There was no victim, as far as the law was concerned.
There was a victim in real life, though. Her name was Maria Zentena – her family called her Susie – and she left a widower, three children and nine grandchildren, many of whom were sitting in traffic court on a hot August afternoon last year at Old City Hall in Toronto.
She also left a son-in-law, Paul Cooper, who had come to court prepared to read the family’s victim impact statement, which they had written together. (How the court allowed a victim impact statement despite the victim not legally existing wasn’t a problem anyone chose to address.)
Cooper’s first problem, though, was figuring out where to look, since the accused was present only as a name on some documents. She hadn’t shown up, and, as her lawyer pointed out, she didn’t have to.
For lack of any better idea, Cooper spoke to the defendant’s empty chair in the courtroom.
He explained what Zentena’s life had meant, and what her death had meant, for more than half an hour, struggling for control at times, to the human-sized empty presence in the chair. As he spoke, the court watched silently and the busy city rumbled outside.
“There I am, staring at an empty chair as I read the different statements, breaking down at points, wondering if it will ever be hit home,” he later remembered. “It was not about vengeance. It was about how we felt, our loss.”
Nobody was there except Zentena’s family, who already knew what the statement said because they had written it, and people who were paid to be there – lawyers, some police officers, a justice of the peace.
Xy-Za Eula Manimtim hadn’t meant to kill Maria Zentena, but she killed her all the same. She made a left turn into a crosswalk in Toronto’s north end as Zentena tried to use it on a clear March day, driving into her as if she was empty space.
The 76-year-old rolled up on to Manimtim’s windshield. Manimtim braked, and Zentena fell off the hood of the car, striking her head on the pavement. Zentena suffered devastating injuries all over her body; her cause of death is listed as blunt head trauma.
Driving conditions were as perfect as they’re ever going to be. It was sunny and clear, weather records show, but the sun was overhead. The roads were dry and empty, according to a statement from the Crown which Manimtim’s lawyer called “substantially accurate”.
Manimtim wasn’t being tried in Zentena’s death, though. She was charged with two traffic offences: careless driving, a charge that was dropped that day, and making an unsafe turn, which she pleaded guilty to through a lawyer.
Why did Zentena die? What were her last moments like? The family had to make their peace with the fact that they will never know.
“If Ms. Manimtim were here, I would like her to know that all we ever wanted to know was how much suffering Susie went through lying on the side of the road when she was bleeding on the cold pavement,” Cooper told the court.
“Other people’s coats were placed on her to keep her warm. Who were these people? Can we thank them? They comforted her in her last moments. We want to thank them. We want to know what she said. Was she unconscious? We do not know.”
In criminal law, victim impact statements have two functions — to help the judge craft an appropriate sentence, and to explain to the offender the harm caused by the crime.
In Manimtim’s case, the Crown and defence had already agreed on the maximum fine for making an unsafe turn — $500 in Ontario.
As justice of the peace Mark Conacher acknowledged, the fine was only for the unsafe turn itself, not for the fact that it killed somebody.
“We are talking about the seriousness of the offence here, not the seriousness of the outcome.”
“Clearly that is not intended as a penalty in death cases. I cannot imagine that the legislature conceived that that range of penalty was an appropriate consideration where someone causes death.”
Zentena’s family’s statement would certainly have served this second purpose, had Manimtim showed up to hear it.
“I know that Ms. Manimtim is not here,” her son-in-law, Paul Cooper, began. “We were hoping she would be here. It’s not about revenge. It’s not about anger. It’s about being able to express ourselves. I’m just going to focus on a chair, and hope that my message is at some point delivered to her.”
In criminal law, victims have a legal right to present a victim impact statement, and the offender is forced to sit and listen to it.
Traffic law, however, doesn’t acknowledge the existence of the victims that exist in real life. Dangerous acts, such as speeding and running through stop signs, are prohibited. But the harm they might cause (the reason they’re prohibited in the first place) isn’t referred to.
(This is different from the criminal law, when a crime is often treated as more serious if someone is hurt or killed. For example, impaired driving is bad; impaired driving causing bodily harm is worse; impaired driving causing death is worse than that.)
The family’s lawyer had been in court seven weeks before, asking Conacher to order Manimtim to be present.
The Crown, Raphael Leung, didn’t support the idea.
“The request … appears to facilitate something which is more of a personal nature,” Leung said. “I don’t think it’s something that the court can envision as being necessary.”
“If the family were to read victim impact statements, it would certainly be better, I think, for the victim’s family to have the defendant here, in order to create an atmosphere of closure,” he conceded, but there was no “objective” need for the order.
