On November 21, 2017, Mr. Justice Peter Bawden found Gideon Fekre not guilty of dangerous operation of a motor vehicle causing death.
In April 2015, 18-year old Fekre was driving on Dundas St. E. approaching Carlaw Avenue when he crossed a bike lane and drove onto the sidewalk for 20 metres, ultimately striking and killing Kristy Hodgson and one of her two dogs that she was walking.
Fekre told the Court,
I was coming down Dundas from the Eaton Centre….My water bottle dropped, and I reacted, is the best way of putting it. I reached down with my right hand to pick it up, kept my left hand on the steering wheel. …[I realized] the direction I was heading was onto the sidewalk toward a woman and her dogs.
Fekre testified at trial that he tried to avoid Hodgson by hitting his brakes and turning the steering wheel towards the road, but was unsuccessful.
Police officers testified that Fekre’s car had left the roadway, crossed a bike lane, and driven on the sidewalk for more than 20 metres at approximately 52 kilometres per hour. Fekre had told the officers at the scene that he had taken his eyes off the road for “just a second” while trying to retrieve a water bottle that had fallen onto the floor beneath his feet.
THE OFFENCE: DANGEROUS OPERATION OF A MOTOR VEHICLE CAUSING DEATH
The criminal charge of dangerous operation of a motor vehicle causing death is a serious criminal offence punishable by up to 14 years in prison as set out in section 249(4) of the Criminal Code of Canada. This offence consists of two components:
- the prohibited conduct (operating a motor vehicle in a dangerous manner resulting in death); and,
- the required degree of fault (marked departure from the standard of care that a reasonable person would observe in all the circumstances).
In the 2012 case of R. v. Roy, the Supreme Court of Canada clarified the legal principles to be applied in determining the criminal standard for dangerous driving. The Court set out the two questions to ask in determining whether the fault component is present:
- In light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?
- Was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?
In the case of R. v. Roy, the Supreme Court of Canada found that the trial judge erred in law by inferring from the fact that Roy had committed a dangerous act while driving that his conduct displayed a marked departure from the standard of care expected of a reasonable person in the circumstances. The Supreme Court allowed the appeal, set aside the conviction and entered an acquittal.
DECISION BY THE TRIAL JUDGE
The real question before the court was whether Fekre’s reaction in the less than two seconds was a “marked deviation” from what a “reasonably prudent” driver would do under the circumstances.
Was it [reaching for a water bottle] a marked departure from what a reasonable driver would have done?
Justice Bawden found that the Crown prosecutor had not proven beyond a reasonable doubt that Fekre made a conscious decision to divert his attention at an essential moment while driving. He did state that the driving in question could lead to liability in a civil trial, but he did not meet the higher criminal standard for dangerous driving outlined by previous decisions before the Supreme Court of Canada.
Justice Bawden specified that the duration of the interruption in attention while driving was essential in coming to his decision. The evidence showed a period of inattention lasting between 0.74 seconds to 1.18 seconds. This, according to Justice Bawden, qualified as a “momentary lapse of attention” which had been deemed non-criminal by the Supreme Court. He stated, “We cannot hold drivers to a standard of ideal decision-making when making split-second decisions”. He found that Fekre made an “imprudent but reflexive decision”.
Furthermore, Fekre’s behavior at the scene showed concern for the victim and dramatic remorse, which enhanced his credibility.
CHANGES IN THE FUTURE
The Liberal government currently has a proposal on the table to establish new road safety measures, which we have previously blogged about.
The proposed legislation includes the offence of careless driving resulting in death or bodily harm with a maximum fine of $50,000.00, license suspension, and imprisonment. We will provide updates regarding this new legislation as information becomes available.
If you are facing a dangerous driving charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.