Court File and Parties
Kingston Court File: 121007
Ontario Court of Justice
Her Majesty the Queen
against
Andrew Wilby
Reasons for Decision
Given orally by
The Honourable Justice Elaine Deluzio
on February 27, 2015
Charge
Section 249(1)(a) Criminal Code - Dangerous Driving
Appearances
Phillip Perlmutter - Crown counsel
Joseph J. Markson - For Mr. Wilby
Heard: February 27, 2015 (9:50 a.m.)
Decision
1This matter was adjourned to today for my decision. I am going to read it. I normally provide counsel with copies, but I'm without a secretary right now, so I've asked the court reporter to prepare a transcript of my reasons and you'll receive that within a couple of days.
2Andrew Wilby is a police officer with the Kingston Police Service. He is charged with one count of dangerous driving. The charge arises out of an incident that occurred in Kingston during the early morning hours of March 18, 2012.
3Officer Wilby was on duty and operating a police cruiser that night. It was St. Patrick's night – a busy bar night for Queen's students, and therefore a busy night for police officers.
4Wilby was driving southbound on Division Street when he heard over his police radio that a fellow officer, Joel Fisher, was involved in a foot chase with 23-year old John Cammalleri. Cammalleri was wanted by police on an outstanding warrant for mischief. Wilby knew Cammalleri. He had arrested him in the past, and he knew that Cammalleri liked to run from the police and was often successful.
5Cammalleri had been talking to two girls behind the Starbucks Coffee shop located on the north side of Johnson Street just east of the corner of Johnson and Division. Fisher approached Cammalleri and the two girls initially because he had heard on his police radio that two girls matching the description of the girls Cammalleri was talking to, were suspects in an assault that had occurred at The Spot nightclub which is located at the north end of Division Street near Princess Street, on the east side of Division.
6After Fisher approached the girls he recognized Cammalleri and confirmed with Dispatch that Cammalleri was wanted. Cammalleri suspected that the officer recognized him and he didn't want to go to jail that night so he ran. He crossed Johnson Street on a diagonal, rounded the southeast corner at Johnson and Division, and kept running down Division. Fisher chased after him and while running he radioed to his fellow officers that he was in a foot chase with Cammalleri, and that Cammalleri was "southbound on Division".
7Wilby heard Fisher say he was in a foot chase with Cammalleri, but he says he didn't hear Fisher say that the chase started from behind the Starbucks on Johnson. All he heard was that they were running "southbound on Division", and he assumed they were running from The Spot nightclub because he had also heard the radio call about an assault that had happened there.
8Wilby was driving southbound on Division when he heard Fisher's radio communications about Cammalleri. He performed a U-turn at the intersection of William and Division, and says he may have accelerated as he came out of the U-turn. He started driving northbound on Division. He said he knew Cammalleri, and expected that he would run from the police, and he wanted to be in the general area in case Cammalleri ran towards him, so that he could apprehend him. He remembered saying to himself, "I'm right here – they're running right towards me".
9Officer Wilby's police vehicle and Mr. Cammalleri collided, and Mr. Cammalleri was badly hurt. He suffered serious leg and facial injuries including a broken kneecap, ligament damage, lacerations to his legs and face, and a broken nose. He required surgery to repair his knee and still has metal plates in his knee. He was hospitalized for several days.
10Due to the injuries suffered by Mr. Cammalleri the Special Investigations Unit became involved, and they conducted their own investigation. Charges were laid against Officer Wilby on July 31, 2012.
11There were two main issues at the trial:
(1) did Wilby's police vehicle hit Mr. Cammalleri on the sidewalk; and
(2) if the collision happened on the sidewalk, was Wilby's driving criminally dangerous?
The Crown's Position
12The Crown's position is that Officer Wilby intended to obstruct Cammalleri's path and thereby apprehend him by driving his police vehicle onto the sidewalk. The Crown takes the position that Wilby's deliberate act of driving onto the sidewalk to apprehend Mr. Cammalleri was dangerous not only to Mr. Cammalleri, but to the many other pedestrians, mostly partying Queen's students, walking in the vicinity of the accident.
13The Crown relies on the evidence of Mr. Cammalleri and five independent eye witnesses, all students. Mr. Cammalleri says he was on the sidewalk when he was hit by Wilby's police cruiser. All of the independent witnesses corroborate his evidence.
14The Crown also called Kingston Police Sergeant Saunders who conducted a scene investigation shortly after the accident and then prepared an accident reconstruction report. Saunders concluded that Wilby steered his vehicle onto the sidewalk and that the collision happened on the sidewalk.
The Defence Position
15The position of the defence is that the collision between Wilby's vehicle and Mr. Cammalleri occurred on the roadway.
16The defence relies mainly on the evidence of Officers Wilby and Fisher, and Dalton Brown, an accident reconstruction expert. Wilby says that his car was on the road when he hit Mr. Cammalleri. At trial, Fisher testified that as he chased Mr. Cammalleri he saw Mr. Cammalleri take a wide turn around the southeast corner of Johnson and Division, step out onto the roadway as he made his turn, and that the collision happened on the roadway.
17Dalton Brown's theory is that Mr. Cammalleri darted out onto the roadway at a 90-degree angle to the path of travel of Wilby's vehicle, and that Wilby was looking northbound toward The Spot bar where he expected Mr. Cammalleri to be running from; that Wilby saw Cammalleri come into his peripheral vision going in front of the vehicle and that Wilby braked and veered to the right in an effort to avoid hitting Cammalleri.
The Crown's Case
18Mr. Cammalleri testified that he ran across Johnson Street on a diagonal, and rounded the sidewalk from the south sidewalk on Johnson, around the southeast corner of Division and Johnson, and started running down Division on the sidewalk. He testified that when he came around the corner he saw a police car coming at him. He said he wasn't going to run across the street into it. He said he thought he could just run by the police car if he stayed on the sidewalk.
