Court of Appeal for Ontario

Date: 2022-04-07 Docket: C65994

Fairburn A.C.J.O., Feldman and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Furqan Akhtar Appellant

Counsel: Mark C. Halfyard, for the appellant Andreea Baiasu, for the respondent

Heard: November 30, 2021

On appeal from the conviction entered on July 6, 2018, by Justice Nola Garton of the Superior Court of Justice, sitting with a jury.

Harvison Young J.A.

Overview

[1] On September 20, 2015, just before 8 p.m., Christopher and Susanna Ho, together with Ms. Ho’s mother, were driving home after visiting Ms. Ho’s father in a nursing home on Ellesmere Road in Scarborough. Their route home, which Mr. Ho had driven hundreds of times, took them east on Ellesmere and then left or north onto Midland Avenue. When the road was clear, with no oncoming traffic in sight, Mr. Ho began to turn left. Suddenly he saw lights coming towards them at a very high speed. He had no time to react before two cars travelling westbound on Ellesmere crashed into his car at virtually the same time. Ms. Ho’s 81-year-old mother was killed instantly. Mr. and Ms. Ho survived but suffered serious injuries. The two cars were driven by the appellant, Furqan Akhtar, and his co-accused, Saifullah Dero.

[2] A jury found that the two accused were street racing with each other along Ellesmere, approaching the intersection with Midland. The accused were convicted of twelve offences, including dangerous driving: section 249(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46; criminal negligence: ss. 220 and 221; and street racing causing death and bodily harm: ss. 249.3 and 249.4.

[3] The appellant appeals his convictions on the basis that the trial judge misdirected the jury on dangerous driving, criminal negligence, and the effect of Mr. Dero’s abscondment.

Facts

[4] The Crown’s case relied on the testimony of the Hos, other witnesses to the accident, and forensic evidence. Mrs. Ho described the lights as moving “like bullets or a freight train coming”. Mr. Ho testified that he saw the lights crest the hill on the east side of the intersection, and then “just a split second and the, the lights [are] right in front of my car”.

[5] Another witness, Ms. Villanueva, testified that she believed the appellant’s Lincoln and Mr. Dero’s Mercedes were racing. She thought one car was trying to overtake the other, and that the appellant’s Lincoln overtook Mr. Dero’s Mercedes just before the crash. She described the Lincoln hitting the back of the Hos’ vehicle first, followed by the Mercedes “one, two seconds” later.

[6] Ms. Vllianueva’s evidence was corroborated by that of Detective Constable Spencer, the accident reconstructionist who was qualified as an expert witness at trial. His report opined that the appellant’s Lincoln hit the rear passenger corner of Mr. Ho’s vehicle, crushing its trunk and ripping off its metal bumper. Mr. Dero’s Mercedes then struck the driver’s side front corner of Mr. Ho’s vehicle, crushing the Mercedes’ radiator and engine components.

[7] Detective Spencer extrapolated the speed of the Mercedes and the Lincoln from a one-second surveillance video captured from a nearby property. He estimated that the Lincoln was traveling at 127 kilometers per hour (“kph”) approximately 47 meters away from the point of impact, and the Mercedes was travelling at 129 kph about 63 metres from the point of impact. His calculations were subjected to rigorous cross-examination.

[8] The appellant’s Lincoln was equipped with an Event Data Recorder (“EDR”) programmed to record five seconds of data when certain events occurred, such as a sudden drop in speed or airbag deployment. It indicated that the appellant reached a speed of 144 kph three seconds before the accident. The speed limit on Ellesmere is 60 kph.

[9] The appellant testified at trial and maintained that he never exceeded 80 kph. He challenged the EDR evidence because it had erroneously recorded a passenger in his vehicle seconds before the accident. If the EDR could err on the presence of a passenger, it could also err with respect to speed. The appellant’s theory at trial was that “Mr. Ho jumped in front of moving cars in their lane.”

[10] Mr. Dero also testified, but he did not challenge the EDR speed readings and admitted that his speed was excessive, though he could not say precisely how fast he was driving. He testified that he was driving faster than the flow of traffic and passing cars before reaching the crest of the hill. On cross-examination, counsel for the Crown suggested that Mr. Dero could have been driving as fast as 120 kph. Mr. Dero only indicated that he had not driven in some time. Other witnesses who were in their cars waiting to enter the intersection gave varying estimates as to the speed of the two cars just before the crash.

