Special Report: Walkable Streets

Driver Kills Elderly Pedestrian, Found Not Guilty of Careless Driving

It is hard to build a safe transportation infrastructure for pedestrians when the courts interpret the laws in a way that makes it clear there is no real deterrent for not driving safely around pedestrians.

By Nicholas Kevlahan
Published March 14, 2014

This is just appalling: according to a Spectator article, the driver who struck and killed 87-year-old Kitty MacLeod on Governor's Road in December 2012 has been found not guilty of careless driving.

The Crown prosecutor argued: "It's an area where pedestrians can be expected. The claim, 'I didn't see her' is proof of a lack of due care and attention and reason for conviction."

Unfortunately for pedestrians, the judge disagreed. The article doesn't give the judge's reasons for rejecting the Crown's commonsense argument that if you didn't see an old lady slowly crossing the road until you hear her hit your car, then you obviously weren't paying attention!

It seems it is enough for the driver to simply claim that they were paying attention, without even giving a reason for not seeing the pedestrian.

That sort of argument just wouldn't fly in any other case where one person kills another. Imagine a backyard archer hitting and killing a family member who happened to walk in front of the target. Would "I just didn't see them, I don't know why, because I was really being careful" fly?

As usual, unless a driver can be proved to be speeding or drunk or to have deliberately targeted someone, simply saying "I didn't see the crossing pedestrian", is enough to get off a charge of "careless driving" - let alone a more serious charge, like dangerous operation of a motor vehicle causing death.

And because the other person involved is dead, we only have the motorist's word that he wasn't speeding and was paying attention, and not changing channels on the radio, fumbling for his coffee or distracted in some other way.

Remember, this was an elderly pedestrian walking near a retirement home. She obviously didn't just dart into traffic like a child chasing a ball!

As the book Carjacked shows, motorists who kill pedestrians are almost never charged with a serious offence and they are almost never convicted even if they are. Unlike most other incidents causing death, killing someone with a motor vehicle is treated as a normal, although regrettable, event that no one is really responsible for.

In fact, the tendency is to try to find ways to blame the pedestrian. It is the pedestrian who must not have been paying attention, didn't dress in reflective clothing, or was reckless in walking around in dangerous conditions.

It really is a strange blind spot in our generally very risk-averse and litigious society, one where someone injured when deliberately tobogganing in an area marked "no tobogganing" by the City can still be awarded thousands of dollars in damages, and deaths in the workplace are treated very seriously indeed (it is likely that killing someone with a bulldozer on a construction site would attract very serious penalties).

This death didn't occur at a crosswalk (though a crosswalk had already been planned and has since been installed), but even killing a pedestrian in a crosswalk only attracts a $500 fine in Ontario.

It is hard to build a safe transportation infrastructure for pedestrians when the courts interpret the laws in a way that makes it clear there is no real deterrent for not driving safely around pedestrians.

It doesn't have to be this way, and in rich countries outside North America it isn't.

See also:

Nicholas Kevlahan was born and raised in Vancouver, and then spent eight years in England and France before returning to Canada in 1998. He has been a Hamiltonian since then, and is a strong believer in the potential of this city. Although he spends most of his time as a mathematician, he is also a passionate amateur urbanist and a fan of good design. You can often spot him strolling the streets of the downtown, shopping at the Market. Nicholas is the spokesperson for Hamilton Light Rail.

31 Comments

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By Walking girl (anonymous) | Posted March 14, 2014 at 17:11:41

This was an unfortunate accident. I am an avid Walker and pedestrians need to take some responsibility for crossing safely. Too many assume the drivers will stop. It is not always the drivers fault.

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By Brandon (registered) | Posted March 17, 2014 at 08:56:15 in reply to Comment 98444

Right, because 87 year olds frequently dart out into traffic, absolving the driver of responsibility?

I drive a lot, frequently at higher than posted speeds (on highways), yet in the city I'm often at lower than the posted speed because I drive based on my visibility. If there are a lot of parked cars close to the driving lane, slow down. If there are kids playing in the area, slow down.

It's not a complicated process once you understand that, as a driver, you are in control of close to 2 tons of weight and need to be able to control that. If you can't or won't accept that responsibility, you shouldn't be behind the wheel.

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By kevlahan (registered) | Posted March 14, 2014 at 18:15:13 in reply to Comment 98444

I accept that in certain extreme circumstances it is impossible to avoid a collision (e.g. a child darting out from between parked cars just in front of the vehicle). This is not at all the case we have here: a testifying police officer said that the pedestrian would have been easy to see and that the driver should have had at least 6 seconds to stop. Drivers are supposed to be alert and in control of their vehicles at all times.

