Court Information
Ontario Court of Justice
Date: 2016-02-16
Court File No.: Dryden 150242
Parties
Between:
Her Majesty the Queen
— And —
Munish Athwal
Judicial Officer and Counsel
Before: Justice Peter T. Bishop
Heard on: December 7, 2015
Reasons for Judgment released on: February 16, 2016
Counsel:
- Terra Schuck, for the Crown
- Ranbir Mann, Counsel for the defendant Munish Athwal
BISHOP J.:
Charges
[1] Munish Athwal stands charged:
[2] On or about April 19, 2015, while operating a motor vehicle and being pursued by a peace officer operating a motor vehicle, did in order to evade the peace officer, fail without reasonable excuse to stop his vehicle as soon as was reasonable in the circumstances contrary to Section 249.1(1) of the Criminal Code.
[3] And further; on or about April 19, 2015, did drive a motor vehicle in a manner that is dangerous to the public contrary to Section 249(1)(a) of the Criminal Code.
Preliminary Matters
[4] At the beginning of the trial, the accused brought several motions seeking that the Crown reveal the McNeil Reports and alleging that the Crown had not complied with demands for disclosure of other evidence.
[5] The Court ruled that the McNeil Report was third party evidence and not in the possession of the Crown and that Mr. Athwal must bring an application to get disclosure of those reports and an adjournment would be granted to accomplish that purpose. The accused declined to avail himself of that remedy and the trial proceeded.
[6] Further, the accused stated that the Crown had not provided him with confirmation that cameras were in the police officers' vehicle nor the printout from the radar from Constable Menard's radar device. It was disclosed that this information had been conveyed to Mr. Athwal's counsel previously and Mr. Athwal's request to stay the charges for lack of disclosure was dismissed.
Evidence of Constable Wayne Menard
[7] Constable Menard is a fourteen year veteran of the Ontario Provincial Police and was stationed in Ignace, Ontario. On the day in question he was working nightshift and received a traffic complaint from the Communications Centre saying that a West bound vehicle was proceeding towards Ignace.
[8] He was operating a stationary radar device and observed a car and truck approaching. The radar works in both directions; he was facing East bound on the South side of the highway.
[9] It was 12:02 a.m. April 20, 2015 when two vehicles approached in the fog. It was misty with slight rain and the temperature was cool. The highway was bare and wet with moderate visibility.
[10] He activated the front radar and locked in a speed of one hundred five to one hundred six kilometers per hour in a ninety kilometer per hour zone.
[11] The first vehicle was blue in colour and was followed by a pick-up truck which was dark colour.
[12] He travelled behind these two vehicles at a safe distance, but did not effect a stop immediately as there was no safe area to pull over. He wanted to get to a safe zone as the speed limit dropped to seventy kilometers per hour where there were street lights.
[13] He engaged his emergency lights and the pick-up pulled over and stopped immediately.
[14] The car, a BMW motor vehicle with Alberta markers was in front of the pick-up truck.
[15] The BMW pulled off to the right, then accelerated at a rapid rate of speed going past the Northwoods Motor Inn.
[16] At the Tempo Gas Station, the speed limit was seventy kilometers per hour zone but as one passed The Northwoods Motor Inn it became a fifty kilometer per hour zone.
[17] He radioed the Communications Centre that the front vehicle was moving so fast that he did not want to pursue. He could smell the exhaust of the vehicle.
[18] He turned off his emergency lights and proceeded at the posted speed limit. His colleague Constable Hussell was patrolling on the West end of Ignace.
[19] He radioed Constable Hussell and told him that a vehicle was coming at a high rate of speed.
[20] His intention in stopping these vehicles was to speak to both drivers and issue a warning as there were moose on the highway and visibility was not good.
[21] He then proceeded West bound as Constable Hussell was by Lakeshore Drive approximately one half of a kilometer West of Ignace. Constable Hussell radioed that the vehicle went past him at a high rate of speed and he turned around and then found the BMW motor vehicle in the ditch. He activated his lights and identified the same blue BMW motor vehicle on the South side of the highway with debris everywhere.
