R. v. Fekre, 2017 ONSC 7799

CITATION : R. v. Fekre, 2017 ONSC 7799 COURT FILE NO.: 16-70000359-000 DATE: 20171121 SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN v. GIDEON FEKRE R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE P. BAWDEN on November 21, 2017, at TORONTO, Ontario

APPEARANCES : S. Patterson Counsel for the Crown J. Gold/T. Surmanski Counsel for Gideon Fekre SUPERIOR COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR JUDGMENT Legend [sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.

(ph) – Indicates preceding word has been spelled phonetically. R E A S O N S F O R J U D G M E N T Bawden, J: (orally) On April the 20th, 2015 Mr. Fekre was driving to his home in East York, from the Eaton's Centre in Toronto at about 2:00 in the afternoon. He was driving east on Dundas Street East and approaching the intersection of Dundas and Carlaw, when his car suddenly strayed across a bike lane, jumped the curb and travelled on the sidewalk for a distance of almost 20 metres, before striking and killing a pedestrian who was walking on the sidewalk. Mr.

Fekre's driving was completely normal, prior to entering the bike lane. He was travelling at roughly the same speed as other vehicles on the road. He was not impaired in any fashion, and his vehicle was in good working order. Mr. Fekre called 911 after the accident. He was described by a police officer as being inconsolable after the accident had occurred and he repeatedly inquired about the well-being of the woman that he had struck. He immediately identified himself as the driver of the vehicle to police, and he made statements to two different officers at the scene concerning what had happened.

He told Constable Reid, "I took my eyes off the road for just a second." He told PC Rorke that he had dropped a bottle of water and reached down to pick it up. These statements were admitted by the defence to have been voluntarily given and they were introduced by the Crown as part of the Crown's own case. Mr. Fekre has testified at this trial and his evidence was consistent with both of those statements. The Crown contends that the evidence heard in this trial, proves beyond a reasonable doubt, that Mr. Fekre has committed the offence of dangerous driving causing death.

I begin with a brief statement of the law: Although I have been referred to many cases in the course of submissions, I have found that this case can be resolved on the basis of the law, as it was most simply stated by Justice Cromwell, speaking for the entire Supreme Court of Canada in the 2012 of Roy . Justice Cromwell summarized the test for dangerous driving at paragraph 28 of the decision:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1) (

a) of the Criminal Code ). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances ( Beatty , at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm.

While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). Dealing firstly, with the actus reus : I have little difficulty in finding that the Crown has proven the actus reus of dangerous driving beyond any reasonable doubt. The defendant by his own evidence was driving between 40 to 50 kilometres per hour on Dundas Street East, when he failed to negotiate a curve in the road.

He strayed from his lane, crossed over into a bike lane, mounted the curb and then drove some 20 metres along a pedestrian sidewalk before striking the victim. This driving took place in a dense urban area, at a time when any reasonable person would certainly foresee the risk this driving entailed to members of the public, including bike riders, pedestrians and other car drivers. The roadway was clear and there is no evidence of any obstruction, which prevented the defendant from observing the curve in the road.

A reasonable person would certainly foresee the risk to the public of driving in this fashion, and that makes out the actus reus of this offence. The mens rea: The clear issue in this case is whether the Crown has proven the mens rea or the mental element of this offence beyond a reasonable doubt. Mr. Fekre testified that his water bottle dropped and that he reacted by reaching down with his right hand to pick it up. When he next looked up at the road, he noticed that his direction was onto the sidewalk and towards a woman and her dogs. He immediately tried to get back onto the road. In cross-examination, Mr.

Fekre testified that when the bottle fell, he was worried that it could become lodged under the pedals of the car, and constitute a hazard. The first question that I must resolve is whether Mr. Fekre's conduct, viewed in all the circumstances, constituted a departure from what a reasonable and prudent driver would do in the circumstances. Mr. Gold argued to me that a prudent driver might well have concluded that having an unsecured water bottle on the driver's floor constituted a sufficient hazard to justify momentary inattention to the road, in order to secure the bottle.

After careful consideration of all the circumstances of this case, I have concluded that I cannot accept that argument. I accept that a driver might reasonably view an unsecured rolling bottle on the floor of the driver's side of the car, to be a hazard. I can't accept that taking ones eyes off the road, while driving with speed, in an urban area, is a satisfactory response to that risk. A reasonably prudent driver would have waited for a safe opportunity to pull the car over to look for the bottle.

