Bad driving, but not criminally bad driving. That, in a nutshell, was the ruling of Mr. Justice Peter Bawden in finding Gideon Fekre not guilty of dangerous operation of a motor vehicle causing death. Explaining his verdict to a packed courtroom Tuesday after a week-long trial, Bawden ruled that it was a “momentary lapse of attention” that caused Fekre to fail to negotiate a turn on Dundas St. E. approaching Carlaw Ave. in April 2015, crossing a bike lane, and driving onto the sidewalk for a distance of “some 20 metres,” where he struck and ultimately killed 31-year-old Kristy Hodgson and one of the two dogs she was walking at the time. ‘We cannot hold drivers to a standard of ideal decision-making when making split-second decisions,” Bawden said. He found Fekre’s made an “imprudent but reflexive decision.” Fekre admitted at the scene and on the stand that he had taken his eyes off the road and reached down with his right hand when a water bottle fell at his feet while he was driving. All sides in court agreed the distraction was momentary. The defence had argued this was a matter of instinctive reflex, while the crown argued Fekre made a conscious decision to divert his attention at a critical moment. The judge said he found the crown had not proven this beyond a reasonable doubt. And so while he found that the driving was obviously dangerous, and that taking his eyes off the road was a “departure from what a reasonably prudent driver” would do in the situation, it was not “a marked departure” from that standard that rose to the level of requiring criminal sanction. The driving in question could lead to culpability in a civil trial, the judge noted, but the criminal standard for dangerous driving outlined in Supreme Court decisions is higher. Bawden explained that the duration of the lapse in attention was key to his decision. According to the crown’s expert witness, traffic off ...
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