[22] A male was standing outside the vehicle and the vehicle was approximately 8.2 metres from the highway in the South ditch.
[23] The front suspension of the BMW was torn off and it appeared that the vehicle rolled end-for-end as there was a large debris field. The tires were not attached to the vehicle and food products were strewn everywhere.
[24] The male who was standing by the vehicle ran towards the door of the BMW and reached inside. He told the accused to stop but he did not comply. The male pulled out a silver-gray hoodie with his hands in the pocket. Constable Menard drew his sidearm and pointed it at the accused indicating that he was under arrest. Constable Hussell was a few minutes behind him.
[25] The accused tried to open the driver's door and he believed Constable Hussell was behind him but he was not able to see the accused hands and he feared for the safety of himself as well as his partner.
[26] He commanded the accused to drop the jacket, show me your hands and get prone on the ground. The accused eventually complied and was handcuffed to the rear.
[27] He stood the accused up, walked him to the cruiser and placed him in the back. The ambulance and the fire department were called.
[28] He searched the immediate area for other passengers and determined that the driver was alone. He identified the accused as the driver of the motor vehicle and was arrested at 12:28 a.m. He was charged with flight from police and dangerous driving. He was read his rights to counsel and was told by the accused that his driver's license was suspended. He was lodged at the Ignace police cells for processing.
[29] When arrested, the accused advised that he wished to speak to counsel but when transported to the detachment at 2:04 a.m. he indicated that he did not want to call anyone.
Evidence in Cross Examination
[30] When the four-by-four truck and the BMW passed him he estimated that the gap between the vehicles was thirty to forty metres and they were travelling at the same rate of speed.
[31] He activated his emergency lights in Ignace where there were street lights.
[32] He followed the vehicles for three to four kilometers and activated his lights in the seventy kilometers per hour posted zone.
[33] He deactivated his emergency lights after the BMW sped away. He deactivated his emergency lights within seconds because he did not want to be engaged in a high speed chase in a built up area.
[34] He did not see any other vehicles and did not see any pedestrians. He did not pursue the accused at a high rate of speed for public safety reasons.
[35] He radioed his Sergeant of the incident and that the road conditions were bad.
[36] Almost within a minute he determined that the accused was in the ditch and was not then concerned or worried about the pick-up truck.
[37] At the accident scene he believed the pick-up truck stopped and he questioned the driver who indicated that they were not travelling together.
[38] At the scene, traffic was slowed down and he focused on helping the accused and making sure the road was safe because the highway was partially blocked.
Evidence of Constable Dean Hussell
[39] Constable Hussell has been employed with the Ontario Provincial Police since 2003 and was stationed with the Dryden detachment patrolling in Ignace that night.
[40] He received a message from the Communications Centre at 11:47 p.m. on April 19, 2015 indicating that there was a concern with vehicles and that Constable Menard would see them first.
[41] He described the road and weather conditions as being misty, dark with poor visibility.
[42] He was stationed about five hundred metres West of Lakeshore Drive at a turnaround. He had radio communication from Constable Menard that he was pursuing the vehicle and that he then terminated the pursuit.
[43] Constable Hussell pulled over to the fog line in East bound lane. The accused vehicle came around the corner at a high rate of speed approaching a North turn. He estimated that the speed of the motor vehicle at one hundred fifty kilometres per hour in a seventy kilometre zone based on several years of experience as a radar operator and clocking a similar vehicle at one hundred fifty two kilometres per hour.
[44] The accused's vehicle went past him, seconds after hearing Constable Menard's radio communication with the Communications Centre that he called off the pursuit and all that Constable Hussell could say was "it's gone" and he then turned around and proceeded West bound and observed tail-lights in the ditch on the West side of the highway. It was the same vehicle that passed him at the high rate of speed.
[45] The accused's vehicle was facing West bound and approximately 8.2 metres from the edge of the highway or 11.2 metres from the fog line.
[46] It appeared that the vehicle had rolled over and was totally destroyed. He observed several markings on the ground.
[47] He pulled his cruiser over and Constable Menard was at the scene. He got out of the vehicle and Constable Menard was in front of him by twenty to thirty metres.
