Presentation to the OCC
My name is Gerry Rhodes, and I am the Provincial Government Liaison Officer for the Bikers Rights Organization, Ontario, Incorporated.
As many of you may be aware, for some 13 years our Organization has worked towards obtaining an amendment to the highway traffic act to more appropriately penalize drivers who cause death or serious injury through an infraction of the act.
THE PROBLEM AS WE SEE IT: There currently exists an injustice in Ontario. A driver stopped at a RIDE program and found to be over the limit, loses their license for an immediate 90 days, without a trial or conviction. Upon a conviction, they lose their license for a further year, pay a $1,000 fine and after reinstatement of license (after a year’s suspension) must pay to have a breathalyzer device installed and maintained in their vehicle for a further year. We now also have a speeding infraction, renamed as “stunt driving” when the speed limit is exceeded by 50 km/hr. This offence involves a minimum $2000 fine and immediate confiscation of the vehicle for a week. (section 172 (2)) We understand the definition, section 3 (7) of regulation 455/07 was ruled unconstitutional, as an absolute liability offence, however, after appeal, it was ruled to be a strict liability offence, and remains on the books. We will return to a discussion of strict and absolute liability offences later. Use a false CVOR certificate and the maximum penalty is $5000 (section 21 (4)), a false drivers license is worth up to $50,000 (section 35 (4.1)), and running a red light is $1000 (section 144 (31.2.1)).
Compare those penalties to a driver who makes an unsafe turn in front of a motorcycle and kills both riders. Persons committing the aforementioned infractions pay a comparatively large penalty because they have the potential to cause serious or fatal harm, but a person who actually kills with an unsafe turn will receive nothing more substantial than a $500 fine, under the current provisions of the HTA general penalty section, 214. We believe this is morally wrong. A serious example of this wrong is illustrated in the tragic accident which occurred just north of where I live. In July of 2002, William James Duff turned left in between three motorcycles on Highway 17 near Batchewana, Ontario. The resultant collision immediately claimed the lives of David and Wanda Harrison, tourists from the United States. Mr Duff was convicted of unsafe turn and received the maximum penalty allowed under the Highway Traffic Act, that is, a $500 fine. We feel this was unjust, but it was all that was permitted under law. There are some who believe the highway traffic act is just fine the way it is, including previous Ministers of Transportation. When viewed in the above light, however, this is obviously not the case. A member of our Organization was in attendance at the trial of Mr. Duff. The justice at trial, prior to formally passing sentence, spoke to the accused, in open court, and stated words to the effect that: "had you been charged under the criminal code, I could have given you a more appropriate penalty. As it was, you were charged under the Highway Traffic Act, and the maximum penalty I can apply is a $500 fine. Two people died that day. You have to live with that for the rest of your life". The Justice's statement is paraphrased here, as this comment was not recorded in court records, "reasons for judgement", offence number 0427/02, submissions at trial, September 29 and 30th, 2003, reasons for judgement December 9th, 2003, Ontario Court of Justice, Sault Ste. Marie, Justice of the Peace G. Lecouteur. Obviously, at least one member of the judiciary feels the same frustration with available penalties, as do the families of victims, and we are sure, the police who must notify these families, not only of the death of a loved one, but in too many cases the lack of justice in the penalty. I have personally spoken to officers, who expressed the frustration they feel in advising families that the errant driver will only receive a $500 fine. They have also related the disbelief and anger those families feel with such a small penalty. This accident is unfortunately too typical of left turn infractions, wherein the more vulnerable vehicle and occupants suffer the more serious consequences. Many of the charges under the HTA do not have a specific penalty applied. This is true for left turn charges among many others. Instead, the HTA has section 214, which is referred to as the general penalties section of the act. It is the catchall section for the penalty to be applied for any charge under the act that does not already have a specific penalty applied. Ontario motorcyclists, however, have a great concern over the deaths of an estimated 297 motorcyclists, through no fault of their own, which have occurred between 1993 and 2012. (Reference data gleaned from ORSAR 1993 to 2012, section 6.2) Again referencing the same data from ORSAR for the years between 1993 to 2012, we see that between 23 and 45% of all motorcycle accidents for a given year is not the fault of the motorcycle rider. Fail to yield right of way to motorcycles is a major cause of concern. Section 141 (5) of the HTA covers unsafe turns, fail to yield, and similar offences, and the penalty for those offences are covered by section 214, the general penalty section.
