Dangerous driving

New Harsher Penalties Are in Force for Distracted Drivers in Ontario

Written on Behalf of Affleck & Barrison LLP

When the clock struck midnight on December 31, 2018, stiffer fines and long-lasting penalties for distracted drivers began in Ontario.

According to the Ontario Provincial Police, distracted drivers are the leading cause of fatal collisions in Ontario. In 2016, 65 people died in accidents caused by inattentive drivers.

WHAT IS DISTRACTED DRIVING?

Distracted driving is defined as driving a vehicle while engaging in another activity such as texting, reading, using any handheld device (including typing on a GPS or changing a playlist), grooming, eating, and drinking.

Using a cell phone while driving involves three types of distractions: visual, manual, and cognitive. Visual requires you to take your eyes off of the roadway. Manual entails taking your hands off of the wheel of the vehicle. Cognitive involves taking your mind off of driving. Even using a phone for a handsfree call provides a distraction to one’s cognition as your mind is taken off of the road.

STATISTICS REGARDING DISTRACTED DRIVING

Distracted driving has severe consequences to both the distracted driver, his/her passengers, and anyone within his/her path.

Statistics demonstrate that a distracted driver can fail to see up to 50% of their immediate environment.

Distracted drivers contribute to 20-30% of all motor vehicle collisions and are three times more likely to be involved in a motor vehicle accident than focused drivers.

According to Ontario’s Ministry of Transportation, deaths from collisions caused by distracted driving have doubled since 2000 in Ontario.

ONTARIO’S NEW DISTRACTED DRIVING LAWS

Beginning January 1, 2019, as part of Ontario’s Bill 174 , Ontario will have the toughest penalties for repeat distracted driving convictions.

Drivers who are found to be talking on their phones, texting, dialing, or emailing with a hand-held device will be fined up to $1,000 with a three-day licence suspension, and three demerit points.

Motorists facing a second conviction of distracted driving will face a fine of up to $2,000, a seven-day licence suspension, and six demerit points.

Drivers who have been convicted of driving distracted more than two times will be required to pay a fine of up to $3,000, will lose their licence for 30 days, and six demerit points.

Novice drivers with a graduated licence (G1, G2, M1 or M2) will face even tougher penalties. These drivers will face the same fines as more experienced drivers, in addition to:

  • 30-day licence suspensions for a first conviction;
  • 90-day licence suspensions for a second conviction; and
  • licence revocations and removal from the Graduated Licensing System for a third conviction.

In addition to the stiffer fines and greater penalties, those convicted of distracted driving can expect their insurance rates to increase.

The only exceptions to the distracted driving rules are when calling 911 in an emergency or when the driver is lawfully parked or safely pulled off of the roadway.

CARELESS AND DANGEROUS DRIVING OFFENCES

If you have endangered other people due to any type of distraction (using a hand-held or hands-free device) while driving, you may be charged with careless driving.

A driver convicted of careless driving faces fines of up to $2,000, six demerit points, and/or a jail term of six months, and a licence suspension of up to two years.

If you are charged with the dangerous operation of a motor vehicle upon consideration of the nature, condition, use of the vehicle, and the amount of traffic at the time, you may face a jail term of up to 10 years for causing bodily harm or up to 14 years for causing death.

TORONTO POLICE DISTRACTED DRIVING BLITZ

Toronto Police launched a two-week-long traffic blitz aimed at distracted drivers, which runs until January 20, 2019.

Officers will be using all types of vehicles to look for distracted drivers, including patrol cars, unmarked vehicles, bicycles, and on foot. Police officers will also be riding TTC buses and streetcars to observe drivers from above.

SIMPLE TIPS TO AVOID DISTRACTED DRIVING

Cell phones are a driver’s biggest distraction when they are behind the wheel. It is strongly recommended that drivers only use hands-free devices while driving to make short phone calls. Even drivers who are using hands-free devices become distracted by a telephone conversation while navigating through traffic.

It is also recommended that drivers turn off their phone or switch it to silent mode before getting into their vehicle. Placing one’s cell phone in the glove compartment or in a bag on the back seat will also help to avoid the temptation to use the phone while driving.

It is also suggested that drivers pre-program any GPS tools or music devices before starting their vehicle. If the need to make a call or return a text arises while driving, find somewhere safe to pull over and park your vehicle.

