Court of Appeal for Ontario

Date: 20220113 Docket: C69370

Miller, Zarnett and Coroza JJ.A.

Between:

Her Majesty the Queen Respondent

and

Ahmad Durani Appellant

Counsel: John M. Rosen and Rameez Sewani, for the appellant Michael Dineen, for the respondent

Heard: January 4, 2022 by video conference

On appeal from the convictions entered on January 30, 2020, and from the sentence imposed on July 23, 2020, by Justice Bernd E. Zabel of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] The appellant was convicted of criminal negligence causing death while street racing and failing to remain under ss. 249.2 and 252(1.3)(a) of the [Criminal Code, R.S.C. 1985, c. C-46][^1]. He was sentenced to a global sentence of 5 years’ imprisonment (less 1 year for pre-sentence custody). The appellant appeals against conviction and sentence. For reasons that follow, we dismiss the appeal in its entirety.

Background

[2] On June 13, 2018, Ms. Viet (Sara) Hoang was tragically killed when a car driven by Warren Lewis crashed into her car as she attempted to make a turn onto Queenston Road out of the parking lot of a bakery in Hamilton. Prior to the crash, Mr. Lewis and the appellant had been street racing on the road. Queenston Road is a heavily travelled portion of Hamilton and the racing occurred around 5:30 p.m., during the weekday rush hour. Witnesses called by the Crown described two cars driving at high speeds, completing dangerous manoeuvres and forcing another driver to take evasive measures to avoid being struck, and generally driving with complete disregard for the safety of the public.

[3] Despite the crash occurring right before the appellant, he did not remain at the scene. He was only tracked down later by the police who examined video footage, discovered Mr. Lewis had been street racing, and identified a car belonging to the appellant’s father as also being involved. When the police spoke to the appellant at his residence, he stated that he “saw the car that hit the other girl’s car” but that he “did nothing wrong”, did not need a lawyer, and was not involved in the accident.

[4] Mr. Lewis and the appellant were tried together. As for the appellant, the issues at trial were whether the Crown had proven beyond a reasonable doubt that he was driving his father’s car during the racing, whether the Crown had proven that the appellant was street racing at the time of the crash, and whether the Crown had proven that the appellant failed to remain because he intended to escape criminal or civil liability for the accident. The appellant did not testify.

Conviction Appeal

[5] The appellant raises the following two grounds of appeal against conviction:

(1) The trial judge erred in his analysis of the actus reus and mens rea components of criminal negligence causing death.

(2) The trial judge erred in applying the presumption found in s. 252(2) of the Criminal Code, R.S.C. 1985, c. C-46 to convict the appellant of failing to remain.

Discussion

Issue 1: Did the trial judge err in his analysis of the actus reus or mens rea components of criminal negligence causing death?

[6] For the purposes of this appeal, the appellant concedes that, based on the evidence at trial, he was driving dangerously and involved in a street race with Mr. Lewis. However, he argues that the actus reus and mens rea components of criminal negligence required the trial judge to consider his individual conduct, perceptions, and responsiveness to risk. The appellant submits that the trial judge wrongfully imputed the mens rea of the offence from one accused to the other and failed to examine his manner of driving or individual level of culpability within the race. The appellant argues that, while dangerous, his driving did not rise to the level of a marked and substantial departure from the norm. For example, the appellant points to evidence that he slowed down as Ms. Hoang’s car pulled out of the bakery parking lot and that there were no skid marks in his lane, suggesting that he was in control of his vehicle at all times.

[7] The appellant submits that, had the trial judge meaningfully analyzed his conduct within the race and his individual level of culpability, he would have concluded that the requirements of criminal negligence were not proven beyond a reasonable doubt.

[8] We do not agree with these submissions. In our view, the conviction for criminal negligence was firmly rooted in the evidence.

[9] The distinction between the degree of fault required for a criminal negligence conviction as opposed to a dangerous driving conviction is one of degree: R. v. Javanmardi, 2019 SCC 54, 439 D.L.R. (4th) 579, at para. 21; R. v. J.L. (2006), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 14; R. v. Alli, 2012 ONCJ 49, 29 M.V.R. (6th) 138, at para. 55.

[10] The Crown was required to prove that the appellant’s actions represented a marked and substantial departure from the conduct of a reasonably prudent driver in circumstances where the appellant either recognized and ran an obvious and serious risk to the life of the public, or, alternatively, gave no thought to that risk: R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 9.

[11] The appellant’s submission that he slowed down and was in control of his car is an attempt to draw a fine distinction between his own driving and Mr. Lewis’ in the split-second before the fatal accident. This is an attempt to artificially parse out the appellant’s actions at one moment during the race. In our view, the trial judge found that the appellant’s overall driving reflected both a wanton and reckless disregard for the safety of others and a marked and substantial departure from the norm. The race started well before the collision and the portion captured by the surveillance video. The crash was a direct result of both men deciding to race each other at speeds of up to 125 km to 130 km per hour in a 50 km zone, at times driving in tandem, other times trying to overtake each other in close pursuit, cutting off motorists and veering in and out of lanes.