WHAT WE HAD FOR A PROPOSED SOLUTION: We felt that the needs of motorcyclists, as well as every other Ontario motor vehicle operator could better be served by amending section 214, the general penalty section, to allow the judiciary a greater choice in the application of more appropriate penalties, for infractions which cause death or serious injury. The general penalty section now reads, 214. (1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500. R.S.O. 1990, c. H.8, s. 214 (1). We had proposed to amend the in that section to read: (a) is liable to a fine of not less than $60 and not more than $500 or, (b) is liable to a fine of not less than $500 and not more than $5000, and/or incarceration not less than 3 months and not more than 12 months, penalties and those who violate the right of/or suspension of drivers license for 12 months, said suspension to start upon release from incarceration, if any, and not be concurrent with incarceration, where it has been determined that the contravention resulted in a fatality or serious debilitating/maiming injury. With this amendment in place, there should be a more just penalty for way of the more vulnerable segments of the motoring public, and for those who by their actions, cause accidents which claim lives. Note that our proposed amendment did not just apply to motorcyclists being killed but applied to anyone! That very fact should garner support across the broad spectrum of road users. THE ACTIONS THAT WE TOOK: 1. Letters to the Minster of Transportation 2. Letters to the Ministry of Community Safety and Correctional services, Attorney Generals Office, and the Ontario Ombudsman's Office 3. Gathered and presented petitions 4. Lobbied the opposition critics
1. Letters to the minster of transportation From 2002 through to 2010 we wrote letters to the various ministers of transportation, outlining our concerns and our proposal to amend the act to provide justice for Ontario's motorcycle riders. We received replies from the Ministry which were dismissive to our concerns, indicating such things as increased penalties do not solve the problem, or that if the accident is serious, then more serious charges could be laid. Neither is true. They also indicated that sufficient legislation existed to cover our concerns. We never believed that was true. (Reference our correspondence files) In rebuttal we offered the following: Increased penalties as a deterrent. The last 13 years have seen numerous examples of increased penalties used as a means of deterrence and as more appropriate penalties for various infractions, ranging from impaired driving, speeding, traffic light infractions, false permits and licenses, etc. These have been put in place by the Ontario Government. Obviously this government does believe that increased penalties are a useful tool of deterrence. A simple example of this deterrence effect occurred when the penalty for running a stop sign was doubled to $1000 in 2009 /2010. An MTO news release in 2010 indicated that the numbers of violators for this offence had dropped. The obvious large example of deterrence effect involves impaired driving. No one can deny the fact that there has been a major shift in the attitude of Ontario drivers, and society in general, to the impaired operation of a motor vehicle, in response to the penalties now in place. Some other examples of increased penalties over the years: 2005 bill 169 penalty for providing false information, maximum $5000 fine, or imprisonment not more than 30 days, or both. 2005 bill 169 penalty for altered or false drivers license, section 35, maximum $50,000 fine. 2005 bill 169 penalty for 50 kms over the limit, 30 day drivers license suspension, first offence, $2000 fine minimum. Vehicle roadside confiscation also occurred. 2009 penalty for red light violation doubled to $1000 fine. 2014-15 bill 31 new penalties section 48 related to impaired driving. 2014-15 bill 31 penalties for display screens and hand held devices section 78 raised to $1000. 2014-15 bill 31 new separate penalty for the bicycle "door prize" section 165, now maximum $1000. This penalty was formerly part of section 214, the general penalty. Availability of more serious charges. Many would have you believe that more serious charges can be laid in the case of a more serious accident. Not true. Speak to any police officer, and they will tell you they cannot pick and choose charges based upon an assessment of accident severity or consequence. All charges laid must be supported by the evidence, or they will be readily beaten in a court of law. Placing a more serious charge would be a waste of time for all, as the errant driver would readily beat the unsupported charge and would walk from court with no penalty. The issue is not with the charge laid, so much, as what is an appropriate penalty for the offence and its real or potential consequences. For example, speeding is just speeding, whether it is 2 kms/hr over the limit or 70 kms/hr over the limit. However, the real or potential consequences of the higher velocity in a collision situation, means greater risk to life with increased speed, and therefore, we can assume that is the reason 50 kms/hr over the limit is now in a separate offence with more severe