Man acquitted after cough led to fatal car crash
Ontario's top court ruled that a judge who approved extradition was wrong to accept evidence that pointed to Marco (Mark) Viscomi as the perpetrator.
The Canadian Press
Published Monday, January 21, 2013 2:47PM EST
Last Updated Monday, January 21, 2013 4:24PM EST
TORONTO -- A man whose coughing fit led to him hitting and killing a woman at the side of a road has been acquitted of careless driving because a judge ruled he didn't mean to close his eyes.
Ottavio Ariganello was seized by a violent, choking-like cough as he was driving in a semi-rural area of Halton Hills, Ont., on Feb. 21, 2008, he testified at his trial. He said his eyes closed because of the coughing and he became dizzy.
His car veered off the road and hit Carolyn McTavish, 50, who was on the shoulder of Winston Churchill Blvd., collecting her mail. She was pronounced dead at the scene.
Ariganello was originally convicted of careless driving, but he appealed to the Ontario Court of Justice and Judge Lesley Baldwin found that the justice of the peace was mistaken in finding that Ariganello chose to close his eyes.
"This is a case of an involuntary physical reaction to a coughing/choking episode, which through no fault of the appellant resulted in his eyes closing for a matter of seconds," Baldwin wrote in her decision dated Jan. 17.
"I have no doubt that, but for the tragic accident that resulted in the death of a pedestrian who was retrieving her mail at the road side, a conviction would not have been registered in this case."
Ariganello had a sore throat when he woke up that day, he testified, taking a spoonful of medicine when he woke up that morning. He nonetheless coughed throughout the day at his early-morning job as a maintenance man at an ice arena, a co-worker testified.
He left work at 1:15 p.m. and took his normal route home, travelling about 50 kilometres an hour, when all of a sudden he started to cough "harshly," he testified.
"I was like light-headed, dizzy, 'cause I was coughing so hard," Ariganello testified. "I had no control over anything."
He began slowing his car down because he was choking, but didn't want to brake abruptly and get hit from behind, the judge said.
Ariganello wasn't aware that his car was swerving off the road until it hit a snow bank, he testified. Even then he wasn't aware that he had hit McTavish until he got out of his car and saw a person between his car and the snow bank, the judge said.
He called 911 and the police officer who responded noted Ariganello was coughing, the judge said.
Careless driving is defined as driving without due care and attention or without consideration for other people on the road.
"Where an accident has occurred, the fact that serious injury or death has resulted is not, except in unusual cases, relevant to an assessment of whether there has been a departure from the standard of care which would justify a finding of careless driving," Baldwin wrote.
"The Crown had to show a sufficient departure from the standard of a prudent and reasonable driver to make the driving 'deserving of punishment."'
The Crown would not comment on whether it intends to appeal this decision.