Driver suing dead person she killed.

The BBQ Pit
81

Just some thoughts:

1. Alcohol: The article from the Ottawa Citizen linked up-thread states (on the second page) that a road-side screening device test was administered to the driver, and “registered zero alcohol content in her blood system.” Given that screening test, the officers had no grounds to ask for a more thorough breathalyzer test at the police station. The road-side devices aren’t as precise as the breathalyzer test, but a reading of zero is pretty significant.

2. Cell phone: was there any evidence, available to the police at the time of the accident, that the driver had been using her phone at the time of the accident? Canada, just like the US, has constitutional prohibitions on unreasonable searches and seizures. If the police did not have any evidence that she had been using the phone at the time of the accident (and I’ve not seen any mention of that in the news articles, just speculation; please correct me if I’m wrong), they did not have grounds to seize her phone on the scene, nor would they have been able to get a search warrant to seize it.

3. Leaving the Scene: how many times have we seen it posted, right here on the SDMB, that if detained by the police, it’s always open to ask, “Am I under arrest, or am I free to go?” The police have the power to detain to take witness statements, and usually the first witness they would want to interview is the driver of the car. If they had taken her statement, and they did not have grounds to arrest, I don’t see any basis to hold her if she asked that question. It may have taken longer to take the statements from other witnesses, simply because of the priorities of securing the scene, tending to the injured, and taking a statement from the driver (if she gave one; I haven’t seen anything one way or another). But, with a zero read on the road-side screening device, if she asked that question, the police may have been required to let her go: like the US, Canada has constitutional protections against arbitrary detention.

4. Police Don’t Rule on Negligence Issues: it’s not relevant to a civil suit that the police declined to lay a criminal charge. Criminal charges are based on intention or recklessness, not simple negligence, and have to be proved beyond a reasonable doubt, not balance of proof, which is the test in a civil suit.

5. Court costs: standard in civil matters in court cases in Canada, and usually includes some portion of lawyers’s fees.

Usual disclaimer that none of this is intended as legal advice, simply to comment generally on a tragic matter that is raising public discussion. My heart goes out to the parents of the kids.

82

I found that rather confusing as well.

83

Not sure if you guys have seen this yet:

Un-freakin-believable.

84

Might want to read the court’s decision first to see if it is rational or not before ranting about irrationality. Oh, wait a minute, the matter has not even been heard yet, let alone a decision made.

You have the wrong law. Wrong jurisdiction, actually. Have a boo at Ontario’s Highway Traffic Act.

85

I was responding to Finagle’s (Location: Somewhere near Boston) ranting against cyclists; therefore, it appears that Mass law was the correct one to be cited for his local jurisdiction even though this incident happened in Canada.

86

I remain confused about the victim’s older brother. There is some controversy about whether he was in the group of riders that was struck by the SUV. I don’t believe he was. But there doesn’t seem to be any conclusive answer to this yet.

But, more importantly, I’d like to understand why he is dead? I would guess that he was extremely despondent about the death of his younger brother and got into the very unhealthy habbit of taking prescription drugs and either intentionally or unintentionally overdosed and died. If that is true, it may well be impossible to ever learn whether he died intentionally or unintentionally. It just seems to me there is still a whole lot of facts about this story that have not yet been brought to light.

I would also very much like to find out what would normally happen to someone who was driving an SUV and struck a group of bicycle riders and one of them died. How would the driver be treated at the accident scene? How would that differ from the way this driver was treated owing to the fact that her husband was a cop and was present at the scene?

That aspect of the story seems to me to be one of the most interesting and unfortunately, under Canadian law, it is very unlikely the public will ever learn the truth. Why? Canadian law is very different from American law in several aspects. One of which is that if it becomes known that a police person or other government official gets caught lying or cheating in a case like this, that will rarely come out in the public arena. It is usually settled fairly, but behind the scenes.

I say this because I recall one case in particular in which the police were caught red handed lying in court. The defendant wanted his lawyer to ask them about what they said and did on cross-examination and then play some tape that proved they were lying. The defendant’s lawyer told him that is not how things are done under Canadian law. The tape was played privately for the judge and both sides then agreed to settle the matter in a fair way. The cops got what was coming to them. But it was all done very privately. Instead of the cop or cops getting fired and going to jail, they were forced to resign and pay a bunch of fines and suffer a bunch of other consequences.

I’m very sorry that I don’t recall hardly any more details of this case. But I do recall the name of the defense lawyer was E. Greenspan who is one of Canada’s leading criminal lawyers. I suspect it might take me a long time to try and find the names of the people involved in this particular case. But if any Canadian criminal lawyers are asked, I would guess they could find out in a much quicker time.

I believe I first read about this case in some Law School textbook. But I honestly can’t be certain of that.
The most important point made was when the defense lawyer said words to the effect that in Canada, it is just not done to “ambush” police officers by asking them something under oath and then showing the court evidence they have lied.

