Speed kills, but no one cares
Posted by Dalton48 on 30 May 2007 at 07:55 am | Tagged as: Current Events
I don’t think anyone would think of me as a law and order type, but I’m increasingly convinced that we have a dangerous lack of enforcement of existing traffic laws in the city, and a disregard for the destruction big metal vehicles cause.
So I am appalled that the two teenagers who were racing their parents’ Mercedes-Benzes at speeds more than 80 km/h over the speed limit when they killed a man have been sentenced to two years less a day, with one year to be spent in house arrest.
I have no doubt that this was an unfortunate accident, and I wouldn’t want to see any lives permanently destroyed because of bad judgement. On the other hand, one man is dead because two others knowingly and dangerously broke the law for kicks. I would be happy to have two people with so little regard for the rest of their fellow citizens and for society in general removed from it for a longer period of time.
During an interview with one of the speeder’s lawyers he detailed the other restrictions of the sentence:
* 150 hours of community service (that’s about 1.5 hours a week for two years)
* 4 years without driving (having spent 20 doing just that, I’m not seeing the hardship)
The Star story also notes that there is an 11 pm-6 am curfew for an additional year… that can be adjusted with their parents’ written permission. A bit of an irritant, no doubt, but an appropriate consequence for “dangerous driving causing the death” of Tahir Khan?
The lawyer claimed this sentence would act as a serious deterrent. I simply can’t believe that’s true, which means that speed racing is simply one of the many dangerous, theoretically banned driving activities that are ignored unless a cruiser happens to be handy… or someone dies.
(By the way, Diamond Taxi has raised $28,500 in donations since Khan’s death. That’s less than the cost of a single year’s tuition at St. Andrew’s College in Aurora, where the two “causers of his death” attended high school.)
That was my reaction, too. Even if it was only 90 days or so, the symbolism is important. Incarceration could be justified through principles (a), (b) and (f) on this list.
Lawgeek has a deep interest in sentencing – Lawgeek?
What we’re seeing here is the “conditional sentence,” which is part of a general trend in sentencing policy away from sending people to jail to serve their sentences. (For background, look at this case, which unfortunately is rather long…) The conditional sentence is supposed to be a sort of halfway-house between a suspended sentence with probation and institutional incarceration. The idea is that house arrest is supposed to have a genuine punitive element to it, but is supposed to be less destructive and disruptive that actual incarceration. I’ve heard a sentencing judge express reservations (off the bench) about how coherent this option is conceptually.
I don’t think it’s possible to combine a conditional sentence with actual jail time. This might be an appropriate case for a such a sentence, i.e., where you want the offender just to see the inside of a jail for a little while.
In addition to the driving prohibition (which may be more or less of a burden depending on one’s personal circumstances) it’s worth remembering that these guys have just been convicted of an indictable offense. (I’m surprised the driving suspension wasn’t for longer, but maybe that is not in the judge’s power.) Eventually they can apply for a pardon (minimum of five years after end of probation) but in the meantime this has significant consequences as far as employability and travel outside of Canada are concerned.
As an aside, obviously these guys had a good defence lawyer.
I’m with D48 in feeling that this sentence is lacking something in bite. It will be interesting to see if the Crown appeals and if so, what the result is (appeal courts will not generally overturn a sentence unless it is “wrong in principle”). Whatever happens, though, I would be surprised if we saw a long incarceration coming out of this, in view of where Canadian penal policy is generally with respect to incarceration.
I think we should be a whole lot more willing to lift people’s licenses permanently. “No, sorry. You should not drive. Ever.”
Re. that long case I linked to, there’s a useful summary at the end.
Interestingly, the facts are somewhat similar to those of the present case, though there is alcohol as an aggravating factor.
Also interestingly, the SCC ends up basically saying that neither a conditional nor a carceral sentence is clearly inappropriate in this kind of case. So in effect it is up to the sentencing judge. Which means that the Crown may have an uphill battle on appeal.
As an aside, it would be, er, interesting to see the effect of a criminal conviction for dangerous driving on one’s auto insurance rates.
I don’t know for sure, but I would assume the insurance companies would look beyond the usual three-year window for criminal as opposed to HTA offences.
I don’t think that even the most dramatic of hikes in auto insurance rates is going to keep off the road two men whose parents were able to spend tens of thousands of dollars a year in school tuition fees.
There’s just something fundamentally illogical to me about having laws against speeding in place *because* speeding is dangerous to those who share the road as well as the driver, and then treating a fatality that results from breaking this law as an “accident” when it happens. Is it an accident if compliance with the well-known and no doubt posted speed limit would have prevented it?
