It's OK to Kill Someone With a Car if You Didn't Mean It

©. Gena Melendrez/Shutterstock

Driving is hard. It requires skill and the full undivided attention of an experienced sober human to control a ton of steel going at high speed. The main reason that 30,000 people die on the roads in the US every year is that a lot of us out there don't meet that standard.

In Toronto Canada, back in April, 2015, Gideon Fekre took his eyes off the road to reach for a dropped water bottle. During that "momentary lapse of attention" he drove his car across the bike lane and onto the sidewalk for a full sixty feet, and struck and killed Christy Hodgson.

In Fekre's recent trial, he was found not guilty of a criminal offence in killing Christy. As Edward Keenan describes it in the Star, Fekre may have been guilty of bad driving, but not criminally bad driving. There is apparently a difference.

“We cannot hold drivers to a standard of ideal decision-making when making split-second decisions,” Bawden said. He found Fekre’s made an “imprudent but reflexive decision.”

Basically, in Canada, a driver can kill someone with impunity as long as they didn't mean to do it. The old "it was an accident!" thing. As Keenan puts it, "In the words of Justice Bawden, he must find the behavior “morally blameworthy” as opposed to “human error.”

This is not an outlier of a decision; it actually is the standard set by the Supreme Court of Canada in a 2012 decision, which separates criminality from just making a mistake. Forgive the long quote, but it is really important. Emphasis is mine.

Dangerous driving causing death, a serious criminal offence punishable by up to 14 years in prison, consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances. However, because driving is an inherently dangerous activity, the trier of fact must not infer simply from the fact that the driving was, objectively viewed, dangerous, that the accused’s level of care was a marked departure from that expected of a reasonable person in the same circumstances. The fault component ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction.

Because driving is hard, and is an inherently dangerous activity, a driver can do stupid things like not looking at the road for two seconds and killing someone. So according to Canadian Law, Fekre is not guilty of a crime.

So whose fault is it? Is it the road design?

vision zero people are part of the equation

Vision Zero/Screen capture

But if it is not the driver's fault, whose fault is it? The Vision Zero people would say that the road system is at fault because people are prone to failure. The roads are designed so that it is easy to speed, so they speed. Fekre was driving at 52 km/hr (32mph) in a 40 km/hr (25mph) zone but that apparently isn't criminally fast.

But evidently, speed was not a factor. According to Keenan's earlier coverage of the testimony of Dawn Mutis, the police officer who does crash reconstructions:

Mutis testified that her analysis of the video showed Fekre’s car to be moving 52 kilometres per hour as it passed through the camera’s frame moments before the collision — 12 kilometres per hour faster than the posted speed limit, but not fast enough to be considered a factor in the crash, she said.

speed vs pedestrian risk

Speed vs pedestrian risk./via

The difference in injuries suffered between 40 and 50 km/hr collisions is significant. According to this table, the risk of death drops by half. Why this was not considered relevant is not clear to me at all, other than the fact that everybody does it.

Is it the car's fault?

Perhaps there is another problem: cars are fundamentally dangerous products that kill thousands upon thousands because most humans simply do not have the necessary skills to operate such dangerous pieces of hardware. A few years ago I suggested that It's time for a bigger recall of a seriously defective product: The Car. I more recently proposed that we should just ban them in our cities already.

It's everybody's and nobody's fault.

This is not a popular view; in Canada, people driving pickup trucks don't hit pedestrians, pedestrians collide with pickup trucks. Everybody and nobody are at fault.

But if the Supreme Court can determine that driving is such an inherently dangerous activity that one is not at fault if they kill someone with a car, then something has to change, whether it is the roads, the cars, or the right to drive.