The Supreme Court of Canada has ordered a new trial for a Vancouver driver whose vehicle struck two pedestrians after he entered an intersection on a red light, killing an 18-month-old child and seriously injuring her father.
In R. v. Moshfeghi Zadeh, 2026 SCC 35, a five-judge majority held that the trial judge applied the wrong legal test when assessing a brief lapse of attention. Four judges dissented, finding that the acknowledged legal misstatement had not been shown to affect the acquittals.
The October 30 decision sets aside Seyed Ramin Moshfeghi Zadeh’s acquittals on dangerous-driving charges and returns the case for a new trial. The court declined the Crown’s request to enter convictions.
The collision occurred around 6 p.m. on July 6, 2021, at Smithe and Hornby streets in downtown Vancouver. According to the reasons, the traffic light had been red for about 20 seconds. A vehicle travelling alongside Moshfeghi Zadeh slowed and stopped, but he continued into the intersection without braking. Another vehicle struck his vehicle, which flipped onto the sidewalk and hit the child and her father.
At trial, Moshfeghi Zadeh conceded that his driving was dangerous to the public. The dispute concerned the required fault: whether his conduct represented a marked departure from the care a reasonable person would exercise in the circumstances.
The trial judge found that his driving before the collision had been unremarkable and within the speed limit. She characterized his failure to see the red light as a lapse lasting three to five seconds and acquitted him. A majority of the British Columbia Court of Appeal upheld that result.
Writing for the Supreme Court majority, Justice Michelle O’Bonsawin said a momentary lapse can, by itself, meet the criminal fault threshold. Its duration must be assessed alongside the surrounding circumstances. The inquiry asks whether a reasonable person would have foreseen the risk and taken steps to avoid it, and whether the accused’s failure to do so was a marked departure from the expected standard.
The majority concluded that the trial judge’s mistaken view that a lapse required something more to establish criminal liability shaped her analysis. She focused on the short duration of the inattention, rather than fully assessing what the visible hazards showed about the risk a reasonable driver would have perceived.
Those circumstances included a busy downtown intersection and red lights visible before the lapse began. The majority stressed that the time spent inattentive was one factor in the analysis; the location, speed, road conditions and other relevant circumstances also mattered.
Justice Suzanne Côté, writing for the four dissenters, agreed that the trial judge had misstated the law but rejected the conclusion that the error affected the outcome. Read as a whole, she found, the trial reasons showed a contextual assessment of the evidence. The Crown’s remaining criticisms largely challenged how the judge weighed relevant factors.
That distinction mattered because a Crown appeal from an acquittal is limited to questions of law. The dissent emphasized the demanding burden of showing that a legal error was material to an acquittal and would have left the verdicts in place.
The majority found that burden met, but said the trial judge had not made the comprehensive findings needed to substitute convictions. Whether Moshfeghi Zadeh’s conduct meets the criminal fault threshold must therefore be determined at a new trial.
Source: R. v. Moshfeghi Zadeh, 2026 SCC 35.