19Defence counsel urged me not to accept Mr. Cammalleri's evidence because he admits that he had a lot to drink that night, because he is a criminal who was trying to evade the police, and because he has started a civil suit against the Kingston Police.
20I have considered those arguments, and I found Mr. Cammalleri to be a credible and reliable witness. He admitted to drinking. He said he had ten or 11 drinks. His evidence about his interaction with Officer Fisher just before he ran is consistent with Officer Fisher's evidence. He also had a specific recollection about what he was wearing that night and about his interaction with the two girls before Fisher saw him. He recalls that the girls were loud and belligerent, and he cautioned them to step behind Starbucks where he hoped they wouldn't attract attention.
21He was cross-examined about the fact that in his first statement taken just a few hours after the accident, he said he was "running down Division" but didn't specify that he was running on the sidewalk. I accept his explanation that he has lived in Kingston all his life, and when he says he is walking down a certain road he doesn't have to add that he was on the sidewalk of that street.
22Cammalleri's evidence at trial was consistent with his SIU statement taken just hours after the accident; and his testimony was internally consistent throughout his evidence in chief and his cross-examination.
23Throughout a long and careful cross-examination Mr. Cammalleri maintained that he was on the sidewalk when he was hit by Officer Wilby's vehicle. He admitted his criminal record and offered details he wasn't even asked about. He said he had no grudge against the Kingston Police and takes responsibility for what happened because he shouldn't have been running from the police, and if he hadn't been running from the police the accident wouldn't have happened.
24Mr. Cammalleri was cross-examined about his civil suit against the Kingston Police, and in my view his responses revealed that he is quite naïve about that. He was approached by a lawyer who suggested that he start a civil action, and he hasn't – at least at the time of trial – even read his Statement of Claim.
25Mr. Cammalleri's willingness to accept responsibility for the collision due to his running from police bad behaviour, and his belief that he was on the sidewalk when the collision occurred, are not mutually exclusive in my view, especially when considered in the context of all of the independent eyewitness testimony which corroborates his evidence about the location of the collision.
Eyewitness Evidence
26Mira Dineen testified. She said she works for Queen's University as the Program Coordinator for the Queen's Peer Mentoring Program now. She was still a student in March of 2012 and had been with friends on campus. She didn't have anything to drink that night. She was walking on the north side of Johnson east towards Division Street when she first noticed someone running west along Johnson. She saw him cut diagonally across Johnson to the south side of the street and she saw an officer running behind him. Then she saw the person round the corner to go south on Division. She said she was about three houses from the corner when she first saw the guy running, and the officer was 20 or 30 feet behind. She said the intersection was well lit and she could see clearly what was happening. She said the guy rounded the corner and almost immediately, after several steps, the police cruiser collided with him.
27Ms. Dineen said she noticed the police car just before the collision occurred, and she first saw the car on the road and then saw it drive onto the sidewalk. She said that when the collision occurred the man was on the sidewalk and the front wheel of the cruiser was on the sidewalk. She said she was still watching the man running from where she was on the north side of Johnson, still west of Division, so that when the impact occurred the car was between her and the man who was hit. She saw the man shoot up into the air, flip up above the height of the car and then fall on the sidewalk. She knows he fell on the sidewalk because the right front wheel of the cruiser was on the sidewalk, and the man was on the sidewalk side of the vehicle when he was hit. She saw the man get up and try to start running. She didn't see the police car move again after the collision.
28Shea Luhowy is a student at RMC. He is studying communications and electronics. He was out at a downtown club with friends that night. He says he had one drink. He was walking southbound on Division from the downtown area. He was on the east side of Division Street at the northeast corner of William and Division.
29He first noticed the police vehicle when he was just north of William. He saw the police car travelling southbound and then make a U-turn at the intersection of William and Division. Just before the U-turn he saw the police officer in the car speaking with someone on the driver's side of the police car. He says the sharp U-turn caught his attention and he started paying attention to the police car.
30The police car was travelling northbound. He heard the car accelerate and saw the vehicle hit the man. He testified that when the vehicle hit the man the two right tires of the vehicle were on the sidewalk. A second after the acceleration sound, he saw a man fly over the top of the vehicle. He said the man was on the sidewalk when he was struck, and the police car stopped pretty instantaneously after the collision. He didn't notice the man until the point of impact, and he couldn't tell how close to the curb the man was.
31Marco Mazzilli-Daechsel is studying philosophy at Queen's University. He is 21 years old. He was at the Queen's Pub on campus earlier in the evening where he ate and had one drink. He had been drinking earlier in the day, but stopped drinking around 3 p.m. and had a nap. He said he was sober when he made his observations.
32He said he and a friend were walking on Division on the west side of the street, south of Johnson, when they saw a police car do a quick U-turn. He and his friend stopped walking and started watching the police car. He thought the police car was going quite fast. He watched the police car, in his words, "deviate to the sidewalk". He said the police car went up on the curb and then slightly went up, and that's when it hit the man. He saw the police car speed up just before it mounted the sidewalk. He did not hear any braking during the car's deviation to the sidewalk. He said he heard braking at the exact moment of the collision, and that the collision occurred when the car was on the sidewalk, not when the car was drifting to the sidewalk.
33Under vigorous cross-examination Marco maintained that the braking and the collision occurred at the same time. The first time he noticed the man was at the point that the collision occurred. He saw the man hit the car windshield. Under cross-examination when it was suggested to him that the man was running on the road, he said that if the man was running on the road, he must have been right exactly at the curb because when the car hit the man a lot of the car was on the sidewalk. But he maintained that the man was on the sidewalk and he would stick by that. He said that it was a clear night, there was lighting in the area and his visibility was good.
