Driver who hit and killed David Finkelman got $2k fine, parents say it’s not enough
An Edmonton couple is calling for harsher penalties for people charged with careless driving and say they still feel the justice system devalued the worth of their son, who was killed by a vehicle while he was in a marked crosswalk more than three years ago.
Steve Finkelman and Jane Cardillo are still struggling with the loss of their son David, who was 27 years old when a vehicle struck him as the driver turned left onto Whyte Avenue from 101 Street. He later died in hospital.
“It was like a bomb went off in our world and we’re still trying to recover from it,” Cardillo said.
“There was no malice,” he said. “She didn’t intend to kill our son. Therefore, the criminal justice system… it’s a difficult call.”
The parents said David, who lived in the area, frequently complained about how vehicles would cut him off as he walked. They never imagined they would lose their son in a pedestrian-vehicle collision and were stunned by the charges laid against the driver.
“Failure to yield to a pedestrian — in my mind, I visualized somebody who goes around somebody who’s walking through a crosswalk,” Cardillo said. “But this [driver], yeah she failed to yield, but it didn’t result in a fender bender. It resulted in our son losing his life.”
This scenario – a pedestrian or cyclist is hit and killed and the driver receives a light penalty – is playing out across the country. Global News has spoken to many families from coast to coast who are outraged that careless drivers aren’t facing stiffer fines after hitting and killing their loved ones.
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Alberta Crown prosecutor Jonathan Hak, Q.C., who did not work on David’s case, said the fact a death occurred in a careless driving case does not determine whether charges should be laid and if so, what charges should be laid.
“We have to look at the driving conduct that led to the death,” he said. “On the one end of the spectrum is an accident, a child darts out from between a parked car and no driver could have stopped — that’s an accident. On the other end of the spectrum, you’ve got high-end criminal driving, high-speed, very dangerous driving, alcohol, drugs — we would look at criminal charges.”
“Where a driver makes a traffic error, they fail to yield the right of way to a pedestrian, they’re distracted while they’re driving — then we’re typically in the middle. That’s a prosecution under the Traffic Safety Act.”
Hak said a manslaughter charge in a careless driving case could be an option when driving conduct leads to a criminal negligence causing death charge, which leads to the parallel charge of manslaughter.
Nearly a year after David’s death, the driver was sentenced and received a two-month licence suspension and a $2,000 fine.
“What would be the proper sentence or penalty? I don’t know what it would be but surely it [has to be] more than that,” Cardillo said.
“The justice system is telling us our son’s life is worth $2,000. That’s it. Sorry about that.”
Finkelman said he found the court system was not a justice system.
“I remember the prosecutor telling us she was sorry that they couldn’t do more because that’s really all the law allows,” he said.
“I got the impression she felt it was very insufficient. Here she was dealing with two parents who have lost their son and she’s [like]: ‘Sorry, but there’s really not much I can do.’”
Alberta Justice Minister Kathleen Ganley said she could not comment on a specific case but acknowledged the penalties imposed on drivers who kill a pedestrian may never be sufficient to the victim’s families.
“When it comes to punishment fitting the crime, when someone has lost a loved one, there’s no punishment that’s really going to address that so you’re going to have a really hard time getting to that standard,” she said, adding she thought it was important that punishments “are reflective of our values as Albertans.”
Ganley pointed out while Alberta is responsible for the Traffic Safety Act, the federal government determines penalties under the Criminal Code.
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“The officers and the Crown involved will make a determination (in any given case), so in some cases there will be wrongdoing, whether intentional or unintentional, and when I say unintentional, I mean being on your phone or something like that: the person doesn’t really intend wrong but it’s still wrongdoing – but some things are just an accident so they’ll have to make those determinations in the individual circumstances but none of that will ever make it any easier for the families.
“That family’s suffering will be incredibly intense, regardless of whether it was an intentional or negligent act or whether it was an accidental act.”
Hak said there are difficulties to prosecuting careless driving cases.
“The challenges in prosecuting cases that result in charges under the Traffic Safety Act is we have to show that we’re dealing with more than mere inadvertence. We have to show that there is culpable conduct on the part of the driver before we’re entitled to a conviction,” he said.
Hak also said charges are often downgraded because evidence does not come out as thought during trial, which may result in a plea to a reduced offence.
The parents would have preferred a harsher penalty.
“How much worse does it get? It doesn’t get any worse. You’ve killed someone. Clearly you’re not responsibly operating that vehicle,” Finkelman said, adding he would like penalties such as driver retraining, community service and longer licence suspensions.
“You have to impose some kind of penalty that makes them realize they failed in that duty.”
Hak admits that most people convicted in careless driving cases do not face the maximum penalty of six months in jail.
“On the basis of judicial precedent, that is the cases decided by judges in the past, it is extraordinary to get a jail sentence for the conviction under the Traffic Safety Act. We’re almost always looking at that $2,000 fine category,” he said.
When asked whether the $2,000 fine and two-month licence suspension in David’s case was a slap on the wrist, Hak said that is the typical penalty for an offence under the Traffic Safety Act involving death.
“Whether it’s a slap on the wrist is debatable,” he said. “Arguably, there’s no sentence the court could impose that would ever satisfy those that have lost a loved one through poor driving. Nor is there much likelihood a higher penalty would influence other drivers, but that’s a function for other people to decide.”
Transportation Minister Brian Mason said the enforcement of penalties for accidents that cause a serious death as a result of negligence should be severe enough to present a real deterrent.
Mason wouldn’t comment specifically about the collision involving David Finkelman, but said, “I understand their feelings. Having lost a loved one, that’s an enormous tragedy and we all have to do what we can to reduce these accidents in the first place, and I think (my job)… as transportation minister as opposed to justice minister, is to focus on how we can make our systems safer, how we can make sure that we have the best possible infrastructure — that we look carefully at the training and evaluation of drivers and that we’re supportive of appropriate law enforcement.
A Traffic Safety Culture Survey conducted by the City of Edmonton in 2016 shows penalties such as increased insurance costs, increased fines, demerit points and more tickets being issued would make respondents more likely to stop driving distracted.
Laura Thue, senior research coordinator with the city’s Office of Traffic Safety, said evidence shows consistent and combined efforts of education and enforcement can instigate behavioural change but admits change can be slow to come by.
“Saying we want to change our behaviour and actually doing it, there is a gap there, it’s not easy to do,” she said.
Thue said the city is throwing its weight behind the Vision Zero campaign, which aims to see zero fatalities and serious injuries on Edmonton roads. She said tangible efforts include crosswalk improvements, school zone upgrades, speed management as well as education and awareness campaigns.
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Global News sought out responses from 8 of 10 provincial governments regarding whether the justice system fairly deals with people who kill with their cars. Three ministers agreed to do an on camera interview.
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