COURT OF APPEAL FOR ONTARIO DATE: 2024-02-23 DOCKET: C70356
Trotter, Thorburn and Sossin JJ.A.
BETWEEN
His Majesty the King Respondent
and
Jamil Ahmad Qureshi Appellant
Counsel: Matthew R. Gourlay and Tara Boghosian, for the appellant Jeremy Tatum, for the respondent
Heard: December 7, 2023
On appeal from the conviction entered by Justice Adriana Doyle of the Superior Court of Justice without a jury, dated April 23, 2021, with reasons reported at 2021 ONSC 1576, and from the sentence imposed on December 13, 2021.
Thorburn J.A.:
Background
[1] The appellant, Jamil Ahmad Qureshi, seeks to set aside his conviction on three counts of dangerous driving causing bodily harm and two counts of dangerous driving causing death, pursuant to ss. 249(3) and (4) of the Criminal Code, R.S.C. 1985, c. C-46. He also appeals his three-year sentence.
[2] The convictions stem from a tragic traffic accident on Highway 401, near the exit to Prescott.
[3] On the evening of November 27, 2017, an emergency crew was at the scene of an accident in one of the westbound lanes of Highway 401 (“the westbound collision site”). The westbound collision site was well lit and the Highway at this location is flat and straight, with a maximum speed limit of 100 km/h. There are two westbound lanes and two eastbound lanes.
[4] At approximately 10:27 p.m., a tractor trailer (the “Truck”) driving along the right eastbound lane on Highway 401 slowed suddenly and significantly near the westbound collision site. As a result, traffic behind the Truck came to a sudden slowdown. The vehicle immediately behind the Truck (the “International”) put on its four-way flashers.
[5] Mr. Qureshi was driving a Volvo tractor trailer in the right eastbound lane, five vehicles behind the Truck that slowed down and four vehicles behind the International that had its four-way flashers on. Mr. Qureshi was travelling 104 km/h for at least 90 seconds before the collision.
[6] Mr. Qureshi attempted to brake 0.25 seconds before impact but failed to stop in time to avoid a collision. His vehicle collided with the vehicle ahead of him in the right traffic lane, which in turn collided with other vehicles. The resulting collision involved five vehicles. Two people died and three others were injured.
[7] The Truck that caused the sudden slowdown of the traffic on the highway, fled the scene and has not been identified.
[8] Mr. Qureshi conceded at trial that his failure to stop his vehicle resulted in the deaths and bodily harm. However, he argued that neither the act of dangerous driving nor the fault or mental element of dangerous driving was made out.
[9] The central issue at trial was whether Mr. Qureshi’s actions were a marked departure from the standard of care expected of a reasonable person in the circumstances. A marked departure is a necessary element for a conviction for dangerous driving.
The Trial Judge's Decision
[10] The trial judge correctly instructed herself on the elements of dangerous driving.
[11] She noted that, as set out in s. 249 of the Criminal Code, (i) the actus reus of the offence requires driving in a manner that is “dangerous to the public, having regard to all of the circumstances” and that (ii) the mens rea or fault element requires a marked departure from the standard of care that a reasonable person would observe in the circumstances. The onus is on the Crown to establish beyond a reasonable doubt “how and in what way” the accused’s driving went beyond carelessness and reached the level of a marked departure from the standard of care, in light of all of the evidence.
[12] The trial judge found that the actus reus was established beyond a reasonable doubt. She acknowledged that Mr. Qureshi was not intoxicated, he was driving only 4 km/h over the 100 km/h speed limit, and fatigue, substance abuse, weather, visibility and vehicular malfunction were not factors that contributed to the accident. However, she held that his speed was excessive given the traffic flow and he should have proceeded more cautiously and at a slower speed. This, in combination with the failure to take other possible steps to avoid a collision, led her to find that in all the circumstances, the driving was dangerous to the public.
[13] The trial judge found that the mens rea or fault element was also established beyond a reasonable doubt as she held that Mr. Qureshi’s failure to slow down and stop in time to avoid a collision was a marked departure from the standard of care expected of a reasonable person.
