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This article was published 21/5/2014 (2138 days ago), so information in it may no longer be current.
Only a quarter of bad car crashes result in charges and even fewer see drivers get jail time.
That's according to data provided by the Winnipeg Police Service and buttressed by court records, and it reveals a growing frustration among senior traffic officers tasked with investigating some of Winnipeg's worst collisions.
St. James resident Bev Bungay, whose long recovery from a 2012 crash kicked off the Free Press's traffic series last week, was hit while crossing Portage Avenue at the light. Bungay broke 11 bones and spent nearly a year off work, but the driver who hit her at close to 70 kilometres per hour was never charged.
Often, the driver flees the crash scene and is never located, which is what happened when cyclist Rebecca Ward was hit by a motorist on Academy Road a year ago. As Ward told the Free Press earlier this week, the motorist stopped briefly, saw her badly broken leg wasn't life-threatening and then drove off. Police later asked for the public's help identifying him, but never could.
Among the dozens of Winnipeggers who shared their crash stories in recent weeks, remarkably few resulted in consequences to the driver at fault.
Collision experts in the WPS central traffic unit investigated 150 crashes over the last five years, typically the ones where death or serious injury resulted. Charges were laid in only about 28 per cent of those.
The Free Press analyzed 30 crashes investigated by the central traffic unit in 2011, expecting any court proceedings would be complete by now. Sixteen people died in those 30 crashes.
But, only a quarter resulted in charges under the Criminal Code or the provincial Highway Traffic Act. And, only three cases so far have resulted in jail time for the driver, ranging from one year to 30 days. Three more cases haven't made it to trial, nearly three years later, illustrating how slowly the wheels of justice roll.
Sometimes, said Winnipeg police Staff Sgt. Rob Riffel, a crash genuinely is an accident. Sometimes the driver at fault dies. But in many more cases, police struggle with the limits of evidence and well-established case law that make it tough to lay charges, Riffel said.
"If you're going 20 or 30 kilometres over the speed limit and you crash and kill someone, that's not an accident. Some consequences should come from that," said Riffel, a 17-year veteran of traffic enforcement. "We're finding that's not the case, and it's very frustrating for us."
At issue is the need, embedded in centuries of common law and in the Charter of Rights and Freedoms, to prove criminal intent — that someone is morally blameworthy and knew what they were doing was criminal. In practice, it can be a difficult test to meet in crash cases. In most instances, it requires proving the accused person's driving was a marked departure from how a reasonable person would drive in the same conditions.
Prosecutors, in deciding whether to bring a case to trial, must also ensure it's in the public interest to do so, which is not hard for a driving offence involving death or serious injury. And, they must be sure there is a reasonable chance of conviction, which is trickier in crash cases, especially since top courts have consistently ruled one stupid move or a moment of inattention doesn't cut it. The Crown must prove a pattern of bad driving in the minutes leading up to a crash.
And, it doesn't really matter how bad the crash's consequences are, said Crown prosecutor Chris Vanderhooft. What matters in court are the driver's actions.
"The consequence, which are often tragic and terrible for families, isn't really what we make our decision based on," said Vanderhooft, who handles a lot of dangerous-driving cases. "The consequences aren't what drive the decision. We're looking at what we can prove in terms of the actual conduct."
One thing that gave police and Crowns slightly more latitude was a change, made a decade ago, that buttressed the provincial Highway Traffic Act. The act was amended to give police and Crowns two years rather than six months to lay a charge in a crash where a death occurred, allowing for more time to do some of the highly technical crash reconstruction and lab work. And, it allowed for up to two years of jail time if a violation of the HTA caused a death.
Still, as several high-profile cases have proven recently, meeting the Criminal Code test can be a high bar.
"In my experience, in more cases than not someone's done something wrong. Whether it rises to a criminal level or not is another story," said Riffel. "We all go, 'Well, wait a second. They killed somebody.' You have to dial yourself back a little."