34The Court also heard from Alexander Sigfridsson. Mr. Sigfridsson is now an engineering student at Queen's, but at the time of the accident he was visiting his older sister for the weekend and to participate in the St. Patrick's Day parties with her. He was walking northbound on Division - it was just south of William, between William and Johnson – with his sister's boyfriend Ryan. He had a few drinks that night but wasn't very intoxicated.
35He saw a police cruiser, heard an acceleration of the car, and then a big loud bang, and saw a man get hit on the front right of the police cruiser, flip over the front and land just to the front side of the police cruiser.
36He said there were a lot of students around. He heard the acceleration up onto the sidewalk and saw the front right tire go up onto the sidewalk. He said the acceleration drew his attention even more to the police cruiser, and then he heard the bang, and that's when he saw the man go over the side of the car. He said it sounded like he had pressed really hard down on the gas. He said that when he pulled up on the sidewalk, pretty much right away that was when he heard the bang almost right away, and saw the man go over.
37Sigfriddson testified that when the man was hit he was on the sidewalk, and the front right tire of the car was on the sidewalk. He said there were street lights, and although it was dark he could see clearly. He was able to see around the police cruiser because of the lights being on, on the police cruiser. He thinks he was 10 or 15 metres south of where the collision occurred. He didn't see where the man was coming from; he only saw the man go over the hood of the car.
38When, during cross-examination, it was suggested, "for all you know the man could have been on the road before he was on the sidewalk", Mr. Sigfridsson's response was, "I do know that the police cruiser went up with the right tire onto the sidewalk, and the man went over the right side of the police cruiser. So based on that if he had, if the police cruiser was on the sidewalk with the right tire up, and the man went over the right side, then I was relatively certain he was on the sidewalk".
39All four students prepared diagrams showing the location of the police cruiser as it mounted the curb and hit Mr. Cammalleri on the sidewalk. I've reviewed their diagrams, and they are all very similar, even though they witnessed the collision from different angles. All of the diagrams show the police car mounting the curb a few meters before the car collides with Mr. Cammalleri.
Sergeant Saunders' Evidence
40The Crown also called Sergeant Stephen Saunders to testify. Saunders is a Traffic Sergeant with the Kingston Police Service, and a Level 4 Accident Reconstructionist. He arrived at the accident scene at about 3:15 a.m., did a field sketch and notes between 4:20 and 7:45 a.m.
41I found Sergeant Saunders to be a credible witness. He conducted a thorough examination of the scene. I accept his evidence about tire marks he saw and marked with orange cones that disappeared from the asphalt later in the morning when the sun came out. It was clear to me from his evidence that he understood the difference between ABS and non-ABS brakes, and that he believed that the tire marks he saw were consistent with the ABS locking system equipped in the police cruiser.
42Although he testified that the tire treads that he identified as left by the cruiser were measured by him to be 19 centimetres wide, I find based on the evidence of both Saunders and Brown, that these measurements are consistent with the tires on the cruiser having a tread width of 23.5 centimetres.
43Saunders concluded that the area of impact was on the east sidewalk on Division Street based on where the police cruiser was parked at the scene, the eyewitness statements he was able to review, the physical evidence at the scene including debris from the cruiser grill, and blood spatter evidence and skid marks he observed going across the south lane and up onto the sidewalk. He also confirmed that there were no brake or mechanical problems with the vehicle. He testified that the collision was preventable because if the vehicle had stayed in the marked lane and not gone onto the sidewalk, the pedestrian would not have been struck. He couldn't say how or why the police vehicle got onto the sidewalk.
Pedestrian Traffic Evidence
44Saunders described the heavy pedestrian traffic in the area of the accident that night. He said the area is "rife with university students and university housing…" – and that "there is pedestrian traffic there…almost 24 hours a day; sometimes it's heavier than not around one, two o'clock in the morning. It's…it's…there's people everywhere because the bars are letting out and all the university students who frequent the bars are heading back to their residences which is in that area". He says he knows this because he has policed that area for fourteen (14) years and I accept his evidence.
45Several other Kingston officers also described the pedestrian traffic in the area of the accident at the time it occurred. Officer Ross arrived on the scene shortly after the accident. He had been patrolling that area. He testified that there was a lot of pedestrian traffic and that typically at that time of night it is common for police to see large groups of 2, 5, 10, 15 students moving from the student residential area to the bar district downtown.
46Sergeant Barbara Huff testified that when she arrived at the scene shortly after the accident there were many, many students mulling around and walking home. She said there were dozens and dozens of students in the area. She testified that pedestrian traffic is always high in that area because it's a student housing area, and that St. Patrick's Day compounded the high traffic area because lots of students like to celebrate that event.
47Officer Bryan McMillan testified that when he arrived at the scene it was very busy with Queen's students, kind of all over the place; and he said there were a bunch of intoxicated students in the area of Queen's that day.
48Several of the civilian witnesses also described the area of Johnson and Division as a busy student neighbourhood that was busy with people walking in the area when the collision occurred.
Lighting Conditions
49Saunders also said that the area of the collision at the time of the collision was well lit. He said there are two overhead lights – one in the northeast corner and one in the southwest corner lighting up the intersection of Johnson and Division, and he said the overhead lighting was bright enough that he could see the entire intersection and the evidence within that intersection, and was even able to do his field sketch without any artificial lighting. He said he could clearly see what he was looking at on the side of the road, he could see the entire intersection, sidewalks, roadway, road markings, cruiser, evidence directly under the light, all without any difficulty.
50Saunders said that the purpose of his report was to help the officer involved, and inform his chief about what had happened. He said the SIU had their own accident investigators on the scene, and his report was intended as an investigation for the chief, as he put it, "to protect the officer, protect the department, find out exactly what happened." He relied on his own scene investigation, and statements gathered from witnesses on the scene, and he concluded that the collision occurred on the sidewalk where Mr. Cammalleri and the eyewitnesses said it happened.
