WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

ONTARIO COURT OF JUSTICE

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended

DATE: 2017-03-13

COURT FILE NO.: 15-Y1245

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

A.H., a young person

Before: Justice J. M. Copeland

Heard on: January 9, 10, 11, 12, 2017

Reasons for Judgment released on: March 13, 2017

Counsel:

• Mr. M. Morris — counsel for the Crown
• Mr. R. Nuttall — counsel for the defendant, A.H.

REASONS FOR JUDGMENT

COPELAND J.:

[1] Overview of the Charge and Events

A.H. is charged with one count of dangerous driving causing death. The events at issue occurred on October 16, 2015, in the parking lot of a mall near Airport Road and Highway 7 that contained, among other stores, a Walmart. I will outline in more detail in due course the events in the parking lot leading up to the death in this case. But in very brief summary, the events immediately preceding the death were that the deceased, Leonel Monterossa, was reaching in the open driver side window of Mr. A.H.'s rental car. Mr. A.H. put the vehicle into reverse and sharply depressed the gas pedal. The vehicle reversed suddenly and quickly, and began to turn counter-clockwise. The vehicle turned between 180 and 360 degrees as it reversed. Mr. Monterossa was pulled under the vehicle. He was run over by the front driver-side wheel of Mr. A.H.'s vehicle. As Mr. A.H.'s vehicle turned, it also collided with the rear of a car parked nearby. Mr. Monterossa was left pinned under the rear wheels of the parked vehicle. Mr. Monterossa was declared dead at the scene. The cause of death was multiple blunt impact trauma in the chest area.

[2] Impact of the Death

As is often the case in a criminal trial involving a death, I have heard nothing about Mr. Monterossa's life or about him as a person. The focus in a criminal trial is on whether the Crown has proven the elements of the offence, and in this case, on the moments immediately preceding the death. This has the effect of obscuring the life of the deceased, obscuring who he was as a person. The loss of Mr. Monterossa's life in these circumstances is tragic. I have no doubt that his death has caused much grief to his family. And based on my observations of the witnesses and the defendant during the trial evidence, the events also had a significant impact on everyone who was present that evening.

[3] Contested and Uncontested Facts

Many of the events in the parking lot leading up to Mr. Monterossa's death are not contested. But there are differences between the evidence of various witnesses on some details, and on some issues of interpretation of events which are relevant to the legal issues at play in this trial.

[4] Defence Position

By the end of the trial, the defence did not contest that the defendant's driving constituted dangerous driving in that it was objectively dangerous to the public in all of the circumstances, and that the manner of driving was a marked departure from the driving of a reasonably prudent driver in all the circumstances. The defence also did not contest that the defendant's driving caused Mr. Monterossa's death. Rather, counsel argued that Mr. A.H. acted in self-defence pursuant to s. 34 of the Criminal Code. Mr. A.H. testified in support of this defence. To some extent the defence also points to aspects of the evidence in the Crown case in support of the defence. Thus, in addition to there being some contested facts, the only legal issue at trial was the application of the self-defence provisions in s. 34 of the Criminal Code.

[5] Structure of Reasons

My reasons address the issues in the following order: 1) an overview of the evidence; 2) my assessment of the credibility and reliability of the witnesses, and findings of fact; 3) findings with respect to dangerous driving; 4) the law in relation to self-defence; 5) the application of the law regarding self-defence to this case.

1. The Evidence

Overview of Parking Lot Events

[6] I will give a brief overview of the events in the parking lot prior to Mr. Monterossa's death, as much of what happened is not in dispute. Mr. A.H. was at the parking lot with his grandmother in order to shop at Walmart. He dropped his grandmother off at Walmart, and was then going to park the car. He was stopped in the pedestrian area in front of one of the sets of doors to the Walmart. While he was in the pedestrian area, an altercation of some kind occurred with the deceased. The nature of this altercation is in dispute, with different versions of events from Mr. A.H. and from various civilian witnesses. Mr. A.H. then made a fast left turn into one of the parking aisles. Immediately after making the turn, as Mr. A.H. went up the parking aisle, he hit the stroller belonging to Natasha Ingram. Thankfully, there was not a child in the stroller. However, the stroller was damaged. Mr. A.H. drove on, but stopped soon after by pulling over to the right, approximately half way down that parking aisle. Ms Ingram's adult daughter Metaiya Hudson-Ingram ran after Mr. A.H.. Mr. A.H. put down his driver's window at that time, and there was communication between Ms Hudson-Ingram and Mr. A.H. about the fact that he had hit the stroller, and that there was not a child in it. Some of this conversation, in particular Mr. A.H.'s words, are captured in the 911 call, as Mr. A.H. had called 911 when he stopped. The facts in relation to Mr. A.H.'s initial turn, him hitting the stroller, and his stopping and speaking to Ms Hudson-Ingram are not particularly in dispute.

[7] As will become clear from the evidence of the various civilian witnesses, the fact that Mr. A.H. had hit the stroller caused a commotion among people in the parking lot and in the Walmart, and clearly drew the attention of many people.

[8] After speaking to Ms Hudson-Ingram, Mr. A.H. proceeded in his car, driving over one or two parking aisles, and turning left towards the main through road within the parking lot. Before Mr. A.H. was able to turn onto the main road, Mr. Monterossa brought his own vehicle in front of Mr. A.H.'s vehicle, blocking Mr. A.H.'s path. Mr. Monterossa then got out of his car, walked over to the driver side of Mr. A.H.'s car, and reached in through the open window. There is some dispute in the evidence of exactly the nature of how Mr. Monterossa reached into the vehicle.

[9] Mr. A.H. then put his car in reverse and hit the gas pedal hard. The car veered quickly in reverse, turning counter-clockwise. The car ultimately turned between 180 and 360 degrees. Mr. Monterossa was dragged under the car and to the ground, and run over by the front driver-side wheel of Mr. A.H.'s car. The front of Mr. A.H.'s car hit the rear of a nearby parked car as it turned. Mr. Monterossa's body came to rest pinned under the rear tires of the parked car. Mr. Monterossa was declared dead at the scene. The cause of death was multiple blunt impact trauma to the chest area. The physical actions Mr. A.H. took in moving the car, and how it caused Mr. Monterossa's death are not in dispute.

[10] As I have adverted to, Mr. A.H. testified that he took this action out of fear of Mr. Monterossa, caused by him reaching into the vehicle, and by Mr. A.H. realizing he was the same man he had had the altercation with outside the Walmart doors, and feeling that Mr. Monterossa had followed him.

[11] As can be seen from this summary, many of the facts in relation to Mr. A.H.'s driving and the events leading to Mr. Monterossa's death are not in dispute. The primary facts in dispute are the nature of the initial altercation between Mr. Monterossa and Mr. A.H. outside the Walmart doors, and to a lesser extent, the actions of Mr. Monterossa immediately before the defendant put the car into reverse. Subject to the findings of facts the court makes, there is then the disputed legal issue of whether the facts support Mr. A.H.'s claim that he acted in self-defence.

Agreed Facts

[12] It is an agreed fact that Mr. Monterossa was declared dead at the scene, and that the cause of death of Mr. Monterossa was multiple blunt impact trauma in the chest area.

[13] It was also agreed, for purposes of considering the self-defence issue that Mr. Monterossa was 5' 7 ½" tall, and weighed 249 pounds, and was described as average build in the post-mortem report.

[14] It is also not in dispute that the vehicle Mr. A.H. was driving was a rental car.

Note on Deceased's Inability to Testify

[15] I have heard some evidence about events involving the deceased, and actions he is said to have taken in the time immediately preceding his death. Because Mr. Monterossa is dead, it is not possible for the court to hear his version of what happened. I understand that it may be difficult for family members and friends of Mr. Monterossa to hear the court make findings of fact about the events leading to Mr. Monterossa's death, including about actions taken by Mr. Monterossa, when the court was not able to hear his version of events. However, my duty as a trial judge is to assess all of the evidence before the court on the reasonable doubt standard, and I cannot speculate about evidence that is not before the court.

[16] Although many of the facts are not in dispute, it is necessary to review the evidence of the civilian witnesses and Mr. A.H. in some detail in order to make clear the context of my factual findings.

Evidence of Natasha Ingram

[17] Natasha Ingram was at the mall with her two youngest children, and her adult daughter Metaiya Hudson-Ingram. They had just finished shopping and returned to Ms Ingram's SUV. It was around 6:15 or 6:20 p.m. The SUV was parked in the parent with child parking spots, in the third spot from the Walmart doors. The SUV was parked nose-in, so the rear of the SUV was facing out towards the parking aisle. Ms Ingram and Ms Hudson-Ingram were loading the younger children and the groceries into the SUV. Ms Ingram's stroller was at the back end of the SUV, but close to the SUV.

[18] Ms Ingram heard something that drew her attention back to the Walmart doors. She turned and looked over and saw a vehicle stopped by the Walmart doors. She saw a pedestrian hit the hood of the vehicle and then the pedestrian's hand came back up, and the pedestrian said something to the effect of, "Don't you see me?" (I note that there is no dispute that this vehicle was the rental car driven by Mr. A.H., and the pedestrian was Mr. Monterossa). Ms Ingram then went back to loading the children and groceries into her SUV, and stopped watching the Walmart doors.

[19] Within 30 to 45 seconds, she heard screeching tires. She briefly looked over, but then looked away again. Then within 5 seconds she heard a smash. She looked and realized that the same vehicle that had had the altercation with the pedestrian had hit her stroller. She asked Ms Hudson-Ingram to get the license plate of the vehicle. She also noticed that the passenger mirror of the vehicle was knocked off when it hit the stroller.

[20] Ms Ingram did not witness the events involving Mr. Monterossa being dragged by Mr. A.H.'s vehicle. She learned that evening that someone had been killed. She later attended Mr. Monterossa's funeral, although she did not know him. When she saw his photo at the funeral, she realized he was the same man who was the pedestrian who had the altercation with the car outside the Walmart doors.

[21] In cross-examination, Ms Ingram agreed that when she first heard the noise at the Walmart doors, her attention was on her children. She did not hear a horn sound, but agreed it was possible she could have missed that. She said when she first saw the pedestrian interact with the vehicle, the pedestrian was in front of the vehicle. She could not tell if the pedestrian had been going into or out of the store. She agreed that when the car turned, the pedestrian had already come past the front of the vehicle over to the driver's side, and the car went around him as it turned up the parking aisle. She did not see what the pedestrian was doing as he stood by the driver side as the car turned. She agreed that the car accelerated quickly as it turned up the parking aisle. She agreed that if there was an interaction between the pedestrian and the vehicle earlier on the passenger side, she would not have seen it. What she saw was the pedestrian pound his hands on the hood of the car.

