A final court date….

On Tuesday April 5, 2011, it would have been Donna Kennie’s 62 birthday. She most likely would have celebrated by having dinner with her children and grandchildren. It would have been a quiet, yet joyous celebration with much laughter and happiness.

Instead, on her 62 birthday, her children, grandchildren, family and friends sat in a court room listening to the victim impact statements being read. Her seven-year-grandson got up and spoke about how he missed his nanny. Her nine-year-old grandson talked about the day he found out she died and the confusion and fear he felt and how he will miss that she won’t get to see him grow up. Her eleven-year-old granddaughter broke down in court as she explained how devastated she’s been. Her eighteen-year-old grandson talked about being in the car that fateful day, what he saw, and how horribly impacted he’s been and will be for the rest of his life. Her thirty-four-year-old daughter talked about how she’s been turned into an angry and bitter woman since her mother was killed in a car accident and how she feels like she’s not able to be the warm, carefree mother to her own children that she once was. Her forty-year-old son stood and shared with the court how deeply he has grieved his mother, missed her, and how filled with anger he’s been as well as what it’s been like to watch his son struggle with the trauma of the experience. And I, at thirty-six, got up and told the court how her death was like reliving the death of my father and how robbed, I, along with everyone else, feels. Those were seven victim impact statements of the fifteen submitted that were read aloud to a court full of people. The judge, the court reporter, everyone cried openly as they were read. The emotions filled the room.

When Trent was allowed to address the court, he did so with a trembling voice and tears streaming down his face:

“I am so sorry. If I could trade places with her, I would.”

Trent, if we could have you trade places with her, trust me, we would too!

He was sentenced to three years in a federal penitentiary and banned from driving for five years. He will likely be eligible for parole within six months and will quite likely be released. In Canada, that’s what you get for getting drunk and killing someone – six measly months in jail.

The judge actually apologized but said he was bound to work within the constraints of our justice system and right now, that’s the jail sentence for this crime. It doesn’t matter what the maximum sentence is, what matters is the court of appeals in New Brunswick gave that sentence to someone else in a similar circumstances and since it’s the highest court, all other judges our bound to follow suit.

He also said more than once that although three years wouldn’t likely seem long enough to us, that it was unlikely there was any jail sentence out there that would be fair in our minds.

I found this to be a total cop-out. Actually, yes, there is a sentence out there that each of us felt in our minds was fair. For me, if he had been sentenced so that he SERVED ten years in jail, that would felt more fair to me. For Lisa and Cindy, perhaps it was more. For Scott, he said serving 15 years would have been more in line with what he wanted but in the end, what was most important to him was that he was found guilty, and held accountable, the sentence meant little.

I am at a loss to express how I feel. On the one hand, I know that Trent serving more time in jail won’t bring Mamma K back nor will it “heal” him in any way. Actually to the contrary, he’s likely to come out worse. It’s a “lose lose” situation. But at the same time, I am filled with anger and contempt that this man decided to put the lives of innocent people in his hands when he got behind the wheel of a truck impaired. I have no doubt he “thought” he was fine – most people who drive impaired “think” they are fine – that’s the problem – they AREN’T! I know he didn’t set out to kill a beautiful woman on that day but his ignorance to the consequences of his decisions and choices is unacceptable! It cost a truly innocent, beautiful, and remarkable woman her life. His decision and choices COST a life. There has to be an adequate consequence to that!

What do we need to do to get people to stop drinking and driving? What do we need to do to get people to stop being negligent when driving either through drinking, drugs, texting or whatever? What do we need to do so that people start to think that every single person on the road driving is their mother, father or child so they start to take the responsibility of driving seriously?

I don’t know. I am at a loss. How does this continue to happen?

To read the newspaper story, check out: http://telegraphjournal.canadaeast.com/actualites/article/1395835

To read my victim impact statement: Hartford_Natalie_VIS_March_2011.

If you are just tuning in, catch up on the whole story with some related posts:

And just in case you are interested in getting involved (if you live in Canada): answer this Call to Action (for random breath testing, which will prevent these accidents from happening in the FIRST place).

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Dear blog…it’s back to court we go…

Donna Kennie (1949-2009)

Well tomorrow is the big day; it’s back to court we go.