[14] First, she held that a reasonable person would have foreseen the risk and taken steps to avoid it. In so doing, she considered the speed Mr. Qureshi was travelling, the length of time it took for Mr. Qureshi to react, the road conditions, his failure to act until .25 seconds before the collision, and what others did in the circumstances.
[15] She held that (i) the collision occurred approximately 100 metres away from the westbound collision site; (ii) for at least 90 seconds before the collision, Mr. Qureshi was travelling at 104 km/h or 29 metres per second; and (iii) at some point prior to the accident, Mr. Qureshi saw the International with its four-way flashers on, other vehicles in front of him slow down, and thought the Truck was stopped. She noted however, that “[t]he Court cannot determine beyond a reasonable doubt the exact distance Mr. Qureshi was when he observed the International’s [truck] flashing lights. He said 7-8 truck lengths then he stated 10 to 12 truck lengths in his interview. But what the Court finds beyond a reasonable doubt is that that night, Mr. Qureshi did see visual cues ahead of him.” No evidence was adduced to explain what distance Mr. Qureshi was referring to when using the term “truck lengths”. 0.25 seconds before the collision, he put on the brakes in his vehicle.
[16] The trial judge held that a driver in Mr. Qureshi’s circumstances must “proceed with vigilance and caution when there are visual cues up ahead that there are potential hazards that could become emergent hazards in your lane.”
[17] She noted that the driving conditions were good and that professional drivers are required to exercise more care and vigilance than the average driver. She held that a reasonable person in Mr. Qureshi’s position “would have foreseen that doing nothing when approaching a tractor trailer that has its four-way flashers and vehicles braking can create a very real risk of a collision occurring within seconds.”
[18] Second, the trial judge held that this was not a momentary lapse of attention and that Mr. Qureshi’s behaviour was a marked departure from the standard of care expected of a reasonable person in the circumstances. Her reasons were essentially the same as her reasons for finding that a reasonable person would have foreseen the risk and taken steps to avoid it: that is, Mr. Qureshi failed to react to warning signs or take any action although he was a professional driver familiar with the road. In the trial judge’s words as set out at paras. 519-20 of her decision:
- He failed to take any evasive steps to avoid the collision until .25 seconds before the first collision with the Dodge as by the time he had to realize he had to do something he was too close;
- Despite numerous warning signs up ahead, he took absolutely no action when he was first alerted to those warning signs;
- Although there were no streetlights, the area of the collision had enough lighting in various forms, including the well-lit westbound recovery and the brake lights up ahead, to have alerted a reasonable driver to proceed with caution;
- He failed to de-activate his cruise control, or slow down, when he saw cues ahead;
- He did not honk, brake or ease up on the accelerator as he approached what appeared to be a slowdown of traffic;
- He did not put on his hazard lights (four-way flashers) or do something to warn others behind him that there was something up ahead; and
- Travelling on the 401 which he did twice per week, as per his statement, he would have been familiar that people slow down on this highway: see Tabanao.
This case is more than just carelessness. As a professional driver with five years of experience travelling on a major highway frequented and travelled by numerous vehicles, a reasonable driver who is driving a heavy truck that can be extremely deadly to others on the highway must drive with the standard of care expected of him.
The Grounds of Appeal
[19] Mr. Qureshi does not dispute the trial judge’s conclusion that the act or actus reus of dangerous driving was met. Rather, Mr. Qureshi’s position on this appeal is that the fault element or mens rea of driving dangerously was not present.
[20] In oral submissions, counsel for the appellant clarified his position that the legal errors should be considered as part of the unreasonable verdict analysis, as they demonstrated the unavailability of conviction.
[21] Mr. Qureshi raises four grounds of appeal:
[22] First, Mr. Qureshi claims his conviction for dangerous driving was unreasonable as the trial judge’s finding that this was not a “momentary lapse” is not supported on the evidence or the trial judge’s factual findings. The evidence at trial shows that the accident likely took place in under 5 seconds and certainly less than 10 seconds, and the trial judge herself noted that the risk of collision emerged within seconds. Mr. Qureshi claims the only inference that can be drawn is that he had a momentary lapse of attention while otherwise driving responsibly. That alone, he says, cannot result in a conviction for dangerous driving.