At very least, a reasonably prudent driver would have scanned the road ahead to ensure that there were no imminent hazards while he quickly scanned for the bottle. There might be circumstances where a momentary glance to find the bottle would have been a reasonable action, by a prudent driver. If Mr. Fekre had been driving on a straight and empty country road, the situation might be different. But, this was downtown Toronto at mid-day, when a reasonable driver must take into account the presence of pedestrians, cyclists and other traffic. These circumstances demand a heighten degree of attention to the road.

Thus, I find that this was a departure from what a reasonable driver would do in all of the circumstances that were presented to Mr. Fekre. The real question in this case is whether the Crown has satisfied me beyond a reasonable doubt that Mr. Fekre's departure was a marked departure from what a reasonably prudent would have done, such that it merits criminal sanction. In order to answer this question, I must review the evidence in detail. I consider first, the duration of the purportedly dangerous driving. Exhibit 8E includes all of the pertinent measurements which arose in the course of the evidence.

Detective Constable Mutis was one of the investigating officers at the scene of the collision, and she was qualified without objection to give expert testimony concerning motor vehicle accident reconstruction. Detective Mutis considered measurements obtained at the scene, video surveillance, and photographs informing her opinions about this case. She examined surveillance video from camera number one, which was positioned on the south side of Dundas Street and she testified that Mr.

Fekre's driving was entirely normal until he was slightly west of a chevron, which appears in the bike lane on the south side of Dundas Street. At that point, the Honda Civic strays into the bike lane and continues in a straight line as Dundas Street curves to the left. The timestamp on the video is 2:12:43 p.m., when the car approaches the chevron. Detective Mutis measured the distance from where the car leaves its lane, until the point where it hits the curb to be a distance of 10.86 metres. She initially testified that the curb strike was the first sign that Mr.

Fekre was attempting to correct the path of the Honda. At 52 kilometres per hour, that 10.86 metre distance would be traversed in only 0.74 seconds. On that analysis, Mr. Fekre's total period of inattentive driving would be less than three-quarters of a second. At a later point in her evidence, Detective Constable Mutis suggested that perhaps the first conclusive sign of correction was not the curb strike, but rather where the first tire mark appeared on the sidewalk. Mr. Patterson, on behalf of the Crown accepts that the tire marks unmistakably demonstrate a corrective action on the part of Mr. Fekre.

That first tire mark would be a distance of 17.34 metres from the point where Mr. Fekre's vehicle entered the bike lane. Again, at 52 kilometres per hours, this would still represent only 1.18 seconds of inattentive driving. On the evidence of the Crown's own expert witness, this would be a miniscule period of inattentiveness. In his submissions, Mr. Patterson urged the Court to find that there was a longer period of inattentiveness than that which is described by Detective Constable Mutis.

He urges me to find that the Honda successfully negotiated a slight curve in the road, shortly prior to coming into view on camera number one, and then assumed the straight line, which would ultimately cause the vehicle to stray into the bike lane and jump the curb.

Mr. Patterson could not be precise as to where this point of inattention would begin. He acknowledged that his own expert witness had not endorsed an early point of inattention, but he maintained that as the trier of fact, I could review the video myself and conclude that the first evidence of inattention was somewhat earlier than the one that had been identified by Detective Mutis. I accept Mr. Patterson's submission, that as the trier of fact, I am not bound to accept the evidence of the expert witness with respect to the point where the inattentive driving begins.

I have reviewed the video many times, in order to give effect to this submission. While I am inclined to agree with Mr. Patterson, that the officer has been quite conservative in her assessment of where the period of inattention begins, I cannot find any fault in her approach. My own conclusion is that the officer has affixed the first point of inattention based on clear evidence in the video. One could readily speculate that the period of inattention began earlier, or even much earlier than what appears in the tape. But, I could not find evidence in the video to support that speculation.

I am prepared to accept Detective Constable Mutis's evidence that the first evidence of inattention is as she represented it, on the various diagrams, which have been exhibited during this trial. As a final observation on this point, I suggested to Mr. Patterson, during his submissions, that taking his position as to the period of the inattentiveness at it's very highest, the total distance of inattentive driving, would be no more than 32 metres. That distance would be traversed in slightly over two seconds, at 52 kilometres per hour. Mr. Patterson accepted that this was so.

Section 249 of the Criminal Code does not dictate any distance or timeframe which is required to make out the offence of dangerous driving. The

section averts instead to all of the circumstances which obviously includes the duration of the purportedly dangerous driving. Based on my review of the case law, and the facts of this case, I would view this as being at the very shortest duration of dangerous driving. Taking into account the evidence of time, distance and speed in this case, I would find that this duration of driving is best described as a momentary lapse of attention. There is absolutely no basis on the evidence to describe this as a pattern of dangerous driving. The next factor that I have considered is speed.