Trent Albert Mallet, who was found guilty of impaired driving causing death in February 2011, in relation to the car accident on August 1, 2009 that killed my mother-in-law, Donna Kennie, will be sentenced tomorrow; on what would have been her 62nd birthday! Finally this torturous trial will be behind us.

It’s not that the grief or pain will stop but at least this part of the process will be behind us and I think we will be able to start to heal. It’s closure for a wound that has been open and festering for over 18 months. It’ll be a huge weight lifted from our shoulders.

His sentence will never be enough. To be honest, it’ll likely be a slap in the face as Canadian impaired driving laws are laughable to say the least. You get more time for dealing marijuana than you do for driving drunk and killing someone. But at least he’ll be held accountable for his crime, which is more than most people in our situation get, giving that majority of impaired drivers who kill, aren’t even charged, let alone charged and convicted; the Canadian Criminal Code of Loopholes, as I like to refer to it.

Regardless, the system is what it is right now and we can’t change it for our immediate case. So we work within it and take the wins that we can!

I heard that there have been about 20 victim impact statements submitted for the judge to read. And there are a number of us who will be reading our statements aloud. I am sure it’ll be an emotional day to say the least.

I am nervous to read mine. I have no issue around public speaking and actually I welcome the opportunity but I am still nervous. I know when I get up there to speak my belly will be just churning, my palms will be sweating, my heart will be pounding, and my throat will feel like it’s suddenly the Sahara desert but that’s ok. Nothing will stop me from having my say. It’s the only opportunity we have to ensure that Trent hears how his choices and actions on that fateful day have affected us and how they will continue to affect us for the rest of our lives.

He gets to serve his time in jail, get out, and go on with his life, as if nothing ever happened while Donna’s family and friends are the ones left to serve a life sentence. We will miss and mourn the loss of this most spectacular woman, mother, and friend forever.

I will keep you posted tomorrow on the outcome. Stay tuned….

If you are just tuning in, catch up on the whole story with some related posts:

And just in case you are interested in getting involved (if you live in Canada): answer this Call to Action (for random breath testing, which will prevent these accidents from happening in the FIRST place).

Dear blog…I am not afraid to take the stand

Sorry for the delay in posts this week; I’ve been cheating on my blog. Alas, it’s for a good cause. Last night, I put the finishing edits on my victim impact statement (VIS) and now I feel like it’s ready to be sent into the courts.

As of right now, I plan to read it out loud in court. I want the no-good-piece-of-dirt-slime-bag that got drunk and slammed into Mamma K and Jordan, killing Mamma K, to have to sit there and hear my painful woes. It’s the least he can be forced to endure and won’t ever be nearly enough. That being said, victim services told us that there is a fair number of VIS being submitted (15-20). I told Scott that I would of course take a back seat if other members of the family would like to read out loud. I leave it to him and his family to decide.

Taking the stand and reading my statement out loud doesn’t make me nervous in the least. I’ve never had any issues around public speaking. I am quite comfortable standing in front of an audience, large or small, and speaking out (and to be honest, the bigger the audience, the better). I’ve done plenty throughout my life and I enjoy it greatly. I assume it has something to do with my love of being the center of attention, life of the party, and all around queen of the night! I know for some people, their nerves bubble up, their throat closes off, and the anxiety of the situation makes them want to run and hide under the nearest desk.

Of course I get nervous. I get a dry mouth. My heart starts pounding and my palms sweat. Sometimes I feel like I am about to throw up. My anxiety swells as I fear saying something wrong or that I don’t know what I am talking about. I get intimidated thinking people will hate it or even worse, hate me. But in the end, I love it all. I thrive on the adrenaline rush. I love the feeling of being fully alive, present and in the moment. Anyone who knows me isn’t surprised by this revelation. I really should have gone into acting.

Years ago, in a previous life, I was involved in pageantry and I fell in love with it. I loved everything about it; the beauty, the gowns, the stage, the interviews, the events, and the other contestants. And most importantly, I loved that I was involved in a pageant system that required contestants to have a platform; a cause to promote and bring public attention to (and the more, the better). I choose self-esteem and through pageantry, I was charged with “getting my message out” to the world. I was enthralled and exhilarated!