[11] After the closing submissions were complete, and just before the trial judge delivered her charge to the jury, Mr. Dero absconded. The trial judge cautioned the jury that:

[W]hen deliberating your verdicts with respect to Mr. Dero, you may draw an adverse inference from the fact that he has absconded. However, the fact that he has absconded must play no part in your deliberations with respect to [the appellant]. Mr. Dero’s absconding has nothing whatsoever to do with [the appellant’s] case and must play no role whatsoever when you are deliberating your verdicts with respect to [the appellant].

[12] This forms the basis for one of the grounds of appeal.

Issues

[13] The appellant advances three grounds of appeal against his conviction.

1. The trial judge erred in instructing the jury on the mens rea for dangerous driving and criminal negligence by defining the marked departure test in common parlance terms, rather than the legal tests set out by the jurisprudence.
2. The trial judge erred by giving inadequate jury instruction on the effect of Mr. Dero’s abscondment, particularly with respect to the street racing counts.
3. The trial judge erred in instructing the jury that the appellant’s prior infractions under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), could be considered in assessing his credibility.

[14] For the following reasons, I would dismiss the appeal.

A. The Dangerous Driving and Criminal Negligence Charges

[15] The appellant argues that the trial judge erred in her use of dictionary definitions and “common parlance” terms to explain “marked departure” with respect to dangerous driving, and “marked and substantial departure” with respect to criminal negligence.

[16] With respect to the mens rea for dangerous driving, the trial judge began by instructing the jury to take into account all the circumstances in which their driving occurred, such as the conditions and place and the amount of traffic (both pedestrian and vehicular) that was actually there and that might reasonably be expected to be there at the time.

[17] She then continued:

Dangerous driving involves more than carelessness. Crown counsel must satisfy you beyond a reasonable doubt that [the appellant’s] driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances.

The word “marked” means, in this context noticeable, obvious, distinct, appreciable or conspicuous. As stated, the required marked departure from the standard of care that a reasonable and prudent driver would have exhibited is not established by proof of mere carelessness. Dangerous driving involves more than just carelessness or momentary inattention, unless carelessness or momentary inattention is part of a larger pattern of driving that, considered as a whole, amounts to a marked departure from how a reasonably prudent person would have driven in like circumstances.

What you have to decide in all of the circumstances is not what [the appellant] or Mr. Dero meant to do, but rather whether they drove in a manner that was a marked departure from the manner in which a reasonable, prudent driver would do in the same or similar circumstances. It is the manner in which [the appellant] and Mr. Dero were driving on which you must focus. Crown counsel does not have to prove that [the appellant] meant to endanger the life of Ms. Chan or the lives or safety of anyone else who was, or might have been there at the time.

In the end, after consideration of all the evidence, you will have to decide whether the manner in which [the appellant] and Mr. Dero were driving constituted a marked departure from what a reasonable, prudent driver would do in similar circumstances.

[18] With respect to criminal negligence, the trial judge correctly stated that the jury had to find that the appellant or Mr. Dero had, in the operation of their vehicles, shown a “wanton or reckless disregard for the lives or the safety of others”. She stated that:

To prove this essential element, Crown counsel does not have to prove that [the appellant] or Mr. Dero meant to kill or seriously harm Ms. Chan or anybody else.

The word “wanton” in this context means heedlessly, ungoverned, undisciplined or having an unrestrained disregard for the consequences. The word “reckless” means heedless of the consequences of one’s action, headlong, irresponsible.

[19] She continued to explain that this required a finding of more than carelessness, saying that the jury had to be satisfied that:

[T]he manner in which [the appellant] and Mr. Dero operated their respective vehicles constituted a marked and substantial departure from what a reasonably prudent person would do in the same circumstances. The required marked and substantial departure is not established by proof of mere momentary inattention, unless such momentary inattention is part of a larger pattern that, considered as a whole, establishes a marked and substantial departure from what a reasonably, prudent person would do in the circumstances.

The word “marked” is to be given its everyday meaning, namely, clearly evident, strikingly noticeable, conspicuous. The word “substantial” is also to be given its everyday meaning, namely, considerable in importance, significant.

[20] Counsel for the co-accused did not seriously challenge the dangerous driving counts, but concentrated on the criminal negligence and racing charges. For this reason, there were extensive discussions with the trial judge both before and during the charge, as counsel for the co-accused was particularly concerned that the jury understand the difference between dangerous driving and criminal negligence. As a result, the trial judge delivered the following clarification:

It is not easy to define the precise difference between dangerous driving and criminal negligence in the operation of a motor vehicle. However, with respect to dangerous driving in the operation of a motor vehicle, the driving must amount to more than an absence of reasonable care in the circumstances. It must be dangerous to the public and a marked departure in the standard of care of a reasonably prudent driver, having regard to all of the circumstances.

