[The] 76 year old woman pedestrian, with no reported medical history, was walking on a crosswalk and was struck by a vehicle that was making a left turn. It was a marked crosswalk and the incident occurred in daylight. She fell to the ground, blood was present around her head, and she was unresponsive at the scene. She was taken to the hospital and pronounced dead shortly after arrival. […] Autopsy revealed numerous blunt force injuries to the head torso and extremities. The most significant injuries were to the head … fractures of the bones of the right cranium… Additionally there were numerous fractures of the chest cavity and a fracture of the bones of the right lower leg. […] Toxicological analysis of postmortem blood did not detect any drugs and or poisons. […] The cause of death is blunt head trauma.”
The driver was charged with the offence of careless driving. Careless driving is defined under our law as someone who drives “without due care and attention to the road” or without “reasonable consideration for other persons using the highway” R. v. Trigiani  OJ No. 4924.
Notwithstanding, on June 23, at 1:30 p.m., it is expected that the driver of the vehicle will have her careless charges withdrawn. It is also expected that she will plea to a relatively minor traffic offence that carries with it a small fine and minor, if any, demerit points.
Susie’s extended families’ pleas to persuade the prosecutor to continue to proceed with the careless driving offence are met with refusal. The explanation is simply that there is not enough evidence to meet the legal test for careless driving – all despite the fact that this healthy and cognizant woman with no medical issues was killed on a crosswalk in broad daylight under good driving conditions. Who then, the family asks, is to blame? Who then was inattentive other than the driver? If the death in such circumstances is not a prima facie case for failing to have “due care and attention” to the road and others on it, then what is?
In this one lawyers’ opinion based upon the limited information we have, it most certainly could.
The harm caused and the unanswered questions:
To reach answers in this matter the family, through counsel, has requested a copy of the police investigation into the matter. Those requests are met with refusal citing exemptions under the Freedom of Information Act that do not require the police to release such things. And from a procedural point of view, without a trial in this matter those details will never be fully released and the evidence will never be tested. The investigation will likely remain forever sealed while the family struggles with their loss, with their questions, and with closure.
The Inadequacy of Legislation for Provincial Offences and Reparation to Victims:
Unlike criminal prosecutions and the Criminal Code of Canada, there are no rights for victims and their families under the Provincial Offence Act. In criminal matters, victims and their families have the right to 1) information about the prosecution and procedures, 2) the right to protection, 3) the right to participation, and 4) the right to seek restitution. Under criminal proceedings, these rights are met with meaningful remedies and judicial authority to enforce them.
This is not so in tragedies like Susie’s. This is not to say that it can’t be done – it simply isn’t and to the degree it is, that is up to the discretion of the prosecutor. To be clear, these prosecutors are not Crown Attorneys and are not bound by the same rules and directives as those prosecutors who prosecute under the Criminal Code of Canada.
Similarly, there is no principled sentencing approach (like one might find in s.718 of the Criminal Code) or participatory rights available for provincial offences.
In the simplest of terms: the current legislative scheme for informing, delivering justice, and closure for victims of Provincial Offences is entirely inadequate. This is particularly troubling considering that regulatory offences prosecuted under the Provincial Offences Act are far more ubiquitous and likely to affect our day to day behaviour. Yet there is no statement of what constitutes such sentencing purposes and principles for regulatory offences.
Consequently, judges and justices of the peace who impose sentences for regulatory offences do not have before them a guiding rationale or legislative statement explaining what aims are to be addressed by the court’s sentence, or what goals are to be furthered through the imposition of punishment.
Neither is this anymore apparent to the lawyers and parties who appear before the courts, including accused persons and corporate defendants. As a result, there is the oft-espoused criticism that the absence of such a statement of sentencing purposes and principles for regulatory offences makes imposing punishment a lottery, where inconsistency and unpredictability abound. The statutory provisions which govern sentencing for regulatory offences have been described by one very learned jurist (Libman J.) as “a patchwork quilt … in need of reform”.