Throughout that year, I realize how much I loved public speaking. I had dozens of speaking engagements. I had the opportunity to bring opening remarks at fundraising events, I was a keynote speaker at meetings, I made guest appearances on local radio stations, and I presented a variety of seminars on self-esteem at workshops. I was passionate about sharing my experience and knowledge with others and was deeply fulfilled in doing so.

My days of pageantry are long over but I’ve been able to take that experience with me and apply it extremely well in my real life. And I think come April 5, 2011, if given the opportunity, I will put it to very good use once again!

How do you feel about public speaking; friend or foe?

A most important piece of writing

I am sitting here this morning staring at the screen gearing up to undertake one of the most important writing tasks I’ve ever taken on before; a victim impact statement.

Now that Trent has been found guilty of impaired driving causing death for the death of my mother-in-law; Mamma K (2009), we move into sentencing mode and this is where Mamma K’s family, friends, and coworkers finally have a venue to speak out.

In Canada, victims of a criminal offence may choose to write an account of how the crime has impacted their lives and submit it to the court upon a conviction and before sentencing. It’s a document that essentially outlines the physical, emotional and financial impact of the crime on the victim and their family. A victim impact statement is a way for victims to have a voice in the criminal justice system.

Writing and submitting a victim impact statement isn’t required. It is optional and we can each write and submit our own. Any impact statements written are then presented to the judge before sentencing. Most importantly, judges are required to consider the victim impact statements when sentencing offenders. This means that not only is each of our victim impact statements our “voice” in the system, but essentially we can each have an influence on Trent’s sentence. For us, this makes them extremely important.

As well, at sentencing, we can request to read or have read aloud our impact statement, although the judge has discretionary authority to allow it or not. If allowed, this would give those of us who choose to do so, an opportunity to tell Trent how his actions and choices on that fatal day have changed and marked our lives forever; pick me…pick me!!!

And once our statements are in the court file, they become part of the public record and may be seen by a Probation Officer or by the National Parole Board; offering us possibly more influence on Trent’s future in the system.

So you can see how important this piece of writing is and the impact it could potentially have not just at sentencing but beyond. I want this to be one of the best pieces of writing I’ve ever done. I want it to evoke those intense emotions of grief and shock that I felt, and I want to appropriately capture the depth of the emotional trauma. When the judge reads it, I want him to be deeply moved; I want him to feel even a small portion of what we feel; I want him to have a great sense of the extent of our loss and the tragedy of it; and I want him to feel compelled to take a stand, a real stand, against impaired driving and sentence Trent to at least ten years or more in prison. And when I read it aloud in court, I want Trent to hang his head in shame.

It’s got to be perfect. It’s got to be intense. It’s got to be hard-core. It’s got to be my absolute best. Mamma K deserves no less!

I’ve already got four pages of material typed out. The emotions are percolating and bubbling around in my soul and coming out in bits and pieces. I am not worrying about formatting or perfection right now but just getting the “stuff” out. Soon it’ll be time to fine tune, organize, and pull it all together into a meaningful format that speaks to the depth of this tragedy and moves people to take action.

But in the end, can the trauma of it really be captured in words on a piece of paper? Likely not adequately but I’ll definitely give it a go!

Ever written a victim impact statement or a piece of incredibly important writing? If so, any words of advice?

Dear blog…he was found guilty…thank God!

What can I say; the heading kind of says it all. It was finally our day in court. Today, Trent Albert Mallet was found guilty of impaired driving causing death in the relation to the car accident on August 1, 2009 that caused the instant death of Donna Jean Kennie.

It was a long time coming and a guilty verdict was definitely not a “sure” thing. It’s been an 18-month up and down tumultuous emotional roller coaster with nearly a dozen trips to court, a funeral, a memorial, and countless hours of tears and heartache.

Today started with the judge addressing the admissibility of the medical records containing the blood alcohol analysis done at the hospital. This was in response to the two written briefs submitted by the crown prosecutor and the defense attorney (we hadn’t the opportunity to read them). It sounded like the defense’s grounds for arguing its exclusion were twofold. One, the defense claimed that the validity of the blood couldn’t be accepted by the court given there was no police chain of custody and because the crown did not have the blood analysis person testify to the methods used etc. Two, the defense claimed that the warrant for the medical records was a violation of the defendant’s charter of rights and freedoms. It sounded like the defense claimed that the police found out about the blood analysis from someone at the hospital and that constituted “inside information” which therefore made the warrant invalid.

