Winnipeg Free Press - PRINT EDITION

Cellphone use central issue of trial

Man denies being distracted as van clipped, pedestrians hit

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A city man will soon learn if he'll be convicted in a dangerous-driving case that's thrusting cellphone use and distracted driving under a microscope.

Mahmud Osman Ali vehemently denies talking on his phone or running a red light at Portage Avenue and Maryland Street on the afternoon of June 5, 2012.

Nonetheless, the van Ali was driving was clipped by an eastbound SUV as he headed south through the intersection just before 1 p.m., triggering a collision with two pedestrians.

One was left badly injured when Ali's van hit a curb and rolled over.

The 46-year-old man -- out walking with his nephew, 18 -- suffered broken and dislocated bones and a collapsed lung.

The two were about to cross Maryland westbound on foot. The young man needed stitches in his ear and had scrapes and bruised ribs.

Closing arguments were presented at Ali's provincial court trial on Wednesday.

Prosecutors urged Associate Chief Judge Janice leMaistre to find the 48-year-old guilty, saying the trial evidence showed he ran a red light as he crossed over eight lanes of Portage Avenue while heading south on Maryland and talking on his phone. There was no evidence Ali was speeding.

It's these elements at the heart of the case against Ali for criminal dangerous driving, along with how it was a clear, sunny day and the crash happened at a routinely busy intersection.

Ali's conduct was a "marked departure" from the normal standard of care a "reasonable person" would take in the circumstances, Crown attorney Renee Lagimodiere alleged.

"A reasonable person driving in Winnipeg on a weekday in June... in a busy intersection, doesn't talk on a cellphone, doesn't enter into an intersection on a red light," Lagimodiere said.

"A reasonable person would foresee the risks of these actions," she said.

Dangerous-driving convictions have been tough to come by for prosecutors after the Supreme Court recently updated the law of the land in 2012.

The Crown has seen several cases lost at trial since then.

Cases where mere carelessness or momentary inattention at the wheel are proven don't meet the required level of fault to ground a criminal conviction.

In Ali's case, Lagimodiere pointed to phone records suggesting the call he allegedly made at 12:48 p.m. was 46 seconds long.

"We're not dealing with a momentary lapse of attention," she said. "He never sped up -- and he never slowed down. He continued driving as if nothing was going on. Because he was on the phone," she said.

Ali, an Eritrean refugee, testified through an interpreter in his own defence. He denied any wrongdoing in a "candid and forthright" way, defence lawyer Frank Johnson told court.

There's no hard evidence to show Ali was using a cellphone, only "suggestions" from civilian witnesses they saw one in his hand in the "fraction of a second" he passed by their cars, Johnson said.

"He could have been scratching his ear."

Ali provided a "reasonable explanation" that a passenger in the back seat was using the phone, and "not one iota" of evidence proving otherwise, Johnson said.

LeMaistre was told the phone was recovered in the front of the van near where Ali was seated.

As for allegedly running the red, Ali testified he entered the intersection when the light was green but was held up by traffic already there.

This prompted him to keep passing through as the light changed.

"It's possible that Mr. Ali was driving carelessly, but frankly, we don't even know that," Johnson said. He added Ali's van was hit by the other vehicle, setting in motion the crash with the pedestrians. It was a "completely unforeseeable result," Johnson said.

He cautioned that the tragic result of the crash should have no bearing on the court's assessment of Ali's driving and any risks it may have posed.

A tentative date of May 6 was set for leMaistre to issue a ruling in the case.

Republished from the Winnipeg Free Press print edition April 24, 2014 A6


Updated on Thursday, April 24, 2014 at 10:43 AM CDT: Corrects gender of younger victim

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