Are Canada’s Drunk Driving Rules Strict Enough?

As car accident lawyers, the Will Davidson LLP legal team receives inquiries from clients who have been injured in a car accident and are seeking legal advice. Through drunk driving has declined in Canada (in the mid-1990s, well over 1,000 Canadians per year were killed in impaired driving accidents; by the mid-2010s, the number was less than 500) it remains far too common.

The dangers of drunk driving are clear: alcohol intoxication slows reaction time, reduces coordination, makes it difficult to concentrate, impairs vision, and inhibits judgement, all of which contribute to unsafe driving. For years, the federal and provincial governments, in partnership with advocacy groups like Mothers Against Drunk Driving (MADD) Canada, have sought to spread this message through aggressive public education campaigns. Schoolchildren are taught that drunk driving is unacceptable from a young age; MADD commercials run regularly during high-viewership television events.

In late 2018, new federal laws came into effect with the aim of further discouraging drunk driving. Previously, first-time offenders faced a minimum fine of $1,000; second-time offenders faced a minimum penalty of 30 days in prison; and repeat offenders faced a minimum of 120 days in prison.

Under the new laws, first-time offenders with a blood alcohol content (BAC) of between 80 and 119 mg per mL face a minimum fine of $1,000; first-time offenders with a BAC between 120 and 159 mg face a minimum fine of $1,500; and first-time offenders with a BAC over 160 mg face a minimum fine of $2,500. First-time offenders who refuse to be tested face a minimum fine of $2,000.

The penalty for second- and third-time offenders remains a minimum of 30 and 120 days in jail, respectively. Impaired drivers who cause an accident causing no bodily harm face up to 10 years in prison. Those who cause an accident causing bodily harm face up to 14 years, and those who cause an accident resulting in death can face life in prison.

The new penalties were generally accepted by road safety advocates and car accident lawyers. However, some still question whether they are sufficient. A recent Toronto Stararticle suggests that some drunk drivers in Ontario are treated too leniently.

On June 21, 2020, 27-year-old Darya Selinevich of Richmond Hill was arrested while driving dangerously on Highway 400 south of Barrie. According to an agreed statement of facts, as reported by the Star, Selinevich was “swerving from side to side” in heavy traffic and repeatedly almost struck the median. A breathalyzer showed she had a BAC of over 160 mg. A dozen empty beer containers were reportedly found in her vehicle.

Shockingly, this was Selinevich’s third arrest for impaired driving. In 2015, she received a one-year ban for speeding with a BAC of twice the legal limit. Just a month later, she struck and killed a cyclist on Finch Ave West, fled the scene, and led police on a chase through a residential neighbourhood. She had been drinking heavily and was travelling at twice the speed limit when the collision occurred, according to the Star.

Selinevich received a seven-year sentence for her role in the death, which was reduced to 4 ½ years for time served. She was granted day parole in early 2018, and later granted full parole on the condition that she did not drink and did not drive.

Following her most recent arrest, Selinevich pleaded guilty to impaired driving and driving while suspended. The Crown is seeking a prison sentence of two years less a day; her defence is seeking a sentence of no more than 15 months. For many observers, including some car accident lawyers, both proposals are too low. Selinevich has a history of impaired driving and apparently learned nothing from her role in a man’s death. Previous jail time and existing driving bans did nothing to discourage her from getting back behind the wheel while intoxicated.

As MADD Canada CEO Andrew Murie told the Star: “Families who have been impacted by impaired driving will think this is outrageous.”

As car accident lawyers, the team at Will Davidson LLP can help victims of drunk driving find closure where the criminal justice system cannot. Our team has helped numerous accident victims access compensation to mitigate the costs of recovery.

If you or a member of your family has been injured in a car accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation with an experienced car accident lawyer. Although our team has experience with claims involving impaired driving, we also provide representation in accident benefits claims, insurance disputes, and more.

Reach out today to learn more about our services and experience. Will Davidson LLP offers representation on a contingency basis, meaning you won’t be charge up-front or hourly legal fees. Instead, our team will accept a pre-arranged percentage of the final legal settlement as payment. This approach is used by most personal injury law firms in Ontario to ensure access to justice for all Ontarians.