Justice Libman wrote that
“It is my position that a new approach is required, in order to properly identify sentencing purposes and principles that are to be applied to regulatory offences specifically, and that are best suited to the regulatory context in which such offences occur.
Indeed. For where there has been a breach of a regulatory standard, the court must look not only backwards at the conduct which gave rise to the non-compliance, but forward as well, since the defendant often continues to participate in the regulated endeavour following the imposition of punishment. This is what is entirely lacking and why speed bumps, signs, and pontification from politicians will do nothing to stop erratic, inattentive, and reckless driving.
Another ignored voice on this issue was the The Law Commission of Ontario’s March 2011 Interim Report on Modernizing the Provincial Offences Act: A New Framework and Other Reforms that explicitly provides for the reception of victim impact statements on sentencing proceedings for provincial offences. Their rationale for using victim impact statements in this realm:
“A victim impact statement can be a valuable tool in POA proceedings. In addition to giving victims a voice in the proceedings, such statements would provide the court with necessary information to permit it to fashion appropriate compensatory or rehabilitative sentences”.
Emotional impunity from harm caused:
To make matters worse in Susie’s case, the driver who caused the death is not required, nor is expected, to attend the final proceedings where the family intends to read a victim impact statement. Needless to say, this entire resolution is entirely unacceptable to the family of Ms. Zentena.
Sadly, this reminder is felt frequently by the family of Susie every time a pedestrian is struck down and killed by poor driving on our street. I suspect that the family of those killed in similar circumstances share the same sentiment: confusion, hurt, and inadequate answers as to why most of these drivers are not prosecuted with greater efforts by regulatory prosecutors.
This story is not unique and it will happen again in Toronto.
Unless something changes in the manner inattentive driving is treated, these sorts of stories will continue to plague the streets of Toronto. The municipal and provincial government looks towards answers in preventive measures that hope to slow the pace of drivers. Speed limits, speed bumps, and other topical solutions to a haemorrhaging crises. In short, it is entirely inadequate just as putting up “no guns allowed” signs would be to curb gun violence.
It is therefore not surprising that an Ontario MPP wants harsher penalties for careless driving offences in the Province. In advocating her position, Burlington MPP Eleanor McMahon points out that despite the ability for individuals to face incarceration for the offence of careless driving, it is virtually never imposed. Her bill would add a new offence of “careless driving causing death” or “bodily harm”, which would carry a maximum jail sentence of two years. Arguably, this is already adequately addressed through Criminal Code legislation but the principle behind it cannot be dismissed.
That principle is that is that drivers act with intention. They are obligated to drive safely and with care to others on the road. Safe driving is not a product of the gamesmanship to avoid and minimize inconsequential fines under provincial regulations. Driving laws must be investigated, enforced, and treated wth severity in cases that warrant it – cases like Susie’s.
It might very well be that after a trial the driver who killed Ms. Zentena is acquitted of the offence she was originally charged with. After all the evidence is heard, a judge may conclude that she bears not even the most minimal of fault. A judge may conclude that she was indeed driving with care and attention despite killing Susie in broad daylight on a sidewalk she was properly crossing. Indeed, this is the very point of trials: to ensure that an impartial decision is made on those cases where there is prima facie evidence of wrongful conduct.
That day will never come for the driver. Nor will it come for the family of Susie.
In the afternoon of June 23, at Old City Hall, tears will roll down the victim’s family as a loved one of the deceased somberly reads his statement (granted by allowance, not right, and only if the Court permits) in the stark and inglorious courtroom. And just like so many other similar cases in Toronto, the ghostly defendant will plead guilty to a lesser offence through an agent that bears no meaningful resemblance to what the driver was originally charged with, or in some instances to the very offence itself. That driver will pay a small fine, keep her licence, and never have to think about it again.
All while those inside City Hall, over the sound of clanging streetcars outside buzzing by, argue over speed bumps.
– Sean Robichaud & Ryan Marshall (Student-at-Law).