[22] She agreed in cross-examination that after hitting her stroller, the vehicle came to a stop about halfway up the parking aisle. The vehicle stopped there for 5 to 10 seconds there. Ms Hudson-Ingram was there, and Ms Ingram heard her scream to the driver, "you hit my stroller".

Evidence of Metaiya Hudson-Ingram

[23] Metaiya Hudson-Ingram was at the mall with her mother, Natasha Ingram, and two of her younger siblings. After shopping they had come back to her mother's vehicle and were unloading the children and groceries. She heard her mother exclaim about seeing some sort of problem by the Walmart door, but Ms Hudson-Ingram was not paying attention, and was putting groceries into her mother's vehicle.

[24] Within approximately 5 seconds from her mother saying there was an issue at the Walmart door, Ms Hudson-Ingram then heard a car rev its engine. The revving drew her attention, and she saw the vehicle, a Toyota, make a really sharp turn up the parking aisle they were in. She saw the car hit their stroller, which was behind her mother's vehicle. The car that hit the stroller had turned sharply into the parking aisle, and accelerated too fast in Ms Hudson-Ingram's opinion, and then swerved and hit the stroller (again, there is no dispute that this was the car driven by Mr. A.H.).

[25] The car continued up the parking aisle for 5 or 10 metres and then stopped in some parking spaces. Ms Hudson-Ingram walked after the car, and pulled out her phone to take pictures of its license plate. She stopped about half a metre from the driver's side window. The window was initially up. She said, "you hit my stroller". She did not think the driver heard her. He then saw her and rolled down the window. She again said that he had hit her stroller. He responded, "was there a kid in it?" She said that did not matter and asked if he was going to pay for it. She thought her tone of voice might have frightened the driver, and he looked in front of him and started driving again. She could not estimate precisely how long Mr. A.H.'s vehicle was stopped when she was speaking to him, but said it was very short, and less than a minute.

[26] The vehicle proceeded up to the main road through the parking lot. At this time the driving was normal, and moderate. Then the vehicle (Mr. A.H.'s vehicle) was cut off and blocked by another car (Mr. Monterossa's car). Mr. A.H.'s vehicle stopped. Ms Hudson-Ingram started walking towards the two vehicles, but she was some distance away.

[27] She saw Mr. Monterossa get out of his car and go over to Mr. A.H.'s car. Mr. Monterossa was speaking to Mr. A.H. in a loud voice, but could not hear the words he said. She saw Mr. Monterossa reach into Mr. A.H.'s vehicle through the driver's window. She then saw Mr. A.H. reverse his car. At that time Mr. Monterossa's arms were still in the driver's window. Things happened very quickly. Ms Hudson-Ingram saw Mr. A.H.'s car reverse, and saw Mr. Monterossa go down. The car reversed suddenly and quickly in a way that Ms Hudson-Ingram felt was unsafe. The rear of the car went to the right. She was not close enough to see exactly what happened, but she saw Mr. Monterossa go down. She also testified (after refreshing her memory with her statement), that Mr. A.H.'s car hit a parked car when it was reversing.

[28] Ms Hudson-Ingram took a video on her cell phone of the scene immediately after the collision that caused Mr. Monterossa's death. It does not capture the driving at issue, but is of some assistance in showing the layout of the scene.

[29] In cross-examination, Ms Hudson-Ingram agreed that she did not see the altercation at the Walmart doors that her mother told her about. The first thing she saw or heard that was unusual was the vehicle rev its engine, and she then looked and saw it turn down their parking aisle very quickly, hit their stroller, and then pull over and stop. She walked after the car, and she saw it stop. When she got to the car, she saw that the driver (Mr. A.H.) had a cell phone in his hand. Ms Hudson-Ingram said her voice was raised when she spoke to Mr. A.H., but denied she was screaming.

[30] Ms Hudson-Ingram agreed in cross-examination that she was not sure if Mr. A.H.'s vehicle was already stopped or not when Mr. Monterossa's vehicle cut him off. Mr. Monterossa came out to Mr. A.H.'s driver side window. She could hear Mr. Monterossa saying something to Mr. A.H., and believed that Mr. Monterossa was using a loud voice, because she was some distance away and she could hear his voice. She saw Mr. Monterossa reach his arms into Mr. A.H.'s vehicle. But from the distance she was away she could not say how much of Mr. Monterossa's arms were in the car. She could not see what Mr. Monterossa was doing with his hands in the car.

[31] Defence counsel played for Ms Hudson-Ingram an extract from Mr. A.H.'s 911 call and asked her if she could identify the screaming voice as hers. She said she could not tell if it was her voice or not. I note that I find as a fact given the context of events and all of the evidence that it was her voice. But the voice is not clear on the call (only Mr. A.H.'s voice is clear), and given that Ms Hudson-Ingram did not hear all the rest of the trial evidence, I accept as truthful her evidence that she was unable to tell if the screaming voice was hers.

Evidence of Charlene Watt

[32] Charlene Watt was at the mall parking lot shortly before 6:30 p.m. She was parked about halfway down the parking aisle, and was standing with her 6 year old daughter loading groceries into her trunk. Her vehicle was parked nose-in, so her trunk was near the parking aisle. She heard a noise, and looked to her left, and saw a car hit something black, on the opposite side of the same parking aisle and closer to the Walmart doors. The car drove extremely fast past her and her daughter. She then heard a woman screaming something about hitting her stroller. The car continued driving, but then stopped in some empty parking spots, and the lady caught up to the car.

[33] Ms Watt heard yelling. She could not hear what the person inside the car was saying, but at one point she heard the woman say really loud that it was an expensive stroller. Then the woman walked away from the car.

[34] The car then continued to drive. She thought the car seemed to be going towards the exit. She then saw another car reverse and drive past her up the parking aisle and block the first car so it could not get by. Then she saw a lot of people around the car that had hit the stroller. She saw the car's reverse lights go on, and she saw the car reverse at a fast rate of speed. Ms Watt estimated she was 30 feet away at this point. She saw the car smash into the median and smash into a parked car. Ms Watt's daughter was screaming, and she was trying to call 911 on her phone. She then saw a man on the ground underneath the parked car. She had not seen the man hit, but knew he had been hit by the reversing car once she saw him on the ground after the car that reversed moved. Ms Watt offered assistance to the man. At that time there were other people around also offering assistance.

[35] In cross-examination Ms Watt agreed she had no information about what may have happened at the Walmart doors before Mr. A.H.'s vehicle drove fast up the parking aisle and hit the stroller. She testified that it was about halfway down the parking aisle that the vehicle stopped after hitting the stroller. The lady whose stroller had been hit was chasing the vehicle before it stopped, and was yelling, "you hit my stroller", and that it was expensive. She could not hear anything the driver said.

[36] Ms Watt testified in cross-examination that she did not see someone reach into Mr. A.H.'s vehicle before it reversed, but that she was distracted at that point because her daughter was screaming and she was trying to calm her. When she looked back up, she saw the car's reverse lights come on.

Evidence of Alvin Appiah

[37] Alvin Appiah was working at Walmart on the date of the incident as a loss prevention officer. He was inside when one of the greeters told him there had been an accident outside. Mr. Appiah was going to check the security cameras, but decided first to go outside and see if he was needed. He went outside the store to the sidewalk close to the front entrance. He was looking towards the Staples store across the parking lot.

[38] He testified that he saw two vehicles stopped in the road within the parking lot near the Staples part of the parking lot. He saw a man out of a car standing behind a parked Monte Carlo car, near the traffic island/median. The Monte Carlo was red. He saw a green car reverse quickly and turn. He believed that as the green car reversed and turned, the front of the green car hit the Monte Carlo and hit the man standing by the Monte Carlo. In his examination in chief Mr. Appiah said, "Like, I'm not sure what happened – like, I was just trying to put two and two together…" He was on the phone with his partners when he observed this, because they were in the middle of an investigation. He asked his partners to come and assist him. He called 911. When he got to where the driver of the vehicle that reversed was, he saw that the driver was on his phone. He said the driver gave him a blank stare as if he was in shock. He asked the driver to get out of the car. He asked another man nearby to keep an eye on the driver. But he said the driver stopped immediately when he asked him to stop, and did not try to flee.

[39] In cross-examination, Mr. Appiah said he had not seen the man who was hit reach into the driver's window of the other car. He agreed that he might not have seen everything, because he did not see events from the beginning to the end.

Evidence of Kimberly-Ann Crough

[40] Kimberly-Ann Crough was at the mall on the evening of the incident. She was exiting the Walmart from a second set of doors to the East of the doors where Mr. A.H. and Mr. Monterossa had the initial altercation. As she exited Walmart, she saw a commotion going on at the other set of doors. She was too far away to be sure of what was happening. She saw a vehicle by the other doors, and a person standing, but she was too far away to see the details. What initially drew her attention was that she heard a banging noise, possibly someone hitting the car. She was too far away to see exactly, but believed it was the person pounding on the car from the noise it made. She continued walking to her vehicle. She heard a car turning, heard tires squealing, and then heard it hit something. She did not know what the car had hit. She then heard a baby cry, and heard someone yell, "Are you crazy? This is a parking lot." She ran into the Walmart and asked one of the greeters to call 911 about a possible incident with a baby.

[41] She went back outside, over towards where she had initially heard the commotion. She did not see anything, so she continued to go to her parked car. Then she heard tires squealing for a second time. She described the sound as "more aggressive, like, donuts." This was within minutes of when she first ran into Walmart to ask the greeter to call 911. The sound was coming from over near the Staples parking lot. Since the Staples parking lot is usually empty, she continued towards her car. Then she heard a smash like a car hitting something, and heard someone say, "he hit somebody."

[42] She saw people running in the direction of the vehicle, and she saw a person on the ground. She went to the person on the ground. There were other people there assisting.

[43] In cross-examination Ms Crough said she believed she saw the person by the car in the initial commotion at the Walmart doors hit the hood of the car while standing at the driver's side of the vehicle. She believed she only saw the person's fist come up once, but she was not paying much attention. She also agreed that she could not say if there had been more to the altercation or more hits on the car before she heard the first bang.

[44] She did not see the vehicle by the Walmart doors leave that area.

Evidence of Domenic Gaslard

[45] Domenic Gaslard was in the mall parking lot on the evening of the incident. He was visiting Brampton, and is not familiar with the area. He was sitting in the front passenger seat of his sister's vehicle in the parking lot. He was parked about 140-150 metres away from where the final collision occurred.