We were on pins and needles as the judge pointed out quite clearly that if the warrant itself was deemed invalid, the fruits of the warrant would not be admissible in court. There could only be one reason he was pointing that out, right?

My heart was pounding through my chest. I couldn’t stop crying. I thought I was on the verge of hyperventilating or having a panic attack – maybe both simultaneously. My emotions were reeling, my palms sweating, my anxiety sky rocketing off the charts. If Trent walked out with a not-guilty, I simply did not know how our family would cope.

The judge started out by addressing the defense’s first claim. After a long speech summarizing the facts of the case, the judge basically said if doctors’ and nurses’ rely on the authenticity of these results, delivered in this manner, to make life and death decisions, then he felt they were good enough for a court of law to accept as valid and truthful.

On the second point, the judge said that given the seriousness of the case and the fact that the police were in the room the entire time the defendant was at the hospital, and therefore had witnessed the nurse drawing the medical blood; it was reasonable for them to issue the warrant for the medical records.

At this point, we knew the medical records were in. Relief was flooding over and throughout my body. Scott and I were holding hands tightly. We felt like things were finally going our way.

Then the judge went blow-by-blow through the case. He talked about the two friends that testified against Trent and had spoken about how he had drunk beer that morning and smoked a joint. He went over the testimony of the witness who had been driving right behind Donna who said that Donna wouldn’t have been able to avoid the truck careening towards her no matter what and that it was apparent that she was killed instantly. He went over the testimony of her 16-year-old grandson who was in the car with her and had given testimony that the truck had swerved towards them without notice and that Donna had swerved to try to avoid him. He also touched on his facial injuries along with the emotional turmoil of being a witness to his grandmother’s death. He talked about the first man on the scene to attend to Trent and how he had witnessed Trent crawling out of his truck and had helped him. That witness testified that he did not smell alcohol on Trent nor did he see any signs of impairment and the judge said that he did not believe that testimony. He recounted the two police officers who testified that they believed Trent to be impaired and that they smelled alcohol on him (among other things); one officer being a veteran with much experience in this arena. The judge reiterated how he believed their testimony. He went over the accident reconstruction testimony and report and how it showed that Donna had done everything possible to avoid the accident veering to the right and that the truck had swerved, without breaking at all, into her lane suddenly and without any “just” cause slamming into Donna nearly head on.

All of that, coupled with the fact that he accepted the validity of the medical blood and he accepted the evidence that the blood analysis expert gave as to the level of blood alcohol at the time of the accident and how that would have impacted Trent’s ability to operate a motor vehicle and respond in emergency situations.

That’s when the judge did it – that’s when he said those little words that made our hearts’ sing. He said “I therefore find Trent Albert Mallet GUILTY of impaired driving causing death!

We cheered!

We were told to “shhhhhhhhhhhhhhh!!!

And then…unexpectedly….we got the sweetest gift of all; like all of our birthdays and Christmas for the last two years rolled into one.

The defense asked that Trent, as a gainfully employed contributing member of society (who was just convicted of shop lifting and assault in February this year I might add), be released into his own recognizance until sentencing.

And then…wait…the GIFT!

The judge said that giving the finding of guilty and the seriousness of the crime, the only appropriate thing to do what to reprimand Trent into jail immediately until sentencing.

Yes…read that again…reprimanded to jail IMMEDIATELY!!! YIPPPEEE!!!

For the first time since this court gong show started, Trent was finally getting everything he deserved. Trent, who had been self-righteous and indignant; who has actually slept during expert witness testimony; who had not shown up at different court sessions; and who had at every turn acted with ignorance obviously thinking that with his high-priced defense lawyer, he would never be found guilty LET ALONE sent to jail immediately, was squirming! He tried to speak out loud to the judge, he grabbed for the back of his lawyer to try to get his attention but it did not matter. The judge ruled and ruled swiftly and firmly; reprimanded to jail immediately and the case adjourned until sentencing!