I never claimed that it is always the driver's fault, but the statistics show that drivers are almost never convicted of a serious offence even when commonsense would indicate that they are obviously at fault (e.g. running down a pedestrian crossing legally in a crosswalk). And in this case the driver claims that he did not notice the pedestrian until he heard her hit the car. Surely that shows an insufficient level of attention for someone engaged in an activity as potentially lethal as driving!

And, in any case, dismissing the death of an 87 year old as "an unfortunate accident" is just not good enough. It is not acceptable in other spheres of life, and it shouldn't be acceptable here.

In workplace safety, e.g. WSIB, the slogan is "there is no such thing as an accident" http://www.advantagepcm.com/article-wsib... ("all accidents are preventable"). The goal in traffic safety should be zero deaths and injuries, and indeed that is the official goal in Sweden. http://en.wikipedia.org/wiki/Vision_Zero Sweden managed to reduce traffic deaths by 35% in 12 years.

And don't forget that Hamilton is bad even by Ontario standards: we are the second worst in the province!

Comment edited by kevlahan on 2014-03-14 18:31:59

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By KevinLove (registered) | Posted March 15, 2014 at 16:17:11 in reply to Comment 98445

A child running around is perfectly normal and reasonable child behaviour. A car driver in a residential area should not drive so fast by any obstacle behind which a child may be concealed that the car driver cannot safely stop if a child runs out.

Any car driver who is so criminally negligent should be charged with Dangerous Driving and receive serious jail time.

If the pedestrian is a slow-moving senior citizen, then the criminal negligence is even more glaring and extreme.

Comment edited by KevinLove on 2014-03-15 16:18:31

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By fremmy (anonymous) | Posted March 14, 2014 at 19:43:04

doesn't this contradict the theme around here that it's not a policing issue, it's a design issue? This seems emblematic of a design issue, the car was going under the speed limit. If the speed limit was 30 she likely would be alive.

Your argument that there should be some kind of reverse onus on drivers seems completely wrongheaded to me and I bet you'd change your tune the day you're unlucky enough to be that unfortunate driver. There are accidents all the time; the issue is how we design the workplace or roads to minimize their effects.

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By kevlahan (registered) | Posted March 15, 2014 at 07:16:15 in reply to Comment 98446

It is best to design the street to lower speeds, make it easier for pedestrians to cross and force drivers to pay attention. Unfortunately, as a society we are still refusing to do this.

But there is still a role for the courts in enforcing laws against obviously unsafe behaviour, especially when it leads to death.

Are you really more concerned about the driver who claimed not have noticed the woman until she bounced off his car than the woman who died?

In any case it is not my suggestion that there should be a reverse onus on drivers, it is already Ontario law:

The Highway Traffic Act imposes a reverse onus on a driver who impacts a pedestrian on a public roadway. The duty of care is outlined in section 193(1), which section reads as follows:

"When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

http://www.beardwinter.com/wp-content/fi...

I guess you disagree with the rules of the road, but the problem from my point of view is that the courts refuse to effectively apply the law by having such a low standard for the driver to prove they are not at fault ("I didn't see her" is apparently enough).

This reverse onus makes sense because by driving one is deliberately choosing to engage in an activity that is a high risk to others. Because driving is so common we tend to forget this. Walking is not dangerous to others!

Comment edited by kevlahan on 2014-03-15 07:27:23

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By KevinLove (registered) | Posted March 15, 2014 at 16:03:21 in reply to Comment 98461

The HTA provision of Reverse Onus refers to civil, not criminal liability.

Civil liability answers the question "who is going to pay for the harm and damage?" This means paying for medical expenses not covered by OHIP, lost wages due to being unable to work because of injuries, damage to property, etc.

Under Reverse Onus, the car driver is required to pay unless he can prove that he was not negligent. The car driver's victim is only required to provide evidence to substantiate the value of the loss. For example, medical bills, repair bill for a bicycle, pay stubs to show the value of the lost wages, etc.

See:

http://www.e-laws.gov.on.ca/html/statute...

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By F (anonymous) | Posted March 15, 2014 at 12:21:31 in reply to Comment 98461

no, I'm not more concerned with the driver than the victim. What I'm concerned about is placing fault on blameless persons. I'm not comfortable with a reverse onus under any circumstances where the effects are to potentially imprison someone who may not have been negligent. Yes there is the risk that blameworthy people are not punished, but that's implicit in our criminal system generally - we require proof of criminal intent or negligence beyond a reasonable doubt. I'm surprised that HTA rule stands up to the Charter and would be interested to know how.

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By F (anonymous) | Posted March 15, 2014 at 22:33:25 in reply to Comment 98471

KevinLove you answered my question.

I support that kind of reverse onus. I also support much stricter penalties relating to suspension of licenses. It should be much easier to get your license suspended and revoked for bad driving.