[46] He was on the phone talking to his mother in Newfoundland. He initially saw and heard what he thought was a marital argument. He saw a car stopped in the parking lot with a male in it, and a woman come towards the car swiftly, and was talking to the man in what appeared to be an argument. He could not hear the words being said, but she was speaking loudly enough that he could hear her voice through his closed car windows some distance away. The car then drove off at a speed Mr. Gaslard felt was too fast for a parking lot, and the woman walked away in the opposite direction.

[47] Mr. Gaslard's evidence was not entirely clear in his evidence in chief. I understand him to have said that a second vehicle blocked the path of the vehicle which had been involved in the argument with the woman. Both cars stopped. A man from the second vehicle got out, and proceeded toward the vehicle which had been involved in the argument with the woman. The man who got out of the car seemed upset because of the manner in which he was walking towards the other car, but Mr. Gaslard was not paying a lot of attention and was still on the phone with his mother. He saw the vehicle move in reverse very fast, and came around and "hook" the man. It seemed to Mr. Gaslard like the car was out of control. Mr. Gaslard closed his eyes because he could see the car was going to hit a parked red car. When he opened his eyes, he saw the man outside fall to his knees and sideways and roll under the car.

[48] Mr. Gaslard then went over to provide assistance. At this point the man who had been hit was under the red parked car.

[49] After the collision, Mr. Gaslard saw the defendant sitting on the curb with a police officer. He testified that the defendant said to the police officer that he had panicked.

[50] In cross-examination Mr. Gaslard agreed he had given a statement to police on the date of the incident, which he had reviewed and signed. He agreed that that statement included the following passage (after the one car cut off the other): "The older gentleman jumped out of his car and walked swiftly towards the young man and attempted to pull the young gentleman out of his car. They were pulling at each other and the young guy pulled his car away while squealing his tires in reverse. He hit the older gentleman and pinned the older gentleman between the red car and the young gentleman's car to the ground and rested underneath the red car."

[51] Mr. Gaslard agreed he was not lying when he spoke to police, that he knew the police were conducting an investigation, and that he knew at the time that it was important to tell the police the truth. He agreed he was telling the truth when he gave his statement to police. He agreed it was true that he had seen the older man try to pull the younger man out of his car. But he also said his memory was not sure now. But he confirmed that he told the police the truth on the night of the incident. He agreed that the man who got out of the vehicle was pulling at the man in the car that reversed.

Evidence of Gagandeep Pandher

[52] Gagandeep Pandher was at the Walmart on the evening of the incident. He was standing inside at the lottery desk when a woman ran in yelling to call 911. He went outside to see what was happening. He ran towards the West along the parking lot and came to a baby stroller, and saw people yelling and screaming and trying to figure out what was going on.

[53] He then heard screeching tires, and a crashing sound. He ran towards the area of the sound, which was to the North and a couple of parking lanes over. A Corolla was stopped, and another vehicle had come in front of it and blocked its way. By the time he saw the vehicles both vehicles were stopped. The man from the blocking vehicle got out of his car and walked to the driver's side of the other vehicle. Mr. Pandher was 75-90 feet away at this point, and running closer. He saw the man who had gotten out of the blocking vehicle come up to the driver's window of the other car, and say "stop", and he saw the Corolla veer backwards in a circle. The man outside was standing right beside the driver's window when the Corolla reversed, and he was dragged with the car. Mr. Pandher was on the other side of the Corolla, so he could not see exactly how the man was dragged. The car turned counter-clockwise as it reversed. The reversing car made contact with a car parked behind it, and the man's body ended up under that parked car. The Corolla turned around almost 360 degrees as it reversed. The Corolla reversed quickly. Mr. Pandher had the impression from the nature of the driving that it was "panicked and emotional".

[54] Mr. Pandher then approached the driver's side, asked the driver to stop, removed the keys and asked the driver to step out.

[55] In cross-examination Mr. Pandher agreed that because he was looking from the direction of the passenger side of the Corolla, although he could see the man come towards the driver's side of the Corolla, and he did not see the man reach into the car, it is possible he could have missed seeing that because he was looking from the passenger side of the car (and still some distance away). He agreed that the man was right beside the driver side of the car before the car reversed.

[56] In cross-examination, Mr. Pandher agreed that he was the speaker who came on the phone near the end of Mr. A.H.'s 911 call. Mr. Pandher agreed that Mr. A.H. was on the phone with 911 when he got to the collision scene, and he (Mr. Pandher) used Mr. A.H.'s phone to speak to the 911 operator and tell her what had happened. Mr. Pandher initially said that when he saw Mr. A.H. with the phone Mr. A.H. was dialing the phone. But after defence counsel played him an extract of the 911 call he agreed that he did not know how long Mr. A.H. had been on the 911 call when he got to the collision scene. Mr. Pandher also said that before the reversing, when he saw the man near the driver's side of the Corolla, he saw what he thought was the driver's left hand waving around, maybe trying to push away the man outside, but that he could not be sure that it was not the deceased's hand that he saw inside the Corolla, because he could not see exactly from where he was standing.

[57] I have not summarized the evidence of Officers Navnit Saini or Joshua Scott, as it was not probative of the legal or factual issues that were in issue by the end of the trial.

The 911 Call

[58] Mr. A.H. called 911 when he pulled over after hitting the stroller. I find that the content of the call makes clear that it was made as events took place, from just after Mr. A.H. hit the stroller, until just after he put the car in reverse and caused the events leading to Mr. Monterossa's death. The call ends with Mr. Pandher coming on the phone and speaking to the 911 operator immediately after the collision that caused Mr. Monterossa's death. I will not transcribe the contents of the 911 call. However, I note that it is of assistance in providing evidence of the relatively short time line of events in the parking lot. It also has relevance to Mr. A.H.'s state of mind as the events were occurring (which I will discuss in more detail in my credibility findings).

[59] Based on the 911 call, I find that it was in the range of 1 minute and 20 seconds from the time Mr. A.H. first stopped to call 911 after hitting to stroller (and shortly thereafter spoke to Ms Hudson-Ingram), until the time he put the vehicle in reverse causing the collision that caused Mr. Monterossa's death. Also based on the 911 call, I find that it was in the range of 30-40 seconds from the time Mr. Monterossa blocked in Mr. A.H.'s car and approached him on foot, to when Mr. A.H. put the car in reverse.

The Accident Reconstruction and Vehicle Crash Data

[60] Constable George Wang testified and an accident reconstruction report prepared by him was filed in evidence, including information from the crash data recorder from the car Mr. A.H. was driving. Constable Wang's evidence was not contested. I note that the impact with the parked car caused the data recorder to record the time from 4.55 seconds before the impact. No data recorder evidence was before the court for times prior to that time. The key findings from Constable Wang's evidence and the crash data are the following.

[61] From just over 4.5 seconds prior to the impact with the parked vehicle to just over 3 seconds prior to the impact (i.e., a period of 1.5 seconds), Mr. A.H.'s car was stopped and the brake was engaged. The accelerator pedal was not depressed. The engine RPM was consistent. The speed of the car was 0 km/h. The steering wheel was turned close to 90 degrees to the right, indicating preparation to turn right.

[62] From just over 3 seconds prior to the impact with the parked car to just over 1 second prior to the impact (i.e., a period of 2 seconds), the driver disengaged the brake. The driver fully engaged the accelerator pedal to 100% engaged. This 100% engagement of the accelerator pedal occurred between 3.55 second before the impact and 3.05 seconds before the impact. Based on this information, it was Constable Wang's evidence that the pressure applied to the accelerator was sudden, hard and fast. The engine RPM suddenly and dramatically increased, more than quadrupling from the previous period. The steering wheel angle suddenly turned from 90 degrees to the right towards the left, peaking at 97.5 degrees to the left, indicating a sudden turning of the wheel towards the left. The speed of the car increased from 0 to 25 km/h.

[63] In the final just over 1 second before the collision with the parked car, the driver fully released the accelerator pedal. The driver engaged the brake. The engine RPM started to drop. The steering wheel was turned back past centre towards the right. The car speed dropped from 25 km/h to 11 km/h at the time of impact.

[64] These data are included in several charts and summaries in Constable Wang's report. Constable Wang noted, and the report notes, that one limit in the data are that they indicate the shift position as "Drive" regardless of the actual shift position. The evidence in this case is uncontroverted that the vehicle was in reverse at the time it hit Mr. Monterossa and the time of the collision with the parked car.

[65] Constable Wang also noted in his evidence that there can be a lag time between depressing the accelerator and the vehicle accelerating. Similarly, there can be a lag time between removing one's foot from the accelerator and the vehicle slowing down.

[66] The vehicle was also examined by a mechanic and no pre-collision defects with the vehicle were identified.

Evidence of Mr. A.H.

[67] A.H. was 18 years old when he testified at trial, and 17 at the time of the alleged offence. Mr. A.H. is from Tennessee, where he lives with his father and siblings. He attends high school, and was in grade 12 at the time of the trial, and grade 10 at the time of the incident. He has been driving since mid-2014, which at the time of the incident was less than one-and-a-half years.

[68] On the date of the incident, he was in Brampton for the wedding of his cousin. He had travelled to Canada with his grandmother and his sister. His aunt had rented a car for them. They were staying in a hotel. On the evening of October 16, their plan was to stay in the hotel, but to drive to Walmart and buy some snacks and food that they could eat in the hotel room. He had been out with his grandmother and sister. But this sister was not feeling well. So they dropped his sister off at the hotel, and he and his grandmother went to the Walmart in the rental car.

[69] Mr. A.H.'s grandmother is mobility impaired and uses a walker. She did not have her walker with her that evening, so Mr. A.H. stopped the car by the Walmart doors, went inside to get her a scooter that Walmart makes available to customers. He got the scooter for his grandmother, and she went into the store to wait for him. He intended to park the car in the parking lot further way from the store, and then walk back to the store to shop with his grandmother.

[70] Mr. A.H. testified that after dropping off his grandmother, he got back in the car and prepared to make a left hand turn up one of the parking aisles. He had turned the steering wheel to the left in anticipation of making the turn. He looked over to the right and saw a man (Mr. Monterossa) hitting the side window of the front passenger door with the palm of his hand. The man hit the side window twice, and did not acknowledge Mr. A.H.. Mr. A.H. honked the horn as the man was about the hit the window a third time. The man looked at him, and walked around the front of the car and over to the driver's side window. Mr. A.H. was reaching to lower the window, when the man hit the driver's window very hard, and then punched it a second time.

[71] Mr. A.H. testified that he was frightened, and just before or just after the third punch to the window he accelerated away from the man, and made the left turn down the parking aisle.

[72] As he turned down the parking aisle, he heard a loud banging sound. He thought that he might have hit the back of a parked car. He continued down the parking aisle to a clear space. He then pulled over to the right and took out his phone to call the police. The 911 recording captures the events from this point on, although only Mr. A.H.'s voice and that of the operator are clear on the call. Mr. A.H. testified that he was afraid because the man banging on his window had tried to break his driver's side window.

