Marc Bellemare had barely been appointed Minister of Justice when he went about engaging the Liberal Government in supporting his personal crusade. Within a few weeks, he announced his intent to amend the Automobile Insurance Act as it pertains to all drivers found guilty of a criminal driving offence (impaired driving, dangerous driving, criminal negligence, etc.). Following are the three proposed amendments which have been reiterated for the past fifteen years:
- No driver who is criminally responsible for injuring or killing someone would ever be immune from civil action;
- The Société de l’assurance automobile du Québec (the Société) would no longer be compelled to compensate such drivers if they were injured in an accident;
- The Société would henceforth be entitled to demand that these drivers refund any amount it has had to pay out as compensation to other victims of that accident (if any).
One might be more understanding of such an initiative if all that was intended was to clamp down on those who constitute an ongoing threat on our roads (People who have been driving without a licence for several years, offenders who repeatedly drive while impaired, and drivers who are injured in the process of stealing a car). Yet, the proposed amendments will achieve exactly the opposite result: automobile insurance will end up being more costly for all drivers (direct and indirect costs) and, ultimately, accident victims will be those who lose the most as a result of these changes. Whether viewed from a legal, financial or social perspective, the proposed reforms simply do not live up to close scrutiny. Here are a few reasons why:
Putting an End to Immunity from Civil Action
What could be more sensible than suing someone who has been found guilty of a crime? Indeed, it makes eminent sense if one sees criminal responsibility and civil liability as one and the same.
Let us be clear; those who commit crimes while driving are not immune from all forms of prosecution: they have always been and remain subject to possible prosecution under the Criminal Code, as well as to administrative sanctions (many of which have been reinforced over the past twenty years or so). Criminal sanctions are intended as a form of punishment for those whose behaviour is unacceptable; by contrast, civil procedures are intended to provide compensation for victims who have suffered a loss and not as a means of punishing the guilty. Minister Bellemare is fuelling the confusion between the two processes and his approach must be exposed. Quebeckers must be aware that no civil court will ever impose punishment on a person guilty of a driving offence; without the benefit of that information, victims may be considerably disillusioned. Civil immunity exists for a reason: Indeed, all drivers (the source of risk) must purchase insurance coverage; they pay a premium to protect themselves in advance from the consequences of a potential accident, hence the obligation for the insurer (the Société) to indemnify any victim of these drivers. Contrary to what some lawyers would have us believe, the right to sue is not a fundamental right of individuals: What is fundamental, is the right for a person to be compensated fairly.
Furthermore, has anyone stopped to consider the iniquities that would result from such a two-tiered system which would grant certain victims the right to sue and deprive others from that same right? One can imagine the pressures that would come to bear on Crown prosecutors for the laying of criminal charges. Knowing that an average of some 250 days lapse before a conviction can be obtained in matters related to a vehicular offence and that civil suits can also last several years, would we not be creating unrealistic expectations for victims? Is it not acknowledged that slow justice amounts to no justice? According to statistics collected by the Société for the year 2000, 43% of vehicular offenders had no source of income and 41% earned less than $30,000 per year. That being the case, it appears that opposing counsel are the only ones who would really stand to benefit from civil suits. Have enough efforts been devoted to explaining to the public that impaired driving (the vast majority of vehicular offences) is not automatically the cause of whatever injuries are suffered in accidents and that the victims’ behaviour will also be subject to close scrutiny? Has anyone pointed out that compensation received under the Automobile Insurance Act is often comparable to what a victim might have been awarded by a court and this, expeditiously and without legal fees?
And once that door has been opened, why should the right to sue be applicable to offenders only? What logic could be invoked to prevent anyone from suing the parents of an unemployed 17-year old who has been found guilty of dangerous driving? From suing a restaurant owner who did not restrain a customer who had had a bit too much to drink? Or, as happened in Ontario, the owners of a private home who allowed an inebriated guest to drive away? Why should we allow civil suits against a person who might have had a little too much to drink, all the while disallowing similar action to be taken against a sober driver who ran a red light and hit a pedestrian (the simple fact of running a red light is not per se considered dangerous driving under the Criminal Code)?