“How sweet it is” was ringing through my ears!

Scott and I stayed and watched while Trent was drug off by the police; while he gave his mother a hug and his girlfriend one last kiss. We finally got to watch Trent experience a small amount of pain and discomfort – nothing compared to what his choices have inflicted on us but still – finally it was at least something. And finally, someone is held accountable for this tragic and completely unnecessary accident!

So what happens now?

Trent will be sentenced on April 5, 2011 – how rightfully so – this would have been Donna’s 62 birthday! We’ve been told it will be a minimum sentence of three years. Whatever it is, honestly it will never be enough. At this point, we’ll take the guilty and we’ll take whatever sentence we can get but let’s be clear, nothing will bring Mamma K back and nothing less than life in prison will feel like true justice.

But…a win…definitely a win today! An unexpected win at that!

A huge thank you for all your support and comments throughout this and for hanging on through the ranting posts (I promise there are many more to come).

If you are just tuning in, catch up on the whole story with some related posts:

And just in case you are interested in getting involved (if you live in Canada): answer this Call to Action (for random breath testing, which will prevent these accidents from happening in the FIRST place).

Dear blog…here’s hoping it’ll be a camp weekend…

a "must have" for getting into the camp in the winter

Well Scott is off to HarKen Lodge today; our camp (in the truest sense of the word) in the middle of nowhere. Check out: He should have just headed my advice for some deets and pics of the camp.

Well, he’s not actually at the camp. He is at the first of two roads leading into the camp. He drove out Tuesday night and to his dismay, he found that neither of the main roads to get into HarKen Lodge was plowed.

Now this isn’t unusual. The camp is situated on provincial crown land so it’s not something that has guaranteed year-round access. Luckily, some years, a couple logging mills will get permits to haul wood from around the area near the camp. And then…if the stars align…a couple of fellow camp owners will track down and convince the snow plow driver (who keeps the logging roads clear) to take a quick swipe through the camp roads. I mean, it would literally take them half an hour – short little roads – and it’s RIGHT on their way.

But it doesn’t always work out. Some years we’ve had access for pretty much the entire winter, some winters it’s touch and go, and we’ve also had some winters when we’ve had no access from around mid-January until April. It’s a crapshoot. So far this year, considering we’ve been inundated with snow in Jan/Feb, it had been going well and the road had been plowed. But alas, not for the last two weeks and in that time, we got hit by three major snow storms so…access denied!

Normally we would have just chalked it up to “guess we are waiting until the snow plow goes through,” but since Scott got himself a Rhino with a plow, he decided to see what he could do himself. And another camp owner from out that way (who is as determined as Scott to get in this weekend) was going to meet him with his ATV and plow. They hoped between the two of them, we’d have access for a Friday night arrival.

I am not so sure. That’s a lot of snow to move with two bikes but I’ll keep my fingers crossed!

I’d love a weekend at the camp for reading, writing, and relaxing – that would be heavenly!

The other thing that starts this weekend is NASCAR! We are huge fans in our house. Although we don’t let it consume us through the summer months – who wants to stay inside on a sunny Sunday to watch NASCAR; hello PVR! For this weekend, the idea of curling up by a fire and watching the Daytona 500 sounds simply delicious!

We need a GREAT weekend because Monday is the continuation of the court case for Scott’s Mom (who was killed by a drunk driver in the summer of 2009). During this next court session, we are supposed to find out if the judge will allow the medical blood expert testimony in as evidence, which was presented on December 15, 2011. If the judge allows it in as evidence, we would be nearly guaranteed a guilty verdict. But, if he renders it inadmissible, this would ultimately mean that the defendant would be found not-guilty and would get away with killing Scott’s mother. To catch up on the court story (fiasco), here are some related posts:

And just in case you are interested in getting involved (if you live in Canada): Call to Action (for random breath testing).

So…a lot is riding on Monday. A good weekend is a must have!

Keep your fingers crossed!

Impaired driving causing death case: yet again, another update

Yesterday was torturous for the family. We had been under the impression that the medical blood evidence was admissible – since it was being presented in court! And we were told that we’d have a guilty/not guilty verdict yesterday. But in a turn of events, we didn’t get either. The medical blood admissibility is still up for debate and we adjourned for another six weeks yet again.