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By F-ed up (anonymous) | Posted March 15, 2014 at 13:10:52 in reply to Comment 98471

You're driving down the street past a seniors residence and don't see an elderly woman shuffling into your path until you've already hit her -- that is the definition of careless!! No one should be allowed to operate a dangerous motor vehicle if they can't see something like that in their path. It's not like an 87-year-old woman is going to dart out into your way. Now stop making excuses for deadly motor car drivers!

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By putupyourdukes (anonymous) | Posted March 14, 2014 at 23:51:06 in reply to Comment 98446

"doesn't this contradict the theme around here that it's not a policing issue, it's a design issue?"

Why can't it be both? If you accidentally shit someone it would be your fault pretty much no matter what the person did. Beck,if you are a bbartender and serve someone who gets in a car and kills someone you can be held liable. But if you're not drunk and run over an old lady shuffling across the street because you somehow missed her THEN it's not your fault? That's a lot of crap. A car is a deadly weapon and if you're operating one the bar should be higher not lower.

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By stinson (registered) | Posted March 14, 2014 at 21:20:52

"And don't forget that Hamilton is bad even by Ontario standards: we are the second worst in the province!" - Where do we place with one less pedestrian death or one more? Do we move down 7 cities and vice versa do we take number 1?

Interestingly enough : Hamilton's traffic collisions, injuries and deaths are at a decade long low http://www.thespec.com/news-story/437324...

Also of note: The drunk drive that killed Zoe Nudell just got 5 years. Hardly enough of a sentence.

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By kevlahan (registered) | Posted March 15, 2014 at 07:17:48 in reply to Comment 98451

I already responded to this statistic in another comment. Traffic deaths are declining for drivers and passengers, but not for pedestrians. This is a result of safer car design (for those inside the car) and stricter enforcement of drunk driving laws.

Comment edited by kevlahan on 2014-03-15 07:23:42

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By Stinson (registered) | Posted March 15, 2014 at 09:01:00 in reply to Comment 98462

Where do we place with one less pedestrian death or one more? Do we move down 7 cities and vice versa do we take number 1?

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By kevlahan (registered) | Posted March 15, 2014 at 09:30:25 in reply to Comment 98465

I don't know how sensitive the statistics on deaths are to small changes. You could contact the Social Planning and Research Council which did the report to get the raw data.

However, for injuries the rate is so much higher (and the statistics involve so many more incidents) that it is clear that Hamilton is far more dangerous: Hamilton pedestrians are as much as 42% more likely to be injured compared to the Ontario rate. The risk to pedestrians is as much as 81% higher than the provincial average!

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By Stinson (registered) | Posted March 15, 2014 at 10:17:15 in reply to Comment 98466

They would be very sensitive. 1 less fatality would be a significant reduction.

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By RobF (registered) | Posted March 15, 2014 at 11:41:28 in reply to Comment 98468

I think the point is that Hamilton is more dangerous for pedestrians and cyclists than it needs to be.

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By Stinson (registered) | Posted March 15, 2014 at 13:45:14 in reply to Comment 98470

In a particular calendar year: Yes it was.

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By kevlahan (registered) | Posted March 15, 2014 at 11:26:10 in reply to Comment 98468

That's true, but the injury rate would not be sensitive, and it (along with the cyclist injury rate) is still very high relative to other places in Ontario.

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By Pxtl (registered) - website | Posted March 15, 2014 at 14:09:35

To me, this creates an obvious implication: if the driver was not at fault and the pedestrian was not at fault, then the design of the roadway is defective and the city is at fault. Sadly, justice doesn't work that way.

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By Stinson (registered) | Posted March 15, 2014 at 14:38:32 in reply to Comment 98474

Perhaps equally at fault? Fault is not all or nothing.

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By Justified (anonymous) | Posted March 17, 2014 at 07:37:58

I drive. Often.
Speed limits are simply too high.
I can drive through narrow residential streets at 55 kph and never be ticketed. I can drive through school zones at 45 kph and never be ticketed.
Reduce them by 10 kph to 40 and 30 respectively.
Would add a few minutes travel time for those of us behind the wheel.
Save some lives. Protect those of us who drive from ourselves.

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By Brandon (registered) | Posted March 17, 2014 at 10:32:20 in reply to Comment 98502

I agree to a point. I think the biggest problem is speed limits being too low on our highways. Very few people drive at 100 km/h when not in rush hour and this breeds contempt for our speed limits, leading people to add at least 10 km/h to whatever they see on the sign, regardless of where that sign is.

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By mikeonthemountain (registered) | Posted March 17, 2014 at 11:06:17

I share deep concern that dangerous driving, and driver error causing injury, is not taken seriously enough.

It seems like police take it seriously and do their best, but burden of proofs are high. This is a good thing per due process of course, but yes indeed we have a culture where killing someone with your vehicle is almost seen as no big deal. Insurance fixes your car, pays off the widow, raises your rate, you have a court date, and get right back behind the wheel and on with your life. After leaving someone dead. Disturbing.

