What is the point of having a law if it is not enforced?
J. Andrew Sprague, LL.B. (The Privacy Fellow)
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Ontario’s Highway Traffic Act may be protecting pedestrians in name; however, law enforcement is not doing its part and it is time for that to change.
On November 7, 2018 – exactly one year ago today – my father was struck by a car while he was walking home.
He survived, which, depending on your personal perspective regarding quality of life, is a good thing or a bad thing.
Like the lives of countless other pedestrians who are being struck by vehicles, my father’s life is now forever changed.
Speaking bluntly, it is a miracle that my father is alive. Sadly, many pedestrians who are struck do not survive.
This is what my father’s brain looked like shortly after November 7, 2018:
This is what my father’s skull looked like shortly after November 7, 2018:
This is what my father looked like after November 7, 2018:
Imagine being designated as having “catastrophic” impairments under the province of Ontario’s statutory accident benefits regime.
Imagine having a GOS-E score of “lower severe disability”.
Imaging lacking legal capacity.
Imagine sustaining the following injuries and sequelae as a result of being struck by a car:
- right epidural hematoma
- left subdural hematoma
- comminuted skull fracture (involving bilateral petrous temporal bones)
- small ICH of bilateral frontal lobes
- bilateral enlarged scalp hematoma
- subarachnoid hemorrhage
- intraventricular hemorrhage
- diffuse axonal injury
- burr hole and drainage of bleed
- right facial nerve injury
Unfortunately for my father, this is his reality.
The injustice of this situation really stings.
Prior to being struck, my father lived fully independent. He had no significant health issues, and he thrived in life.
Now, he requires medical care 24 hours a day, 7 days a week. He feeds via a surgically inserted feeding tube, he lives with an indwelling catheter, and he needs a wheelchair because he can’t walk as a result of being struck by a car.
Our politicians and law enforcement agencies repeatedly talk about the crisis on our roads as far too many pedestrians are being struck. Too many lives are being lost, and too many families are being torn apart.
Respectfully, a clear message is not being sent to motorists.
Part of the problem, in my opinion, is the unwillingness of some law enforcement agencies to enforce the law.
The last Ontario government enacted amendments to the Highway Traffic Act which were intended to signal to motorists that striking pedestrians will have consequences.
As a result of the amendments, Section 130(3) of the Highway Traffic Act states:
Careless driving causing bodily harm or death
(3) Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and who thereby causes bodily harm or death to any person. 2017, c. 26, Sched. 4, s. 17.
In addition, Section 130(5) of the Highway Traffic Act states:
Deemed lack of reasonable consideration
(5) For the purposes of subsections (1) and (3), a person is deemed to drive without reasonable consideration for other persons using the highway if he or she drives in a manner that may limit his or her ability to prudently adjust to changing circumstances on the highway. 2017, c. 26, Sched. 4, s. 17.
Section 130(6) of the Highway Traffic Act states:
Sentencing — aggravating factor
(6) A court that imposes a sentence for an offence under subsection (3) shall consider as an aggravating factor evidence that bodily harm or death was caused to a person who, in the circumstances of the offence, was vulnerable to a lack of due care and attention or reasonable consideration by a driver, including by virtue of the fact that the person was a pedestrian, cyclist or person working upon the highway. 2017, c. 26, Sched. 4, s. 17; 2019, c. 8, Sched. 1, s. 25.
The amendments were promoted by the current Ontario government.
See, for example, https://news.ontario.ca/mto/en/2018/08/tougher-penalties-for-dangerous-driving-start-september-1.html.
In addition, media outlets spread the word about the so-called new, tougher penalties.
See, for example,
- https://www.ctvnews.ca/autos/ontario-government-hikes-penalties-for-careless-driving-1.4076871;
- https://www.cbc.ca/news/canada/toronto/ontario-to-stiffen-penalties-for-dangerous-driving-and-endangering-pedestrians-1.4807290;
- https://www.thespec.com/news-story/8876256-tougher-penalties-new-charge-for-careless-drivers-now-in-effect-in-ontario/; and
- https://toronto.citynews.ca/2018/09/01/careless-driving-penalties/.
My father was struck by a driver who failed to yield to a stop sign on a dark, rainy night. My father was crossing the street.