The first witness to testify was the attending nurse who spoke about the process when a patient comes into the hospital, why blood was drawn, what tests were ordered by her and why, and how the blood was processed once it was drawn.

The second witness was the manager of records management who spoke about the integrity and security of people’s medical records.

Essentially these witnesses were laying the ground work, I would assume, for the admissibility of the blood – so that the Defence couldn’t claim that the blood or the medical records were tampered with.

These two experts were apparently so thrilling that the perpetrator fell ASLEEP. Yes, you read me correct – this drunk driver was sitting there, fighting an impaired driving causing death charge, and he fell asleep during pertinent testimony. I know the family could feel his “remorse” from where they sat (NOT)! It was a disgusting demonstration of total lack of respect and I thought Scott or myself were going to launch ourselves over the three benches that separated us and literally tear that man’s eyeballs out with our bare hands!

I digress.

The third and last witness to testify, via video conference, was the blood analysis expert. And she was amazing. Now, she did not have the actual blood to work with – she was only given the number of the blood alcohol level from the hospital’s test. Doing a number of conversions, assuming the driver did not have a drink within 30 minutes prior to the accident, and taking into account dissipation of the alcohol from the time of the accident to the time the blood was taken, she concluded that, in her expert opinion, his blood alcohol level at the time of the accident was between 103 and 142 (80 is the legal limit).

She also stated that 103 was a very conservative estimation and that it was highly unlikely that his level could have been any lower. To the contrary, it could have actually been higher than 142. And, based on her expert knowledge, in this range, the driver would have “definitely” been impaired and that the impairment would have played a contributing factor in the accident.

Under cross-examination, the Defence tried to trip her up a number of ways but I felt her point still got across.

Afterwards, we recessed and when we returned, the Crown, Defence and judge had a long discussion about issuing briefs etc and then we were adjourned until Feb 2, 2011. The entire family sat stunned and confused.

The Crown explained to us that five years ago, medical blood evidence such as it was being presented in this case wouldn’t have even been considered. However, in the last few years, more judges are allowing medical blood as evidence in cases that warrant it (circumstances and severity of the case) even though it could be seen as a possible charter of rights and freedoms violation.

What happens now is the Crown will write a brief to support his arguments to let the blood evidence in. He’ll submit that to the Defence Jan 17. The Defence then has five days to write his own brief, arguing why it should be excluded. Both briefs will be submitted to the judge on Jan 28. The judge will have a few days to read and consider both. On Feb 2, he’ll render a decision, which will essentially resolve the court case because if the blood evidence is in, it’s a guilty verdict. If the blood is out, it’s a not guilty verdict.

In our favor, there is case-law supporting it’s admissibility! In the driver’s favor, this judge has never issued a decision on evidence of this nature before and he’s got a slippery lawyer who specializes in getting people off of drunk driving charges (how he sleeps at night is beyond me).

So…it’s hard to say or to anticipate the results. Part of me wants to hope for the best and put that positive energy out into the universe. Part of me feels a sinking sensation and wants to prepare for the worse (but who can ever really prepare for devastating news!?!??!) So…I am going to do my best to focus on the results I want and pray to the Gods every night.

And in the meantime…more waiting…

Here you can read the details of the case up to now:

Impaired driving causing death case: it’s off to court we go

Well tomorrow is the big day. We return to court for hopefully one of the last times. We are scheduled to hear the blood expert give testimony as to the blood alcohol level of the medical blood which was attained via a search warrant. We should also hear from a few other witnesses – nurses from the hospital I believe. The Crown has indicated that the judge set an entire day aside to hear the final bits of this case with the intention of rendering a guilty/not guilty at the end of the day.

I pray for it. Our family needs this to be done and over with. We need closure. We need to heal and move on. We’ve been going to court since Feb 2010 and this case has been long, drawn, and painful.

And we need a win!

If found guilty, the court will likely adjourn for 4-6 weeks to have a pre-sentencing report put together and family and friends would be welcome to write and submit victim impact statements. From what we are seeing in news reports etc, he’ll likely get sentenced to three years in prison, suspended license (not sure how long) and a fine of some sort.

