R. v. Alli, 2012 ONCJ 49

R. v. Alli, 2012 ONCJ 49

Citation: R. v. Alli, 2012 ONCJ 49

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KAREEM ALLI

Before Justice David M. Paciocco

Reasons for Judgment released on February 1, 2012

Mr. Matthew Humphreys ………………………………………………………..for the Crown

Mr. Sean May for the Accused Kareem Alli

PACIOCCO, J.:

1Kareem Alli is charged with one count of criminal negligence causing death while street racing contrary to section 249.2 of the Criminal Code of Canada, and one count of dangerous operation of a motor vehicle while street racing, contrary to section 249.4(4) of the Criminal Code of Canada.

2These charges arise out of the tragic and untimely death of Mr. Christian (Cisco) Williams on 22 June 2010. It is agreed by the parties that Mr. Williams died as a result of injuries sustained when the silver Honda CRX vehicle he was driving crashed into a concrete light standard on Claridge Drive, across from the north corner of the “T-intersection” where Deercroft Avenue enters Claridge Drive.

3It is agreed between the parties that Mr. Williams lost control of his vehicle before colliding with the light standard. Uncontested evidence of expert accident reconstructionist Det. Cst. Brian Dodds confirms that shortly before the collision the William’s vehicle began to veer to the left or towards the oncoming lane and then began to skid. Skid marks leading to the crashed vehicle show that the vehicle skid 65.7 metres before colliding with the light standard. In the process it spun counter-clockwise until it hit the curb on the east side of Claridge. The vehicle left the ground momentarily and then began to spin clockwise, bringing the rear of the driver’s side door into contact with the utility pole. The force of the collision broke the light standard pole and caused the vehicle to rotate around the pole where it came to rest. A piece of the vehicle was embedded in a tree that stood next to the light standard.

4Det. Cst. Dodds also provided testimony helpful in establishing the range of speed of the Williams’ vehicle. This testimony was not seriously challenged. Using established techniques for using skid marks to assist in determining speed Det. Cst. Dodds found that, based on the skid marks, a vehicle with no breaking would have lost 67 kilometres per hour before arriving at the light standard and coming to a stop. A vehicle with 100% breaking would have lost 106 kilometres per hour of speed before coming to a stop. The state of the forensic evidence enabled Det. Cst. Dodds to conclude that there had been some indeterminate breaking, leading to the safe conclusion that the speed lost before the vehicle arrived at the light standard was an undetermined speed more than 67 kilometres per hour but no more than 107 kilometres an hour. This range materially underestimates the actual minimum speed that Mr. William’s vehicle was travelling when it began to skid because this range reflects only the speed the vehicle lost during the skid. It does not account for the additional speed that was lost from the broadside collision with the light standard, which ultimately brought the vehicle to an abrupt halt. While the remaining speed of the vehicle at impact cannot be computed, the vehicle was still exerting considerable force at that time. Not only was the vehicle mangled but the reinforced concrete light standard pole was destroyed, leaving only a stub of the light standard standing, no higher than the car door of the vehicle. It is therefore safe to conclude on the basis of this evidence that the Williams vehicle was travelling significantly more than 67 kilometres per hour when it lost control. The speed limit on Claridge Street is 50 kilometres per hour.

5The Crown allegation that supports the charges laid is that Mr. Williams’ vehicle lost control while engaged in a street race with a red Ford Mustang convertible operated by the accused Kareem Alli. At the time of these alleged events Mr. Alli was 18 years old, having just reached the age of full criminal responsibility only four days earlier.

6Mr. Alli does not deny that he was operating the red Mustang Convertible when the accident occurred. It is his evidence and the testimony of several witnesses, including the Crown witness Christopher Richardson that Mr. Williams collided with the light standard pole after passing the Alli vehicle. The Defence position is that Mr. Alli was driving responsibly and obeying all of the rules of the road at the time. The Defence says there was no race and that Mr. Williams made the independent decision to pass Mr. Alli’s vehicle, before losing control.

7While there is no onus on the Defence to explain how that loss of control occurred, the Defence led evidence that the Williams vehicle was mechanically defective and that this may have caused or contributed to the collision that took Mr. Williams life. And while the Defence has no onus to explain away Crown evidence, it is the position of Mr. Alli that the two Crown witnesses who testified that the red Mustang was racing the Silver Honda in the seconds before the collision misperceived the events they witnessed. What they saw was the fleeting segment of the event when Mr. Williams passed the red Mustang at a high rate of speed, bringing the vehicles side by side. This caused them to conclude erroneously that both vehicles were in a race.

8There is therefore significant disagreement about what happened. There is also controversy about whether, even if this was a street race involving Mr. Alli, his acts constitute the offence of criminal negligence causing death by street racing, or dangerous driving causing death by street racing, or simply an included offence. The place to begin, however, is with the findings of fact.

Analysis – Findings of Fact

9In coming to a decision I have considered carefully the principles in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. I have cautioned myself that even though this is a case with opposing versions of relevant events, it is not a credibility contest between the Crown and Defence witnesses, or between witnesses who offer inculpatory evidence and those offering an exculpatory account. While it is appropriate for me to evaluate defence evidence and exculpatory evidence in the context of all of the evidence, including the Crown evidence, the outcome of this case is not to turn on which version I prefer. I am mindful that the Crown bears the burden of proving the alleged charge beyond a reasonable doubt, and that a reasonable doubt can remain even if the defence evidence and exculpatory evidence is not believed or even if the defence evidence and exculpatory evidence fails, on its own, to raise a reasonable doubt. Simply put, even if I reject the defence evidence and all exculpatory evidence absolutely and entirely, I must still be satisfied before convicting Mr. Alli that the Crown has established the guilt of the accused beyond a reasonable doubt on all of the evidence I do accept.

10Although the W.(D.) formula does not require that I begin with the Defence evidence (R. v. C.L.Y. 2008 SCC 2, [2008] S.C.J. No. 2, para. 7) it is convenient to do so.

11The defence presented three witnesses. Mr. Kareem Alli testified in his own defence. The defence also called Mr. Mohamed Kadura, who did not witness the accident but who was with Mr. Williams and with Mr. Alli shortly before the collision. Mr. Kadura also attended the accident scene shortly after it occurred. The defence also called Mr. Shawn Mathurn as a witness. Mr. Mathurn was the only passenger in the Williams vehicle during the crash.

12Mr. Christopher Robinson, who was in the Alli vehicle at the time of the collision, testified for the Crown but the core of his evidence was exculpatory. I will therefore evaluate his evidence along with the defence case.

13The heart of the evidence of these witnesses was that all of them were at Mr. Mohamed (Mo) Kadura’s house in the early afternoon hours, along with Mr. Kareem Alli and Mr. Muktar Baktal, who did not testify. It was 22 June 2010 and exams had finished and the school year was over. Some of the young men were about to graduate.

14Mr. Alli, Mr. Richardson and Mr. Kadura testified that while at Mr. Kadura’s house, Mr. Williams was taunting Mr. Alli, bragging that his heavily modified Honda CRX was faster than the Mustang convertible that Mr. Alli was driving. Although Mr. Alli is not licensed to operate a motor vehicle, he was driving a red Mustang convertible that belonged to his cousin. He said he had his cousin’s permission to drive the vehicle and had done so on other occasions. Each of these three witnesses described Mr. Alli’s refusal to accept Mr. Williams’ challenge.

