Ontario Court of Justice

Date: October 19, 2016

Court File No.: Halton 11/107; 15/2530

Between:

HER MAJESTY THE QUEEN

— AND —

ALTHEA REYES

Before: Justice Lesley M. Baldwin

Heard on: April 13, April 14, June 6, June 7, 2016

Written Submissions Completed on: July 29, 2016

Reasons for Judgment released on: October 19, 2016

Counsel:

• Ms. M. MacKenzie — counsel for the Crown
• Ms. M. Lipson — counsel for the defendant Althea Reyes

BALDWIN J.:

Charges and Procedural Background

1Althea Reyes is charged on or about the 10th day of January in the year 2011, at the Town of Oakville, with operating a motor vehicle on a public place, to wit: a parking lot, in a manner that was dangerous to the public contrary to s. 249(1)(a) of the Criminal Code.

2Althea Reyes is further charged that on about the 10th day of January, in the year 2011, at the Town of Oakville, with having the care and control of a vehicle that was involved in an accident with Sandra Paldino on a public place, to wit, a parking lot, with intent to escape civil or criminal liability, did fail to stop her vehicle, give her name and address, and offer assistance to Sandra Paldino, a person who appeared to require assistance, contrary to section 252 of the Criminal Code. [1]

3The Crown proceeded summarily.

4At the outset of trial, date, jurisdiction and identity were admitted. Charter Applications alleging section 7 and section 10(b) violations were started, but abandoned during the course of the trial.

5The case involves a WD analysis and an examination of the elements of the offences that the Crown must prove beyond a reasonable doubt.

6Four independent eyewitnesses, the complainant and the investigating officer testified for the Crown.

7Ms. Reyes testified on her own behalf.

8The events in question took place at the Toys 'R' Us Plaza located at Dorval Drive and the North Service Road in Oakville.

Summary of the Testimony of Michelle Martin

9She was just pulling into the plaza coming from her workplace which was just around the corner. It was about 5:00 p.m.

10It was a nice winter day; clear and dry weather with no snow on the ground or ice and was in full light at the time.

11She saw a woman (Ms. Paldino) standing on the curb that faces the Toys 'R' Us store. She saw a car drive over the curb and Ms. Paldino fell to the ground. She saw this from a distance of approximately 46 feet away. (Transcript April 13, 2016 p. 35)

12Another car pulled up and that driver ran to assist Ms. Paldino.

13Ms. Martin blocked Ms. Reyes in with her car by putting the back end of her vehicle on a slant blocking the front of Ms. Reyes' car. Ms. Martin got out of her vehicle and said to Ms. Reyes, "You just hit somebody don't leave."

14Ms. Martin had already called 911.

15Ms. Reyes replied that she had to get her an ambulance. Ms. Martin told Ms. Reyes, "We called 911."

16Ms. Paldino was on the ground and said something to Ms. Reyes about her foot.

17Ms. Martin told Ms. Reyes not to leave again – that an ambulance had already been called.

18Ms. Martin told Ms. Reyes a third time, "Don't leave. If you do, you will be charged with hit and run." Ms. Martin told Ms. Reyes again that an ambulance had already been called.

19Ms. Martin told Ms. Reyes for a fourth time not to leave.

…and I told her again, don't leave. I saw everything. It was an accident. If you leave, they're going to charge you with hit and run. But stay…I said, don't worry, we already called an ambulance, we already called 911. Please don't leave. I begged her not to leave. (p. 15)

20Ms. Martin could see a child in the backseat of Ms. Reyes' vehicle who was crying.

21Ms. Reyes kept telling Ms. Martin that she was going to get an ambulance which Ms. Martin found puzzling in the circumstances.

22Ms. Martin described Ms. Reyes' demeanour as "flustered".

23Then Ms. Reyes drove off.

24Ms. Martin ran behind Ms. Reyes' car to try to stop her and recorded her plate number. Ms. Martin went back to assist Ms. Paldino who was still on the ground crying and holding her foot.

25When the police arrived she gave them the plate number and described Ms. Reyes as a black woman with dark hair. Ms. Martin provided a statement on scene stating that this person had hit a lady who had been standing on the curb.

26In cross-examination and re-examination, Ms. Martin said that she did not see Ms. Paldino going over the hood of Ms. Reyes' car.

27It did not appear to her that Ms. Reyes and Ms. Paldino knew each other.

28She saw Ms. Reyes talk to Ms. Paldino for a few seconds before she left the scene. Ms. Reyes was doing the talking.

Summary of the Testimony of Elizabeth Avetissian

29She was just exiting this plaza having come out of the Dollar Store.

30It was cold and dark and there was snow on the ground. She thinks the events occurred after 6:00 p.m. but is not sure as the time is not noted in her police statement.

31She had been slowly driving her car and was stopped at the end of a laneway to make a left turn when she saw the accident.

32She saw a woman (Ms. Paldino) standing on a concrete sidewalk holding a cell phone to the side of her face.

33She saw a car (driven by Ms. Reyes) turn right and hit the lady on the concrete sidewalk and this lady fell down. Ms. Avetissian was a distance of approximately 31 feet away when she saw this.

34Ms. Avetissian pulled her car over and put her flashers on. Then she went to see if the lady on the ground needed help. Someone around the lady said that they had called 911.

35The lady was on the ground crying and complaining about her leg. The lady was distraught. Ms. Avetissian retrieved Ms. Paldino's cell phone for her which was on the sidewalk in the snow.

36A man at the scene brought a blanket over to the lady, and people were standing around her to help.

37The driver of the car (Ms. Reyes) got out of her car and spoke to the lady on the ground. Ms. Avetissian could not hear what she said, nor could she say how long Ms. Reyes was there for. It did not appear to her that the two women knew each other. (p. 49) Ms. Avetissian remembers hearing other people telling Ms. Reyes not to leave. Ms. Reyes left.

38Ms. Avetissian remained on scene and gave a statement to police.

39In that statement she told police that after the incident she saw tire marks on the sidewalk where the lady was hit.

40In cross-examination, Ms. Avetissian said she always drives slowly in that parking lot as there are no stop signs.

41She saw Ms. Paldino on the curb holding a cell phone to the side of her face before she was hit. She was talking on her cell phone (p. 55)

42She remembers seeing a child in the back of Ms. Reyes' car.

43She did not recall seeing Ms. Paldino going over the hood of the car before she fell to the ground. She was not able to see the hood or front of Ms. Reyes' car at the time.

44She saw Ms. Paldino in the hallway during the course of the first trial on April 1, 2014. She asked Ms. Paldino how she was feeling. Ms. Paldino said she was okay. This was the first time she had seen Ms. Paldino since she left the scene in an ambulance.

45There was no talk about the incident or the evidence at that time or today. (pp. 64, 65, 66)

46In re-examination, Ms. Avetissian testified that she saw the side of Ms. Reyes' car as it went over the sidewalk and hit the lady.

Summary of the Testimony of Lynne Myers

47Ms. Myers was sitting in her car waiting to leave this plaza. She was directly behind Ms. Reyes' vehicle when she saw the events unfold. She saw this from approximately 15 feet away.

48Ms. Myers was waiting for Ms. Reyes to leave so that she could proceed out of the laneway.

49She observed Ms. Reyes to drive her car back and forth into a parking space. It seemed to Ms. Myers that Ms. Reyes was "taking forever" when she was doing this. (p. 101)

50Then all of a sudden she saw Ms. Reyes turn to the right and drive over a curb and hit a lady who was talking on her cell phone. The lady had been standing close to the middle of the curb. The lady had been facing towards the Toys 'R' Us store. The lady was not facing in the direction of Ms. Reyes or Ms. Myers.

51In her statement to police she said this happened at 5:25 p.m. It had already started to get dark. It was cold and there was ice on the roads.

52The lady went over the hood of the car a little bit and she was screaming "stop, stop." (p. 73)

53Ms. Reyes was not stopping while the lady was telling her to stop. Ms. Reyes stopped when the lady was on the ground.

54Ms. Myers believed that both the front and rear tires on the right side of Ms. Reyes' car went over the curb.

55Ms. Reyes pulled over and got out of the car to see how the lady was. She said something about getting an ambulance. Ms. Reyes was not there for long. Ms. Myers heard other people say that they had already called 911. Then she got back in her car and turned right and left the parking lot.

56People at the scene were trying to catch her to make her stop and to stay and not to go anywhere. (p. 74)

57Ms. Myers' focus was on the pedestrian who was distraught and complaining about her foot. She was very upset and crying. A man at the scene got a blanket for the lady and was trying to comfort her.

58Ms. Myers remained on scene until the ambulance and police arrived. She gave her statement to the police on scene.

59In cross-examination Ms. Myers testified that she did not see the lady walk behind Ms. Reyes' car. She did not see the lady taking any pictures of Ms. Reyes' car.

60It was the front right corner of Ms. Reyes' car that hit the lady.

61When she testified at the last trial on April 1st, 2014, she did see the other witnesses and Ms. Paldino. They did not talk about their evidence. (pp. 110, 111, 112,113)

62In re-examination Ms. Myers testified that the lady was hit by the car before she went on the hood.

63"I couldn't understand why the car went over the curb, which I thought was really odd. But I just found the whole thing very odd." (p. 114)

Summary of the Testimony of Catherine Gosine

64Ms. Gosine was at the Plaza with the intention of going into the Toys 'R' Us store.

65She was in her car stopped and waiting to go into the spot that it appeared that Ms. Reyes was exiting from.

66Ms. Gosine observed Ms. Reyes to be going in and out of the parking spot. Ms. Gosine was not sure what was happening. Ms. Gosine was in a rush, so she decided to pull into another spot four parking spaces down in the same row.

67Ms. Gosine quickly exited her car and started walking toward the Toys 'R' Us store.

68From a distance of approximately one and a half to two parking spots/car lengths away she clearly observed Ms. Reyes' car again going back up and in and out of the spot. Then Ms. Reyes jumped the curb and hit the lady that was standing on the curb by the fire hydrant. She had seen the lady while waiting for the parking spot. The lady was on her phone.

69The lady fell over the hood of Ms. Reyes car. Ms. Reyes backed out and the lady fell on the ground.

70The lady was screaming. Ms. Reyes drove right around the curb and Ms. Reyes got out of her car and came up to Ms. Gosine.

