ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JONATHAN SHEMESH
Before Justice Michael Perlin
Heard on May 26, 27, 28, 2026
Reasons for Judgment released on May 29, 2026
Lindsay Young counsel for the Crown
Frank Bernhardt and George Boyadjian, student-at-law..…………..for the defendant
1The defendant, Jonathan Shemesh, was driving an SUV southbound on Dufferin St. in Vaughan when it crossed the centre median into oncoming traffic resulting in a violent collision involving four other vehicles. He is charged with dangerous driving.1
2The actus reus of dangerous driving is conceded by the defence and plainly satisfied beyond a reasonable doubt. There can be no dispute that crossing the median into oncoming traffic was an objectively dangerous act.
3The issue at this trial is whether the defendant’s conduct satisfies the fault requirement for dangerous driving. I must decide: was the driving conduct that led to the collision a marked departure from the standard expected of a reasonable driver? To answer this question, I must address the conflicting evidence and factual inferences available regarding the seconds leading up to the collision.
4I must assess the defendant’s conduct at two points in time. First, I must consider the various explanations offered for how he ended up crossing the median, and whether that conduct constituted a marked departure. There are three theories. The defendant submits his brakes malfunctioned and he had no choice but to swerve toward oncoming traffic to avoid a certain collision with a car braking in front of him. The Crown submits that either the defendant swerved deliberately to pass a slower car in front of him, or that inattention led him to find himself approaching the car in front of him so quickly that he needed to swerve.
5Next, I must consider the Crown’s submission that the defendant, by failing to safely return the SUV to the proper lane after swerving toward the median, engaged in conduct constituting a marked departure.
I. Legal principles relevant to the analysis
A. The mental element of dangerous driving
6Leading authorities on the mental element for dangerous driving were summarized by the Court of Appeal for Ontario in R. v. Berto, 2021 ONCA 839, at paras. 38-41, and provide the following principles:
The mental element of dangerous driving requires proof beyond a reasonable doubt that the defendant’s driving conduct constituted “a marked departure from the standard of care a reasonable person would exercise in the same circumstances”;
The analysis “must consider whether a reasonable person would have foreseen the risks and taken steps to avoid them and, if so, whether the failure to foresee the risks and take steps to avoid them constitutes a marked departure”;
A marked departure involves a departure from the standard of care greater than that required for civil negligence—one serious enough to merit criminal punishment; and
“Conduct occurring in a two to three second interval can amount to a marked departure but, if it occurs only briefly in the course of driving that is otherwise proper in all respects, it is more suggestive of civil rather than criminal negligence”.
B. Burden and standard of proof
7The Crown bears the burden of proving the mental element beyond a reasonable doubt. That burden never shifts to the defendant.2
8The defence called evidence and there was evidence favouring the defence that formed part of the Crown’s case. I must consider both the credibility of this evidence and whether it operates as a defence to the charge. The Court of Appeal suggested in R. v. Ibrahim, 2019 ONCA 631, at para. 63, that this analysis should be approached in two parts. I must first consider whether I accept the defence evidence and, on the basis of it, have reasonable doubt on whether the defendant’s conduct constituted a marked departure. If so, I must find him not guilty. If not, I must also consider whether the defence evidence, alone or in conjunction with other evidence, leaves me in reasonable doubt on whether the defendant’s conduct constituted a marked departure. If so, I must find him not guilty.
9The Crown’s case rests on circumstantial evidence. In such a case, an accused person can be found guilty only if their guilt is the only reasonable inference that can be drawn from the evidence. I must consider whether there are reasonable alternative inferences that are inconsistent with guilt. A reasonable alternative inference is not one based on “speculation”. It must be “based on logic and experience applied to the evidence or the absence of evidence”. If an alternative inference could reasonably be true and raises a reasonable doubt in my mind as to whether the defendant’s conduct constituted a marked departure from the standard of a reasonable driver, he must be found not guilty. See R. v. Villaroman, 2019 SCC 33, at paras. 30, 36-38, 56.
