Special Report: Walkable Streets

Kill a Pedestrian, Pay a $500 Fine

Far from always being 'blamed', the motorist who kills a pedestrian in a crosswalk is almost always given the benefit of the doubt.

By Nicholas Kevlahan
Published March 21, 2013

A recent article by David Nelson, titled "Walking is Not a Crime: Questioning the Accident Axiom", reinforces many of the themes investigated on Raise the Hammer, notably that motorists are almost never charged for killing pedestrians, collisions in which pedestrians are injured or killed are seen as inevitable, and the media often blames the victim.

It is also points out that there are relatively simple solutions to the problem: design roads to engineer in lower speeds and change the law to shift the burden of evidence onto the more dangerous individual in the event of a collision.

Here are some representative quotes:

In 2012, 136 pedestrians were killed and another 11,621 were injured in New York City alone - and in all that time, only one sober, unacquainted driver was charged.

On blaming the victim:

[Media stories assume that]...in this world of unavoidable accidents, pedestrians and cyclists are senselessly putting themselves in harm's way by traversing concrete and asphalt. If they get hit, it is a deserved consequence of their poor decision making.

(Has the author heard of Rob Ford?)

On the mid-century change in media reportage:

This wasn't always the media's modus operandi. In the early 1900s, cars and their drivers were depicted in editorials, cartoons and accident reports as reckless murderers, as grim reapers spreading death across cities and as pagan gods appeased by the sacrificing of children. What changed, mid-century, was that the highway lobby essentially took over the reporting of pedestrian and cyclists harmed by drivers; unsurprisingly, they changed the voice of coverage to presume the innocence of drivers.

On a Vulnerable Users law:

On the policy side, get a Vulnerable Users Law introduced into your state legislature. Vulnerable Users Laws shift the burden of evidence onto the more dangerous individual. Drivers are responsible for cyclists, cyclists for pedestrians.

As the book Car Jacked by Catherine Lutz and Anne Lutz Fernandez points out, in the USA (and Canada) even if you kill a pedestrian or cyclist and are at fault, it is very unlikely you will face anything more serious than a $500 fine.

The only cases that result in serious charges are when it can be proved that you were deliberately trying to run someone down.

Many Cases

There are many cases of drivers in the Greater Toronto and Hamilton Area being sentenced to only the maximum $500 fine after killing a pedestrian in a crosswalk, even when the driver pleads guilty to failing to yield.

According to that linked article, the driver was originally charged with "careless driving", but the charge was reduced because "Police say careless driving is one of the toughest offences under the Highway Traffic Act to prove."

In other words, the penalty for killing a pedestrian in a crosswalk is a $500 fine (and the driver's own remorse).

This shows society's true attitude: lethal "accidents" are a normal part of driving, and drivers can't be expected to pay attention all the time.

Some more examples of drivers killing pedestrians in crosswalks getting off with $500 fines:

$500 does indeed seem to be the normal cost to a careless driver at fault for killing a pedestrian.

Far from always being "blamed", the motorist who kills a pedestrian in a crosswalk is almost always given the benefit of the doubt: they are almost always charged with the minor offence of "failing to yield", with the assumption that no one can be sure why they failed to yield ... but they probably had a good excuse.

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.

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By alhambra (anonymous) | Posted March 21, 2013 at 18:04:02

I'm not sure it's possible to shift the burden the way you want. It's a fundamental principle in criminal law that the state has the burden of proof beyond a reasonable doubt. There might be some civil option though.

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By Ryan (registered) - website | Posted March 21, 2013 at 18:07:56 in reply to Comment 87441

Criminal negligence comes to mind. The guilty act does not need to be a deliberate decision to kill someone, but rather can be the decision to operate a dangerous motor vehicle without exercising the extreme care and attention that such an activity inherently warrants.

Here's what the Criminal Code of Canada has to say:

219. (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

The question is whether a driver who somehow fails to avoid colliding with a pedestrian who is crossing legally is guilty of wanton or reckless disregard for that pedestrian's safety.

Comment edited by administrator Ryan on 2013-03-21 18:14:18

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By alhambra (anonymous) | Posted March 21, 2013 at 18:28:14 in reply to Comment 87442

that might apply, but the burden of proof is still on the crown. The proof wouldn't be about the defendant's intent but their recklessness. So if the driver can show that the facts negate that recklessness they will still win.

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By kevlahan (registered) | Posted March 21, 2013 at 19:39:18 in reply to Comment 87443

This is an important point since one would think the current laws would be sufficient to convict a motorist for running down and killing a pedestrian legally crossing in a designated crosswalk, but they are not. Judges apparently insist on a higher standard of recklessness than they would in other cases of recklessness (e.g. a hunter accidentally shooting someone).