71Ms. Reyes said to her, "Oh my God, oh my God, did I hit her? And I said yes, you did." (Transcript April 14, 2016 p. 73)

72Ms. Reyes asked Ms. Gosine if she had a phone on her and she said she didn't.

73Mr. Reyes told Ms. Gosine that she had to go get an ambulance. Ms. Gosine told her "No, you got to stay." Ms. Reyes asked Ms. Gosine, "Can you stay?" Ms. Gosine replied, "No, you got to stay." Ms. Reyes replied, "No, no I got to go and get an ambulance." (p. 73)

74Another person on scene at the time said that they had called for an ambulance.

75Ms. Gosine saw another woman hanging onto Ms. Reyes' car door and they were having words.

76She could not hear what was being said because the lady in front of her on the ground was screaming and seemed to be in a lot of pain.

77Ms. Gosine noticed that there was a child in the back passenger seat of Ms. Reyes' car.

78Ms. Gosine testified that she could hear that the ambulance was coming at the time that Ms. Reyes zoomed out of the parking lot. (p. 76)

79Ms. Gosine stayed at the scene and gave a statement to the police.

80Ms. Gosine testified that this occurred shortly after 5:00 p.m. The road conditions were fine at the time. It was not that dark because there are lights on in that area.

81In cross-examination, Ms. Gosine said then when she saw Ms. Reyes get out of her car she was not smiling at all.

82Ms. Reyes stayed at the scene speaking with her for about 5 minutes.

83A male person comforted the lady with a blanket.

84Ms. Gosine did not see the lady taking any pictures of Ms. Reyes' car.

85Ms. Gosine repeated that the lady did not go over the hood of Ms. Reyes' car first. "She was hit and then she fell over the hood." (pp. 89, 91)

86At the time she saw the lady being hit with the car, the lady's back was towards Toys 'R' Us. Before that, the lady had been walking back and forth on the curb and was on her phone.

87Ms. Gosine testified that the witnesses did not discuss their evidence when they testified on April 1st, 2014. She has not seen Ms. Paldino today.

Summary of the Testimony of Sandra Paldino

88Ms. Paldino testified that she had previously worked as an event planner for 8 years.

89She first met Ms. Reyes at a Mother's Day brunch at the Deercroft Montessori School in Oakville in May of 2009. Both of their daughters were students there. Ms. Paldino's daughter was in Grade 6. Ms. Reyes' daughter was in preschool.

90Ms. Paldino and Ms. Reyes were seated at the same table and they chatted. Ms. Paldino told Ms. Reyes that she was an event planner and they exchanged phone numbers because Ms. Reyes was looking to hire her for an anti-bullying concert to be held in Halton in the fall.

91In August of 2009, Ms. Paldino started working on the concert. Ms. Reyes had told her that she was working for her non-profit organization called Stand Up and Speak.

A. I produced a, a successful anti-bullying concert. I can't remember the venue. It was at - oh, it was at the Meeting House in Oakville/Mississauga borderline there. Yeah.

Q. Okay. All right. And how, how did things go between you and Ms Reyes?

A. Well, at the beginning, she had other people working for her, and I had met them, and we were all working for one goal, to get this anti-bullying concert underway. And there was just a lot of work, you know, that had to get done within a - the, the, the concert was in November, the beginning of November, so like the 7th or 8th. And it was just, just very busy, but she was very abusive, you know. She was very - she, she was on a timeline so we were all scrambling to get things done. But, ultimately, it all came together.

Q. Okay. And did you get paid for the work that you had done...

A. No.

Q. ...on that? No. And who, in your mind, was to pay you for that, the work that you had done?

A. Her.

Q. Ms, Ms Reyes?

A. Right.

Q. Okay. And so did you do anything as a result of not getting paid?

A. Yes. I - right after the anti-bullying concert, I had, I had asked for my pay, and I didn't get it. And she had wanted something from the anti-bullying concert, a CD, and I wouldn't give it to her. So she kept coming to my home and harassing me. So basically I had to file a complaint and this was still in November, you know, near the end of November. And they told me that if I wanted to take this up civilly, I had to go through small claims. So I, I did. I took her to small claims court.

Q. Okay.

A. In December.

Q. So you filed a statement of claim?

A. Yes.

Q. Okay. And that was December of 2009?

A. Right.

Q. Okay. And so by January of 2011, what's the status of the small claims court action?

A. Not much. It was very hard to serve her, just a lot of, a lot of people involved in, in that concert, in the anti-bullying concert were also trying to get payment, so we were all, it was like collectively trying to, you know, sue her and get our money. So every time I would see her it was literally in court.

Q. Okay.

A. That's about it.

Q. All right. So by January 2011, there hasn't been a trial or anything? Okay. You, you have to say yes or no for the record, sorry.

A. Oh, no. No trial.

Q. Okay.

A. Sometimes she would show up, some days she wouldn't. And it just, it was very difficult. (Transcript April 13/16, page 121, line 1 to page 122, line 25)

92In the beginning of January 2011, Ms. Paldino had been served with a subpoena by Ms. Reyes to attend a trial as her witness on a charge of driving while suspended. Ms. Paldino testified that she had no idea why Ms. Reyes subpoenaed her to be a witness at this trial.

93On January 10, 2011, Ms. Paldino had just dropped her daughter off at the Dance Exchange on the North Service Road. She then drove to the Toys 'R' Us Plaza.

94She parked her car, got out and starting walking towards the Toys 'R' Us store when she ran into "Ally". (p. 123)

95When she met Ms. Reyes, she knew her as "Ally Valitchka". It was during the course of suing Ms. Reyes in Small Claims Court that Ms. Paldino learned that her real name was Althea Reyes.

96As she was walking, she saw Ally and her daughter.

A. So because it was so recent and because that's what I figured from the subpoena, I saw her driving. I saw her getting into a car. So the words exchanged - or she was going towards her car - she asked me what I was doing and I said, well, what are you doing? And I said, are you driving? Like, I must have brought up the whole fact about driving. And she was all in a rush to get her child in the car and just get out of there. So I began walking to my - to the, you know, towards the store, go up on the curb. But I had my list in my hand and I started making a phone call because I guess I was trying to confirm - because there was somebody else that I knew that was also subpoenaed and I just wanted to confirm were - was she, is she not supposed to be driving? I, I think I was confused. So I was calling to confirm about the subpoena, driving under a suspended licence. And I didn't get a chance to finish saying what I was saying because I was hit by a car.

Q. Okay. So I'm going to ask you about that in a little bit more detail...

A. Mm-hmm.

Q. ...okay? You said that you were walking towards the store?

A. Yes.

Q. And you were up on the curb?

A. Yeah.

Q. And you had your list and your cell phone in your hand?

A. Yes.

Q. And you made a call to someone on your cell phone?

A. Yes.

Q. Okay. And so did you get in touch with that person?

A. Yes.

Q. Okay. And I take it you had at least part of a conversation?

A. Yes.

Q. And where were you when you were having that conversation?

A. On the curb.

Q. On the curb, okay. And the – could you, when you were having that conversation, could you see Ms Reyes?

A. No.

Q. Okay. And why not?

A. Well, because I was facing the store now, not the parking lot anymore. I was facing forward, which was Toys'R'Us, and the parking spaces were behind me and that's why.

Q. Okay. And then – so what is the next thing that happens or the next thing that you're aware of, as best as you can recall?

A. I hear her voice screaming out to me. I don't know whether she's in a car or she's talking to me at – and I turned. And when I turned I saw her coming at me with her car. So I still don't even know if that was her calling for me or what it was, but I turned. It made me turn, and all of a sudden I see this car coming at me, and the person on the – I'm telling the person on the phone, "Oh, my God, she's going to run me over". And I think the person said something like, who are you talking to or whatever, but I dropped the phone because at that point she came onto the curb and hit me.

Q. Okay. Do you recall if you said anything to Ms Reyes during that?

A. Oh, I didn't say anything until I was on the hood of her car, screaming, what are you doing? And we are literally - there's only a glass that's, you know, that's separating us, and looking right at her as she's hit me saying, what are you doing?

Q. Okay. So you said you, you turn around and you see the car coming at you?

A. Yes.

Q. Okay. And as best as you can, describe what happens when the car hits you and where the car hits you and whatnot?

A. So the car comes onto the – I think it was my leg. I think so. It was my knee. The wheel pinned down my foot. And because the – when the car came onto the curb it was just the passenger's side, not the driver's side. The driver's side was still on the road, but the passenger's side would have been on the curb, hitting me. And when it pinned my foot, I was kind on the, the hood of her car a bit, you know, diagonal, looking right at her in the glass.

Q. Okay. And can you – which foot did – was...

A. My left foot.

Q. ...the car on? Your left foot? Okay. And so then you're on the hood of the car and you're looking at her through the glass and saying, what are you doing?

A. Yeah.

Q. And what happens, at that point?

A. She kept driving. I went back, I dropped, I rolled. There was a fire hydrant there, thankfully, and I just kind of braced myself. And everything was out of my hands. My purse, my bag, my phone. And I was towards the fire hydrant.

Q. Okay. So you dropped off the car when the car kept going and rolled, and then the fire hydrant was there?

A. Yeah.

Q. So what happens then? You're on the ground?

A. I'm on the ground and I'm screaming and I'm sobbing and she got off the curb onto the road. Oddly enough, got out of her car, ran to me and said, what happened? And I said, as nicely as I can say it, you hit me with your car. And I was crying and screaming. And the witness came. I don't know at this point if the witness knew that she had hit me, but I was screaming and sobbing. And the witness said, we have to call the police. We have to call an ambulance. And Ally said, well, I can't stay.

Q. Okay.

A. She got back in her car. At one point, there were a lot of witnesses that had come running over. Some had stopped their cars, but I think a few of them did try to stop her, but she, she left.

Q. Okay. So, so she's, so she leaves?

A. She left.

Q. Okay. And do you know how long she was there for when she got out of her car? How long did that....

A. Oh. Maybe a minute.

Q. And can you recall anything else that was said during that time?

A. Just a bunch of screaming by me, her, getting in her car and leaving. (Transcript Apr 13/16, page 127, line 2 through to page 130, line 23)

Q. Okay. So once she leaves, as best you can, can you tell us what's going on with you?

A. I'm in a lot of pain. I'm sitting on a curb with snow, so I'm cold. I'm surrounding by some beautiful people who are bringing me blankets and giving me their coats and just really trying to help. Telling me to wait, the ambulance is on its way. You know, one witness said, I saw what happened. Is everything okay? One witness was trying to tell me, you know, they tried to stop her from going. I was crying and in pain, and just dizzy. (Transcript Apr 13/16, page 131, line 7 to 16)

Q. ...when you see the car coming towards you and then...

A. Yes.

Q. ...when you are on the hood of the car and you're looking through the windshield...

A. Right.

Q. ...are you able to see Ms Reyes during that period of time?

A. Oh, yes. I was looking right at her. I was saying, what are you doing? She had the steering wheel. She was staring right at me with a huge grin on her face.