The more serious or blameworthy kind of negligence in the operation of a motor vehicle is criminal negligence. To be guilty of criminal negligence in the operation of a motor vehicle there must be more than mere dangerous driving. There must be conduct that shows a wanton or reckless disregard for the lives or safety of other people. The driving must be a marked and substantial departure from the standard that we would expect of a reasonably prudent driver in the circumstances.

[21] Following her instructions as to the elements of the offence of dangerous driving, the trial judge reviewed the evidence on these issues including:

i. The fact that the posted speed limit on Ellesmere Road was 60 kilometers per hour; ii. The amount of vehicular and pedestrian traffic at the time was what would have been reasonably expected; and iii. The surveillance videos indicating the amount of traffic that evening.

[22] The trial judge also referred to the respective counsels’ submissions on the evidence. The appellant’s counsel submitted that the data from the restraint control module was not reliable, that the video evidence and Officer Spencer’s calculations were flawed, and that Mr. and Ms. Ho were not reliable witnesses. He also submitted that the estimates of speed provided by witnesses in other cars at the intersection at the time of the crash were lower and supported Mr. Akhtar’s evidence that he was travelling 65 to 70, or perhaps 80 kph. He argued that this did not constitute a marked departure from what a reasonable, prudent driver would do in similar circumstances.

[23] Counsel on behalf of Mr. Dero acknowledged that his client may have been driving as fast as 120 kph but, was likely driving 10 to 20 kph slower than that. He did not dispute the event data recorder, but argued that that evidence did not necessarily correlate to Mr. Dero’s speed. He acknowledged that it was open to the jury to find that Mr. Dero was driving at an excessive speed as he hit the crest of the hill toward the intersection and that this met the elements of dangerous driving.

[24] In this court, the appellant focuses his submissions on the dangerous driving counts. He submits that the charge, in relying on common parlance, gave rise to two problems that could have confused the jury and prejudiced the appellant. First, using a common parlance definition of a legal term – or term of art – may employ descriptors that give a misleadingly low, and therefore prejudicial, understanding of the marked departure test. He highlights the trial judge’s use of “noticeable” and “appreciable” that, in his view, falls short of a marked departure.

[25] Second, the appellant claims that the trial judge failed to explain that the marked departure test is a “matter of degree” and that the “lack of care must be serious enough to merit punishment” or criminal sanction – i.e., a marked departure from the standard of a reasonably prudent driver. The prejudice here arises from the fact that the appellant’s own evidence was that he was driving no faster than 80 kph. That would not have constituted dangerous driving given the conditions at the time and the flow of traffic. However, the jury could have, the appellant argues, accepted his evidence as to speed and still convicted for dangerous driving because his speed might have been “noticeable”.

[26] Further, though the appellant does not take as strong an issue with the criminal negligence charge, he still submits that the trial judge erred in defining the word “marked” with different words than those used in the dangerous driving instruction. This charge was thus confusing. That said, the appellant also acknowledges that the criminal negligence charge came “much closer to the test” because it was qualified with terms like “clearly” and “strikingly” and therefore suggested a measure of degree which was lacking from the dangerous driving charge.

[27] The respondent submits that the trial judge made no error in explaining the mens rea for dangerous driving and criminal negligence. The jury charge correctly and sufficiently equipped the jury to appreciate the central mens rea issue, namely that the departure from the expected standard had to go beyond that required for civil liability and “serious enough to merit punishment.” The charge accomplished this by telling the jury that the departure had to be “marked” for dangerous driving, and “marked and substantial” for criminal negligence, that a higher degree of negligence was required than for careless driving, and that a criminal conviction required more than carelessness or momentary inattention.

[28] The respondent further argues that references to dictionary synonyms for terms such as “marked” or “substantial” is not inherently objectionable, and it did not dilute the required legal standard for a criminal conviction here. The trial judge correctly and comprehensively set out the requisite degree of fault for the jury. In any event, the respondent argues that the appellant was not prejudiced in the circumstances given the evidence and the mid-charge instruction given by the trial judge.

(1) The Principles

[29] It is clear that the actus reus of the dangerous driving offence is conduct which, viewed objectively in all the circumstances, constitutes a danger to the public actually present or who may reasonably be expected to be present. It is the manner in which the vehicle was driven that is at issue, not the consequences of that driving: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 35. However, the consequences may assist the trier of fact in assessing the risk involved: R. v. Mueller (1975), 29 C.C.C. (2d) 243 (Ont. C.A.).