Drivers should also ensure that their children are comfortable, properly seat belted, and have everything they need prior to starting their vehicles.

If you are facing a distracted driving charge or another driving offence, please call the experienced criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or contact us online. We offer a free consultation, and are available 24 hours a day, seven days a week.

Driver Found Not Guilty in Car Accident that Killed Pedestrian and Her Dog

Written on Behalf of Affleck & Barrison LLP

 

On November 21, 2017, Mr. Justice Peter Bawden found Gideon Fekre not guilty of dangerous operation of a motor vehicle causing death.

WHAT HAPPENED?

In April 2015, 18-year old Fekre was driving on Dundas St. E. approaching Carlaw Avenue when he crossed a bike lane and drove onto the sidewalk for 20 metres, ultimately striking and killing Kristy Hodgson and one of her two dogs that she was walking.

Fekre told the Court,

I was coming down Dundas from the Eaton Centre….My water bottle dropped, and I reacted, is the best way of putting it. I reached down  with my right hand to pick it up, kept my left hand on the steering wheel. …[I realized] the direction I was heading was onto the sidewalk toward a woman and her dogs.

Fekre testified at trial that he tried to avoid Hodgson by hitting his brakes and turning the steering wheel towards the road, but was unsuccessful.

Police officers testified that Fekre’s car had left the roadway, crossed a bike lane, and driven on the sidewalk for more than 20 metres at approximately 52 kilometres per hour. Fekre had told the officers at the scene that he had taken his eyes off the road for “just a second” while trying to retrieve a water bottle that had fallen onto the floor beneath his feet.

THE OFFENCE: DANGEROUS OPERATION OF A MOTOR VEHICLE CAUSING DEATH

The criminal charge of dangerous operation of a motor vehicle causing death is a serious criminal offence punishable by up to 14 years in prison as set out in section 249(4) of the Criminal Code of Canada. This offence consists of two components:

  • the prohibited conduct (operating a motor vehicle in a dangerous manner resulting in death); and,
  • the required degree of fault (marked departure from the standard of care that a reasonable person would observe in all the circumstances).

In the 2012 case of R. v. Roy, the Supreme Court of Canada clarified the legal principles to be applied in determining the criminal standard for dangerous driving. The Court set out the two questions to ask in determining whether the fault component is present:

  • In light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?
  • Was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?

In the case of R. v. Roy, the Supreme Court of Canada found that the trial judge erred in law by inferring from the fact that Roy had committed a dangerous act while driving that his conduct displayed a marked departure from the standard of care expected of a reasonable person in the circumstances. The Supreme Court allowed the appeal, set aside the conviction and entered an acquittal.

DECISION BY THE TRIAL JUDGE

The real question before the court was whether Fekre’s reaction in the less than two seconds was a “marked deviation” from what a “reasonably prudent” driver would do under the circumstances.

Was it [reaching for a water bottle] a marked departure from what a reasonable driver would have done?

Justice Bawden found that the Crown prosecutor had not proven beyond a reasonable doubt that Fekre made a conscious decision to divert his attention at an essential moment while driving. He did state that the driving in question could lead to liability in a civil trial, but he did not meet the higher criminal standard for dangerous driving outlined by previous decisions before the Supreme Court of Canada.

Justice Bawden specified that the duration of the interruption in attention while driving was essential in coming to his decision. The evidence showed a period of inattention lasting between 0.74 seconds to 1.18 seconds. This, according to Justice Bawden, qualified as a “momentary lapse of attention” which had been deemed non-criminal by the Supreme Court. He stated, “We cannot hold drivers to a standard of ideal decision-making when making split-second decisions”. He found that Fekre made an “imprudent but reflexive decision”.

Furthermore, Fekre’s behavior at the scene showed concern for the victim and dramatic remorse, which enhanced his credibility.

CHANGES IN THE FUTURE

The Liberal government currently has a proposal on the table to establish new road safety measures, which we have previously blogged about.

The proposed legislation includes the offence of careless driving resulting in death or bodily harm with a maximum fine of $50,000.00, license suspension, and imprisonment. We will provide updates regarding this new legislation as information becomes available.

If you are facing a dangerous driving charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.