Q. And that's the question I was going to ask you was...

A. Oh.

Q. ...what was her demeanour like during that?

A. Oh, very happy.

Q. Okay. All right.

A. Mm-hmm.

Q. And when - after she parked the car and she gets out of the car and comes over to where you are, what is her demeanour like?

A. She's saying, what happened, with a smile on her face, like it's comical. Like something was funny that I was on the ground in pain.

Q. Okay. All right. And you, you said - you told us that you said something about that she ran you over? When she said...

A. I said to her.

Q. ...what happened?

A. Oh, I said, you ran me over.

Q. And you said that she indicated that she couldn't stay?

A. Not to me. To the witness.

Q. Okay.

A. Because the witness came running over to say, oh, we have to call an ambulance. And she immediately said, oh, I can't stay.

Q. Okay. And what was her demeanour like, at that point, if you can recall?

A. Panicked. (Transcript Apr 13/16, page 137, line 22 to page 138, line 29)

97Ms. Paldino left the scene in an ambulance. After being treated at the hospital she attended the police station and provided a video-taped statement.

98At the hospital, X-rays were taken of her foot to determine if it was fractured or sprained. There was no fracture. They gave her some pain killers and wrapped her foot until she could get a boot to support it.

99Because of how she fell after being hit, her foot was injured and she had pain in her back and neck. She was on crutches for four to six weeks.

100After six weeks she started physiotherapy which is still ongoing.

101After Ms. Reyes hit her with her car, Ms. Paldino did not pursue her Small Court claim for about $3,000 in unpaid wages. She was now terrified of Ms. Reyes and realized as well Ms. Reyes was never going to pay her. She would not show up for court and then she hit her with a car. "She was crazy so I just didn't pursue it." (p. 142)

102In cross-examination, Ms. Paldino stated that she had gone to the police before she started her Small Claims Court suit to complain that Ms. Reyes was harassing her. It was the police that suggested that she sue Ms. Reyes in Small Claims Court, so she did. (p. 155)

103She did not think that $3,000.00 was worth her life, so she decided to drop it.

104Ms. Paldino also testified that she was hired to co-ordinate the anti-bullying concert in her capacity as an event planner. "I knew her under a different name. She told me she was a lawyer. So everything she told me was not true." (Transcript April 14, 2016 p. 34)

105In cross-examination, the defence theory was put to Ms. Paldino:

Q. And you jumped on her hood?

A. Oh, is that what I did? That's absurd.

Q. And you did this purposely?

A. I need some water please?

Q. You okay?

A. No, I'm not okay. That questions goes to her behaviour, to her train of thoughts. I jumped on her car? That's ridiculous. (Transcript Apr 14/16, page 42, line 20 to 27)

A. She thought I was calling the police and that's why she hit me. I would never throw myself on somebody's car. It was - it would have been enough for her – for me to report that she was driving a car. I wouldn't have had to jump on the hood of her car to get her into trouble. (Transcript Apr 14/16, page 43, line 5 to 9)

106Ms. Paldino did not recall Ms. Reyes saying she was going to get an ambulance after she was hit. (Transcript April 14, 2016 p. 23)

107She remembers Ms. Reyes saying that she could not stay and a bunch of people telling her to stay.

108Ms. Paldino denied talking about the case with any of the witnesses on the first day of the first trial on April 1, 2014. (p. 56)

Summary of the Testimony of Officer Nicholas Tansley

109Officer Tansley has been employed as an Officer with HRPS since 2006.

110Officer Tansley was at the Oakville station getting ready to start his shift when he was advised by his Acting Sergeant that a dispatch call had come in at 5:19 p.m. reporting that there had been a motor vehicle collision at the Toys 'R' Us Plaza at Dorval and the North Service Road in Oakville. A female had been struck by a vehicle in front of the Toys 'R' Us. The suspect vehicle was a grey Honda Civic with an Ontario plate BJKK 843 and the driver of that vehicle had fled the scene.

111The information was that the female victim was injured after being struck by the vehicle while she was standing on a median adjacent to the Toys 'R' Us, within the Plaza parking lot.

112The female (driver) had called into our 9-1-1 communication centre indicating that she would be returning to the scene at some point.

113The communication centre called the driver back to follow up in relation to her estimated arrival back at the scene.

114The return call from the driver was at 5:27 p.m.

115The driver indicated that she would be approximately another ten minutes before returning, at which time our communications department said that the last time that they spoke she said she was two minutes away.

116Officer Tansley arrived on scene at 5:39 p.m. There were already other officers on scene. They had been speaking to the witnesses and taking statements.

117The female driver was not on scene.

118Officer Tansley received the witness statements upon his arrival and was put in charge of the scene at 5:41 p.m.

119Officer Tansley requested that the Identification Unit and the Accident Reconstruction Unit attend the scene.

120Because the injuries to the victim were not life threatening, no Accident Reconstruction Report was completed.

121Photographs were taken which show tire impressions in the snow on the median. Exhibits 10(a) and 10(b) were filed depicting the tire marks.

122Officer Tansley described the median as a pedestrian cross. The Toys 'R' Us store in relation to the median is south facing north. The median is just north of the curb of the Toys 'R' Us and it is essentially a small island with adjacent parking next to it.

123There was ice and light snow on the median. The roads were clear, dry and bare. It was a dry night. (Transcript June 6, 2016 p. 7)

124At 6:26 p.m. Ms. Reyes approached Officer Tansley as he was sitting in his fully marked police cruiser and verbally identified herself as being Althea Reyes, the driver of the Honda Civic, the one that struck the pedestrian.

125At 6:29 p.m., Officer Tansley told Ms. Reyes that she was going to be under arrest for dangerous operation of a motor vehicle and assault with a weapon.

126Ms. Reyes stated, "I don't know why I'm under arrest. She threw herself in front of my vehicle." (Transcript April 14, 2016 p. 107)

127At 6:32 p.m., Ms. Reyes was provided with rights to counsel and cautioned at 6:34 p.m. She replied that she understood, and with respect to a lawyer she stated, "Yes, please".

128Because Officer Tansley was maintaining continuity of the scene and awaiting the arrival of Identification and Reconstructionist Officers, he requested the assistance from other uniformed Officers at the station to transport Ms. Reyes to the station. Knowing there would be a delay, he called duty counsel for Ms. Reyes as she did not have the name of a lawyer. He used his police cell phone to make the call at 6:45 p.m.

129As Officer Tansley was on the phone arranging for duty counsel, Ms. Reyes stated, "I don't need to talk to a lawyer to tell you the truth." (p. 109) Then Ms. Reyes asked if the victim was okay.

130Understanding that Ms. Reyes no longer wished to speak to duty counsel and wished to make a statement, Officer Tansley asked Ms. Reyes to tell him what happened.

131As noted in his police-issued notebook, Mr. Reyes said the following:

I was coming out of the Toys 'R' Us with my daughter. This woman approached me and started taking pictures of my car and me with her Blackberry. She got on the phone and kind of called someone and started making calls. I asked her to stop stalking me. I then backed out and started moving forward. She threw herself onto my car. Then I got out of my car and asked if she was all right. She said she was. I told her I would call EMS and police to be sure and that's what I did. (p. 111)

132At 6:51 p.m., Officer Tansley asked, "How do you know this woman?" (p. 112)

133Ms. Reyes stated, "I know her because she used to work for me and I fired her. Then she began to stalk me. She follows me with her car."

134At 6:52 p.m., Officer Tansley asked, "Where were you parked?"

135Mr. Reyes replied, "The first space next to the fire hydrant. I was maybe going ten kilometres an hour when she threw herself on my car. She was taking pictures of my car." (p. 112) [2]

136At 6:54 p.m. duty counsel called back, at which point Ms. Reyes said she would speak to them, which she did in privacy in the cruiser until 6:57 p.m.

137At 7:03 p.m., Officer Bacon was on scene and custody of Ms. Reyes was transferred to him for her transport to the station.

138At 7:00 p.m. Accident Reconstruction arrived. At 7:09 p.m., the Identification Unit was on scene.

139At this point, Officer Tansley began looking for the vehicle Ms. Reyes had been driving. He and other Officers looked around the Plaza and it was not located.

140Ms. Reyes was not the registered owner of this vehicle.

141At 8:15 p.m., Officer Tansley left the scene and returned to 20 Division at 8:27 p.m.

142At 9:31 p.m. he conducted a video interview with Ms. Paldino until 9:58 p.m.

143When Ms. Reyes was released from custody at 1:27 a.m., Officers conducted mobile surveillance following a taxi that transported Ms. Reyes back to her address at 2220 Marine Drive apartment #204 in Oakville. Officers checked both the exterior of the building, neighbouring streets and the underground parking of the building. The vehicle was not located.

144To this day, the vehicle has never been located.

145In cross-examination, Officer Tansley stated that before he arrived on scene he was aware that Ms. Reyes had called 9-1-1 and requested an ambulance. It was one of the witnesses who had provided her plate number, not Ms. Reyes.

146He was aware that Ms. Reyes told 9-1-1 that she left the scene to drop off her daughter and that she would be returning. He was aware that the parties knew each other and Ms. Reyes told dispatch that Ms. Paldino had been following her for a few days. There was an ongoing lawsuit for harassment and stalking.

147Officer Tansley testified that based on the totality of the evidence presented from the independent witnesses and from the physical evidence at the scene, he was able to discern that the vehicle had driven over the median at the specific location that Ms. Paldino was located on the median, where she had been observed by the witnesses when struck by the vehicle. He was unable to compare the tire marks on the median to the car Ms. Reyes was driving because the car has never been found.

148In re-examination, Officer Tansley testified that the 2009 Honda Civic, four-door, grey, plate BJKK 843 is registered to a person named Vida Zukauskas with an address of 556 Bathurst Street in Toronto.

