Why it’s possible Ouimet’s killer could get away with no criminal charges

Under the law, a cyclist’s life is cheap. It’s time to change that

November 2nd, 2017 by | Posted in Feature, Spotlight | Tags: , ,

by Patrick Brown

clement-ouimet

Ranked as one of the top 10 climbs in Canada, the historical Voie Camillien Houde on Mont Royal is a popular climbing spot for all riders. The lack of stop lights and stop signs allow many to train all year long in this picturesque part of Montreal. The fact that this is a hot spot for cyclists is no surprise to anyone, including drivers.

The death of Clément Ouimet

On Oct. 4, an SUV driver went up Mont Royal, neared the crest, and then made an illegal U-turn. In the process, he killed Clément Ouimet, an 18-year-old cyclist with Espoirs Élite Primeau Vélo who was on the descent at the time. Later, a crowd of 250 would attend this young man’s memorial.

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A question on many cyclists’ mind is why this driver is not being charged criminally? Initially the police had announced charges were forthcoming, only to announce shortly afterward that their initial call was in error. Is it possible to think that criminal charges may not be laid? Absolutely.

The special status of those driving cars

Throughout many parts of Canada, the usual response to those drivers who kill or seriously maim a cyclist is to lay no charges at all or alternatively issue a ticket under provincial traffic laws. The only time the system takes a harsher approach is when the driver is drunk or takes off.

Why such a soft response here? When a driver in Portland struck two of my clients who were cycling on the paved shoulder down south, the Portland police threw the book at the inattentive driver. Multiple felony charges were laid including assault in the third degree and reckless driving. The driver was eventually sentenced to three-months jail, licence suspension and eight-years probation. The matter was taken seriously.

Here in Canada, our police, courts and society have granted special status to those driving cars for some reason. Perhaps we have an attitude that this type of carnage is an expected outcome on our roadways. Many examples exist where the driver has made an illegal manoeuvre, has killed or maimed one of my clients and then has gotten away with a fine of $85, $400 or $700 from traffic court. The civil lawsuit brought against the person never provides for any punishment since it is the driver’s insurance company that hires the lawyers to defend the claim and then pays out the compensation to the victim’s family.

Of course, the real problem in all this is the message that is sent to the driving public. A message that a cyclist’s life is cheap. There is very little, if any, deterrence within the system. Therefore, the behavior continues.

It is not like our legal system isn’t equipped for criminal charges against reckless drivers. In fact, we have several charges that are available under the Criminal Code. A driver could be charged with criminal negligence causing death under Section 220 of the code. The charge requires proof of “wanton or reckless disregard for the lives and safety of others.” The prosecutor will need to show whether or not there’s been a “marked and substantial departure” from what a reasonable person would do.

Driver’s can also be charged with dangerous operation of a motor vehicle under Section 249 of the code. The proof in those cases simply requires a “marked departure” from what a reasonable person would do in the driver’s situation. This charge is easier to prove since it only requires a “marked” departure as opposed to a “marked and substantial departure.” Lastly, there is the charge of manslaughter.

Many argue that these types of charges should not be laid, because the rates of conviction are rare. Perhaps true, but there have been examples where the charges result in a conviction.

In 2016, Justice Trotter of the Ontario Superior Court found a driver guilty of criminal negligence causing death, dangerous driving causing death and manslaughter when he drove his car through a red light and hit a 23-year-old cyclist who was riding along the pedestrian crosswalk. In convicting the driver on all counts, the court took into consideration the excessive speed and the illegal running of a stop light. The judge found the driver had little regard for those around him.

The maximum sentence when convicted can be either 14 years or life imprisonment. The maximum sentence would never be imposed, which is another reason the police and Crown prosecutors are reluctant at times to lay the charge. Another reason is an overburdened criminal justice system.

Possible solution: Vulnerable road-user law

One solution to the problem may be found in the recent vulnerable road-user law (Bill 158) that is now before the Ontario legislature as a private member’s bill. Bill 158 is the first proposed vulnerable road-user law in Canada. It calls for an added penalty to be imposed whenever a cyclist is injured or killed by a driver. The added penalty includes a minimum of 50 hours of community service, licence suspension and mandatory driving courses. The person avoids a criminal record, but does face something more than a small fine. This law has yet to be passed, but it would be an alternative solution.

I think it fair to say that all agree that the present system is broken and new solutions must be found so as to curb the horrific and tragic consequences that occur such as the one that took place on Mont Royal this month.

Patrick Brown is the past president of the Ontario Trial Lawyers Association, founder of Bike Law Canada, former director of Cycle Toronto. He initiated and participated in Ontario coroner’s Cycling Death Review.