The London woman found guilty in connection with the deadly Costco crash in July 2014 has lost an appeal of her conviction.
On Wednesday, the Court of Appeal for Ontario dismissed Ruth Burger’s appeal, finding “no basis on which to interfere” as the trial judge “clearly articulated the fault element required” in the offence of dangerous driving.
Burger, now 67, was found guilty in June 2015 of two counts of dangerous driving causing death, and two counts of dangerous driving causing bodily harm in the deaths of six-year-old Addison Hall and her newborn sister Rhiannon Bozek. Their mother, Danah McKinnon-Bozek, and three-year-old sister, Miah Bozek, were also seriously injured. She was sentenced to three years of probation, 240 hours of community service, and a five-year driving ban.
WATCH BELOW (from July 28, 2014): A six-year-old child who was injured after being hit by a car that crashed through the front doors of a London, Ont., Costco has died.
Justice Jonathan George rejected her claim that her foot got stuck under the pedals when backing out of a parking space on July 25, 2014.
When handing down the sentence, Justice George found that Burger showed “more than a momentary lapse” because she had at least five seconds where she could have taken appropriate evasive or corrective action.
On appeal, Burger maintained that what happened was a tragic accident and wasn’t criminal, and that George was unreasonable in convicting her. Among other things, she argued that he misunderstood the legal standard for dangerous driving and misunderstood the evidence about her driving.
The Appeal Court was having none of it, noting that the situation might have been even worse if the car had penetrated further into the building.
In reviewing the appeal, Ontario’s highest court listed in the facts of the case that Burger “did not press the brake pedal with her other foot, put the gear shift into neutral or park, honk the horn or turn off the ignition” in an effort to avoid the accident.
Jill Presser of Toronto law firm Presser Barristers represented Burger in the appeal while London lawyer Maia Bent represented the McKinnon-Bozek family. Calls to Bent for comment were not returned by publish time.
In an interview with AM980, Presser said her client was disappointed in the decision but added it didn’t change the fact Burger remains “incredibly remorseful” about the crash.
“Those feelings remain unchanged,” she said.
“Ms. Burger has always acknowledged that this was an incredibly tragic incident and horrendous loss of life and she never, ever, not from minute one, wanted to diminish that in any way. She’s felt very horribly for the family involved.”
Burger appealed because it was her position that the crash was a tragic accident and that she wasn’t a criminal, Presser said.
“This was a tragic accident, and it’s not something that should be called a crime,” Presser said. “Ms. Burger went to the court of appeal because, although she feels horrendously for the family and really mourns the loss of life here and her involvement with it, she maintains that she’s not a criminal, and it’s important to her to have the record set straight on her behalf, and that’s why she went to the court of appeal, not in any way to diminish how tragic this accident was.”
Presser didn’t want to comment on the specifics of the court of appeal’s decision, noting her and Burger still had to discuss next steps.
“There always is the possibility of seeking permission from the Supreme Court of Canada to go further, but I don’t know whether that’s something she’s going to want to do in this case.”
Presser said Burger had not offered any indication whether going further was the direction she wanted to go.
“I’ll certainly give her some information and advice about that, given that it’s my obligation as her lawyer to make sure she’s fully apprised of all the various options, but she hasn’t indicated any interest or lack of interest one way or the other about going further or not.”
With files from Colin Perkel of The Canadian Press
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