9-1-1 Calls (Exhibit # 16(b))

Ms. Reyes' Call to 911 After She Left the Scene

911 OPERATOR: 911. Do you need police, fire or ambulance?

ALTHEA REYES: I need police, please.

911 OPERATOR: What is your emergency?

ALTHEA REYES: Um, I had a woman just throw herself on my car at Toys R Us in the parking lot.

911 OPERATOR: Mm-hmm.

ALTHEA REYES: And then she sat down and started crying and claiming that I've hurt her. I have a history with this woman where she's followed me, harassed me, stalked me and we have actually a civil law proceeding.

911 OPERATOR: Okay, we do have a, we do have a officer on the way down there.

ALTHEA REYES: Okay. All right...

911 OPERATOR: Okay?

ALTHEA REYES: ..then. Could I please...

911 OPERATOR: All right.

ALTHEA REYES: ..could I please leave my number because I can't wait. I have my 5 year old here.

911 OPERATOR: Well, we've got officers...

ALTHEA REYES: Is the officer....

911 OPERATOR: ...we've got officers and an ambulance on the way there, so if you leave the scene, you could, you could, like, leave yourself open for some ramifications there. So I would advise you to just sit tight. We should be there momentarily.

ALTHEA REYES: Okay, then.

911 OPERATOR: Okay?

ALTHEA REYES: Okay.

911 OPERATOR: All right.

ALTHEA REYES: Okay, so I, I did leave, so I should turn around and go back?

911 OPERATOR: I would advise you to stay there...

ALTHEA REYES: Okay.

911 OPERATOR: ...because if this woman has any grounds to, you know, justify her claim, you could be in trouble for leaving the scene of the accident.

ALTHEA REYES: Okay doke. Thank you.

911 OPERATOR: All right?

ALTHEA REYES: What, what – okay, so....

911 OPERATOR: They're on their way there, so the officers should be there any moment, so....

ALTHEA REYES: Okay, can I drop my daughter off some place safe and then return in 5 minutes? I just don't want my daughter there in case this takes longer than expected.

911 OPERATOR: And what's your name?

ALTHEA REYES: My name is A-L-T-H-E-A R-E-Y-E-S.

911 OPERATOR: And your cell phone number?

ALTHEA REYES: 905-616...

911 OPERATOR: Mm-hmm.

ALTHEA REYES: ...0704.

911 OPERATOR: Okay.

ALTHEA REYES: Okay, I can – I have to....

911 OPERATOR: Can I just, can I just, for the call here so I can tell the officers what's going on, what's this lawsuit about, just general idea here?

ALTHEA REYES: Um, she basically – for harassment...

911 OPERATOR: Okay.

ALTHEA REYES: ...for stalking, for...

911 OPERATOR: Okay.

ALTHEA REYES: ... everything,

911 OPERATOR: All right, that's...

ALTHEA REYES: She's....

911 OPERATOR: ...that's all I need to know.

ALTHEA REYES: Yeah.

911 OPERATOR: That's just enough. Okay, you get what you need to get taken care of and get right back over there.

ALTHEA REYES: Yeah. So please let them know...

911 OPERATOR: Okay.

ALTHEA REYES: ...I'm dropping my...

911 OPERATOR: I'll....

ALTHEA REYES: ...daughter off...

911 OPERATOR: I'll put it in the call, yep.

ALTHEA REYES: ...and I'm on my way back.

911 OPERATOR: Yep. Okay.

ALTHEA REYES: And, and your name?

911 OPERATOR: Crawley, C-R-A...

ALTHEA REYES: Crawley.

911 OPERATOR: ...W-L-E-Y.

ALTHEA REYES: Okay, thank you.

911 OPERATOR: Okay. All right.

ALTHEA REYES: Okay.

911 OPERATOR: Bye now.

ALTHEA REYES: Bye bye.

Dispatch Call Back to Ms. Reyes – 5:27 p.m.

(Phone ringing)

ALTHEA REYES: Hello?

911 OPERATOR: Hi, may I please speak to Althea?

ALTHEA REYES: Yes, this is she.

911 OPERATOR: Halton Police calling.

ALTHEA REYES: Hi. I'm on my way back to the scene now.

911 OPERATOR: Okay, when will you be there? The officers are looking for you.

ALTHEA REYES: In 10 minutes.

911 OPERATOR: 10 minutes?

ALTHEA REYES: Yes. Thank you.

911 OPERATOR: Okay, because you told the other call taker you were going to be two minutes.

(short dial tone)

Phone ringing (4 rings), goes to voicemail, "You've reached 905...." disconnected. Short dial tone.

Phone ringing again (4 rings), goes to voicemail, "You've reached 9...." disconnected. Short dial tone.

Summary of the Testimony of Althea Reyes

149The first question Ms. Reyes was asked by her counsel was, "Have you known Ms. Paldino for a while?"

A. I first met her I believe in 2010. Our daughters were attending the same school, the same private school. Ms. Paldino had a lot of mental health issues. She had told me that she had been diagnosed with bipolar, and borderline personality, as well as depression, and she had been fired from her last job, so she was slowly trying to get back into the work market. So she asked if she could volunteer with a company that my son was involved in.

150Ms. Reyes went on to say that the company was called Stand Tall and Speak Out. The company helps children and youth with issues of literacy and bullying and self-esteem.

151Her role was as a volunteer who was basically involved with organizing volunteers and assigning them to different areas. She did not hire and fire anyone. The Board of Directors did that.

152Ms. Paldino was not an employee, she was a volunteer. Ms. Reyes said that her role was to communicate to Ms. Paldino about when she could volunteer and what she could do. Ms. Reyes stated that she had no idea how the company paid their employees. Her name was not on any bank accounts and she had no signing authority. She was not even a Board member.

153Her son was the visionary and created the mandate for the company. He was 12 years of age at the time. He is 20 years of age now.

154Ms. Reyes stated that Ms. Paldino was not a good volunteer due to all of her mental health issues.

155Ms. Reyes stated that Ms. Paldino had brought a Small Claims action against her and the six Board members, including her then 13-year-old son.

156Ms. Reyes said that she was served about five different times, with the last one being in November or December before this incident on January 10, 2011.

157Ms. Reyes stated that "we hired a lawyer" who wrote a letter to Ms. Paldino asking her to stop stalking and harassing her, her son (James Spowichka) and the Board members of the company, and he was also preparing a defence, but Ms. Paldino abandoned her Claim because there was no proof that there was any money owing to her. (Transcript June 7, 2016 p. 10)

158Ms. Reyes stated that she was more concerned about the safety of her kids and her family than the money.

159Ms. Reyes spoke of an incident that happened in late November to mid-December of 2010; she could not remember the date.

A. Oh. She had been following us in the car for about two and a half hours on the highway, and we thought that we had lost her, but we parked at Oakville Place and I got out of the car, and I started walking to Sears, and she ran up to me, 'Allie, Allie, Allie'. And I stopped and turned around and – she – I started to run back to my car, and she literally punched me in the chest, and threw the statement of claim that she had already served three times, on the ground and said, 'You're served.' And I was – I started screaming, and just running back to my car, and she stood there and put her head back and started laughing, like, laughing, like, hysterically for about five minutes.

Q. Okay.

A. I just got in my car and, and I drove away. Like, it was, it was really crazy.

Q. And did you see who was in her car?

A. Her two kids were in her car. (Transcript June 7/16 page 14 – lines 15 to 31)

January 10th, 2011

Q. Okay. Now I'll take you to January 10th, 2011. What were you doing at Toys 'R' Us, and who were you with?

A. I had picked up my daughter from St. Mildred's girl school, and Ms. Paldino was waiting outside of the school, while I picked up my daughter. And she followed us for about twenty minutes, and again, I thought we had lost her. So I went to Toys 'R' Us, and I go into Toys 'R' Us, and I buy some presents for my daughter. And I'm on my way back to the car, and I notice she's standing at the back of the car, and she says, 'Allie'. And I said, 'Oh my God, what are you doing here? Like, get away from me.' And I'm putting my daughter in the car, and as....

Q. Where were you parked? Sorry.

A. I was parked close to the, close to the front of Toys 'R' Us, like, in that front section of the, of the parking lot.

Q. And what spot were you in?

A. I can't remember the exact spot, but it would have been, like, the first four or five spots. (Transcript June 7/16 page 14, line 32 to page 15, line 19)

A. Yeah, it's, it's the third, the third spot. The third or the fourth spot. I can't, I can't remember, exactly which one, but it was the third or fourth spot.

Q. Do you recall the weather conditions that night?

A. It was snowy. It was snowy, and there was ice on the ground.

Q. Okay. Was it snowing at that time, or was there just snow on the ground?

A. There was snow, there was snow on the ground. There may have been, you know, light flurries, but I, I don't remember that, but there was snow on the ground.

Q. Okay. And at any point did you ask her what she was doing – Ms. Paldino, when you came upon her?

A. I, I remember, like, saying, you know, what are you doing? Like, please, you know, leave me alone. And I just wanted to get my daughter in the car, and just get the hell out of there. Like, I was just terrified, you know? I was just terrified.

Q. What was she doing?

A. She was just, she was standing at the back of my car, taking pictures of the car. She was asking me questions about the car, and I was ignoring her. I just wanted to put – I just wanted to get away. She continued standing behind the car, even after I was in the car, and I was going in and out, because I wanted to make sure that she was out of the way before I backed out. So several times I would go out, and then she would still be standing at the back of the car, so I'd have to go back in and wait. So she was, basically, blocking my ability to leave the parking spot. And then, finally, she moved from the back of the car to the median. And I pulled out of the car [sic] , and as I went to turn right to leave the, to leave the parking lot, she jumped on the hood of my car. (Transcript June 7/16 page 15, line 27 to page 16, line 28)

A. She had said something about, something about licence or something about do you have a licence? Are you licenced to drive? She had said something about the car, and to be honest, I just wanted to get away from her. Like, I just wanted to get in my car, you know, take my daughter home. I wanted to take her to safety, but she was taking pictures of the car, and asking me if I was licenced to drive, and whose car it was, and should I be driving the car.