51As I said, Saunders did not offer a theory about why the collision happened there, and he was frank about the shortcomings in his report. He was clearly unhappy that his report was requested by the SIU. He said the report was not completed to his own standards because he was not allowed to talk to or review the statements of Mr. Cammalleri or Officers Wilby and Fisher. But he said that even if he had conducted these additional interviews his opinion that the collision happened on the sidewalk would not have changed. "I don't think my conclusions would be swayed much in this case anyway. The…it's pretty evident that Mr. Cammalleri was running down the sidewalk, and it's pretty evident that Andrew Wilby was operating a police cruiser, and it's pretty evident that he was operating on Division Street, and it's pretty evident that he ended up on the sidewalk. How he got there I don't know. I wasn't able to talk to him, but my conclusion would basically be the same. This collision was avoidable had that cruiser stayed on Division Street."
The Defence Evidence
Officer Wilby's Testimony
52Officer Wilby testified at trial and he gave a statement to the SIU on April 30, 2012. He is 41 years old and has been a police officer since 1997. He was working the night shift from 6 p.m. to 6 a.m., and assigned to general patrol on March 17/18, 2012. He said it was a busy evening with lots of noise complaints and liquor offences pertaining primarily to Queen's students.
53He was driving southbound on Division and heard a radio dispatch about an assault at The Spot nightclub and two female suspects. His plan was to continue southbound on Division looking for the suspects. He said he was driving slowly looking for the suspects when he saw a young man walking around the corner of Brock at Division with a can of beer in his hand. He called the young man over, asked him for his ID, then told the man to throw the beer out. He didn't issue a ticket, and continued southbound. He then heard Fisher call out on the radio that he was chasing Cammalleri, and that they were running southbound on Division. He said he assumed they were running from The Spot nightclub where the assault had been reported. He made a U-turn at Division and William and started driving northbound. He says he may have accelerated out of the U-turn.
54Wilby said that as he approached the corner of Division and Johnson the next thing he remembers was, "just seeing Mr. Cammalleri who I assumed to be Mr. Cammalleri, but a human body, strike the upper right part of the windshield, and I know I hit someone 'cause I heard the thump. I remember looking and seeing a human figure strike the upper right portion of the windshield and going over the top of the car. I remember braking and looking in the rear view mirror and seeing the person get up and start running again." He said his first sight of Mr. Cammalleri was on the windshield of his car. He does not remember braking. He said the car came to a stop after the moment of impact and that the front right tire was up on the sidewalk.
55Wilby testified that he got out of his vehicle after the impact and went to Mr. Cammalleri who he believed was seriously injured. Then he returned to his car to turn on his emergency lights, and he says he moved his police vehicle further onto the sidewalk. When asked why he moved his vehicle after the collision he said he did this to "make sure the road was clear and to put my emergency lights on so that I could be seen." He thinks he moved his vehicle maybe two feet. His evidence about this was confusing. Under cross-examination when asked the purpose of moving his vehicle he then gave a different answer which was, "to offer assistance, medical assistance, to let the paramedics know where I was." But he had just called the paramedics so they knew where he was, and his car would have been easily seen at the intersection with the emergency lights activated, because the area was well lit by the overhead lighting.
56Wilby maintains that his car was on the roadway when he hit Mr. Cammalleri, and denies that his car mounted the sidewalk prior to the moment of impact with Cammalleri, but this is the only detail he was certain of. He said he did not mount the sidewalk prior to the vehicle coming to a complete stop, and yet he admits that when he stopped, the right front tire at least was on the curb, and he couldn't explain how this happened.
57Wilby should not have moved his car after the accident. Even a layperson knows that. And he did something else after the accident that demonstrates at least a lack of good judgment on his part and raises concerns about his credibility. He made contact with Mr. Cammalleri after the accident even though he had to have known that this was completely improper.
58He admitted under cross-examination that he saw Mr. Cammalleri on the street on July 13, 2012. He stopped his car, called Mr. Cammalleri over to speak to him, and asked Mr. Cammalleri about the accident. He recalls saying, "What were you thinking? Did you see me? Did you just run out?" This evidence is troubling.
59Wilby knew there was an SIU investigation ongoing. He knew he was under investigation, and yet he chose to speak with the complainant, in uniform and in his police cruiser. He didn't even concede at trial that he should not have approached Mr. Cammalleri.
60I note that according to Sergeant Saunders the prohibition against communication with Mr. Cammalleri between the Kingston Police and Mr. Cammalleri about the accident, continued right up until the trial. Sergeant Saunders stated in his evidence that he wasn't able to talk to Mr. Cammalleri. He said, "We were forbidden to talk to Mr. Cammalleri until we got the go ahead from the SIU, and that hasn't been given yet."
61Officer Wilby's testimony was vague and imprecise regarding his speed and the distance from the intersection when the collision occurred. Defence counsel argues that the lack of detail in his evidence actually enhances his credibility because he didn't try to fill in his evidence, and because he was blindsided when Mr. Cammalleri stepped onto the roadway and collided with his vehicle. But as I stated, I note that Officer Wilby did specifically recall hitting Cammalleri on the road.
62At trial Wilby said the lighting and the visibility at the corner of Division and Johnson was "not very good" and that the intersection was dark. He said there was only one street light on the southwest corner of the intersection, but Saunders says there are two overhead lights, and that the intersection was well lit. I note that Wilby's description of the lighting changed at trial from his SIU statement when he said the lighting in the area of the collision was good.
