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When is a fatal crash just careless driving and when is it criminal?

Published December 7, 2012

Sam Birtwistle could feel the anger growing inside when he read a story about a fatal motorcycle accident near Barrie in the local paper.

The 49-year-old high school gym teacher in Alliston had no direct connection, but was outraged that the pickup-truck driver accused of pulling a u-turn in front of the motorcyclist was only charged with careless driving under the Highway Traffic Act.

“I just saw that the charge didn’t seem to capture the gravity of the results. I mean this guy died and I thought criminal negligence causing death would have met the burden (of proof),” he said, adding that he also rides a motorcycle.

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Birtwistle, who contacted Wheels to convey his exasperation, is not alone in failing to understand how police — and, down the line, a Crown attorney — conclude that one fatal accident warrants a fine and another a criminal charge.

“Careless driving? It’s a glorified traffic ticket. It’s not a criminal offence,” said the Barrie resident. “I just thought, if somebody killed me, that my life would be worth more than six (demerit) points and couple of hundred dollars fine.”

Even more emotional are the family members of those killed in fatal accidents.

According to Ministry of Transportation’s most recent statistics, there were 564 people killed in collisions in Ontario in 2009, down substantially from the previous two years.

That same year, there were just two convictions for Criminal Negligence Causing Death and 13 convictions for Dangerous Driving Causing Death — although it is unknown whether those convictions related to 2009 accidents or previous years.

Police and lawyers say many things are considered when determining charges from a fatal accident; especially whether the accused motorist did something so flagrantly wrong that he or she should have known their actions could jeopardize life. Although that occasionally happens, it is rare.

“Just because there is a fatality doesn’t necessarily mean it is a criminal offence … it’s how the collision occurred and what led up to it,” explained Sgt. Scott Parker, of the OPP’s traffic operations division.

Parker said criminal negligence causing death is seldom charged in a motor vehicle accident. The more common charge is dangerous driving causing death, but even that depends on the facts of the case.

“You got to prove the … guilty mind along with the guilty act,” he said.

Another veteran provincial police officer, who asked not to be named, said negligence means “you have done something so stupid you had to have known it might kill somebody, whereas careless is not to have due care and attention or consideration for other people using the highway.”

Parker said it is difficult for grieving families to understand how police arrive at a charge, so investigating officers and the Crown attorney often sit down with them and walk them through the process.

Former veteran Crown attorney Peter Speyer, now in private practice in Cambridge, said the results of a crash should not necessarily determine the charge.

“In terms of driving offence, the consequences shouldn’t drive the charge. The nature and the quality of the driving are what’s at stake,” he said. “There are lot of circumstances that need to be considered by the police and the Crown … in respect to which charge to lay.”

Toronto lawyer Clayton Ruby said a charge of dangerous driving requires a marked departure from the standard of care expected from an ordinary motorist.

“The ‘proof beyond a reasonable doubt’ standard means the departure must be evident, because real proof is needed, and the onus of proof is on the Crown,” he said.

Criminal negligence causing death is even more serious, he said, requiring proof that “the driver was morally blameworthy to a higher degree, namely, a reckless disregard for the safety and lives of others.”

So although making a u-turn in traffic is a departure from the standard of care, Ruby said “it is not criminal negligence or dangerous driving unless it is marked departure or, respectively, a risk he averted to.

“But, not withstanding that, it is almost always charged and they worry about the proof later — and they make a deal later sometimes.”

Ruby acknowledges there have been times when he has wondered why criminal charges weren’t laid, when the circumstances seem to warrant it.

He suggested a victim’s family may want to consider a civil suit.

“Obviously at fault is more than enough for a civil suit … it is a place for them to go, rather than criminal court, because it is a lower standard of proof to begin with.”

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