15There was also evidence led that Mr. William’s car was in dangerous condition. Testimony was offered by Mr. Alli and Mr. Kadura that in addition to the car having bald tires, serious damage had been done to the steering of the silver Honda CRX and that Mr. Williams had to fight the wheel to make the car go straight.

16Each of the defence witnesses testified, and Mr. Robinson agreed, that they were planning an outing when Mr. Alli decided to go gets “smokes,” or smokes and gas, at a gas station on Strandherd Drive at the southern end of Claridge Street. Christopher Robinson got into the red Mustang with Mr. Alli to accompany him. Each of the witnesses testified that immediately after Mr. Alli pulled out, Mr. Williams followed, driving his Honda CRX, with Mr. Mathurn as his passenger. The accident happened a short distance away, southbound on Claridge Street.

17Three witnesses to the accident, Mr. Alli, Mr. Mathurn and Mr. Robinson, hold the key to the defence account. Although Mr. Mathurn vacillated on his ability to describe the speed of the Alli vehicle, they each offered testimony that at no time was Mr. Alli speeding or racing. Each of these witnesses testified that after he pulled onto Claridge St. turning south, Mr. Alli was passed by Mr. Williams at a high rate of speed, and that almost immediately after Mr. Williams’ vehicle passed the Alli vehicle, it began to lose control, ultimately breaking into an uncontrolled slide before colliding with the light standard.

18Mr. Alli and Mr. Robinson testified that the Alli vehicle pulled over immediately. The men called 911 and rushed to provide assistance, with Mr. Alli helping to remove a shaken Mr. Mathurn from the vehicle. It was not possible to remove Mr. Williams, who died at the scene.

19I will begin my examination of this evidence with the testimony of Mr. Alli, which had appreciable problems.

20First, Mr. Alli diminished his own credibility before this Court by lying to the police. To be clear, I do not use this to infer that lying to the police is consistent with guilt. I simply find this conduct to be relevant to his credibility as a witness. Specifically, Mr. Alli not only lied to the police by denying that he had been driving the Ford Mustang, he conspired with his friends, Mr. Robinson and Mr. Kadura, to tell the police that Mr. Kadura was driving and in telling Mr. Kadura what he should say to the police when asked what happened.

21Mr. Alli testified that he had Mr. Kadura pose as the driver to hide the fact that he, Mr. Alli, had been driving without a driver’s licence. I recognize that Mr. Alli confessed to driving shortly after he learned that Mr. Kadura had been arrested for street racing but this charade nonetheless casts considerable doubt on his credibility. It shows that Mr. Alli is someone prepared, if necessary, to attempt to obstruct the administration of justice by providing false information to keep himself out of trouble, and that he has already lied about the very events that bring him to this Court.

22I was also unimpressed with the way Mr. Alli responded to testimony regarding this lie. I found him to be evasive when he was challenged by the Crown to agree with the direct suggestion that he had told Christopher Robinson to lie. Mr. Alli tried to spread the blame. Three times he avoided a direct reply, repeating “We were talking as a group of three.” Only on the fourth attempt would he agree that he had told Mr. Robinson to lie.

23Mr. Alli also claimed that the reason he told Mr. Kadura what to tell the police was so that Mr. Kadura, who had not even been there at the time, could give the police a truthful account of what actually happened. I do not find this credible. Mr. Alli’s motivation in feeding a story to Mr. Kadura about the accident was not to educate the police about what happened. It was to ensure that Mr. Kadura had a story that would enable him to pose as the driver and protect Mr. Alli.

24I also find it troubling that the story that Mr. Kadura fed the police about how the accident happened differs materially from the version of events now being presented by the witnesses as the truth. Most materially, Mr. Kadura told the police that he was driving the Mustang ahead of Mr. Williams’ car and, through the rear view mirror, saw Mr. Williams’ car losing control and veering into the pole. He also told the police about Mr. Williams’ bald tires.

25Mr. Alli testified that he did not tell Mr. Kadura to give this account. For his part Mr. Kadura initially denied discussing with Mr. Alli what had happened but then acknowledged that he had. He agreed that he told the police what he had been told to say, although he was unsure whether he got these details from Mr. Alli or Mr. Robinson. In the end, it does not matter whether it was Mr. Alli or Mr. Robinson who gave Mr. Kadura these details. According to both Mr. Alli and Mr. Kadura, the three young men were all talking together at the time. If Mr. Robinson did generate this account, Mr. Alli failed to interject and correct the story. If Mr. Kadura was told to give this version, Mr. Alli was a party to that plan, and the story offers differs materially from the one Mr. Alli offered to this Court.

26I have considered what to make of this - whether it is possible that Mr. Kadura was never given this account and could have become confused about what he was supposed to say. It is most unlikely, however, that Mr. Kadura would, by confusion, tell the police that Mr. Williams lost control of his car while it was behind him, after being given the account that has been presented by Mr. Alli and Mr. Richardson here in court - that Mr. Williams lost control ahead of the Mustang immediately after passing the Mustang at high speed. There are not differences in detail. They go the heart of what happened and it is inconceivable that Mr. Kadura could become that confused in the few minutes it would take to relay the account he was given to the police. I find that Mr. Alli was a party to presenting the version of events told by Mr. Kadura to the police, a version that is inconsistent with the testimony he has given to me as to how the accident happened.

27Nor do I believe I received an accurate account from Mr. Alli about the exchange he had with Mr. Williams shortly before the collision, in which Mr. Williams was challenging him to race. According to Mr. Alli, when Mr. Williams was taunting him and belittling Mr. Alli’s car, he simply ignored Mr. Williams. Mr. Alli would have this Court believe that he was unaffected by the challenge Mr. Williams was posing, but this was not so. Mr. Kadura describes Mr. Alli as “cornered” by Mr. Williams “put downs” and responding by mocking Mr. Williams and waving in the air while telling Mr. Williams to “do some burn outs over there.” I find that Mr. Alli, mindful that it would look bad for him to acknowledge that he was affected by Mr. Williams’ taunts, offered a benign but false picture of his reaction to the challenge from Mr. Williams to have a race.

28There are also serious problems with Mr. Alli’s account of the collision. It sits awkwardly with the geographical and forensic evidence, and is irreconcilable with uncontested features of the testimony of Crown witnesses, Ms. Jennifer McFarlane and Ms. Karen Colasante.

29First, the geographical and forensic evidence needs to be set out. The material stretch of Claridge Road included in Mr. Alli’s account has six intersections. Proceeding south, the first is at Berrigan Drive, the next at Madelon Way, then at Calaveras, then at Rodeo Drive, then at Portush and finally at Deercroft where Mr. Williams vehicle came to rest. Det. Cst. Dodds measured the total distance from the stop line at Berrigan to the northern corner of Deercroft (approximately contiguous with the accident site) as 418 metres.

30Broken down, the stretch between the Berrigan stop-line to the Calaveras intersection is 170 metres. The road remains straight, leading to the Rodeo Drive intersection a further 81 metres up. From that intersection to the Portrush intersection there is another 81 metres straight up the road. The road curves gently south east from Portrush to Deercroft for another 78 metres. And the skid marks begin 65.7 metres north of Deercroft, slightly past the Portrush intersection.