My friend, who lives at the corner of Charlton and Wentworth, says the barrier has not been fixed and cars are still speeding around that corner. The drunk who killed a nice person there, will be out in less than 5 years. He was driving while disqualified this time, so why would a lifetime driving ban deter him afterward. The guy driving a pickup who left a 30 year old in a pool of blood at Barton and Sherman, probably just has to show up in court to fight his careless driving charge, and it will be thrown out.

I don't have the answers but feel concern. Abroad, people stop if they see me even looking to cross. I even feel a flash of guilt when that happens, because I'm accustomed to GTA road culture.

I concur with raising speed limits on the highways with strict enforcement of safe passing laws, and increasing responsibility for driver error.

I concur with lowering speed limits in urban areas and increasing responsibility for driver error, certainly in cases of just abysmally pitiful driver excuses like this article's example.

While we banter around our opinions and such, everyone stay safe and courteous.

(edit: what I would actually like to see on highways is electronic variable speed limits for congestion control, but with higher "free flowing dry road" speed limits).

Comment edited by mikeonthemountain on 2014-03-17 11:11:26

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By kevlahan (registered) | Posted March 17, 2014 at 11:35:34 in reply to Comment 98506

It is an excellent point that the police and driver convention accept driving at 120km/h on freeways with a posted speed limit of 100km/h and this encourages people to think that speed limits are just a suggestion, and that it is perfectly okay to drive 10 or 20 km/h over the limit.

The 100km/h limit is clearly too low for a divided limited access freeway, and everyone (even the police) agree tacitly that the real limit is 120 km/h, and you are unlikely to get ticketed in good conditions if you stay below 125km/h. Many drivers go 130 km/h or faster and this wide range of speed is very dangerous.

The speed limits on the freeways should be raised to the "actual" limit of 120km/h (with a limit of 100km/h in bad weather conditions) and strictly enforced. (The speed limit on Autoroutes in France is 130, or 110 in rain or snow.) The speed limit in urban areas should be lowered to 40km/h (like it is in Ancaster) or even lower, to 30km/h in areas with a lot of pedestrians. In western Canada the school zone speed limit is 30km/h. Again, these limits should be strictly enforced, so people don't get the idea that 50 really means 60, as they do now.

And the roads should be re-designed to make driving faster than the legal speed feel uncomfortable in urban areas (narrow lanes, lots of crosswalks, chicanes, bollards etc.).

Remember that there are good engineering safety reasons for lower the urban speed limit to 30km/h and designing roads for this speed: at 30km/h or below a pedestrian who is hit is likely to survive, and the risk of an accident goes down because drivers and pedestrians have much longer times to react.

Comment edited by kevlahan on 2014-03-17 11:36:12

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By mikeonthemountain (registered) | Posted March 17, 2014 at 11:59:53 in reply to Comment 98510

In Britain you wouldn't be able to speed through a neighborhood. You would either smash the bottom of your car on a speed cushion, or fly off a roundabout. The highways are very good, but in urban areas you don't have much opportunity to build up a harmful speed.

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By mikeonthemountain (registered) | Posted March 17, 2014 at 14:37:37

Looks like someone is trying to get something done:

http://www.thestar.com/news/queenspark/2...

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By Mimi (anonymous) | Posted March 18, 2014 at 23:04:35

I just want to say that you folks give me hope.
Just left TheSpec site where a comment read something along the lines of someone being 'a waste of skin.'
I have come here to enjoy the company of intelligent sharing of ideas, a place to read and learn. Not a place at which I endure appalling, mindless comments such as 'waste of skin.'

thanks all. You're good people.

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By J (registered) | Posted March 25, 2014 at 14:24:35

I drive almost as much as I walk, and almost on a weekly basis I have to adjust my driving to avoid killing a pedestrian or cyclist who is breaking the law. Many pedestrians do not obey the signals at crosswalks. Many pedestrians J-walk when they're VERY close to an intersection. Many pedestrians wait at intersections with their toes over the edge of the curb leaving no margin of error for drivers. Many cyclists drive at night with no lights, no reflectors, no helmet. Many cyclists make turns without signalling or run red lights. It seems like pedestrians and cyclists are just as carefree and ignorant of the gravity of thier situations as motorists.

The problem with motorists being desensitized by 'optional' speed limits is the same problem with pedestrians being desensitized by 'optional' common sense. The streets SHOULD be safer for pedestrians and cyclists. One day I may be the pedestrian getting hit or one day I may be the driver almost killing an old lady (I almost did a month ago and I was under the speed limit and paying attention. She was breaking the law). It's a tragedy when someone dies in such a way, but it's not constructive to demonize one party while absolving the other party of any accountability.

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By Fred (registered) | Posted July 24, 2014 at 03:36:13 in reply to Comment 99127

Well said.

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