Fakhreddin Noureddin was found guilty Monday of dangerous driving causing the death of a man who was out for a jog on Valentine’s Day, 2019, just over three months after Noureddin, who suffers from epilepsy, had been warned by his neurologist to seek medical clearance before driving.
Noureddin, who was represented at trial by defence lawyer Joseph Addelman, was found not guilty by Ontario Court Justice Jean Legault of the more serious charge of criminal negligence causing death. He was also found not guilty Monday of leaving the scene of the fatal crash on Goulbourn Forced Road in Kanata that late afternoon.
Court heard eyewitness testimony from other motorists who saw Noureddin’s silver Toyota Camry swerve abruptly into the oncoming lane, striking and killing 59-year-old Hendrikas “Harry” Welten, who was out for a run in the waning daylight hours of Feb. 14, 2019, when the car struck him from behind as he jogged along the road’s opposite shoulder. Road conditions were clear and there was no precipitation.
Welten, who was wearing a dark track suit with reflective piping, and would have been visible against the fresh white snowbanks, was dragged 139 metres and was pronounced dead at the scene.
Noureddin was 68 at the time of the fatal crash, and his trial heard evidence he suffered a dyscognitive epileptic seizure — which does not involve convulsions but affects awareness and consciousness — while behind the wheel. He had not received medical clearance to drive, his trial heard.
“Based on my findings, Mr. Noureddin would have appreciated the risk associated with suddenly losing the physical ability to operate a motor vehicle as a result of his epilepsy,” Legault said in his ruling.
“It is self-evident that the risk caused by a dyscognitive epileptic seizure and loss of awareness while operating a motor vehicle can be significant, if not catastrophic, as it was in this case.”
Noureddin had been told by his neurologist during a routine appointment on Oct. 31, 2018 not to drive for three months, and only to resume driving with clearance from one of his physicians.
Noureddin knew the reason for his doctor’s instruction, Legault said, was the risk of suffering an epileptic seizure while driving.
“His decision to drive contrary to his doctor’s instruction, coupled with his understanding of the risk and potential result of suffering an epileptic seizure while driving, constituted a marked departure from the conduct of a reasonable person in the circumstances,” the judge ruled.
“He failed to demonstrate the expected degree of thought and attention required for the activity of driving. More specifically, he attempted the inherently dangerous activity of driving voluntarily, without accounting for his disorder and the risk he created to other motorists and pedestrians on the roadway at that specific time.”
Noureddin’s epilepsy had been successfully treated with medication for many years, the judge noted, and he had suffered a similar dyscognitive episode only once “many years ago,” which led to the initial medical intervention for his condition.
“The only manifestation of his condition for many years was the presence of auras,” Legault said, episodes which did not prohibit him from driving.
He changed medications in June 2018 and court heard “no evidence he suffered any seizures” up until the fatal collision.
Court heard evidence of Noureddin’s calls to his doctor in the weeks prior to the crash and his followup appointment for blood work, which Legault said “indicates he monitored his epilepsy as directed and followed his doctor’s directions.”
His licence had not been suspended, which, as Legault noted, was an option available to the doctor.
Legault said he was not satisfied that assistant Crown attorney Hart Shouldice had met the “high threshold” to reach a guilty finding for criminal negligence.
“The context is important in assessing fault,” the judge said.
Legault considered in his ruling the lack of any “significant manifestation” of his epilepsy for many years, that his condition had improved on new medication, that Noureddin was past his three-month driving prohibition, and that he “took his disorder seriously and had regular contact with his doctor, and his treating neurologist did not revoke his driving privileges with the Ministry of Transportation.”
The judge ruled Noureddin’s decision to drive that day did not amount to a “reckless disregard for the lives and safety of others,” as the Crown had argued.
“I cannot conclude that his decision to drive without clearance from one of his doctors … amounted to criminal negligence,” Legault said. “I cannot conclude the high threshold for criminal negligence was established beyond a reasonable doubt when considered in light of the actions of a reasonable person in the circumstances, in this context.”
A date for sentencing will be set at a later hearing.