Q. What was your response to those questions?

A. I didn't respond to her. I just wanted, I just wanted to get away from her. I just wanted to put my daughter in the car, and get away from her. That's all I could think about was – and as I said, she stood at the back of the car, and I was going in and out, because I wanted to make sure that she was out of the way before I backed out. And once she moved from behind the car to the median, that's when I backed out. And then, and then I proceeded to go straight, and as I was turning that's when she jumped from the median onto the hood of the car. (Transcript June 7/16 page 17, line 29 to page 18, line 15)

A. She jumped on the car. I was nowhere close to where she was standing on the median. I was simply trying to turn right to get out of the parking lot. She was standing in the middle of the median. And I remember her on the phone, and she jumped on the car. My car was, was nowhere near her, other than on the normal street, and turning right to exit the parking lot.

Q. Okay. And did you see her face when she was on your car?

A. You know, it was all very, like – I was trying not to look at her. I was just trying to drive. It was a busy parking lot, it was a busy day, it was really crowded, lots of cars, lots of people. And I'm driving, and my daughter's in the car, so I'm not looking at her, and I don't even want to look at her, you know? So I'm just looking straight ahead, and, and I'm trying to turn, and that's when she jumped on the hood of my car, so, so no, there was, there was no contact between her and I, other than, you know, this thud on the hood of my car. And then, and then her, you know, I guess, she, she was over like this, and then, and then, going back and being, and then I remember just opening the door and coming out, and saying, 'You know, Sandra, my God, like, what happened?' You know, 'Are you okay?' Because I could just think, like, this person just jumped on my car, like, is – you know, what happened? Like, is she okay? Like, I was in, I was in shock. I was in like, oh my God, you know? And all I could think about was my daughter, because my daughter was screaming, as you can imagine, because this person jumps on your car, and you know, so my daughter is screaming and crying, and saying, you know, 'Mommy what happened?' You know, 'Why did the woman jump on our car?' And she's screaming and crying, and you know, I'm asking Sandra what happened, and she's yelling and screaming, and Sandra's yelling and screaming, and my daughter's yelling and screaming, and all I could think about was, I just have to take my daughter to a safe place. You know, I'll call the ambulance, they can check out Ms. Paldino. I'll call the police to report. I'll get my daughter to a safe place, and I'll come back. Because I don't want my daughter any more traumatized. You know, I was just thinking about the safety of my family. So I checked that she was okay. From what I could tell, she seemed okay. She was screaming, but she seemed okay. There was, there was no blood anywhere. There didn't appear to be any broken bones, she was just, you know, sitting on, sitting on the median screaming, and my first priority was my daughter. (Transcript June 7/16 page 19, line 29 through to page 21, line 10)

A. She – you're asking me, essentially – she jumped on the hood of the car, she fell off the car, I parked the car, and I got out, and I went around to her. At this point....

Q. Can I just stop you there, one second?

A. Sure.

Q. Where did you park your car?

A. I parked my car, I believe, alongside the curb, but I can't quite remember.

Q. Okay. And what did you do after you parked your car?

A. I went out, and I asked her what happened and if she was okay. And I, I remember her screaming, 'don't let her leave, don't let her leave'. And I said, 'Sandra, I'm going to call an ambulance. I have to take my daughter to a safe place.' My daughter was in shock because this woman had jumped on the hood of our car, and – so anyway.... (Transcript June 7/16 page 22, line 29 through to page 23, line 13)

Q. And did you speak to any of the women there?

A. I think they may have spoken to me, and I told them that I was calling an ambulance, and I was calling the police, that I needed to take care of my daughter, and that I would be right back.

Q. Okay. What was your understanding about them calling an ambulance? Did you have any understanding about that?

A. I felt that because she had jumped on my car, that, that I needed to call. That, you know, it was something that I needed to do, so I did that.

Q. Okay. And, again, your demeanor after you exited the car. Do you recall what it was?

A. I was completely shocked. I was shocked, I was very distressed. You know, we had been leading a very quiet life, just, you know, taking care of, of my kids, and just – so this was just...

Q. Okay. And so...

A. ...very distressing.

Q. ...you made some calls, correct?

A. Yeah, I called the ambulance, and I called the police. I called 9-1-1, and I reported the accident. And I told them that I, I was taking my daughter to a safe place, and that I would be back.

Q. Okay. And do you know who you called first?

A. I believe I called 9-1-1. (Transcript June 7/16 page 23, line 23 through to page 24, line 16)

Q. Okay. And do you know how soon after the incident that you called 9-1-1?

A. As soon as I got back into the car, I called right away, simply because somebody had jumped on my car, and I was concerned about them, and I was concerned about my daughter, and I wanted to, to make sure that everybody – that she was taken care of, that, you know, that they knew who I was, and that – and the events that had happened.

Q. Okay. And do you recall what the operator told you to do?

A. She told me to come back to the scene, and so I dropped my daughter off, and I came right back to the scene. (Transcript June 7/16 page 24, line 32 through to page 25, line 11)

Q. Okay. And what was your understanding about 9-1-1 being called?

A. 9-1-1 being called was that I had an obligation to report what had happened. And I had an obligation to, to make sure that, that she was okay, because she jumped on my car. I, also, because of everything that had happened, I, I didn't know where this was going. You know, I just didn't know where this was going. This is somebody who was a volunteer, and had sued me – representing herself as an employee. So I didn't know where this was going, and I just knew that I had to report it, and I, I needed to make sure that a professional came to the scene and attended to her. And I also needed to make it clear to them that I was there – this person had jumped on my car, and that I would be available to answer any questions, and deal with – and take – you know, deal with the consequences. (Transcript June 7/16 page 25, line 24 through to page 26, line 7)

Q. …when you got out of your car and parked it, how did Ms. Paldino seem…?

A. She, she was sitting on the ground, and she was screaming, 'don't let her go, don't let her go', and I was just asking her if she was okay, and what had happened. (Transcript June 7/16 page 26 lines 13 to 15)

160Mr. Reyes testified that she left the scene and took her daughter to a friend's place that she knows from Church. Her name is Leslie Ann Hebb.

161Ms. Reyes said that after calming her daughter down she returned to the scene. She cannot remember how long she was gone for.

A. I just approached the, the officers who were there, who were there. And I walked up to them, and I said I'm Althea Reyes, and I said I called 9-1-1 about this incident. I asked them about Paldino – I said, 'where is she?' And they said that they had called an ambulance, and that she had been taken in the ambulance. And then they asked me if, if they could ask me some questions, and I said, 'sure'. (Transcript June 7/16, page 29, lines 24 through to 31)

Q. Okay. Do you recall the civil suits that happened after this incident?

A. Yes. We were sued for....

Q. First of all, who sued you?

A. Sandra Paldino sued us for her injuries, and she served me at an address of the old house where we were moving from. So she served me at that address, so I knew nothing about it until probably six months later. And by that time, there was a judgment, and somebody had called me to pay money to Ms. Paldino, and I said I wasn't even served with this lawsuit, I know nothing about it. They said, well she's suing you for thirty – no, it was I think in the sixties. I can't even remember how much it was. They said that she was suing us for tens of thousands of dollars in injuries. And I said, 'Wow'. I said, 'You know, she, she jumped on the car, and I don't even know if, I don't even know if there were any injuries. All I know is that an ambulance was called'. I think the amount may have been close to 70,000 or something... (Transcript June 7/16, page 31 line 21 through to page 32, line 6)

Q. Do you know who else was being sued besides yourself?

A. The owner of the car was being sued as well.

Q. Okay.

A. And the insurance company. (Transcript June 7/16, page 32 lines 25 to 29)

162In cross-examination, it was put to Ms. Reyes that she has a conviction for Fabricating Evidence on October 24th of 2013 in Toronto.

163Ms. Reyes responded, "Yes, it's under appeal at the Court of Appeal right now". (Transcript June 7/16, page 33)

164Ms. Reyes acknowledged that she also has a conviction for Theft Under $5,000 registered in August 28, 2014.

165When asked where she had taken her daughter after she left the scene, Ms. Reyes stated that Ms. Hebb lived in North Oakville at the time. She can't remember the address now and Ms. Hebb has moved twice since then.

166When asked how long it took to get to Ms. Hebb's place, Ms. Reyes replied that she could not remember.

167When asked how long she stayed at Ms. Hebb's place, Ms. Reyes said perhaps 15 to 20 minutes. She can't remember exactly.

Q. I'm not asking you to remember exactly, I'm asking for your best recollection.

A. I would say the time that it took to calm my daughter down, and get her stabilized and situated – I would think that would have been 15 to 20 minutes.

Q. Okay. And to the best of your recollection, how long did it take you to get to Ms. Hebb's house?

A. I would assume that it would have been perhaps ten to 15 minutes. Maybe ten minutes.

Q. Okay. And ten minutes to return. Obviously if it took you ten minutes to get there.

A. Approximately. Honestly, I – approximately.

Q. Okay. So that's about 35 minutes in total, correct?

A. No. Fifteen to 20, and then ten, and ten – so close to an hour, I assume. I don't know.

Q. Okay. That sounds to me like 35, maybe 40 minutes at the most. Correct?

A. Perhaps. (Transcript June 7/16, page 47, lines 11 to 29)

168When asked about her allegations that Ms. Paldino had stalked and harassed and assaulted her at the Oakville Place Plaza, if any charges or any legal sanction had been imposed, Ms. Reyes said she tried but the Crown would not prosecute Ms. Paldino. (p. 50)

169Ms. Reyes repeated that in the Toys 'R' Us parking lot Ms. Paldino was at first standing behind her car taking pictures. That was why Mr. Reyes kept going forward and back from her parking space which she eventually recalled was the first parking space, next to the median and the fire hydrant.

170Ms. Reyes repeated that Ms. Paldino then was standing near the middle of the median by the fire hydrant as Ms. Reyes was leaving the parking lot and attempting to make her right turn when Ms. Paldino jumped on the right side hood of her car.

Q. Okay. And to the best of your knowledge, despite how busy this parking lot was – to the best of your knowledge, there was no one who saw Ms. Paldino jump on the hood of your car.

A. I think, I think people saw her jump on the foot [sic] of my – on the hood of my car. I think the issue is, how did she get there? You know, she jumped on the hood of my car, because I was going so slow, and just trying to turn right to get out of the parking lot. There was no attempt on my part to have any contact with Ms. Paldino. That's why I kept going in and out, because I wanted to make sure that she was not behind the car, and that I didn't, I didn't, you know, hit her from backing in and out, so I was extremely careful, and....

