Driving Under The Influence

"All of this verdict will never change anything that happened. My loved ones will not come back."
"It's hard because all the pictures that are in my head are coming back."
"It's not me that's bringing her to court. I have no expectations concerning this trial."
"Future and present drivers should know that we don't stop on highways, and it's very dangerous. Even if it's a small animal that we like or that we want to preserve we should not stop on the highways. It's not a place to stop."
Pauline Volikakis, Montreal, bereaved wife and mother

"I just wanted to pick all those ducklings up and put them in my car. I know it was a mistake."
Emma Czornobaj, 25, Laval, Quebec

Emma Czornobaj, left, leaves the Montreal Court room with a supporter Monday, June 2, 2014. Czornobaj has been charged with criminal negligence and dangerous driving causing two deaths when she stopped her car on a highway to avoid hitting a family of ducks.   Photograph by: Peter McCabe , The Gazette

Most people, women in particular, but not necessarily just women, would catch their breath and hope for the best, seeing a wild animal, small or large run out on a highway where cars are passing. Snakes, turtles, skunks, raccoons, squirrels, ducks -- any number of unaware, frightened animals seeking to pass from one wooded area to another, instinctively aware that to do so is dangerous, but risking the passage because of some irresistible natural draw -- all come to grief on highways.

When the animals that are crossing represent larger wildlife like deer or moose or bears, then the risk to the driver who cannot evade their presence, is multiplied, as well. Drivers, for the most part, make an effort to swerve slightly if it can help them to avoid hitting an animal or a bird, though it is also a fact that there are some who deliberately go out of their way to strike such targets, taking some kind of morbid pleasure in meting out death.

Emma Czornobaj wasn't one of the latter. On June 27, 2010, she was driving on Highway 30 on the South Shore of Montreal when she noticed seven ducks in a row, waddling in the left lane. It really is surprising how often that kind of thing happens, and when it does, there are occasions when people are alerted, perhaps not on a highway but on a rural lane, and the ducks are able to pass in safety. Emma Czornobaj parked her Honda Civic, started her flashers and walked on the highway back to where she had seen the birds.

At trial in Montreal, where Ms. Czornobaj is charged with criminal negligence causing death, carrying a maximum sentence of life imprisonment on conviction, along with two charges of dangerous driving causing death, with a maximum sentence of 14 years, Martine Tessier informed the court she had narrowly avoided smashing into Ms. Czornobaj's car, seconds before a fatal crash occurred with others on the road nor managing to avoid a collision with the parked car.

Then it was the turn of witness Pauline Volikakis, driving her orange Yamaha motorcycle which she managed to skid to a stop, sustaining slight injuries. She had seen her husband gesture at a woman who had been walking on the narrow shoulder of the highway. "I wondered what she was doing there. It was not the place to be", she commented. She watched as her husband's Harley Davidson smashed into the parked car. And as her 16-year-old daughter Jessie, riding pillion, was thrown onto the car's back window, over the car, onto the hood and then the road.

She witnessed her daughter, pinned underneath the car as the force of the crash shoved the car forward. Her husband had been driving his motorcycle at an estimated 113 to 129 kmh. She suffered the agony of seeing her husband and her daughter, whom they had just picked up from her workplace, with the family heading out for home but with the intention of stopping on the way for ice cream, involved in a cataclysmic collision. That was at 7:20 p.m., daylight on a lovely summer's day.

Ms. Czornobaj's lawyer's argument was that the deaths were the result of "an unfortunate accident", not to be confused with a deliberate criminal act. She had stopped close to the barrier separating the highway, and put on her hazard lights, unaware she could be the cause of a dangerous life-threat to other motorists. The Crown attorney stated that Ms. Czornobaj had stopped on the road and emerged "for the purpose of catching ducks", her actions indicating "wanton and reckless disregard for the safety of others".

Superior Court Justice Eliane Perrault informed jurors they could find the accused guilty of simple dangerous driving, with a maximum sentence of five years. And she patiently responded to a number of queries posed by the jury, explaining that "Criminal negligence requires more than carelessness on Emma Czornobaj's part. It must be a marked and substantial difference from what a reasonable and prudent person would do in the same circumstances."

The Crown, pointed out Judge Perrault, must prove this; either by proving the accused was aware of the danger or the risk of safety to others and acted nonetheless; or to prove that the accused "gave no thought to the possibility that any such risk existed." As for charges of dangerous operation of a motor vehicle causing death, the Judge remarked: "The Crown must satisfy, beyond a reasonable doubt, that Emma Czornobaj acted in a way that is a marked departure from what a reasonable and prudent driver would do in the same circumstances."

"You must be satisfied that a reasonable person in similar circumstances should have been aware of the risk and the danger involved in Emma Czornobaj's conduct."  Pauline Volikakis hadn't looked to charge the young woman whose oblivion to the danger her action in driving under the influence of kindness might impose on the travelling public. And the jury is now left with the perplexing and troubling judgement they must pronounce upon; requiring the Solomonic judgement.