II. Analysis of the theories of why the defendant entered the median
A. The brake malfunction
10The defendant submits he arrived in the dangerous situation through no fault of his own. He testified that his SUV experienced a sudden reduction of braking capacity. He was approaching a red light. A car ahead of him was slowing to stop. His SUV was also slowing, but not quickly enough. To avoid an imminent collision, he swerved left onto the street-level median (which I will call the median lane, although it was not a lane intended for use by vehicles). After doing so, he found himself quickly approaching a raised median and a street sign. To avoid those, he swerved further to the left into the oncoming traffic, hoping he could stop or otherwise avoid a collision with any oncoming cars. All of this happened in a matter of seconds.
11In support of the brake-malfunction narrative, the defendant points to the corroborative testimony of his common-law spouse (who says the defendant was trying to brake), and a mechanic who was qualified as an expert witness on hydraulic brake systems. He testified that a post-collision inspection of the SUV disclosed evidence of a brake-fluid leak that could not have been caused by the collision. He testified that such a fluid leak—depending on the amount of fluid lost—could have reduced the effectiveness of the SUV’s front brakes, particularly at higher speeds.
12Further, Mr. Lee—who was driving the first northbound vehicle the defendant’s SUV struck after crossing the median—testified that before the collision he saw a slower-moving southbound car in front of the defendant’s SUV, and saw the SUV overtake that car in the median. While he thought the defendant was trying to pass the slower car on the median, his observations are also consistent, with the defendant’s evidence of a sudden need to avoid a slower car in front of him.
13I agree with the defendant that if this version of events is true, his conduct could not be found to be a marked departure from the norm. On this version of events, he was driving normally with the flow of traffic, and an unexpected mechanical problem—not the defendant—created danger. I note that the defendant testified he was aware that the SUV’s brakes had recently felt somewhat “spongy”, but he felt they were working effectively and intended to get them inspected. Driving a car after noticing a minor issue with the brakes is perhaps careless. But I cannot say that a reasonable person would have simply ceased driving the SUV based on the defendant’s observations, or that it was a marked departure from the standard of care to do so.
14Whether the brake-malfunction theory is true rests largely on the credibility of the defendant and his common-law spouse, Ms. Tedovosian. I agree with the Crown that both witnesses lacked credibility.
15Ms. Tedovosian’s evidence appeared to be contrived. I do not accept that she made all the discrete observations she claims to have made of the defendant’s efforts to slow the SUV and avoid the collision: braking; braking harder; downshifting; and flashing lights. The events at issue took place over a few short seconds. On all accounts, during those seconds, the defendant and his spouse faced an imminent threat. It is not believable that she had time or the capacity to divert her attention from that imminent threat to catalogue the defendant’s actions. Further, she, like the defendant, testified that they were approaching a red light just before the collision. This claim is inconsistent with the video, which shows traffic proceeding toward, and emerging from, the intersection at an apparently normal rate of speed.
16I also find the defendant lacked credibility. Like his spouse, the defendant testified that they had been approaching a red light when the events at issue occurred—a claim that is belied by the video.
17Further, after the collision, he fled the scene. When he did so, he was recorded inadvertently on a 911 call made, apparently automatically without his knowledge, from his phone. On this call, he can be heard coaching his spouse to lie to the authorities to protect him. When he returned to speak to police, he initially told them that she had been driving, before admitting the truth. I reject his explanation that this conduct was the result of unthinking panic. It was plainly conduct calculated to mislead. The defendant’s first reaction after the collision was to fabricate an explanation that would exonerate him.
18While this conduct reflects poorly on his credibility, it does not assist the Crown in proving he is guilty of dangerous driving. The evidence suggests he knew he was in trouble but does not establish whether he was seeking to avoid liability specifically for having driven dangerously or for some other offence he thought he may have committed in causing the collision.3 See R. v. White, 2011 SCC 13, at para. 37; R. v. Marshall, 2025 ONCA 638, at paras. 112-13.
