TORONTO — A woman who claimed her foot got caught in the pedals when she drove into a Costco storefront in London, Ont., and killed a child and her newborn sister lost her bid Wednesday to have her conviction quashed.
In its decision, the Ontario Court of Appeal said it found no reason to set aside the guilty finding against Ruth Burger, who was convicted in June 2015 of dangerous driving causing death and bodily harm.
A ruling by Judge Jonathon George was reached by applying "common sense and considering all of the relevant evidence," the court said. In addition, what happened was well beyond a momentary lapse of attention, the Appeal Court found.
The incident occurred in July 2014 when Burger backed out of a Costco parking spot. At trial, she testified that she couldn't stop because her foot became stuck under the brake pedal, causing her to press the gas pedal and smash through the store's doors almost 60 metres away.
Her car hit a heavily pregnant Danah McKinnon-Bozek, who had been shopping with her two daughters. One of them, six-year-old Addison Hall, was killed. McKinnon-Bozek underwent an emergency C-section and her newborn girl, Rhiannon McKinnon-Bozek, died later. Three-year-old Miah Bozek was seriously hurt.
One witness said Burger backed out of the spot "unusually fast." Evidence was that she made no attempt to brake, sound her horn, turn off the ignition or shift into neutral or park, court records show.
Data retrieved from the vehicle showed she had the pedal to the metal when she hit the store going backwards at 46 kilometres an hour. There was no evidence of any attempt to brake.
Burger testified she did not know how the crash occurred, and said she had lost control with no ability to consider avoidance options. She was unable to explain how her foot got trapped if she was, as she testified, pressing the gas pedal lightly.
At trial, the prosecution argued her explanation made no sense and that she created a dangerous situation by reversing at high speed and did nothing to correct it.
George agreed, saying her story was simply not believable. He also found inconsistencies in her testimony about what corrective action she claimed to have taken.
On appeal, Burger maintained that what happened was a tragic accident and wasn't criminal, and that George was unreasonable in convicting her. Among other things, she argued that he misunderstood the legal standard for dangerous driving and misunderstood the evidence about her driving.
The Appeal Court was having none of it, noting that the situation might have been even worse if the car had penetrated further into the building.
Burger, then 66, was given a suspended sentence, 240 hours of community service, three years probation, and a five-year driving ban.
