first offence, to a fine of not less than $500 and not more than $1,000;

(b) for a first subsequent offence, to a fine of not less than $500 and not more than $2,000; and

(c) for a second subsequent or an additional subsequent offence, to a fine of not less than $500 and not more than $3,000.

Same

(6.2) If a person is convicted of an offence under this section, the Registrar shall suspend his or her driver’s licence,

(a) for a first offence, for three days;

(b) for a first subsequent offence, for seven days; and

(c) for a second subsequent or an additional subsequent offence, for 30 days.

Same

(6.3) An offence under this section committed more than five years after a previous conviction for an offence under this section is not a subsequent offence for the purposes of subsection (6.1) or (6.2).

Section 130 subsections (1) and (2) of the Highway Traffic Act contain the offence of Careless Driving. The Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act adds four more subsections which flesh out the new offence of Careless Driving Causing Bodily Harm or Death as well as breaking the current section into two subsections – (1) and (2) respectively. It is of note that the new section 130 subsections (1) and (2) bear no substantive changes from the previous section 130. The revised sections state:

130(1) Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway.

Penalty

(2) On conviction under subsection (1), a person is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her driver’s licence or permit may be suspended for a period of not more than two years.

Offence

(3) Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and who thereby causes bodily harm or death to any person.

Penalty

(4) On conviction under subsection (3), a person is liable to a fine of not less than $2,000 and not more than $50,000 or to imprisonment for a term of not more than two years, or to both, and in addition his or her driver’s licence or permit may be suspended for a period of not more than five years.

Deemed lack of reasonable consideration

(5) For the purposes of subsections (1) and (3), a person is deemed to drive without reasonable consideration for other persons using the highway if he or she drives in a manner that may limit his or her ability to prudently adjust to changing circumstances on the highway.

Sentencing — aggravating factor

(6) A court that imposes a sentence for an offence under subsection (3) shall consider as an aggravating factor evidence that bodily harm or death was caused to a person who, in the circumstances of the offence, was vulnerable to a lack of due care and attention or reasonable consideration by a driver, including by virtue of the fact that the person was a pedestrian or cyclist.

The first two of these changes are more or less an increase in severity to emphasize the dangers of distracted driving with one interesting caveat. In s. 78(2) there are a series of exceptions to the ban on “display screen of a television, computer or other device in the motor vehicle is visible to the driver.” Would this not, at first blush, exclude the large screens we are seeing semi-luxury and luxury vehicles equipped with? How many of us have a large console screen that, in addition to GPS, provide satellite radio, Siri (or other speech to text programs), or even alluring application dashboards unrelated to navigation or the “status of various systems of the motor vehicle”? Are vehicle manufacturers setting us up for criminal liability?

On another note, the introduction of Careless Driving Causing Bodily Harm or Death, however, creates some new terminology which has yet to be defined in this context as well as an increase of the maximum jail sentence from 6 months to 2 years and a very severe fine ceiling of $50,000. In light of the context of “bodily harm or death to any person” these penalties make some sense and fill the gap between Careless Driving simpliciter and Dangerous Driving.

What is interesting about these changes are subsections (5) and (6). Subsection (5) qualifies subsections (1) and (3) with “if he or she drives in a manner that may limit his or her ability to prudently adjust to changing circumstances on the highway.” The term “prudent” only appears in one other part of the Highway Traffic Act in section 158 which dictates following distance for streetcars or other vehicles on the roads. Furthermore, it requires attention to “changing circumstances on the highway.” Needless to say, this is an interesting and unexplored standard which will need to be interpreted by the Courts.