31Mr. Alli testified that as he was going southbound on Claridge Drive, Mr. Williams passed him suddenly, and accomplished the task “before I got to the mail box at Calaveras,” or by the time Mr. Alli was just reaching Calaveras. This version is hopelessly inconsistent with uncontested evidence of Crown witnesses Ms. McFarlane and Ms. Colasante. Ms. McFarlane testified to the silver Honda passing the red Mustang, not at or before the Calaveras intersection but as the vehicles passed by her as she stood half way through the Rodeo Drive intersection, which would be some 80 yards or more past where Mr. Alli said the pass had already been completed. Uncontested aspects of Ms. Colasante’s evidence present a similar problem. She lived at the material time at 415 Claridge, closer to Rodeo Drive than the Calaveras Intersection. From the perspective at the front of her garage she had the vehicles passing her right beside each other, again, after the pass described by Mr. Alli would have been completed.

32Mr. Alli’s version is also difficult to reconcile with forensic evidence from the crash scene. Mr. Alli had Mr. Williams losing control when his car was two to two and one half lengths ahead of Mr. Alli’s car. On this description the loss of control would have happened instantaneously after the motor revving, high-speed pass Mr. Alli described, and in close proximity to the Calaveras Drive intersection. Yet this intersection is some 240 or so yards before the Deercroft intersection where Mr. Williams’ vehicle came to rest and it is close to 175 metres from where the skid marks begin. The accident scene is simply too far away to fit easily with the loss of control scenario described by Mr. Alli.

33Mr. May emphasized that in considering the evidence of Mr. Alli, indeed, in considering the exculpatory version of events offered by the defence, I should give great weight to the fact that when confronted with the allegation he was street racing at the scene Mr. Alli not only denied that he had been racing but asked Cst. Shannon Woodward whether there would be any way to check the computer “chip” in the Mustang to confirm that he was not. Although no objection was made to this evidence, I do not find Mr. Alli’s denial of guilt to be an admissible prior consistent statement declaring innocence under the rule in R. v. Edgar 2010 ONCA 529, [2010] 101 O.R. (3d) 161 (C.A.), leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 466. By the time Mr. Alli denied speeding he had already concocted a story to tell the police and lied to them about being the driver. The denial of guilt was not spontaneous enough to warrant admissibility under the Edgar principles: R. v. Bhadura [2010] O.J. No. 1541 (C.A.). I do accept, however, that his invitation to check the computer chip is admissible in evidence as circumstantial evidence offered to support an inference of “consciousness of innocence”: R. v. S.C.B. 1997 6319 (ON CA), [1997] O.J. No. 4183 at para. 33 (C.A.). Asking for his on-board computer to be checked for a speed reading is consistent with innocence and I have considered it, along with his denial of guilt, on that basis.

34Of course, Mr. Alli’s challenge to the officers to check his computer is not definitive evidence that Mr. Alli was not speeding and was truthful in his testimony. Such an offer could signal a belief in innocence, accurate or mistaken, or it could be made simply by a person aware of his own guilt in order to create the impression of innocence in the hope that the chip would never be analyzed, or even in the knowledge that analysis is impossible. Evidence of an offer by the accused to submit to forensic testing, even to submit bodily samples for testing, is therefore circumstantial evidence of potential innocence, but its significance must be weighed in the context of all other evidence. I have done so and do not, in the circumstances of this case, find this evidence to be compelling enough to overcome the serious difficulties posed by Mr. Alli’s account of what transpired. Mr Alli’s offer does not, in my opinion, salvage his credibility.

35For all of these reasons I do not believe Mr. Alli and I do not find his invitation to Cst. Woodward to try to confirm his story with the Mustang’s computer chip to be compelling evidence supporting his testimony. Nor do I find that Mr. Alli’s evidence raises a reasonable doubt about the Crown allegations.

36The exculpatory evidence of Mr. Richardson fares no better on examination. Mr. Richardson also has the pass occurring shortly after the Berrigan Avenue intersection. He too has the pass occurring quickly, as he described “Cisco” flying by. And he too has the loss of control occurring immediately. Indeed, Mr. Richardson describes the back wheels locking as the car was overtaking Mr. Alli’s Mustang, causing it to drift to the pole. This account creates the same logistical problems that Mr. Alli’s evidence did. First, on Mr. Richardson’s version the cars again could not have been beside each other when passing Ms. McFarlane and Ms. Colasante. The pass would have been completed. Second, on Mr. Richardson’s version the Honda CRX would be drifting for an untenable distance before it began to leave skid marks in the last 65.7 metres of its slide.

37Mr. Richardson’s evidence is also tainted by his efforts to lie and cover up for Mr. Alli. Shortly after the accident he told Constable Kevin Benloss that it was Mr. Kadura who had been driving the red Mustang. Preposterously, Mr. Richardson claimed in court that he did not tell this lie to protect anyone but did so only because he was told to by Mr. Alli.

38Mr. Richardson’s account of the accident has also changed. At the scene he wrote in his police statement that Mr. Williams was driving ahead of the Alli vehicle when Mr. Williams began speeding before losing control. There was no mention of the passing that features in his testimony before this Court. Mr. Richardson blamed his fear and shock for this discrepancy, but he did not stop there. He claimed that Cst. Benloss had been rude to him, telling him it had been his fault that his friend died, and that Cst. Benloss was laughing in his face. Mr. Richardson claimed that the reason he gave untrue information is that he was rushing to end his conversation with Cst. Benloss. While Mr. Richardson was no doubt shocked and distracted by the death of Mr. Williams, I do not see how this, or the rush to get out, explains putting down an untrue account that is wildly different than the version ultimately testified to. And whatever else may have been said between the two, I do not believe Cst. Benloss was laughing in Mr. Richardson’s face.

39Mr. Richardson’s resolve to stick to the same story he told this Court also vacillated during his 7 July 2010 interview with Det. Cst. Dodds. After being challenged to tell the truth and not to cover for his friends, and after being confronted with the illogic of his 7 July 2010 position, Mr. Richardson agreed at one point that maybe Mr. Kareem was trying to keep up with Mr. Williams. Shortly after he returned to the version he offered here in his testimony. Again, Mr. Richardson tried to blame the temporary departure from his current story on inappropriate police pressure. He said he only said this because his future career as a police officer was being used as a threat against him and he felt he could not leave until he told Det. Cst. Dodds what he wanted to hear. His claim that he believed he could not leave unless he agreed is contradicted by his immediate return to his original story. I believe it was the force of logic that inspired the momentary concession, not any threat to his proposed career.

40I am left with a witness who has lied to the police about the very events that are now before the court, who offered different accounts of the event, who has offered incredible explanations for his evolving story, and whose current story is not reconcilable with the uncontested portions of the testimony of key Crown witnesses. Nor does it fit well with the forensic evidence from the scene of the crash. I reject his evidence in its entirety and it leaves me in no doubt, standing alone or in the context of all of the evidence.

41The final witness to give exculpatory evidence about the collision was Mr. Shawn Mathurn. His testimony does fit with the forensic evidence. Unlike Mr. Alli and Mr. Richardson, he described the pass occurring after the Calveras intersection, after Mr. Williams waited for a car ahead of Mr. Alli’s to complete a turn onto Calveras. More importantly, he does not link the loss of control of the Williams’ vehicle to the passing manoeuvre but describes the car losing control at the curve on Claridge Drive, which is proximate to where the skid marks begin.