[48] Constable Hussell was concerned about traffic and wanted to make sure that Constable Menard was okay as a male was moving away from the vehicle.
[49] Constable Menard told the accused to "show me your hands" and Constable Hussell did not see his hands. The accused made it back to the vehicle and Constable Menard drew his firearm commanding the accused to show his hands. Constable Hussell had no idea if the accused had a knife or a gun.
[50] From his vantage point he saw the accused go approximately five feet from his vehicle and was not complying with the commands.
[51] Constable Hussell also yelled "show me your hands" and then the accused complied with Constable Menard's verbal commands.
[52] He covered the suspect when Constable Menard knelt to handcuff him.
Cross Examination
[53] The accused did not walk with his hands up in the beginning and the BMW looked silver in passing but the registration stated it was blue in colour.
[54] Constable Hussell felt he was in danger as he had pulled off the road approximately one metre and observed the BMW motor vehicle cross the centre line approximately twenty metres after passing him. The accused's vehicle came into Constable Hussell's lane. He then turned around to head West and only travelled approximately one hundred metres when he observed the accident.
[55] Constable Hussell did not see the pick-up truck.
[56] The initial complaint that he had received from the Communications Centre was about motor vehicles tailgating and not dimming their high-beams. The Communications Centre did not indicate that they were speeding. He first learned about speeding when Constable Menard radioed him.
[57] The weather conditions were poor, visibility was misty and dark. The road was wet.
Evidence of Munish Athwal
[58] Mr. Athwal stated he was travelling from White River, Ontario to Edmonton, Alberta and obeyed the speed limits.
[59] He was following a light grey truck all the way from White River to Ignace.
[60] As he came close to Ignace the white truck was still in front of him. He estimated the posted speed was between ninety to one hundred kilometres per hour but in Ignace seventy to sixty kilometres per hour.
[61] At the East end of Ignace, near Tower Hill the truck in front of him slowed down dramatically to fifty or sixty kilometres per hour.
[62] He then passed the truck near the gas station and proceeded in front of the truck.
[63] When he passed the truck he saw the police vehicle with the lights on behind him and the grey pick-up truck.
[64] When passing the truck there was broken line and he saw the police vehicle enter the highway from the gas station. At that time he was behind the pick-up truck.
[65] He estimated the distance between he and the pick-up truck was one hundred metres.
[66] He observed the police lights turned off in his rear view mirror.
[67] He slowed down and nothing happened and he again resumed normal speed.
[68] He did not see the police officer follow him and there were no lights on. He did not see anyone else.
[69] He indicated that he immigrated to Canada in 2011 and was on a work visa along with his wife who had a student visa.
[70] After passing the pickup truck, at the West end of Ignace, there was sharp curve. He applied the brakes; the car skidded into the ditch as the brakes were engaged too hard. The car flipped.
[71] There was poor visibility, rain or perhaps snow.
[72] He estimated the forward visibility was two hundred to three hundred metres.
[73] When the emergency lights were off he estimated the cruiser was one hundred metres behind him.
[74] He did not know what the posted speed was due to visibility, fog and darkness.
[75] He did not see the police cruiser following him after the emergency lights were turned off.
[76] After he lost control he was in crisis and complied right away with the police officer's command.
[77] The car was in the ditch and he had his hoody halfway on and halfway off with one arm protruding.
[78] He estimated that the cruiser at the scene was ten to twelve feet away and the officer pointed his gun at him and he did everything that he was asked to do. The officer put him down on the white line on the road to handcuff him.
[79] The second officer also had his gun on him and he lay on the ground while he was being handcuffed and arrested and was placed in the back seat of the cruiser.
[80] He observed the pick-up truck stop at the accident scene and it was the same pickup that he had been following all the way from White River.
[81] The road was wet and there might have been snow or ice; he saw the beam of his car lights on the road before and he was not aware of any other car coming. Visibility was an issue.
[82] He had no idea why the police officer was behind him and he did not see the pick-up behind him at that time.
Evidence in Cross Examination
[83] He indicated that he left White River approximately 5:00 p.m. and had no stops between White River and Ignace.
[84] He followed the truck for four to five hours before Ignace.