[12] While the trial judge’s reasons are somewhat conclusory, we are satisfied that the requirement of a “marked and substantial departure” was inferred from the appellant’s conduct. As the trial judge noted, this was a street race at 5:30 p.m. during a weekday rush hour, on a busy street in the city, with pedestrians on the sidewalks, and bus stops and businesses in the area. These relevant considerations were all mentioned by the trial judge in determining whether the Crown had proven the requisite elements of the offence. Accordingly, we do not give effect to this ground of appeal.

Issue 2: Did the trial judge err by relying on s. 252(2) of the Criminal Code to convict the appellant of failing to remain?

[13] The appellant did not remain at the scene of the crash. Section 252(2) of the Criminal Code allows the court to presume the requisite intent of the driver who leaves the scene, provided there is an absence of evidence to the contrary. [^2] Evidence which is rejected or disbelieved is not “evidence to the contrary”. However, where there is “evidence to the contrary” on the issue of intent, the presumption cannot be relied upon, and the burden is on the prosecution to prove the requisite intent beyond a reasonable doubt: see R. v. Gosselin (1988), 45 C.C.C. (3d) 568 (Ont. C.A.).

[14] The appellant submits that the trial judge erred because there was evidence to the contrary in the appellant’s statements to the police (when officers attended his residence) and the trial judge did not assess this evidence. He argues that, unless these statements were rejected by the trial judge, his statements – that he was “not involved” and “did nothing wrong” – demonstrate his honest but mistaken belief about his lack of involvement and raised a reasonable doubt as to whether the appellant left the scene intending to escape civil or criminal liability.

[15] We are not persuaded by these submissions.

[16] At trial, the appellant’s counsel highlighted the significance of the appellant’s statements to the trial judge. Trial counsel argued that the statements suggested that there was evidence that the appellant did not intend to escape liability for the accident. In closing submissions, trial counsel put it this way:

[D]id [the appellant] intend to escape criminal or civil liability for the accident? Well, the comments that he makes to Officer Mukendi would suggest that he was not. His comments were, if you find he was the driver, were that I didn’t do anything wrong, that car wasn’t in an accident, words to that effect. So that the fifth element is simply not there and it goes to whether or not he knew his vehicle, whether he knew it was involved in an accident or not. [Emphasis added.]

[17] In his reasons, the trial judge stated: “[The appellant] was involved in the accident, which resulted from street racing. From his own admission he knew of the accident, the collision caused by his co-participant in the street racing” (emphasis added). Again, while the trial judge’s reasons are cursory, it is clear that this argument about evidence to the contrary was rejected.

[18] The evidence in relation to the fail to remain charge was overwhelming. The appellant had been street racing prior to the crash and the crash happened right in front of the appellant. Witness testimony showed it was very clear that Ms. Hoang had been severely injured. The fact that the appellant did not stop to offer assistance and left the scene led to the inescapable conclusion that he wished to avoid being held accountable for civil or criminal liability. Having found the appellant participated in a street race in the circumstances set out above, it is hardly surprising that the trial judge found that the appellant’s statements could not reflect an honest belief on the appellant’s part that he was not involved in the accident and had no reason to fear liability. We reject this ground of appeal.

Sentence Appeal

[19] The trial judge imposed a global sentence of eight years on Mr. Lewis [^3] and five years (less twelve months for pre-sentence custody) on the appellant. The appellant submits that the net global sentence imposed by the trial judge was arrived at via an error in principle and is harsh and excessive.

[20] The sentence imposed by the trial judge was effectively the first period of lengthy incarceration for the appellant, but it was reasonable in the circumstances of this case, given the gravity of the offence and the degree of responsibility of the appellant. He participated in a high-speed race on a busy city street during rush hour resulting in horrific consequences. Although relatively young, the appellant was not a first offender and the pre-sentence report indicated he had no insight into his behaviour. The sentence imposed on the appellant was fit, and there is no basis to interfere with the trial judge’s decision to highlight denunciation and deterrence.

Disposition

[21] For these reasons, the appeal from conviction is dismissed. We grant leave to appeal sentence, but the sentence appeal is dismissed.

“B.W. Miller J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”

Footnotes

[^1]: These provisions have since been repealed but were in force at the time of the accident. [^2]: This provision has also since been repealed but was in force at the time of the accident. [^3]: Mr. Lewis’ sentence appeal was dismissed by this court: R. v. Lewis, 2021 ONCA 597, 78 M.V.R. (7th) 183.