Officer Fisher's Testimony
63Officer Fisher was called as a defence witness. He testified that he saw two females who he suspected were involved in an assault at The Spot nightclub, standing behind the east side of the Starbucks restaurant located at the northeast corner of Division and Johnson. He approached the girls and then noticed Mr. Cammalleri standing with them. He recognized Cammalleri and suspected there was a warrant out for his arrest. He also knew Mr. Cammalleri to run from the police.
64As he was talking to the two females he noticed Mr. Cammalleri take a phone call on his cellphone and begin to walk away. While still standing with the females he called Dispatch and confirmed that there was a warrant for Mr. Cammalleri's arrest. He started walking toward Mr. Cammalleri, and then Mr. Cammalleri began running in a southwest direction from the rear of the Starbucks restaurant across Johnson.
65Officer Fisher was unable to estimate how fast Mr. Cammalleri was running. He described Cammalleri as quite fast and said he often gets away from police. As he was running after Cammalleri he called out to Dispatch the area of Division and Johnson and the direction Cammalleri was running. He said as he was running after Cammalleri he could see that they were heading towards the area of the southeast corner of Division and Johnson where there was a coffee shop that comes very close to the edge of the roadway. He said that as Mr. Cammalleri reached the corner of the intersection and was trying to turn southbound, he "ended up running southbound on the roadway for a brief period of time". He said he was about 18 feet behind Mr. Cammalleri and he saw a marked police cruiser driving northbound in the right lane.
66Officer Fisher told the SIU investigator that Wilby was his coach officer and he has a close relationship with him. By the time of the accident Fisher had been a police officer for just over two years. Fisher admitted that he called Wilby just before giving his SIU interview late in the day on March 18, 2012.
67There are a significant number of differences between the notes and will-say he prepared right after the incident, and the information he gave to the SIU later in the day, and his testimony at trial.
68At trial Fisher said that he saw Mr. Cammalleri run into the front right corner of the cruiser, and that the vehicle was on the roadway at the point of impact with Mr. Cammalleri. He did not see the vehicle come to a complete stop after the impact because he went immediately to Mr. Cammalleri.
69He testified that he made notes and a typed will-state at the station immediately after the incident, and his SIU statement was given at 7:17 p.m. on the same day. Under cross-examination Fisher agreed that in his will-state he wrote, "I observed Cammalleri take a sharp left turn around the lamppost at the southeast corner". It is clear from the photos of that corner that if Mr. Cammalleri had taken a sharp left turn around the lamppost, he would have been on the sidewalk as he ran around the southeast corner of Division and Johnson.
70Fisher also agreed that he did not write in either his notes or his will-say that Mr. Cammalleri was on the roadway when he was hit.
71The location of a collision is a significant detail and Fisher is a police officer. He did not provide a reasonable explanation about why he did not include such an important detail in his notes and will-say that he prepared shortly after the accident. He simply responded that there were other things he left out, too. The omission of this detail from his notes and will-say becomes more concerning when considered with the fact that after he spoke with Officer Wilby he told the SIU investigators that the collision happened on the roadway. He also changed his description about how Cammalleri rounded the corner. In his SIU statement and in court he said that Cammalleri took a wide turn around the corner and stepped out onto the roadway at the moment of the collision.
72Officer Fisher said he had a close relationship with Wilby and that's why he called Wilby just before meeting with the SIU. He said he was concerned about Wilby's emotional state. But calling Officer Wilby was a serious error in judgment that now raises concerns about his credibility, especially taking into account the inconsistencies that I have described. He should have waited until after giving his SIU statement before making that call.
73Although it's a minor discrepancy, I also note that Fisher testified that Wilby had his emergency lights activated, but this evidence is contradicted by Wilby himself, and all of the eyewitnesses who say the emergency lights were not activated on the vehicle when the collision occurred.
Leah Carroll's Statement
74The defence also relies on the statement of an eyewitness, Leah Carroll, who heard Cammalleri say, after the accident, that the police didn't do anything wrong. This is consistent with his evidence at trial that he takes responsibility for what happened because he should not have been running from the police. On consent of the Crown her SIU statement given on March 18, 2012 was admitted as evidence. I reviewed her statement.
75In her statement Ms. Carroll says that she was walking with three friends northbound on Division when she saw a police car pull a U-turn. She says she was sober. She had two drinks over three hours before going to the bar. She said he wasn't going fast when driving southbound, but after pulling the U-turn the cruiser sped up. She said, "He was driving pretty fast, so it was quite evident that he was either looking for someone or going to get…going to be somewhere pretty quickly. He sped up the street. I don't know how fast but he sped up pretty quickly, and the next thing I heard was the collision between the man and the cop car."
76She said she heard screeching tires and heard the impact, but didn't see it after watching the U-turn, and noted that the police car sped up. She says she didn't watch until the collision, didn't see the car go up on the sidewalk – just saw that it was there after it hit the boy. She thought the car travelled for about twenty seconds, for about half a block, after making the U-turn and before hitting the boy.
77Ms. Carroll said that after seeing the police car speed up she heard the collision between the man and the car. As I said, she didn't see the boy get hit, but she heard it and then she saw the boy start running down the street and then collapse. She heard him screaming his legs were broken, and she ran up and told the police she was in nursing. She then ran to a nearby house, got a towel, ran back and put it on the boy's face. She said the police officer grabbed the towel from her and said he could handle it from there, and then the boy asked for water so she got him a glass of water, gave it to him, and then the cops told her to go back on the sidewalk.
78She said there were no emergency lights on the police vehicle and no sirens. She said it was a clear night, the street lights were on, and she had no trouble seeing. Her evidence is corroborative and consistent with the eyewitness evidence called by the Crown.
Dalton Brown's Expert Evidence
79The defence relies heavily on the evidence and testimony of Dalton Brown who was qualified as an expert Accident Reconstructionist. He performed a forensic evaluation of evidence collected by the Kingston Police Service including photographs, diagrams and measurements. And he performed various time/distance and perception/reaction calculations.
