There used to be a tricky step in Ragheda Watfa’s home, between the living room and dining room, that everyone would trip over. No one seemed able to visit the house without stumbling at least once, she says.
The exception was her son, Simon. Even when he was learning to walk, he never tripped over the step. He was so sure-footed Watfa and her husband, Bassel Khouri, didn’t even have to put up baby gates at the top of their stairs.
“Since he was little, he was very careful. He wouldn’t step anywhere without knowing where he’s going,” Watfa said in an interview.
As he grew older, Simon, an outgoing boy who was always top of his class and excelled on the school robotics team, was so responsible that Watfa didn’t worry when he ventured out into their suburban Ottawa neighbourhood to play with friends. “I always had that in mind, that he’s safe, he’s careful, he’s smart, and he makes good choices,” Watfa said.
On July 23, 2019, someone else’s choices ended Simon’s life. Just after 5 p.m. that afternoon, he was struck and killed by a driver as he rode his bike across Jeanne d’Arc Boulevard with two friends. He was 13.
On Jan. 18, the driver, an 80-year-old man named Robert Ryan, pleaded guilty to careless driving causing death. He admitted in court that at the time of the collision he wasn’t wearing the prescription glasses required by his licence. He received a $ 5,000 fine and a four-year driving ban.
To Watfa and Khouri, that sentence is painfully inadequate. “I don’t think it’s justice,” Khouri said. “The only message I’m getting from this (is) that anybody can hit somebody and kill them and (the driver) is going to be OK,” Watfa said.
Ryan declined to answer questions for this story.
Simon’s parents aren’t supposed to feel this way. When the law Ryan was convicted under came into effect more than two years ago, the provincial government said it would spare families the pain of watching drivers who killed or injured their loved ones get off with minor consequences.
But road safety advocates say the new law isn’t working. Statistics provided by the Ministry of the Attorney General show that, like the driver in Simon’s case, many people convicted under the offence don’t receive anything approaching the stiffest penalties it allows. And more than half the drivers who face the charge aren’t convicted of it.
“I think the numbers just paint, in big red letters, clearly with evidence, what we already knew was the case,” which is that drivers don’t face appropriately serious charges when they gravely injure others, said David Shellnut, a Toronto-based personal injury lawyer who specializes in traffic law.
The new non-criminal offence under the Highway Traffic Act is called careless driving causing bodily harm or death. It went into effect in September 2018. Drivers convicted under it are subject to a fine of up to $ 50,000, a licence suspension of up to five years and up to two years’ jail time.
The new charge was meant to address a gap in the legal system that had long frustrated victims’ families and advocates. Drivers who hit someone while displaying the worst behaviour, like driving drunk or deliberately driving recklessly, can be convicted of criminal charges and be sentenced to prison.
But the behaviour of many drivers who injure or kill someone isn’t deemed worthy of a criminal conviction, and they’re instead convicted of non-criminal Highway Traffic Act charges like simple careless driving, which comes with a maximum fine of $ 2,000 and imprisonment of up to six months.
The new offence was intended to ensure drivers who are convicted of non-criminal charges in serious collisions face meaningful penalties.
The legislation for the new charge was passed by the Ontario Liberal government in 2017 and later backed by the Ontario PCs, who were in power by the time it went into effect.
“Time and time again we’ve seen families devastated because a loved one is hurt or killed by a dangerous driver, and the driver walks away with no more than a slap on the wrist,” said John Yakabuski, then minister of transportation, in August 2018. “This new charge sends a clear message that dangerous driving won’t be tolerated.”
According to the government figures, of 144 charges between September 2018 and the end of 2020, a majority — 80 cases — resulted in no conviction for the new offence.
Of the 64 charges that did end in convictions, the most serious outcome for the driver was a fine in 29 cases, and in 28 it was probation. To date, no driver has faced the maximum allowable fine of $ 50,000.
Only four charges resulted in jail time, most of those less than 20 days. Thirty of the convictions also came with a court-ordered licence suspension.
Patrick Brown, a road safety advocate and personal injury lawyer with McLeish Orlando LLP, said the low number of convictions indicates most drivers who kill or injure others are avoiding harsher penalties under the new offence by pleading down to lesser charges.
A high number of charges under the new offence, close to 7,000, are still making their way through the system, and Brown predicted more drivers are likely to enter plea deals or have their cases thrown out as courts seek to clear the growing backlog caused by COVID-19 delays.