penalties. If more serious charges were available to the police, they would use them. In the unfortunate Harrison case, the OPP closed the trans Canada Highway for over 6 hours while they conducted their investigation. Days later, the charge laid was unsafe turn. Had the evidence existed to support a criminal code charge, they would have laid it. That is to some extent, the crux of our problem. The serious penalties tend to exist in the criminal code, and not in the HTA. Other jurisdictions recognize the issue. As of 2012, fifteen individual American states had enacted a total of eighteen separate "right of way" pieces of legislation to help protect motorcyclists. This was done by providing stiff penalties for drivers who caused the death of motorcyclists, via left turns and other fail to yield actions. By advising you of this, we simply wish to point out the fact that many other legislative bodies have recognized the issues facing motorcyclists in particular, and have acted upon them. Many of those pieces of legislation have targeted left turns, specifically. We did not propose such a separate measure, for motorcyclists only, for Ontario. Our proposed amendment was worded in a manner which would help protect all road users and not just motorcyclists. 2. Letters to the Ministry of Community Safety and Correctional services, Attorney General’s Office, and the Ontario Ombudsman's Office These efforts were also fruitless. The Safety and Correctional Services Minister just referred us back to the Minister of Transportation. They did not answer our request for them to provide clarification to said Ministers office regarding the fact police cannot pick and choose charges, and criminal code charges are not appropriate in many accident situations. There was also no reply to our indication of the frustration felt by officers and court staff to the situation. The Attorney General’s office did not address the same issues as we raised with Correctional Services, and only referred us back to the Ministry of Transportation, when they bothered to reply. Some emails went un-answered. Frustrated, we turned to the Ombudsman's office to see if a lack of response or did not consider it to be so. 3. Gathered and presented petitions We gathered petitions. We did the research and created our petition in the correct manner as required by the legislature. It is an unfortunate fact that well intentioned people have created and gathered petitions, which are not in the correct manner as required by the legislature. The petition has to follow a set format, with a header at the top of every single signature page, worded in a proper manner to be accepted by the legislature. They require the original hand written signature pages to be presented to them. An example of the correct wording is on their web page. Online petitions are a waste of time, do not even bother. We had proper petitions presented in the legislature by former MPP for Algoma Manitoulin, Mike Brown. 3,000 signatures we had gathered have been presented and a further number of 1276 signatures were handed over to the office of MPP Wayne Gates in December of 2015. In addition, an unrelated separate petition of 2,000 signatures by a family affected by a non-motorcycle traffic tragedy, were also presented to the Minister of Transportation. All these petitions calling for stiffer penalties had also gone unaddressed. In excess of 6,000 signatures on petitions are currently calling for stiffer penalties. 4. Lobbied the opposition critics In May 2010, a phone call I made to the Minister of Transportation's office, showed clearly that we were going to get nowhere with the party in power. I was advised by a staff member that our file had been marked "no response required, please close this file". We then turned our attention in earnest to the opposition critics, something we should have done much earlier. We had sent letters to opposition critics in the past but for some reason the timing must not have been right then. The response this time was heartening. The most positive and immediate replies came from MPP Gilles Bisson, NDP, MPP Michael Mantha, NDP, and Jeff Yurick, PC, who was invited to, and attended, our annual Fallen Riders Memorial at Queens Park. In January of 2015, my MPP Michael Mantha was invited to our Provincial 2 day in Niagara Falls. As he was unable to attend, he asked the then and current NDP critic for the transportation portfolio to attend in his stead. When MPP Wayne Gates attended and reviewed the presentation we had prepared for the committee hearings in review of Bill 31, he was, in his own words, "shocked" when presented with our information. The culmination of the work and assistance of his office, and others, during the subsequent months, was the introduction of Bill 154 in the legislature last December. WHERE WE ARE TODAY: December 1st, 2015, MPP Wayne Gates Niagara Falls tabled a private members bill, 154, for first reading. It got first reading as all bills normally do. Two days later, on December the 3rd, I had the pleasure of sitting in the legislative assembly along with a colleague, Brian Burnett, and heard Bill 154 get second reading, debate, and a passing vote to recommend the bill to the Committee on the Legislative Assembly. Some