[73] As Mr. A.H. was trying to speak to the 911 operator, a woman walked up to his driver's side window (it is clear from all of the evidence that this was Ms Hudson-Ingram). He heard her say something, and so he lowered the window. She said to him that he had hit her stroller. He was shocked and asked if there was a child in the stroller that was hurt. She said that there was not a child in it, but she wanted to know who was going to pay for it. He testified that the woman was extremely upset and screaming very loudly. He was a little bit frightened of her because of her demeanour and how angry she was. Since she had told him no-one was hurt, he thought that the best thing to do was to get the police on the scene, so they could sort out any property damage. So, he drove away from the woman to put some distance between himself and her, and so he could focus on talking to the 911 operator.

[74] He pulled closer to the feeder road that separated the two parking lots (but which is still within the parking lots as can be seen from the photo exhibits filed at trial). He stopped his car next to two concrete medians at the end of the Walmart parking lot. As he stopped, a black car pulled up very quickly in front of him (this was Mr. Monterossa's car).

[75] The driver's side door of the other car immediately opened, and Mr. Monterossa got out of his car. He walked around the front of his car and approached Mr. A.H.'s car. Mr. A.H. could see that the man looked angry, and as he approached Mr. A.H.'s car, Mr. A.H. recognized that it was the same man who had banged on his car in front of the Walmart doors. At the time Mr. A.H. realized it was the same man, Mr. Monterossa was two to five yards away from Mr. A.H.'s car. Mr. Monterossa was moving quickly towards Mr. A.H..

[76] Mr. A.H.'s driver side window was still open from speaking to Ms Hudson-Ingram about the stroller. Without saying anything, Mr. Monterossa immediately reached in through the window while Mr. A.H. was still on the phone with 911. Mr. A.H. testified that Mr. Monterossa had his arms, shoulders and head into the car. He could not recall exactly how much of Mr. Monterossa was in the car, but at least his upper chest, and he was kind of over the steering wheel area.

[77] Mr. A.H. testified that he was "absolutely terrified" and "panicking". Mr. A.H. had no idea what Mr. Monterossa was angry about, and he testified that he felt Mr. Monterossa had chased him from the Walmart and now was going to climb into the car with him. Mr. A.H. testified that he felt that he would be "completely at his mercy" if Mr. Monterossa was able to get him out of the car or disable the car. He said Mr. Monterossa grabbed his right arm as it was still on the steering wheel. Mr. A.H. pulled his own hand away.

[78] Mr. A.H. testified that he did not just stay and wait, because he was afraid that if Mr. Monterossa turned the car off or got him out of the car, he would not get a chance to continue his call with 911 and get the police on the scene. At the time, Mr. A.H. did not notice any other people in the area.

[79] Mr. A.H. testified that he was screaming at the 911 operator, but could not remember what he said. He reached for the gear selector on the right hand side of the steering column. He put the car into reverse so that he could back away. The car would not move initially. After a few tries Mr. A.H. realized he was hitting the brake pedal and not the accelerator. He made a conscious effort to find the accelerator. This all took place in a matter of seconds. He found the accelerator and hit it so he could back away. He testified that he could not remember how much force he applied to the accelerator, but he agreed that he accelerated pretty quickly.

[80] Mr. A.H. testified that he remembered the car spinning out of control. Mr. Monterossa fell out of the driver's side window. Mr. A.H. heard a loud thumping sound. He passed what looked like a parked car. His car continued to spin out of control. It finally came to a stop facing some parking spaces. He pulled forward maybe a yard or so into one of the parking spaces, and put the car in park.

[81] He did not see Mr. Monterossa. He opened the driver's side door and looked around. He saw Mr. Monterossa lying under the parked car. Mr. A.H. walked towards where Mr. Monterossa way lying. Mr. A.H. testified that he was "mortified" and did not know what to do. Another man came up to him, and Mr. A.H. asked the man to take his phone and tell the 911 operator where he was (the 911 call and Mr. Pandher's evidence is clear that this was Mr. Pandher).

[82] Mr. A.H. testified that his intent when he put the car in reverse and accelerated was that Mr. Monterossa would fall out of the driver's side window, and he could then back away from him, to get some distance from him, and also so he would be able to see Mr. Monterossa if he came towards him again.

[83] Mr. A.H. testified that at the time of the trial he was approximately 5' 9" tall, and weighed 130 pounds, and that at the time of the incident he was probably a few inches shorter and weighed about 120 pounds.

[84] In cross-examination Mr. A.H. testified that he and his sister and grandmother had arrived in Canada on October 14 or 15. They planned to stay for one week. The car was rented either earlier in the day on October 16, or the day before from Enterprise Rent a Car. His aunt rented the car. Mr. A.H. denied that as a 17 year old he was not entitled to drive the car (I note that no evidence as to the terms of the rental contract was tendered at trial).

[85] Mr. A.H. agreed in cross-examination that at the time of the incident he had a full driver's license from the state of Tennessee, and had had it for a little over a year. Although he was not required in Tennessee to take formal driver education before getting his license, he had to log a certain number of hours driving and take a written and in car test before getting his license. He agreed that the driver's handbook had talked about defensive driving.

[86] Mr. A.H. agreed that there was a clearly marked pedestrian area in front of the Walmart doors. He agreed that in a pedestrian area, pedestrians get the right of way. But he disagreed that there was something in his driving where he failed to give Mr. Monterossa the right of way at the Walmart doors.

[87] Mr. A.H. denied that Mr. Monterossa slapped his hands on the hood of his car outside the Walmart doors. He denied that Mr. Monterossa said, "slow down". He testified that at the time of the confrontation with Mr. Monterossa outside the Walmart doors, his car was not moving and had not been moving for a short period of time. Mr. A.H. testified that in his view Mr. Monterossa was banging on his car window for no reason outside the Walmart doors.

[88] Mr. A.H. agreed that after dropping off his grandmother with the scooter, he pulled away from the sidewalk before starting his left and turn. But he disagreed with the suggestion that he did so quickly.

[89] In cross-examination, Mr. A.H. testified that he honked his horn when Mr. Monterossa was banging on the passenger side window in order to get his attention, because Mr. Monterossa was not looking at him. He testified that he wanted to get his attention so that Mr. Monterossa would come over to the driver's side window, and Mr. A.H. could see what he wanted. But he said he became frightened when Mr. Monterossa banged on the driver's side window.

[90] Mr. A.H. testified that Mr. Monterossa was by his driver's side door, hitting the window, when he made the turn up the parking aisle and way from the Walmart doors. Mr. A.H. testified that he was looking in front of him when he turned. He denied that he made the turn in a reckless manner. He said he was as careful as could be expected under the circumstances.

[91] Mr. A.H. agreed that outside the Walmart doors he had his car windows up, and the car doors were locked. He agreed that Mr. Monterossa was an adult, but said he was not certain of his age. He agreed that Mr. Monterossa was not hitting his car with any kind of object or weapon, but was using his hand. But he maintained that he felt afraid and that was why he made the high speed left turn up the parking aisle (where he then hit the stroller). He denied the suggestion that he was safe in the locked car outside the Walmart doors, and could have made a safe, reasonable turn.

[92] Mr. A.H. testified that he did not see the stroller as he turned (but did not deny that he hit it). He said he did not notice that the passenger mirror was missing after he heard the loud bang (when he hit the stroller).

[93] In cross-examination Mr. A.H. agreed that he considered that making the left turn up the parking aisle at high speed potentially put people or property at risk, although he said he did not see any people. But he felt that the action was necessary in the circumstances. Mr. A.H. also accepted that if he had done a turn on his driving test like the left turn he made leaving the Walmart doors, he would have failed his driving test.

[94] In cross-examination, Mr. A.H. testified that when Mr. Monterossa later approached his car after blocking his path with his car, he (Mr. A.H.) did not try and put his driver's window back up. Nor did he say anything to Mr. Monterossa like, "what's your problem?" Mr. A.H. said that Mr. Monterossa was not saying anything. Mr. A.H. testified that he (Mr. A.H.) initially said, "I'm sorry, I'm sorry" before he realized it was the same man from outside the Walmart doors, because he thought he might have caused him some property damage. Mr. A.H. denied he was saying, "I'm sorry, I'm sorry" because he realized it was the man from outside the Walmart doors, and he realized he had done something to cause Mr. Monterossa to pound on his car outside the Walmart doors.

[95] In response to the suggestion by Crown counsel that when Mr. Monterossa was reaching into the car, he was trying to get the keys, Mr. A.H. replied, "I would agree that he was definitely trying to somehow disable the vehicle or get me out of it." He testified that he did not give Mr. Monterossa the keys because, "Mr. Monterossa was attacking me." Mr. A.H. agreed that Mr. Monterossa did not cause him any injuries. He agreed that he did not remember Mr. Monterossa saying any threatening words to him when he was reaching into the car (but he characterized the banging on the car by the Walmart doors as threatening). He agreed that Mr. Monterossa did not have any weapons. He also agreed that although he was worried that Mr. Monterossa would try and get him out of the car, Mr. Monterossa had not tried to get him out of the car at the time he put the car into reverse. Mr. A.H. did not agree that Mr. Monterossa was trying to get the keys when he reached into the car. He said he did not know exactly what Mr. Monterossa was trying to do.

[96] Mr. A.H. agreed that Mr. Monterossa had half his body in the car when he put the car into reverse, and Mr. A.H. was aware of that at the time. Mr. A.H. agreed that he knew it was possible that Mr. Monterossa would be injured when he put the car in reverse. He agreed with Crown counsel's suggestion that he had decided that the risk of injury to Mr. Monterossa was worth the risk in the circumstances. Mr. A.H. agreed that if during his driving test he had done the maneuver of reversing like he did with Mr. Monterossa reaching into the car, he would have failed his driving test. Mr. A.H. agreed that he considered the risk and danger to Mr. Monterossa when he reversed. However, he denied that he saw other people around at that time.

[97] Mr. A.H. agreed in cross-examination that before he reversed he had his foot on the break. He checked his rear view mirror. He put the gearshift in reverse. He took his foot off the brake. And then he floored the accelerator. He agreed that these were deliberate actions and he knew what he was doing.

2. Findings of Credibility and Reliability, and Findings of Fact

General Principles on Credibility

[98] In assessing the credibility and reliability of evidence, I may accept all, some or none of the evidence of any witness. In considering the assessment of credibility and reliability of witnesses, I must do so in accordance with the burden of proof being on the Crown beyond a reasonable doubt. The reasonable doubt standard applies to issues of credibility and reliability of evidence. In general, W.D. holds that if I believe the evidence of the defendant, I must acquit. If I do not believe the evidence of the defendant, but it leaves me with a reasonable doubt, I must acquit. Further, even if the evidence of the defendant does not leave me with a reasonable doubt, I can only convict if the evidence as a whole persuades me beyond a reasonable doubt of the defendant's guilt.

