A mother questions the legal system
"How do I deal with the legal system after my son was killed by a driver who fell asleep at the wheel?"
This was the question in my in-box from a mother who was trying to understand in the aftermath of a recent catastrophe.
The two haunting concerns that she has is that this driver is still legally allowed to drive and the most significant consequence he might face for causing death is a traffic ticket.
At it’s most basic, the investigation by police will involve the gathering of information about all involved, photographs, witness statements and perhaps a few measurements.
A situation like this one should also involve an officer specially trained in collision reconstruction and a commercial vehicle inspector, as the offending vehicle was a five-tonne van.
At best, a dedicated crash investigation team that employs many experienced investigators with a wide range of skills could be called to participate.
A quick start and a thorough initial investigation to gather as much information as possible is critical to the outcome of any prosecution of the offending driver.
This can take time to complete and then prepare a comprehensive report to Crown counsel for a decision on appropriate charges.
What happens to the offending driver between the initial incident and the first appearance in court to face charges depends on many things:
- The severity of the incident
- The actions of the driver that led to it
- The driver's criminal and driving history
- The possibility of repeated similar behaviour.
It is not uncommon to have an alcoholic driver with previous convictions released by a justice of the peace on a condition not to drive until the conclusion of the case for a current offence and could be considered for an incident such as this one.
In British Columbia, once the police investigation is concluded and a report to Crown counsel is filed a decision will be made on how to deal with the offence.
The Crown Counsel Policy Manual sets out responsibility for decisions and what the possible range of actions might be. Depending on the decision, actions may range from alternate measures, a traffic ticket or criminal prosecution.
Finally, the issue of punishment for the offending driver is dealt with by the courts, assuming that the driver is convicted or pleads guilty.
Again, the range of outcomes is extensive, ranging from alternative resolutions, Motor Vehicle Act convictions, and criminal convictions including fines, house arrest and jail sentences.
The judge is restricted in applying penalty by case law and the charges that Crown Counsel chooses to prosecute.
RoadSafetyBC, also known as the Superintendent of Motor Vehicles can choose to take action if advised as well. The Superintendent can choose to prohibit a driver when it is in the public interest to do so.
The Criminal Code of Canada says that a person commits homicide when:
- Directly or indirectly, by any means, s/he causes the death of a human being
- S/he causes the death of a human being by means of an unlawful act or by criminal negligence
- A driver is criminally negligent when s/he shows wanton or reckless disregard for the lives or safety of other persons.
A commercial driver who must follow hours of service rules and disregards them could be considered to be showing reckless disregard, as well as any driver who is aware that s/he is excessively fatigued or falling asleep at the wheel and continues to drive.
I received a detailed e-mail from a lady who described walking beside Willingdon Road southbound in North Saanich during the early morning darkness.
She paused, looked both ways for traffic and continued to the point where Willingdon begins and Canora Road diverges to the northeast.
She stopped and checked for traffic again from the small island between lanes. Finding none, she began to cross the single lane.
At this point, a vehicle approaching from the south began to accelerate and the driver switched from low to high beam headlights.
Feeling threatened, the lady ran the rest of the way across the road, narrowly avoiding a collision with the vehicle. She earned a blast of the horn for her efforts.
Being generous, she wonders if the use of the horn was because the driver was also reacting to a bad scare.
She is also curious to find out if she was to blame for the situation and feels that a street light and marked pedestrian walkways would improve safety at the location.
As a wise pedestrian, this person has chosen a safer place to cross the highway. She’s effectively using the traffic island as a refuge while she observes and decides on proceeding.
Had she been walking in the opposite direction, by crossing here she would have cut a three-lane crossing to two and one, minimizing her exposure to vehicle traffic.
There is no indication of what she might or might not have done to identify herself to approaching drivers. In the absence of street lighting, light clothing, reflectors, arm bands, flashlights or wands can be very useful to establish a presence.
Drivers cannot react to things that they do not see or see soon enough to avoid.
Pedestrians tend to overestimate how visible they are to drivers.
On the other side of the windshield, drivers must always be attentive for both the expected and the unexpected, including yielding to pedestrians who don’t have the opportunity to cross in well-lit intersections with marked crosswalks.
The law imposes a duty not to collide with a pedestrian on a highway and to warn the pedestrian by using the horn if necessary.
We tend to drive at night much the same way we drive during the day. This has serious implications for things like pedestrians and wild animals when they are not within the cone illuminated by our headlights.
During daylight, they are generally easy to see, but at night, if they are not lit by headlights they are effectively invisible. Don’t overdrive your headlights.
From an engineering perspective, painted crosswalks cost money to create and maintain. Unless there is a reasonable volume of pedestrian traffic that uses the crosswalk, there is more sense in saving that cost for use elsewhere.
They can even be dangerous as some pedestrians treat them as an entitlement rather than calculating whether it is safe to do so before and during their use.
No doubt the same cost/benefit criteria is applied to street lighting.
This story serves to underline that interactions between pedestrians and drivers are co-operative in nature. The highways are not for the exclusive use of one over the other.
