EXPLAINER: In fatal crashes, careless isn't criminal—lawyer – TheChronicleHerald.ca

Three people died in a motor vehicle collision last December. Five months later, the driver was charged with a relatively minor motor vehicle offence.

An 86-year-old woman has been charged with careless driving after a crash that claimed the lives of a teacher and two students in Cape Breton.

Kayla Cotton, a 26-year-old woman, and two girls, ages 12 and 13, died as a result of a four-car pileup on Dec. 1 in Port Malcolm, about 20 kilometres from Port Hawkesbury. The accused was driving to the left of a double solid yellow line when her motor vehicle collided with the other.

Some were left wondering why a more serious charge wasn’t laid.

RELATED: Woman charged in 2015 crash that killed three in Cape Breton

The Chronicle Herald asked Halifax lawyer John McKiggan.

“When you see something like this happen most of us are outraged,” McKiggan in an interview.

“You think the careless driver should be seriously punished.”

But when the police are investigating these offences, McKiggan says they look at intent of the driver. “They look at the conduct, not the result of the accident.”

McKiggan says police have to ask themselves one vital question: What charge is the most appropriate charge for the evidence gathered?

Police could have charged the accused with criminal negligence causing death, dangerous operation of a vehicle causing death or dangerous driving. “Those are all criminal offences that can result in, if convicted, a criminal record and possibly jail time.”

But McKiggan says there is a big difference between careless driving and dangerous driving.

“Careless driving is just momentary inattention,” he said. The driver is reaching down for a cup of coffee, closing their eyes to sneeze or maybe they have a crying baby in the back seat. You’re just not paying attention and you, in this case, stray over the centre line,” he said.

“That is something that is going to merrit a charge or conviction for careless driving.”

When charging someone with dangerous driving, police look at the driver’s level of conduct. “The level of conduct has to rise to, essentially, what the courts refer to as gross negligence,” McKiggan said. This could mean a driver is speeding, dashing it and out of lanes, or driving under the influence of drugs or alcohol. He says what this basically means is “driving without any concern of others on the road.”

In this case, McKiggan says the evidence the police gathered merit a charge of the lowest offence, which is careless and imprudent driving. “That’s not a criminal offence,” he said. “That will just result in a fine and suspension of licence if she is found guilty.”

McKiggan says the families of the deceased, if they so choose, will still have the right to pursue a civil claim against the driver for the loss of their loved ones.

The accused is expected to appear in the Port Hawkesbury Courthouse on August 3.

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