42Mr. Mathurn’s evidence does, however, have other difficulties. Mr. Mathurn, a passenger in the Williams vehicle, was injured in the accident. Mr. Richardson describes him as dazed and saying “uh” and the like. Mr. Kadura, who was with Mr. Mathurn immediately after the accident, said “Shawn was pretty much out of it and did not know anything.” While he did offer evidence up to the point when Mr. Williams lost control during his testimony, Mr. Mathurn admitted to not remembering going up on the sidewalk or hitting the pole or events after that. Clearly there are issues of reliability with Mr. Mathurn’s evidence.

43Bearing in mind that it is dangerous to rely unduly on demeanour evidence, I also found that Mr. Mathurn appeared uncomfortable when testifying about events he claimed to remember. Not only did he appear uncomfortable, his answers were tentative. He said “I think we went around each other kind of quick” and said that he didn’t really know the speed of the Williams vehicle, responding it was probably over 80. While he said in-chief that Mr. Alli was going the speed limit, during cross-examination he agreed that he was unable to say how fast the Mustang was actually travelling.

44For these reasons I do not have sufficient confidence in his evidence to accept it. Whether it raises a reasonable doubt in my mind is best left until I analyse the contested Crown evidence so a more contextual evaluation of his testimony can be undertaken.

45The Crown presented three civilian witnesses unconnected to Mr. Alli who testified to their relevant observations, Ms. Jennifer McFarlane, Ms. Karen Colasante, and Ms. Alina Shaikhet. Ms. Shaikhet’s testimony bears not upon what happened but on the conditions in the neighbourhood where these events occurred. The Crown also called three police officers - the investigator and accident reconstructionist, Det. Cst. Dodds, and two officers who attended the scene and dealt with those who were involved, Cst. Kevin Benloss and Cst. Shannon Woodward, whose relevant evidence is referred to above. The heart of the Crown’s case therefore lies in the forensic evidence and in the testimony of Ms. McFarlane and Ms. Colasante.

46As indicated, both Ms. McFarlane and Ms. Colasante describe events that would clearly constitute a race between the silver car now known to have been driven by Mr. Williams, and the red car, now known to have been driven by Mr. Alli. Indeed, both women called 911 and spontaneously and independently uttered in the seconds after the collision that they had witnessed a race (Ms. Colasante) or thought the vehicles to be racing (Ms. McFarlane). Mr. May, for Mr. Alli, does not take issue with the credibility or honesty of either of these witnesses. That was an appropriate concession given that there is no basis on the evidence or in the manner of testimony before me to infer that these witnesses might be trying to mislead the Court. They were honest witnesses. His challenge is to the reliability of Ms. McFarlane’s evidence, and the reliability of Ms. Colasante’s interpretation of what she saw. I have taken those challenges into account and I have conducted my own independent evaluation of their testimony.

47Ms. McFarlane, an animated witness who punctuated her testimony with sound-effects, testified that she was out walking her nine month old daughter, pushing a jogging stroller. She was walking south on Claridge Drive, facing traffic on the sidewalk, on her way home. She testified that around 1:45 she heard car engines in the distance, approaching. She described it as “racing coming.” She said that by the time she got to the Claridge intersection, they were getting closer. When she reached the Rodeo intersection she started across using the mouth of Rodeo Drive. By the time she was half-way across the Rodeo intersection walking parallel to Claridge Drive she could hear the cars coming fast from behind her. She turned and saw two cars – a silver “Civic,” as she called it, and a red Mustang - loud and fast approaching. She could see clearly to Calaveras, but could also see further down for some indeterminate distance towards Barrington. She described initially seeing the silver car behind the red Mustang which was in the lead, and the silver car shooting out to pass. The silver car pulled up beside the Mustang and leap frogged or surged past the red car right in front of where Ms. McFarlane was standing to the side in the cross-walk area of Rodeo drive, right in her face. She said the cars were definitely going over 100, possibly 120 kilometres an hour. She said they were so close to her that it made her hair blow. Ms. McFarlane described the red car then trying to take the lead. It was pulling out to the left to pass and “gesturing” or jockeying “to try to take the lead back.” She lost sight of the vehicles as they went around the curve at the Portrush intersection. She said she “had a strange feeling that this was not going to end well.” Almost immediately she heard the sounds of the crash.

48Mr. May did not challenge Ms. McFarlane’s testimony relating to where she was when she saw the vehicles, nor did he contest her evidence that the silver car passed the red car in front of her. He argued, however, that Ms. McFarlane, who had noted a chronic problem of street racing in the neighbourhood before that day, had precipitously concluded there was a street race even before she could even see the vehicles. This coloured her interpretation of what she saw when she saw the Williams and Alli vehicles. What she actually saw, Mr. May argued, was the high-speed passing manoeuvre of the silver vehicle revving its high-pitched, modified engine. She assumed the red vehicle was racing when it was simply being passed. He suggested that the unequivocal testimony she offered about the racing actions of the red vehicle was nothing more than her honest but mistaken attempt to describe what she believed to have happened – a race.

49I agree that Ms. McFarlane had a flare for painting a mental picture and I noted that her ability to estimate time is poor. I find it doubtful that she heard racing engines for close to the five minutes she described before the cars approached her. She also materially overestimated the time she had the vehicles in sight. The field of vision she described, from just past Calaveras towards Barrington to where she would lose visibility at the Portrush curve, would be in the range of a couple of hundred metres plus. Cars travelling at the speed she described them would quickly race through that distance, perhaps in 8-15 seconds. I base this on the incontrovertible testimony of Det. Cst. Dodds that a vehicle travelling 60 kilometres per hour would cover the entire stretch from Barrington to the accident scene – approaching ½ a kilometre - in less than 30 seconds. Ms. McFarlane had the vehicles in sight for approximately half of that stretch at a much higher speed. Clearly Ms. McFarlane, who felt the vehicles were in her vision for closer to a minute, slowed events down in her mind. And while I am not prepared to disbelieve that her hair could blow as the vehicles went by, that may have been an impression she gained with the benefit of hindsight from what she witnessed. I also note that while she was adamant in her testimony about what she saw - “I am 100% certain that what I saw with my eyes and heard that day is the truth” – in her 911 call she said “I think they were racing. I saw the whole entire thing before they crashed.”

50Still, in spite of these difficulties with her evidence, I find Ms. McFarlane to have offered a credible and reliable account that she witnessed two vehicles engaged in a high-speed race. First, from her vantage point and even bearing in mind the abridged observations she could make in the time available, it would be entirely possible for her to see a pass and jockeying by the vehicle just overtaken. To reject her evidence that she saw two cars racing I would have to accept the possibility that she subconsciously filled in almost everything she says she observed. There is no basis for doing that. Second, I find it inconceivable in the circumstances that Ms. McFarlane could mistake a car passing a law abiding vehicle at high speeds as a two car race. While someone looking at a photograph taken of one car beside another while passing would be unable to distinguish a pass from a race Ms. McFarlane observed a dynamic event, not a still photo. Indeed, she saw the vehicles from all relevant angles – coming at her, going by her, and going away from her. While her opportunity to observe was quick, the difference between two racing vehicles and an independent, aggressive pass by one car of a lawfully operated vehicle would be obvious. She could observe drivers interacting for at least several seconds, long enough to recognize, were it true, that the red vehicle was simply another potential victim of dangerous driving by the silver car. Third, had Mr. Alli’s vehicle been passed while it was driving at or near the speed limit, that pass would have taken no time. Yet Ms. McFarlane describes a protracted passing by one vehicle that took upwards of 100 metres to accomplish, with the silver vehicle still in the oncoming lane as it was blowing past her. For that to be true both vehicles would have to be travelling at similar speed. Fourth, and most importantly, Ms. McFarlane’s evidence finds crucial support in the testimony of Ms. Colasante.