Exhibit 6 is a video from a fisheye camera. This video shows the procession of a Toronto District School Board van, then the Honda, and then a Purolator van as they all travelled east on Dundas Street. Detective Mutis testified that all three vehicles appeared to be proceeding at the same speed and that that speed was appropriate to the area and the time. Lloyd Bayne, the driver of the TDSB truck, which was immediately in front of Mr. Fekre's Civic estimated that he was driving slightly under the posted speed limit of 40 kilometres per hour. Mr.

Fekre testified that he was driving between 40 to 50 kilometres per hour. In her accident report, Detective Mutis concluded that speed was not a factor in this accident, and she endorsed that position in her evidence at trial. Mr. Patterson has asked me to consider this speed of Mr. Fekre's vehicle as being relevant to the period of inattentive driving. Although he concedes that Mr. Fekre was attempting to correct the course of the Honda at the point where the tire marks begin on the sidewalk,

Mr. Patterson argues that the Civic was still going at a high rate of speed when it finally collided, with force, against the side of Mr. Bayne's TDSB truck. From this, Mr. Patterson would ask me to draw the conclusion that Mr. Fekre's dangerous and inattentive manner of driving continued during the time that he was actually driving on the sidewalk. Mr. Bayne testified that he was proceeding east on Dundas towards Carlaw and was facing a green light when he felt his vehicle being struck. He believed that he was going under the posted speed limit. Mr.

Bayne was cross examined on a statement that he made shortly before trial where he estimated that his speed may have been in the range of 15 kilometres per hour. Mr. Patterson urges me to find that Mr. Bayne was, in fact, going slightly under the posted speed limit of 40 kilometres per hour when he was struck by the Civic. In order for the Civic to have caught up to, and collided with Mr. Bayne's truck, he must have been travelling at speeds in excess of 40 kilometres per hour as he left the curb.

The only direct quantitative evidence to be considered with respect to the speed of the Honda Civic came from the evidence of Detective Mutis. Detective Mutis determined that the video obtained from camera number one, on the south side of Dundas, advanced at the rate of 30 frames per second. Exhibit 2, slide 25 is a still image from camera number one, showing red lines to delineate markers for measuring the distance that a car travelled while on video.

Measuring that distance and then determining the number of frames of video which passed before the car traversed the space provided Detective Mutis with a rough means of calculating speed. Based on this method of calculation, Detective Mutis concluded that the Honda Civic was travelling at 52 kilometres per hour shortly after entering the bike lane and before striking the curb. I have some reservations about this calculation of speed. This distance measured is extremely short, only 8.75 metres. The time that the vehicle enters and leaves the space is a subjective determination based on low definition video.

Detective Mutis did not offer any margin for error in her estimation of the speed. There is no evidence of any efforts to confirm the methodology for the calculation by, for instance, testing the reliability of the calculation using the speed of known cars passing through the same space. The only conclusion that I can reach is that Mr. Fekre's vehicle was travelling at roughly the same speed as other traffic on the roadway at that time and that speed was not inherently dangerous. Mr. Fekre testified that he was breaking hard in order to avoid hitting Ms. Hodgson and there is no evidence to contradict that.

I find that Mr. Bayne's estimation of his speed at the time of the collision is not sufficiently reliable to draw any significant inference from it. In the absence of expert evidence, I cannot conclude that the damage to the Honda Civic is indicative of any range of speed at the time of the collision with the TDSB van. In short, I find that the evidence of the speed of Mr. Fekre's Honda Civic does not contribute to the allegedly dangerous nature of the driving.

The Manner of Driving As I indicated earlier, Detective Mutis testified that the Civic was driven entirely normally, right up until the point that its left its lane and entered the bike lane. She testified that there is no evidence of erratic or careless driving prior to that point.

Slide 24 of Exhibit 2 appears to be the best illustration of the movement or the path of the vehicle. It appears in that photo that the Honda failed altogether to negotiate a turn in Dundas Street East and it went in a straight line up onto the curb when it should have steered to the left. This is what Mr. Fekre testified occurred. Detective Mutis agreed in cross-examination that this is a likely explanation for the accident. And both counsel took a position in submissions, that this was the one and only finding available to me based on the evidence heard at trial. I agree with their position.

The Gentle Curve of the Civic's Path on the Sidewalk In her evidence in-chief, Detective Mutis described that path of the Honda while it was travelling on the sidewalk as a gentle curve. She testified that a driving pattern of this kind is consistent with a driver who did not perceive an upcoming hazard. If the driver had noticed the danger, the signs of an evasive action are generally more dramatic. She was not questioned at length on this point and did not offer a determinative answer as to whether this analysis applied in this case or not. Mr. Fekre testified that he did see Ms.