If memory seves, a driver killed a cyclist a number of years ago just south of Dundas and University (cyclist was doored and ended up under a school bus) and was punished with a $105 fine and a victim surcharge in the region of $5 or so.
The thing is of course that it’s not being treated as an accident in this case. These guys both have criminal convictions for an indictable offence. They’ve joined a pretty select group of people, even more select when you add the fact that they manage to accomplish this with their first offence. The fact they’re not going to jail has more to do with a general policy against incarceration than with the law’s view of the seriousness of their offence.
I’ve written some stuff about criminal liability in these kinds of cases which I’d be happy to send your way.
Part of the issue here is that the judge clearly took the view that the relevant fault element was one of penal negligence (i.e., marked departure from a standard e.g. a speed limit) as opposed to advertent recklessness (“we know we might kill someone, but we’re going to do it anyway”) or intent. Penal negligence is the lowest level of fault that will actually give rise to criminal liability.
Thanks, you’ve just summed up my issue with the ruling — but in legal terms. It seems to me that purposefully breaking any law that preserves public safety should be treated as “advertent negligence.” Otherwise, the laws and their application aren’t tied to the original intent (to preserve a safe environment), the notion of personal responsibility to society is overtaken by adherence to rules whose consequences you don’t need to know, and, eventually, societal breakdown ensues.
As soon as the engine was revved up to 130 km/h, hitting a car turning onto the street with major, fatal impact became a (knowable) possible outcome, therefore, speeding was not mere negligence.
MCP: agreed. These two should not be allowed to drive for the rest of their lives.
48: I agree with you that these youths are closer to recklessness than negligence. Youths today are not dumb. They play enough video games to know the consequences of such reckless action as racing a high-performance car on city streets. And house-arrest? Please, being kept inside a palace full of the latest electronics and gadgets, the Internet, etc., is hardly punishment. They should see jail, even only for a symbolic amount of time. I realize that some people are worried about the potential bad influences from a jail… but nowadays, is there anything you can’t learn from the internet?
lawgeek: the big difference between your view and mine is that I don’t have a problem handing out different sentences based on the severity of the consequences even when the crime is the same. Part of the responsibility of adulthood is to be held responsible for the consequences of one’s actions. This may not jive well with purist legal theory (Weinrib et al.), but such is life. You drive, you implicitly agree to assume responsibility for any consequences that may flow from your driving. If all drivers behave this way, I am sure the roads would be a safer place for all.
D48: I think what you’re describing is still what I would call penal negligence. “They ought to have turned their minds to the consequences, and were capable of doing so in the circumstances, and so we’re going to hold them criminally responsible even on the assumption that they failed to turn their minds to the consequences.” I think your issue may ultimately be more with our sentencing policies. Even if you don’t kill anyone, indictable dangerous driving can land you in jail for up to five years (10 years if you cause bodily harm, 14 years if you cause death).
As an aside, I’m a bit worried about a general policy of HTA violations resulting in criminal convictions if death or serious injury occurs. It makes sense in this case but may make less sense in less dramatic cases.
CG: If I were really a purist I would reject penal negligence on principle, which is what Brudner does. (Actually I disagree with both Weinrib on civil negligence and Brudner on criminal negligence.) I do have issues with constructive liability. I don’t think we can hold even grossly negligent drivers like these two to the same level of liability as someone who intentionally goes out and kills someone.
Interesting debate. I’m skeptical about the deterrent effect of significant prison sentences in a case like this (as opposed to an intuitive sense that it may be morally justified). One problem is that people aren’t good at judging relatively small but still significant risks — like the ones relating to driving above the speed limit on city streets. Our intuitions just aren’t built for that sort of thinking — there’s quite a lot of recent research along these lines. A related problem is that an activity like driving fundamentally involves enormous numbers of finely graduated risks in *all* situations, many of which simply can’t be estimated in advance — too many unknown unknowns. Rules like speed limits are just arbitrary (although necessary) societal decisions about risk mitigation.
I think even if you imposed the harshest sentence societal conscience would allow, most people would ignore it and assume the worst case won’t happen to them — and, in fact, they would be right on average. In other words, there are basic pragmatic reasons for punishing reckless driving differently from, say, attempted murder, quite apart from the moral and legal philosophical arguments.
