As a trauma lawyer helping seriously injured motorists and pedestrians, I frequently assist persons badly injured (or families of someone killed) as a result of blatantly offensive dangerous driving by an irresponsible motorist.
Often the dangerous driving was a result of someone driving ‘under the influence’ of drugs or alcohol.
These days, many avoidable accidents are a result of persons driving while actively texting and, especially during the COVID-19 lockdown period, younger drivers engaging in reckless street racing activities.
While accidents and driving errors do happen, where reprehensible conduct like excessive alcohol, drugs, active texting or street racing is suspected for causing an accident, the victims and their families are understandably inflamed and want justice.
The Criminal Law Process
The criminal law process governs what happens to these dangerous irresponsible drivers who are properly charged with dangerous driving as well as other conduct-related charges in these circumstances.
Lengthy jail time is a distinct possibility especially if the defendant driver has a checkered history of similar conduct or shows little remorse.
Obviously, any criminal conviction should include the removal of the driver’s privilege to drive by taking away their driver’s license. These convicted drivers will also face major challenges purchasing mandatory car insurance down the road, or at least purchasing it at anything other than astronomical prices.
As a trauma lawyer helping accident victims in these circumstances, we have virtually no control over the pursuit of the criminal charges and the outcome. That said, the victims and their family will have an opportunity to dialogue with the prosecutor to help ensure that appropriate charges are actively pursued, and that the defendant is in fact convicted of such charges, rather than offered a friendly plea deal.
The victims and their family will also have input and can make Victim Impact Statements to the Court as part of the sentencing portion once a conviction is rendered. In those circumstances, I support my client’s submitting Victim Impact Statements to the Court and I welcome an opportunity to review those statements beforehand simply to make sure that it covers the relevant issues without referencing anything that could prove problematic in their ongoing civil claims.
The Civil Litigation Process
As a trauma lawyer my responsibility is to advance the civil lawsuit against the at-fault irresponsible driver. In serious cases, the damages claimed in that civil lawsuit will far exceed any insurance that may be available to the at-fault motorist. I say “may” because some criminal conduct impacts the validity of insurance coverage resulting in the need for the victim and their family to implicate and collect off of their own car insurer.
Even when there is adequate insurance available to address the compensation owed to the family, a trauma lawyer will typically include claims that aren’t covered by any insurance, such as a claim for punitive damages.
Punitive damages are available to be ordered by the Court against the defendant for reprehensible conduct that is worthy of punishment.
I have had the privilege of being co-counsel on a trial where a Jury awarded punitive damages against two corporate defendants (in a bicycle manufacturing defect case that involved a recall—see cost decision at Resch et al v Canadian Tire 2006 CanLII 24128).
Punitive damage awards are somewhat restricted by Canadian law in terms of their magnitude. However, because the punitive damage portion of any award is paid by the defendant personally as opposed to by an insurance company, it is often welcome by the victim and their family as a means to obtain a very small bit of justice against the irresponsible defendant for their reprehensible conduct.
Unfortunately, there is not much more that can be done to punish an irresponsible defendant for what they have done. They should pay both in terms of criminal consequences and by way of personal civil responsibility though a punitive damage award.
Additional rules, both criminal and civil, are welcome to enhance the punishment against irresponsible motorists in a strengthened effort to deter this kind of irresponsible conduct wherever possible.
At Thomson Rogers we have spent decades assisting thousands of injured Ontario motorists through the complex litigation process. We fight to ensure justice is done as best as possible and in accordance with our laws.
We offer free consultations so please feel free to reach out to us at any time. We are here to help.
Darcy Merkur is a highly regarded Ontario trauma lawyer helping accident victims such as pedestrians, cyclists and motorists, who have sustained catastrophic injuries.
Darcy is the first lawyer in Canada to be qualified as a Certified Brain Injury Specialist by the Brain Injury Association of America. In addition, Darcy has been recognized as a Certified Specialist in Civil Litigation by the Law Society of Ontario, is listed in peer-reviewed publications – Lexpert® and The Best Lawyers™ in Canada, is ranked AV pre-eminent in Martindale-Hubbell ® and is a partner at Thomson Rogers, one of Canada’s Top 10 Personal Injury Law Firms as selected by Canadian Lawyer Magazine.
Darcy can be reached at 416-868-3176 or by EMAIL.