51In contrast to Ms. McFarlane, Ms. Colasante was a woman of few words but like Ms. McFarlane, there is no reason to doubt her credibility. She, too, was alarmed enough by the sound of oncoming engines that she walked out of the garage where she was working to look as the vehicles approached. She saw two vehicles “coming fast,” a red car and a grey car. While she only saw the vehicles beside each other from her vantage point metres before the vehicles would have reached Ms. McFarlane, she said they were going “really, really fast,” at highway speed, referring to the Queensway. She did not describe the silver car blowing past a cautiously driven red car. She described two speeding vehicles – “they must have been going the same [speed] because they were right beside each other.” Ms. Colasante, who also saw the vehicles coming, said “they passed me at the exact same time.” This testimony fits perfectly with the evidence of Ms. McFarlane. And like Ms. McFarlane, Ms. Colasante’s immediate conclusion was that the vehicles were racing. She was so convinced she was witnessing an audacious race that she told the police unequivocally that she had seen a race.

52This is enough to undermine the suggestion that what these women witnessed was a pass of an innocent Mr. Alli by a speeding Mr. Williams. For that to be true both women would coincidentally and independently have to have made the same massive and unlikely error of interpretation. It would be an unfortunate and bizarre coincidence for two objective witnesses to independently form the same mistaken interpretation of an even that would not have been difficult to interpret. Nor can it be forgotten that these women reported racing between two vehicles whose drivers, unknown to them, had just been involved in a discussion about racing. This evidence is credible and reliable and knits into a tight, inculpatory mesh.

53The sole remaining factual question, then, is whether Mr. Mathurn’s evidence raises a reasonable doubt in my mind about whether there was a race, when viewed in the context of all of the evidence in the case including Mr. Alli’s offer to have the on-board computer chip tested. I have already rejected Mr. Alli’s offer as a non-compelling indication of his credibility and I have already expressed reservations about the reliability of Mr. Mathurn’s testimony. Now examined in the context of all of the evidence Mr. Mathurn’s testimony becomes even more problematic. The passing manoeuvre that Mr. Mathurn described would have been fleeting. What he describes is irreconcilable with the credible, corroborated evidence of two independent witnesses who describe vehicles travelling beside each other at the same speed when they passed by. Mr. Mathurn’s evidence is therefore not only too unreliable to believe affirmatively, it does not even leave me in a reasonable doubt given all of the evidence in the case, nor does his evidence coupled with Mr. Alli’s offer of forensic testing.

54I find therefore beyond a reasonable doubt that Mr. Alli was engaged in a high speed race with Mr. Williams just before 1:45 p.m. on a weekday, 22 June 2010, and that Mr. Williams died as a result of losing control of his vehicle during that race. He operated his vehicle at high speed in an effort to prevent Mr. Williams from beating him. The race took place on a residential street, a curved street known by Mr. Alli on his own admission to commonly have parked cars. It is also a street known by Mr. Alli to contain a school, in close proximity to where the race occurred. School was still in session. There were on that day, individuals around the road where the race occurred – Ms. McFarlane with her nine month old baby in a stroller, and Ms. Alina Shaikhet and her two children, including a four year old daughter, who were playing outside in the driveway around a moving truck.

Analysis – Application of the Law

55Do these facts support a conviction on either of the offences charged or on any included offences? The offences charged are criminal negligence causing death by street racing, and dangerous driving causing death by street racing. Dangerous driving and criminal negligence have very similar elements when applied in the driving context. While the close statutory language of each offence must be respected, the difference between the two offences is primarily one of degree. This is why dangerous driving is an included offence where criminal negligence is applied in the driving context. Typically, criminal negligence covers more serious cases of driving that is dangerous, and therefore traditionally carries heavier penalties. It is often described as being at the higher end of the culpability continuum while dangerous driving is described as a lesser offence: R. v. L(J) (2006) 2006 805 (ON CA), 204 C.C.C. (3d) 324 at para. 14 (Ont. C.A.). Criminal negligence causing death while street racing contrary to section 249.2, and dangerous driving causing death contrary to section 249.4(4) are, however, anomalous relative to other dangerous driving and criminal negligence offences. Curiously, they each carry the same penalty, raising the question of why the Crown would ever bother to charge anyone with the latter offence. Still, the charge is a matter of Crown prerogative and both offences must be adjudicated.

56Since dangerous driving causing death while street racing is subsumed within the offence of criminal negligence causing death while street racing, I will start with the dangerous driving offence. If it is met, I am obliged to ask whether Mr. Alli is also guilty of criminal negligence causing death while dangerous driving.

Dangerous Driving Causing Death

57Dangerous driving causing death while street racing is framed in section 249.4(4) of the Criminal Code of Canada. The dangerous driving component of section 294.4(4) requires the same elements that dangerous driving contrary to section 249 does. In addition, the Crown must prove that the dangerous driving occurred by street racing as well as those elements linked to causation of death. As the law is interpreted and applied to the specific allegation made in this case, Count 2 of the Information requires the Crown to prove beyond a reasonable doubt that each of the following elements co-exists, namely, that Mr. Alli:

(1) operated a motor vehicle;

(2) in a street race;

(3) in a manner that was dangerous to the public;

(4) to a degree or in a fashion that constituted a marked departure from the standards of the norm;

(5) that Mr. Alli’s dangerous operation caused Mr. William’s death; and that

(6) Mr. Alli’s driving presented a foreseeable risk of bodily harm.

58The first element is not in issue. Mr. Alli operated the red Mustang.

59Nor can it be doubted that the facts I have found amount to a street race. “Street racing” is a term of art in the Criminal Code of Canada. It is defined in section 2 of the Code:

“street racing” means operating a motor vehicle in a race with at least on other vehicle on the street, road, highway or other public place.”

It has been held that for a “race” to occur, there is no need for a formal competition bearing the customs or degree of organization of a NASCAR competition. As Justice Hill explain in R. v. Menezes at para. 83:

“We have come to accept, as a matter of common sense, that the synchronized or in-tandem movements of two motor vehicles marked by high speed and close proximity over a material distance, often accompanied by abrupt lane changes, blocking or bold manoeuvres in and out of traffic amounts to racing. Whether by express arrangement or tacit agreement, the joint venture involves mutual incitement and encouragement towards a rivalry or demonstration of motor speed.”

In R. v. M.R. [2011] O.J. No. 1017 (Ont.C.A.), O’Connor J. said “By their nature, street races involve a competition between drivers to see who can drive the fastest.” What Mr. Williams and Mr. Alli were engaged in at the material time was “a competition to see who could drive the fastest.” This was a street race according to law.

60Was Mr. Alli driving in a manner during that street race that was dangerous to the public? Street racing is, prima facie dangerous to the public, but the law requires that this determination be made of the driving of the particular participant who is being tried, “having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that is or might reasonably be expected to be at that place.”