[99] Further, as I will discuss in more detail in relation to self-defence, if I find that there is an air of reality to the defendant's claim of self-defence, then the Crown bears the burden to negative at least one of the pre-conditions to self-defence beyond a reasonable doubt.

[100] I add the proviso, "in general" to my comments about the W.D. approach to credibility for the following reason. To the extent that the offence at issue, dangerous driving, is based on an objective standard, and to the extent that the law of self-defence requires the assessment of both subjective and objective factors, it can be the case that even if some or all of a defendant's version of events is accepted, depending on all of the circumstances, the defendant's version of events in the context of other facts found by the court, may be such that a court could still find that the Crown has proven the elements of dangerous driving beyond a reasonable doubt because of the objective aspects of the elements of the offence. Similarly, even if a court accepts some or all of a defendant's version of events, in the context of other facts found by the court, the court may find that because of the objective aspects of the defence of self-defence, that the Crown has disproved a claim of self-defence beyond a reasonable doubt.

[101] For reasons I will explain, this is a case where I accept some aspects of the evidence of many of the witnesses, but do not accept all of their evidence. In the case of the civilian witnesses, the aspects of their evidence I have concerns about generally relate either to the fact that they did not see all of the events, that their opportunity to observe was less than ideal, or that their evidence is contradicted by other evidence that I find to be reliable. This is the case also in respect of the evidence of the defendant. I believe much of his evidence, or am left in a reasonable doubt by it, but there are aspects of his evidence that I find are not reliable, and for this reason that I do not believe and that do not leave me with a reasonable doubt. For the sake of clarity about the facts I am finding, I will make some comments on the credibility and reliability of each witness, including the defendant. Then I will outline my findings of fact with respect to the events leading to Mr. Monterossa's death.

(i) Assessment of Credibility and Reliability of Witnesses

Natasha Ingram

[102] I find that Natasha Ingram was an honest and credible witness. She was consistent in her evidence. She was a careful witness and was clear about what she saw and what she did not see. I accept much of her evidence. However, as she conceded in cross-examination, she did not see the whole interaction between Mr. A.H. and Mr. Monterossa by the Walmart doors, because she was not watching the whole time, and because her attention was at times on her children and loading her vehicle.

[103] I accept Ms Ingram's evidence that she heard a noise by the Walmart doors and looked over, at that time she saw Mr. Monterossa hit the hood of the defendant's car and say words to the effect of, "Don't you see me." She then looked away and 30 to 45 seconds later hears screeching tires. She then looked away, and then 5 seconds later heard the smash which turned out to be Mr. A.H.'s car hitting her stroller.

[104] However, I also find that Ms Ingram did not see the events prior to seeing Mr. Monterossa bang on the hood of the car, nor did she keep watching after she saw the bang on the hood. Thus, she is not in a position to contradict Mr. A.H.'s evidence of the banging on the passenger window before and on the driver window after. I note that banging on a car window, made of glass, would not be expected to make as much noise as banging on the metal hood of a car. Further, I find that the fact that Ms Ingram testified that she heard something by the Walmart doors, and then looked and saw Mr. Monterossa bang on the car hood and say, "Don't you see me", lends some support to the defendant's evidence that there was more than one bang on his car.

Metaiya Hudson-Ingram

[105] Similarly, I find that Metaiya Hudson-Ingram was an honest and credible witness. She was consistent in her evidence. Ms Hudson-Ingram's evidence does not shed any light on the events in front of the Walmart doors, because she was not paying attention to those events. I accept Ms Hudson-Ingram's evidence about hearing a car engine rev, and then seeing Mr. A.H.'s vehicle make a sharp turn up the parking aisle, going too fast, and hit the stroller behind their vehicle. I accept her evidence that the car then proceeded for 5 to 10 metres and stopped in some parking spaces. Ms Hudson-Ingram's evidence of her interaction with Mr. A.H. about the fact of him having hit the stroller is not significantly different from Mr. A.H.'s evidence, or from the 911 tape. However, I do find that Ms Hudson-Ingram was screaming when she spoke to Mr. A.H., based on the 911 tape.

[106] I accept Ms Hudson-Ingram's evidence that after that interaction, Mr. A.H. drove on and proceeded towards the main road within the parking lot. His vehicle was then cut off by Mr. Monterossa's vehicle. She was not sure if Mr. A.H.'s vehicle was already stopped when he was cut off. I accept her evidence that Mr. Monterossa then approached Mr. A.H.'s vehicle and was speaking to Mr. A.H. in a loud voice, but she could not hear the words. I accept her evidence that Mr. Monterossa reached into Mr. A.H.'s driver side window, and then while he was still reaching in, Mr. A.H.'s car moved in reverse quickly, and Mr. Monterossa went down, and that as the car reversed, it hit a parked car.

Charlene Watt

[107] Charlene Watt was parked further up the parking aisle than Ms Ingram and Ms Hudson-Ingram, and on the other side of the aisle. I accept her evidence as credible, but she was not watching all aspects of the events leading to Mr. Monterossa's death, because she was concerned about dealing with her young daughter. I accept her evidence that she saw Mr. A.H.'s car hit something (the stroller). I accept her evidence that Mr. A.H.'s car drove extremely fast past her and her daughter, and then stopped in some parking spots. I accept her evidence that she saw a woman (Ms Hudson-Ingram) approach the car, and heard her yelling at the driver of the car about the stroller. I also accept Ms Watt's evidence that she saw a car, which I find was Mr. Monterossa's drive up the parking aisle and block Mr. A.H.'s car. She did not see all of the interaction that followed. But I accept that she saw Mr. A.H.'s car reverse at a fast rate of speed, and smash into the median and into a parked car. I accept that Ms Watt did not see Mr. Monterossa reach into Mr. A.H.'s car, but that she was distracted at that point because she was trying to comfort her daughter who was screaming.

Alvin Appiah

[108] Although I accept that Mr. Appiah was doing his best to honestly recount events as he recalled them, I find that in one significant respect, his evidence is not reliable. I find that Mr. Appiah's evidence of where Mr. Monterossa was standing when Mr. A.H. reversed his vehicle is not reliable. It is not consistent with evidence which I do accept about Mr. Monterossa reaching into Mr. A.H.'s car (Ms Hudson-Ingram's evidence, and as I will explain, Mr. A.H. evidence). Nor is Mr. Appiah's evidence consistent with the evidence of the mechanics of the collision. I note as well that Crown counsel did not suggest that Mr. Appiah was correct that Mr. Monterossa was away from the defendant's car; rather, Crown counsel put forward his case accepting that Mr. Monterossa was reaching into Mr. A.H.'s car at the time Mr. A.H. reversed. I note that Mr. Appiah testified that he was one the phone with his partners at the time he witnesses these events, which may explain why his recollection is not accurate about where Mr. Monterossa was standing. Also, Mr. Appiah was some distance away when he was first observing. I note that Mr. Appiah's more general evidence about the position of the vehicles and the movement of Mr. A.H.'s vehicle in reverse is generally consistent with the other civilian witnesses.

Kimberly-Ann Crough

[109] I find that Kimberly-Ann Crough was an honest witness. She was consistent in her evidence. But as she was at the further away set of Walmart doors, her opportunity to observe the initial commotion by the other Walmart doors between Mr. A.H. and Mr. Monterossa was limited. I accept her evidence that she heard something like a banging noise of someone pounding on a car. But given that she was so far away and could not really see, I find that she does not assist in shedding light on whether Mr. Monterossa hit Mr. A.H.'s car multiple times. She was not in a position to observe this one way or another. I accept her evidence about hearing tire squealing and then hearing a car hit something (at a time which I find is Mr. A.H.'s car hitting the stroller, based on the whole of the evidence). I accept that within minutes of that she heard tires squealing again from the area towards the Staples parking lot, and then heard a car hit something (I find based on the evidence as a whole that this was the collision that caused Mr. Monterossa's death).

Domenic Gaslard

[110] I find the evidence of Domenic Gaslard to be of limited assistance. During the time he was observing the events, he was some distance away, observing through the rear view mirror of his sister's car, which he was waiting in, and he was on the phone to his mother in Newfoundland. I accept that Mr. Gaslard's memory of events was likely fresher when he gave his statement to police than at the time of trial. I accept that at times in his trial evidence he seemed to adopt what he said in his statement to police. But his initial evidence in chief at trial was not consistent with his statement to police, in that it did not contain the assertion in his statement to police that Mr. Monterossa not only reached into Mr. A.H.'s vehicle, but tried to pull Mr. A.H. out of the car, and they were pulling at each other at the point when Mr. A.H. reversed his car. I accept, in light of the evidence of other witnesses, Mr. Gaslard's evidence that Mr. Monterossa was reaching into Mr. A.H.'s vehicle at the time Mr. A.H. reversed. But I do not accept Mr. Gaslard's evidence, to the extent he adopted his statement to police, that Mr. Monterossa tried to pull Mr. A.H. out of the vehicle, or that the men were pulling back and forth when Mr. A.H. reversed. I do not accept this evidence for two reasons. First, as I have noted, the conditions of Mr. Gaslard's observations were not conducive to perceiving a reliable account of events, since he was some distance away, watching in the rear-view mirror, and on the phone. Second, Mr. A.H. himself did not suggest that Mr. Monterossa was actually pulling at him when he reached into the car, or that at any point they were pulling at each other.

Gagandeep Pandher

[111] I accept the evidence of Gagandeep Pandher as credible as far as it goes, but as he agreed in cross-examination, his viewing point was such that there are things he may have missed. I accept that when he came out from the Walmart, from a distance he saw Mr. Monterossa's vehicle blocking Mr. A.H.'s vehicle. He saw Mr. Monterossa come over to the driver's side window of Mr. A.H.'s car. Because he was watching from a distance and from the passenger side, he was not able to see if Mr. Monterossa was reaching into the car or not. Mr. A.H.'s vehicle then reversed with Mr. Monterossa standing right beside it. The car turned counter-clockwise as it reversed. Mr. Monterossa was dragged by the car, but he could not see exactly how. Mr. A.H.'s car hit a parked car as it reversed and turned.

Constable George Wang

[112] I accept the evidence of Constable Wang and the accident report about the mechanism of the collision. Constable Wang's evidence was not contested by the defence, and his evidence is supported by the vehicle crash data from Mr. A.H.'s vehicle, and also is generally consistent with the evidence of the civilian witnesses, and with Mr. A.H.'s evidence about the movements of the car in the final collision.