[30] With respect to the mens rea for both dangerous driving and criminal negligence, the starting principle is that penal negligence must exceed the objective norm for establishing civil negligence: “A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability of penal negligence”: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 7.

[31] In Beatty, the driver of a pickup truck had suddenly veered into oncoming traffic, causing a serious accident in which all three occupants of the oncoming car were killed. There was no doubt that the actus reus of dangerous driving was made out in that the driver crossed the centre line, but the evidence indicated that the dangerous conduct was only due to a momentary lapse of attention. There was no evidence of improper driving before the car momentarily crossed the centre line, nor was there any evidence that the driver was under the influence of intoxicants. Charron J., writing for the majority, set out the mens rea for dangerous driving, at para. 7, as follows:

The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a “marked departure” from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

[32] At para. 8, Charron J. went on to explain that the modified objective test for penal negligence cannot ignore the actual mental state of the accused:

[U]nlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. [Emphasis in original.]

[33] Instructing a jury on dangerous driving and criminal negligence has long been recognized as a challenging endeavor. As Sopinka J. noted in R. v. Anderson, [1990] 1 S.C.R. 265, at p. 269:

In approaching the critique of a trial judgment dealing with a charge of criminal negligence, one can only have profound sympathy for the plight of the trial judge. This area of the law, both here and in other common law countries, has proved to be one of the most difficult and uncertain in the whole of the criminal field.

[34] The Supreme Court, in R. v. MacGillivray, [1995] 1 S.C.R. 890, held that it is not an error of law for a judge to use words other than “marked” to describe the level of departure from the standard of care that a reasonable person would observe in the accused’s situation as long as the word is truly a synonym. In that case, the trial judge had used the term “significant” instead of “marked”, which the court found to have been more stringent and thus not prejudicial to the accused. However, Cory J. stated that, while using a term that is clearly synonymous to “marked” will not constitute an error of law, it is nevertheless preferable to use the words employed by the Supreme Court in R. v. Hundal, [1993] 1 S.C.R. 867; MacGillivray, at para. 14. The clear message is that, while it is tempting to employ apparent synonyms in an attempt to explain or flesh out the meaning of “marked” to a jury, a trial judge who does so risks falling into error.

(2) The Principles Applied

[35] I would not give effect to this ground of appeal for a few reasons. At the outset, I would observe that there were extensive pre-charge discussions between counsel and the trial judge. There were also discussions during the charge that resulted in some modifications, particularly with respect to the distinction between dangerous driving and criminal negligence. Trial counsel were in the best position to understand the triable issues in this case and whether the charge adequately addressed those issues. Neither counsel made any objections to the charge.

[36] Second, I disagree that the trial judge erred by using synonyms to explain that the departure from what a reasonable, prudent driver would do in the same circumstances had to be a marked one to warrant criminal punishment. Although it would have been better had the trial judge altogether stayed away from synonyms, no one objected to their use and, importantly, the ones used did not inject confusion into the charge. At the end of the day, read in totality, the charge clearly conveyed what a “marked” and a “marked and substantial” departure from a reasonable, prudent driver meant, and eschewed any notion of mere carelessness or momentary inattention.

[37] Third, I disagree with the suggestion that the trial judge failed to instruct the jury that dangerous driving is a measure of degree. She explicitly told them that the fault requirement must be higher than civil negligence. In her charge, she tells the jury that “[d]angerous driving involves more than just carelessness or momentary inattention”. Further, as a result of Mr. Dero’s counsel’s request, she delivered a clarifying instruction, as set out above, that fleshed out the distinction between dangerous driving and criminal negligence. That clarifying instruction clearly conveyed the spectrum of criminal responsibility represented by the two charges.

[38] Fourth, I do not accept the suggestion that the jury may have convicted the appellant on the mere basis that he admitted to driving at a speed up to 80 kph because the jury could have found that speed to be “noticeable”. The record in this case belies that suggestion, particularly the convictions for street racing. Those convictions were well founded in the evidence, including Mr. Dero’s evidence regarding the speed at which the cars were travelling and the evidence of the accident reconstructionist.

[39] Finally, in the event that the charge on the street racing counts was free of error, a subject I will arrive at soon, there can be no doubt that the two accused were also guilty of dangerous driving and criminal negligence. Indeed, the parties agreed that if the appellant and his co-accused were involved in a street race, this would effectively amount to proof on all counts.