[23] Second, Mr. Qureshi claims that even if there is some evidence that could support a conviction, a new trial is warranted as the trial judge erred in her legal analysis of the mental element of dangerous driving. He claims the trial judge erred by (i) misapprehending the type of momentary conduct that can constitute criminal negligence; (ii) failing to quantify the period of inattention though it was likely less than 5 seconds and no more than 10 seconds; and (iii) conflating the civil and criminal negligence standards and therefore failing to explain how Mr. Qureshi’s conduct constituted a marked departure. Mr. Qureshi claims there must be some element of active misconduct. As such, Mr. Qureshi says that while he made an error in judgment resulting in tragic consequences, it was not a criminal act.
[24] Third, Mr. Qureshi claims the trial judge failed to consider another plausible theory, namely that he was checking his mirror to change lanes and did not simply fail to react.
[25] Fourth, Mr. Qureshi appeals his three-year sentence. He claims the trial judge erred in holding that “the only way to express society’s condemnation of Mr. Qureshi’s crimes” was to impose a period in the federal penitentiary as “[t]hese types of grave offences, by an otherwise good person, create significant risks to the community, and that is why the court is required to impose a jail term.” In so doing, Mr. Qureshi claims the trial judge overemphasized general denunciation and deterrence and implied that a conditional sentence will never be appropriate for dangerous driving causing death.
The Test to Establish the Necessary Intention for Dangerous Driving
[26] The mens rea of dangerous driving is proven where the Crown can establish beyond a reasonable doubt, on the basis of all the evidence, including the accused’s state of mind, that his conduct amounted to a marked departure from the standard of care a reasonable person would observe in the circumstances: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43. Dangerous driving should be sufficiently egregious in all of the circumstances to warrant criminalization, compared to other less serious forms of bad driving, such as careless driving: Beatty, at paras. 36-43 and 47-49.
[27] The issues in deciding whether the mens rea for dangerous driving has been established are:
- Whether a reasonable person would have foreseen the risk and taken steps to avoid it; and
- Whether Mr. Qureshi's failure to do so constitutes a marked departure from the standard of care.
[28] The following cases discuss how to address these issues:
[29] In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 28 and 30, Cromwell J. for the majority underscored the importance of the fault element for dangerous driving offences:
While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment.
The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness. [Italics in original; underlining added.]
[30] He then set out, at paras. 36 and 40, a two-step process to determine whether the fault element has been established:
It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.
[T]he trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. …The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. [Italics in original; underlining added.]
[31] In R. v. Willock (2006), 40 C.R. (6th) 151 (Ont. C.A.), at para. 31, Doherty J.A. wrote that,
conduct occurring in a two to three second interval can amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others. However, conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum. [Emphasis added.]
[32] More recently, in R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 22, Martin J. for the majority affirmed that a momentary lapse in attention and judgment will not usually raise criminal liability unless the underlying conduct, when assessed in totality against the reasonable person standard, is a marked departure from the norm. Martin J. underscored, at paras. 26-27, the importance of considering the totality of the circumstances when undertaking the mens rea analysis:
A full analysis in this case would have considered the duration of the speeding, as well as the accused’s control of the car (he switched lanes and then accelerated), the magnitude of speeding (almost three times the speed limit), the location of speeding (approaching a major intersection), and the accused’s awareness of at least two vehicles at the intersection as he approached it.
The duration and nature of the accused’s conduct are only some of the factors to be considered with all of the circumstances in the mens rea analysis. They are not factors that can be taken out of context. … Courts must be careful to avoid fettering the analysis in Roy by adopting hard-and-fast rules regarding when isolated factors will or will not be marked departures. Although case law may be helpful in providing examples of what has previously been determined to be a marked departure, courts must still analyze the accused’s actions relative to the reasonable person in the specific circumstances at issue. [Emphasis added.]
Analysis
(i) The Standard of Review
[33] Mr. Qureshi claims the trial judge’s legal errors affected the reasonableness of the verdict. It is therefore helpful to consider the legal errors first.
