Inattention shouldn’t be valid defence for drivers who kill pedestrians

Drivers who kill or injure pedestrians should not be able to rely on their own inattentiveness and distracted driving as a defence to criminal and provincial offences, Toronto critical injury lawyer and safety advocate Patrick Brown tells the Toronto Star.

Brown, a partner with McLeish Orlando LLP,was commenting after a young driver asked a judge to direct an acquittal at his trial for dangerous operation of a motor vehicle causing death, which carries a maximum sentence of 14 years in jail.

A criminal lawyer for the driver, who was 18 at the time of the 2015 crash that killed a woman out walking her dogs in Toronto’s east end, argued he had a “momentary lapse” when he reached down in the car to pick up a water bottle he had dropped. The article explains that such an error cannot result in a criminal conviction, as long as it’s not a “marked departure” from what jurors would expect from a driver in that situation.

Brown, who was not involved in the case but has acted for families of people killed by drivers, tells the newspaper that courts rarely view inattentiveness by motorists as criminal behaviour.

Errors of judgment

“The law has generally taken a stand that, when there are simple errors of judgment, or moments of mere distraction or inattention, that’s a valid defence in these criminal proceedings and also with provincial offences,” he says. “But I think there is a large segment of society that believes any distraction in a vehicle, with the size and weight a vehicle carries, and the fact that we have vulnerable people on sidewalks and roads — that shouldn’t justify a valid defence.

“If you drop a water bottle and bend down and look for it without pulling over and stopping, a lot of reasonable people would say that’s a marked departure from what a reasonable person would do. To justify that that’s a simple error in judgment, when you’re behind the wheel, shouldn’t fly any more,” Brown adds.

Brown helped initiate and sat on a Coroners’ Review on cycling and pedestrian deaths in Ontario in 2012, which concluded that the primary cause of injury and death for those groups is by drivers of cars.

He tells the Star that provincial legislators could improve the situation by passing Bill 158 the Protecting Vulnerable Road Users Act, which would introduce mandatory penalties for convicted drivers who seriously injured or kill vulnerable road users.

Create new offence

Brown says the government-sponsored alternative, which would create a new offence of careless driving resulting in death or bodily harm, is inferior. Despite a maximum fine of $50,000, Brown explains that the worst repercussion can be avoided by drivers by agreeing to plead guilty to lesser offences.

The dead woman’s father, who works as a shuttle driver for a car dealership, tells the Star he sees instances of distracted driving all the time, including motorists who text and talk on phones.

“It’s unbelievable. Something has got to be done for it,” he says. “You shouldn’t do it in traffic and never in the city, because you never know what’s going to happen.”