61It is obvious that Mr. Alli’s manner of driving while street racing was dangerous to the public, bearing relevant factors in mind. The evidence showed that he was travelling at crucial times at or near the speed of the Williams’ car. Estimates offered by Ms. McFarlane and Ms. Colasante are that both cars were travelling at 100 kilometres per hour or more hour. While the forensic evidence derived from Mr. Williams’ collision is not conclusive, it shows those estimates to be within the range confirmed by the physical evidence. I find that Mr. Alli was driving at or near highway speed. He was doing so in a residential neighbourhood where cars were parked and pedestrians walking, in the middle of school day proximate to a school. And he did so knowingly while another vehicle was attempting to and did overtake his. Mr. Alli’s driving within the race was dangerous to the public. The danger posed by the driving was manifest.

62The separate element, that the manner of driving occurs to a degree or in a fashion that constitutes a marked departure from the standards of the norm, has been identified by the Supreme Court of Canada as the mens rea element of the offence. It is a “modified objective” standard. It is “objective” in the sense that this form of mens rea does not depend on the mental state of the accused. “Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks from the conduct”: R. v. Beatty 2008 SCC 5, [2008] S.C.J. No. 5 at para, 8. It is not enough, however, to find that the accused departed from the standards of care of a reasonable person. The departure either in what the accused failed to see or in the quality of the decisions taken by the accused must be a “marked” departure from what a reasonable person would understand or do. This elevated level of negligence is required by law so that individuals are not convicted merely because their dangerous driving meets the threshold for civil negligence. “It is only when the conduct meets the higher threshold that a Court may find, on the basis of conduct alone, a blameworthy state of mind”: R. v. Beatty at para. 7.

63As a result, it is possible to find someone’s driving to be dangerous to the public, yet not convict them because the degree or nature of their negligence is only a departure and not a marked departure from the standards of the norm. This happened in R. v Beatty when, as the result of a momentary lapse of attention, the vehicle of the accused drifted over the centreline killing three people. The driving was dangerous to the public but not criminal.

64Beatty, however, is different than this case. Manifestly, Mr. Alli’s driving during the race, as already described, is, in the circumstances that it occurred, a marked departure from the norm. Moreover, a person in Mr. Alli’s position, whether licensed or note, would have been aware of the significant risks from such conduct. No evidence was led of any special circumstances operating that could have obscured Mr. Alli’s perception of the risk in this case. And there being no evidence before me that Mr. Alli suffers from personal considerations that would render him incapable of seeing those risks, I am not permitted by law to consider Mr. Alli’s personal characteristics that might have dulled his full appreciation of what he was doing. In particular, his inexperience as a driver and his immaturity are not legally material on this point: R v Beatty at para. 39-40. I conclude that any reasonable person in the circumstances Mr. Alli was in, even after being instigated and egged on by Mr. Williams, would know of the grave risks involved in engaging in a street race at the time and place that Mr. Alli did, and would avoid doing so. Mr. Alli’s driving was a marked departure from reasonable standards of care, and the modified objective mens rea required for conviction is therefore present.

65On those elements alone Mr. Alli is guilty at least of the offence of dangerous driving contrary to section 249 (2), or the alternative offence of dangerous driving while street racing contrary to section 249.4(1), two offences that curiously carry the same penalty. The instant question is whether Mr. Alli is guilty of the aggravated or more serious offence of dangerous driving while street racing causing death, contrary to section 249.4(4). Whether he is depends upon whether the additional causation elements, canvassed above, are satisfied.

66There are two initial necessary conditions that must be satisfied for this to be so, “factual causation” and “legal causation.” In the usual case it is not necessary to define and apply these concepts closely, as causation will be obvious. What takes this case out of the ordinary is that Mr. Alli was not driving the vehicle that was involved in the collision. He is being charged for causing the death of Mr. Williams because he was involved as a driver in a race with Mr. Williams when Mr. Williams died after losing control of his own car. Moreover, the Defence has raised the possibility that Mr. Williams’ car may have lost control because of its mechanical conditions. A close inquiry is therefore required.

67Where death is an element of a criminal offence, “[f]actual causation, as the term implies is concerned with an inquiry into how the victim came to his or her death, in a medical, mechanical or physical sense, and the contribution of the accused to the victim’s death”: R. v. Nette [2001] S.C.R. 488 at para.44. Factual causation will exist, according to law, if the act or omission of the accused is a “significant” cause of death.

68The term “significant” was adopted by the Supreme Court of Canada in R. v. Nette (at para. 71) as a more comprehensible way of describing the factual causation standard adopted in R. v. Smithers 1977 7 (SCC), [1978] 1 S.C.R. 506. In that case (at para. 24) the Supreme Court of Canada found factual causation to exist because the act of the accused was “a contributing cause of death outside the de minimis range.” The de minimis limitation is meant to permit courts to avoid finding factual causation where the act of the accused contributes to the consequence but only in a “negligible” way: See R. v. Menezes 2002 49654 (ON SC), [2002] O. J. No. 551 at para 89 (Ont.S.C.J.). The act of the accused must be a “significant” cause of the prohibited consequence. In the driving context this raises the question of whether the “unlawful driving can be said to “still demonstrably influence the actual … accident [in which the injury occurred] beyond serving as its backdrop” or “part of the history of the setting in which the prohibited result unfolded.” R. v. Menezes at para. 92.

69It is important to appreciate that something does not become part of the history or setting in which the prohibited result unfolded simply because it is not the main cause, or its contribution was only indirect. As the Ontario Court of Appeal has noted:

“To prove factual causation, the Crown does not have to prove that an accused’s conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was the greater or more substantial cause of the death or injuries. The Crown need only prove that an accused’s conduct was a significant contributing cause of the injuries….” R v Kippax 2011 ONCA 766, [2011] O.J. No. 5494 at para. 24.

70For this reason any chain of causation linked to Mr. Alli’s actions would not be broken even if Mr. Williams’ car had the mechanical difficulties that Mr. Alli and Mr. Kadura claimed in their testimony – namely bald tires and a badly malfunctioning steering wheel, and even if those factors contributed, along with Mr. Alli’s actions, to the death of Mr. Williams. When the principles of factual causation are applied properly, mechanical difficulties would prevent a factual causation finding relating to Mr. Alli only if there was evidence of a defect “capable of showing that the accident was unavoidable irrespective” or any role Mr. Alli may have played in Mr. William’s accident: R. v. Kippax at para. 32. There is no evidence in this case that can raise a reasonable doubt about whether this is so.

71In any event, I am not prepared on the state of the evidence to have a reasonable doubt that Mr. Williams’ steering was even in the sorry condition described by Mr. Alli and Mr. Kadura. Neither witness is credible. As described above, both were party to a story developed with the acquiescence if not suggestion of Mr. Alli in which Mr. Kadura invoked the spectre of mechanical failure causing the accident the very day it happened, although at that time the only defect related was bald tires. No mention was made of the steering problem that they later made a feature in their narratives. Moreover, Mr. Mathurn testified that he drove with Mr. Williams the day before the accident and the steering was fine. As for the bald tires, confirmed by Det. Cst. Dodds, he formed the opinion that the tires were evenly “balded” intentionally, and he explained that where this is done it is to improve traction to facilitate racing. Balded tires would inhibit traction on wet roads because of the tread loss. The roads were dry on 22 June 2010.

72The essential question before me on the factual causation branch, then, is whether the act by Mr. Alli of participating in the street race in which Mr. Williams died was a significant as opposed to minimal enough factor in Mr. Williams’ death that it was merely part of the backdrop or history of the event. Applying this standard I find that Mr. Alli’s driving was a significant cause of Mr. Williams’ death, even though Mr. Williams was driving the car that lost control, and even though there is no evidence that Mr. Alli struck or cut-off Mr. Williams, causing him to spin out.