Readers in Port Alberni and Kelowna have commented on drivers who stop to turn left between intersections and are then involved in collisions with drivers overtaking from the rear.
In Port Alberni, this is occurring in a downtown-business district with a straight road and a posted speed limit of 50 km/h.
The situation in Kelowna is a bit different as the speed limit is higher and the road is not straight.
In both cases I would ask the left turning driver, “What’s in your rear-view mirror?”
When you are driving on roads that have painted lines marking out the lanes to use, you are generally required to stay to the right of them.
There are exceptions for passing, avoiding obstructions and when you are entering or leaving the highway.
The situation raised here involves leaving the highway and the onus is on the left-turning driver to do so safely and without unreasonably affecting the travel of another vehicle.
I’m sure we all watch the oncoming traffic carefully and find a safe gap to make the turn through.
Who wants to have a collision where the vehicle hits you in the side door at speed? There is almost nothing there to protect you in comparison to a front- or rear-end collision.
What we may not consider is what is happening behind us as we slow or stop, waiting to make that left turn. Remember that onus to be safe and to not unreasonably affect the travel of others?
Before slowing or stopping, you should check your rear-view mirror to see what is behind you.
It is not enough to rely on your signal and brake lights to announce your intentions; you must first consider whether it is safe enough to slow or stop.
This is where the test for being reasonable or not begins.
If traffic is heavy, speeds are high, the vehicles behind you are following closely and oncoming traffic leaves little opportunity to turn left, it’s time to consider an alternative method of making that move.
It may involve turning at the intersection before or after the convenient (for you) spot and going around the block to make a right turn instead.
Having decided that it was reasonable to stop and wait to turn left, the test for being reasonable continues.
It doesn’t just involve on-coming traffic, but traffic that you should be watching for in your rear-view mirror as well. If conditions change, you may need to abandon the turn and proceed in order to be safe.
There is also a duty for drivers who are overtaking the left-turn vehicle to anticipate and drive with due care in order not to become involved in a collision.
However, that situation can’t be more than anticipation of what might occur until after you have made the decision to turn left and begin to act.
The main onus is still on the driver of the left-turning vehicle to choose safety and consideration for others.
It was easy to tell that the first day of fall came on Thursday.
All I had to do was check my e-mail inbox and count the bright ideas to remind everyone to remember to turn on their lights when driving in the darkness and poor weather conditions.
It’s an important thought because your vehicle’s lights not only help you see, they help other road users to see you.
Bob tells me that he used to be a safety committee member in industry. His favourite mnemonic was KBL: Keys in the ignition seat Belt on, Lights on.
Having accomplished that, you were now ready to consider putting your vehicle in motion.
KBL was always the routine, regardless of whether it was day or night.
My Twitter account was well populated with messages about lights last year at this time.
The reminders were for those of us whose vehicles did not have daytime running lights that turned on all the lights.
Some drivers would see the headlight illumination and not remember that the back of their vehicle remained dark until they turned on all the lights themselves.
A nice convenience in some newer vehicles are lighting systems that turn all the lights on automatically when it is appropriate.
Drivers no longer have to do it themselves, unless the light switch is turned to Off instead of Auto.
The KBL routine would have you check to make sure the switch is set to Auto rather than turning the lights on.
I’ve already mentioned daytime running lights, so let’s revisit them while we’re speaking of lights.
Is your vehicle model year 1990 or newer and equipped with licence plates from any province in Canada?
If so, you are required to have daytime running lights that function correctly. Disconnecting the system should result in enforcement action.
Now, that we have the lamps lit, there are other considerations for proper night vision.
Are all the lenses clear, undamaged, not full of condensation and aimed properly?
Opaque or yellowed headlight lenses or lenses coated with condensation don’t transmit the light that you need to see with properly and blind other drivers with glare.
Future vehicle safety ratings will begin to measure headlight effectiveness. Until then, beware what you spend your money on if you are considering a lighting upgrade on your own.
Illegal products abound on store shelves or sold over the internet. Some of the legal choices are not what they seem either.
Osram Sylvania was the subject of a class action lawsuit in the U.S. over their Silver Star headlight bulbs.
The suit alleged that the company rigged the comparison with standard bulbs to influence consumers.
If you do choose to equip your vehicle with extra lights that are not street legal, remember that they fall into the category of off-road lights as defined in the Motor Vehicle Act Regulations.
All off-road lights must be covered with opaque covers whenever the vehicle is being used on the highway.
Let’s wind up with cleanliness. Dirty lights, front or rear, can’t do their job properly.
Some paper towel and a spray bottle containing windshield washer fluid could be a wise addition to your winter driving kit along with a spare bulb or two.
To comment or learn more, please visit DriveSmartBC.ca.
More Behind the Wheel articles
- Yellow means stop Sep 20
- Get out of the way Sep 13
- Finding solutions Sep 6
- Their lives are in your hands Aug 30
- Do you have road sense? Aug 23
- Truck stop(ping) blues Aug 16
- Where are all the cops? Aug 9
- Speed signs ignored Aug 2
- Ignore noisy vehicles Jul 26
- It's your problem Jul 19
- Send a surrogate to court Jul 12
- Fight that ticket Jul 5