of you may know Brian, AKA Gazoo, as being the individual who has manned the BRO booth at various bike shows for many years. He is also a left turn accident survivor. The bill tabled would create a separate offence for causing death or serious injury, as a result of an infraction of the HTA. It reads as follows: Bill 154 2015 An Act to amend the Highway Traffic Act to create an offence of contravention causing death or serious bodily harm Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: 1. The Highway Traffic Act is amended by adding the following Part: Part x.0.1 Contravention causing death or serious bodily harm 191.0.2 (1) Every person who, while contravening this Act or the regulations, causes, or contributes to causing, an accident that causes the death of a person or serious bodily harm to a person is guilty of an offence and on conviction is liable to a fine of not less than $500 and not more than $5,000 or to imprisonment for a term of not more than twelve months, or both, and in addition his or her license or permit may be suspended for a period of up to twelve months. Increased suspension time (2) If the court sentencing the offender under subsection (1) orders the imprisonment of the offender and the suspension of his or her license or permit, the suspension is increased by the period of imprisonment. During debate on this bill, December 3rd, 2015, it was apparent that all parties were supportive of the bill. There were some questions and issues raised that we will need to address in committee. There were also some personal stories related by the various MPP's, from the death of a family member, to the positive impact motorcyclists have on their communities, and these can be read in the Hansard record from Dec.3rd, afternoon session. A brief lesson for you all in how a bill becomes law. A bill gets first reading in the legislature and then has publication of its wording on the Assemblies website. Sufficient time normally passes for persons to examine the bill, and then it comes up for second reading. At this time the member or party proposing the bill gets to speak on the bill and it is debated in the assembly as to its merits and pitfalls. A vote is then taken, and the bill either passes or is recommended to committee, or it fails. In committee, the bill is examined; witnesses and interested participants are called to speak on the bill and it is examined, debated and amended as deemed necessary, and voted upon clause by clause. The committee then prepares a report to the assembly if they deem it should go to third reading. If it has been amended, it is published in its new form. At third reading, the bill is debated in its final form, and a vote is taken whether or not to pass it into law. If it passes, it is then published in its final form, and after Royal Assent, becomes law. We are now at the pre-committee stage with Bill 154. At this time we need to lobby the Liberal Party to move this bill onto the agenda for the Standing Committee, and to support it when it gets there. We need to lobby the Conservative MPP's to support this bill. We need to lobby the NDP MPP's to support their caucus member’s private bill. I think with the respect that they have for a long time member, that would be a given, but emails, phone calls or letters of support will not go un-noticed. When it comes before committee, we will need to have a presentation ready to address the known issues that have thus far been raised, during the debate. Some of these are the old ones we have been dealing with for several years, others are new; 1. are there not criminal code charges that are available? 2. will the presence of a new simpler charge under the HTA not mean that less charges will be laid under the criminal code where appropriate? 3. are other interested parties supportive of the bill, e.g. CAA, Ontario Safety League, Ontario Police Association, Ontario Bar Association, etc? 4. what are the issues for this bill in respect to absolute and strict liability offences? WHAT WE NEED TO DO FROM HERE: We need to prepare rebuttals to the issues raised. We can begin to address these issues as follows below. In addition, we need to be ready to rework the amendment, to ensure that we get the justice we want, and deserve, to ensure that the bill moves forward. Documentation and evidence to present to the Committee is something I will be working on in coordination with MPP Gates office, however, assistance in this endeavor would never be turned down, volunteers to assist are welcome. Personal stories of tragedy occurring without justice for family and friends, would greatly assist in confirming the need for justice for victims and families, and can be presented at committee as evidence of the need for passage of this bill. If you or anyone you know believes they may have information relevant to this effort, I need to hear from them. We will need to be ready to provide rebuttal to the issues raised. 