Current laws have given drivers ‘special status’

The way the law has developed in Ontario has given ‘special status’ to drivers, which is being reflected in the sentencing and outcomes of cases where pedestrians and cyclists are killed by those behind the wheel, Toronto critical injury lawyer Patrick Brown tells CBC Radio’s Ontario Today.

Brown, a partner with McLeish Orlando LLP, says whether or not a collision is considered a ‘crime’ depends on its circumstances. “Certainly if there’s drinking involved or if there’s an individual in a hit and run or there’s racing and I would also consider distracted driving a crime and that means there was intent to do a behavior that was reckless and careless and resulted in loss of a life,” he explains.

At the same time, he says, there is a “huge vacuum” in the law in relation to drivers who claim, for example, that their shoe was stuck and caused a fatal accident.

Cyclist killed, driver fined $500

In one such case, a cyclist was killed when the defendant crossed into the opposite lane and hit him, says Brown. She received a $500 fine and her explanation was, ‘my sandal was caught in the gas pedal’.

“There’s a responsibility when you’re driving the car that you don’t act recklessly, that you make sure that your sandal does not get caught in the accelerator and that you prevent your vehicle from crossing lanes and killing someone. We have to have a system that reacts to these situations in a different manner than we’re presently watching. Erica Stark was standing on a sidewalk when the car went up over the curb and killed her. The response to that by our system was a $1,000 fine,” says Brown.

Brown, who represented the Stark family in the civil case, tells listeners that there has still been no meaningful explanation provided by the driver as to why she drove onto the sidewalk and hit Stark.

“In a lot of cases where pedestrians are hit and even killed, I’ve seen on repeated occasions where actually the pedestrian is handed a jaywalking ticket and very little, if anything, is done to the driver.”

In another example, says Brown, a man was crossing Eglinton Ave. in Scarborough — two cars had stopped and were waiting for him to cross the road — when one of the cars was hit by a bus travelling approximately 50 km/h. The pedestrian was hit, sustained significant injuries and later died. While he was in hospital, says Brown, the man was given a jaywalking ticket and the bus driver was never charged.

‘Systemic outlook’

“That’s the systemic type of outlook that happens at times in relation to drivers and pedestrians,” he says.

However, says Brown, if the crosswalk is more than 100 metres away from the pedestrian, it is not illegal to cross the road.

As Brown tells listeners, there are many potential solutions to the problem.

“There’s many fixes and I think the first would be obviously infrastructure, and give space for all road users so that there’s no contact.

“Secondly, the next fix is speed — speed kills and is the number one factor in these pedestrians getting hit and killed and it would make a significant difference if we reduced the speed limits. And most importantly, vulnerable road user laws — these have already been passed in at least 10 of the states down south, and these laws say that if you hit a pedestrian, a cyclist, somebody using a mobility aid, anybody who’s vulnerable, doesn’t have that protection of airbags and collapsible steering wheels, that you’re going to be subject to added penalties on top of what you’re already going to face.”

He cites Oregon as an example, where the added penalty for hitting a vulnerable road user is 150 to 200 hours of community service, plus a driving course and a licence suspension. Those who fail to satisfy the requirements can face up to a $12,500 fine or jail, he explains.

‘Proactive step’

“It’s actually making a proactive step on the driver to reflect on what they’ve done. A $500 fine to an individual may mean nothing, It’s like going out for dinner for a night. The fine is less than the dent in the car. But you actually make them proactively have to do something and reflect on their conduct, then you’re sending a message out of deterrence to all society — you have to pay particular attention when you’re near these individuals,” says Brown.

Looking back at a number of cases over the last 20 years, Brown tells listeners he has noticed a ‘repetitive result,’ where individuals who are “clearly negligent, careless and reckless and kill and seriously injure people” have been given a slap on the wrist.

“And the problem is, if you get away with a slap on the wrist, you’ve got a likelihood that it really didn’t matter and they’re likely to continue with that conduct. And unless we get some changes, this is going to be an ongoing problem in our society,” he adds.