Forget the speed bumps; focus on the prosecution of careless driving in Ontario.

In the past year alone, 43 pedestrians and cyclists were killed by vehicles in the City of Toronto. To put that into perspective, it’s an entire TTC street car of people. Arguably most, if not all deaths, were preventable.

streetcar death torontoIn a recent series by Metro News, they offer a number of stories amplifying how dangerous the streets in Toronto have become for pedestrians. They also point out that all of those they highlighted, none of the drivers faced jail time for their behaviour that, at least in part, contributed to the death of another human being.

The level of blameworthiness of these drivers may vary depending on the circumstances. However, suffice to say that the vast majority of the drivers at the literal hands of these deaths are not prosecuted criminally. Indeed, many are routine deals for Highway Traffic Act violations in the same way one deals out a reduced speeding fine from 20 over to 14 over to avoid demerit points. Nothing more than an unceremonious day in traffic court where a person pleads guilty through an agent or counsel while family members sit in uncomfortable Courtroom seating in an unassuming room at Old City Hall.

The Reaction of Politicians and Prosecutors is Disproportionate to the Crisis at Hand

Despite the meticulous statistics kept on collisions and accidents within Toronto, there is near perfect opaqueness in regard to prosecution and settlement of these matters as it relates to the drivers.

The Globe and Mail’s recent series highlights this issue who point out: 

The number of pedestrian deaths in Toronto has leapt 15 percent over the past five years – and yet public attention and political reaction continue to fall short.

With a driver being struck by a motor vehicle every 3.5 hours in the City of Toronto, one might think that the hallowed halls of Old City Hall are packed full with drivers, lawyers, and injured persons or the families of those lost.  The reality is that traffic court is the same as it always is – agents and unrepresented accused trying to shave off demerit points and shave down fines – this is true even in those instances causing death.

One might think with the prevalence and severity that poor driving and other factors causes death and harm to our citizens, our city would be panicking. Better still, one might think our drivers would drive safer. One might hope that through the most trivial of efforts, our city could reduce this harm to a negligible level. We know this because, to a certain extent, we already accomplished it:

police want to question you in a criminal offenceIn the now infamous “Year of the Gun”, 52 Torontonians died at the hands of guns. In reaction to this, politicians on all levels of government reacted swiftly and harshly. Entire units (Guns and Gangs) were formed in the Toronto Police Force. Multi-million dollar investigations and prosecutions ensued with Wire-esque sounding project names like “Green Apple”, “Cryptic”, “Pathfinder”, and the list goes on. Special courtrooms were made. Special teams of prosecutors were assigned. It was a full on war between the good citizenry of Toronto’s law enforcement and the gun-toting threats to public safety.

At the time, the public sentiment seemed that there was no punishment too severe or budget too small to address the gun toting gangs of Toronto that put us at risk. Announcements combating these issues were public and dramatic. Not surprisingly, and for good measure, gun violence decreased and the fear of gun violence subsided. The city feels safer and fewer people die.

Not so for driving related deaths. Why?

Driving injuries and deaths are more frequent and preventable than nearly any other act of violence.  So why does it continue?

provincial offences sentencing ontario victim impactCrime is an inevitable part of life.  No matter what we do as a society, crime will always exist due to a variety of factors.  When we think of crime, we are often left with notions of the intentional, deliberate, and evil-minded act that causes harm to others.  We think of murderers, drug dealers, rapists, or domestic abusers. While it is very true that these acts are deplorable and entirely criminal, they are simply manifestations of acts along a spectrum of moral blameworthiness.

One does not typically think of the speeding driver as a criminal. Why? Because we nearly all do it and the thought is that it is not morally blameworthy. Sadly, this is the same mentality that existed in a much more prevalent manner for impaired driving 20 years ago. Just as impaired driving has now reached a stigmatization of true criminality (and texting and driving quickly getting there), there are other acts that were highly criminal that are now on their way out (marijuana possession). And while laws and morality may all be relative, the harm and death that results from intentionally dangerous acts does not change.

Dangerous, reckless, and inattentive driving causes death and harm. This is an inescapable fact that we can either address as a city, or we can continue to normalize through passing on chances to stigmatize and vigorously prosecute those who decide to drive in such a manner. At present, we are aggressively failing at addressing this pressing issue. Instead, it seems that we approach poor or aggressive driving with an “everyone does it” approach. Of course, frequency does not diminish the inherent and deliberate dangerousness of an act. If anything, it makes it worse. This is especially so when the (vast) majority – 67 per cent – of pedestrian fatalities can be attributed to driver error.

One position that must be considered moving forward, if we as a city want to diminish the type of aggressive, inattentive, or criminally negligent driving is to use the same sort of prosecutorial zeal one might for crises of equal proportionate harm to our citizenry as alluded to above.  So how are some cases dealt with now?

Let me tell you the tragic story of a client I represent post-mortem on behalf of her family: Susie Zentena.

The story of Susie.

On March 28, 2015, 76 year old grandmother of 9, Maria-Assunta Zentena (known lovingly as “Susie”) was crossing the road at at a crosswalk near Rainer Road and Wilson Heights Blvd.  She was struck and killed by the driver of the vehicle.

The Office of the Chief Coroner’s Report wrote in their report:

[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 [1999] 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 Mandatory Minimumsoffences 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.

IMG_3625It 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).