Have you ever found yourself stuck behind a car at a stoplight that has turned green because its driver seems to be oblivious to the world around them? Chances are, with the proliferation of mobile phone use in cars, this has been happening to you more often. The most recent statistics from the United States government indicate that 10 per cent of fatal crashes, 18 per cent of crashes causing injury and 16 per cent of all police-reported crashes involved a driver that was talking on, listening to, or manipulating a cell phone at the time of the crash. Although there are fewer statistics available in Canada, public concern over distracted driving seems equally prevalent here.
In March of this year, Jimmy Brunet-Rotondo, a truck driver from Quebec, was killed when he was unable to react quickly enough to traffic that was slowing down in front of him. Michel Ferland, a coroner who attempted to determine the cause of the accident, concluded that Brunet-Rotondo’s use of a cellphone was likely the primary contributing cause of the accident. One of the most worrisome pieces of evidence in his analysis was that Brunet-Rotondo made a post to Facebook five minutes prior to the accident. In his report, Ferland called for an amendment to the Criminal Code to introduce penalties for texting and driving. Last week, Quebec’s transport minister Laurent Lessard took action on Ferland’s request. In a press conference, Lessard urged the federal government to explore the possibility of introducing criminal penalties for texting and driving.
Currently in Ontario, drivers are generally required to pay $490 (including court fees) and receive three demerit points if convicted of holding or using a “hand-held electronic entertainment device.” Demerit points remain on your driving record for two years, although automobile insurance companies are entitled to go much further back in time in assessing premiums. They can also consider traffic convictions that do not carry any demerit points. In contrast, a criminal conviction will remain with you for a minimum of five years it will only be removed after a costly and lengthy application for a records suspension it can make it difficult, if not impossible, to travel to other countries it can cause you to be ineligible for various jobs and, in certain cases, it can cause you to lose a job that you already have.
Given the contrast between the consequences of a driving record and a criminal record, it’s fair to say that criminalization of distracted driving would be an extreme measure. If our federal or provincial legislature determined that an increase in penalties were necessary, they have many other options available that don’t include criminal sanctions. Fine increases, additional demerit points or vehicle impoundment can all be achieved under the Highway Traffic Act. It is also open to local police jurisdictions to prioritize enforcement of the current laws and institute “blitzes,” as they did when the distracted driving offences were first instituted in 2009.
A further alternative that has been discussed is the implementation of technology in new vehicles and/or cellphones to impede use or make it impossible while a car is in motion. Simply put, there are many other actions that can be taken address this problem short of introducing criminal liability. While criminal sanctions might result in a significant decrease of the behaviour, it’s necessary to balance this potential against the negative and life-altering affect that they would have on individuals whose behaviour could have been just as easily changed with a larger fine or additional demerit points.
It is undisputed that incidences of vehicle collisions attributable to cell phone use are increasing in both Canada and the United States. The use of a cellphone has been found to increase the risk of an accident or a near-accident event by up to 23 times. Without a doubt, it is something that we shouldn’t do, even though surveys on the topic suggest that anywhere from one-third to one-half of drivers have done it.
The recent ad campaign launched by the Ontario Ministry of Transport that features graphic footage of accidents caused by distracted driving and their consequences is a good start to educating the public on the seriousness of the problem. Although it may be time to take a page out of the playbook on curbing drunk driving and encouraging the power of friends stopping friends from distracted driving, the use of criminal penalties is premature.
Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.
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