According to Brown, while drivers convicted of criminal offences do face meaningful penalties in Ontario, the new charge hasn’t fundamentally changed the way the province deals with drivers who harm others while committing non-criminal offences like blowing through stop signs or failing to stop for pedestrians. He said the province treats such offences like they’re unpaid parking tickets.
“The idea around just continuing to hand out fines when somebody is killed or seriously injured is sending a very low deterrent to the public,” said Brown.
Ministry of Transportation spokesperson Michael Fenn said the ministry couldn’t comment on the outcomes of court cases or whether the new law was functioning as intended. But he said “Ontario has some of the strictest penalties for dangerous driving in North America” and the new offence “is but one tool to address unsafe and aggressive driving behaviours.”
Brian Gray, a spokesperson for the Ministry of the Attorney General, said it would be inappropriate to comment on specific cases. But in general, he said police are responsible for deciding which charges can reasonably result in a conviction, and while prosecutors and defence attorneys make submissions, the final decision on sentencing “rests with the judge.”
According to preliminary government data, 125 pedestrians or cyclists died in Ontario in 2019, the latest year for which statistics were available, and 490 suffered serious injuries.
Among them was Evelyn Sophia Harris, a 63-year-old cancer patient who was struck by a minivan driver outside a Stratford, Ont. Wal-Mart on Mother’s Day. The driver left the scene but later turned herself in, saying she didn’t realize she had hit someone.
The 30-year-old mother of four pleaded guilty in October 2019 to the new charge of careless driving causing death. But she received the minimum fine of $ 2,000, a six-month driving prohibition, and two years’ probation. The presiding justice of the peace conceded it was “unlikely that (the sentence) satisfies anyone,” according to Postmedia.
In some cases, drivers who kill aren’t even charged with the new offence. A 71-year-old driver who allegedly fatally struck 40-year-old Cheryl Carre in Bradford in October 2018 left the scene, and was later charged with failing to yield to a pedestrian. The offence carries a maximum fine of $ 1,000. The driver was “not being held accountable enough,” Cheryl’s widower Kevin Carre said, according to local news outlet Bradford Today.
Determining the appropriate punishment for drivers who injure or kill other road users but haven’t committed a crime isn’t straightforward. Brown and other road safety advocates say the solution isn’t imposing draconian sentences on every driver found responsible for a fatal collision. Instead, they’ve pushed for a so-called “vulnerable road user law.”
Legislation introduced by the Ontario NDP in 2018 would automatically require any driver who injures or kills a cyclist or pedestrian and is convicted of a non-criminal HTA offence to have their licence suspended until they take a driving re-education course and perform community service related to road safety. Under the legislation, the driver would also be compelled to attend their sentencing hearing in person and listen to victim impact statements.
MPP Jessica Bell (University-Rosedale), who introduced the bill, argues that because the penalties would automatically apply, the legislation would eliminate the problem of offenders pleading down to lesser charges. The proposed law is “about ensuring that the driver understands the consequences of their actions,” Bell said.
In addition to making engineering changes to make roads safer, the province must stop the “systemic pattern of smaller fines being handed out to dangerous and destructive drivers,” she said, otherwise “people are going to continue suffering life-altering injuries or die.”
Watfa and Khouri agree that the drivers like the man who killed their son don’t deserve to spend the rest of their lives in jail. But if courts consistently imposed stricter sentences like higher fines and short or even suspended jail sentences, it would send the message to other drivers that the legal system takes dangerous driving seriously, Khouri said.
As it is, Simon’s parents will be living with their grief for long after the driver’s $ 5,000 fine is wiped off the books. In victim impact statements they read at sentencing last week, Watfa and Khouri described the devastation they’ve felt since losing their son.
Watfa said she still replays Simon’s funeral over and over in her head. She’s afraid to let his younger brother, Alex, leave the house.
“Nights are unbearable; we hold each other and cry, aching for our Simon,” Watfa said. She and Khouri thought their son would grow up to be an engineer or architect. In court, Watfa said she was heartbroken that she would never see him go to college or get married. She asked her son’s forgiveness for the fact she would go on living without him.
“Forgive me Simon, I couldn’t protect you. Forgive me Simon, I couldn’t get you justice.”
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