A google search suggests that hunters are very commonly charged with criminal negligence causing death in such cases, e.g. the local example:

http://www.ctvnews.ca/sports/former-nhl-...

I don't understand why running someone down in a cross-walk is less negligent than firing a gun across a field without being sure no humans might be hit, but traffic fatalities do seem to be considered differently!

However, many countries have shifted the burden of proof to the motorist in such cases, just as it seems to be for hunters:

Sweden has stricter liability rules for drivers involved in collisions with pedestrians, and it has also adopted a special policy that specifically states that serious injuries and deaths are never acceptable: http://www.visionzeroinitiative.com/

"Vision Zero is conceived from the ethical base that it can never be acceptable that people are killed or seriously injured when moving within the road transport system"

"It involves altering the emphasis away from enhancing the ability of the individual road user to negotiate the system to concentrating on how the whole system can operate safely."

http://www.fhwa.dot.gov/publications/res...

Comment edited by kevlahan on 2013-03-21 19:41:49

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By a (anonymous) | Posted March 21, 2013 at 20:23:51 in reply to Comment 87447

The problem is we allow drivers to drive legally at excessive rates of speed around vulnerable people.

is there possibility of imprisonment in Sweden? There are no strict liability offences in Canada that result in imprisonment.

btw In the link you posted the hunter was only charged, not convicted.

Anither option is to increase the penalties for negligent driving, as well as potentially far higher fines for traffic violations.

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By Ryan (registered) - website | Posted March 21, 2013 at 18:32:32 in reply to Comment 87443

I'm inclined to think that hitting and killing a pedestrian who was on the street legally is prima facie evidence of negligence.

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By alhambra (anonymous) | Posted March 21, 2013 at 19:35:33 in reply to Comment 87444

It's troubling to dispense with proof the way you want. The risk is putting people away who were neither reckless or negligent. I'm also sure there would be lots of situations where both parties behave legally yet accidents still happen. A delivery truck blocks the view of the crosswalk; the crosswalk was badly designed; the driver experienced a seizure.

I'm also not sure it matters that the victim is a pedestrian. A dumptruck can roll through a red light and kill a carload and similarly not be found criminally guilty.

There is a standard of departure from an objective standard that defines negligence. That standard needs to be defined increasingly in the favour of safe conduct. Yet this is impossible to change until the street design correlates to safety.

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By Ryan (registered) - website | Posted March 21, 2013 at 19:41:58 in reply to Comment 87446

Perhaps we should start charging traffic engineers with criminal negligence. (Yes, I'm being facetious here.)

I'm certainly not suggesting anyone should be convicted of a crime without a presumption of innocence and a fair trial. However, if a pedestrian is crossing the street legally at a crosswalk and a driver hits that pedestrian hard enough to kill them, that is itself pretty strong evidence to indicate the driver was not paying careful attention.

Given that failure to pay careful attention predictably results in pedestrian deaths and is broadly understood to do so (every single driver learned this during their driver training), there is a case to be made that it qualifies as criminal neglicence when it does lead to a death.

The problem is that this case is almost never made - not by the police and not by prosecutors. Instead, we observe a pervasive blind spot in which the occasional dead pedestrian is regarded merely as part of the cost of doing business. That attitude needs to change.

None of this, of course, is to suggest that we should hold drivers accountable without also insisting that streets are designed to be inherently safer than they are today.

Comment edited by administrator Ryan on 2013-03-21 19:43:02

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By dsafire (registered) - website | Posted March 21, 2013 at 19:54:08

NYS classes it as either a Class B, C or D felony, depending on the circumstances. Aggravated Vehicular Homicide, the class B charge (the heaviest, for DUI cases and multiple offenders), carries a sentence of 5-25 years. It all comes down to what you get sentenced with, and proof of wrongdoing. It's very difficult to get proof that a driver was just not paying attention, so most of them get off. :(

http://ypdcrime.com/penal.law/article125...

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By Today (anonymous) | Posted March 21, 2013 at 20:31:00

A few minutes ago I witnessed on a Hamilton street near an interesection, lots of traffic and going slowly, just after a crossing guard assisted some school children to cross the intersection, some kid whips off the sidewalk on his bicycle over the curb right out in front of the vehicles close to the intersection and from what I saw didn't look much. Now whose fault is it if the kid gets killed and the driver insists they were paying attention and was going slowly?

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By z jones (registered) | Posted March 22, 2013 at 02:17:42 in reply to Comment 87451

Read the article again. It's about when the pedestrian is following the law and the driver is fully at fault.