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When are employers responsible for the actions of holiday party-goers?

Office holiday parties, in addition to being the highlight of many employees’ years, occupy a legal grey area in the Canadian civil justice system. When an attendee causes or suffers a serious injury, personal injury lawyers are challenged to discern who precisely is responsible.

If the office party is held at a staff member’s home, rules surrounding social host liability will apply. If the event occurs at a licensed establishment, we may look at commercial host liability. If the injuries relate to an improperly maintained property, the Occupiers’ Liability Act is likely to hold answers. Injuries related to authorized marijuana or alcohol consumption on a business’s premises, however, are not governed by these areas.

As we discussed in our recent blog on social host liability, the decision in the Supreme Court of Canada case Childs v. Desmoreaux states that “a social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk.” Commercial hosts, as all Oakville personal injury lawyers know, are bound by a long history of case law to take positive steps to prevent their patrons from drinking and driving.

Because businesses owe their employees a certain duty of care, employer host liability falls somewhere between social host liability and commercial host liability. It is most likely to be applied in situations where an employer provides marijuana or alcohol to staff, is aware of an employee’s intoxication, and fails to take sufficient steps to prevent the employee from driving.

The 2002 case Hunt v. Sutton Group Incentive Realty Inc. dealt with approximately this scenario. Hunt attended and consumed alcohol at an office holiday party at her employer’s premises. Her drinking was unrestricted and unmonitored. Following the party, she drove to a pub where she continued to consume alcohol. On her drive home from the pub, Hunt crossed into oncoming traffic and was seriously injured in an accident. It was determined at trial that Hunt’s employer breached its duty of care to maintain a safe workplace.

“…the defendant Sutton, as the plaintiff’s employer, did therefore owe a duty to the plaintiff, as its employee to safeguard her from harm,” the trial judge wrote. “This duty to safeguard her from harm extended beyond the simple duty while she was on his premises. It extended to a duty to make sure that she would not enter into such a state of intoxication while on his premises and on duty so as to interfere with her ability to safely drive home afterwards.”

Hunt’s employer and the pub where she continued drinking were determined to be jointly 25 per cent responsible for Hunt’s injuries.

Another case that personal injury lawyers may know, Jacobsen v. Nike Canada Ltd., returned a similar verdict. Jacobsen was severely injured in a single-car accident after drinking beer provided by the employer. In this case, too, the plaintiff visited a bar en route home; Nike Canada was still found 75 per cent liable for the injuries.

Avoid liability, reduce injury risk

 For businesses, the most effective means of avoiding employer host liability are also common-sense measures to reduce the likelihood of drunk driving injuries. For example: cap intake at two or three drinks; hire professional bartenders to serve alcoholic beverages; provide non-alcoholic options and plenty of food; offer taxi vouchers or Uber rides; and stridently promote responsible drinking at your staff parties.

With marijuana now legal in Canada, it is likely that employer host liability cases relating to marijuana intoxication will materialize in coming years. The courts will likely refer to Childs, Hunt, and Jacobsen to determine liability and compensation in these cases, meaning employer host liability will continue to lie between social host and commercial host liability for injuries relating to marijuana intoxication.

If you or someone you love has been injured as a result of impaired driving, contact Will Davidson LLP’s team of experienced personal injury lawyers today to learn how we can help.

 

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Delays in Your Claim Can Let a Cannabis-Impaired Driver Off the Hook

 

According to statistics made available by the Canadian government, of the drivers who die in vehicle crashes, 40% test positive for drugs and more than the 33% test positive for alcohol. Whereas impaired driving is a malaise, it notes, driving high is one that is growing.

What the law looks for – Impared Driving

Cannabis is composed of several chemical compounds, called cannabinoids. Of these, the most relevant for testing drug-impaired driving is delta-9-tetrahydrocannabinol, THC as it is better known. THC is the psychoactive component of cannabis, responsible for the ‘high’ and is, therefore, of most interest to law and order authorities.

