Does system hold bad drivers accountable?
There’s no question that the Canadian justice system is complicated, lumbering and often incomprehensible to the average person. The understandable result is a loss of faith in the institution.
I wondered if that sort of thinking is generally justified where road safety is concerned. Does “the system” hold really bad drivers legally accountable or not?
While I couldn’t do any kind of deep legal analysis of the thousands of B.C. cases out there, I was still surprised. It’s actually a rare moment when a defence lawyer is able to weave some legal magic allowing a bad driver to waltz out the courthouse door.
Some high profile examples: November 2015: Dr. Alphonsus Hui was turning left on Oak Street at 41st Avenue in Vancouver when he was struck broadside by a car going 139 km/h. Hui was killed instantly. That moment was particularly horrific for the community as it was all caught on another driver’s dash cam.
Yet at trial the accused was found not guilty of dangerous driving causing death, the judge ruling the offending driver had sped up temporarily and suffered a momentary lapse in judgment.
But Justice Groberman, speaking for the B.C. Court of Appeal, saw it differently. “I cannot understand how one could possibly describe the accused’s conduct in driving at almost three times the speed limit into a major urban intersection as anything but a marked departure from the standard expected of a reasonable driver.”
The acquittal was reversed and the accused sentenced to 18 months in prison and banned from driving for five years. The Supreme Court of Canada upheld the appeal ruling.
May 2008: One of B.C.’s most infamous drunk driving cases involved the death of four-yearold Alexa Middelaer in Delta. The accused, Carol Berner, who was going 91 km/h in a 50 zone, lost control after hitting some speed bumps, plowed into a parked car, then struck and killed Alexa and severely injured her aunt.
Berner was convicted on all counts of impaired and dangerous driving causing death and injury. She appealed on numerous grounds — violations of her charter rights, the officer’s grounds to make a breath demand, the inability to have her car independently inspected and the judge reaching an unreasonable guilty verdict.
Justice Ryan later wrote that if there were charter violations, they were too minor to warrant overturning such a serious case. She also ruled that the trial judge properly looked at the entirety of the evidence presented and not just on specific details defence lawyers felt were problematic.
The appeal was denied and the accused sentenced to 2 ½ years in prison and banned from driving for five years. The Supreme Court of Canada later denied her leave to appeal. Berner then appealed her sentence to the B.C. court of appeal; this was also denied. Berner was paroled in November 2014.
December 2017: Eleven-yearold Leila Bui was crossing Ash Road in Saanich when she was struck and catastrophically injured by a speeding SUV driven by Tenessa Nikirk. At trial, Nikirk was found guilty after evidence showed she was not only driving erratically at high speed but also sending numerous texts moments before striking Bui.
Defence appealed on the basis that the trial judge ignored some inconsistencies in witness evidence and disregarded expert evidence about reaction times. The appeal also claimed the evidence didn’t establish whether Nikirk was manually texting or using her device hands-free.
But Justice Griffin of the B.C. Court of Appeal wasn’t buying it. “… it is my view that none of these topics were material to the [trial] judge’s findings, because the judge concluded that there were sufficient visual cues approaching the intersection that a reasonably prudent driver would have slowed down in advance of the intersection,” she said.
By the way, for those who still can’t shake the need to drive and text — take note: Justice Griffin also ruled that it was irrelevant if Nikirk was manually texting or using another method since the “sheer number and frequency of texts” sent around the time of the crash meant her thoughts were elsewhere at the time.
The appeal was denied and the accused sentenced to two years in prison and banned from driving for three years upon release.
I’ll certainly get pushback about “justice” dispensed in the sentences these people received. They seem too low and that’s often hard to argue. But as a judge once told me: “Everyone wants to see really harsh sentences, except when they find themselves in the accused’s box.”
Convicted drivers will also face years of civil lawsuits, administrative motor vehicle penalties and social stigma.
Of course those problems in no way compare to what victims and their loved ones must endure.
So again, think hard about that drive home after having a few. The cops rarely accept excuses and it seems like the law offers few defences.