If found not guilty, he’ll walk away a free man where he’ll continue driving the streets and living his life as if nothing ever happened…as he has the lat year and half since the accident.

I can’t even begin to imagine the devastation and the crushing blow this would be to my family. I am not sure how we’d ever recover. At this point, I can’t even let myself go there. I am counting on our justice system to come through and even though it’s seemed “sketchy” throughout the process, I pray that in this, they don’t fail us.

To get up to speed on the whole story, see :

Please…keep your fingers crossed!

Impaired driving causing death case: an update

Yesterday the court case against the impaired driver who hit and killed my mother-in-law continued. In October, it was emotional mayhem when we found out that the evidence obtained through a blood sample that the police took was ruled inadmissible. But there was hope – because as it turned out, the Crown had issued a search warrant for the perpetrator’s medical records and a blood analysis expert was prepared to testify to the impairment level of that blood. Fabulous!

Yesterday, we were scheduled to hear said expert testify.

However, the Crown failed to give the defence lawyer seven days notice of its intention to use the expert witness as required by the Canada Evidence Act. An honest “mistake,” he simply forgot to file the completed paperwork. He asked the judge for an adjournment.

If granted, the case would continue with anticipated success. But, if denied, considering that the defence was most certainly opposed to the adjournment, the case would essentially be over and the perpetrator would likely walk.

After much deliberation and argument, the adjournment was granted. The case will continue on Dec. 15.

Thank the lord!

As we were leaving the court, Scott told the Crown that he’d be more than happy to take the next two weeks off work to be his volunteer assistant to give him a hand with stuff like delivering and issuing critical paperwork. The Crown simply bowed his head and said “I deserve that – I do!”

MADD Canada press release on drunk driving loophole

MADD Canada (Mothers Against Drunk Driving) issued a press release that outlines a MAJOR loop hole in our criminal justice system that impaired drivers are exploiting:

Impaired Drivers Hospitalized After Crashes Escape Serious Charges

Oakville/Ontario/June 29, 2010 – Few impaired drivers who are hospitalized following a crash are charged, let alone convicted, for the thousands of deaths and injuries that they cause each year.
“An impaired driver who causes a crash and ends up in hospital stands a very good chance of avoiding criminal charges because the law makes it so difficult for police and medical personnel to collect admissible BAC evidence,” said MADD Canada’s Chief Executive Officer Andrew Murie. To read the full article, visit:
http://www.madd.ca/english/news/pr/p20100629.htm

On August 1, 2009, my mother-in-law, who I affectionally nicknamed Mamma K, was killed in a horrific car accident. She and my (at the time) 16-year-old step-son, Jordan, had gone into the city to pick up some supplies for a family reunion camping weekend, which was being held at Mamma K’s daughter’s house in the country.

It was a clear, brilliant day. Warm. A perfect August day. The road was bear and traffic was light. Driving her beloved 2-door sunfire, Jordan and Mamma K turned onto a familiar stretch of road to head back to the festivities. She was driving less than the speed limit when she and Jordan saw the F350, 1-ton, pick-up truck coming towards them. They couldn’t have known that the driver was drunk, stoned, and about to pass out.

Mamma K had time to say “what’s this guy…”, while she took her foot off the gas and veered slightly to the right hand shoulder of the road before he suddenly veered directly into their lane and slammed head on into her car, literally tearing off the driver side of the car as the truck ripped through the metal, flipped 180 degrees in the air, slammed into the ground on its roof, slid 12 meters, and came to a stop with the Mamma K’s driver side door embedded into its front grill.

Jordan was knocked unconscious when he was hit by the airbags. When he came to, he said his grandmother turned her head towards him, acknowledged him with a sign, and died. She was missing pieces of her head and arm.

A vehicle following Mamma K witnessed the entire accident and was on scene seconds after the wreck. The 20-year-old driver ran to the sunfire, yanked open Jordan’s door, and pulled him from the car. He called 911.

The police arrived on scene and the driver of the truck was assessed by emergency medical personnel. It was determined, given the horrific nature of the accident, that further medical attention was required before he could be cleared medically. The police all detected the smell of alcohol on his breath, the thick-tongued speech, the small precise nature of his steps – they read him his rights but the preservation of his life, and the treatment of his injuries, had to come before the criminal investigation of the incident.