73I base this finding on sound authority. In R. v. Rotundo (1993), 47 M.V.R. (2d) 90 the Ontario Court of Appeal recognized that where two motorists mutually race each other, the drivers of both racing cars can be considered in law to have caused the injury to an innocent third party who is harmed by a collision with one of the racing cars. Courts of Appeal have also held drivers responsible for accidents involving vehicles other than their own, even in situations short of racing. In R. v. Hughes [2011] B.C.J. No. 852 (B.C.C.A.) Mr. Hughes was liable for an accident involving two other vehicles after it was found that the manner in which Mr. Hughes drove reduced the opportunity of another driver to complete the high risk and dangerous pass that he was attempting. In R. v Kippax 2011 ONCA 766, [2011] O.J. No. 5494 (C.A.) the accused was held causally responsible when the vehicle of his cousin that he was driving “in tandem” with, in single file, lost control and collided with a third vehicle. The manner and close proximity in which the vehicles were jointly travelling contributed to the cousin’s car losing control. This was enough to satisfy the causation standard for the accused.

74These same outcomes can occur where the party injured is the driver of a vehicle that is also complicit in the dangerous activity rather than a third party. In R. v. Hughes the accused was held liable for a count involving the death of the driver whose dangerous pass was the immediate cause of the accident.

75Most materially, it has also been recognized that the driver of one vehicle involved in a race can be convicted of causing the death of the other driver when the other driver lost control, without having been struck or bumped or cut off by the accused in R. v. Nieto-Campos [2005] O.J. No. 5576 (Ont.S.C.). A conviction arrived at in those circumstances was affirmed on appeal: R. v. Nieto-Campos [2008] O.J. No. 2093 (C.A.). In coming to this decision the Trial Judge in Nieto-Campos relied heavily on the obiter dictum in R. v. Menezes. While Justice Hill did not have to apply the principle to decide the case before him, in R. v. Menezes Justice Hill recognized that the same principles apply where it is the driver of the other racing vehicle who is harmed as opposed to third parties. This is sensible since the question is factual causation, an inquiry that does not include assessments of imputable cause where the misconduct of the victim could be debated. Justice Hill’s reasoning, including comments made in the context of his legal causation analysis, is in keeping with a proper application of the concept of factual causation.

“By their actions, those who race at excessive speeds on a public roadway assist one another in creating a dangerous risk. Each encourages and incites the other… It is the mutuality of their contribution towards the rivalry of speed which creates a singularly hazardous situation” (at para. 101)

The fact that the other driver is the victim therefore does not change the factual causes of death.

76Applying the law to this case, factual causation is met. The decision by Mr. Williams to push the limits of his car was a joint one. It became a joint one when Mr. Alli joined in the race, whether by prearrangement or spontaneously when challenged by Mr. Williams. Mr. Alli therefore contributed significantly to Mr. William’s manner of driving. Without Mr. Alli’s involvement there would not have been a race. Without question, his involvement in the race incited and encouraged Mr. Williams to speed and do what he could to stay ahead of Mr. Alli. Since Mr. Williams died while racing Mr. Alli when he pushed his car beyond its ability or beyond his own driving ability, the race contributed significantly to his death, and so did his racing partner, Mr. Alli. As such the mutual race was not merely part of the setting or history in which Mr. Williams met his tragic, pointless and foolish end. In law, Mr. Alli factually caused Mr. Williams death.

77Factual causation, of course, is not enough on its own to lead to a full finding of causation in a criminal case. “Legal causation” is also required:

“Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred…. In determining whether legal causation is established, the inquiry is directed to the question of whether the accused person should be held criminally responsible for the consequences that occurred”: R. v. Nette, at para. 45.

To be clear, “legal causation” is not an invitation to judges to pass their own subjective judgment as to whether the accused deserves to be held responsible for what he has factually caused. The inquiry is to be informed only by relevant statutory provisions and by recognized doctrines developed by law to break the chain of factual causation in appropriate cases, such as where there are material, intervening causes.

78The truth is that there are few legal causation rules that actually exculpate individuals who have factually caused consequences. Instead, most legal causation principles explain why responsibility will be imputed, in spite of arguments to the contrary. Of most relevance to this case, “the criminal law does not recognize contributory negligence”: R. v. Nette at para. 49. The fact that Mr. Williams played a crucial if not the most crucial and immediate part in his own death does not mean that Mr. Alli can avoid responsibility.

79Indeed, the most salient principle of legal causation is the growing recognition in Canadian case law that “conduct that is inherently dangerous and carries with it the reasonable foreseeable risk of immediate and substantial harm” satisfies the standard required for legal causation: R. v. Kippax at para. 27. See also R. v. Shilon 2006 41280 (ON CA), [2006] O.J. No. 4896 at paras. 33-34, 38 (C.A.), and R. v. Maybin 2010 BCCA 527, appeal heard and reserved 15 December 2011. A reasonable person would recognize immediately and without hesitation the foreseeable risk of immediate and substantial harm that street racing poses in a context such as this, not only for innocent third parties but also for the participants. Legal causation for Mr. Alli is established.

80The last element required for a dangerous driving causing death conviction – that the manner of driving by the accused raises the foreseeable risk it will cause bodily harm which is neither trivial nor transitory – is imposed on the Crown to comply with the Charter. At common law, if the accused was engaged in an already unlawful act, he could be held liable for any consequences that occur, foreseeable or not. For this reason in the pre-Charter case of R. v. Smithers 1977 7 (SCC), [1978] 1 S.C.R. 506 an unlawful act manslaughter case, the Crown could secure a conviction for causing death without any further inquiry beyond causation. In R. v. DeSousa 1992 80 (SCC), [1992] 2 S.C.R. 944 the Supreme Court of Canada held that where the causation of bodily harm is an element of an offence, constitutional minimum mens rea requirements now require that the consequence must be reasonably foreseeable for a conviction to be appropriate. In R. v. Creighton 1993 61 (SCC), [1993] 3 S.C.R. 3 the Supreme Court of Canada held that in a manslaughter case the same foreseeability requirement is imposed, although, to save the “thin skull” rule, foreseeability of death is not needed. Foreseeability of bodily harm will suffice. In R. v. M.R. [2011] O.J. No. 1017 this principle was applied to a criminal negligence causing death case, by parallel reason –for a conviction on that offence it must be foreseeable that the act or omission of the accused could cause bodily injury to someone. It is my opinion, therefore, that although this element is not customarily cited in dangerous driving causing death cases, the Charter requires that it is satisfied before conviction. The same constitutional principles apply.

81I have already determined in the legal causation analysis that a reasonable person would recognize immediately and without hesitation the foreseeable risk of immediate and substantial harm that street racing poses in a context such as this, not only for innocent third parties but also for the participants. This final element of the dangerous driving causing death count is therefore also met.

82All of the requisite elements of Count 2 as charged are therefore satisfied beyond a reasonable doubt and I will be making a finding of guilt on that offence.

Criminal Negligence Causing Death

83As indicated, the elements required for Count 1, criminal negligence causing death while street racing, are similar to those required for the offence of dangerous driving causing death while street racing. There are two material differences between these offences where the act of driving is said to have caused the death.