Instead, that is revealed in closed quarters to the judge when both sides are present and then they all agree to a fair settlement of the matter. The police people get treated just as if this was made known publicly. But the public humiliation is avoided. I guess the reason is that the people in the legal system figure that it is just no good for anyone involved and the justice system works a lot better when that kind of thing is avoided.

Personally, I don’t necessarily agree with that and I’m not trying to say that one country’s judicial system is any better or worse than the other. I guess that I would tend to disagree with “shielding” police officers in that way. But I don’t know enough about the justice system or the criminal law to make any kind of reasonable decision.

I would love to hear what some Canadian criminal lawyers have to say about it, however.

87

I’m virtually certain this happened in Canada and not in the USA. I recall the news stories on this event and all the stories I saw were very clear that it happened about 30 or 40 miles north of Toronto.

One such story may be found here:

It says:

“Brandon Majewski, 17, Richard McLean, 16, and Jake Roberts, 16, were riding their bikes along Innisfil Beach Rd. around 1:30 a.m. on Oct. 28 when the accident occurred.”

Innisfil is a small community about 30 or 40 miles north of Toronto (but I’m just guessing at those numbers after looking at a map). I am certain that Innisfil is north of Toronto because I have been there.

88

Let’s unpack that.

First, the counterclaim was made in response to a claim. That means that the deceased’s family and the driver’s insurer could not come to terms on settling the matter without litigation. By moving it to litigation, it exposed the driver to the very real possibility of damages in excess of her coverage. When faced with that, a reasonable strategy is to counter-attack, in hopes that it will encourage the opposition to come back to the table and negotiate a resolution palatable to the driver’s insurer.

Second, it may very well be that the accident has had a debilitating effect on the driver, so if fault is found, then yes, damages could be awarded, but since the deceased youth did not have insurance or assets, the counterclaim also dragged in third parties to whom liability might have been attached. Note that it has been a year and a half since the incident, which is enough time to indicate if the emotional damage is severe.

This is basic stuff in MVA litigation. What makes it exceptional is that it was a youth on a bicycle who was killed, rather than a adult driver of a car toddling along in the middle of the lane at night without lights, and that the woman counterclaiming alleges severe emotional trauma rather than busted body parts. In other words, it is the optics of the situation that are offensive, despite the counter-claim being reasonable at this point in the case.

Personally, I’d say “Suck it up, you killed a child,” and would not recommend a counterclaim unless the driver clearly is suffering from severely debilitating PTSD, for the admission of going slightly over the speed limit could be enough to apportion enough liability on the driver to negate possible gains. Better for all parties to grieve and heal, rather than to continue to pick at the wounds in litigation.

In short, there very well could be something to the counterclaim, so on this one I’ll wait to read the eventual judicial decision before assuming that the driver is way out of line.

89

Charlie, it is important that juries not be biased. One way of avoiding bias is for the court to prohibit improper submissions being made to the jury. When the lawyers cannot agree between themselves what is or is no proper, they speak to the judge about it. In Canada it is called a voire dire, and it is not done in front of a jury, for that would defeat it’s purpose of trying to avoid jury bias.

Conceptually, think of it as an American motion in limine.

As far as the driver and her husband being questioned before other witnesses who came upon the scene, that has nothing to do with the husband being a police officer, and everything to do with the importance of getting information out of her as soon as possible rather than later when she might have time to misremember or to concoct a story.

90

Thank you, Muffin.

Would you happen to know of any evidence that would demonstrate whether I am correct or mistaken about Canadian courts operating differently than American courts when it comes to “ambushing” a police officer and instead, settling the matter in a voire dire privately?

I’m feeling frustrated that I can’t remember any of the details of that case I referred to where Edgar Greenspan explained how the Canadian Courts differ from American Courts and I’d really like to re-read the details of the case and just what the police officers supposedly did and how they behaved improperly.

91

You can’t “ambush” anyone with impeachment evidence in any common law jurisdiction. The tape in your example would have been inadmissible hearsay, and there are certain procedures required to admit impeachment evidence. You can’t go through all those procedures in front of a jury (assuming they haven’t been addressed before trial) because then they’ll hear the evidence whether or not it is ultimately admissible.

92

Yes, Innisfil is a township about an hour north of Toronto, directly south of Barrie. Innisfil Beach Road is the last exit in Innisfil off Highway 400 before Barrie if you’re coming north from Toronto.

Media tends to describe cities in Ontario in relation to Toronto as a reference point.

93

What RNATB says.

Specifically, in Canada we apply the rule found in Browne v. Dunn, which sets out that if you want to present evidence to impeach someone, you have to present it to the person while they still have an opportunity to respond to it, rather than ambush by them by presenting the evidence when it is too late for them to respond. The rule is reflected in section 11 of the Canada Evidence Act.