[40] This brings me to the submissions on the trial judge’s adverse inference instruction and its effect on the street racing counts.

B. The Adverse Inference Charge

[41] The appellant does not submit that the trial judge erred in her charge with respect to her instructions to the jury on street racing per se. Rather, he argues that her charge was inadequate with respect to the effect of her finding that Mr. Dero had absconded. The appellant argues that the trial judge’s instruction on the adverse inference resulting from Mr. Dero’s abscondment should have been more precise, and specifically tailored to avoid Mr. Dero’s consciousness of guilt bleeding into, or bolstering, the appellant’s culpability.

[42] Section 475(1) of the Criminal Code provides as follows:

475 (1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of his trial,

(a) he shall be deemed to have waived his right to be present at his trial, and

(b) the court may

(i) continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or

(ii) if a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance,

but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.

(2) Where a court continues a trial pursuant to subsection (1), it may draw an inference adverse to the accused from the fact that he has absconded.

[43] During the pre-charge discussions, in the wake of Mr. Dero’s abscondment, the trial judge stated that the charge would follow the language of s. 475(2) and need not include more detail. Counsel understood that the adverse inference would go to consciousness of guilt. The Crown also sought an adverse inference as to Mr. Dero’s credibility since he had testified at trial and put his character in issue. The appellant’s lawyer was concerned that an adverse inference on credibility could reflect very badly on the appellant. In response, the trial judge added the caution that the adverse inference against the co-accused should have no role in the jury’s deliberations with respect to the appellant. The appellant’s lawyer took no issue with this charge and the trial judge proceeded to charge the jury as follows:

I just wanted, I instructed you yesterday, I advised you that the Criminal Code provides that a trial can continue in the absence of an accused and that is what we are doing in this case. We are continuing the trial in the absence of Mr. Dero. I have found that Mr. Dero has absconded, and he has absented himself from the trial and that being the case you may draw an adverse inference from the fact that he has absconded.

Just before we go for the break I wanted to remind you that, as I instructed you earlier, when deliberating your verdicts with respect to Mr. Dero you may draw an adverse inference from the fact that he has absconded. However, the fact that he has absconded must play no part in your deliberations with respect to [the appellant]. Mr. Dero’s absconding has nothing whatsoever to do with [the appellant’s] case and must play no role whatsoever when you are deliberating your verdicts with respect to [the appellant].

[44] Despite this limiting instruction, the appellant submits that the instruction did not go far enough, particularly in light of the street racing counts. As I noted earlier, the parties agreed that, if the appellant and Mr. Dero were involved in a street race – particularly at the speeds the Crown alleged they drove – this would effectively amount to proof of all the counts, as it would be a deliberate act of dangerous or negligent driving. As the co-accused’s counsel told the jury:

Because if he was racing his car then a finding of guilt on any of the counts 7 to 12, the racing charges, is going to be available. And that effectively provides you with a legal shortcut to a conclusion of either dangerous operation or criminal negligence.

[45] The act of racing requires joint participation or mutuality. The previous version of s. 2 of the Code defines “street racing” as “operating a motor vehicle in a race with at least one other motor vehicle on a street, road, or highway or other public place.” [^1] As counsel for the appellant put it: “You can’t have a one-horse race.” Later in the closing submissions, the appellant’s lawyer told the jury:

But to prove racing, the Crown must prove an engagement by two or more people to the race. Her Honour will give you the law in this regard. And in other words, it takes two to tango. There can’t be a one, there can’t be a one-person race.

[46] Moreover, the trial judge defined street racing to the jury as a mutual endeavour, involving the participation of both accused. She set out the racing counts in the charge to the jury as follows:

In order to establish street racing the Crown must establish that [the appellant] and Mr. Dero engaged in a race, a contest of speed. This essential mutuality component requires evidence that both were jointly and intentionally involved in a race.

[47] The appellant submits that the trial judge erred in failing to give an adverse inference instruction that distinguished between making an adverse inference as going to Mr. Dero’s credibility and one going to consciousness of guilt.

[48] With respect to an adverse inference against Mr. Dero’s credibility, the appellant argues that the jury should have been told not to reason that, because his co-accused admitted to driving well in excess of the speed limit, they could apply the adverse inference to the appellant as well. Further, the jury should have been told not to reject the exculpatory portions of Mr. Dero’s evidence that were helpful to the appellant.