80Mr. Brown explained his theory of the accident as follows. "I believe that the driver saw the person - it was a dart-out type of collision – and made a… - from what I can see, what I can evaluate, is that that hazard was running in front of them, and in order to avoid the collision braked and veered away from that individual, was trying to avoid the collision. However, the person did not keep going in a straight line across the intersection; the person turned to the left and rounded the corner, so effectively coming, turning into the vehicle that was trying to avoid that person in the first place; …the driver saw the person, applied a corrective reaction to that stimulus that was put into him. His response, good or bad, was to brake and steer to the right."
81Mr. Brown performed various calculations to determine how much time Wilby would have had to react to Mr. Cammallari had he darted out onto the road in front of Wilby's police vehicle. He concluded that Wilby had only seconds to take evasive action, and that the action he took was to steer his vehicle to the right towards the sidewalk. However, there is no evidence to support Mr. Brown's theory that Wilby perceived Mr. Cammalleri to be running across the front of his vehicle and veered to the right. Wilby did not testify that he saw Cammalleri in his peripheral vision and swerved to the right to avoid hitting him. Wilby says his first perception of Cammalleri was when Cammalleri hit his windshield. And all of the eyewitnesses, except Fisher, say that the vehicle accelerated, mounted the sidewalk and then collided with Mr. Cammalleri. And none of the witnesses, not even Fisher, say that Cammalleri came out onto the roadway at a right angle to the path that Wilby's vehicle was travelling.
82Under cross-examination Mr. Brown agreed that even according to his own calculations the furthest Mr. Cammalleri was from the curb when he was hit was in the range of eight to ten inches. He also agreed that Mr. Cammalleri's injuries were not consistent with Mr. Cammalleri moving from his right to his left towards the sidewalk when he was hit. Cammalleri's primary injury was to his left patella, and if he was moving from his right to his left he should have had more injury to the right side of his body.
83Under cross-examination Brown agreed that it was a possibility that Wilby was in a hurry to obstruct Cammalleri on the sidewalk before he got there; that he hit his brakes and veered to the right to get on the sidewalk rather than to avoid a hazard on his left. But he said he didn't think this would be realistic and operational. He said, "I don't think he would do that. From personal experience I don't know why you… - I can't see that – you may pull over to the side of the road and stop."
84Dalton Brown did not conduct his own scene examination. He relied on measurements, observations and photographs taken by Kingston Police Service Sergeant Saunders and other officers, yet he was critical of Saunders' investigative techniques and found the photos and measurements to be deficient. He said the scene photos do not reflect the actual lighting and visibility at the time of the accident, and in fact he conceded that the photos do not accurately depict the lighting or the shadows that existed at the time of the accident, and yet he testified he believes that Cammalleri ran out onto the roadway from a dark, shadowy area. He says that's evident in the police photos. He relied on these photos, and didn't even refer to the evidence of the independent witnesses and the evidence of several police officers including Sergeant Saunders, that the area was in fact well lit, and that witnesses were able to see clearly the accident from distances as far away as 100 feet.
85Brown performed perception/reaction and time/distance calculations using Mr. Cammalleri's estimate of his own running speed. He agreed that if Cammalleri was not right about how fast he was running, if he was slower, then his calculations would change and Wilby would have had more time to react. Although I found Cammalleri to be a credible witness, I do not find his evidence that he can run at a speed of between 25 and 30 kilometres per hour, reliable. There is no evidence that he had any basis for this belief. He did not testify that he was ever clocked at a certain speed. He knows he was a fast runner in high school, and he can outrun many Kingston police officers. Even Officer Fisher who said he was fast, was unable to give an estimate of the speed either he or Cammalleri were running that night.
86Brown reviewed acceleration tests performed by the Michigan State Police to determine whether Wilby's acceleration out of the U-turn was excessive, but he doesn't even attempt to reconcile his findings with the evidence of independent witnesses who described hearing engine acceleration sounds and seeing Wilby's vehicle accelerate just before it veered onto the sidewalk and collide with Mr. Cammalleri. He refers to the statements of witnesses who were not called to testify, and makes no reference to significant observations, not just about the location of the collision and the acceleration, but also about the lighting in the area of the collision made by eyewitnesses who did testify.
Analysis and Findings
87After he turned the northeast corner from Johnson onto Division, Cammalleri said he saw Wilby's police cruiser gunning down the road toward him. It is reasonable to infer that if Cammallari saw the cruiser, Wilby saw Cammalleri, especially since he was looking for Cammalleri to be running southbound on the east side of Division.
88Mr. Cammalleri knew when he saw Wilby's vehicle, as he put it gunning down the roadway towards him, that he could keep running down the sidewalk and get away. He knew that the officer driving the vehicle wouldn't catch him if he had to park and get out of his vehicle.
89It is reasonable to infer from all of the evidence that Wilby knew this, too. Wilby knew that his only chance of apprehending Cammalleri was to obstruct his path on the sidewalk, and that's what he tried to do. He didn't mean to hit Cammalleri, but he made a U-turn, sped up and mounted the sidewalk because he meant to catch him. That's what all the independent witnesses say he did, and I believe them.
90Officer Wilby testified. The defence called evidence and I must apply the principles set out in R. v. W.D. Officer Wilby's testimony at trial about details such as his speed and the distance he was from the corner when the collision occurred was vague and imprecise. His evidence about the collision itself does not support Dalton Brown's theory; and he exercised poor judgment when he approached and spoke with Mr. Cammalleri knowing there was an ongoing SIU investigation. His conduct in approaching Mr. Cammalleri and questioning him about the accident when he must have known this was improper, weakened his credibility.
