The BC Prosecution Service is appealing the not-guilty verdict for a man charged in a tragic crash that killed a Vancouver child.
Seyed Moshfeghi Zadeh was acquitted of dangerous driving causing death and dangerous driving causing bodily harm on April 9 after a three-day judge-alone trial in B.C. Provincial Court.
In a notice of appeal filed May 2 in the B.C. Court of Appeal registry, the Crown is seeking to overturn Judge Kathryn Denhoff’s decision and have convictions entered instead or to have a new trial ordered.
According to the court filing, the grounds for appeal are “that the trial judge erred in law by misconstruing or misapplying the legal principles governing whether the required mens rea had been proven for the offences with which the defendant was charged.”
At trial, Moshfeghi Zadeh admitted he ran a red light at a busy downtown Vancouver intersection on July 6, 2021.
His Ford Escape collided with a McLaren before rolling and striking Michael Hiiva and his 23-month-old daughter Ocean.
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The toddler died and her father was seriously injured.
Moshfeghi Zadeh’s lawyer, Robert Dick, argued the incident was a tragic accident and that his client’s failure to see the red light was inadvertently negligent, but that there was no pattern of bad driving.
Crown prosecutor Brent Anderson said Moshfeghi Zadeh failed to notice four separate traffic lights that had turned red more than 20 seconds before the accused entered the intersection of Hornby and Smithe streets during rush hour.
The judge said the Crown failed to prove beyond a reasonable doubt that Moshfeghi Zadeh’s driving was a marked departure from the standard of care expected of a reasonable person in the same circumstances.
Denhoff found no evidence of any prior pattern of inattentiveness and ruled that while Moshfeghi Zadeh’s momentary lapse of attention had tragic consequences, it was not a criminal act.
Lawyer Kyla Lee, who is not connected to the case, said the mens rea, or criminal intent, for dangerous driving in Canadian law is that a person’s driving is a marked departure from the standard of a reasonably prudent driver.
“The Crown is saying that the trial judge applied too low of a standard in determining that dangerous driving hadn’t occurred,” Lee told Global News in an interview Tuesday.
“And in saying that running a red light was not a marked departure, that was the wrong legal analysis and the trial judge placed too much emphasis effectively on the fact that there was no pattern of bad driving.”
Lee said she suspects the Crown’s appeal argument will be that there doesn’t have to be a “pattern” of bad driving to amount to a marked departure.
B.C. 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 in 2018.
One year later, the B.C. Court of Appeal replaced his acquittal with a conviction in a ruling later upheld by the Supreme Court of Canada.
Chung was sentenced to 18 months in jail in 2020.
Dick declined an interview but said the trial decision of Judge Denhoff was well-supported in law and on the facts of the case, and the Crown appeal will be opposed.
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