1. are there not criminal code charges that are available? Again, all charges laid must be supported by the evidence. You cannot lay a charge based upon the penalty you think appropriate. The crown must prove its case in all circumstances, and if all evidence points towards, and can only support, a traffic act infraction, then that is the charge that must be laid, irrespective of the outcome of the accident. The unfortunate fact is that the majority of traffic accidents are caused by a violation of the Highway Traffic Act, or its regulations, and the evidence available will only support a charge under that act, and not sufficient evidence usually exists to support criminal code charges. The individuals involved in committee need to be educated to this fact, and not just by ourselves. We need documentation from police and law agencies to confirm this. At the scene of an accident, the officers investigating, will photograph, measure, examine, interview witnesses, question those involved, and analyze all that they have to make a determination as to what charges are appropriate. They will decide what charges could fit the situation, which of those charges are actually indicated by the evidence at hand, and will then lay those charges, sometimes in consultation with crown attorneys. This is not a process taken lightly, especially in serious circumstances. 2. will the presence of a new simpler charge under the HTA not mean that less charges will be laid under the criminal code where appropriate? To believe that this will occur, would mean one would have to believe that the police would become less stringent in their duties and investigative techniques for the expediency of time and effort. This would also indicate that crown attorneys who prosecute would also tend to overlook evidence that would point towards criminal code charges. We will most definitely ask those authorities for their opinion on that issue, and need to be able to provide said answer to the committee. 3. are other interested parties supportive of the bill, e.g. CAA, Ontario Safety League, Ontario Police Association, Ontario Bar Association, etc? We are currently in contact with these various organizations, and will follow up to ensure that they have a proper understanding of what we are trying to accomplish here. We have contacted Toronto Victim Services, and requested they review the bill with an eye for the potential to provide assistance to the families of victims in dealing with their grief. When they can understand that an appropriate penalty is applied to the person responsible for their loss, it may provide some measure of comfort in understanding that justice is done. We note that the Law Commission of Ontario believes that the penalties under the various Provincial Offences Acts are a patchwork, and need a hard look at and revision. They called for a paper on the subject for review of offence sentencings. The paper was written by Rick Libman and reviewed the issues, among others, related to clarification of the purpose of sentencing. For our purposes, a sense of justice, real, and perceived, is a requirement. We note that the Ontario Safety League, some time back had indicated to the Ministry of Transportation that stiffer penalties were required for the HTA offence of careless driving. We are in contact with them to request their support for this bill as it would accomplish what they had wanted some years ago as well. We have contacted the MMIC, asking their support for this endeavor, as well. They represent the motorcycle industry in this province, and loss of customers due to the errors of others has a detrimental effect on their business not only due to the direct loss of a customer, but the deterring effect of such accidents to other members of the public potentially interested in riding. In the 2014 fiscal year, the motorcycle industry in Ontario recorded sales of one billion, six hundred fifty six million, six hundred ninety six thousand dollars. Motorcycles are an important part of the Ontario economy. We have contacted the Motorcyclists Confederation of Canada, asking for their support. We have received their written support, and have forwarded their letter on to MPP Wayne Gates. 4. what are the issues for this bill in respect to absolute and strict liability offences? If you want to go to sleep, try reading the legal documentation surrounding this issue. After reading multiple legal briefs, near as I can determine without talking to a lawyer, is that a strict liability offence is one where the crown need only prove beyond a reasonable doubt you committed the offences for a conviction, but the accused may have a defense, eg, due diligence, such as what a reasonable person would do in the given circumstances. Strict liability has also been defined as liability without showing of fault. Absolute liability is an offence where the crown need only prove the accused committed the offence to obtain conviction, and the accused has little chance of defense, other than attempting to cast reasonable doubt on crowns evidence. Moving violations that generally do not cause an accident are likely absolute liability offences. Strict liability would entail a thought process on the part of the driver, as likely relevant to the offence. In absolute liability offences under the Traffic Act, the mental aspect is removed, and focus is on whether or not the illegal act occurred. These tend to be administrative type offences. The Supreme Court of Canada ruled that absolute liability offences, that carry a potential term of imprisonment, are