Exactly when does bad driving become a criminal action?
My very first observation, after the very first day of Gideon Fekre’s trial for dangerous operation of a motor vehicle causing death, was that things happen quickly on the road. Terrible things, with horrifying consequences.
As lawyers wrapped up their arguments before the Ontario Superior Court on Monday, that theme carried through to the end. Under questioning by Mr. Justice Peter Bawden, both lawyers acknowledged that the behaviour under scrutiny in this case lasted for, at most, a few seconds. It could actually be less than a second, depending on how you judge the evidence.
That’s the time Fekre’s attention was diverted by a water bottle that had fallen to his feet. He reached down to grab it and diverted his eyes from the road just as his car approached a curve on Dundas St. E. As a result, his car mounted the sidewalk and struck Kristy Hodgson, 31, who had been walking her dogs. Hodgson died of her injuries later.
The verdict hinges on whether this is normally bad driving or criminally bad driving
That moment of inattention caused her death. How it is interpreted will decide if Fekre is criminally responsible, subject to a possible prison sentence of up to 14 years.
As the lawyers cited case law Monday, and Justice Bawden interjected with questions, it became clear that the key decision before the court is whether Fekre’s reaction in the course of those few seconds is a “marked deviation” from what a “reasonably prudent” driver would do under the circumstances.
In the words of Justice Bawden, he must find the behaviour “morally blameworthy” as opposed to “human error.”
Or, as the layman might put it, the verdict hinges on whether this is normally bad driving or criminally bad driving.
This is a standard laid out by the Supreme Court. “Even good drivers are occasionally subject to momentary lapses of attention . . . But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving,” the court wrote in 2012 in a case called R v. Roy.
And that is the crux of the problem, it strikes me, facing the many people who believe that our justice system needs to deal more severely with driving infractions.
Driving is among the most common activities among adults in our society. And driving, when done normally as many reasonably prudent people do it, can be deadly. Virtually everyone who drives makes mistakes at one point, though most of those mistakes don’t result in any bad consequences at all. No one gets hit. There is no collision. No traffic ticket is issued, never mind a criminal charge.
When bad driving — or at least mistaken driving — is so commonplace and even expected, how do you determine which mistakes are punishable by imprisonment?
You cannot decide, the courts have made clear, based on the results — which in this case are clearly horrific. It needs to be the behaviour itself. And the deviation, the “marked” deviation, needs to be proven beyond a reasonable doubt.
Crown attorney Scott Patterson argued that the circumstances combined met the threshold: that bending down to reach for the bottle was a conscious decision made as the car approached a bend in the road, next to a bike lane in an urban area, where a reasonable driver would know full attention was required.
Defence attorney Jordan Gold argued the distraction was not conscious — it was a reflexive reaction to an unexpected circumstance. It was, he argued, a “momentary lapse” of the kind found not to be criminal in previous court decisions.
Bawden will deliver his verdict in court Tuesday afternoon. His is a difficult decision about criminal culpability. I don’t know what he will decide — or even, after sitting through all the evidence, what he should decide. I’m not a judge in a criminal court.
But it does seem to me that by common sense standards of moral blameworthiness, any way of driving that leads to a situation where a momentary distraction might result in driving at 50 kilometres per hour along the sidewalk for 20 metres or more is unacceptable. A decent driver sees the road well ahead of them, and no passing diversion ought to so wildly disorient them that it placed bystanders at such obvious deadly risk.
If we consider that kind of driving normal, or reasonable, or prudent, we are in trouble. And if our law can consider it those things, perhaps we need to rewrite the law. Edward Keenan writes on city issues ekeenan@thestar.ca. Follow: @thekeenanwire