Hodgson when he looked up and then he made immediate efforts to avoid hitting her. I do not take Detective Mutis' evidence to preclude this possibility. And, accordingly, it is not a factor that I have taken into account in assessing the reliability or credibility of Mr. Fekre's evidence. The Weather There is no eye witness evidence of weather conditions at the time of the collision. Mr. Patterson has pointed out to me that the video from the fisheye camera, in Exhibit 6, appears to show that the roads were dry seconds before the collision occurred. There is no evidence from Mr.

Fekre or any other source to suggest that weather impacted on his manner of driving. Based on the evidence in Exhibit 6, I conclude that the roads were likely dry at the time of the collision, and in any event, weather was not a factor in Mr. Fekre's driving. The Evidence Concerning Breaking Efforts by Mr. Fekre Detective Mutis testified that the Honda Civic has ABS breaks. Unlike conventional breaks, the breaking action of an ABS vehicle will leave only light tire marks on the roadway.

Detective Mutis did not see any evidence of such light marks, consistent with ABS breaking, but she testified that such marks are so faint that they disappear quickly, especially after rain. Rain had already begun to fall by the time that Detective Mutis arrived on scene, and it rained heavily during the time that she was investigating. There is no forensic evidence to prove the presence or absence of breaking by Mr. Fekre. Detective Mutis agreed in cross-examination by Mr. Gold that it is entirely possible that Mr. Fekre was breaking and the evidence of it has simply washed away. I have no cause to reject Mr.

Fekre's evidence that he began to break the instant that he realized that his vehicle was going up onto the sidewalk and in the direction of Ms. Hodgson. The Evidence of Mr. Fekre Mr. Fekre testified that as he was driving east on Dundas Street his water bottle dropped. He reacted by reaching down with his right hand to pick it up while continuing to steer the vehicle with his left hand at the 12:00 position on the steering wheel. His attention was momentarily distracted from the road as he tried to locate the bottle.

When he looked up, in his words, "to get a visual" he saw that his car was driving towards the sidewalk and in the direction of Ms. Hodgson and her dogs.

Mr. Fekre testified that he was not impaired by any substance while he was driving and that there was no other distraction in the vehicle apart from the falling bottle which contributed to his moment of inattention. His evidence in these regards was not challenged in cross- examination. Detective Mutis testified that she did find a water bottle on the floor of the driver's side of the car. The bottle had been opened and partially consumed, but it was sealed at the time that she found it. Detective Mutis also found a case of water on the back seat of the car. Mr.

Patterson very effectively challenged the reliability of Mr. Fekre's evidence in cross-examination. He pointed out the inability of Mr. Fekre to provide any evidence concerning where the water bottle had initially been stored in the car or how it had come to fall to the right side of the driver's side floor. Mr. Patterson noted an arguable inconsistency in Mr. Fekre's evidence. On the one hand, he testified that his reaction to the falling bottle was instinctive.

But, in cross-examination he suggested that the effort to find the bottle was a considered one arising from a concern about the hazard of having the bottle become lodged under the pedals of the car. Mr. Fekre was unable, in cross-examination, to provide any clear explanation of his physical movements to secure the bottle which impeded his ability to see the road. The most significant moment in the cross-examination, from Mr. Patterson's standpoint, was likely when he occasioned Mr.

Fekre to state, "I never stopped paying attention," a statement which would be at odds with his initial statements to the police and all of the evidence in this case. As a result of that cross-examination, I do have significant reservations concerning the reliability of Mr. Fekre's account of the accident. That, however, should not be considered surprising. This accident occurred almost two-and-a-half years ago and the entire highly traumatic event occurred in less than two seconds. In my view, it would be a rare witness who could give reliable evidence in circumstances such as that.

Perhaps disappointingly for Mr. Patterson, his very effective cross-examination did not ultimately diminish my confidence in Mr. Fekre's credibility. To my mind, the best evidence of Mr. Fekre's credibility as a witness is his behaviour on the day of the incident. Mr. Fekre called 911 after the accident and he stayed on scene pending the arrival of police. He was observed to be emotionally distraught at the scene and he was repeatedly inquiring about the well-being of the victim.

He immediately identified himself to police as the driver of the Honda Civic and he made statements to two different officers regarding the cause of the accident. He evidently gave those statements without the benefit of legal advice or likely any consideration as to how they could affect his legal interests, notwithstanding the obviously dire circumstances of this collision. I do not intend to give undue credit to Mr. Fekre for simply abiding by his legal obligation to remain on scene. He was not however, legally obliged to explain what had happened to the investigating officers. He did that on his own volition.