unconstitutional and in violation of section 7. Reference British Columbia Motor Vehicle Act 1979, 1985 Supreme Court ruling 486. It was determined that an offence cannot include potential for imprisonment if there is no right to a defense. Remember the stunt driving offense I mentioned earlier? Apparently speeding up to 49 km over the limit is viewed as an absolute liability offence, but at 50 km over the limit it magically becomes a strict liability offence as it becomes a "public welfare offence", according to Justice Doherty who wrote the Supreme Court of Ontario ruling. Confusing, yes. Absolute worst case, we may need to remove the prison term provision in the bill to gain its passage without concern for a constitutional challenge. Should such a proposal hit the table we would like to see an increase in the fine and loss of license provisions? We want justice, not revenge. As a rights organization, nothing we do should remove rights from our fellow Canadians, irrespective of our needs, honest intentions, and justifiable motives. Our original proposal was to amend section 214. The actual bill tabled, creates a separate offence if death or serious injury occurs. We need to ensure that the final bill, upon passage, is worded such that a constitutional challenge referencing absolute liability would not be forthcoming. JUSTIFICATION FOR BILL 154: Ontario needs this amendment to provide justice for victims, deterrence for offenders, and fairer treatment under law for all vulnerable road users. This would provide a solution to the problem as we see it. A $500 fine for loss of life is just not appropriate. There is no sense of justice for the families. The families know this, the judiciary knows this and the police officers who have to investigate the accidents and deliver the bad news to families, know this. The government of Ontario has increased the penalties for various offences over the past several years, in response to a need to curb inappropriate and dangerous driving behaviors. Such an increase in penalties also needs to occur, to deter right of way violations, against motorcyclists and others. Fair treatment under law would indicate that speeding or administrative infractions should not carry a higher penalty than an infraction with the potential of causing death. No one type of road user should be prioritized. Actions resulting in fatalities and serious injuries for one group, which then receive appropriate measures under law to help curb such activity, should also see similar such measures to help protect all other road users. The penalties applied and raised over the years to help protect road users and society in general are myriad, but still need work. Each unique type of road user has their own unique traffic hazards, which although shared with other road users, presents a higher specific danger to them, in particular. Some examples would be the left turn in front of a motorcycle, the bicycle "door prize", and the little cars that cut in front of loaded tractor trailers and then emergency brake for a turn off the road. WHAT WE NEED TO DO NOW: We need to contact our respective MPP's and get them to support this bill. We can win this, but the individual MPP's must know that there is public support for the bill. Individually as motorcyclists we need to email, or write to our MPP, and then follow up with phone calls asking for a reply. If possible, and this is the best way, pay them a visit, and request their support. If we do not get the support of sufficient MPP's this bill will not pass. Contact your friends and family and get them to support this bill, by contacting their respective MPP's. I cannot emphasize this enough. We have a very good shot at getting justice for our future fallen riders, but only if we make contact with sufficient numbers of MPP's and get their support. A solid showing at the BRO Fallen Riders Memorial run to Queens Park, the last Saturday in May will also show there is positive public interest in this bill as well. IN CONCLUSION: This has been a long time coming, but we are now closer to success than we have been since 2001, when a similar bill to protect us died on the order table at the election of a new government. As part of the OCC we would like to get the word of this work out to all member clubs, organizations, and associations and the individual members of same. Contact your MPP, a full listing is on the Provincial Legislature web page with contact info, and advise them you want them to support this bill. The squeaky wheel gets the grease. Just take a look at what MADD has gotten over the years! There are over 632,000 licensed motorcyclists in this province, we vote, work, raise families, pay taxes, and deserve the protection this bill can offer. Just imagine the response if even half that number spoke up! It is time to work to ensure this bill passes, and creates a safer environment for all Ontario road users with this very simple, but we believe, effective amendment. It is time to raise the penalty for those who actually cause death, to a level commensurate with those who only have the potential to do so.
Provincial Government Liaison Officer
Proud 32 year member Bikers Rights Organization
Region 22, Sault Ste Marie.
705 649 3316