[85] He slept the night before and the road was normal from White River but two to three hours before Ignace it became worse and worse.
[86] There was a wet road and fog and it was dark and the highway was shining.
[87] He indicated firstly that there were no vehicles between White River and Ignace but there might have been a few as there was low traffic.
[88] He initially indicated that he was travelling below ninety and one hundred kilometres per hour and not over one hundred kilometres per hour between White River and Ignace.
[89] Two to three hours before Ignace the road conditions changed.
[90] Before Ignace he was travelling between eighty and one hundred kilometres per hour but did not watch the speedometer.
[91] He stated his speed changed from seventy kilometres to one hundred kilometres per hour but he did not look at the speedometer.
[92] He did not set the vehicle on cruise control and stated he might have been going ten kilometres to eighty kilometres per hour in the bad weather and he was concerned about lack of visibility.
[93] He estimated that he was sixty metres behind the pick-up truck and that a gap of fifty to sixty metres was maintained all of the time.
[94] He did not recall what the speed limit was in Ignace.
[95] The pick-up truck in front slowed down so he passed him. He had no idea why the truck slowed down.
[96] He saw the police car with its emergency lights activated enter the highway at which point he passed the pick-up truck.
[97] He slowed down in the middle lane but did not recall his speed.
[98] After the police officer deactivated the emergency lights he drove normally sixty to seventy kilometres per hour but he was not sure because he didn't look at his speedometer.
[99] He had difficulty explaining whether the weather affected his perception of the speed.
[100] He stated that he slowed down when the police officer turned his emergency lights off.
[101] He affirmed that if he was convicted of a criminal code offence he would be deported.
[102] He crashed on a sharp curve and did not slow down before he got to the curve, notwithstanding that he stated that he had two to three hundred meters of visibility.
[103] He didn't think that he rolled the vehicle and he hit his head and had a small cut on his wrist.
[104] He did not have his hoody on when driving the car but tried to put in on when he exited the vehicle. The hoody was halfway on when the police approached him.
[105] He stated the police officer did not say show me your hands and he immediately complied with commands once he saw the gun.
[106] At the end of the evidence when questioned by the court he stated that he had a valid Alberta driver's license. This contradicted what he told Constable Menard.
Reply Evidence
[107] The Crown recalled Constable Menard, at which time it was determined that Mr. Athwal did have a valid Alberta driver's license which had been reinstated at midnight on April 19, 2015. Officer Menard produced a certified copy of the records of the Ministry of Transportation dated April 27, 2015 which revealed that Mr. Athwal's driver's licence had been administratively suspended for seven days due to an allegation of stunt driving.
[108] The accused brought a motion for mistrial, submitting that the Court allowed the crown to split its case, and further that the accused may not have called evidence if the allegation of stunt driving had been fully explored in examination in chief. The Court dismissed the application for a mistrial as the Court was attempting to clarify evidence and assess credibility, and ruled that once the accused elects to testify, he is required to answer all relevant and proper questions asked by counsel and the court.
Decision
The Law: Dangerous Driving
[109] The test for and determination of culpability for the offense of dangerous driving was established by the Supreme Court of Canada in R v Hundal, [1993] 1 S.C.R. 867, paragraphs 43 and 44 and confirmed in R v Beatty, 2008 SCC 5, [2008] S.C.J. No. 5, at paragraph 43 as follows:
(a) The actus reus: "the trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was in the words of the section, driving in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic at the time is or might reasonably be expected be at that place".
(b) The mens rea: "the trier of fact must also be satisfied beyond a reasonable doubt that the accused objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the Court should be satisfied on the basis of all the evidence, including evidence about the accused actual state of mind, if any, that the conduct amounted to a marked departure from standard of care that a reasonable person would observe in the accused circumstances. Moreover; if an explanation is offered by the accused, then in order to convict, the Court must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused."
(c) Manner vs. Consequences: "It is the manner in which the motor vehicle was operated that is at issue, and not the consequences of the driving. The Supreme Court of Canada has indicated there are times when the consequences may assist in assessing the manner of driving, especially when the driving and consequences are so interwoven that the consequences may be relevant in characterizing the conduct of the accused."