Winnipeg already has a fair number of photo enforcement cameras, though Winnipeg police say they'd love more. They'd also love the ability to deploy them on more streets where speeding is a problem — Kenaston Boulevard, Regent Avenue, even some residential roads in Waverley West where homeowners have complained about dangerous driving. Here are some other, more radical enforcement ideas
$1,000 fines for texting while driving
Ontario is planning to start levying fines of up to $1,000 for distracted driving, as well as docking motorists three merit points. Manitoba's fine is $200, which most people consider a minor annoyance that won't break the bank. Manitoba is watching Ontario's hefty fees with interest.
Public shaming in San Francisco
A San Francisco man, the brains behind a campaign called TWIT (Texting While In Traffic) Spotting, has bought nearly a dozen billboards where he posts photos of drivers caught texting in the car. There are privacy concerns, more so in Canada than the United States, but it's still remarkably easy to find people fiddling with their phones behind the wheel.
A no-speeding probationary period
Young males drive the most aggressively. They make up the vast majority of traffic-caused trauma cases at Health Sciences Centre. They dominate court cases involving dangerous and careless driving offences. And MPI data always shows that male drivers aged 16 to 24 are responsible for the largest batch of collisions. Could the province create a long, hard probationary period, where drivers could see their licence suspended for months or even a year if they get a speeding ticket before turning 25 years old?
— with files from James Turner
In addition to impaired driving offences, there are three common charges resulting from bad crashes, each with their own legal tests.
Dangerous driving causing bodily harm or death
To get a conviction, the driver must be shown to have been driving in a manner that was a marked departure from the standard of care that a reasonable person would observe. In several decisions, high courts have determined that a momentary lapse of judgement or attention doesn't count. There must be a pattern of bad driving established in the moments leading up to the crash. A driver must, to offer some crude examples, have blown through a few stop signs or been substantively inattentive for a period of time, maybe 30 or 40 seconds. That requires evidence such as witness statements, video footage, cell phone texting records or information from the car's black box, and it can be tough to prove that pattern of driving conduct. The maximum penalty is 14 years in jail.
Criminal negligence causing bodily harm or death
This charge comes with an even higher threshold. Prosecutors must show the driver not only showed a marked departure from how a reasonable person would drive but a marked and substantial departure. And, the Crown must show the driver demonstrated a wanton or reckless disregard for the lives or safety of other persons. For example, a drunk driver caught speeding through a school zone where children were on the street, who causes a crash involving bodily injury or death would likely be found guilty of criminal negligence. The maximum penalty for criminal negligence causing harm is ten year. For death, it's life in prison.
Careless driving resulting in death
This is not a Criminal Code offence, so it does not require the Crown to prove criminal intent, but it can still come with huge fines and up to two year in jail. It gives Crowns in Manitoba the chance to lay a serious charge under the Highway Traffic Act in cases where proving criminal intent or a previous pattern of bad driving may be difficult. They must prove someone drove "without due care and attention or without reasonable consideration for other persons." Here's another bit of complicated logic: Under the Highway Traffic Act, unlike the Criminal Code, causation is not the test. In other words, Crowns only have to show that the collision resulted in a death, not that it was the cause of death.
The maps on this page show collisions on Winnipeg streets reported to Manitoba Public Insurance in 2012.
Use the tabs at the top to toggle between maps showing fatal crashes, crashes that caused injuries, and all crashes, including those that resulted only in property damage.
Click and drag on the map to move around, and use the plus and minus signs on the map to zoom in or out.
Research by Mary Agnes Welch. Map by Wendy Sawatzky, Andrew Burton and Eric Bailey. Data courtesy Manitoba Public Insurance and Winnipeg Police.
Markers indicate all locations where MPI reported a collision. Click on any marker for details on the intersection.
Grey dots indicate 1 or 2 collisions
Green:indicate 3 to 19 collisions
Yellow: 20 to 39 collisions
Orange: 40 to 59 collisions
Red: 60 or more collisions
Updated on Thursday, May 22, 2014 at 5:30 AM CDT: Adds links, adjusts fact boxes