Mr. A.H.

[113] I accept much of the defendant's evidence. He was generally consistent in his evidence. I note as well that aspects of his evidence are confirmed by other witnesses. For example, Ms Ingram and Ms Crough corroborate to some extent Mr. A.H.'s evidence of Mr. Monterossa banging on Mr. A.H.'s car outside the Walmart doors, and because of their not seeing the full events, cannot rule out that Mr. Monterossa hit Mr. A.H.'s car multiple times. Similarly, other witnesses confirm Mr. A.H.'s evidence that Mr. Monterossa was reaching into his vehicle at the time he reversed. Further, I find that the 911 call is corroborative of how quickly events occurred, and of Mr. A.H.'s state of mind (i.e., of that he subjectively felt fear).

[114] The areas where I have concerns about Mr. A.H.'s evidence relate to the reliability of some aspects of his evidence, his perception of events while he was on the phone to 911, and as I will explain further in the course of the legal analysis, the reasonableness of his assessment of the level of threat posed by Mr. Monterossa in the circumstances known to Mr. A.H..

[115] One area where I do not find the defendant's evidence to be reliable is his evidence that he did not do anything in his driving that led Mr. Monterossa to hit his car outside the Walmart doors. As I will explain in my findings of fact, I am unable to make a finding of fact as to exactly what occurred to precipitate Mr. Monterossa hitting the car. But I find Mr. A.H.'s evidence that there was nothing in his driving that would have caused Mr. Monterossa to hit his car (just to give an example, like cutting Mr. Monterossa off was he walked) is not reliable. The nature of the action of a driver cutting off a pedestrian is that in most cases, it is done unintentionally, because the driver did not see the pedestrian. In some cases, the driver realizes after the fact what happened. In some cases, the driver does not realize. While I accept that Mr. A.H. is being honest in saying that he is not aware of anything he did outside the Walmart doors in terms of his driving to cause Mr. Monterossa to hit his car, I do not accept that Mr. A.H. can reliably say whether he did or not. Clearly his evidence was that when Mr. Monterossa started hitting his car, Mr. A.H. had already pulled away from the curb, and was waiting to make his turn. I find that Mr. A.H. cannot reliably say if he may have cut off Mr. Monterossa in pulling away from the curb.

[116] Similarly, I find that Mr. A.H. in honest in saying that he did not hear Mr. Monterossa say "slow down" or words to that effect when he banged on the car. However, I find that Mr. A.H.'s evidence in that regard is not reliable. He had his car windows closed at that point, and may not have heard.

[117] I accept Mr. A.H.'s evidence that Mr. Monterossa hit his car multiple times, although I find that Mr. A.H. cannot reliably say exactly how many times. Repeatedly in his evidence Mr. A.H. said he was not sure of details because of how quickly things happened and his fear. I find that the hitting included hits to the windows, and to the hood. I also accept Ms Ingram's evidence that Mr. Monterossa said something like, "Don't you see me" as he hit the hood of the car.

[118] Apart from the issue of what occurred by the Walmart doors, the defendant's evidence about his driving behaviour is not inconsistent with the civilian witnesses. He admits that he turned fast and accelerated as he turned up the parking aisle. He admits he hit something when he turned up the parking aisle (which turned out to be the stroller). I note that although I accept Mr. A.H.'s evidence that he was frightened when he made the decision to make the fast turn down the parking aisle, and ended up hitting the stroller, at the time Mr. Monterossa was hitting Mr. A.H.'s car, Mr. A.H. was near the front doors of the Walmart, and the windows of his car were up and the doors were locked.

[119] I accept Mr. A.H.'s evidence of Mr. Monterossa reaching into his vehicle through the driver side window at the time of the final collision. Mr. A.H.'s description of the reversing as Mr. Monterossa was reaching into the vehicle is consistent with much of the evidence of the civilian witnesses, in particular Ms Hudson-Igram, whose evidence I accept. I accept Mr. A.H.'s evidence that he was afraid because he realized that Mr. Monterossa was the same man who banged on his car outside the Walmart doors, and he felt that the man had followed him, and now cut him off and was reaching into his car. But although I accept Mr. A.H.'s evidence that Mr. Monterossa was reaching into the car, and I accept Mr. A.H.'s evidence that he was afraid because he realized it was the same man he had had the altercation with outside the Walmart doors, I note the following as well. Mr. A.H. agreed that Mr. Monterossa did not have a weapon. Mr. A.H. testified that he did not know what Mr. Monterossa's intentions were in reaching into the car, and this is part of why he was afraid, but he did not suggest that Mr. Monterossa either uttered any threatening words to him, or hit him or tried to hit him. I will address these factors further in the legal analysis in relation to self-defence.

[120] Further, as I have noted above, my acceptance of much of the defendant's evidence does not end the legal analysis, in the sense that I must still consider whether his actions were reasonable, both in the context of the elements of dangerous driving, and in the context of the objective elements of self-defence.

(ii) Findings of Fact

[121] Based on the evidence as a whole, and applying the W.D. analysis to issues of credibility and reliability, I make the following findings of fact about the events leading up to Mr. Monterossa's death.

[122] Mr. A.H. attended at the Walmart with his grandmother. He dropped her off and got her a scooter and left her waiting inside the store. He returned to the rental car he was driving. He pulled away from the curb, and prepared to make a left hand turn down the parking aisle.

[123] As I have noted above, I am unable to make any finding of fact as to what, if anything occurred to cause Mr. Monterossa bang on Mr. A.H.'s car. I find, based in particular on Ms Ingram's evidence, that Mr. Monterossa perceived that Mr. A.H. did something he did not agree with in his driving. Whether Mr. A.H. in fact did something, such as for example, cutting off Mr. Monterossa, I am unable to make a finding about one way or the other. As I have noted, I find Mr. A.H.'s evidence that he did not do anything in his driving that would have caused Mr. Monterossa to hit his car unreliable, because Mr. A.H. could have done something inadvertently. As there is no witness who saw what happened before Mr. Monterossa hit Mr. A.H.'s car, I make no finding as to what did or did not occur that led Mr. Monterossa to hit Mr. A.H.'s car.

[124] I accept Mr. A.H.'s evidence that Mr. Monterossa hit his car multiple times, although I find that Mr. A.H. cannot reliably say exactly how many times. Repeatedly in his evidence Mr. A.H. said he was not sure of details because of how quickly things happened and his fear. I find that the hitting included hits to the windows, and to the hood. I also accept Ms Ingram's evidence that Mr. Monterossa said something like, "Don't you see me" as he hit the hood of the car.

[125] The action by Mr. Monterossa of banging on the car did display some level of aggression. But I do not accept Mr. A.H.'s belief that Mr. Monterossa was trying to break the driver side window, as he did not have a weapon, and one would not reasonably expect a fist to break an automotive glass window.

[126] At the time Mr. Monterossa was hitting Mr. A.H.'s car, Mr. A.H. was still near the Walmart doors, and preparing to make his left hand turn. There were other people around. Mr. A.H. had the car windows closed, and the car doors were locked.

[127] Mr. A.H. then accelerated and made a fast left turn up the parking aisle. I accept the evidence of the civilians that the engine revved loudly and the car tires squealed. He proceeded fast up the parking aisle, and hit Ms Ingram's stroller. He then proceeded a little further up the parking aisle, not initially slowing down, but then pulled over before the end of the parking aisle in some parking spaces. At this point Mr. A.H. called 911, and events from this point are captured on the 911 recording. The recording clearly captures all of Mr. A.H.'s words, but the words of people outside the car, such as Ms Hudson-Ingram and Mr. Monterossa are not clear.

[128] Mr. A.H. then had the interaction with Ms Hudson-Ingram about the fact that he had hit the stroller. Based on the 911 call, I find that Mr. A.H. sounds upset about the fact that he hit the stroller, and asks immediately if there had been a child in it. I find that Ms Hudson-Ingram was (understandably) upset and was yelling at Mr. A.H.. The 911 call corroborates this. Mr. A.H. rolled down his driver side window while speaking to Ms Hudson-Ingram, and it remained down.

[129] I find that Mr. A.H. then continued driving over one or two parking aisles, and then towards the main road which is within the mall parking lot and separates the Walmart parking area from the Staples parking area. A number of the civilian witnesses testified that they thought Mr. A.H.'s vehicle was proceeding towards an exit of the parking lot. I understand why the civilians would draw this conclusion, since the car was going to the through road within the parking lot. But I accept Mr. A.H.'s evidence that he was intending to go and park. Since his grandmother was in the store, I do not find that he intended to leave the parking lot.

[130] Before Mr. A.H. turned onto the main road within the parking lot, Mr. Monterossa pulled his car in front of Mr. A.H.'s vehicle to block its path. I accept Mr. A.H.'s evidence that his own car was stopped already at the time Mr. Monterossa blocked his path. This is consistent with Mr. A.H. being at the end of the parking aisle, and preparing to turn onto the main through road within the parking lot.

[131] It is clear from the evidence of the various civilian witnesses that many people in the parking lot were aware that a stroller had been hit by a car. It is also clear that at least some people were under the mistaken impression that a child had been in the stroller. I find that Mr. Monterossa was nearby these events when they happened, based on his being at the Walmart doors at the time of the initial interaction with Mr. A.H., and based on Ms Watt's evidence of Mr. Monterossa's car coming past her up the parking aisle as it went to block Mr. A.H.'s car. Although I cannot make findings of the details of what was in Mr. Monterossa's mind when he blocked Mr. A.H.'s car, I find that I can make the finding that in all the circumstances, Mr. Monterossa was concerned about Mr. A.H.'s driving, and blocked his car and approached the car in order to stop him driving. This is the only logical explanation for Mr. Monterossa's actions in the context of all of the evidence.

[132] After blocking Mr. A.H.'s car, Mr. Monterossa got out of his vehicle, and approached Mr. A.H.'s car. Mr. Monterossa reached into Mr. A.H.'s vehicle, reaching in the area of the steering wheel. He took hold of Mr. A.H.'s right arm, but Mr. A.H. was able to pull his arm away. I find that Mr. Monterossa had both of his arms in the car, and some of his upper body. Mr. Monterossa did not have any weapon in his hands when he reached into the car. He did not strike or hit Mr. A.H.. He did not say threatening words to Mr. A.H. as he reached into the car. Objectively, considering all of the evidence, I find that Mr. Monterossa was reaching in the car to try and get the car keys to stop Mr. A.H. from driving any more. Mr. A.H., although he testified that he did not know why Mr. Monterossa was reaching into the car, agreed that it could have been to get the keys.