[49] With respect to the adverse inference of consciousness of guilt, the appellant submits that this inference made it “nearly impossible to conclude the appellant was not also racing” given the mutuality requirement of the offence. Therefore, the appellant argues that the instructions needed to set out that the jury could not infer that he had a guilty mind simply because Mr. Dero absconded.

Issue #1: Impact of an adverse inference in relation to credibility

[50] The appellant submits that the adverse inference instruction was proper as far as it went but that it should have gone further. As the adverse inference was only admissible against Mr. Dero, the jury should have been instructed that, if they were assessing Mr. Dero’s evidence in terms of his admissions - particularly his admission that he was driving well above the speed limit - this evidence could not be bolstered on account of his absconding, nor could it be used against the appellant. Moreover, the jury should have been told not to reject parts of Mr. Dero’s evidence that assisted the appellant - for instance, that they were not racing or that he saw no passenger in his vehicle - simply because he had absconded.

[51] I would not accept this submission.

[52] To begin with, it is entirely appropriate for the adverse inference against the co-accused’s credibility to have an indirect impact on the appellant because the jury can consider the totality of the evidence it heard, including evidence both for and against the appellant, in determining the appellant’s culpability.

[53] Mr. Dero chose to take the stand at trial. It was open to the jury to apply an adverse inference against his credibility when he absconded since he had opened the door to having the trustworthiness of his evidence challenged by testifying.

[54] The adverse inference drawn against the co-accused was part of the totality of the evidence that the jury heard and could permissibly impact the jury’s overall assessment of the Crown’s case. As this court has noted: “[I]t is perfectly proper for the jury’s assessment of the overall credibility of one co-accused to be influenced by the totality of the evidence they have heard, including evidence relating to another co-accused”: R. v. Salah, 2015 ONCA 23, 328 O.A.C. 333, at para. 122, citing R. v. Rojas, [2008] 3 S.C.R. 111, at paras. 24-25. Even where a co-accused pleads guilty, the accused’s trial is not rendered unfair by the jury considering a co-accused’s evidence if they are warned not to draw an adverse inference against the accused.

[55] In this case, the trial judge cautioned the jury that an adverse inference should not be drawn against the appellant. The appellant got the benefit of the co-accused’s evidence, untainted by his abscondment, to the extent that it assisted the appellant and, similarly, the disadvantage of the co-accused’s evidence to the extent that this evidence could be used against him. For example, it was open to the jury to accept Mr. Dero’s evidence as to the speed he was driving and reject the appellant’s evidence that he was driving no faster than 80 kph.

[56] In my view, the trial judge could not have gone farther than explicitly instructing the jury that Mr. Dero’s abscondment could “play no role whatsoever” in the jury’s deliberations. The charge effectively shielded the appellant from the effect of Mr. Dero’s abscondment.

Issue #2: Impact of adverse inference in relation to consciousness of guilt

[57] A trial against an accused is not rendered unfair when a co-accused absconds, provided that the jury is cautioned that they are not to draw an adverse inference against the remaining accused: R. v. Garofoli (1988), 64 C.R. (3d) 193 (Ont. C.A.), rev’d on other grounds, , [1990] 2 S.C.R. 1421. While it is preferable for a trial judge to caution the jury that an adverse inference should not be drawn against an accused by reason of the fact that his co-accused absconded during the trial, failure to do so does not necessarily result in a miscarriage of justice: R. v. Mitchell, [1979] O.J. No. 95 (C.A.), at para. 3.

[58] Here, the trial judge did caution the jury, in strong terms, not to use the adverse inference against the appellant. The appellant, however, states that a caution was not enough. Instead, the jury should have been told not to draw an adverse inference in relation to street racing because of the mutuality requirement of that offence. Essentially, he argues that the adverse inference that Mr. Dero absconded because of his consciousness of guilt could, at least theoretically, tip the balance towards a finding that Mr. Dero was street racing. Due to the mutuality requirement of the offence, this could prejudice the appellant if, for example, but for an adverse inference as to his consciousness of guilt, Mr. Dero would have been acquitted on that count.

[59] The mutuality component of street racing requires evidence of a common intention between the two parties to encourage or incite each other to race. As described by Hill J. in R. v. Menezes (2002), 50 C.R. (5th) 343 (Ont. S.C.), at para. 101:

By their actions, those who race at excessive speeds on a public roadway assist one another in creating a dangerous risk. Each encourages and incites the other. The drivers either deliberately assume the risk of danger to themselves and others or, in the circumstances of the degree of departure from reasonably prudent and lawful driving standards, can be taken as having an unrestrained disregard for the consequences of their actions. It is the mutuality of their contribution toward the rivalry of speed which creates a singular hazardous situation.

