More careless driving charges dropped in Ontario as courts grapple with pandemic backlogs

After Meredith Wilkinson lost her right leg six years ago — a garbage truck hit her and dragged her under its front tire — she had to go through driver retraining to get her licence back.

But the driver who turned into her in a Toronto bike lane wasn't required to do any training at all.

"I had to undergo [retraining] and that made sense to me, there was something that had changed physically to me and there's checks and balances," she said. 

"But it's just shocking that the driver who did that to me, they would not have to do that sort of driver retraining as of right now."

Wilkinson, a transportation engineer in Toronto, wants that to change. She wants to see a provincial NDP bill that would amend the Highway Traffic Act (HTA), become law. 

If enacted, the Moving Ontarians Safely Act would subject any driver convicted of an HTA offence who seriously injures or kills a pedestrian, cyclist or others outside of a motor vehicle to a probation order which would suspend their licence.  

The probation order would require the convicted driver to take a driving instruction course and perform driving safety-related community service before getting their licence back. The bill has passed first reading the Ontario Legislature.

"If a driver did that to someone, you'd want them to become a better driver, right? And how do we make them a better driver? It might not be putting them in jail or charging them a lot of money," said Wilkinson. 

"Maybe more of these charges will stick because it's more reformative."

In Wilkinson's case, she says the driver was charged with careless driving at the scene, but paperwork wasn't filed correctly so the charge couldn't proceed in court. The amendments wouldn't affect someone in her exact situation. 

But thousands of other careless driving charges in Ontario have recently been dropped and, in some cases, pleaded down. The amendments would affect at least some of those cases.

CBC Toronto reviewed Ontario Court of Justice statistics which show the number of careless driving charges laid both across the province and in Toronto specifically have gone down in recent years and that the percentage of those charges withdrawn before trial has skyrocketed. 

Such charges laid in Ontario have dropped by 27 per cent, or by almost 10,000 between 2015 and 2022.

In that same period, the number of those charges withdrawn before trial across the province increased by 374 per cent, with 5,139 more charges withdrawn before trial in 2022 compared to 2015.

Similarly, in Toronto, the number of charges laid dropped 39 per cent and the number of charges withdrawn before trial rose by 52 per cent in that same period. 

More charges are being dropped or pleaded down to a lesser charge by under-resourced prosecutors who are facing enormous backlogs coming out of the COVID-19 pandemic, say legal stakeholders representing both drivers and those injured.

"It's a system that has been overburdened," said Toronto lawyer Patrick Brown. "Especially with COVID, you need to put more prosecutors in and give them more funding in order that they can properly prepare a case."

Brown has more than 25 years experience with HTA offences through his work representing personal injury clients from automobile crashes. He says the stats are not surprising. 

"The system is broken," said Brown. "The entire system seems to be handcuffed against having any real conclusion to these charges that could send any meaningful deterrent so people stop doing this type of behaviour."

Brown says previous attempts to crack down on careless driving by increasing fines and jail sentences have backfired and resulted in drivers fighting the charge more aggressively. He says that means "more and more will plead down to a lower thing because the system is overloaded."

Cities, province both prosecute HTA charges

In most Ontario municipalities, HTA charges are prosecuted by a combination of city prosecutors and provincial Crown attorneys. In Toronto, the province largely handles more serious charges — when the accused is issued a summons to appear in court and not just a ticket, according to the city. 

A spokesperson for Ontario's Ministry of the Attorney General, for which Crowns work, said the ministry can't comment on the outcomes of cases. 

"In general, we can advise that the Crown will consider the individual facts, circumstances and available evidence in a case when taking a position on resolution and when recommending an appropriate sentence to the Court," said Maher Abdurahman in a statement. 

"Our focus is to ensure that our existing protections work effectively to change the behaviour of offenders and reduce the risk for all road users."

A spokesperson for the City of Toronto said it does not comment on judicial outcomes, but acknowledged the pandemic's temporary closure of courts caused some backlog and delays across the province. 

Those delays sometimes see prosecutors drop charges if they decide the case can't be brought to court "within a reasonable amount of time… in light of a defendant's Charter rights," said spokesperson Eric Holmes in a statement.

The drop in careless driving charges can partly be attributed to officers laying more precise charges, but also goes back to staffing and other resource shortages for police and courts, according to the president of the Toronto Police Association.

"No matter the charge, it's frustrating for [officers] when an equally under-resourced court decides not to proceed with cases," said Jon Reid in a statement. 

"This is the reality of our current justice system. Without proper investments in policing and the courts, the reductions we're seeing in enforcement and prosecutions will continue."

HTA charges getting purged

Paralegal Jami Sanftleben, who largely defends clients on HTA charges, says right now it's worth it for his clients to wait and see what happens in court.

"You have a better chance than in the past of getting a favourable resolution — I think because of that backlog and because of the lack of resources," he said. "There is a chance they could get a very good offer to resolve." 

Sanftleben says several major municipalities like Toronto are facing massive backlogs of HTA cases and "every once in a while" prosecutors will do a purge of charges, in what he thinks is an effort to catch up.  

When it comes to changing the outcomes of these charges, Brown sees solutions in the amendments proposed to the HTA.  

"That law would prevent all these people from pleading down on careless driving because they're not going to avoid that minimum sentence," he said, referring to the proposed suspended licence until community service and a driving course are completed. 

CBC Toronto asked Attorney General Doug Downey's office whether the government supports the bill. A spokesperson said it will go "through the normal course, with opportunity for debate and a vote by members of the House." 

For her part, Wilkinson hopes the proposed changes could mean others injured by drivers get the closure and peace of mind she says she was denied in her case.

"It's just about making better drivers, making it safer out there for vulnerable road users," she said. 

"That feels like a good start."