19I also found flaws in the evidence of defence expert Mr. Jeremy Smith. As the Crown noted, his opinions in court varied in some material respect from those set out in the written report. It appears he assessed the SUV only for a short period of time, long after the collision had occurred. He took no notes at the time and prepared his report from memory perhaps months later. There is reason to question the reliability of his opinion.
20That said, I accept that he observed some evidence of a brake-fluid leak. I agree with the Crown that the expert opinion on the operation of hydraulic braking systems in general is helpful and reliable. He testified that a brake-fluid leak would lead to progressively worse braking performance over time, which would potentially manifest in a more pronounced way at higher rates of speed. The defendant described himself as driving at a higher speed and needing to brake quickly.
21Having considered all the evidence favourable to the defence on the brake-malfunction issue, the credibility problems with the defendant and his spouse mean I do not accept that a brake malfunction led the defendant to need to swerve to avoid a collision.
22However, Mr. Smith’s evidence provides a technical explanation that corresponds roughly with the defendant’s evidence. His inspection of the SUV suggests, albeit not definitively to my mind, that there was an issue with the SUV’s front brakes. Further, although there were credibility concerns with the defendant and his spouse, flowing largely from his post-offence conduct, the events that they described were not inherently unbelievable.
23Based largely on Mr. Smith’s evidence, there remains reasonable doubt in my mind on whether a brake-malfunction may have caused or contributed significantly to the defendant deciding to swerve into the median lane. As I noted before, on this theory, the defendant’s conduct would not be a marked departure. Based on this, I conclude it is reasonably possible that the defendant entered the median lane without engaging in conduct constituting a marked departure. I have reasonable doubt on whether his driving at that point in time constituted a marked departure; so he cannot be found guilty based on that portion of his conduct.
24The last question is whether his conduct, once in the median lane, constituted a marked departure. Before turning to that question, I will briefly address the Crown’s alternative theories on how the defendant entered the median lane.
B. The attempt to pass
25The Crown submits the evidence discloses two possibilities of how the collision occurred, both of which establish there was a marked departure.
26First, the Crown submits, the evidence supports an inference that the defendant intentionally swerved into the median lane to pass a slower-moving car in front of him. In support of this, the Crown relies on the evidence of Mr. Lee, the driver of the first northbound vehicle struck by the defendant’s SUV. He thought the defendant was trying to pass the slower car on the median.
27I do not take the defendant to dispute that, if he deliberately tried to use the median to pass a slower car, this would constitute a marked departure from the conduct of a reasonable driver.
28The problem with this theory is that the evidence leaves me unable to conclude that it reflects what actually happened. Mr. Lee saw a slower car in front of the defendant and thought the defendant’s SUV was trying to pass it by crossing the median. The basis for this belief was not explored in detail. In my view, what Mr. Lee observed could also be consistent with the inattention theory (discussed below) and the brake-malfunction theory. It would be unsafe for me to convict based solely on Mr. Lee’s assumption regarding the defendant’s motivation for entering the median. The theory that the defendant was attempting to pass is available on the evidence, but not strongly supported by it.
C. Inattention
29In the alternative, the Crown submits that a rational explanation for the collision is that the defendant, through inattention, found himself about to collide with the slower car in front of him, and needed to swerve to avoid a collision. The Crown submits that this inattention amounted to a marked departure.
30The inattention theory is available on the evidence. Aside from the defence evidence, which I do not find to be true, there is very little evidence of the defendant’s driving before he entered the median lane. I already mentioned Mr. Lee’s limited observations. Other drivers involved in the collision offered even less evidence regarding the defendant’s driving. There is no evidence that he was driving poorly in any way before entering the median lane. In my view, a reasonable explanation for the evidence of the one unexplained act of bad driving is that, through momentary inattention, the defendant found himself about to rear-end the slower car and swerved to avoid it.
