January 7, 2008

Steering you right: Not quite guilty

By Jordan W. Charness

It was in all the papers and all over the radio and TV. Although I did not take part in the case I did give several interviews to try and help people understand just what happened.

The case involved a drunk driver who killed a young boy who was riding a bicycle last summer. Although the man was indeed driving while impaired and did strike and kill the boy he was acquitted of the offense called "impaired driving causing death".

On the face of it, this is a very difficult judgment to understand. After all, the man had been convicted of two previous offenses of driving while impaired. At the time he struck the boy, he had over twice the legal amount of alcohol in his blood. For that reason he was convicted of the offense of driving while impaired for a third time.

The second offense he was charged with, "impaired driving causing death" was another matter entirely. The judge found that although the man was indeed drunk while he was driving, he was not guilty of "impaired driving causing death".

"Causing" is the key word in this difficult case. In order to be convicted of this offense the judge must be convinced beyond all reasonable doubt of two things: firstly, that the driver was impaired at the time of the incident, and secondly, that the impairment caused the death. Both of these conditions are required in order to convict an accused.

It's difficult to understand exactly what happened unless you were at the scene or at least in the courtroom. The judge's understanding of the testimony was that the boy swerved into traffic and was hit by the car driven by the impaired driver who was driving at or about the speed limit. The judge concluded that even if the driver had not been impaired the incident would have ended in much the same way since any driver would have hit the boy under those same circumstances.

While it is impossible to say for certain that a completely sober driver, in full control of his or her reflexes would have been unable to swerve out of the way, to the judge, the evidence seemed to indicate that the incident would have unfolded in the same tragic way. At the very least it raised a reasonable doubt in the judge's mind that impaired driving was not the absolute cause of the unfortunate death.

In our system the judge has to apply the law as it's written. The criminal code provisions for impaired driving causing death currently require a causal link. This is not always the case.

There is at least one other case where our legislators have decided that a causal link is not absolutely required. There is a legal presumption that if you use a firearm in a hold up or bank robbery and a police officer dies as a result, you will be convicted of first-degree murder.

First-degree murder is defined as a murder where you planned and intended to kill someone and then did so. It would be easy to argue that a bank robber who only intended to rob a bank had absolutely no intention of killing a policeman. Nonetheless our legislators decided that intent or no intent, it will be considered first-degree murder if a police officer dies in these circumstances.

Perhaps it's time for our legislators to take another look at our impaired driving laws and create a similar legal presumption. They could decide that in any accident involving an impaired driver where someone dies it would be considered "impaired driving causing death". The punishment would then be several years in jail even though the impairment may not have actually caused the death.

Our lawmakers and government could decide that anyone who was foolish enough to drink and drive should be held responsible for all the consequences that may possibly arise out of his or her stupid decision to drive while impaired.

To order Jordan W. Charness' new book, "Steering You Right - Greatest Stories", click here. For a limited time, Jordan will personalize and autograph your copy.

This article is of a general nature and may not be applicable in all situations and jurisdictions. If you have a legal problem or need legal advice please consult a lawyer.

Jordan W. Charness, DSC, B.A., L.L.L, is a partner in Charness, Charness and Charness, a family law firm in Montreal that has specialized in giving personalized service to its clients since 1925. Jordan is also a car nut. His current ride is a fully restored Silver Anniversary Corvette, and he is a member of the Corvette Owner's Club. His web sites are www.jordanwcharness.com and www.charness3law.com e-mail Jordan@JordanCharness.com