Police stopping drivers by the roadside to test for cannabis-impaired driving will measure the THC concentration in blood, after making an on-the-spot judgment if the driver may have been driving high. A driver testing positive for between 2 and 5 nanograms of THC per millilitre of blood will invite a fine of up to $1000 under the new summary offence. Anything over 5ng/ml and the offence falls in the same category of drug-impaired driving as cocaine, LSD and methamphetamine, under the new hybrid offenses scheme. The scale shows the lack of tolerance towards drug-impaired driving.

The Canadian Center on Substance Abuse states unequivocally, “research evidence leaves little doubt that psychoactive prescription drugs can adversely affect cognitive and motor functions involved in the operation of a motor vehicle.”

Limitations of Roadside Drug Testing

Nevertheless, car accidents and personal injury caused due to impaired driving are set to bring additional challenges for claims and lawsuits. CTV News reports on the ‘Dräger Drug Test 5000’, a roadside saliva test which checks for the presence of THC (marijuana), opiates, cocaine and much more besides. A potential drawback: saliva “tested positive for THC even though it had been 10 hours” since smoking marijuana.

Mobile testing methods, particularly those carried by the police for testing roadside if drivers have been driving high, have some way to go before they become incontestable. This is reflected best in the fragmentation and lack of consensus between police forces around Canada about which tests they will use. The Globe and Mail reveals, as late as August 2018, just a few months before recreational use of marijuana was allowed:

Ottawa approved the Draeger DrugTest 5000, a device that allows officers to test driver’s saliva for THC, the main psychoactive ingredient in cannabis. Right now, it’s the only approved device. But police in Vancouver, Calgary, Toronto, Montreal and Halifax – along with the provincial force in Quebec – say they haven’t purchased the device.

There is a potential for drivers and road users at fault for accidents will be able to mitigate their liability by claiming improper results in police tests – potentially stultifying settlement talks or lengthening trials.

If you or someone you know has been injured or suffered loss of property due to the actions of a drug-impaired driver, get in touch with the Will Davidson LLP team of lawyers immediately. Marijuana and other accidents caused due to drug-impairment require rapid intervention to ensure that the party at fault is not able to scuttle a claim by delaying collection of material evidence.

With recreational marijuana now legal, police services hesitate on Ottawa’s preferred drug test

Impaired driving is a major risk factor on Canadian roads and with recreational marijuana now legal, road safety experts and personal injury lawyers are concerned about an influx of stoned motorists.

The federal government took several steps to allay safety concerns in the runup to legalization, including approving a saliva test for marijuana impairment: the Dräger DrugTest 5000. However, numerous police forces around the country, including the Ottawa Police Service, have declined to use the new device while others, including the Ontario Provincial Police, have yet to submit orders. Cost, effectiveness in cold weather, and the potential for false-positives and false-negatives are among the major concerns.

“From a cost perspective, they’re $6,000 each,” said Chief Charles Bordeleau of the Ottawa Police Service, according to the CBC. “The issue around keeping the swabs at a right temperature is problematic in our current climate.”

Both the Ottawa police and the OPP use a two-step protocol to identify driver impairment. First, a trained officer administers a roadside sobriety test; if the officer believes the driver is impaired, a drug recognition expert will perform more in-depth testing.

“We already have the tools to detect for impaired drivers,” OPP Highway Safety Division spokesperson Sgt. Kerry Schmidt said, per a different CBC article. “We’re going to continue to use those tools that we have. If more tools are made available to us, that’s something that will be a decision down the road.”

On October 16, CBC News reported that the OPP will purchase Dräger DrugTest 5000s.

“I have been told we will be purchasing some of these devices,” Sgt. Schmidt said. “I have not been told how many or where they’ll be deployed to. It’s still part of the procurement process.”

A 2016 study by the U.S. Centers for Disease Control (CDC) found that Canada had the highest percentage of traffic deaths linked to alcohol impairment among 19 wealthy countries. Personal injury lawyers in Ontario are concerned that marijuana legalization will have a compounding effect on what has been a major source of serious automotive accidents for decades. As such, the means by which Ontario police prevent impaired driving is less critical than the end; whether via traditional sobriety testing or through the Dräger DrugTest 5000, what matters is that police are able to detect, detain, and charge drug- and alcohol-impaired drivers.