As time ticks by, the alcohol levels simply drift down further and further.

Once medically cleared to give a breath sample and a 45-minute phone call to duty counsel, the police attempt to get a breath sample, nearly three hours after the accident. However, the driver has trouble blowing into the machine and a reading cannot be achieved. The police determine, given the fact that the smell of alcohol has not dissipated in 3 hours, that they have moved beyond suspicion of impaired driving and have reasonable grounds to do a blood draw. They issue the blood draw demand. Another 15 minute phone call with duty counsel is arranged. Blood is drawn. Weeks later, the blood analysis complete – the driver is charged with impaired driving causing death. He pleads “not guilty”.

So in mid-July, we found ourselves in court for two days while these explicit details were revealed to Mamma K’s family over and over again. Jordan was called to testify as to his experience that day – reliving the day, as the driver who traumatized him beyond words, beyond comprehension sat stoically like a statue of non-emotion.

At the end of the two days, we are at a stand-still – waiting for the judge to render a decision concerning the eligibility of the blood analysis as evidence. The defence claims the police did not have reasonable/probable grounds to draw the blood – the Crown is claiming they did. There are many circumstances and issues that require reflection and interpretation of law/precedence from the judge. We were schedule to return to court Aug 5 to hear his decision but with a potentially fatal illness striking the defence lawyer, the trial has been adjourned until October 20th.

What we are going through right now is the loophole that MADD Canada is talking about in their press release.

Hospitalized suspects seldom charged or convicted for impaired driving deaths and injuries due to shortcomings in law around collection of BAC evidence.”

It’s disgusting considering that this loophole exists for some of the most serious of impaired driving offenses in the sense of the nature of the accident – where there is a victim left seriously injured or dead. Given the seriousness of the accident, the impaired driver is likely injured and therefore has to go to the hospital where the preservation of his/her life and the treatment of his/her injuries come before the criminality of the accident and any investigation thereof. Their life, their injuries etc, comes before the police right to take a breath sample or blood sample.

For example, a drunk driver hits and kills your son, daughter, mother, father etc. And this drunk driver also sustains life threatening injuries. He/she is taking to hospital and is rushed into surgery for 10 hours and then is in recovery for a day or two. The non-refutable evidence of his/her impairment (blood/breath sample) is lost – vanished with the ticking clock. The police, unable to gather evidence, are left trying to put together circumstantial evidence such as friends, family, bartender who can/will testify to the driver’s activities hours prior to the accident to a degree of certainty where a judge and/or jury will have evidence beyond a reasonable doubt that the driver was in fact impaired at the time of the accident.

Good luck getting a conviction with that!

My god, we live in Canada – how can this be?

Given the nature of these accidents, and the role that the impairment has likely played in the accident happening, how is it right that this loophole exists?!?!

It’s sickening!

Tell me this, how in such a progressive country as this, have we not gotten to the point where instead of simply upholding useless laws  and procedures, we evaluate and change what isn’t working – quickly. When such an apparent loophole exists – why isn’t something done quickly and efficiently to elicit change?

Let me tell you, ALL of Mamma K’s “rights” were suspended when she was murdered by this “alleged” drunk driver. She was taken to the hospital, a blood sample taken, a full toxicology report done on that blood, and an autopsy performed. In court, her blood alcohol level was admissible (proving she had not consumed one drop of liquor that day). Why is the other driver not required to submit to the same reasonable level of scrutiny? When a fatality occurs and a blood sample/analysis is drawn from the victim, why aren’t any and all other drivers required to submit to the same process and provide a blood sample as quickly as humanly possible?

I don’t get why we aren’t there yet?

How can it be that a drunk driver can get smashed, get behind the wheel of a “tank” of a truck, smash into an innocent woman and her young grandson, kill her brutally, literally severing parts of her body, and get away with it with no consequences because of procedure?

It’s simply not right but it’s happening all over Canada right now.

And don’t even get me started on sentencing even if he IS indeed found guilty – that’s an entire other post! And I’ll wait until we get that far in the process to comment.

But what can we do about this loophole right now? What I’ve been told is to write our local MLAs, MPs etc and demand change. Write often, refuse to be ignore!

As I know more, I will pass it along.

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