Careless driver gets 30 days for killing mother of eight in Sandy Hill crash

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A driver who was likely asleep at the wheel when he slammed into two pedestrians, killing a mother of eight and severely injuring a man, has been sentenced to 30 days in jail for careless driving.

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Majid Fathalipoorsaloei, 50, initially faced criminal charges of dangerous driving causing the death of Hidat Mussie Musazgi and dangerous driving causing bodily harm to Muhindo Kivhuaga following the horrific crash in Sandy Hill on Oct. 2, 2023.

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The criminal charges were withdrawn as he pleaded guilty on Aug. 16 to the lesser offences of careless driving under the province’s Highway Traffic Act. He was sentenced to 30 days in jail on Tuesday by Ontario Court Justice Jacqueline Loignon, who allowed Fathalipoorsaloei to serve his term intermittently to accommodate his work schedule. The judge also imposed a three-year driving ban for the fatal crash.

Court was shown disturbing video of the fatal collision as the two pedestrians were on the opposite sidewalk, facing away and unaware of the car approaching behind them as they waited at a bus stop near the corner of Charlotte Street and Besserer Street just before 7 a.m. that day.

They were struck from behind by Fathalipoorsaloei when his car veered over the painted median and across two oncoming lanes, jumped the curb on the opposite side and plowed into the unsuspecting pedestrians.

Crown attorneys Juliana Martel and Julian Daller told court that Fathalipoorsaloei likely fell asleep while he was driving home that morning from an overnight shift at the Amazon facility in Barrhaven.

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His car was seen on surveillance video rounding the 90-degree turn from Laurier Avenue, outside the Russian Embassy, heading northbound onto Charlotte Street.

A collision reconstruction expert submitted evidence that Fathalipoorsaloei’s car was travelling 51 km/h in a posted 50 km/h zone, but accelerated to 60 km/h five seconds before impact.

The car crossed the median about 45 metres from the impact and travelled in the wrong lanes, then mounted the west curb and sidewalk.

He made no evasive manoeuvres and no attempts to reduce his speed before striking the pedestrians, prosecutors said.

His speed increased moments before the impact and the car only came to a stop when it crashed into the side of a building at 168 Charlotte St.

Musazgi, 48, was a mother of eight children and her family was left “physically exhausted, mentally drained, emotionally numbed” and “devastated” by her loss, according to a statement on behalf of her family.

“We can never recover from the pain induced by the loss of our mother, it is very hard to endure such heartbreak.”

The family said they are newcomers with no close relatives in Canada and were left overwhelmed and in precarious financial straits after their mother’s death. Musazgi was waiting for a ride to work at one of her two jobs when she was killed.

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“Our mother was our provider, counsellor, comforter and best friend,” her family said. “She was our world.”

The Crown was seeking a jail term between three and six months with a three-year driving ban for Fathalipoorsaloei, along with community service.

His defence lawyers, Michelle O’Doherty and Sophia Maisonneuve, countered with no jail time and a $4,000 fine with a one-year driving suspension, noting their client has already been on a driving prohibition for more than a year since his bail.

In a statement following the sentencing, O’Doherty said the decision to withdraw criminal charges against her client was “correct and just.”

“Both an experienced assistant Crown Attorney and an experienced jurist agreed that the criminal charges of dangerous driving causing death and bodily harm should be withdrawn. This was the correct and just position in this matter; in my opinion, those charges could not be supported by the evidence,” O’Doherty said. “My client took responsibility for his actions that morning and is extremely remorseful, recognizing that one victim was taken tragically too soon from her family and another victim was significantly injured.

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“He is haunted by what occurred on that day and will abide by the sentence of the court as he has abided by all bail conditions since his release.”

Musazgi was killed in the crash and Kivhuaga, who was also waiting for the bus that morning, suffered “life-changing injuries” and still has recurring nightmares, the judge said.

Careless driving causing death is a provincial offence, not a criminal charge, and carries a maximum sentence of two years in jail under the Highway Traffic Act. Provincial legislation in 2018 increased the maximum sentence from six months to two years and instituted a mandatory minimum fine of $2,000.

Fathalipoorsaloei’s decision to drive while fatigued “cannot put the offender at the lesser end of the range of careless driving,” Loignon said during her sentencing Tuesday.

“It was his decision to get behind the wheel when fatigued, and not to pull over when experiencing any symptoms of fatigue,” she said.

Fathalipoorsaloei read a statement to the judge through a Farsi interpreter where he expressed “remorse and regret for this tragic accident.”

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“I have thought about it for 14 months while at work, at class and at home. On that day, just like other days, I was coming home from work on the same route every day,” he said. “I do not understand, honestly, how this accident happened on that day.”

He said he is also a new Canadian as he apologized to the victims’ families in court Tuesday. Fathalipoorsaloei moved to Ottawa from Iran in 2019 with hopes of pursuing his previous field in civil engineering.

The offence was the first time he had been involved in an accident in 30 years of driving, he told court, and he has no criminal record.

“The decision to get behind the wheel while fatigued was a calculated one,” Loignon said in her sentencing decision. “(Driving) requires the ability to concentrate, divide attention, react and adjust. Conditions that lessen the ability to perform these tasks present a danger to other motorists and other persons, whether due to alcohol, drugs or, in this case, fatigue.

“When a driver is too tired to drive, they must stop and pull over.”

Loignon said she accepted that Fathalipoorsaloei expressed genuine remorse, but agreed with the Crown’s assertion that he showed a lack of insight into the gravity of the offence.

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Prosecutors pointed to a statement he gave prior to sentencing that complained of “the hardships and the impacts focused on the accused himself… the injuries he sustained, the fact that insurance wasn’t helping him out, and the fact (the charges) were complicating his plans for a life in Canada.”

The judge noted that Fathalipoorsaloei repeated those same “preoccupations” in his statement to the court last week.

O’Doherty, his defence lawyer, said her client took responsibility with his early guilty plea “and has shown accountability and acknowledgement for what he has done and the harm he has caused.”

Loignon said Fathalipoorsaloei’s guilty plea, his remorse, absence of a criminal record and pro-social attitude were mitigating factors in her decision to impose a 30-day jail sentence. The judge noted there was no allegation or evidence of drug or alcohol use, texting or excessive speeding.

Loignon said the fine proposed by the defence “does not adequately reflect the aggravating circumstances,” including the vulnerability of the victims and the devastating impact on their lives and families.”

Fathalipoorsaloei was ordered to surrender to the jail each Monday evening and will be released each Thursday morning to accommodate his shift work until the 30-day term is complete.

ahelmer@postmedia.com

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