If you’ve been injured in an automotive accident caused by impaired driving or otherwise, contact Will Davidson LLP today to arrange a free, no-obligation consultation. Our experienced team of Ontario personal injury lawyers can prosvide guidance and advice as you navigate the legal system and work towards your recovery.

 

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Durham Region adopts public messaging in bid to improve road safety

In Durham Region, the municipality directly east of Toronto, a motor vehicle accident occurs every 48 minutes and someone is injured in a crash every five hours. Since 2012, the region has endured a 33 per cent increase in fatal collisions, with approximately 37 per cent of those collisions linked to distracted driving. For local law enforcement and every car accident lawyer in the Greater Toronto Area, the prevalence of serious accidents in Durham is cause for concern.

In response to the region’s road safety issues, Durham Regional Police Service (DRPS) has launched an expansive public messaging campaign promoting education and awareness. The program underlines the dangers of impaired driving, distracted driving, aggressive driving, and not wearing a seatbelt, the “Big Four Killers” on Ontario roads.

“We wanted something that would create more enduring change than just getting a ticket,” said Const. Shawn Finley, chair of the north Durham traffic committee, according to DurhamRegion.com. “When you get a ticket, that might alter your behaviour for a short period of time, say the time it takes you to think of what that ticket cost, but we wanted something to get people thinking about the controllable behaviours that contribute to the big four killers.”

The DRPS’s approach, which includes installing posters at LCBOs and grocery stores and distributing pamphlets, is a breath of fresh air to any Ontario car accident lawyer, many of whom have advocated for public messaging and education to be deployed alongside tough traffic laws.

“It’s important to educate the public so they understand texting and driving is killing people, it’s raising the possibility of an accident,” said Staff-Sgt. Colin Shaw of DRPS North Division. “We don’t want to wait for someone to have an accident before we deal with the fact that they were speeding, drinking and driving or texting and driving.”

In 2015, impaired driving caused 166 DRPS-investigated collisions leading to 22 injuries and four deaths. The Service laid more than 700 impaired driving charges that year, in addition to more than 2,700 distracted driving charges and around 2,500 speeding charges.

As new road safety challenges like distracted driving and marijuana legalization emerge across Canada, police services and lawmakers at all levels of government are turning to innovative public messaging campaigns in a bid to influence driver behaviour. The approach has proven effective in the decades-long fight against drunk driving; however, distracted driving fatality rates have yet to fall, and the impact of marijuana legalization on road safety remains to be seen.

If you or a member of your family has been injured in an automotive accident, contact Will Davidson LLP to speak with an experienced Oakville car accident lawyer today. Our team will provide guidance and advice as you pursue compensation for your injuries.

 

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Study reveals link between 4/20 and traffic deaths

 

For a car accident lawyer in Oakville, Toronto, or anywhere across Canada, the upcoming legalization of recreational marijuana is cause for concern.

This February, researchers at the University of British Columbia (UBC) released an analysis of 25 years of data around fatal traffic accidents on April 20. The date, sometimes styled as 4/20, is an unofficial, self-proclaimed holiday for marijuana users, generally marked by peaceful gatherings in cities like Vancouver, San Francisco, New York, and Ottawa.

While 4/20 celebrations are generally quite benign, UBC’s analysis revealed a dangerous link to traffic deaths. According to the study, which compared data from April 20 with data from control days one week earlier or later, drivers were 12 per cent more likely to be involved in a fatal accident on 4/20.  Among drivers under the age of 21, the risk was 38 per cent higher. Overall, the study found that 142 additional deaths took place on April 20 between 1992 and 2016.

Similar spikes in drunk driving deaths have been reported on Super Bowl Sunday and New Year’s Eve, the CBC reported.

“Assuming fewer than 10 per cent of Americans drive while high on April 20, our results suggest that drug use at 4/20 celebrations more than doubles the risk of a fatal crash,” said University of Toronto professor Dr. Donald Redelmeier in a UBC release.