Q. The questions was about whether there were witnesses who saw that. Okay? And that's what the question is about. So the – I'm going to put it another way. I'm going to suggest that notwithstanding what you say happened, nobody came running up to you after, and said, 'Oh my gosh, that woman just jumped on the hood of your car. Are you okay?' Right?

A. I mean, it was a very high-stress and tense situation. I, I don't believe that people actually saw what happened. I think people probably have an interpretation of what they think happened. She was there yelling, yelling out that she was hit, and I think it's like one of those mob scenarios where you come on a situation. If everybody's yelling one thing – everybody starts yelling that one thing. I don't think it's possible that they actually saw that, because I know what happened. I was in the car.

Q. There was, there was lots of people in that parking lot, but no one identified themselves to you as having seen Ms. Paldino throw herself on the hood of your car.

A. I did not have a long conversation with anyone. My daughter was traumatized – screaming and yelling in the back of the car. Once I parked the car and got out and asked Ms. Paldino what happened, and told her I was calling an ambulance, I had to go – I had to get back to the car and care for my daughter. It wasn't the appropriate time to have conversations with people.

Q. What you did was, you stopped your car when you were prevented from leaving by the other witness Michelle Martin, correct?

A. No. Absolutely not. I stopped the car immediately. As soon as she put herself on – threw herself on the roof of the – the hood of the car and, and came off the car, I stopped the car and I got out. Because I wanted to know – I wanted to, to question her about it. I wanted to see how she was. I wanted – it was just so shocking and bizarre. I had to get out of the car and say, you know, what happened? Are you okay? I had to, I had to make sure that I called the authorities.

Q. Was your car blocked in by Michelle Martin's car?

A. I can't recall that. All I remember is her jumping on my car... (Transcript June 7/16, page 56, line 21 through to page 58, line 12)

Q. Okay, the question is. Do you recall the witness, or any witness coming to the window of your car to tell you to stay?

A. I don't recall that.

Q. Do you recall the witness, Michelle Martin, or any witness running after your car, trying to get you to stay?

A. I don't recall anyone running after my car. I was looking straight ahead, trying to navigate, you know, taking my daughter – trying to talk to her, calm her down, and take her to a safe place. So I don't – I wouldn't have seen anyone running after my car.

Q. When you did get out of the car, I'm going to suggest to you that Ms. Paldino was screaming and crying in pain, and complaining of the pain that she had in her foot. Correct?

A. I remember her screaming, 'Don't let her go. Don't let her go.' I remember that.

Q. Okay.

A. And I remember a guy there.

Q. The question is – the suggestion I put to you was that she was screaming and crying in pain, and complaining – crying about her foot.

A. The only thing that I heard her yelling and screaming was, 'Don't let her go. Don't let her go.' And.... (Transcript June 7/16, page 58, line 28 to page 59, line 20)

Q. And I'm going to suggest to you that the witnesses – while you were at the scene when you got out of the car, they told you that they had already called 9-1-1.

A. I don't recall that. I recall me feeling that it was the best thing for me to call, and perhaps – I think the police, or 9-1-1 told me they had an ambulance on their way, and so I knew an ambulance was coming.

Q. Okay. And you've listened to the 9-1-1 calls in this matter.

A. Yes, I have.

Q. The first call is as 5:17 p.m.

A. If that's what you say. I can't remember.

Q. Okay. You – do you agree that you called in at 5:27 p.m.?

A. Honestly, I cannot remember exact times.

Q. Okay. When you were initially speaking to the dispatcher, you told him that you would return in five minutes. Correct?

A. It's possible.

Q. Okay. And you recall, and we heard on the 9-1-1 tape yesterday, that police then called you back, correct?

A. I don't know. I don't know. (Transcript June 7/16, page 60, line 17 to page 61 to line 6)

Q. You agree that it was well over an hour before you returned to the scene.

A. I don't know.

Q. You don't know. When you returned to the scene, you approached Officer Tansley on foot, correct?

A. I don't remember. I just remember approaching an officer, and saying, 'My name is Althea Reyes. I called, I called to get help with this situation.' And then he introduced himself, and I can't even remember what he said to me at that point.

Q. When you returned to the scene, ma'am, you returned on foot. Correct?

A. If, if that is what you're telling me, then I'll accept that. It was over five years ago.

Q. Well you tell us, ma'am. You said that you took your daughter somewhere in North Oakville...

A. Yes.

Q. ...that was approximately ten minutes away.

A. Yes.

Q. What happened when you got back to the scene? What happened to your car?

A. I don't know what happened to my car. It didn't belong to me. And I believe that I called the owner, and I told the owner what had happened, and I don't know what happened.

Q. Where did you park your car?

A. I parked my car in the parking lot of Toys 'R' Us.

Q. When you returned to the scene.

A. That's correct.

Q. And yet, notwithstanding, that police were looking for your car...

A. Mm-hmm.

Q. ...and they had a description of the licence plate...

A. Yes.

Q. ...they weren't able to find it.

A. Well I'm not responsible for that.

Q. Right. So your car was somewhere in plain view in the Toys'R'Us parking lot.

A. Yes. And my car belonged to somebody else, and they were notified about the accident. Whatever they decided to do – if they decided to pick up the car, is, is really not for me to, to speculate on. I, I was there to say I was the person driving the vehicle. This is what happened. I want to make sure this person has assistance, and I want the authorities to be fully aware of the situation.

Q. I'm going to.....

A. And I'm here to, to co-operate.

Q. I'm going to.....

A. That was my intention.

Q. I'm going to assume that you drove up to where Officer Tansley was parked in his cruiser then.

A. No, because it was still a busy parking lot, so I had to park wherever I could find a space. And it was very busy.

Q. So where was it that you parked?

A. I parked in the, in the parking lot. I can't remember exactly where. (Transcript June 7/16, page 61, line 21 through to page 63, line 15)

THE COURT: There was reference in the evidence of the complainant to your employment status, and how you represented yourself. What do you do for a living, Ms. Reyes?

A. I'm an Ontario Certified Teacher. I've been teaching in good status at a private school for over five years. I have not been teaching since September, because, because of this situation, but all I need to do – there's a $150 fee that you pay to the Ontario College of Teachers, and I just have to pay that fee, and I can teach in a public school. Or if I don't choose to pay the membership fee, I can still teach in a private school because I have a teaching degree.

THE COURT: What private school did you work in for over five years?

A. I worked at a private school called Diamond Award Academy.

THE COURT: Where's that?

A. It's located – they have five different locations throughout Toronto. And also in Ottawa, and other parts of Canada.

THE COURT: Which one do you work in?

A. I worked at – in Ottawa, Hunt Club and Woodruff. And I also worked, for a very short time, in Toronto, but then I asked to be moved to Ottawa because I wanted to be closer to family.

THE COURT: So that's been your sole source of paid income – this teaching?

A. Teaching, and some – I haven't – as I said, I haven't taught since September, so through gifts, et cetera.

THE COURT: Sorry, what was the last thing you said?

A. Gifts, and also....

THE COURT: (Inaudible)

A. Gifts from people.

THE COURT: Oh, gifts.

A. Sorry. My apologies. And also through Ontario Works, as well. (Transcript June 7/16, page 65, line 29 to page 67, line 2)

Position of the Parties

Defence Position

171It is the defence position that Ms. Reyes was not driving dangerously. Ms. Paldino jumped on the hood of the car while Ms. Reyes was trying to leave the parking lot.

172It is the defence position that Ms. Reyes is not guilty of failing to remain at the scene of the accident because she said she was going to get an ambulance and she called 911 and gave her name and phone number and said she would be returning to the scene and she did later return to the scene.

Crown Position

173The Crown submits that the accused has been proven guilty beyond a reasonable doubt on both counts and should accordingly be convicted. The Crown's evidence in this case can only be described as overwhelming.

174The evidence of the Crown witnesses was credible and reliable and should be accepted.

175The evidence of the accused was not at all credible and should be rejected. It does not raise a reasonable doubt.

176The complainant's evidence was corroborated by the evidence of the independent witnesses. Her evidence was internally consistent and consistent with the evidence of the independent witnesses.

Credibility and Reliability

Evidence of Accused Generally

177The accused was evasive and inconsistent in her testimony.

178She rarely gave a direct answer to questions in cross-examination. On most occasions, the question would have to be re-asked and still a responsive answer would not be given.

179Ms. Reyes' answers were self-serving and she took pains to repeat pieces of evidence that she thought assisted her case, such as, that her daughter was extremely upset and she needed to remove her daughter from the scene.

180Ms. Reyes clearly has animus towards Ms. Paldino which was reflected in her inability to be candid or unbiased about Ms. Paldino. She went to great lengths in her evidence to say things in an attempt to demean and make Ms. Paldino look bad. Notwithstanding this, Ms. Reyes denied having animus towards Ms. Paldino.

181Ms. Reyes was inconsistent in her own testimony. For instance, she testified in-chief to being sued by Ms. Paldino in Small Claims Court and then also as a result of the January 10, 2011 incident. In cross-examination she inferred it was one lawsuit over payment of wages and then denied understanding what either law suit was about.

182In addition, Ms. Reyes has recent convictions for Fabricate Evidence (2013) and Theft Under (2014) – both offences of dishonesty that affect her credibility, particularly the Fabricate Evidence.

Evidence of the Crown Witnesses Generally

183With the exception of Ms. Paldino, the Crown witnesses were all independent witnesses. They were not biased towards either the accused or Ms. Paldino. It was clear they were all trying their best to recall and relate the events in question. They were all credible witnesses and for the most part reliable. Their evidence overall was generally internally and externally consistent.

184Ms. Paldino was a very credible, reliable and compelling witness. She was candid and fair in her answers. Notwithstanding what she had obviously been put through by Ms. Reyes, she was fair in her evidence at all times. Much of her evidence reflected poorly on Ms. Reyes, but was only brought out in cross-examination when she was asked details of the litigation and related incidents between them.

185Her credibility is further enhanced by the evidence that she did not pursue the Small Claims Court lawsuit after this incident occurred, because of her desire to have nothing to do with Ms. Reyes, despite the fact that others (like the man present in court to serve her) were clearly still pursuing their claims.

Conflicts In Evidence Between Accused And Other Witnesses

Dangerous Driving

186On the Dangerous Driving count, Ms. Reyes' evidence was inconsistent, not only with Ms. Paldino, but with virtually all of the witnesses.