[133] I accept Mr. A.H.'s evidence that as Mr. Monterossa approached his car, Mr. A.H. realized that he was the same man he had had the altercation with outside the Walmart doors. I accept that Mr. A.H. subjectively felt fear as a result of realizing it was the same man, and thinking he had followed him from the Walmart doors. I accept Mr. A.H.'s evidence that he made the decision to reverse the car because he was afraid and wanted to get further away from Mr. Monterossa.

[134] Based on the 911 call, I find that it was in the range of 1 minute and 20 seconds from the time Mr. A.H. first stopped to call 911 after hitting to stroller (and shortly thereafter spoke to Ms Hudson-Ingram), until the time he put the vehicle in reverse causing the collision that caused Mr. Monterossa's death. Also based on the 911 call, I find that it is in the range of 30-40 seconds from the time Mr. Monterossa blocked in Mr. A.H.'s car and approached him on foot, to when Mr. A.H. put the car in reverse.

[135] I find that Mr. A.H. was aware of the risk of harm to Mr. Monterossa when he put the car in reverse and accelerated quickly while Mr. Monterossa was reaching into his car, but decided to take that risk in the circumstances. Mr. A.H. admitted this in cross-examination.

[136] I find that the mechanism of the final collision that caused Mr. Monterossa's death was that while Mr. Monterossa was reaching into Mr. A.H.'s driver side window, with the car initially stopped, Mr. A.H. turned the car steering wheel from being hard turned to the right to hard turned towards the left. Mr. A.H. quickly depressed the accelerator to 100% depressed – in other words, floored it. The car suddenly moved in reverse, turning counter-clockwise. Mr. Monterossa was dragged down and under Mr. A.H.'s car and run over by the front driver side wheel. As the car spun, the front end hit a parked car. Mr. Monterossa's body came to rest under the wheels of the parked car. Mr. A.H.'s vehicle spun in total between 180 and 360 degrees. This all took place in 3 to 4 seconds. As noted, I accept Constable Wang's evidence and the crash data report summarized at paragraphs 60-66 above. The evidence of Mr. A.H. and of the civilian witnesses whose evidence I find reliable regarding the events of the final collision is generally consistent with Constable Wang's evidence about the mechanism of the collision.

[137] As noted above, it is agreed that Mr. A.H.'s driving conduct caused Mr. Monterossa's death, by inflicting multiple blunt force injuries to his chest area.

[138] It is also agreed that Mr. Monterossa was 5' 7½" tall and weighed 249 pounds at the time of his death.

[139] I make findings of fact in addition in relation to Mr. A.H.'s use of his cell phone during the time of his driving. I accept, based on Mr. A.H.'s evidence, and the 911 call, that Mr. A.H. was on the phone to 911 from the time he pulled over after hitting the stroller (i.e., from shortly before Ms Hudson-Ingram approached his car to speak to him) until after he had reversed and hit Mr. Monterossa. It is clear both from Mr. A.H.'s own words on the 911 call, and the repeated requests from the dispatcher that he pay attention to her and answer her questions, that at times Mr. A.H. was focusing on the 911 call, and at times he was focussing on the events occurring around him and his driving. The 911 dispatcher repeatedly asks Mr. A.H. to listen to her and respond to her questions. At times, he is responsive to her questions. At other times he is not responsive. Also at times he can be heard interacting with people where he is present. I find that Mr. A.H. was alternating his attention between the 911 conversation on the one hand, and the events going on around him and his driving on the other. He was not giving his full attention either to the 911 conversation, or to the events around him or to his driving.

3. Dangerous Driving Law and Finding

[140] As noted above, counsel for Mr. A.H. did not contest that Mr. A.H.'s driving which led to Mr. Monterossa's death constituted dangerous driving. It was also conceded by counsel for Mr. A.H. that Mr. A.H.'s driving caused Mr. Monterossa's death.

[141] The law in relation to the elements of the offence of dangerous driving is well established. The Supreme Court of Canada considered the mens rea and actus reus comprehensively in the decision of R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60. The actus reus of dangerous driving is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated, and the amount of traffic that at the time was or might reasonably have been expected at that place: see Roy at paras. 28, 33-35.

[142] The mens rea is that the degree of care exercised by the defendant was a marked departure from the standard of care that a reasonable person would observe in the same circumstances. The test is a modified objective one – considering how a reasonable person "placed in the accused's circumstances" would have acted. It is important to distinguish the fault element required for the criminal offence of dangerous driving from civil negligence, otherwise the net of criminal liability is cast too widely. The mens rea can be considered by asking two questions: first, in light of all of the relevant circumstances, would a reasonable person have foreseen the risk and taken steps to avoid it, if possible? Second, was the defendant's failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the defendant's circumstances. The distinction between a mere departure from the standard of care of a reasonable person, which may support civil liability, and a marked departure, which is necessary for criminal fault, is a matter of degree. If a trier of fact is to find that a defendant's conduct was a marked departure from the standard of a reasonable person, the trier of fact should be able to identify how and in what way the conduct went beyond mere carelessness: Roy at paras. 28, 30-32, 36-42.

[143] It is also important to note that in applying the modified objective test for the mens rea of dangerous driving, although the circumstances the defendant finds themselves in are to be considered, the personal attributes of the defendant, such as age, or inexperience driving are not relevant and not to be considered, unless they rise to the level of an incapacity of the particular defendant to appreciate or avoid the risks at issue: Roy, supra at para. 38; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 at paras. 39-40. There is no suggestion in this case that the Mr. A.H. lacked the capacity to appreciate the risks at play in his driving on the date of the incident. While I find that Mr. A.H. was not a very experienced driver, having had his driver's license for just over one year at the time of the incident, that factor is not relevant to the assessment of whether his driving constituted a marked departure from the standard of a reasonable person.

[144] As noted above, counsel for Mr. A.H. did not contest that his conduct amounted to dangerous driving. I have no difficulty finding that in the circumstances the elements of dangerous driving are proven beyond a reasonable doubt. I note that in reaching this conclusion, I consider the driving immediately prior to Mr. Monterossa's death (the reversing and flooring the accelerator) to be the driving conduct at issue in the charge. However, I also consider the whole course of Mr. A.H.'s driving from the time he made the fast, squealing turn away from the Walmart doors as context.

[145] The driving took place in the early evening, in a mall parking lot. This is a place where one would expect pedestrians and other cars to be around, and on the evidence they were around. Mr. A.H. proceeded too fast in making his initial left hand turn up the parking aisle. He clearly was not keeping an adequate lookout since he did not see the stroller and hit it. I find that the fact he hit the stroller was due to him driving significantly too fast for the area, and not keeping a proper lookout in front of him. Further, when Mr. A.H. suddenly put the car into reverse and floored the accelerator, Mr. Monterossa was reaching into his vehicle. Clearly, reversing in this situation posed a significant risk to Mr. Monterossa, and reversing so suddenly and flooring the accelerator posed a risk to any members of the public who could be nearby. All of these circumstances were dangerous to the general public in the mall parking lot, and the reversing suddenly and flooring it was dangerous to Mr. Monterossa in particular. Thus, the actus reus of dangerous driving is proven beyond a reasonable doubt.

[146] I further find that a reasonable person would have foreseen the risk of the initial high speed turn which led to the hitting of the stroller, and would have taken steps to avoid it (driving more slowly, watching more carefully being obvious steps – as Mr. A.H. was in his locked vehicle, nothing prevented him from proceeding more slowly). A reasonable person would have foreseen the risk to Mr. Monterossa when reversing at speed with him leaning in the car. Indeed, Mr. A.H. admitted her foresaw the risk to Mr. Monterossa of his conduct, yet he proceeded anyhow. A reasonable person would have taken steps to avoid that risk. Whether this conduct was justified as self-defence is an issue I will turn to in a moment, but I find that Mr. A.H.'s conduct in reversing at speed and suddenly with Mr. Monterossa leaning in the window was a marked departure from the conduct of a reasonable person in all the circumstances.

[147] For these reasons, I am satisfied, subject to considering the self-defence claim, that the Crown has proven the elements of dangerous driving causing death.

4. Law in Relation to Self-Defence

[148] Self-defence is an affirmative defence. There must be an air of reality to the defence before the Court is obliged to consider it and before the Crown is obliged to negative self-defence beyond a reasonable doubt. If there is an air of reality to the defence of self-defence, the reasonable doubt standard applies to the defence. The Crown must then negative at least one of the conditions required for the defence beyond a reasonable doubt. If I have a reasonable doubt that self-defence applies on the facts, I must acquit.

[149] The test for an air of reality such that the court must consider a defence is a low burden. The trial judge must be satisfied that there is some evidence upon which a reasonable jury could find that self-defence applies: R. v. Osolin, [1993] 4 S.C.R. 595 at 677-680 per Cory J.; R. v. Budhoo, 2015 ONCA 912 at paras. 42-49.

[150] There are three pre-conditions to self-defence being available under s. 34 of the Criminal Code: 1) that the person believes on reasonable grounds that force is being used against them, or that a threat of force is being made against them; 2) that the act that constitutes the alleged offence is committed for the purpose of protecting the defendant from that use or threat of force; and, 3) that the act committed is reasonable in the circumstances. In considering the third issue, whether the force is reasonable, a trial judge shall consider the relevant circumstances of the defendant, the other parties, and the act, including but not limited to the factors set out in s. 34(2) of the Criminal Code. The relevance of any factor, enumerated or not, in determining whether the act committed was reasonable is a matter for the trier of fact to determine: R. v. Bengy, 2015 ONCA 397 at paras. 27-30.

[151] The current s. 34 in large measure rationalizes and simplifies the former self-defence provisions. Thus, in many ways it does not change the prior law. However, as the Court of Appeal recognized in Bengy, there are some changes, some of which make the defence more expansive than previously, some of which make it less expansive, and some of which give it more flexibility: Bengy, supra at paras. 30, 46-48.

[152] As noted above, once an air of reality is raised, the Crown must disprove the application of self-defence beyond a reasonable doubt. The Crown may do so by proving beyond a reasonable doubt that any one or more of the three pre-conditions for self-defence does not apply.

5. Application of Law in Relation to Self-Defence

[153] I am satisfied that there is an air of reality to Mr. A.H.'s claim of self-defence, and thus, that the Crown must negative his claim of self-defence on the reasonable doubt standard. In particular, on the facts I have found, at the time Mr. A.H. made the decision to suddenly put his car into reverse, Mr. Monterossa had blocked the path of his car, approached Mr. A.H.'s car, and was reaching into the car through the driver side window. This was happening in circumstances where Mr. Monterossa had a few minutes earlier banged on Mr. A.H.'s car outside the Walmart doors, and Mr. A.H. subjectively believed that Mr. Monterossa had followed him to block his car. In light of the relatively low burden for a claim of self-defence to have an air of reality, I accept that there is an air of reality to Mr. A.H.'s self-defence claim.

