Court File and Parties

Ontario Court of Justice

Date: 2016-01-14

Court File No.: Halton 14-3319

Between:

Her Majesty the Queen

— and —

Anthony Cabral

Before: Justice Lesley M. Baldwin

Heard on: October 27 and 28, 2015

Reasons for Judgment released on: January 14, 2016

Counsel:

• L. Jago, for the Crown
• E. Bhattacharya, for the defendant Anthony Cabral

BALDWIN J.:

Facts

1Anthony Cabral is charged with assaulting Andre Vlacich on November 12th, 2014 at the Town of Oakville.

2The Crown proceeded summarily. This is an allegation of road rage.

3Three witnesses testified for the Crown; two witnesses testified for the defence.

4This case involves a WD analysis.

5The undisputed facts at the end of the trial were as follows:

(1) the accused blocked Andre's vehicle in at the intersection of Dorval Drive and the North Service Road;

(2) the accused exited his Mercedes vehicle leaving his female passenger in a dangerous situation where his car could have been hit from behind;

(3) the accused approached Andre's driver's side window, reached in with both arms, and injured Andre;

(4) the accused came into possession of Andre's car keys and threw them at Andre's car windshield;

(5) the accused uttered a threat to kill Andre the next time;

(6) the accused sped off from the scene;

(7) Andre and an independent Crown witness reported the incident to the police.

The Events of November 12, 2014

6The complainant (hereinafter called Andre) and the accused first crossed paths as they were driving their respective vehicles at approximately 12:30 p.m. on Wednesday November 12th, 2014.

7Andre (24 years of age at the time of trial) was on his lunch break from work.

8The accused (a man in his fifties) was driving his female friend (Ms. Lem) to her home.

9Andre was travelling northbound on Dorval Drive.

10The accused had been travelling westbound on the QEW and got off the highway at Dorval Drive.

11Andre testified that the accused cut in front of him at this intersection and Andre had to slam on his brakes to avoid a collision.

12The accused testified that he did not cut Andre off. He did not see him. He could not understand why Andre was honking his horn while driving behind him on Dorval Drive. He could not understand why Andre pulled up beside him and gave him the finger. He could not understand why Andre yelled insults at him, including telling him to 'learn how to f'in drive'.

13As they both proceeded northbound on Dorval, Andre was in the right turning lane for the North Service Road. The accused was in the lane next to him on Andre's left. The accused initially intended to proceed through that intersection and continue driving on Dorval.

14The accused made a decision not to continue driving because he wanted to tell the young man, Andre, that he had not done anything wrong and to tell Andre that he was the one driving dangerously, among other things.

15"…he basically invited me…he slowed right down…like in my mind I think this young man should maybe, you know, I should address his situation...his conduct, and his careless behaviour." (Transcript Oct. 28/15 p. 5)

16The accused repeated that Andre had 'invited' him to continue the altercation.

17The accused testified that his passenger, Jennifer Lem, was "completely freaking out". (p. 5) He agreed that she did not want him to get out of the car.

18The accused pulled his car over to the right-hand lane on an angle and blocked Andre in. The intersection light was red at the time. In cross-examination the accused agreed that this was not proper driving on his part.

19The accused repeated over and over again that he just wanted to explain to young Andre that he was behaving badly.

20He quickly got out of his car and he went right up to Andre's driver's window.

21According to the accused, when he approached, Andre put his window down and continued to yell, 'Learn how to f'in drive. What the f' do you want? You've cut me f'in off'.

22The accused repeated that "I'm a gentleman of a certain age, and I merely wanted to point out something very quickly because I wanted to go on my merry way." (p. 10, 14)

23The accused agreed that Andre tried to reverse his vehicle to get away. He only reversed two feet but could not go any further back because there was traffic coming in right behind him.

24The accused agreed that he was frustrated, excited and upset.

25According to the accused, Andre then pulled him into his car. It was Andre that began the scuffle between them in Andre's car. At all times Andre was seated in the driver's seat with his seat belt on.

26Andre grabbed him immediately and almost pulled him through the window. (p. 15)

27Andre was using both of his hands. According to the accused, he used only one of his hands in the car. His other hand was against the car door.

28According to the accused, Andre's vehicle suddenly lurched forward 4 to 6 feet. The scuffling was still going on. At this point the accused said he was "really scared". (p. 17)

29The accused stated that when the car lurched forward he fell to the ground. He agreed at this time that Andre was steering the car. "He's making a turn to get away, I guess." (p. 20)

30The accused could not say how he fell. He could not say if he landed on his knees, his bum or his elbow. He just fell back.

31Then an unknown third party came up between them from the sidewalk. This unknown person grabbed the keys out of Andre's ignition and put Andre's car in park. The unknown person gave the keys to the accused. The unknown person then left the scene.

32The accused admitted that he then tossed the keys at Andre's car. They bounced up against his windshield and fell off.

33The accused got back into his car and drove away.

34In cross-examination, the accused stated that Andre "almost killed me". (p. 28)

35The accused did not contact the police. The police contacted him.

36The accused stated that he did not contact the police because he was "very frightened about all this". (p. 30) He also said that he was "frantic" and did not think about it.

Defence Witness — Ms. Lem

37Ms. Lem testified for the defence. She does not know how to drive a car and she did not see what happened between the accused and Andre at the car window.

38Ms. Lem described the interactions between the two drivers as they proceeded up Dorval Drive before the accused blocked Andre in. They were yelling at each other and Andre gave the accused the finger.

39She was upset and worried when the accused got out of the car. She watched him approach Andre's driver's door and then turned around in her seat and did not see what happened because she "had other things on her mind." (p. 36)

40Then she heard someone yelling from the sidewalk. This person was yelling "what the f' are you doing?" (p. 36)

41The accused was on the side of the vehicle. The vehicle moved forward maybe four to six feet. She did not know if the driver had a hold of the accused or if the accused was holding the car. She did not see the accused fall to the ground. She froze; she panicked. She did not know if she should get out of the car or call 9-1-1. She did nothing.