Conacher agreed, saying that the provincial offences system “was designed for speedy and simple resolution of matters.”
WATCH: In a network-wide series, Global News examines what happens when pedestrians and cyclists are seriously injured or killed in traffic accidents. Often, the penalty is a mere few hundred dollars. Is any jurisdiction doing this properly? And is it time for Canadian provinces to change their laws?
Having the defendant not show up for a victim impact statement can be devastating to families, says Toronto lawyer Patrick Brown.
“They put so much time, and so much emotion, and so much energy into it,” he says. “They’re trying to put something on paper about the person, and it’s extremely draining to them.
“When they do present it, it’s their first time in a courtroom where they get to speak, and say something about the person that was killed. They might not find out until they walk in there that the defendant is not there, and it’s read to a court agent. It can be devastating.”
Strictly speaking, Conacher was stretching a point in allowing a victim impact statement to be read in his courtroom at all.
“Right now, there’s no particular section that says you’re entitled to a victim impact statement for these types of offences,” Brown says. “I don’t know what would happen if (the defence) overtly said ‘We don’t want one.’ ”
“Ms. Manimtim has been undergoing her own personal nightmare as a result of this incident,” her lawyer, James Damaskinos, said after Cooper finished speaking.
She was “withdrawn and isolated” and “currently very heavily medicated,” he explained.
However, he reminded the court, “It is her right not to attend, if she chooses not to attend.”
“I can assure the court that she is very remorseful,” Damaskinos said.
“It’s difficult to evaluate that when she’s not here,” Conacher responded.
Manimtim did not respond to an interview request.
In court, Leung didn’t explain his decision to drop the careless driving charge (prosecutors don’t have to explain why they drop a charge). He didn’t respond to questions from Global News.
However, according to the law firm that represented the family of the victim, the Crown said the charges were dropped because there was “not enough evidence to meet the legal test for careless driving”.
In Ontario traffic law, careless driving is driving “without due care and attention or without reasonable consideration for other persons using the highway.” The Supreme Court has ruled that a collision that happens because of “momentary lapses of attention” can lead to a careless driving conviction under provincial traffic law.
With that description, it would seem pretty easy to convict someone of careless driving, if they were clearly at fault and someone was harmed.
On paper, a careless driving charge can land you in fairly deep water, for a traffic offence: up to six months in jail, a $2,000 fine, a two-year licence suspension.
In practice, though, few lead to convictions. Last year, 34,084 people in Ontario were charged with careless driving, but only 6,747 were convicted. (Only 16 were sentenced to any time in jail.)
Since 2011, about one in five Ontario drivers who were charged with careless driving has ended up convicted.
Typically, careless driving charges are dropped in exchange for a guilty plea to a lesser charge, Brown explains.
It helps busy courts — which couldn’t cope if more than a handful of cases went to trial — operate efficiently.
“There has been a backlog in our court system, so certainly there’s a real incentive to move the cases along, get them resolved, and avoid trial. The system is overburdened.”
“What I’ve seen is that it is dropped to a lesser and included offence, and the person will plead out and avoid any trial time. Certainly they approach my clients on a regular basis with that proposition, in many cases.”
Where that breaks down, in Brown’s view, is in cases where somebody is injured or killed.
“It’s a compromise by the system, but certainly in the larger cases, where there is bodily harm or death, I don’t think the same approach should be taken.”
Domenico Zentena, who had been married to Susie for over 58 years, looked “tired, sad and defeated,” his son, Mike Zentena, wrote in a statement read by Cooper.
“He would walk to the site and sit there, the site of where she passed, on the roadway. He would sit there on the corner. He would come back and tell us something he observed, or thought might have been the reason Mom was struck, trying to search for answers.”
WATCH: Life is cheap: Trudi Mason recounts harrowing story of losing her friend to a car
Trudi Mason of Lethbridge, Alta. was cycling with her best friend when a car hit both of them. Mason’s friend died. Mason says the court process ignores the fact a person was killed.
If you spend time with people who advocate for ‘vulnerable road users’ — cyclists and pedestrians, mostly — you will sooner or later hear about ‘road violence,’ and be told that ‘if you want to kill someone, kill them with your car.’
This isn’t strictly true, of course. If you kill someone with your car on purpose that’s murder, just as if you killed them with a knife, or a brick.
But if you kill someone not through anger or malice, but through carelessness, we seem oddly helpless to deal with it in a way that reflects its seriousness — less than murder, more than making an unsafe turn.
