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Behind-the-Wheel

Questioning the system

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.

Story URL: http://www.drivesmartbc.ca/collisions/how-do-i-deal-legal-system-after-fatal-collision

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About the Author

Tim Schewe is a retired constable with many years of traffic law enforcement experience. He has been writing his column for most of the 20 years of his service in the RCMP.

The column was 'The Beat Goes On' in Fort St. John, 'Traffic Tips' in the South Okanagan and now 'Behind the Wheel' on Vancouver Island and here on Castanet.net.

Schewe retired from the force in January of 2006, but the column has become a habit, and continues.

To comment, please email

To learn more, visit DriveSmartBC



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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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