The situation sounds like one in which Section 130(3) of the Highway Traffic Act, and its related provisions, would come into play, right?
According to the local law enforcement agency, the driver was only charged with failing to yield to a pedestrian and failing to stop at a through highway.
Charge No. 1 (Yielding to pedestrians) (Section 144(7)): “When under this section a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk.” R.S.O. 1990, c. H.8, s. 144 (7).
Charge No. 2 (Stop at through highway) (Section 136(1)): “Every driver or street car operator approaching a stop sign at an intersection, (a) shall stop his or her vehicle or street car at a marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection; and (b) shall yield the right of way to traffic in the intersection or approaching the intersection on another highway so closely that to proceed would constitute an immediate hazard and, having so yielded the right of way, may proceed.” R.S.O. 1990, c. H.8, s. 136 (1).
According to the Ontario Ministry of Transportation’s website (see https://www.mto.gov.on.ca/english/safety/pedestrian-safety.shtml), the penalty for failing to yield to a pedestrian is a fine of up to $1,000 and four demerit points. There are no other penalties.
The penalty for failing to stop at a stop sign is a fine of $110 and three demerit points. There are no other penalties.
When compared to the penalties for careless driving involving pedestrians, the charges laid in respect of my father’s situation are an absolute joke and a slap in my father’s face.
Persons convicted of careless driving causing bodily harm or death you can face fines ranging from $2,000 to $50,000. In addition, six demerit points apply and there is a possibility of jail (up to a maximum of two years).
Why did the Government of Ontario enact specific laws to address pedestrians being struck if some law enforcement agencies will not use the applicable provisions under the Highway Traffic Act to properly charge a careless driver?
I asked the local law enforcement agency to explain why they elected not to charge the driver pursuant to Section 130(3) of the Highway Traffic Act.
According to the local law enforcement agency, “Many factors were looked at in order to determine what the appropriate charges would be.”
Apparently, because (a) it was raining; (b) it was night-time; (c) the intersection was poorly lit with artificial lighting; (d) my father was difficult to see; and (e) the driver slowed to make sure there were no vehicles coming (before he blew through the stop sign), “there was no evidence to suggest that [the driver] was driving aggressively and carelessly.”
I continue to shake my head at their answer.
Sorry, blowing through a stop sign (however slowly one may doing so), on a rainy night where there is poor lighting in an intersection, and, as a result, destroying a pedestrian’s life, is a chargeable offence pursuant to Section 130(3) of the Highway Traffic Act (taking into consideration Section 130(5) and Section 130 (6) of the Highway Traffic Act as well).
The words of the then Minister of Transportation, as set out in the Government of Ontario’s August 28, 2018 press release titled “Tougher Penalties for Dangerous Driving Start September 1”, are completely correct in one aspect, and completely incorrect in another aspect. See https://news.ontario.ca/mto/en/2018/08/tougher-penalties-for-dangerous-driving-start-september-1.html.
The Minister correctly noted that “Time and time again we've seen families devastated because a loved one is hurt or killed by a dangerous driver, and the driver walks away with no more than a slap on the wrist,”
The Minister was incorrect when he said “This new charge sends a clear message that dangerous driving won't be tolerated.”
Implementing a so-called tougher law sound great when a piece of legislation is amended.
The amendments are completely irrelevant; however, if the new law is not enforced.
My father’s situation demonstrates that dangerous driving is clearly tolerated in Ontario.
Are we, as a society, okay with this scenario? I am not, and I call upon the Government of Ontario to take discretion out of the hands of the law enforcement agencies.
When a pedestrian’s life is taken or a pedestrian sustains significant injuries, like my father, the pedestrian and their families deserve justice.
We need to stop slapping drivers on the wrist for collisions that are completely avoidable.
If you blow through a stop sign, and destroy a pedestrian’s life, you should be charged under Section 130(3) of the Highway Traffic Act.
How is this even optional for law enforcement agencies?
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[In a future post, I will share with you how Ontario’s statutory accident benefits scheme fails people like my father and our family. The burden being placed onto families is unfair and unjust. Families need support when a pedestrian is struck by a car and the pedestrian sustains catastrophic injuries.]