A day after a man was acquitted of dangerous driving in a tragic crash that killed a Vancouver child, a legal expert is explaining why prosecutors struggled to secure a conviction.
Seyed Moshfeghi Zadeh was acquitted of dangerous operation of a vehicle causing death and dangerous operation of a vehicle causing bodily harm in the July 6, 2021, crash that killed 23-month-old Ocean and seriously injured her father.
Moshfeghi Zadeh pleaded not guilty and has maintained the crash was a tragic accident.
In her reasons for judgment, B.C. Provincial Court Judge Kathryn Denhoff ruled that while Moshfeghi Zadeh’s single, momentary lapse of attention had a tragic outcome, it was not a criminal act.
Crown prosecutors focused on the fact that the crash happened when Moshfeghi Zadeh entered an intersection with a light that had been red for more than 20 seconds.
They did not, however, call evidence about Moshfeghi Zadeh’s driving history, including two dozen infractions going back to 2014 such as entering an intersection on a red light, disobeying traffic control devices, and speeding.
Kyla Lee, a lawyer with Acumen Law who was not involved in the case, said courts aren’t typically able to consider an accused person’s past offences during a trial.
That type of evidence, she said, would invite the court to speculate that someone’s past behaviour influenced the alleged actions they’re on trial for.
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She said courts have found that type of reasoning is more likely to prejudice the fairness of a trial than they are to have value in substantiating allegations.
She said there are rare cases when prosecutors can seek to introduce this type of, but that the legal bar they need to clear is high.
“A type of case that would make it admissible is if there was a pattern of the same type of conduct happening over a prolonged period, as opposed to a number of random traffic offences over a person’s entire driving history,” she said.
“If they have repeated instances of speeding and the allegation is they sped, you could say this is indicative of the type of conduct that the person engages in and it’s the conduct at the heart of the trial — but even then, courts really shy away from introducing evidence of past conduct.”
Had Moshfeghi Zadeh been convicted, Lee said his past driving history could have been entered during sentencing, as the court may seek to deter an offender or the public from repeating future offences.
As for Moshfeghi Zadeh’s acquittal on the dangerous-driving charges, Lee said the Crown did not have enough evidence to prove his actions were a “marked departure from the standard of a reasonably prudent driver.”
She acknowledged that reasoning is hard for the average person to understand, given the terrible consequences of the crash.
But she said the law is about proving a person’s actions constitute an offence, regardless of whether or not the results of those actions have a tragic outcome.
“It’s difficult to accept that driving conduct that results in such horrific, tragic consequences like this can be driving conduct that doesn’t amount to a criminal offence,” she said.
“But at the end of the day, we have a high standard in our criminal justice system for what constitutes a criminal offence because of the significant consequences that go along with that.”
Lee said the Crown would have better been able to prove a case of driving without due care and attention, an offence under the Motor Vehicle Act, than the dangerous driving charges under the Criminal Code.
The maximum penalty under the Motor Vehicle Act offence would have been a $2,000 fine and a potentially indefinite driving suspension.
The courts have, in the past, found a driver’s inattention can amount to dangerous driving.
Ken Chung struck and killed Dr. Alphonsus Hui in Vancouver in 2015 while driving 140 km/h in a 50 km/h zone.
The trial judge ruled that Chung’s speeding was a “momentary lapse” and acquitted him of dangerous driving causing death.
But the B.C. Court of Appeal overturned the acquittal, sentencing him to 18 months in jail, a ruling upheld by the Supreme Court of Canada.
The BC Prosecution Service says it is reviewing the judgment to determine whether there are grounds for an appeal.
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