(i) Did Mr. A.H. Believe on Reasonable Grounds That Force Was Being Used Against Him?

[154] I find that Mr. A.H. did believe on reasonable grounds that force was being used against him. I have found as a fact that at the time Mr. A.H. made the decision to reverse, Mr. Monterossa was reaching into Mr. A.H.'s car, after having blocked Mr. A.H.'s path with his car. And this occurred in a context where Mr. Monterossa had earlier banged on Mr. A.H.'s car outside the Walmart doors. Whatever the cause of Mr. Monterossa banging on Mr. A.H.'s car earlier, that banging was an aggressive act, and part of the context for Mr. A.H.'s later reaction when Mr. Monterossa reached into his car.

[155] But I want to be very clear about the limits of my finding that Mr. A.H. reasonably believed that force was being used against him. The force being used against him was that Mr. Monterossa was reaching into his car, and took hold of Mr. A.H.'s right arm, but Mr. A.H. was able to pull his arm away. As noted above, I find that Mr. Monterossa was doing so with the intention of taking the car keys, but I accept as a fact that Mr. A.H. did not subjectively know why he was doing it. This is sufficient to be a reasonable belief on the part of Mr. A.H. that force was being used against him. But, as is clear from my factual findings, Mr. Monterossa did not have a weapon. Mr. Monterossa did not hit Mr. A.H. or try to hit him. Mr. Monterossa did not make verbal threats to Mr. A.H. as he reached into the vehicle.

[156] Further, as I have noted, I accept that Mr. A.H. was afraid, because he realized that Mr. Monterossa was the same man from outside the Walmart doors. But I also find that Mr. A.H.'s perception of the events leading up to and during the time Mr. Monterossa approached the car and reached into the car was affected by the fact that Mr. A.H. was on the phone with the 911 operator. His attention was divided, and not entirely on the events going on around him. Further, it does not appear that in assessing the context of Mr. Monterossa approaching his car and reaching into it, Mr. A.H. gave any consideration to the fact that he had just hit a stroller in the parking lot, and driven away from that incident without resolving it. He was aware of that fact, as he knew he had hit something, and Ms Hudson-Ingram had told him it was a stroller. These are factors which are relevant to the overall assessment of whether Mr. A.H.'s assessment of the level of threat posed by Mr. Monterossa was reasonable as part of my assessment of whether the force used by Mr. A.H. was reasonable under the third branch of the self-defence assessment.

(ii) Was the Act Alleged to Constitute the Offence Committed for the Purpose of Protecting Mr. A.H. From the Use of Force?

[157] This branch of the self-defence inquiry is based on the defendant's subjective state of mind. I have already found that I accept the defendant's evidence that he acted out of fear of the deceased. I find that this branch of the self-defence inquiry is met.

(iii) Was the Force Used Reasonable?

[158] This brings me to the last branch of the self-defence analysis, whether the Crown has proven beyond a reasonable doubt that the force used was not reasonable in all of the circumstances. As required by s. 34(2), in considering the third issue, whether the force used was reasonable, I consider the relevant circumstances of the defendant, the other parties, and the act, including but not limited to the factors set out in s. 34(2). I also consider the well-established principle that a defendant who acts in self-defence is not expected to judge the force he uses to a nicety: R. v. Baxter (1975), 27 C.C.C. (2d) 96 (ONCA); R. v. Cunha, 2016 ONCA 491 at para. 7. A person acting in self-defence is usually acting quickly in reaction to force used against him or her, making it difficult to precisely judge the force required to respond.

[159] The factors listed in s. 34(2), which is a non-exhaustive list, include:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[160] In considering the whether the force used was reasonable, I consider the factors in s. 34(2), and any other relevant factors in the context of the circumstances as a whole. Some of the factors listed in s. 34(2) are inter-related and overlap. Rather than go through them like a laundry list, I will explain the factors that I take into account in my overall assessment of whether the force used by Mr. A.H. was reasonable in all of the circumstances.

Size and Physical Capabilities

[161] I take into account Mr. A.H.'s age, 17 at the time of events, and his size relative to the size of the deceased. The deceased weighed approximately twice what the defendant weighed. Mr. Monterossa's exact age was not in evidence, but it was common ground that he was middle-aged. There is no evidence, apart from the weight issue, regarding the physical capabilities of either the defendant or Mr. Monterossa. The difference in size is a factor that provides some support to Mr. A.H.'s claim that his use of force was reasonable.

Prior Aggression and Context

[162] I accept that there was some level of aggression in Mr. Monterossa's earlier action of hitting the car outside the Walmart doors. This is a way in which some pedestrians express anger at the actions of a driver. It is unfortunate, and would be better avoided. Like a road rage incident, this type of action by a pedestrian can lead to escalation of a situation. However, I note that at the time of the initial altercation outside the Walmart doors, Mr. A.H. was in his locked car, with the windows up. Mr. A.H. at that time was near the Walmart doors, and other people were around. I find that Mr. A.H.'s reaction at that time of making a too fast turn up the parking aisle, squealing his tires, such that he did not see the stroller and hit it, was an overreaction in those circumstances. He could have made the turn more slowly to distance himself from Mr. Monterossa at that time. He was inside his locked car. I take this into consideration as part of my overall assessment of Mr. A.H.'s conduct that evening, because it shows that he was quick to react to a situation with unreasonably fast and unsafe driving, and in a way that I find was an overreaction.

Nature of the Force Used by Mr. Monterossa

[163] I accept that Mr. Monterossa later blocked the path of Mr. A.H.'s car, and reached into the car, at one point taking hold of Mr. A.H.'s right arm. This was a use of force by Mr. Monterossa towards Mr. A.H.. I also accept that the reaching into the car must be considered in the context of the prior altercation outside the Walmart doors where Mr. Monterossa banged on Mr. A.H.'s car. The force used by Mr. Monterossa was imminent in the sense that it was occurring at that moment, rather than a future threat. But as I have noted, it was a limited use of force. As is clear from my factual findings, Mr. Monterossa did not have a weapon. Mr. Monterossa did not hit Mr. A.H. or try to hit him. Mr. Monterossa did not make verbal threats to Mr. A.H. as he reached into the vehicle. These factors are relevant to assessing the reasonableness of the amount of force used by Mr. A.H..

Mr. A.H.'s Perception and Distraction

[164] As I have noted, I accept that Mr. A.H. was afraid, because he realized that Mr. Monterossa was the same man from outside the Walmart doors, but I also find that Mr. A.H.'s perception of the events leading up to and during the time Mr. Monterossa approached the car and reached into the car was affected by the fact that Mr. A.H. was on the phone with the 911 operator. His attention was divided, and not entirely on the events going on around him. I find that misperception of facts caused by being distracted by being on the phone while driving is not the type of misperception that can properly be the basis of mistake of fact. Mistake of fact can play a role in a claim of self-defence, but only if the mistake is reasonable in all the circumstances: R. v. Cunha, supra at para. 8.

[165] Further, it does not appear that in assessing the context of Mr. Monterossa approaching his car and reaching into it, Mr. A.H. gave any consideration to the fact that he had just hit a stroller in the parking lot, and driven away from that incident without resolving it. Mr. A.H. was aware of this fact, because he knew he had hit something, and Ms Hudson-Ingram told him it was a stroller. A reasonable person would have considered in his assessment of the situation the information that he had just hit a stroller as maybe being a factor in the actions of Mr. Monterossa.

[166] I find that the fact that Mr. A.H. was on the phone with 911, and thus not giving his full attention to the events around him, including Mr. Monterossa's actions, as well as Mr. A.H.'s failure to consider the events in the context of him just having hit the stroller, led Mr. A.H. to interpret Mr. Monterossa's actions as more threatening than a reasonable person would have in all of the circumstances.

Nature and Proportionality of the Response

[167] The force used by Mr. A.H. against Mr. Monterossa was tremendous. In reaction to Mr. Monterossa reaching into the car, Mr. A.H. put the car in reverse, turned the steering wheel hard to the left, and floored the accelerator, causing a sudden and fast acceleration of the vehicle into reverse and causing the car to spin. Mr. A.H. admitted that he knew at the time that taking this action with the car created a risk of harm to Mr. Monterossa. A motor vehicle is thousands of pounds of metal and glass. I find that a reasonable person would know that it would cause a risk of serious bodily harm or death to Mr. Monterossa for Mr. A.H. to suddenly put the car into reverse, while turning, and floor the accelerator, while Mr. Monterossa was reaching into the car.

[168] Canada's law of self-defence requires that force used in self-defence be reasonable in all of the circumstances. The corollary of this is that not all uses of defensive force will be reasonable, and sometimes members of a community have to put up with some level of risk rather than use excessive force in self-defence.

[169] Mr. Monterossa's actions in leaning into the car, in all of the circumstances, could justify some defensive force. But Mr. A.H. did not consider any other options before going to the option of maximum force. Mr. A.H. did not ask Mr. Monterossa what the problem was. Mr. A.H. did not try to put up his window (whether this would have worked or not, we do not know, since Mr. A.H. did not try this). He did not consider or try moving the car more slowly. I appreciate that events occurred very quickly. However, I find that Mr. A.H. went immediately to the maximum use of force available to him – slamming the car into reverse suddenly and at full acceleration. I find that the force used by Mr. A.H. of putting his vehicle suddenly into reverse, and flooring the gas, when Mr. Monterossa was leaning in the window of the car, but where Mr. Monterossa made no verbal threat, did not hit or try to hit Mr. A.H., and did not have a weapon with him, was not reasonable in all of the circumstances.

[170] I find that Mr. A.H. overreacted to the situation, as he had earlier overreacted when he made the speeding turn away from the Walmart doors and up the parking aisle. I accept that a number of factors contributed to Mr. A.H.'s unreasonable overreaction, including his youth, his inexperience as a driver, the fact that he was driving a rental car in a place he was not familiar with, and the fact that he was on the phone, and thus distracted from events occurring around him. However, I find that in all of the circumstances, the force used by Mr. A.H. was not a reasonable use of defensive force. I find that the Crown has disproved the third pre-condition for a claim of self-defence beyond a reasonable doubt.

Conclusion

[171] I find that the Crown has proven the elements of dangerous driving beyond a reasonable doubt. I further find that the Crown has negatived the defence of self-defence beyond a reasonable doubt. In particular, I find that the force used by Mr. A.H. was not reasonable, taking into consideration all of the circumstances. I find Mr. A.H. guilty of dangerous driving causing death.

Released: March 13, 2017 (corrected version re-released March 14, 2017)

Signed: Justice J. M. Copeland