Should we treat all impaired drivers like killers?


Last week, in the context of the tragic impaired driving case in which Marco Muzzo, a member of one of Canada’s wealthiest families, caused a collision that killed three young children and their grandfather in Vaughan (http://www.theglobeandmail.com/news/toronto/man-charged-in-deadly-vaughan-ont-crash-to-be-tried-by-judge-only/article28032114/), former CBC journalist Mark Bulgutch authored an op-ed in the Toronto Star (http://www.thestar.com/opinion/commentary/2016/02/16/we-arent-punishing-drunk-drivers-nearly-enough.html).

 

The piece is not particularly novel; Mr. Bulgutch largely repeats the arguments that are common following a high-profile impaired driving case such as the one involving Mr. Muzzo.

Mr. Bulgutch’s main point is that punishment should primarily focus on the criminal act as opposed to the combination of the criminal act and the ultimate result of that act having been performed. He decries that “the system is punishing people not for what they did, but for the consequences of what they did” and calls harsher treatment of impaired drivers who, for instance, may have “had the good fortune not to [blow through a stop sign] when another vehicle was in the intersection” (http://www.thestar.com/opinion/commentary/2016/02/16/we-arent-punishing-drunk-drivers-nearly-enough.html).

 

Regardless of the fact that the criminal sanctions Mr. Bulgutch references in his article are quite incorrect (the minimum sentence for a first-time impaired driver is in fact a $1,000 fine—plus a substantial victim-fine surcharge—and a 1-year driving prohibition; also, there is mandatory jail time—actual jail—for subsequent impaired-driving offences), his argument overlooks some other significant realities.

First and foremost, impaired driving and impaired driving causing death are distinct offences in the Criminal Code, in the same way that assault and manslaughter are distinct. Punching someone in the head (assault) can also quite possibly lead to death—does this mean that we should punish everyone who is guilty of simple assault as harshly as we punish those who are guilty of manslaughter?

Of course not, despite the fact that—according to Mr. Bulgutch’s logic—the moral blameworthiness for someone landing a single punch to the head would be the same, regardless of whether that punch resulted in essentially no injury or whether that punch, by fluke, ended up resulting in death. In addition to the fact that such an approach would be completely unfair and contradictory to our principles of sentencing, who would be willing to pay for all of the costs—both visible and invisible—associated with incarcerating thousands and thousands of people found guilty of simple assault each year?

On this point, it is helpful to employ a hockey analogy. The vast majority of infractions in hockey result in the imposition of a two-minute (minor) penalty. For instance, if a player trips an opposing player, he/she is likely to receive a minor penalty. But if the opposing player is injured as a result of the tripping infraction, the offending player’s penalty is automatically upgraded to a five-minute (major) penalty and a game misconduct, which will often lead to a suspension. While it’s rare to receive a major and a game misconduct for tripping, it’s certainly possible; every time a player commits an infraction, that player risks significant sanction, depending on whether the victimized player is injured by the offending action. Just as in hockey, results and outcomes matter in the context of the criminal justice system.

As I have written in the past, it’s also important to bear in mind the steep costs associated with having a criminal record. Being convicted of an offence can have an extremely limiting effect on one’s career, family life, and travel/leisure activities. These impacts cannot be overstated.

Additionally, while our society is finally starting to recognize the seriousness of mental health issues (at least in some forms), we seem to still struggle with the notion of viewing people with addictions issues who commit offences as having somewhat less moral blameworthiness than “normal”, “healthy” people who commit offences. (“They brought this on themselves” seems to more or less be the common response if someone steals in order to fuel a drug habit, for instance, because he/she was the one who tried drugs in the first place.) This overlooks the fact that most people who become addicted to alcohol or drugs were likely struggling with a mental health issue (whether diagnosed or not) in the first place, before turning to “self-medicate” with booze or drugs. (Certainly, not all drunk drivers are alcoholics, but I suspect that a large number are.) This does not excuse the criminal behaviour, by any means, but it certainly can help to view the actions in context and can, in some cases, be viewed as a mitigating factor at a sentencing hearing.

Mr. Muzzo will no doubt receive a stiff jail sentence for his actions. On the civil side, he will also likely end up having to pay a large amount of money to the victims’ family members. While Mr. Muzzo deserves these penalties, they will never bring the victims back to life. Nor will they ease the family’s pain.

Multiple lives have been ruined by Mr. Muzzo’s actions—including his own.

 

Section 718 of the Criminal Code outlines the principles of sentencing:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

 

There is a fine line between some of the principles listed and vengeance—but it is vital to bear in mind that the criminal justice system is not focused on the notion of “retaliation.” Nor should it be. Vengeance is rarely a positive motivating force. Moral panic—and public outrage—should not dictate outcomes in the criminal justice system. After all, to quote another journalist (Howard Cosell), “What’s right isn’t always popular. What’s popular isn’t always right.”

Is our present system perfect? Absolutely not. But it is infinitely better than a system that is driven primarily by popular opinion. Knee-jerk reactions should have no place in the realms of criminal law or public policy.


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.