187Ms. Reyes testified that when she came out of Toys 'R' Us, Ms. Reyes was standing behind her car, taking photos. Ms. Reyes said that she got her daughter in the car as quickly as she could. Ms. Reyes said she tried to back out of the spot several times but was blocked by Ms. Paldino, and so she reversed and then pulled ahead back into the spot several times. The accused testified that Ms. Paldino finally got up on the median. Ms. Reyes said she reversed out of the spot, was waiting to turn right and Ms. Paldino jumped on the hood of her car. She said Ms. Paldino came off the car and she turned right and then stopped her vehicle. She never testified to having driven over the curb. Her testimony did not in any way explain how the injury could have been caused to Ms. Paldino's foot and she denied any knowledge of any injury to Ms. Paldino's foot.

Ms. Paldino Not Behind Ms. Reyes' Car

188Not one of the other independent witnesses saw Ms. Paldino behind Ms. Reyes' car. Instead, they all testified that Ms. Paldino was on the median talking on her cell phone, as did Ms. Paldino.

189Two of the witnesses, Ms. Myers and Ms. Gosine, saw Ms. Reyes backing in and out of the parking spot but testified Ms. Paldino was on the median speaking on her phone at the time.

Ms. Paldino Not Taking Photos

190Not one of the independent witnesses observed her taking photos. Ms. Paldino denied taking any photos of the car.

Ms. Reyes Drove up on Curb and Struck Ms. Paldino

191Ms. Paldino and the independent witnesses all testified that Ms. Reyes drove up over the median, where she struck Ms. Paldino.

192There were tire tracks on the curb following this incident, which Ms. Paldino and Ms. Avetissian believed, as did D./Cst. Tansley, were from this incident.

193Certainly it is unusual for tire marks to appear on a raised pedestrian median. In addition, there would be no reason for Ms. Reyes to drive up onto the curb, unless it was with the intention of hitting the victim. It would be a significant coincidence for her to unintentionally drive up onto the curb where the victim, someone she held a lot of animus towards, was standing, and hit her.

Ms. Paldino Turns to See Ms. Reyes Coming – "stop, stop"

194The victim testified that she was turned toward Toys 'R' Us until the accused yelled, causing her to turn towards the car just before she got hit. Ms. Martin also testified that the victim was initially facing Toys 'R' Us, waiting to cross. The witness Ms. Gosine said that Ms. Paldino was talking on her cellphone walking back and forth on the median.

195Ms. Myers heard the victim yell "stop, stop" before she was hit. This evidence was consistent with the victim's evidence that she turned and realized that the accused was coming towards her with the car and was going to hit her.

Ms. Paldino Struck by Car and Falls on Hood

196All of the witnesses testified that what caused Ms. Paldino to hit the hood/and or fall to the ground was being hit by the car.

Injury to Ms. Paldino's Foot

197Ms. Paldino testified that the car drove over her left foot, and that she wasn't more seriously injured because only the right side wheels of the car went onto the curb. Ms. Myers also testified that only the passenger side wheels went up on the curb.

198Medical records and photos were filed corroborating the injury to Ms. Paldino's foot.

Tire Tracks

199There appear to be multiple tracks in the snow on the median. As D./Cst. Tansley testified, it's unclear how many tracks there are, whether they are from the same tire, or front and back, etc. The witness Ms. Gosine testified that after the accused hit the victim, she backed up and went around the curb.

Intention

200Ms. Paldino testified that she heard the accused call out to her, causing her to turn, then she saw Ms. Reyes looking right at her as she drove towards her and hit her. Ms. Paldino testified that the accused was smiling at her as they were looking at each other through the windshield. This evidence corroborates that the accused intentionally drove up on the curb and struck the victim.

201In addition, as mentioned above, it is beyond coincidence that the accused could unintentionally drive up onto the curb where the victim, someone she held a lot of animus towards, was standing and hit her.

Ms. Reyes' Demeanor

202Ms. Paldino also testified that when Ms. Reyes initially came over after parking, she was smiling but then panicked after someone said the police would have to be called. Ms. Gosine said she was not smiling. She was described as frantic and in shock.

203This evidence is not necessarily inconsistent, as it may be that these observations were noted after Ms. Reyes heard that police were being called.

Ms. Reyes Driving - Dangerous Driving

204The evidence of the Crown witnesses should be accepted.

205Dangerous Driving is made out when it is shown that the accused's driving was a marked departure from the standard of care a reasonable person would observe in all of the circumstances. Driving over a median where a person is standing (in a busy parking lot) is clearly a marked departure.

Fail To Remain

206Ms. Reyes testified that after Ms. Paldino jumped on the hood of her car, she pulled over and went to Ms. Paldino to ask what happened and see how she was. She testified that upon seeing Ms. Paldino was ok, she left to take her daughter to a safe place and call an ambulance, which she did right away. She testified that she returned to the scene as soon as she got her daughter settled. She testified in cross-examination that it would have taken her about 10 minutes to get to her friend's place and she settled her daughter for about 10-15-20 minutes. She said she returned and parked the vehicle in the Toys 'R' Us parking lot, and then approached D./Cst. Tansley.

207This evidence was sorely contradicted by the evidence in the Crown's case.

Kept Driving

208The civilian witnesses were consistent in testifying that Ms. Reyes struck the victim and continued to drive, turned right and stopped parallel to the curb. (Although Ms. Gosine testified that Ms. Reyes struck her, backed up and drove around curb, then stopped).

Forced to Stop

209Ms. Martin testified that she forced the accused to stop her vehicle by blocking her in with her vehicle, at which point Ms. Reyes ran over to the victim and spoke to her.

Stayed for a "Few Seconds" or "A Minute"

210Ms. Martin testified that Ms. Reyes only spoke to the victim for "a few seconds"

211Ms. Myers, and Ms. Paldino testified that Ms. Reyes stayed for about a minute.

212Ms. Gosine testified Ms. Reyes was out of the car speaking with her for about five minutes, however the conversation she relayed between herself and Ms. Reyes was extremely short (did she have a cell phone and Ms. Gosine telling her to stay).

213Ms. Avetissian did not recall how long Ms. Reyes stayed.

Had to "Get" an Ambulance; Ambulance Already Called

214The independent witnesses testified that Ms. Reyes said she had to "get" an ambulance.

215The witnesses and Ms. Paldino testified that Ms. Reyes was told that an ambulance had already been called.

No Offer of Assistance, No Inquiry About Ms. Paldino's Well Being

216With respect to what Ms. Reyes said to Ms. Paldino, there was some evidence that Ms. Reyes asked "what happened". The evidence from Ms. Paldino and the independent witnesses was that Ms. Reyes did not make inquiries about how Ms. Paldino was.

Clear Ms. Paldino Required Assistance

217The independent witnesses, and Ms. Paldino, testified that Ms. Paldino was very upset and crying, in pain, and indicating that her foot or leg hurt.

No Comment About Daughter

218None of the independent witnesses or Ms. Paldino testified that Ms. Reyes said anything about taking her daughter to a safe place and returning.

Ms. Reyes Told to Remain at Scene

219Ms. Martin testified that when Ms. Reyes returned to her vehicle after speaking to Ms. Paldino, Ms. Martin told her not to leave. She said she approached the passenger side of the car, then went to the driver's window in case Ms. Reyes pulled away. She told Ms. Reyes "if you leave they're gonna charge you with hit and run". She said she had to leave and she had to get an ambulance. Ms. Martin told her that 911 had already been called. Ms. Martin testified that she "begged" Ms. Reyes not to leave.

220Ms. Martin testified that despite this, Ms. Reyes just drove off, and that she ran behind Ms. Reyes' vehicle to try and stop her. She said she memorized the licence plate and wrote it down on a poster she had just received.

221In addition, Ms. Myers, Ms. Gosine and Ms. Paldino testified that Ms. Reyes was told not to leave. Ms. Myers said that one of the witnesses (presumably Ms. Martin) tried to catch her. Ms. Gosine testified that she told Ms. Reyes that she needed to stay. (Ms. Avetissian testified that she did not hear the conversation as she went to retrieve the victim's cell phone).

Ms. Reyes Does Not Give Name or Address at Scene

222Ms. Reyes did not give her name or address to anyone at the scene.

223Ms. Paldino testified that she initially knew Ms. Reyes by another name – Ally Valitchka. It was only after she started the Small Claims Court action that she learned that her name was Althea Reyes.

224Ms. Paldino testified that she had a great deal of difficulty locating Ms. Reyes to serve her with documents, particularly after she was evicted in the fall of 2010 from the address she had been living at when Ms. Paldino worked for her. It is clear that in January of 2011, Ms. Paldino did not know where Ms. Reyes was living.

225Ms. Reyes was not the registered owner of the car, so she could not be easily located in that way.

Call to Police

226The first 911 call was at 5:19 pm.

227The call from Ms. Reyes was received at 5:27 p.m. It can be inferred that this was at least 10 minutes after Ms. Paldino was struck.

228It can be concluded from the evidence that the Ms. Reyes was at the scene a very short time after being blocked in by Ms. Martin (see evidence referred to above). It is clear that Ms. Reyes waited some time before contacting 911.

229When Ms. Reyes did contact 911, it was not with the intention of getting an ambulance for Ms. Paldino. When dispatch answers the call, she says she wants "police" and proceeds to report that someone threw themselves on her car. In fact, Ms. Reyes tells dispatch that the woman "sat down and started crying and claiming that I've hurt her".

230Ms. Reyes does not report that she drove over the curb or that she struck the victim.

231Ms. Reyes initially infers that she is still at the scene. When she is told that an officer is on his way, she asks if she can leave her number because she has her 5 year old with her. Eventually she tells dispatch that she did leave.

232Ms. Reyes is told by dispatch (twice) that she should not leave or she could be in trouble for leaving the scene of an accident.

233Ms. Reyes tells dispatch that she will return to the scene in 5 minutes.

234Clearly, Ms. Reyes is not taking steps to comply with her obligations under s. 252 . Instead, she is making a "pre-emptive strike" by reporting the matter as a crime against her. It is clear she realizes that the witnesses will have the licence plate of the car she is driving and will be able to locate her, so she reports the matter herself. At no time does she request an ambulance, although in the course of the conversation about whether she should return to the scene, she is told that an ambulance has been dispatched.

Ms. Reyes Does Not Return Immediately (or anywhere close to immediately)

235After telling dispatch that she will return in 5 minutes, she clearly does not. Dispatch calls Ms. Reyes back and is told the police are looking for her. She tells them she will be back in ten minutes.