From a deterrence/public safety perspective, I think the best (although imperfect) solution is to be much tougher about enforcing the traffic rules in situations where they *haven’t* yet caused accidents. (In other words, these guys probably should have lost their licenses for a couple of years for going that fast where *nothing* happened — see below. It’s relatively irrelevant from a deterrence perspective what you do to them when their luck happened to run out and someone got killed.) In part, this is just the common sense idea that rules, assuming they are in place for a good reason, should be obeyed. But in addition, I think there is a significant “broken windows” (in the Bratton/Giuliani sense) policing aspect to this. I can’t prove it, but I have a strong suspicion that the guy in the SUV with the blacked out windows tailgating and weaving in and out of traffic without signaling — even if none of these are major offences technically — is much more likely than the average driver to be the guy who misses a red light and wipes out a pedestrian 10 minutes later — only you’d rather not wait until that happens because in reality he’ll be lucky enough to avoid the major accident the first 999 times.
However, because traffic rules are both regulatory and somewhat arbitrary, it’s pretty tricky to figure out what the right penalties are. That’s particularly the case for speed limits (as opposed to running red lights, for example). Partly this is because speed limits are much too low, at least on highways in good weather (in my opinion, of course…). More fundamentally it’s because speed limits are a matter of degree and any sharp cut-off feels arbitrary (because it is).
Having said that, after a few years of dealing with idiot drivers in and around New York, here are a few suggestions for when I get to make the rules:
- A lot more aggressive enforcement of basic traffic rules by roving police — things like using turning signals for lane changes (a personal bugbear), tailgating, aggressive weaving in and out of lanes, etc. How about a snitch line to report the reckless driver who just cut you off and is now half a mile up the road doing the same thing, with an unmarked cop car or even helicopter to do the ticketing? There should be reasonably significant fines for these things — but more importantly, they should be enforced to the extent possible.
- Significantly higher highway speed limits and/or less police resources devoted to nailing the driver going 10 over the limit in good conditions. In fairness, in my experience, most of the time the police seem to give you about 15 mph above the limit, but speed limits closer to the actual speed of traffic (the societal consensus) would seem like a more rational way to get to this result.
- Much more use of license suspensions for significant speeding. Ultimately, I think that’s the only penalty that has real deterrent effect for a lot of people (including real hardship for people who commute by car). Rather than have this be a last resort penalty, how about something like a short suspension (say 3 months) for driving 30 mph over the limit on a first offence? You can argue about the details, but I guarantee that is the sort of thing that people would pay attention to. (A similar approach has worked reasonably well with drinking and driving, which again was one risk factor that has been somewhat arbitrarily, but effectively, singled out.)
One corollary of this line of thinking is that the ubiquitous speed camera and red light camera surveillance society (which the British are in the process of fully building out) becomes quite appealing. Apart from the fact (OK, opinion) that many speed limits are too low, I find myself increasingly sympathetic to this approach. Even in Britain, I suspect there would be a lot less grumbling if the highway limit were higher on the motorways (say, 80 instead of 70, for cars but not trucks). (Aside — I loved the story from several years ago when Ontario introduced speed cameras on the 401 and an ingenious group of drivers set up a convoy in all lanes going 100 kph, backing up traffic for miles and miles. The police managed to charge them with something, although I don’t know what the offense was — I still think it’s outrageous.) Among other things, use of speed cameras would leave the cops free to spend more time chasing down the drivers doing reckless things other than speeding — the tailgaters, cell phone users, non-signalers, etc.
Interesting comment Paul.
From the POV of assumption of risk I think these guys may be over a line–of the course the fact they were speeding is relevant but then they were doing so in the context of street *racing*. There’s more conscious choice going on here then somebody passing at say 140 km/h in the 401. In this respect it’s like impaired driving. (I thought street racing had a Criminal Code offence all to itself but apparently it doesn’t.)
My understanding is that increasing levels of enforcement is generally more effective as a deterrent than increasing sentences, in part because of the way we perceive and react to risk. That said, I suspect there are certain qualitative thresholds that have deterrent value: criminal record vs. no criminal record, jail vs. no jail, etc.
One last comment further to my last. I didn’t realize this yesterday but apparently the judge found that two *weren’t* street racing. This may seem a very odd finding but it’s actually not too difficult to explain how it may have happened. Whenever you plead guilty to an offence you have to admit facts sufficient to establish the elements of the offence (e.g., for theft, “I took it and I knew it wasn’t mine”). However you don’t have to admit any aggravating facts, and of course a competent defence lawyer will admit only the minimum necessary to plead guilty. If the Crown wants to rely on any aggravating facts at sentencing they have to go through a mini-trial to prove these facts beyond reasonable doubt. Generally the Crown doesn’t attempt this.
One of the advantages of pleading guilty is that usually you have more control over what version of the facts the Court uses for purposes of sentencing.