84First, for a criminal negligence conviction the conduct must not merely be dangerous to the public. It must be so dangerous that it “shows wanton or reckless disregard for the lives or safety of others.” This means that the negligence is significant enough that, viewing it objectively, the act is wanton and reckless on its face. As it has been put, the wantonness or recklessness must be “obvious.”: R. v. L.(J.) (2006). 2006 805 (ON CA), 204 C.C.C. (3d) 324 at para. 18 (Ont.C.A.). “Wanton” means heedlessly, ungoverned, undisciplined or an “unrestrained disregard for consequences.” Recklessness, in this context means “heedless of consequences, headlong, irresponsible.” In R. v. M.R. the Ontario Court of Appeal treated this actus reus element as a “high standard” being satisfied if the conduct constitutes a “marked and substantial departure from the conduct of a reasonably prudent person.

85Second, the modified objective mens rea element in criminal negligence offences is more intense than the “marked departure” modified objective test applied to dangerous driving. With respect to criminal negligence, the mens rea requirement again requires a “marked and substantial departure” which can, in appropriate cases, be inferred from the accused’s conduct or omission: R. v. M.R. at para. 29-20 (Ont.C.A.). Describing the mens rea requirement in the R. v. J.(F.) 2008 SCC 60, [2008] 3 S.C.R. 215, Justice Fish said in the factual context of that case at para. 9:

“On the count alleging criminal negligence, the Crown was bound to show that the respondent’s omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused recognized and ran an obvious and serious risk to the life of his child, or alternatively, gave no thought to that risk.”

The objective mens rea inquiry is not a simple duplication of the actus reus inquiry in spite of the repetition of the marked and substantial departure inquiry and the obvious overlap. The mens rea element permits an inquiry into the capacity of the accused to meet the relevant standard, as well as an examination of particular non-personal characteristics of the event that may affect the outcome. In R. v. M.R. the Court explained at para. 30:

“A court must consider the facts existing at the time in light of the accused’s perception of those facts and assess whether the accused’s conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances. In considering the issue, the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all.” (citations omitted)

86In applying these concepts the Court in M.R. directs judges to consider the actus reus first before examining the mens rea. Only if the conduct meets the actus reus standards is it necessary to go on and consider the mens rea.

87I begin the actus reus evaluation by noting at the outset that not all acts of street racing are criminally negligent. If they were, there would be no need for a parallel offence of dangerous driving causing death while street racing. The fact that Parliament has created both categories of offence is recognition that, even though both offences carry the same maximum penalty, some driving while street racing is more serious than other driving while street racing, and that not all acts of driving while street racing rise to the high levels of departure and rank recklessness and wanton disregard required by criminal negligence.

88It also bears emphasis at the outset that the tragic fact that Mr. Williams died during the accident is not to be considered when determining whether Mr. Alli’s negligence rose to the level of criminal negligence: R. v. Beatty at para. 46. While Beatty dealt with dangerous driving when making this point the Court was concerned, as here, with the objective, negligence based evaluation of the degree of departure of the conduct by the accused from reasonable behaviour. There is no reason in principle to treat criminal negligence any differently. Simply put, consequences aggravate the offence if there is one but are generally of no use in evaluating the degree of departure of the norm or the nature of the driving.

89I say “generally” because the Supreme Court of Canada accepted in R. v. Anderson at para 22 that, exceptionally, there may be cases where the consequences are so interwoven with the actions of the accused for those consequences to be relevant in assessing the manner of driving. This is not one of those exceptional cases. Given that Mr. Alli’s vehicle was not implicated directly in the accident, there is more separation between the consequence and Mr. Alli’s actions than there is in most cases. No factors supporting the treatment of this case as exceptional have been identified by counsel. I must therefore focus on Mr. Alli’s conduct alone, in the context of the events of 22 July 2010, when making the criminal negligence determination.

90In light of these observations and the required legal standards, does Mr. Alli’s driving satisfy the actus reus standards for a criminal negligence conviction.

91I begin by examining the inception of the race. While premeditation is certainly not required for a criminal negligence conviction, the degree of planning and deliberation is, in my view, a relevant factor in judging the degree of departure from the norm of the accused’s behaviour. I have no evidence before me of a prior agreement to this race. I must therefore proceed on the basis that the race was a foolish and spontaneous decision made by Mr. Alli when challenged on the road. A spontaneous decision to engage in a race is a marked departure from the norm, but it is less marked in nature than participation in a pre-planned and premeditated race.

92Second, and of far more importance, is the manner of Mr. Alli’s actual driving at the time. I do bear in mind that Mr. Alli was racing with another vehicle in a race that at times occupied both lanes of the road, including the oncoming lane, and that his act of racing egged the other vehicle on to higher and less controllable speeds. I need to go farther, however, and look closely at Mr. Alli’s own manner of driving within that race when making the overall evaluation.

93In this regard it is important to note that Mr. Alli’s offensive driving was, on the evidence before me, of short duration over a short stretch of road. Although Ms. McFarlane testified to hearing the race approaching long before the cars arrived in front of her, I cannot find beyond a reasonable doubt that a race was occurring in the distance. The noise Ms. McFarlane heard in the distance cannot be linked, with confidence, to these vehicles, nor can it be certain based on her evidence that she was even hearing two vehicles at that time.

94Ms. McFarlane’s first glimpse of the race would have been from less than 250 metres away to the north, as she could not see all the way to the Berrigan intersection from Rodeo drive. The accident happened 157 metres past Rodeo drive to the south. Based on the evidence I can find beyond a reasonable doubt a race only in the range of 400 metres but no more. I must therefore proceed on the footing that the negligent driving proved beyond a reasonable doubt by the Crown was of short duration over a short stretch of road.

95While I do find that Mr. Alli drove at a pace approximating Queensway speed, there is no evidence of Mr. Alli conducting dangerous manoeuvring such as “blocking” when he was being passed. He remained in his own lane or behind the other vehicle throughout the race. Even when jockeying for an opportunity to attempt to pass Mr. Williams’ vehicle, the only evidence I have is that he chose not to do try to go by Mr. Williams. Something caused him to hesitate. While his driving was criminal and a marked departure from acceptable standards but it was not ungovernable or heedless.

96And while Mr. Alli was racing in an area where danger to others would have been obvious, I have to look at the intensity of the danger in the specific context of this case. Here there is no evidence of pedestrians or vehicles being on the stretch of road where the race occurred, or of anyone having to take evasive action as a result of his driving. It was no doubt a terrifying and distressing spectacle for those who witnessed it, but they were not implicated in any way in the driving.

97There have been criminal negligence convictions arising from street races, and it will not be rare for street racing to amount to criminally negligent behaviour. Indeed, proof that there has been a street race is prima facie evidence of criminal negligence for the purposes of a committal for that offence at a preliminary inquiry: R. v. M.R. paras 53-58. When it comes to ultimate adjudication at trial, however, I am obliged to bear in mind that criminal negligence is meant to capture conduct at the higher end of the driving spectrum and that not all cases of street racing will qualify. I find on the facts of this case, including the factors I have just recounted, that while Mr. Alli’s actions in this case were irresponsible and deeply disturbing, this is not a case that qualifies for the “high standard” of a marked and substantial departure, even bearing in mind that Mr. Alli was an unlicensed driver with an expired G2 licence. It is my conclusion in all of the circumstances that a criminal negligence causing death conviction is not appropriate.

Verdict

98Please stand Mr. Alli. On Count 1, causing the death of Christian Williams by criminal negligence while street racing I find you not guilty. On Count 2, dangerous driving causing death by street racing, I find you guilty.