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Achieving-Justice

RCMP fighting losing battle

It must be maddening.

We’ve tasked the RCMP to target distracted driving. As first responders to crash scenes, it’s a public safety priority they fully support.

RCMP Const. Steve Holmes was recently quoted:

“At crash scene after crash scene, we have seen the tragic results of something that is completely preventable. Drivers have to leave their phones alone.”

Have you seen the Myth Buster episode concluding that driving while talking on a cell phone is as dangerous as driving drunk?

The public, though, don’t seem to get it. From Holmes’ perspective, cell phone use while driving is just as prevalent as it was before the law changed in 2010. 

In my last column, I explained why that “idiotic” law, prohibiting only the hand-held version of this distracting behaviour, has made things worse instead of better.

I quoted from a discussion paper published by British Columbia’s Ministry of Public Safety and Solicitor General noting:

“Evidence also concludes that there is no difference between the cognitive diversion associated with hands-free and hand-held cell phone use.”

We see drivers talking away on their cell phones all the time, as do the RCMP.

It must be maddening not to be able to do anything unless that distracting behaviour is accompanied by a reach for the cell phone.

They must be as irritated as those they are ticketing, the palpable unfairness of “everyone else” chatting away with impunity while those few get hefty fines.

When asked about the impact of increased fines, Holmes says that drivers have gotten more creative with hiding their phones while driving.

And that adds to the danger.

The higher the fines and the more resources we put into policing the idiotic law, the more careful drivers will be. Not careful about driving: careful about concealing their cell phones.

That, or spending money on hands-free technology. Neither of which will do anything to discourage chatting on the phone while driving.

Crash statistics will continue to get worse. ICBC rates will continue to go up.

Cell phone use while driving is the new “impaired driving.” Targeting the hand-held version is like saying it’s OK to drink vodka and drive, but not beer.

Will you take a personal stand and refuse to talk on the phone with anyone who is driving a motor vehicle, even if they say “It’s OK, I’m hands free?”

Will you sign a petition for a change in the law?



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Idiotic law passed in 2010

“I was punished basically for not having enough money to buy a Bluetooth device.”

She had been talking to her mother, on speaker phone, while sitting at a red light. The phone somehow went off speaker, and she needed to handle it to turn the speaker back on. 

An RCMP officer in a “ghost car” ticketed her.

If she had the money for, and chose to purchase, hands-free, cell-phone technology, it would have been perfectly legal for her to chat away on the telephone her entire journey.

She could have been yak, yak, yakking away, notably oblivious to what was going around her, glanced over and given the RCMP officer a wink without a worry in the world.

Don’t have the money to afford hands-free technology?

Sucks to be you. 

You’ll just have to pull over, or wait until you arrive at your destination, before you can have your telephone discussion.

That’s how it was in the “good, old days?" On the rare occasion that something really pressing came up, eyes scanned the strip malls for a phone booth. We dug for the quarter to operate the thing. 

Just a quick call to get back on the road as quickly as possible.

Phone booth?

Yes, young folks. We used to buy telephone time at coin-operated booths, just like you buy condoms today.

If affluent enough to afford hands-free technology, you now have the privilege of chatting away on a telephone the entire way.

Is that fair?

Life isn’t fair. Affluence comes with all sorts of privileges. This is just another one.

But does it make any sense? Does it make our roads any safer?

Would it surprise you that a discussion paper, Addressing the Problem of Distracted Driving and its Impacts to Road Safety, includes the following words in the executive summary:

“Evidence also concludes that there is no difference between the cognitive diversion associated with hands-free and hand-held cell phone use?”

Would you be angry if you knew the discussion paper had been available to British Columbia before enacting legislation that prohibits hand held, but not hands free, cell phone use?

Would it push you over the edge if you knew that the discussion paper was issued by British Columbia’s very own Ministry of Public Safety and Solicitor General?

Dr Louis Francescutti, professor in the School of Public Health, University of Alberta, was interviewed by CBC in August, 2016.

Wasn’t that around the time when ICBC was announcing the worst-case scenario of a 40-some per cent increase of rates?

A write-up of that interview summarizes:

“Francescutti said governments are to blame for allowing what he calls ‘idiotic legislation’ that told people it’s OK to use hands-free options while driving.”

By making only hand-held cell phone use illegal, the government appears to have given two enthusiastic thumbs up to the hands-free version, which the government knew was just as dangerous.

Before British Columbia’s idiotic law came into force on Jan. 1, 2010, safety conscious British Columbians avoided cell phone use while driving, conscious of the distraction.

After Jan. 1, 2010, reassured about the safety of hands-free cell phone use, they put immense profits into the pockets of those producing hands-free technology and enjoyed the privilege of using their vehicles like a rolling phone booth.

Instead of causing a reduction, the British Columbia government has actually caused an increase in cell phone use while driving.

With that increase has come increased crashes. Crashes cause vehicle damage, injuries and deaths. 

Leaving personal loss alone, those crashes cost billions of dollars of cost to British Columbians.

No wonder ICBC rates have been increasing. What about increases in emergency services, health care and other costs that impact our taxes?

Dr. Louis Francescutti suggests that we should bring a class action against our own government for knowingly making the problem of distracted driving worse instead of better.

It took class action litigation to force tobacco companies to be held accountable. Will it take a class action lawsuit to force our political leaders to take the very, very simple step of banning cell phone use while driving altogether?

With an election just around the corner, we could not be better situated to put pressure on our political leaders to do the right thing. 

Which party will commit to changing the legislation if they are elected?

If the “right thing” doesn’t happen, I put up my hand as willing to lead a class-action lawsuit. 