His evidence at trial, two-and-a-half years later, may have expanded on the statements that he made to those officers at the scene within minutes of the accident. But, he did not resile in anyway from the what he told the police on that day. In short, Mr. Fekre may have been a clumsy witness in his own defence at trial, but in my view, his credibility as an individual is well established by his conduct on that day, and no degree of cross-examination could ever alter that.

I accept Mr. Fekre's testimony, that the water bottle dropped, and that he reflexidly took his attention from the road in order to find the bottle and secure it. I also accept his evidence that he perceived that the bottle presented a risk to the safe operation of his vehicle and that this concern motivated his reflexive action to secure the bottle. In a case of dangerous driving, these factual findings are not by any means determinative of the ultimate issue of the case. As Mr.

Patterson pointed out to me yesterday, there are undoubtedly occasions where a well-intentioned driver nevertheless drives in a dangerous manner which could be described as a marked departure from the standard of a reasonably prudent driver. Nevertheless, in a case where I ultimately must decide whether Mr. Fekre's imprudent driving decision was so imprudent that it merits criminal sanction, his innocent and remorseful behaviour at the scene certainly does him no harm.

And so, the final question, was this merely a departure from a standard of a reasonable driver in all the circumstances, or was it a marked departure from what a prudent and reasonable driver would have done? To reiterate the test from the Supreme Court of Canada in Roy : [28] ....While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment.

As I said earlier, I certainly view this as a departure from the standard of a reasonably prudent driver. The question is whether the departure is so marked that it merits criminal punishment. There is evidence from the Crown's own expert witness which would allow me to find that the period of proven inattentiveness was for a distance of only 10.86 metres or 0.74 seconds of travelling time. The same witness testified that the outside range of inattentiveness was 17.34 metres or only 1.18 seconds of travel time.

The Crown attorney has urged me in submissions, to find that the inattentiveness might have been as long as 32 metres or approximately two seconds of travel time. All of these observations lead me to conclude that whatever the exact period of inattentiveness was in this case, it falls squarely within the range of cases which courts have described to be a momentary lapse of attention. Such lapses do not ordinarily lead to findings of criminal liability. Mr. Patterson has persuasively argued to me that I should not view this as a momentary lapse of attention but rather, based on Mr.

Fekre's own statement to police, it is a case where the accused decided to allow himself to be distracted. Although I would describe this as an attractive submission, I ultimately conclude that it fails to take into account the instinctive nature of driving. This Court cannot hold drivers to a standard of ideal decision making when faced with split second driving decisions. Mr. Patterson's argument, to some degree, can be addressed by reference to a hypothetical that he, himself, developed in the cross- examination of Mr. Fekre.

Mr. Patterson established, in his cross-examination, that Mr. Fekre is an experience soccer player and athlete. He suggested to Mr. Fekre that as an accomplished athlete, he would have been capable of controlling the pedals of the vehicle with his right foot while secure the rolling water bottle with his left. This was presented to Mr. Fekre in the stand as a reasonable and prudent alternative to the course of action taken by Mr. Fekre, which was to quickly look down for the bottle.

But, when considered more carefully, one might reasonably conclude that there are also potential hazards to attempting to secure a moving object with one foot, while driving with the other. Particularly, if that object was on the right side of the driver, as was testified to by Mr. Fekre. There is no dispute in this case, that a bottle fell. A reasonable person could conclude that an unsecured bottle, on the floor of the driver's side of a car, presents a hazard and that hazard should be removed. Mr. Fekre made an imprudent, but reflexive decision as to how he would solve that problem.

Even the alternative course of action which was suggested by the Crown attorney at his trial, two-and-a-half years after the event, as a prudent response to the situation, would have potential hazards. Those hazards might even equal the risks of taking ones eyes off the road for a moment. All of this illustrates the fact that this is a case of a momentary lapse in judgment, which certainly gives rise to civil liability, but it does not amount to a criminal offence. Mr. Fekre, could you rise, please. Sir, I find you not guilty of the charge of dangerous driving causing death.

The charge is dismissed and you're free to go, sir. ********** FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Shelley R. Smith, certify that this document is a true and accurate transcription of the recording of R. v. Fekre in the Superior Court of Justice held at Toronto, Ontario taken from Recording(

s) No. 4899_4-10_20171121_093710__30_BAWDENPE.dcr, which has been certified in Form 1. _____________ ______________________________ (Date) Shelley R. Smith Authorized Court Transcriptionist *This certification does not apply to the Reasons for Judgment which was judicially edited.