Tuesday, April 16, 2024

When laws change: for better or worse

by John Papadakis

In 2017, the careless driving law in Ontario changed and became two distinct forms of careless driving charges: the first remained virtually the same as has existed for decades; the second become a new version to be applied when careless driving results in a death or injury.

Accordingly, the two charges are now known as careless driving and careless driving causing death or injury.

From a legal point of view, the only aspect in which the two laws differ is in the result, as that the new law involves the element of death or injury.  In all other respects, the two laws are the same: both require that a driver operate a vehicle without due care or attention or reasonable consideration for other persons.

As both laws define the unlawful conduct identically, with the only difference being the consequences, itraises the question of whether punishing consequences (rather than conduct) is fair within a reasonably-minded society. On this point, it is important to appreciate the difference in the potential punishments.

For careless driving, a fine between $400 and $2,000 applies and there is a possibility of a two-year suspension and jail for six months.  For careless driving causing death or injury, a fine between $2,000 and $50,000 applies and there is a possibility of a five-year suspension and jail for two years.

There are people who believe that blood-for-blood should be the law; however, when such an approach is taken, laws begin to punish the result of the conduct rather than the conduct itself.  Of course, this is how civil litigation courts approach lawsuits.For example, a breach of contract may cause a one-thousand dollar loss or a one-million dollar loss depending upon the circumstances.  Indeed, in civil litigation, unless a loss occurs, the ‘no harm, no foul’ rule applies and a lawsuit will fail.

However, in quasi-criminal courts such as traffic courts, where punishment serves as a deterrent to wrongful conduct via fines and restrictions upon personal liberties, we need to ask: does punishment based on the severity of the result of the wrongful conduct rather than punishment based solely upon the wrongful action make sense?

For example, imagine two drivers committing the same wrongful action of driving without due care or attention, such as driving too quickly for the conditions in a snowstorm.  Both drivers cause an accident.  In  one accident, a post is knocked over striking a propane tank leading to an explosion and millions in damage; but, without causing any injuries.

In the second accident, a post is knocked over striking a person who suffers a broken finger.  In these two similar situations, the first driver is charged with the old careless driving offence and the second driver is charged with the new careless driving causing death or injury offence.  The first driver faces no serious punishment, while the second driver faces severe punishment.

As an actual example, consider the case of R. v. Kreyger, 2020 ONCJ 424 which involved Ms. Kreyger making the mistake of failing to stop at a stop sign.  Mr. Kreyger was familiar with the road and with the stop sign.  The road conditions were good.  Apparently, a distracted mind contributed to the failure to stop; and unfortunately, the mistake was tragic resulting in a death.

Subsequently, Ms. Kreyger pled guilty to careless driving causing death or injury, was fined two thousand dollars, was given a four-year driving suspension, was put on probation for two-years, and was required to perform fifty hours of community service.

Of course, had the same mistake was made just a few seconds earlier or later, and merely in view of a police officer rather than causing an accident, the likely charge might have been at best , failing to obey a sign or, at worst, the old (pre-2017) careless driving offence.

This leaves us asking the the question: should punishment focus on wrongful actions or on the result of wrongful actions?

In my opinion, punishment in traffic court should be for wrongful actions. Punishment for consequences should dealt with in civil court.

JOHN PAPADAKIS is a paralegal at Papadakis Legal Services/Traffic Ticket Rescue. He is a former college instructor for law and paralegal studies at Everest College, and a former city councilor and deputy mayor at the Corporation of The Municipality of East York, Ward 3.