Is having a 'momentary lapse' behind the wheel ever an excuse for killing a pedestrian?

November 29, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Toronto suffered through a near record high rate of pedestrian deaths this year. A case from 2015 in which an 18-year-old driver struck and killed Kristy Hodgson as she was walking her dog is in court now. The driver drove onto a sidewalk and struck her.

One of the questions being contemplated before the court is the position of the defence -  whether there is anytime a 'momentary lapse' in attention excuses a driver from the criminal act of killing a pedestrian. The driver is on trial having been charged with dangerous operation of a motor vehicle causing death. If convicted, he could face up to 14 years in jail.

His case is unusual because he wasn’t drunk, nor was he aiming to run her over. Most people in this situation never face a criminal charge. They may face less serious charges like carless driving. Many drivers who ‘accidentally’ hit pedestrians face no more than a stiff fine after pleading guilty to lesser charges.

The driver was travelling 12 km/h over the posted limit of 40. At the scene of the accident the emotionally upset driver told the police that he had dropped his water bottle and was reaching down to pick it up when he left the road. According to the reports neither the driver, nor the passenger in the car have testified, and it’s unclear whether they’ll take the stand.

His defence lawyers argue that the Crown has not made its case, and that the action of reaching for the water bottle was a ‘momentary lapse’ of concentration. The trial judge questioned what the public might think of a driver ‘fishing around on the floor of a car while driving above the speed limit’... and that a juror could decide the driver made ‘a conscious decision, which was an imprudent decision’.

Traditionally Ontario courts have taken the view that simple errors of judgment or simple moments of inattention may be a valid defence in criminal and provincial offences. However, there is pressure mounting from victim families and the public to review this practice. Politicians of all stripes are promoting revision to legislation to address this situation.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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