[34] Where a trial judge fails to apply the correct test to determine whether there was a marked departure, this is an error of law for which the standard of review is correctness. In Chung, at para. 16, Martin J. wrote that:
It would not be an error of law if the trial judge simply applied the test in Roy, considered all the circumstances, and came to an unreasonable conclusion regarding whether the accused’s conduct displayed a marked departure from the norm. However, it would be an error of law if the trial judge failed to compare the accused’s actions to what a reasonable person would have foreseen and done in all of the circumstances. This type of error is not a factual matter of weighing evidence, but rather it goes to the legal definition of the mens rea analysis for dangerous driving. [Emphasis added]
[35] A trial judge is therefore required to provide “an explanation for ‘how and in what way’ the nature of the [accused’s] driving showed the necessary marked departure from the standard of care that a reasonable person would show in the same circumstances”: R. v. Laverdure, 2018 ONCA 614, 47 C.R. (7th) 290, at para. 26.
[36] While a trial judge’s finding as to the accused’s manner of driving may, in some cases, be sufficiently egregious to permit the finding of the requisite fault element without additional analysis, the manner in which the accused’s conduct is a departure from the standard must be evident. Failure to fully analyze the evidence as it relates to the fault element constitutes an error of law: Laverdure, at paras. 27-28.
[37] In this case, Mr. Qureshi submits that the trial judge erred in law by failing to consider all of the relevant legal principles when deciding that the fault element for dangerous driving was satisfied such that his actions constituted a marked departure from the norm.
(ii) Did the Trial Judge Misapply the Relevant Principles in Determining there was no Momentary Lapse?
[38] Mr. Qureshi claims that the trial judge made a legal error by (i) failing to assess the period of inattention except to say that it was “seconds” and (ii) failing to provide any explanation as to why in her view, this was not a momentary lapse where the period of inattention was likely under 5 seconds and the trial judge found that Mr. Qureshi was otherwise driving responsibly. Absent active misconduct, Mr. Qureshi further argues that a few seconds of carelessness or inattention cannot constitute a marked departure from the standard of care.
[39] As noted above, conduct within a few seconds of an incident which is otherwise proper, is more often suggestive of civil negligence than dangerous driving: Willock, at para. 31. The reason momentary lapses of inattention will not usually give rise to criminal liability is because they often result from the reflexive nature of driving or carelessness, “conduct that, when assessed in totality against the reasonable person standard, only represent[s] a mere departure from the norm”: Chung, at para. 22. As such, a momentary lapse in attention and judgment will not usually raise criminal liability unless the underlying conduct, when assessed in totality against the reasonable person standard, is a marked departure from the norm.
[40] As the respondent points out, it is not always necessary however, to quantify the period of inattention where the duration was longer than required to avoid the impact.
[41] In R. v. Tabanao, 2020 ONSC 3501, 65 M.V.R. (7th) 30, at paras. 559-60, 578-9, and 591, aff’d 2024 ONCA 85, for example, the trial judge found that while the exact period of inattention was unknown, it lasted at least 7 seconds, the duration was longer than the time needed to stop before impact, and there was a pattern of inattention beginning approximately 55 seconds before impact such that there was no momentary lapse of attention. In this case however, the trial judge did not assess whether the period of inattention was longer than the time required to avoid the impact and unlike Tabanao, there was no evidence of a prior pattern of inattention or otherwise irresponsible driving.
[42] In any case, before concluding that conduct that occurs in seconds constitutes a marked departure from the norm, the trial judge must consider the accused’s behaviour and, in view of the totality of the circumstances, how markedly his behaviour differs from that of a reasonable person in the same position: Chung, at paras. 22-24.
[43] It was established that (i) Mr. Qureshi was going 104 km/h, or 29 metres per second while driving between the westbound collision site and the scene of the accident; (ii) he first saw warning signs when he was either 7-8 or 10-12 truck lengths away from the accident site; and (iii) he braked 0.25 seconds before the collision. Although the trial judge recognized that the accident occurred “within seconds”, there was no evidence as to how long the trucks Mr. Qureshi referred to were, which would have assisted the court to confirm the duration of inattention and consider the consequences of the period of inattention for a driver who was otherwise driving responsibly.