31The Crown submits that this inattention, coupled with the fact that the defendant, on his own evidence, was driving 80 km/h in a 60 zone and had consumed two glasses of wine earlier with dinner, satisfies the marked-departure test.
32I cannot find beyond a reasonable doubt that the marked-departure test has been satisfied on this theory. The defendant was speeding but was not challenged on his evidence that he was driving at a speed consistent with the flow of traffic. There is no evidence capable of proving the defendant was impaired. There is no evidence capable of proving that the inattention described in this scenario was anything more than momentary. In R. v. Beatty, 2008 SCC 5, the Supreme Court of Canada explained that a momentary lapse of attention is insufficient to establish a marked departure, as “[e]ven the most able and prudent driver will from time to time suffer from momentary lapses of attention”: see para. 34 per Charron J. and para. 71, per McLachlin C.J.
III. Was failing to safely exit the median lane after entering it a marked departure?
33The Crown argues that criminal fault can be ascribed to the defendant’s conduct for failing to successfully exit the median after having entered it.
34Surveillance video depicts the defendant’s SUV and surrounding traffic in the few seconds before the collision. It suggests that there was no time for careful consideration and that the defendant had no good options. Crown witness Mr. Lee testified regarding the SUV overtaking the slower car and entering Mr. Lee’s lane. His description suggested a rapid sequence of events that left him no time to avoid the SUV. I accept that once the defendant had entered the median lane, he had only seconds to respond, as he rapidly approached the raised median and street sign.
35In the circumstances, I cannot find beyond a reasonable doubt that the defendant’s conduct was a marked departure. He chose to swerve further to the left into oncoming traffic rather than driving directly into the raised median or swerving to the right, where it appears cars remained present. It is impossible for me to say based on the evidence that an alternative would have been less risky. Moreover, imposing criminal liability for the failure to identify and select the best option in the stressful and dangerous moments at issue would be manifestly inconsistent with the high level of negligence required to establish a marked departure.
IV. Disposition
36It is possible that the defendant deliberately swerved into the median to pass the slower car.
37But it is also possible that he had to swerve after a momentary lapse of attention placed him in a situation where the collision was imminent. The latter version of events would not represent a marked departure.
38I am also left in reasonable doubt whether the accident may have been precipitated by a brake malfunction, which would also not establish that the defendant’s conduct represented a marked departure.
39Finally, I cannot conclude that his conduct in failing to safely exit the median lane after entering it represented a marked departure.
40In these circumstances, I am unable to conclude beyond a reasonable doubt that the defendant’s conduct constituted a marked departure from the standard of a reasonable driver.
41I find Mr. Shemesh not guilty.
Released: June 4, 2026
Signed: Justice M. Perlin
Footnotes
- Operating “a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public”: Criminal Code, R.S.C. 1985, c. C-46, s. 320.13(1).
- Proof beyond a reasonable doubt is not proof to an absolute certainty, or proof beyond any doubt; although it falls much closer to absolute certainty than to proof on a balance of probabilities. A reasonable doubt is not a doubt based on sympathy or prejudice, or one that is imaginary or frivolous. It is doubt based upon reason and common sense that arises logically from the evidence or absence of evidence. Proof beyond a reasonable doubt is often described as requiring a conclusion that the trier of fact is sure that each element of the offence was committed. See e.g., R. v. Lifchus, [1997] 3 S.C.R. 320, at paras. 34, 36; R. v. Starr, 2000 SCC 40, at para. 242.
- He initially fled and encouraged his spouse to pretend she had been driving. The only reasonable inference is that he did so because he was concerned about his own liability. But the evidence cannot resolve what potential liability motivated him. There is evidence that he had consumed some alcohol, and she had not. Perhaps he was concerned about an impaired driving charge. On a 911 call, he can be overheard immediately after the crash telling his spouse that the car was not insured. Perhaps he was concerned about that.