(d) Objective Mens Rea Standard: "The test is an objective mens rea standard that must be used when assessing dangerous driving. In making this assessment, the Court should be satisfied on the basis of all of the evidence, including evidence about the accused state of mind, if any that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused circumstances. If an explanation is offered, then in order to convict the Court must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and the danger in the accused conduct. Even where the manner of driving is a marked departure from the norm, fault will not lie on unless 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."
(e) Short Distance or Duration: "R v Beatty also states that dangerous driving may be proven even where the distance travelled is very short, or where the driving in question observed for only seconds."
(f) Severe Weather Conditions: "When weather conditions are severe, a driver would be expected to slow down below the posted speed limit as enunciated in R v Wall (8 July, 2011) Toronto file number 92/09 (Ont Sup Ct Jus) at pages 4-5."
The Law: Flight from Police
[110] To be convicted of flight from police, the Crown must prove beyond a reasonable doubt all the elements of the offence which are as follows:
(i) The accused must be operating a motor vehicle.
(ii) A police officer must be pursuing the accused.
(iii) The evidence must be established that the accused knows that the police is in pursuit.
(iv) A police officer must be operating a motor vehicle.
(v) The accused must fail to stop his vehicle as soon as reasonable in the circumstances.
(vi) The accused must have no reasonable excuse for his failure to stop.
(vii) The accused must fail to stop in order to evade the police officer.
[111] As stated in R v Jensen, [2015] O.J. No. 1097, paragraph 30: a driver who pulls over in response to an officer's direction, but then speeds away before the interaction is completed can be rightfully convicted of flight from police. As well a driver that engages in that behaviour cannot reasonably think that said action would not result in the police further pursuing him. The facts in Jensen were extreme but the same principle applies here.
Application of Law to Facts
[112] In these circumstances, I find that the actus reus and the mens rea of dangerous driving and flight from police has been proven beyond a reasonable doubt for the following reasons:
1. It was late at night where the driver was in a non-familiar area with reduced visibility due to weather conditions. The road conditions were poor. There were other drivers in the area including the two police officers and the unidentified driver of the pickup truck.
2. Other traffic and pedestrians could reasonably be expected to be on the Trans-Canada highway in the Township of Ignace at this time. The accused passed through the commercial core business area of Ignace with gas stations, the Northwoods Motor Inn, the Tower Hill Restaurant, Tempo Gas Station where municipal streets intersected with the highway as shown on the map filed by the accused.
3. The accused was driving at an excessive speed in poor conditions in the built up area of Ignace.
4. The consequences of the accused driving namely the accident where he left the highway at such a force that the front wheels were detached from the motor vehicle is interwoven with his manner of driving and excessive speed. This damage is not consistent with the accused driving at the speed limit which was between fifty and seventy kilometres per hour.
5. I do not conclude that his driving was dangerous because he was involved in a motor vehicle accident, but it is reasonable to conclude that he was involved in a motor vehicle accident because his driving was dangerous. His driving would still have been dangerous by driving at an excessive speed in the road and weather conditions as described by both the police officers. The accused acknowledged the poor visibility and weather road conditions.
6. I do not accept that the accused was driving at or below the posted speed limit in Ignace as the map filed by him had a scale of 1.25 inches equals one thousand feet. This revealed that the distance where Constable Menard turned off his emergency lights was between seven and eleven kilometres to the scene of the accident. Driving at the posted speed limit would not have put Mr. Athwal in contact with Constable Hussell almost immediately after Constable Menard radioed the communications centre which was monitored by Constable Hussell. He was not watching his speedometer but relied upon his years of driving experience which appeared to be three years. He admitted that he could not view the posted speed limit because of the weather conditions and stated that he was driving at or below the posted speed limit without knowing what the posted speed limit was.
7. I find that the speed at which the accused was driving while entering the Township of Ignace was as stated by Constable Menard pursuant to his stationary radar device, one hundred five to one hundred six kilometers per hour in a ninety kilometers per hour zone. The police officer's evidence was that speed limit was reduced from ninety kilometers per hour to seventy kilometers per hour and then to fifty kilometers per hour as going through the commercial area of Ignace.