Despite complications and controversies, recreational marijuana will almost certainly be legalized across Canada this summer, which makes the study’s timing particularly sensitive. Road safety advocates and law enforcement officials have consistently warned of the dangers of drug-impaired driving in the lead-up to legalization. If you’ve been injured in a crash involving drug impairment, contact a car accident lawyer today.

“One-fifth of Americans now live in states that have legalized recreational cannabis, and legalization is set to occur for all Canadians in July 2018,” said lead research Dr. John Staples of UBC’s Centre for Health Evaluation and Outcome Sciences. “We hope that legalization doesn’t lead to more people driving while high.”

The federal government hopes the same thing, and has invested millions of dollars in public awareness campaigns targeted at young people and other vulnerable populations. However, dangerous misconceptions about marijuana and its effects on drivers persist in Canada, as we discussed in a blog post at WillDavidson.ca. To make matters worse, there is no foolproof roadside test for marijuana intoxication. In short, all levels of government have their work cut out for them prior to nationwide marijuana legalization.

“Driving is a potentially dangerous activity,” Staples said. “Improving road safety requires both policymakers and drivers to make smart decisions. If you’re going to get behind the wheel, buckle up, put the phone away, don’t speed, stay sober and don’t drive high.”

If you or a member of your family has been injured in a traffic accident, contact an Oakville car accident lawyer at Will Davidson LLP to learn how we can help.

 

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Safety advocates call for harsher dangerous driving penalties

In July, 21-year-old Mitchell Irwin was handed a four-year prison sentence and concurrent six-year driving ban for killing 26-year-old cyclist Adam Excell in a 2015 hit-and-run. Excell’s family believes the sentence is too lenient, and has found support among road safety advocates and car accident lawyers.

“It doesn’t seem like justice was served today,” Excell’s cousin Ashley Ferguson told the Toronto Star following the sentencing. “If you take someone’s life while driving, I don’t think you should be able to drive. You shouldn’t have that privilege.”

Irwin’s punishment, in other words, does not fit the crime he committed. However, in her decision Superior Court Justice Maureen Forestall noted that this seemingly lenient sentence would have been considered harsh in the recent past. In this case, the defence and prosecution agreed upon the four-year sentence ‘given that Irwin pleaded guilty, showed remorse and is a young man with no criminal record,’ according to The Star.

Road safety advocates and car accident lawyers are increasingly frustrated with lax sentencing for dangerous drivers. In Toronto, upwards of 10,000 pedestrians and 5,000 cyclists were killed or seriously injured by motorists between 2008 and 2012, and many hundreds more have been killed or injured since.

“Every single death on our roads is preventable,” Cycle Toronto’s Jared Kolb told The Star. “There is an immense amount of power that comes with driving a motor vehicle … (Drivers) need to slow down, need to put their phones down, need to pay attention and drive sober. It is a huge responsibility and a privilege to be driving.”

Some advocates and car accident lawyers believe the justice system’s implicit “car bias” has done as much harm to vulnerable road users as individual dangerous drivers, and are pushing for significantly harsher penalties. Today, drivers can face up to 10 years in prison for dangerous driving causing injury, but the courts rarely hand down maximum sentences. Friends and Families for Safe Streets, an organization formed by the loved ones of victims of traffic accidents, wants motorists who recklessly kill someone to face lengthy driving bans and fines of up to $50,000. The group also wants court appearances to be mandatory for dangerous drivers, in part so they are forced to listen to victim impact statements.

Ontario Transportation Minister Steven Del Duca is reportedly exploring options to improve road safety in the province, including stiffer penalties. In an email to the Star, his spokesperson Alana Kiteley wrote: “It is critical that we ensure that any changes made will have a real impact on the safety for our vulnerable road users and that any action taken, including penalties, will act as a true deterrent to dangerous driving behaviours.”

If you or a member of your family has been injured in a traffic accident, contact the car accident lawyers at Will Davidson LLP today to set up a free, no-obligation consultation and learn how we can help.

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