42According to Ms. Lem, the entire incident at the intersection went on for five to eight minutes. (p. 39)

Crown Witness — Andre Vlacich

43Andre described being cut off at the intersection where the QEW empties onto Dorval Drive. He had to slam on his brakes to avoid striking the accused.

The accused just kept on driving and Andre followed behind him.

44Andre honked his horn which the accused responded to by aggressively physically gesturing to him with his hands in the air.

45As they both approached the intersection at the North Service Road, the cars were beside each other. The accused rolled his passenger's side window down. Andre rolled his driver's window down and yelled through the passenger side of the accused's car 'learn how to f'in drive'.

46Andre started to drive ahead of the accused's vehicle intending to turn right onto the North Service Road. The accused sped up, cut in front of his car and boxed him in. Again Andre had to slam on his brakes to avoid hitting the accused.

47Andre tried to avoid an altercation by reversing his vehicle because nobody was behind him at the time.

48"…I thought maybe I can just drive around this guy, but by the time I reversed, got back into drive, he was already at my window, which happened to be down because I'd yelled something out (earlier)." (p. 50)

49The accused put both of his hands on Andre and was grabbing him.

50The accused grabbed his neck and his arm and was wrestling him around.

51Andre used his hands to try and hold the accused back. He was pushing his chest area.

52Andre testified that the accused would not relent. The accused was trying to induce a fight. The entire time Andre kept repeating 'I'm not going to fight you; get off of me; leave me alone'.

53Andre testified, as supported by photographic Exhibits taken at the police station, that the accused scratched his face, neck and hands. During his testimony, Andre produced 7 photographs on his cell phone which depicted a baseball-sized bruise which developed on his left arm (bicep-tricep area) starting on November 13, 2014 through to November 16, 2014.

54Andre still had his foot on the brake and his car was in drive. As he tried to get the accused off of him, his foot momentarily released from the brake and his car went forward a bit. The accused was on him the entire time. The accused would not let go.

55The accused was on him for a few minutes until eventually somebody walked by. This person reached directly into his car and grabbed his keys. Before that happened, Andre had put his car into park. The stranger, perhaps a teenager, gave the keys to the accused.

56The accused then let go of Andre. Before he walked away he said 'next time I'll f'ing kill you'.

57The accused walked away about four or five feet, stopped, turned around, and then whipped the keys directly at Andre's windshield.

58Andre had to get out of his car to get his keys. When he did that he memorized the accused's licence plate, got back into his car, pulled over into a plaza and called the police.

Crown Witness — Ryan Jackson

59Ryan Jackson corroborated key parts of Andre's testimony. This independent witness repeatedly described the accused as the aggressor and referred to the accused's actions as being consistent with an "attack" on Andre. He described the events as the worst case of road rage he had ever seen. Shortly after witnessing the events, he reported the incident to police. This was before Andre had even made it into the police station.

60Ryan testified that he observed the accused exit his Mercedes vehicle after it had blocked Andre's vehicle in. The accused walked in an aggressive and fast manner up to Andre's driver's door.

61Andre was sitting in his car at the time with both of his hands on the steering wheel. He was wearing his seat belt and confined inside his car.

62Ryan saw the accused lean inside the driver's side window and he saw the accused's arms moving back and forth in an aggressive manner.

63Ryan saw Andre's car jerk forward a bit. When that happened the accused became more irate and aggressive. The accused did not fall down.

64Ryan observed a bystander from the sidewalk intervene. Ryan observed the accused deliberately whip the keys at Andre's car.

65Ryan observed the accused to walk quickly back to his vehicle. He got in, slammed the door, and sped off quite fast.

66Ryan noted the accused's licence plate and reported the matter to the police.

67Ryan testified that he reported it because he had never seen that type of road rage before. If he had been the victim, he would hope that someone would report it to the police.

68Ryan estimated that the "attack" lasted less than two minutes.

Analysis

69Based on the undisputed facts set out at the start of these reasons, the accused is guilty of assaulting Andre.

70Where the accused's testimony differs from all the other witnesses, it is rejected as simply defying common sense, self-serving and not true.

71There is no question that the accused was the aggressor in this proven case of road rage.

72I accept as accurate, reliable and true that the accused originally cut Andre off which resulted in Andre having to slam on his brakes to avoid a collision.

73It is possible on all the evidence that the accused did not see this. Perhaps Andre was in his 'blind spot'. This can happen to any driver on the road at times.

74What happened next, however, was a complete refusal to acknowledge any wrong doing with respect to his driving, followed by a defiant and then aggressive response to being called out as a bad driver by the younger Andre.

75In a reckless and dangerous manner, the accused blocked Andre's vehicle in at another intersection. Andre once again had to slam on his brakes to avoid a collision with the accused. The accused also left his passenger stranded in his car in a dangerous situation for her.

76The accused exited his car, approached Andre's window, and assaulted him. He injured Andre. The accused sustained no injuries.

77Why the random stranger on the sidewalk intervened to give the accused Andre's keys is unexplained. I can only infer that he misunderstood who was the cause of this dangerous situation.

78In continued acts of aggression, the accused threw Andre's car keys at his windshield and uttered a threat to kill him next time. Then he sped off.

79Another driver at the scene was distressed enough to call the police. The accused did not call the police. As he repeatedly testified, he left the scene and 'went on his merry way'.

80The 'merry way' is over now. Mr. Anthony Cabral has been proven guilty of assaulting Andre beyond a reasonable doubt and a finding of guilt is registered.