Justin's Case — Mischief (Road rage) — Stayed

Client:  Justin D., Accused
Complainant:  Another Driver
Charge:  mischief to property, Criminal Code, ss. 430(1)(d) and 430(3)

Background:  Justin had many blessings. His career was flourishing. His wife was pregnant with their first child. He had every reason to be grateful when he set out on what he thought would be an uneventful day. But life sometimes throws us a challenge. While driving home from Markham after shopping, Justin and his wife were carelessly cut off by a female driver. Justin protested by honking his horn. Rather than give a conciliatory nod, the other driver flipped the bird, adding insult the injury. Justin and his wife became enraged. They followed the other driver. When she parked her car, Justin stopped immediately behind her, intent on giving her a piece of his mind. Justin jumped out of his car, and started yelling and pounding on her driver's window. Now quite alarmed, the other driver reversed in a panic. Justin's pregnant wife was behind the approaching car. Justin instinctively grabbed the mirror, causing damage to both the mirror and the driver's door. The car bumped into Justin's wife, causing her to have a panic attack. The ambulance and the police were called. While emergency personnel attended to Justin's wife, the police arrested Justin for mischief and damage to property.

READ THE POLICE REPORT

Goals:  Justin wanted to avoid a criminal record at all costs.

Strategy:  When I first met Justin and his wife, they were still upset at the other driver. "But for her misbehaviour, we wouldn't be in this mess," they correctly pointed out. Unfortunately, that's not a starting point strategically. Only Justin was charged. Although an independent observer might label both of these drivers as hotheads, only Justin's head was on the chopping block. He was the one at risk of receiving a criminal record. The anticipated evidence at trial didn't look great for us. Even though Justin might have been justified in trying to hold back the car — he was, after all, attempting to protect his wife and unborn child — he could still be found guilty because he blocked the other driver's exit. At trial, the Crown would only have to prove that Justin intentionally interfered with the other driver's lawful use of property. Trial was a risk I wanted to avoid. I knew that I couldn't just waltz into the Crown's office and ask that the charge be withdrawn. "Road rage" incidents are taken seriously by the Crown, and rightly so. I focused instead on an application for mental health diversion. If I could demonstrate (i) that Justin had a mental or behavioural problem, (ii) that there was a connection between that problem and the commission of the offence, (iii) that it was treatable, and (iv) that Justin was prepared to accept treatment, I might get the charge withdrawn or stayed.

Results:  Justin went off to a psychotherapist for an assessment. We patiently waited for the outcome. The report was promising. The doctor explained that there were stressors in Justin's life at the time — primarily connected to his work — that caused him to have incredibly bad judgment the day of the incident. The doctor recommended that Justin attend counselling to deal with the underlying issues. Justin agreed. I presented the proposal to the Crown and the mental health coordinator. I also proposed that Justin would pay for the damage. The Crown agreed not to prosecute Justin and to deal with his case on a mental health basis. As a result, his charge was stayed. (A "stay" is like a freeze of the proceedings. It is similar to a withdrawal, as there is no finding of guilt.) Justin finished the ordeal with no criminal record, and a tad bit wiser.

READ THE COURT TRANSCRIPT
READ JUSTIN'S TESTIMONIAL