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By AnjoMan (registered) | Posted March 22, 2013 at 15:36:54

Its interesting to me that whenever we talk about urban cycling, the conversation inevitably includes several anecdotes about cyclists flaunting the law and riding dangerous - though no one can specify concrete measurements of what effect these as actions have on road safety (i.e. accidents, injuries, deaths) beyond how mad and outraged they were about that cyclist. Meanwhile,we have measurable proof that drivers who kill and injure pedestrians through negligent driving are getting just a slap on the wrist. Its interesting what gets people upset and what gets easily overlooked.

Comment edited by AnjoMan on 2013-03-22 15:45:06

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By Today (anonymous) | Posted March 22, 2013 at 17:00:11

If it's negligent driving that kills a pedestrian, cyclist, skateboarder etc. then no question the full penalty of the law should prevail. I wasn't suggesting otherwise, of course.

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By jimh (anonymous) | Posted March 23, 2013 at 00:39:36

And try to sleep every nite living with a lifetime of regret. Ssshhh what do you want to happen to the driver??? What do you want to happen to the person responsible for an accidental workplace death??? Its an accident! Your hate for cars has gone too far.

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By Duke of Earl (anonymous) | Posted March 23, 2013 at 11:23:54

Comments with a score below -5 are hidden by default.

You can change or disable this comment score threshold by registering an RTH user account.

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By nickpas (registered) | Posted March 23, 2013 at 22:35:06 in reply to Comment 87477

Wow. Unproductive comment.

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By AlHuizenga (registered) | Posted March 25, 2013 at 14:34:02 in reply to Comment 87480

It's the classic response of the ignorant to someone advocating for positive change: "Get a job, you bum!"

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By nickpas (registered) | Posted March 23, 2013 at 22:42:50

Although this article shocks me, I'm questioning its implications. Do we charge drivers who hit and kill a pedestrian with man slaughter? Jail time? I don't think punishment will solve anything. Accidents happen...by accident. Carelessness, yes. But still accidents. Increased level of punishment would likely have little impact.

This is precisely when the discussion of DESIGN should begin. You can design a street to slow traffic without having people even realize they're going slower. Main Street in Hamilton is designed for high speeds. James Street North is beginning to be design for slower speeds. We need to completely rethink our streets before we consider bandaid solutions of punishment.

RTH has been an advocate for this position, so I'm seeing this article more as an informative 'ooh..wow' piece more valuable for its role in inciting discussion than suggesting jail time for drivers involved in pedestrian deaths.

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By Kiely (registered) | Posted March 26, 2013 at 16:53:12 in reply to Comment 87481

Agreed. Some people are bad drivers, no doubt, but they obtain their licenses from government approved facilities, the government wants us to drive and makes it relatively easy to do so.

Bad drivers can kill people through actions that are not necessarily negligent or reckless. So I would prefer not to have to throw bad drivers in jail.

Perhaps obtaining your license and retaining it when you screw up needs to be a bit more difficult?

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By michel (registered) | Posted March 24, 2013 at 00:29:39

How about losing your licence for life if convicted?

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By michel (registered) | Posted March 24, 2013 at 00:35:06

Here's something I kept after writing to the Attorney General of Ontario about the cheap price put on life by our laws:

Speeder gets no jail time in death of two women the second of two brothers received an 18-month conditional sentence Wednesday for his role in the horrific crash near Bolton.

Machado’s sentence, handed down by Justice Michael Tulloch, includes nine months of house arrest, a nine-month curfew from 9 p.m. to 6 a.m., followed by three years’ probation. The sentence comes with driving restrictions which allow him to drive to and from work, to medical emergencies, to attend religious services and two hours for personal matters on the weekend. Osborne’s wife, Maria-Rosa “Mar” Dalsass, 44, of Palgrave was killed along with her best friend. Cynthia Dougherty, 49, of Beeton, on Oct. 6, 2007.

Last year, Machado’s younger brother, Steven, was sentenced to 22½ months in jail for two counts of criminal negligence causing death and he received a 10-year driving ban.

http://www.thespec.com/news/ontario/arti...

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By alhambra (anonymous) | Posted March 24, 2013 at 01:17:42 in reply to Comment 87483

I agree, lifetime driving ban. Those restrictions are laughable.

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By tradesman (anonymous) | Posted October 08, 2014 at 20:54:00

ok yesterday my mother was hit in a marked crosswalk ... i hate the damn excuse i didnt see her .. i bet if cell phone was checked it would prove that at the time of the accident a trext might have been sent ... my mother is in the icu with servere brain injury wheres the person who hit her we have no clue

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