236Ms. Reyes hangs up on dispatch during this call.

237Dispatch tries to call Ms. Reyes back twice but only gets her voicemail.

238Even on Ms. Reyes' evidence, it should have only taken her at most 40 minutes to drop off her daughter, get her settled, and return to the scene.

239Ms. Reyes does not return to the scene until 6:26 p.m. – well over an hour after striking Ms. Paldino.

240In any event, there was no reason and it is not reasonable, nor is it a defence in law, to leave the scene of an accident without complying with obligations under s. 252 , in order to drop a 5 year old child off at another location.

241Reyes approached D./Cst. Tansley on foot when she returned to the scene.

242Although police looked for the car, including in the parking lot of the Toys 'R' Us plaza, it was never located.

243It can be concluded that Ms. Reyes left the scene and got rid of the vehicle she was driving.

244Pursuant to R. v. Roche, this section is to be read disjunctively, and the offence is complete upon proof of failure to fulfill any of the three duties.

245The accused failed to perform any of the obligations under s. 252.

246When Ms. Reyes failed to discharge the duties, throughout her dealings with the civilians, when she left the scene and throughout her dealings with police, she clearly had the intention of escaping criminal and civil liability and thus should be convicted.

247The evidence of Ms. Paldino, Officer Tansley and the independent witnesses should be accepted and Ms. Reyes' evidence should be rejected. Although the Crown does have the benefit of the presumption in this case, even if the presumption did not exist, the inescapable conclusion on the evidence of the crown witnesses is that Ms. Reyes did not comply with any of the three obligations. She only stopped at the scene because she was forced to by a witness, she failed to remain at the scene, she failed to give her name and address and she failed to offer assistance. Nor can it be said that she had ensured Ms. Paldino was ok, as Ms. Paldino was crying and expressing that she was in pain.

248When Ms. Reyes did call the police, it was only for the purpose of offering a false story to report a crime against herself, and not to report that she struck the victim, or give her name and address in that regard, or obtain assistance for the victim.

249It is not compliance with s. 252 , but rather a breach of it, to give a name and address, coupled with a false explanation of the person's presence at the scene of the accident in a manner calculated to deceive and mislead the police.

250Regina v. King [196] OJ No. 1547 (OCA) at para 5. The fact that Ms. Paldino knew Ms. Reyes is of no moment, since at the time of the accident and with Ms. Reyes being forced to stop by Ms. Martin, Ms. Paldino was injured and crying and screaming in pain. She could not be expected in any way to be dealing with the identification of Ms. Reyes, nor would she be in a position to tell police Ms. Reyes' address at the time.

251In R. v. Hoffman, the Alberta Court of Appeal held: Providing one's name to, or being known by a semi-conscious, unconscious or deceased passenger would likely not fulfil the objectives s. 252 of preventing the avoidance of legal liability. The cases where no one was hurt and the accused was known are likely distinguishable, as they appear to turn on an absence of "intent to escape liability" (citing R. v. McKee [1991] B.C.J. No. 4059 (B.C. Prov. Crt. as distinguishable).

252R. v. Hoffman [2010] AJ No. 928 at para 4 : The court also noted in Hoffman that the presumption of intention to avoid liability could arise simply from the false story given to the nurses in that case.

253She failed to return to the scene until it became clear that she was not going to get away with striking Ms. Paldino. The police had attended the scene, they had called her back, and then they called her back two more times (even though she didn't answer).

254In Bartley (No. 1) the accused left the scene and returned a half hour later. The court held that the accused, at the time of the accident, intended to evade civil or criminal responsibility and the fact that he changed his mind and returned did not negate the commission of the offence. The court stated that the accused was aware that he had hit a person, and the court did not accept his explanation as to why he left the scene. Bartley (No. 1) (Sept. 27, 1984), 13 W.C.B. 410 (Ont.Co.Ct.)

255Accordingly, Ms. Reyes should also be convicted of Failing to Remain.

Judgment of This Court

Elements of the Offences

DANGEROUS OPERATION OF A MOTOR VEHICLE

256Section 249(1)(a) of the Criminal Code reads as follows:

Every one commits an offence who operates a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

257The mental element for the offence requires proof of an intention to operate the vehicle in a way which, objectively viewed, constitutes a departure from the standard of care expected of a prudent driver in the circumstances.

258The appropriate mens rea for this offence is based on a modified objective test. As a general rule, personal factors need not be taken into account and the accused may be convicted if it is proven that, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all the circumstances. In making this assessment, the court should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation. An explanation, such as the sudden onset of an unexpected illness would negate liability if a reasonable person in the position of the accused would not have been aware of the risk: R. v. Hundal 1993 CanLII 120 (SCC) , [1993] 1 S.C.R. 867, 79 C.C.C. (3d) 97.

259In R. v. Beatty , 2008 SCC 5 (CanLII) , [2008] 1 S.C.R. 49, 228 C.C.C. (3d) 225, The Supreme Court of Canada fully considered the requisite mens rea and actus reus.

260The modified objective test requires a marked departure from the civil norm in the circumstances of the case. The mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence but will not be sufficient for penal negligence. The distinction between a mere departure and a marked departure is a question of degree.

261The actus reus requires proof beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place.

262It is the manner in which the vehicle was operated that is at issue, not the consequences of the driving. While the consequences may assist in assessing the risk involved, it does not answer the question of whether or not the vehicle was operated in a manner dangerous to the public.

263The mens rea requires the trier of fact to be satisfied on the basis of all the evidence, including evidence, if any, about the accused's actual state of mind, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. If the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence, if any, about the actual state of mind of the accused to determine if it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct.

264Subjective mens rea of intentionally creating a danger for other users of the highway will always constitute a marked departure from the standard expected of a reasonable prudent driver.

265Subjective mens rea, however, is not necessary. A lack of care must be serious enough to merit punishment. If an explanation is offered by the accused, then, in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

FAILURE TO STOP AT SCENE OF ACCIDENT

266Section 252 of the Criminal Code reads as follows:

(1) Every person commits an offence who has the care, charge or control of a vehicle…that is involved in an accident with (a) another person…and with intent to escape civil or criminal liability fails to stop the vehicle…give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

(2) In proceedings under subsection (1), evidence that an accused failed to stop his or her vehicle…offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

267The presumption of intent in subsection (2) is to be read disjunctively and thus the presumption applies where the accused fails to perform any of the three duties imposed on him. R. v. Roche , 1983 CanLII 130 (SCC) , [1983] 1 S.C.R. 491, 3 C.C.C. (3d) 193.

Findings of Fact

268I accept as accurate, reliable and true the evidence of the four independent civilian witnesses, Ms. Paldino and Officer Tansley after assessing their evidence pursuant to R. v. W.D.

269I agree with and adopt the Crown's submissions made in this case in these reasons for judgment.

270There is no obligation on the defence to prove anything. The onus is on the Crown throughout to prove the case on the high standard of proof beyond a reasonable doubt.

271Ms. Reyes has testified and I reject her evidence and it does not leave me in a state of reasonable doubt on either of the two offences.

272Ms. Reyes' repeated testimony (at least 25 times) that Ms. Paldino jumped on the hood of her car is absurd. None of the witnesses saw anything close to that and it conflicts with the physical evidence at the scene.

273Ms. Reyes' testimony that she left the scene to remove her distraught daughter is not a legal excuse pursuant to the elements of s. 252 . Further, I find as a fact that her main motivation was to leave the scene to buy time to concoct a story to attempt to blame Ms. Paldino for her injuries. Most importantly, I find as a fact that Ms. Reyes left the scene to remove physical evidence of her guilt; that being the car she was driving. It is significant that the car has to this day never been located making it impossible to match the tread marks of that car to the tire marks left in the snow on the median where Ms. Paldino was struck.

274I find as a fact that Ms. Reyes did not return in this car and parked in the Toys 'R' Us parking lot as she testified to. The police looked for it. It was not there. Ms. Reyes returned to the scene on foot almost an hour after she struck Ms. Paldino with the car.

275Ms. Reyes did not give her name and address at the scene of the accident. She did not provide the car's licence plate number to the police. A civilian witness provided that. The car was not registered to Ms. Reyes so the plate provided did not come back to her address.

276It was crystal clear from the evidence that Ms. Reyes knew that 911 had been called and an ambulance was on its way when she left the scene. In fact, Ms. Gosine testified that she could hear that the ambulance was coming when Ms. Reyes left the parking lot.

277I find as a fact that Ms. Reyes did not comply with any of the requirements of s. 252 as submitted by the Crown. Failure to comply with any one of the three makes out the offence. The Crown's case was overwhelming.

278There was much mention in the presentation of the defence case that the Crown witnesses had colluded with each other before testifying at trial. Specific questions were put to the witnesses in this regard and they were denied by the witnesses. I am not left in a state of reasonable doubt that the witnesses have discussed their evidence in this case. The four independent witnesses do not know Ms. Reyes or Ms. Paldino. They were independent and unbiased witnesses.

279It is significant to me that Ms. Reyes uses different first and last names at times. Ms. Paldino knew her as Ally Valitchka throughout her dealings with her. It was not until she tried to sue Ms. Reyes in Small Claims Court for unpaid wages that she learned her true identity as Althea Reyes.

280Ms. Reyes also told Ms. Paldino she was part of the Stand Up and Speak Out Company and had authority to pay her wages which was also not true.

281Further, in assessing Ms. Reyes' evidence I have taken into account her convictions for Fabricating Evidence and Theft under $5,000.00. These crimes of dishonesty convictions were registered before she testified at this trial and they also impact negatively on her credibility. Even without considering the previous findings of guilt for crimes of dishonesty, I still reject Ms. Reyes' evidence in its entirety and find her to be a dishonest witness.

282For these reasons findings of guilt are registered on both counts.

Released: October 19, 2016

Signed: "Justice Lesley M. Baldwin"

Footnotes

1This was a retrial following a mistrial declared by Justice Alan Cooper on August 24, 2015 after 5 days of trial proceedings that started April 1st, 2014.

2It was agreed that Ms. Reyes' statements to Officer Tansley at the scene would not go in as part of the Crown's case, but they are statements that the Crown would use in cross-examination of Ms. Reyes. The 9-1-1 calls would go in as part of the Crown's case; p. 117