Drivers who kill through carelessness aren’t murderers. On the other hand, what they’ve done can’t credibly be put in the same category as blowing a red light. (Somewhere between murder and blowing a red light covers a lot of territory, of course. )
Whose fault is that? Well, to a certain extent it’s the courts and their tradeoffs, and to a certain extent it’s just the way the laws are structured.
And in the end it comes down to budgets, lawyers with experience of the system and its compromises explain. Trials are expensive; guilty pleas are cheap. Serious consequences mean that more cases go to trial, as drivers lawyer up and fight back; settling cases with guilty pleas keeps the traffic court system humming cost-effectively along.
Courts for minor offences get little guidance about sentencing, wrote provincial court judge Rick Libman in a 2010 paper published by the Law Commission of Ontario:
“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. ”
“While the state of sentencing for regulatory offences in Canada may not be in “chaos,” it certainly appears that there is in the courts a lack of uniformity, and marked inconsistency, in applying sentencing purposes and principles to such offences.”
“We are hoping to use the strength taught to us by Susie, of forgiveness, to overcome this,” Cooper said.
“Every time we are in the area of the accident, we see Ms. Manimtim, who lives on the corner. We see her car. We see the same vehicle that still has a dent in it from my mother-in-law’s body drive by us.”
For drivers who kill, and are at fault, Brown would like to see a system that emphasizes license suspensions and community service – and having to face the victim’s family in court in a difficult but necessary ritual. ‘Careless driving causing death’ could be created as an offence.
Jail is rarely appropriate, Brown argues, and fines have too different an impact on rich and poor: “$500 to one person could be a month’s rent. $500 to another person could be a night out for dinner.”
A more meaningful process might in the end be redemptive for the driver, he says.
“I do see individuals who are beside themselves with what they’ve done, they have genuine remorse, but the fact is that all they got was a $500 fine.”
“I do think it’s therapeutic, perhaps, to the offender that they’re put to more responsibility for their actions. Community hours, licence suspensions or being in the courtroom to listen to the family as to what happened.”
Brown cites Oregon’s ‘vulnerable road user law’ as an example to imitate.
Aimed at protecting cyclists and pedestrians, Oregon’s law imposes fines, 100 to 200 hours of community service, licence suspension and driver education on at-fault drivers who kill. The driver is required to go before a judge up to a year after sentencing to show that the requirements have been met, or the suspension will continue.
“At least it provides a measure of justice, something approaching justice, something that says, well you know, your parent was killed, that person shouldn’t be back on the roads in two or three months,” says Osgoode Hall law professor Albert Koehl.
“That person should have a serious license suspension, that person should be in court, that person should be taking re-training courses, so at least trying to approach something that looks closer to justice.”
Oregon’s system, which has been in place for 10 years, provides a measure of accountability, says Portland, Ore. lawyer Robert Mionske.
“Once you have to show up at the hearing, once you have to face the victim’s families, it’s not easy to dismiss what you have done. The accountability gets broadcast into society and on the news, but it also hits home with the individual. When you have to do 100 hours or 200 hours of community service, especially if it’s directed at driving issues, you really do educate people.”
“But when you make a mistake and you hurt someone, and the system just sends you a ticket, you haven’t learned anything and you haven’t sent any message to the rest of the drivers. “
Across Canada, about 390 pedestrians and 75 cyclists are killed each year.
Last June, Ontario’s legislature debated a private member’s bill that would have created an offence of careless driving causing death or bodily harm, with increased penalties – jail for up to two years, a fine of up to $50,000, a licence suspension of up to five years and mandatory retraining. The bill was introduced by Burlington Liberal MPP Eleanor McMahon, whose husband, an Ontario Provincial Police sergeant, was killed in 2006 while cycling by a driver with five convictions for driving under suspension.
READ: Liberal MPP wants new offence of careless driving causing death or bodily harm
Nine legislators, from all parties, spoke in favour of the bill; Wayne Gates, an NDP member from Niagara Falls, called for it to include a provision forcing drivers to show up to hear victim impact statements.
But the bill died when Ontario’s legislature was prorogued last September.
McMahon is now a cabinet minister; the bill might be re-introduced by Liberal MPP Ted McMeekin, but McMeekin would prefer that it be a government bill, according to a statement from his office.
“We’re definitely going to have an update before the end of this year, and it could be sooner than that,” transport minister Steven Del Duca told Global News on Thursday. “We will take concrete steps to give satisfaction to the families of victims.”
“I know this is not an entirely satisfying answer,” he conceded, asking for “a little bit of patience while we sort through this.”
WATCH: Life is cheap: What provincial ministers have to say about careless drivers facing minor penalties
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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