Finally, what driver could truthfully contend that he or she is totally shielded from a momentary lack of judgment, from driving while impaired as the result of having had just a little too much to drink or as the result of what was perceived as an apparently harmless combination of wine and medication? Minister Bellemare thrives on surveys; yet, he never refers to the survey in which 1.9 million persons holding a driver’s licence admitted to the likelihood of their getting behind the wheel even if their blood-alcohol level exceeded the legal limit. Obviously, people would want to purchase insurance to protect themselves against such a risk, a fact clearly acknowledged by the Insurance Bureau of Canada which stated that automobile insurance premiums in the Province of Quebec would rise if the proposed reforms were implemented. And how did the Minister respond? By saying that he would prevent people from purchasing insurance…
Ending All Forms of Compensation
Notwithstanding its punitive nature which, as was previously sated, is alien to any compensation plan under civil law, this second measure is based on financial considerations: it is claimed that the State could save millions of dollars each year. Yet, nothing could be further from the truth. Indeed, whatever benefits are currently paid out to those having caused an accident are not paid out by the State but by a publicly operated insurance company which is funded in full by the premiums paid by Quebec drivers. What is worse still, this proposed reform would increase the financial burden on the Department of Health since the Société currently reimburses the Régie de l’assurance maladie du Québec (RAMQ) [Quebec Health Insurance Board] for all health services provided to delinquent drivers. According to Minister Bellemare, savings could amount to 15 million dollars per year; however, it is a known fact that 12.4 million of those dollars relate to health-care services and that knowledge sheds a totally different light on the resulting “savings” for the Province—unless what is being considered is to cease providing treatment for criminal drivers who cause an accident…
Hence, the real savings would amount to some 2.6 million dollars—a mere drop in the bucket, considering that the Société pays out some 600 million dollars in compensation each year. Let us consider some of the pernicious effects that would result from wanting to save that small amount: the dependents of criminal drivers would be left without any form of protection, even though they committed no fault; victims would need to rely on welfare for assistance (an additional burden on the State). Does it not make more sense to expect drivers—those who are the source of risk—to cover the full costs associated with the operation of a motor vehicle?
Finally, one can easily anticipate some of the practical difficulties of implementing this measure. For example, would the presumption of innocence be set aside and would the State deny compensation to potential criminals before knowing the outcome of their trial?
An Obligation to Refund All Amounts Devoted to the Compensation of the Other Victims Involved
From a logical perspective, this measure seems flawless: indeed, why not force a criminal driver to refund the Société for the amounts it has had to pay out in compensation because of his or her behaviour if he or she has sufficient means to do so? Once again, all is not as simple as one might think.
On the one hand, one needs only consider what happens in cases where such recourse exists (a process known as the right of subrogation) to realize the enormous practical problems that derive from it. For instance, few people know that the Commission de la santé et de la sécurité du travail is responsible for the management of the Crime Victims Compensation Act and that, in 15 years, it has never resorted to the right of subrogation against a criminal, even in cases where he or she was easily identifiable: the costs and energies required simply outweighed the benefits on rare occasions where the Commission was able to recover small amounts. And one would wish for the Société to adopt that same illusory process against a similar group of offenders? The situation is much the same in the case of the Régie de l’assurance maladie du Québec (RAMQ) which invokes this right only when the person who is responsible for a victim requiring treatment is insured (and for this to be possible, legislative amendments were required compelling insurance companies that provide liability coverage to inform the RAMQ of existing coverage).
On the other hand, and this is fundamental, adopting this amendment would create a rather awkward situation whereby an insurance company would be entitled to sue its own client (a driver who has already paid his or her premium). Given that Minister Bellemare has often accused the SAAQ of acting as an inquisitor rather than providing support for accident victims (a clear exaggeration on his part), the resulting message is somewhat contradictory. Setting up investigative mechanisms and creating a climate where all new claimants are treated as suspects will in no way contribute to improving client relations!
Conclusion
Quebec’s automobile insurance plan is one of the best in the world: one needs only consider the extent of the automobile insurance crisis in the various provinces that do not enjoy the benefits of no-fault insurance to realize the extent of Quebeckers’ good fortune. As a matter of fact, countries throughout the world are attempting to adopt the Quebec model because it has proven its effectiveness: quick and fair compensation to all direct victims of an automobile accident at a cost that defies all comparison. What automobile insurance company, anywhere in the world, can boast about not increasing its premiums for some 20 years ($142 per year for a personal vehicle, including taxes)? And boast that 89 cents out of every dollar of premiums is paid out to victims, whereas the average for Ontario and the Atlantic provinces is approximately 65 cents?
Simple, effective and swift are the three words that best describe our system. A major cause of that success is the absence of civil litigation. Let us rely on the criminal law to punish those who misbehave on our roads and let us not expect that legislation designed to provide compensation will take on a punitive role, a role which it was never intended to play. Is it not saying that the number of automobile accidents linked to impaired driving has dropped steadily for the past fifteen years or so? These results are attributable to harsher criminal sanctions and a more effective use of administrative sanctions (suspension of drivers’ licences, seizure of vehicles), as well as adequate police surveillance; these measures were and remain the only ones that can still have an effective deterrent effect in this matter.
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Whether viewed from a legal, financial or social perspective, the proposed reforms simply do not live up to close scrutiny.