[44] I disagree with Mr. Qureshi’s submission that in order to find an accused guilty of dangerous driving, there must be some element of active misconduct. Omissions can result in dangerous driving, but again, the seriousness of the transgression must be considered in light of all the circumstances, and it must constitute a “marked departure” from the norm: Chung, at para. 27.
[45] Unlike this case, the cases proffered by the respondent and the transgressions described therein, all involve active misconduct. Unlike the accused in Willock, Mr. Qureshi did not take reckless steps of jerking his steering wheel from side to side on a highway swerving across the median and causing an accident. Unlike Chung, he did not drive nearly three times the speed limit, pass in the curb lane and accelerate toward an occupied intersection. And unlike Tabanao, Mr. Qureshi did not reach down into his vehicle taking his eyes off the road while driving just before the accident nor did he have a prior history of driving irresponsibly. It would seem that in most cases of dangerous driving, the court has found the accused guilty where the transgression involved active misconduct not a momentary failure to pay attention: see e.g., R. v. Yogeswaran, 2021 ONSC 1242, 80 M.V.R. (7th) 39 (where the accident took place in a matter of seconds, it involved excessive speed and unsafe passing, resulting in a conviction); R. v. Markos, 2017 ONSC 90, 5 MV.R. (7th) 88, aff’d 2019 ONCA 80, 37 M.V.R. (7th) 1 (where driver was performing “whip-around passes”).
[46] The trial judge could not, and did not, make a finding that the period of inattention was longer than Mr. Qureshi would have needed to stop. She appears to have reasoned that because Mr. Qureshi failed to take action despite warnings ahead, this was not a momentary lapse. This was evidence of inattention but not evidence of duration that would allow for an inference that this was not a momentary lapse and constituted a marked departure from the standard of care which a reasonable person who is a professional driver, would have exercised in the same circumstances.
[47] For these reasons, I would conclude that the trial judge erred in law by failing to apply the relevant principles to conclude that this was not a momentary lapse.
(iii) Did the Trial Judge Fail to Differentiate Between the Civil Negligence Standard and a Marked Departure From the Standard of Care?
[48] Mr. Qureshi argues that the trial judge also erred in law by conflating the standards for criminal and civil negligence and thereby failed to explain how and why Mr. Qureshi’s conduct was a marked departure from the standard of care.
[49] The trial judge recognized that she was required to explain how and in what way Mr. Qureshi’s inattention and failure went beyond carelessness and reached the level of a marked departure from the reasonable standard of care: Roy, at para. 30. She went on to say that Mr. Qureshi could have taken his foot off cruise control, removed his foot from the accelerator, or stepped on the brake.
[50] However, none of these statements explain how or why the failure to be alert and vigilant and react to warnings on its own, after a sudden act by a third party, where the driver was otherwise driving responsibly, constitutes a marked departure from the standard of care, warranting a criminal sentence.
[51] Rather, her conclusion was that this was a marked departure because, as a professional driver, “a reasonable driver who is driving a heavy truck that can be extremely deadly to others on the highway must drive with the standard of care expected of him” (emphasis added) and “drivers on Highway 401, especially tractor trailer drivers, are required to be alert and vigilant. They must interpret the information that they see and process what they see”.
[52] These grounds merely reiterate the standard of care expected of a reasonable, professional truck driver to be alert and vigilant and act when a hazard arises. This is the civil standard of negligence not the criminal test for dangerous driving which results in a criminal conviction.
[53] What she should have done was to identify how and in what way the accused’s driving was a marked departure from the standard of care: Roy, at para. 30; R. v. Reynolds, 2013 ONCA 433, 309 O.A.C. 14, at paras. 18-19. For example, in the dangerous driving analysis in Tabanao, at paras. 555-72, the trial judge pointed to evidence of Mr. Tabanao reaching down and taking his attention off the road while driving at a high speed and throttling, demonstrating a pattern of inattention leading up to the accident, and that he was thereby aware of the risk created by his driving.
[54] The failure to fully analyze the evidence as it relates to the fault component of the offence constitutes an error in law. I would therefore order a new trial.