8. Both Constables Menard and Hussell were actively trying to determine the defendants speed while the accused failed to make consistent use of his speedometer causing him to question his own ability to determine his own speed. He was paying no attention to what speed he was travelling.
9. The accused credibility is further compromised because of his evasive answers and attempting to explain why he was in White River. It is unbelievable that he followed the same truck for approximately six to six and one half hours from White River to Ignace without stopping on the main East/West corridor from Southern Ontario to Western Canada. Upon being questioned by the police officer to produce for his driver's license he stated that he was suspended. It was later learned that he was under an administrative suspension for allegedly stunt driving. The suspension lasted from April 13, 2015 to midnight on April 19, 2015.
10. I take Judicial notice that pursuant to Section 172 of the Ontario Highway Traffic Act that the accused driver's license would have been administratively suspended and vehicle impounded for seven days.
11. I accept Constable Menard's evidence that the accused sped away in an excessive speed and could smell the exhaust from the vehicle accelerating at a great rate.
12. The Ignace area was unfamiliar to the accused and his statement that he applied the brakes too hard on a sharp curve shows a marked departure from the standard of care of a reasonable person. His excessive speed, plus the brake application contributes significantly to this accident and was dangerous. He further stated that visibility was between two hundred and three hundred metres which would have given a reasonable person proper time to negotiate the turn if travelling at the posted speed limit.
13. I also find that a reasonable person who acknowledges poor road conditions, limited visibility and travelling at or about the posted speed limit in these conditions would be aware of the risk arising from that driving behaviour. He took no notice or seemed oblivious to potential pedestrians who would be in the Ignace area.
14. It was also a marked departure from the standard of care of a reasonable person as the accused vehicle crossed the center line when approaching Constable Hussell's location and Constable Hussell was barely able to get off the travelled portion of the road before the accused was upon him.
15. The cases put forward by the crown and the defense are distinguished on the facts. There is however commonality to the principles enunciated therein.
16. I conclude and find that the accused did not obey Constable Menard's emergency lights indicating that he should stop. The accused's motor vehicle should have come to a complete stop as did the truck that was behind the accused. The accused conduct of slowing down and then immediately speeding and driving at speeds in excess of approximating one hundred and fifty kilometers per hour is not consistent with safe driving and constitutes dangerous driving in the built up commercial area of Ignace.
17. The accused acknowledged that he was aware of the officer's attempt to stop his vehicle and he drove away without coming to a complete stop. Constable Hussell estimated his speed in the Township of Ignace was approximately two or three times the posted limit. I find that accused was aware that the police officer was attempting to stop him and he should have known that he would be pursued by either that officer or some other officer.
18. I am very suspicious and do not accept that the accused drove from White River, Ontario behind the same vehicle all the way. It would have taken him much longer to traverse that distance as his evidence was that he is would drive at the speed limit or slightly under the speed limit. As well, the accused's initial evidence that there was no traffic between White River and Ignace and then later there was some light traffic on the major East/West corridor from Southern Ontario to Western Canada is unbelievable. He also stated that for approximately two to three hours before Ignace the weather was deteriorating which logically should have reduced his speed even more.
19. The accused also was evasive with respect to why he was in White River. There was no evidence as to the location of the incident of alleged stunt driving nor how the accused came to start his journey from White River to Alberta. The Court acknowledges the presumption of innocence with respect to the alleged provincial offence of stunt driving and notes that the incident that gave rise to these charges is completely independent and separate from the alleged stunt driving charge. Further, Officer Menard had reasonable and probable grounds to lay the current charges before confirmation was received about a week later from the Ministry of Transportation records concerning the alleged stunt driving. There was no evidence before this court on the outcome of alleged stunt driving charge.
20. For all of the above reasons, I am finding that the Crown has proven the charges of flight from police and dangerous driving beyond a reasonable doubt. Where there is a difference in the evidence of the accused and that of the two police officers, I accept the evidence of the police officers as the accused's recounting of the facts is unbelievable and does not have an air of reality.
Released: February 16, 2016
Signed: "Justice Peter T. Bishop"