[60] Evidence of a race is often drawn from circumstantial evidence such as synchronized or in-tandem aggressive movements of two vehicles, marked by high speed and close proximity over a material distance, often accompanied by abrupt lane changes, blocking, or bold manoeuvres in and out of traffic to name a few indicia: R. v. Machado (2010), 92 M.V.R. (5th) 58.

[61] Each case falls to be decided on its own set of facts. The actus reus and mens rea components of the offence require the trier of fact to consider each party’s overall driving conduct: R v. Durani, 2022 ONCA 17, at para. 11. For example, one party accused of street racing may raise an intervening event, such as evidence that he or she has withdrawn from the race, to avoid culpability. However, absent an intervening event, when two drivers engage in street racing, both are considered in law to have caused injury to those harmed by their racing: R. v. Williams, 2020 ONCA 30, at para. 15.

[62] Therefore, as a matter of law, it is not true that the finding of guilt of one co-accused to an offence containing a mutuality requirement must result in a finding of guilt of another co-accused: R. v. Guimond, [1979] 1 S.C.R. 960 at 977.

[63] In effect, the appellant’s position reads into s. 475(2) a limitation that does not exist: that an adverse inference against the absconding accused cannot be drawn in an offence with a mutuality requirement because one accused’s consciousness of guilt means the guilt of the other. This is not correct.

[64] Here, the trial judge correctly instructed the jury to consider each charge separately for each co-accused. The charge instructed them to consider all of the circumstances to assess whether there had been a race, to consider the testimony of each accused to assess whether they believed some, none, or all of it and the burden on the Crown to prove the essential elements beyond a reasonable doubt against each accused.

[65] Even if it were theoretically possible that the adverse inference against one accused might tip the balance on road racing and result in a conviction of both accused when it might otherwise have been an acquittal or inconsistent verdicts, that scenario was not borne out by the evidence in this case. The evidence of road racing was supported by the record, including:

• The relative speeds of the vehicle as shown by the video and the EDR;
• Mr. Dero’s evidence that he was passing other vehicles before the appellant passed him;
• The appellant’s own evidence that he passed Mr. Dero on the downslope towards the intersection;
• Det. Spencer’s accident reconstruction that showed the appellant hitting Mr. Ho’s vehicle first, followed seconds later by Mr. Dero; and
• The evidence of Ms. Villanueva who said they appeared to be racing as they approached the intersection.

[66] While some of the witnesses at the scene did estimate the speed of the two cars as quite low, the objective and expert evidence supports the jury’s conclusion. And, while Mr. Dero denied racing, his concession on his speed and the evidence showing that the appellant passed him just before the crash shows that the accused were driving very fast indeed.

[67] The appellant was not entitled to effectively immunize himself from the effect of Mr. Dero’s evidence with the evidence as a whole before the jury. It was open to the jury to find, as it did, that the two men had been engaged in street racing, and I find no error in the trial judge’s instruction to the jury.

C. The Highway Traffic Act Instruction

[68] Finally, the appellant submits that the trial judge erred in her discussion of the appellant’s HTA offences as a prior inconsistent statement that could affect the jury’s assessment of his credibility.

[69] In his direct examination, the appellant testified that he had a “clean” driving record when, in fact, he had a 2014 conviction for speeding and failing to produce his insurance. The trial judge referred to this evidence at two points in her charge: as an example of a prior inconsistent statement given by the appellant, and generally in relation to his credibility and character. In its use as a prior inconsistent statement, the trial judge noted:

Inconsistency may also arise when a witness says different things within the course of the trial itself, for example, when a witness says something different in examination in-chief than he later says in cross-examination. For example, in the present case, [the appellant] was asked about his driving record during his examination in-chief. He stated that it was clean and that he never even had a parking ticket. He denied having any speeding tickets. After the lunch break his lawyer showed him his driving record, which includes a conviction for speeding and failing to produce his insurance card. [The appellant] testified that he got a ticket in 2013 for going 64 kilometres an hour in a 50-kilometre zone. In cross-examination [the appellant] was asked why when he was initially asked about his driving record he stated that it was clean and made no mention of a speeding ticket, he explained that he thought the question referred only to convictions within the last three years. The driving record indicates that [the appellant] on July 8th, 2014 of going 72 kilometres an hour in a 50-kilometres an hour zone and that he received three demerit points. On that same date he was also convicted of failing to produce his insurance card. [The appellant] insisted that he was only convicted of going 14 or 15 kilometres over the speed limit, but acknowledged that he got the speeding ticket on the same day that he got the ticket for not having his insurance card. He did not remember receiving the demerit points.