Intoxicated sex and consent

“Clearly, a drunk can consent.”

Dangerous words when pulled out of context from a judge’s acquittal of a cab driver, found by police with pants undone and an unconscious woman in his cab, the woman’s urine soaked pants and underwear in his hands.

Out of context, they could mean that it’s OK to sexually prey on women who are so drunk that they urinate in their pants and pass out drunk.

It’s not, and the judge didn’t say that it is.

The judge actually denounced the behaviour of the cab driver, who had been entrusted with taking a clearly intoxicated young woman home.

He expressed his moral judgment that even if the young woman had expressed her agreement that he remove her clothes, he should not have done so. Even if she had been flirtatious with him, acting on that would be taking advantage of a vulnerable person.

He was also supportive of the police officer who made the arrest, noting that the circumstances were such that they “would lead any reasonable person to believe that Mr. Al-Rawi was engaging in or about to engage in sexual activity with a woman who is incapable of consenting.”

However much the judge denounced the cab driver’s behaviour, he had a difficult job. 

The passed-out victim had no memory of what occurred. There was only circumstantial evidence with which to infer her level of capacity at the time her clothes were stripped off, which was the evidence of sexual contact between the cab driver and the victim.

He noted, “…I do not know whether Mr. Al-Rawi removed (the complainant’s) pants at her consent, request, with her consent, without her consent. I don’t know. The Crown marshalled no evidence of this.” (Click here for full transcript)

Obviously, if the victim was already unconscious at the time the clothing was removed, she could not have consented. But the judge had no way of knowing whether she was conscious at that time.

As for her capacity before passing out, a forensic alcohol expert testified that even at her high level of intoxication (about three times the legal driving limit), the young woman “might very well have been capable of appearing lucid but drunk and able to direct, ask, agree or consent to any number of different activities.”

The acquittal is under appeal. Perhaps the appeal court will find that there was, indeed, sufficient evidence to infer the facts necessary to convict.

I think it’s important, though, not to direct our revulsion about a lack of criminal accountability for this cab driver’s horrible behaviour at the judge, nor at an appeal court that might well uphold the acquittal.

Judges simply apply laws that we create. Do we want cab drivers to be criminally accountable for taking advantage of vulnerable passengers? We can pass laws that will do that.

Do we want criminally accountability, generally, for taking advantage of vulnerable women? We can pass laws to do that too.

The law we are currently asking judges to apply comes from section 273.1 (2)(b) of the Criminal Code. It says that you do not have consent if a person “is incapable of consenting to the activity.”

Those words have recently been interpreted to require proof beyond a reasonable doubt that “the complainant’s cognitive capacity is sufficiently impaired by the consumption of alcohol so as to make her incapable of knowing that she is engaging in a sexual act or that she can refuse to engage in the sexual act.”

Holy, smokes, that’s a high standard. It’s not enough, in itself, to prove that the victim was “falling down drunk.”

Do we want to fix it? It is fully within our power to do so. Let’s pass laws to protect those who have become vulnerable by intoxication from predators who would take advantage of that vulnerability.





Mom's dangerous lesson

It was out of character for Lori, the single, hard-working, mother of four. She was always the one ensuring that no one would be drinking and driving. 

Imagine what her children, the youngest aged six, felt as their mother was taken away to begin serving her three-year jail sentence.

The server who had delivered the shots of tequila and beer offered to arrange a driving service. Lori declined, saying she was calling a friend for a ride. That decision will haunt her for the rest of her life.

Lori made no excuses and was sobbing as she gave her heart-felt apology to the family of Erin, the 33-year-old nurse whose life she ended. She was also apologizing to Lindsay, Erin’s 31-year-old co-worker who will never recover from her injuries.

No amount of jail time could fix this. In fact, the longer she spends behind bars will only increase the harm to the four victims who were not in the crash: her children.

Nothing can fix this.

But this tragic event, occurring right here in our Okanagan community, can help fix us.

Impaired driving continues to be a significant road safety problem. Every time the RCMP put their important resources to targeting impaired drivers, another “tip of the iceberg” of offenders are snagged.

For every impaired driving death, there is some significant multiple of impaired driving injuries.

The last bold step our political leaders took to fix this problem, and it was a beauty, was implementing automatic roadside consequences in 2010.

Is it time for another bold step?

How about Erin’s Law, requiring bars to ensure that clearly impaired patrons do not get into a vehicle and drive?

Servers could be required to keep track of the number of drinks served. A simply formula, taking into account the amount of time spent in the bar, could trigger the obligation.

A minimum-wage earner could follow the patron to the parking lot, warning that the RCMP will be called if they get into the driver’s seat of a vehicle.

Those much smarter than me can come up with the details, but surely a clear screening and prevention procedure can be conceived of. Failure to implement it could be a criminal offense with similar penalties to impaired driving itself.

No procedure would be iron clad. Those intent on driving impaired could simply park off site.

Erin’s Law would have saved Erin. If would help in most situations where well meaning people at the beginning of the night make horrible decisions after they are impaired.

It could be extended anywhere alcohol is consumed. Yes, including your home when friends come over to drink. Would it be ridiculous to make a conscious effort to keep a tally on the number of drinks consumed by those who bring their vehicles?

The most important impact of Erin’s Law would be a change in attitudes. It is clearly insufficient to rely on drinkers to be responsible. We must add responsibility to those who are complicit in impaired driving situations occurring.

Erin’s Law would do just that. The next generation would grow up seeing their parents and the world around them actually doing something to prevent impaired driving, rather than just sitting back and letting it happen.



More Achieving Justice articles

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
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Twitter:   twitter.com/Hergott_Law



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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