Friday, 25 July 2014

How far would you go  to  help small birds?

I think it is safe that say that 99% of all humans love harmless animals and many people will go out of their way to assist an injured animal. Back in the 1980s, I saw a small injured sparrow at the foot of a tree in our neighbourhood. I picked it up and took it home and placed it in a small box and then drove 14 miles (21 km) through the city to take the bird to the Toronto Humane Society.

But would I or you stop our car in the middle of a highway to help an injured bird?  Of course, that decision would be based on whether or not there were a lot of cars on the highway at that precise moment.
A woman in Canada (Emma Cz0rnobaj) stopped her car in the left lane on a Montreal area highway four years ago to help a group of ducklings that were on the side of the road. A motorcyclist, Andre Roy, age 50 and his daughter, Jessie, age 16 were approaching her from behind going at speeds between 113 km (70 miles) and 129 km (80 miles) an hour. Those speeds were well over the allotted speed of 90 km an hour on that highway.  The high speed of the victim driving his motorcycle is typical of motorcyclists when driving their motorcycles on highways. His motorcycle struck the rear of Emma’s car after trying to stop and the impact was at speeds of approximately between 105 km/h and 121 km/h. The two motorcyclists were killed instantly. Pauline Volikakis was on another motorcycle behind her husband when the collision happened. She was driving more slowly and managed to avoid a collision or any injury.

The police charged Emma with two counts of criminal negligence causing death and two counts of dangerous driving causing death. The maximum penalty in Canada for the first charge is 14 years in prison and for the second charge, it is life in prison.

The professed animal lover told the court that she did not see the ducklings’ mother anywhere and she presumed that the duckings were motherless so she planned to capture them and take them home. She also testified that she turned on her hazard lights and put on the parking brake. The unemployed financial analyst also left the driver’s side door open and the engine idling, implying that she wasn’t expecting to be stopped very long.

Let me say from the onset that stopping a vehicle on a highway in the left lane is extremely dangerous and equally extremely stupid especially when there are only two lanes going in that direction of the highway.  But then, it is also very dangerous and stupid to be speeding on a motorcycle above the proscribed speed limit especially when you see hazard lights flashing ahead of you.  In my respectful opinion, the driver of the motorcycle was just as responsible for his own death and the death of his daughter as the woman was. Because he was killed in the accident, he couldn’t be charged with anything.

The woman’s defence lawyer, Marc Labelle said that it was obvious that there was no criminal intent to commit a crime on his client’s part. He said, “It’s rare that we have a criminal negligence dossier where there are no bad elements. She was not someone who is taking a chance while driving drunk, nor was she someone who was speeding.”

I think that I should explain what constitutes criminal negligence in Canada.

Section  (1) of the Canadian Criminal Code state that every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

Section 222.(5) states that a person commits culpable homicide when he (or she) causes the death of a human being, (a) by means of an unlawful act; or (b) by criminal negligence.

Her jury only had to ask themselves one question. Did her decision to stop her vehicle on a two lane roadway in the left lane of that roadway and leave her car there to capture ducklings constitute wanton and reckless disregard for the lives and safety of other persons?  If so, then her act was criminally negligent as stated in both sections of the Code

In Canada and in other countries, to convict someone of a crime, it must be established that the person who committed the act, did it with a criminal intent to break the law. Now obviously, it was not her intent to commit a crime.  But negligence plays an important part in this particular charge.

The charge she was facing placed upon her, the burden of proving that the deaths of the father and daughter did not arise through her negligence nor the improper conduct of Ms. Cz0rnobaj.  Note that the words “improper conduct” is very much applicable in a case like this one.

If her car had stalled on the highway and she couldn’t pull it over to the shoulder and she had her hazard lights on, then she wouldn’t have been charged with anything. If fact, if the driver of the motorcycle had lived, it would be he who was charged with ‘contributory criminal negligence causing death’ (of his daughter.
Emma’s act of stopping and in essence, parking her car in the left lane of a two-lane roadway even with her hazard lights flashing in order to capture ducklings was exhibiting a lack of sufficient precaution which resulted in her actions being determined as being wilfully dangerous to the public and incredibly stupid on her part having regard to all the circumstances.

As I see it, committing such a dangerous act because you are incredibly stupid doesn’t mean that you cannot be found guilty of criminal negligence. Stupidity isn’t a defence unless it can be proved that you are mentally retarded which Emma was not.

There was a civil duty on Emma’s part as there is on everyone who drives a car on a public roadway to drive carefully and stopping the car in the manner that she did for the purpose of capturing ducklings was clearly a breach of that duty and that specific breach caused the deaths of two people, albeit of one of those two people contributed to his own death and that of his daughter.
I had a tenant in  our home years ago who at night braked on an icy road for what she thought was an animal. She lost control of her car and slammed into a hydro box, subsequently causing a blackout in much of our area. She was charged with careless driving and I got the justice of the peace and the prosecutor to reduce the charge to a lessor one.

The jury convicted Emma of all charges. Her lawyer who is considering an appeal, said his client was stunned by the jury’s decision. I can’t imagine on what grounds he could file an appeal. As a rule, you can’t appeal a decision of a jury unless you can prove that some misfeasance occurred in the jury room or alternatively, the trial judge when instructing the jury on the law erred in his instructions.
I hope is that this article gives my readers a clear message that we do not stop on the highways and streets for animals unless we can do it safely.  It’s not worth it.

Emma Czornobaj hasn’t been sentenced yet and when she is, I will add that information as an UPDATE to this article. 

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