If you find that there is an inconsistency in what [the appellant] initially said when he was asked about his driving record, and what he later said about it, consider the fact, nature and extent of any differences between the versions in deciding whether or how much you will believe of or rely upon his testimony in deciding this case. Bear in mind that not every inconsistency will be significant. You must also take into account any explanation [the appellant] gave for any inconsistency in his testimony.

[70] Later in the charge, she commented on the appellant’s prior HTA convictions in her discussion about good character, and in relation to the appellant’s credibility generally. The trial judge instructed the jury as follows:

[The appellant] also testified that he had a clean driving record but later acknowledged that he had been convicted of the Highway Traffic Act offences of speeding and failing to produce his insurance card. As I earlier stated, you must not use the fact that [the appellant] has previously been convicted of an offence in the past as evidence that he committed the offences charged or that he is the sort of person who would commit the offences charged. However, you may use the fact and nature of a prior conviction to help you decide how much or how little you will believe of and will rely upon [the appellant’s] evidence in deciding this case.

A previous conviction does not necessarily mean that you cannot or should not believe or rely upon the testimony of [the appellant] to help you decide this case. Some convictions, for example, convictions involving dishonesty, may be more important than others in deciding how much or how little you would believe or rely upon the testimony of a witness. Other convictions, such as driving offences, may be less important. Consider as well whether the previous convictions are recent or happened a number of years ago. An old conviction may be less important than a more recent one. Use your common sense and experience.

Through [the appellant’s] testimony you have heard evidence of his good character. You may also consider the evidence of his previous Highway Traffic Act convictions to help you decide how much or how little you will believe of and rely upon his testimony regarding his good character. However, it is very important that you understand that you must not use the fact or nature of the prior convictions to decide or help you decide that [the appellant] is the sort of person who would commit the offences charged.

[71] The appellant submits that the trial judge’s instruction that they could use the HTA offence akin to a prior criminal conviction in assessing his credibility was unduly prejudicial and unfair, particularly given the similarity of the HTA offence to the matters before the court: see R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 738-39. The jury had already been instructed that, as a potential prior inconsistent statement, they could take it into account in assessing the appellant’s credibility.

[72] The respondent refers to the pre-charge conference, at which the trial judge initially took the view that the HTA record was only relevant to the appellant’s credibility assessment, but made the more extensive and impugned instructions after his trial counsel advised that he was going to rely on the appellant’s good character for the purpose of both enhancing his credibility and making him less likely to commit the offences.

[73] I would agree that, read in its entirety, this instruction went too far and was prejudicial to the appellant. Despite the fact that the trial judge cautioned the jury that they were not to reason that the accused’s inconsistent statements meant that he was the sort of person who would commit these offences, the prejudice was implicit both from the fact that these were similar to the charges at issue, and thus invoked the heart of Corbett, and from the fact that the trial judge devoted undue attention to the point.

[74] That said, I am satisfied that this is a circumstance that justifies the application of the curative proviso s. 686(1)(b)(iii) of the Code. The appellant’s credibility was significantly undermined when he first volunteered that he had a clean driving record, without even a parking ticket, and then insisted that the official driving record was inaccurate. Any vestigial effect on his credibility from the trial judge’s Corbett instruction was so minor that any error in this regard caused the appellant no substantial wrong or miscarriage of justice. As discussed earlier in these reasons, the appellant testified in a number of other respects, such as his speed, his suggestion that neither his Lincoln nor Mr. Dero’s Mercedes appeared in the video, and that the EDR was inaccurate. The jury had ample grounds to conclude that the appellant was not credible in a number of key elements of his evidence. Accordingly, the error was harmless, and would not have affected the outcome: R. v. Samaniego, 2022 SCC 9, at para. 78. I would reject this ground of appeal.

Disposition

[75] For these reasons, I would dismiss the appeal.

Released: April 7, 2022 “J.M.F.” “A. Harvison Young J.A.” “I agree Fairburn A.C.J.O.” “I agree K. Feldman J.A.”

[^1]: This definition of street racing has been repealed from the Code. Street racing is now considered an aggravating factor in the dangerous operation of a conveyance in s. 320.22 of the Code. The current provision warns that it is an aggravating factor to operate a motor vehicle “in a race with at least one other person or in a contest of speed”: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, s. 12.