91Fisher had been a police officer for just over two years and admits having a close relationship with Wilby because Wilby was his coach officer. In this context he made the very troubling decision to give Wilby a call just before he gave his SIU statement. As I said, he surely could have waited until after he gave his statement to call Wilby if the purpose of his call was just to inquire about how Wilby was doing.
92And as I've also noted, it is more troubling to note that Fisher's recollection of the incident and about important details such as the location of the collision and how Mr. Cammalleri rounded the corner, changed after he talked to Wilby. The discrepancies and inconsistencies in Fisher's evidence and the fact that his evidence contradicts the evidence of all the independent eyewitnesses, raises concerns about whether Fisher was more concerned about assisting his friend and fellow officer than providing the Court with an accurate account of what he saw.
93I am satisfied, based on the evidence of Mr. Cammalleri and the independent witnesses, and Sergeant Saunders, that Mr. Cammalleri was running southbound on the sidewalk when he was struck by the police cruiser. The defence evidence, including the evidence I've detailed, does not raise a reasonable doubt about this.
94It is reasonable to infer, based on Wilby's stated intention, which was to assist in Mr. Cammalleri's apprehension, that he deliberately steered his vehicle onto the sidewalk to obstruct him and prevent him from escaping. Wilby testified that he made the U-turn and started travelling northbound on Division because he wanted to apprehend Cammallari. He knew that Mr. Cammalleri was fast and liked to run from the police. He anticipated that Mr. Cammalleri would be running southbound on Division because he heard the radio transmission. It is reasonable to infer that he anticipated that Cammalleri would be running on the east side of Division because of where The Spot nightclub was located.
95The evidence supports the reasonable inference that Wilby's manoeuvre onto the sidewalk was deliberate. It was not a reaction to a perceived hazard, and therefore Dalton Brown's perception/time/distance calculations were not helpful. His darting out theory, that Wilby braked in reaction in to a hazard and mounted the curb after braking hard is simply without any evidentiary foundation.
96The defence evidence, including the evidence of Leah Carroll and Dalton Brown, does not raise a reasonable doubt about whether Mr. Cammalleri was running on the sidewalk when he was struck by Wilby's vehicle, or whether Wilby made a deliberate move to the sidewalk to obstruct Cammalleri's path.
97Mr. Cammalleri was not armed and dangerous. He was not running from a violent assault or a robbery. He was wanted on a mischief charge for breaking a light.
98Wilby drove his police vehicle onto the sidewalk knowing that there were many students walking on the road and on the sidewalk in that vicinity. He had just stopped a student who was walking on the road with a beer. He knew many of these students were drinking and impaired. He could have stopped his car and pursued Mr. Cammalleri on foot. But he decided to drive his vehicle on the sidewalk to obstruct Mr. Cammalleri's path. He knew Mr. Cammalleri was fast, and he knew that if he stopped his car and tried to run after Cammalleri he wouldn't catch him. Brown said he didn't think his manoeuvre would be operationally sound if he did that, and it wasn't. It was criminally dangerous in all of the circumstances.
99Applying the two-step approach in R. v. Roy, 2012 SCC 26, I find that a reasonable police officer would have foreseen the risk of driving a police cruiser onto a sidewalk where there was heavy pedestrian traffic, without even activating any emergency lights or equipment. The risk of colliding with a pedestrian, whether that pedestrian was Mr. Cammalleri or one of the many Queen's students walking in the area, was a reasonable foreseeable risk. Wilby's plan to drive his vehicle onto the sidewalk to obstruct Mr. Cammalleri's path, intercept him and arrest him, represents a marked departure from the standard of care expected of a reasonable police officer in the circumstances.
100The requisite mens rea and actus rea outlined by the Court in R. v. Roy and R. v. Beatty, 2008 SCC 5, has been established beyond a reasonable doubt. Applying the principles in R. v. W.D., on the totality of the evidence I find Mr. Wilby guilty of dangerous driving.
Sentencing Adjournment
MR. PERLMUTTER: If I could have a moment, Your Honour, to speak to my friend?
THE COURT: Yes.
MR. PERLMUTTER: Your Honour, I understand the accused admits that in 2008, May 5th, he was found guilty and conditionally discharged with a 1-year probation for uttering threats. That's admitted I understand from this, my friend.
THE COURT: Are we proceeding to a sentencing hearing now?
MR. MARKSON: No, we're not.
MR. PERLMUTTER: No, I just wanted to put that on the record now.
THE COURT: Okay.
MR. MARKSON: And I'm not sure why my friend finds this to be the time to do this. But no we're not, Your Honour, thank you. I'll be asking that the matter go over to another date for sentencing.
MR. PERLMUTTER: I just wanted to make sure that the information was before the Court.
MR. MARKSON: Yeah. In any event…
MR. PERLMUTTER: My friend would prefer I leave that. The only other…
MR. MARKSON: Yes I would, thank you.
MR. PERLMUTTER: But there is one…there is one other thing that I do have to do today, and that is the licence will have to be… - he'll have to surrender his licence today upon his conviction.
THE COURT: Yes.
MR. PERLMUTTER: And the second thing is that I want to ask my friend, through the Court, since the complainant is entitled as a matter of law to submit a Victim Impact Statement or to read one, and I don't know whether he'd want to, if it's convenient to my friend and his client, I propose – and to Your Honour – that we make sentencing submissions and have the sentence passed on the same date rather than two dates, but I'm subject to what my friend has to say.
MR. MARKSON: I'm not prepared to advise at this point.
MR. PERLMUTTER: Oh.
MR. MARKSON: It may be that sentencing submissions go on for some time, so…
MR. PERLMUTTER: All right.
THE COURT: Well we're going to set the time. We're not going to have a year-long sentencing submission as we did with this trial. We're going to set the time for a sentencing hearing, and I'm going to hear the submissions that day. Whether I decide to impose sentence that day or not will be up to me.
