R. v Patel, 2017 ONSC 4048 (CanLII)

Date: 2017-07-05

Facts

"This is a tragic case. On September 5, 2014, a seven year old girl, Carol Ni, while on her bicycle with her Aunt was travelling east on the south end crosswalk at the intersection of McCowan Road and Coleraine Avenue, in the City of Markham when she was hit by a Nissan Sentra travelling southbound on McCowan Road driven by the defendant. The girl succumbed to her injuries and passed away at the scene of the collision."

The driver of the vehicle was Mr. Rakesh Patel, age 24, who at the time of collision was not impaired by drugs or alcohol, and was not speeding. The road conditions were clear and dry, and there was no construction at the time. There were no obstructions to Mr. Patel's view of the intersection or traffic signal. Mr. Patel was familiar with the location and the intersection. There were no mechanical faults with the vehicle.

At the time of the collision, Mr. Patel was inattentive and distracted by discussions he was having with his passenger. Mr. Patel did not brake until after impact.

Plaintiff’s Human Factors Position

The Plaintiff did not call upon a human factors expert.

The counsel for the defendant conceded that Mr. Patel's driving did not meet the reasonable standard care of a prudent driver. The focus of the defence was that Mr. Patel's driving was careless but that it did not meet the threshold of criminal fault for dangerous driving beyond a reasonable doubt.

Mr. Patel submitted that he did not recognize the red light and was distracted and under stress, and that the stress caused a momentary lapse of attention.

Defence’s Human Factors Position

Detective Constable Gordon Hebert provided human factors testimony.

DC Hebert testified that the standard reaction time for a driver to recognize and react is 1.5 seconds. On cross-examination, DC Hebert conceded that it is possible for a driver under stress to see but fail to recognize a red light or a young girl on her bicycle.

Judge’s Rationale

The judge focused upon the period leading up to the collision. The judge found (based upon the speed Mr. Patel estimated he was driving at and the reconstruction report by DC Hebert), that there would have been 9 to 10 seconds before the collision for Mr. Patel to apply his brakes. The judge concluded that Mr. Patel's inattention was "prolonged and substantial" and not a momentary lapse of a couple of seconds.

The judge found Mr. Patel guilty of the offence of dangerous driving causing death.