September 20, 2017 11:52 am
Updated: September 20, 2017 2:25 pm

Lawyer questions whether courts have the resources to try drivers who kill

WATCH: Four months after Global News released an investigation into careless driving, Ontario transport minister Steven Del Duca announced amendments to the Highway Traffic Act.

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A proposed Ontario law that would treat careless driving more seriously if someone is hurt or killed is a “step in the right direction,” a Toronto lawyer says.

However, much depends on how the courts decide to handle the new and more serious proposed charge of careless driving causing death or bodily harm, which carries with it a maximum penalty of a $50,000 fine, up to two years in jail and a licence suspension of up to five years.

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READ MORE: Global News investigation finds cycling fatalities often end with fine, no jail time for drivers

One reason that at-fault drivers who kill are often able to settle cases by pleading guilty to a lesser charge and paying a fine is that traffic courts aren’t funded to run many time-consuming trials, Global News reported in June. The more serious the potential consequences, the more likely a driver is to fight the charges, something traffic courts don’t have the resources to handle.

Without a change to that dynamic the proposed law’s effect will be blunted,  lawyer Patrick Brown explains:

“There is a very strong likelihood that those individuals will lawyer up, and a very strong likelihood that they will say ‘We will try this case,’ and a very strong likelihood that there will be a plea entered to a lower, lesser, included offence, so that then those penalties don’t take place and the person, once again, walks away with a small fine.”

At a news conference this morning in Toronto, Burlington Liberal MPP Eleanor McMahon acknowledged that making the proposed law work was to a large extent up to the justice system.

“The rest is up to Crown attorneys, to officers on the scene and judges to really come forward and say that the maximum should apply. But if it isn’t there it can’t be done. We need to put it there, and that’s our job as legislators.”

READ MORE: Ontario plans harsher penalties for careless drivers who hurt or kill

But the acknowledgement of a victim is something new in Ontario traffic law. In common with other Canadian provinces, Ontario’s Highway Traffic Act presently treats offences – running a red light, for example – much the same whether someone was hurt or killed, or not.

Brown calls the change “a reflection of the value of life in society.”

“I think when we look at other types of laws that related to people that are injured or killed, whether it’s construction sites or otherwise, we take them very, very seriously. The penalties are very significant. That’s not the case when it comes to pedestrians or cyclists being killed. It simply isn’t.”

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?

“The cultural attitude is that it’s just part of the driving process. We’ll give a fine, we’ll give a few demerit points, and we’ll let that person drive home, back on the road, and never ever once take a look and see whether or not they’re actually a good driver.”

A frequent criticism of how fatal traffic accidents are handled by the courts is that the driver doesn’t have to appear. (Some do; some don’t.)

This can mean that victims’ families can find themselves reading a victim impact statement in court without the driver being present.

READ MORE: Talking to an empty chair - Driver killed grandmother, skipped court appearance, fined $500

Because careless driving causing death or bodily harm would carry a minimum fine of $2,000, the driver would either have to appear in person or send someone to represent them, but still could avoid the proceeding if they wanted.

“That should be changed,” Brown says. “If that’s not in the legislation, it should be. They should be required to face the family, so that when they read the victim impact statement they are present and listening to it.”

WATCH: Paul Cooper says new careless driving offence is a step in right direction but nothing can compensate for a lost life

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