Bad driving, but not criminally bad driving.

That, in a nutshell, was the ruling of Mr. Justice Peter Bawden in finding Gideon Fekre not guilty of dangerous operation of a motor vehicle causing death.

Explaining his verdict to a packed courtroom Tuesday after a week-long trial, Bawden ruled that it was a “momentary lapse of attention” that caused Fekre to fail to negotiate a turn on Dundas St. E. approaching Carlaw Ave. in April 2015, crossing a bike lane and driving onto the sidewalk for a distance of “some 20 metres,” where he struck and ultimately killed 31-year-old Kristy Hodgson and one of the two dogs she was walking at the time.

“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.”

Fekre admitted at the scene and on the stand that he had taken his eyes off the road and reached down with his right hand when a water bottle fell at his feet while he was driving. All sides in court agreed the distraction was momentary. The defence had argued this was a matter of instinctive reflex, while the crown argued Fekre made a conscious decision to divert his attention at a critical moment.

The judge said he found the crown had not proven this beyond a reasonable doubt. And so while he found that the driving was obviously dangerous, and that Fekre taking his eyes off the road was a “departure from what a reasonably prudent driver” would do in the situation, it was not “a marked departure” from that standard that rose to the level of requiring criminal sanction. The driving in question could lead to culpability in a civil trial, the judge noted, but the criminal standard for dangerous driving outlined in Supreme Court decisions is higher.

Bawden explained that the duration of the lapse in attention was key to his decision. According to the Crown’s expert witness, traffic officer Dawn Mutis, the evidence shows a provable period of inattention of between 0.74 seconds and 1.18 seconds, Bawden said. “On the evidence of the Crown’s own expert witness,” Bawden said, “this would be a miniscule period of inattention.” Even a longer attention lapse alleged by Crown lawyer Scott Pattison, Bawden said, would still mean a total period of inattention of less than two seconds.

This, Bawden said, qualifies as a “momentary lapse of attention” of a kind deemed non-criminal by the Supreme Court.

Bawden further said that he had found the defendant’s behaviour at the scene — he remained there, called 911, volunteered an explanation to police on the scene of what happened that was consistent with what both Crown and defence told the court, and showed concern for the victim and dramatic remorse — enhanced his credibility.

After the judge told Fekre he was free to go, the defendant who had been facing up to 14 years in prison if convicted put his head in his hands. Cries of anguish immediately rang out from the gallery where Hodgson’s friends and family had been watching the trial. Hodgson’s widowed partner, Nick Siskopoulos, shouted obscenities at Fekre from the doorway of the courtroom, and said, “You killed my wife!” before quickly leaving the building.

In the hallway outside the courtroom, John Hodgson, Kristy’s father, expressed his anger. “There’s no justice there whatsoever. Let’s all drive on the sidewalk and kill people, because the precedent has been set. He killed somebody because he’s not watching the road. He’s a murderer,” Hodgson said. “And he won’t even get a slap on the wrist. His insurance won’t even go up.”