MR. PERLMUTTER: That's fine. I'm just wondering Your Honour, then, if my friend… - ask my friend through the Court if he could indicate, so that we know for scheduling purposes, if he has any idea how much time might be required, and whether he wants… - I don't know if he wants…
THE COURT: Well we're going to decide that today.
MR. PERLMUTTER: That's what I wanted to find out.
MR. MARKSON: Well perhaps a break might be advisable as my friend, if he will allow a fair consideration of these questions.
THE COURT: Yes. I know that the Trial Coordinator is not here today. That may have an impact on setting the date; we may have to go to a set-to date, so that might give you a little bit more time, but I'll give you a few minutes to talk about that. I'm just remembering now Anne Marie is off today. So we may have to go to a Remand date, just to set the sentencing date.
MR. PERLMUTTER: I take it then, with Your Honour's permission, if the parties come to an agreement with Your Honour about a date, we can ask agents to speak to it on that…
THE COURT: That's absolutely fine for the set date, yes. We may have to do that. I'll just confirm that now.
MR. MARKSON: That's fine.
THE COURT: I'll take a brief recess.
Court recessed (10:34 a.m.)
Court resumed (11:06 a.m.)
MR. PERLMUTTER: Good morning again, Your Honour.
THE COURT: I just wanted to follow up with what you said. I left for Chambers and thought, I haven't registered the conviction.
MR. PERLMUTTER: No, and…
THE COURT: There's been a finding of guilt. So until conviction, I don't need to…
MR. PERLMUTTER: No, you're right. And to be fair…
THE COURT: There may be an argument for a discharge on sentence or something.
MR. PERLMUTTER: I was going to say, with respect, great minds think alike, but the greater one is sitting at the front of the court room.
THE COURT: I'm sitting at the front.
MR. PERLMUTTER: Your Honour, I addressed my friend on that, and he's going to make submissions about whether you ought to register a conviction or not, and mine will be very short and I'll wait until he… - we're not ad idem but mine will be brief.
MR. MARKSON: Thank you, Your Honour. You're forecasting the submission which is, I'd be grateful if the Court would not impose, or rather not register the conviction today and postpone the registration of any conviction subject to the sentencing submissions.
There are discharge provisions available to the offence. And although my friend will probably say that will not have any effect upon the driving suspension, the length of any driving suspension and any qualifications to the driving suspension are within Your Honour's purview, and I think it would benefit from being informed from the sentencing submissions that I will bring.
Officer Wilby is an officer in good standing with the Kingston Police Service; he's working as a detective/constable right now and requires his vehicle to drive. It's Kingston. It's not downtown Toronto, he's not living in downtown Toronto. So this will have a potentially catastrophic effect upon his ability to commute back and forth from work.
And right now his own vehicle is present at the Belleville Court House: even getting home would require tremendous logistics. And I'd be grateful if we could postpone that exercise until the date we come back for sentencing and Your Honour's in a position to sentence.
THE COURT: Yes.
MR. PERLMUTTER: I'm going to say two things. One is just a technical legal matter: to the extent any statutory limitations on the licence are imposed, both under the Criminal Code and under the Highway Traffic Act are such that you wouldn't be able to modify them, at least the minimum. That's neither here nor there.
In terms of the issue of postponing the registration of conviction, I told my friend and I tell Your Honour I'm not consenting but I'm perfectly content to leave it in the Court's capable hands.
THE COURT: Well I came into the Court with that intention, in case there were going to be submissions about discharge, so I will not register the conviction. There's a finding of guilt noted, and we'll go to a date for sentencing hearing. Have you thought about how much… - are you agreed on how much time you're going to need?
MR. PERMUTTER: My friend I think said he probably figured he'd be the morning.
MR. MARKSON: That would be my bestimate.
MR. PERLMUTTER: I'm quite confident we can get it done in a day, and depending on what the submissions are, it may be that we'll be close enough, or whatever, Your Honour will be sufficiently and adequately informed that you can pass sentence the same day. That's my hope anyway. What I don't know, and I'll find out, is whether the complainant wishes to file a Victim Impact Statement or wishes to read one, or is not interested in either. If he's simply filing one, I wouldn't think it will take any time at all, and if he's going to read it, it will take only a short time longer.
So we have, subject to Your Honour, we understand that Thursdays are set dates in this court house, and we were going to propose that the matter go to the 5th of March, which is the next Thursday.
THE COURT: Yes, that would be at 9 a.m. in Court Room 101. And I will have Anne Marie contact both of you between Monday and Thursday. You can have agents appear to set the date, and she'll work out the date. I don't want it to be a long adjournment. I'm suggesting within the next six to eight weeks we should be able to find one day. And I am going to ask, if we're talking about that length of submissions, for written submissions. So I'll put it over then to March 5th, Court Room 101 at 9 a.m.
MR. PERLMUTTER: And I'll ask… - talk to my friend about getting his submissions to…
MR. MARKSON: We may narrow issues, Your Honour, between us, and may dispose of the need for written submissions, but we'll take Your Honour's guidance on that point, and if we're fully at odds, then…
THE COURT: Okay.
MR. MARKSON: …I'll presume written submissions are to be provided.
MR. PERLMUTTER: If it helps the Court, I suspect that most of his submissions would have been evidentiary rather than on what the appropriate disposition is, and those can be exchanged pretty easily.
MR. MARKSON: I'm sorry, Your Honour, I didn't catch the court room?
THE COURT: Court Room 101.
MARKSON: One-oh-one, thank you very much.
THE COURT: Nine a.m., March 5th. And as I said, I'll make sure I'll send an email to Anne Marie and make sure she's in touch with both of you early next week. Okay.
Court adjourned (11:11 a.m.)
