Justice for Tom? Not from our Criminal Justice system

uriandgita

Uri and Gita Samson hold a photo of their son, Tom, while speaking to the media following the sentencing hearing for the driver who hit and killed their son.

Justice for Tom? Not from our Criminal Justice system

by Tammy Thorne

In a future utopian society I imagine a world where the punishment fits the crime.

In the world we live in today, this is apparently not the case. This cruel reality was evidenced yesterday, January 12, 2016, when, after three years of legal wrangling and waiting, the Samson family finally found out what the sentence would be for the man who killed their son. Teacher Tom Samson was waiting to make a left turn at Davenport and Lansdowne when he was hit from behind by a motorist who fled the scene and did not turn himself until 40 hours later – as the police were starting to close in.

Both Davenport and Lansdowne have bike lanes (although Lansdowne is mostly sharrows as the city is unwilling to remove on-street parking.) Tom was an experienced and careful cyclist on his way to breakfast before heading to the elementary school where he taught.

When this horrible crash first happened, the police were quick to jump to judgment and wrongly believed and stated in their report the cyclist was running a red.

The Samson family then spent their savings to hire a lawyer to set the record straight. Police later conceded that Tom was stationary, or near stationary, and in the westbound lane. Due to either systemic police bias or the push to get traffic moving again the questionable investigation forced the family to take on the extra burden of clearing their dead son, father, and husband’s name.

The final sentencing, which happened yesterday, came three years after the tragedy. Since the driver fled the scene the police were at a distinct disadvantage in making their initial findings, although the quick broadcasting of the claim that Tom was going through a red light remains very questionable.

Ultimately, the driver was only charged with “failure to stop at scene of accident.”

After three sentencing “hearings” and multiple delays, the judge gave her decision yesterday.

She noted that the accused had a bad driving record (including driving without insurance and multiple speeding tickets.) She noted that he would have known that he had hit Tom due the substantial damage done to his vehicle. She also noted that she could not take into account that he had killed Tom in her sentencing as the accused was only charged with leaving the scene. (This phrasing by the judge is rather curious since it’s clear that the motorist’s car hit and killed Tom. What was not established for the purpose of the conviction was whether the motorist was legally at fault for the collision.)

This weak sentence sends a message to potential perpetrators that if you commit a crime with your vehicle, ie driving impaired and hitting someone, and you want to get away with it – leave the scene and don’t turn yourself in until you’ve sobered up.

We need to change the way the law treats this crime. Leaving the scene is treated differently in other jurisdictions. In Florida, for example, ‘leaving the scene’ gets a similar minimum sentence as ‘driving under the influence.’

Under our Criminal Code (s. 252), the maximum sentence for failing to stop at the scene of an accident is life in jail. There is no minimum.

In this case, the Crown v. Miguel Oliveira, the penalty requested by the Crown was 12-18 months of jail time.

Instead, the driver, Oliveira, who killed Tom and fled the scene, received only six months in jail. This sentence was reduced by half to take into account the existing bail conditions, which included a loose form of house arrest. Each weekend counts for four days (the accused turns himself in on the Friday night and leaves on Monday morning), so Oliveira is likely only to spend about 15 weekends in jail (since the full sentence is usually not served). He will be able to drive again in two years.

I don’t want this man behind the wheel of a car on my streets.

I do want legislative change, so that we no longer send the message that you are more likely to get away with a crime, like impaired driving causing death, if you flee the scene. I’m not suggesting Oliveira was drinking (there’s no evidence of this one way or the other) but what’s clear is that a driver who is impaired and kills someone is encouraged by this short sentence to flee the scene to sober up.

I also want systemic change in the way police treat vulnerable road users, by implementing laws like a Vulnerable Road User law at the provincial level to remind drivers --- before they get into a car --- of the potential lethality of their motor vehicles to fragile human bodies.

Finally, I think the legal system needs to take a hard look at the use of the word “accident.” Using this word from the outset reflects a bias – that there was no fault on the part of the motorist.

Accident, to me, means something that could not have been prevented.

At a minimum, the law should be amended to read “failure to stop at the scene of collision” from “failure to stop at scene of accident.”

In this case, since we don't know the actual cause, I do not understand how the court, and the Criminal Code, can refer to it as an accident.

Constable Clinton Stibbe of Toronto Police Services (TPS) helped me to understand. He noted that the Ontario Ministry of Transportation (MTO) started using the more accurate term – collision – a few years ago which is now reflected in the TPS's reporting methods.

“Every collision is a collision not an accident, ‎but that being said the HTA and Criminal Code of Canada call a collision an accident. The original name of the report used to record collision information was called an accident report, it is now called a collision report,” said Stibbe, noting that the name changed happened about four years ago. “The HTA and Criminal Code however still call it an accident in relation to charges laid before the court, this is similar to not guilty or innocent, the Criminal Code and HTA never use the term innocent, they do however use the term not guilty.”

Like I said, I’m not a lawyer, I’m just an editor. And there are many definitions for “accident” in the Canadian Oxford Dictionary. The first one being: “An event that is without apparent cause” followed by “an unfortunate event esp. one causing physical harm or damage, brought about unintentionally.”

My issue is that we do not know that this collision was without apparent cause or whether it was careless or reckless. We just don’t know. It wasn’t explored in court. The driver fled the scene. Why did he flee the scene – and continue work for the rest of that day? He would’ve seen the news reports. Why try so hard to cover up what happened? Was it simply because he had a bad driving record and he needed to drive to perform his job, so he just didn’t want to lose his job? Or was it because he was speeding, dozing, adjusting the radio, on the phone, or impaired. We will never know why he took so long to turn himself in. And, so, I ask again: Why is the court allowed to refer to this as an accident?

So many unanswered questions. Here’s one we can answer, though.

What’s the moral of this story?

If you drink and drive, or drive distracted, and then hit and kill someone and want to get away with it, flee the scene and (if you are caught or turn yourself in) you’ll get off with the proverbial slap on the wrist.

I do find the short length of the jail sentence disgusting. A life is worth more than 15 weekends in jail.

But as Tom’s father Uri said: No length of sentence will bring his son back.

Now, we must work for change. The law around “fail to stop at scene of an accident” must change.

Ultimately, the minimum charge for leaving the scene of a collision must be upped to meet the minimum threshold of driving while impaired. We don’t know why Oliveira left Tom to die; what we do know is that the sentence sends the wrong message to any impaired driver who hits someone on the road. This alone is enough to change the law.

 

Related on the dandyBLOG:

Motorist to be sentenced in hit and run death of Tom Samson

Coalition pushes for law to protect vulnerable road users

Vision Zero: Toronto needs a road safety plan

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