(iv) Whether the Verdicts were Otherwise Unreasonable
[55] I would not however, order an acquittal as, viewing the record as a whole, I cannot conclude that the verdicts were not available on the record. As noted above, counsel for the appellant submitted that the trial judge’s legal errors should be considered as part of the unreasonable verdict analysis, as they demonstrate the unavailability of convictions. Although I have found that the trial judge erred in her legal analysis, I cannot conclude that the verdicts were not otherwise available on the record.
[56] The trial judge’s factual findings are entitled to deference on appeal.
[57] The dangerous situation that emerged on the highway was initially caused by another transport truck driver. However, the appellant did not react to this apparent danger until .25 seconds before the collision, when many other motorists did. On the basis of these and the trial judge’s other factual findings, some of which are summarized in paras. 519-520 of her reasons (reproduced in para. 18 above), it cannot be said that the verdicts are unreasonable.
[58] I would therefore dismiss this ground of appeal.
(v) Did the Trial Judge Fail to Consider whether Mr. Qureshi was Checking his Mirror to Change Lanes and did not Simply Fail to React?
[59] Mr. Qureshi also claims the trial judge did not consider a plausible theory that his inaction was partly attributable to his attempting to change lanes. Given that I would allow the appeal and order a new trial, and these issues may therefore be revisited, I will briefly address this issue.
[60] The trial judge must consider plausible theories or other reasonable possibilities “rooted in logic and experience applied to the evidence or absence of evidence”: R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 60. The theories must be reasonable when assessed logically and in light of human experience and common sense: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 36-38, 50 and 56; Stennett, at paras. 59-63 and 69. Findings of fact and factual inferences drawn by a trial judge are entitled to deference.
[61] In his police statement, Mr. Qureshi told the officer that he “put on the flasher when I saw this car” and later added “I have my flasher because I’m about, I just put the flasher to pass […] before the accident.”
[62] The trial judge was entitled to accept all, some or none of Mr. Qureshi’s version of events and had only his police statement to consider along with the evidence of witnesses to the event, as Mr. Qureshi did not testify at trial: R. v. Saini, 2023 ONCA 445, 90 C.R. (7th) 212, at para. 23.
[63] The trial judge held that the defence expert’s, Dalton Brown’s, opinion that Mr. Qureshi may have delayed in responding to the warning signs because he was checking his mirror before attempting to change lanes, was speculative. There was no vehicle record data or evidence from witnesses to substantiate Mr. Brown’s theory that Mr. Qureshi may have signalled or tried to change lanes.
[64] Moreover, Mr. Qureshi’s statement that he put his signal on to change lanes, two cars passed him so he stayed in his lane, and then he applied the brakes was found to be unreliable based on all of the other witnesses’ evidence on this point, and his vehicle’s GPS data. He was driving significantly faster than the vehicles he collided with, he had his cruise control on and he did not apply his brakes until 0.25 seconds before the collision. Moreover, the judge accepted as credible, the evidence of one of the witnesses, Steven Roberts, that Mr. Qureshi’s vehicle was not slowing down or trying to change lanes.
[65] For these reasons, I see no error in the trial judge’s assessment of the evidence on this point and would dismiss this ground of appeal.
Conclusion
[66] In some cases, the manner of driving as found by a trial judge will be sufficiently egregious that it is evident that the requisite fault element is met without any additional analysis of the evidence of the fault or intent: Laverdure, at para. 27. The trial judge’s analysis of the evidence is not sufficient to find the requisite fault.
[67] Although the trial judge correctly considered whether a reasonable person would have foreseen the risk and taken steps to avoid the collision: (i) she failed to state how and why, in the totality of the circumstances, there was no momentary lapse, and (ii) she conflated the civil and criminal negligence standards and failed to explain how and why Mr. Qureshi’s conduct constituted not just a breach of the standard of care but a marked departure from the norm. The failure to fully analyze the evidence respecting the fault component of the offence constitutes an error in law.
[68] I would therefore order a new trial.
[69] However, as the evidence could support a finding of the requisite mens rea for dangerous driving, I cannot conclude that the verdict was otherwise unreasonable.
[70] Given that I would order a new trial, I need not address the appeal of sentence.
Released: February 23, 2024 “G.T.T.” “Thorburn J.A.” “I agree. Gary Trotter J.A.” “I agree. L. Sossin J.A.”