In Canada we also have a production/disclosure rule (primary developed out of R. v. Stinchombe) that requires, upon request by the defendant, that the Crown Attorney (the prosecutor) and the police produce/disclose to the defence everything in their power or control that is relevant to the case, so that the defendant will know the case against him/her and be able to put together a defence.

Charlie, I don’t know which Greenspan case you are referring to, but if it was reported, there is a good chance that it might be in the CANLII database.

94

Toronto is the centre of the universe (in it’s own mind, that is). :wink:

95

Charlie,

I think you may have a slightly garbled version of what Mr Greenspan was saying.

As Muffin points out, there are rules governing the use of something like a tape to challenge a witness. The cross-examining lawyer has to give the witness ample opportunity to recall the conversation or events in question, and only then can counsel use evidence of a previous inconsistent statement in court. And, there may be a need to prove the accuracy of the tape; is it really the witness speaking?

However, if those procedures are properly followed, then the tape can be used in open court. The general rule is that everything that happens in court has to be open.

It doesn’t matter if the witness is a police officer or other government official. Just like any other witness, they testify in open court, on the record. That doesn’t change if something comes out that puts the police officer or government official in a bad light. In fact, all the more reason to have that done in open court: the accused, the jury, and the public have the right to know what public officials are doing, particularly in an allegation of misconduct.

I’m open to correction from American dopers, but I would say that our courts put more emphasis on this principle than US courts.

We don’t have sidebars or “may we approach the bench” here. If counsel has something to say, counsel says it from the counsel table. Everyone in the court room can hear, and it goes on record. There may sometimes be something that needs to be said without the jury listening. That happens before the jury is brought in, or counsel may simply advise the judge that there’s something that needs to be discussed in the absence of the jury, and the judge then will direct the jury to leave. Once they leave, the discussion occurs, again in open court, with the public present, and on the record.

Nor do we have conferences in the judges’ chambers. Everything relating to the discussions between the judge and counsel occurs in open court.

Now, if a police officer’s conduct is brought into question in a trial, that may trigger disciplinary proceedings against the officer. Those are separate from the criminal case where the officer was a witness, and some parts of that proceeding may not be in public, but that’s separate from the criminal trial.

96

I would say you are correct; after all, we do have sidebars (particularly on admission of evidence.)

97

[QUOTE=Charlie Wayne[
I would also very much like to find out what would normally happen to someone who was driving an SUV and struck a group of bicycle riders and one of them died. How would the driver be treated at the accident scene? How would that differ from the way this driver was treated owing to the fact that her husband was a cop and was present at the scene?
[/QUOTE]

Well, as I posted earlier, police have the power to detain for an investigation, asks questions, and so on. If they have any reason to think the driver of a vehicle has been drinking, they can demand a breath sample for a road-side screening device. They did that in this case, and apparently got a zero reading.

If there’s no evidence of alcohol, then it’s much harder for the officers on the scene to assess whether the individual’s driving was a criminal offence. I would think in that case, they would have to wait for a forensic report from accident reconstructionists, which would take some time. And, as I mentioned earlier, the police cannot detain someone indefinitely while they do their investigation. If they don’t have grounds to arrest, they have to let the individual go home.

With respect to your second question “How would that differ etc”, it seems to me that you’re already assuming she was treated differently because her husband was there and was a cop. What evidence is there of any difference in treatment?

As Muffin posted, we’ll have to wait for evidence to come out in court.

ETA: oops - I was responding again to Charlie’s questions about how a driver in this type of case is normally treated by the police. Thought I’d quoted him, but it dropped out somehow.

98

Really Not All That Bright, are there really sessions in the judge’s chambers, or does that just happen on TV?

99

That depends on the jurisdiction and type of practice, I think. I vaguely recall one of our US attorneys saying he’d never seen or heard of a chambers conference in real life. I know the family court judges around here hold them but I’m fairly sure there aren’t any in tort cases and the like.

100

IF she actually said that in a way that can be reported in court, even in a civil court, that makes all the difference. We can argue as much as we like about whether bike reflectors make bikes visible etc, but she’s impying that she did see them - end of court case.

I do sometimes live in fear of something like this happening when my GF’s driving and idiots walk or cycle or drive out in front of us. But if we were on a country road at night we’d go way under the speed limit, not go above it, and if it was raining we’d go even slower. That way we’d be more likely to see other road users. Speed limits are just that - the maximum speed you can drive at. They’re not a target. We do everything we can to ensure an accident doesn’t happen even if the other party is partly at fault.

Driving over the speed limit at night in the wet is not doing that. Any PTD the driver has is because she did not drive safely enough. If she had driven signficantly under the speed limit (which would be reasonable at night and in the weather) the accident would either not have happened or she would have less guilt about it.

If the driver admitted to driving over the speed limit even in those conditions, why was she released without charge? That’s baffling.