News / Toronto

Court case weighs criminality of distracted driving that kills a pedestrian

Kristy Hodgson, 31, and her dog Betty died in 2015 after Gideon Fekre, then 18, drove his Honda into them.

A police photo, entered as evidence at the trial of Gideon Fekre, shows a water bottle on the floor of the Honda he was driving when he fatally struck Kristy Hodgson, 31 as she walked her dogs on a Dundas St. E. sidewalk near Carlaw Ave. on April 20, 2015.

Torstar News Service

A police photo, entered as evidence at the trial of Gideon Fekre, shows a water bottle on the floor of the Honda he was driving when he fatally struck Kristy Hodgson, 31 as she walked her dogs on a Dundas St. E. sidewalk near Carlaw Ave. on April 20, 2015.

A judge and a defence lawyer spar over the question: What kind of behaviour can be called a “momentary lapse,” which, in criminal cases at least, excuses a motorist when he (or she) drives up on a sidewalk and kills a woman?

For John Hodgson, listening in the University Ave. courtroom Thursday, the question was anything but academic.

“Kristy was the most wonderful girl in the world,” he said of his 31-year-old daughter, Kristy Hodgson, an aspiring graphic designer who died with her dog Betty on a spring day in 2015 after she was hit by Gideon Fekre, then 18.

“She would bend over backwards for anyone. Losing her has devastated my family. It has split us up. I don’t know how I’m going to get through the rest of my life, but, thank God, I’m 73 now, and I don’t have much left.”

Fekre is on trial, charged under the Criminal Code with dangerous operation of a motor vehicle causing death. If convicted, he faces up to 14 years in jail.

The case is unusual in that most Ontario drivers who kill, and weren’t drunk or aiming for somebody, never face a criminal charge.

They usually face less serious provincial Highway Traffic Act charges such as careless driving. As chronicled in the Star’s Deadly Streets series, many of those drivers plead guilty to a lesser offence and pay fines of $1,000 or less — the pedestrian or cyclist they killed reduced to a trial detail.

Fekre, in a Honda Civic around 2 p.m., drove across a Dundas St. E. bike lane and ran down Hodgson and her dog before hitting the back of a pickup truck. Court heard evidence he was driving 52 km/h in a 40 km/h zone.

Hodgson, who lived blocks from the crash scene, died later in hospital as her family and her husband Nick Siskopoulos held vigil.

A police officer told the court that, at the crash scene, a distraught Fekre told her he “had dropped a bottle of water and reached down to pick it up.” A water bottle was found in the Honda’s driver-side footwell.

Fekre has not testified. It was unclear Thursday if the young man who was riding in the passenger seat will take the stand.

Fekre’s lawyer, Jordan Gold, applied for a “directed verdict,” urging the judge, who is hearing the case without a jury, to acquit his client. Gold argued the Crown failed to present the essential elements needed for conviction if the trial was before a jury.

Noting the testimony about the bottle, Gold argued jurors would conclude Fekre had a “momentary lapse” that was not a “marked departure” from what they would expect from a driver in that situation.

Justice Peter Bawden, who later ordered that Fekre’s trial proceed, questioned what some people might think of a driver fishing around on the floor of a car while driving above the speed limit.

A juror could decide Fekre made “a conscious decision, which was an imprudent decision, given all the circumstances,” the judge said.

Patrick Brown, a lawyer who has represented families of people killed by motorists, and is not involved in the Fekre trial, said, in an interview, the inattentiveness of deadly drivers is often viewed as non-criminal behaviour.

“The law has generally taken a stand that, when there are simple errors of judgment, or moments of mere distraction or inattention, that’s a valid defence in these criminal proceedings and also with provincial offences,” Brown said.

“But I think there is a large segment of society that believes any distraction in a vehicle, with the size and weight a vehicle carries, and the fact that we have vulnerable people on sidewalks and roads — that shouldn’t justify a valid defence.

“If you drop a water bottle and bend down and look for it without pulling over and stopping, a lot of reasonable people would say that’s a marked departure from what a reasonable person would do. To justify that that’s a simple error in judgment, when you’re behind the wheel, shouldn’t fly any more.”

Brown says Ontario’s best hope for change is NDP MPP Cheri DiNovo’s private member’s bill. It would see convicted drivers who seriously injured or kill “vulnerable road users” automatically face penalties, including prolonged licence suspensions and community service.

The Liberal government’s competing proposal, to establish a new charge of careless driving resulting in death or bodily harm, with a maximum fine of $50,000, could be avoided by drivers who plead guilty to a lesser offence, he said.

John Hodgson, still mourning his daughter, can’t get away from distracted drivers. As a part-time shuttle driver for a car dealership, he constantly sees motorists texting and talking on cellphones and engaging in other risky behaviours.

“It’s unbelievable. Something has got to be done for it,” he said. “You shouldn’t do it in traffic and never in the city, because you never know what’s going to happen.”

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