Court File and Parties

Date: November 7, 2017

Court File No.: 2811 998 16 25240 00

Ontario Court of Justice

Her Majesty the Queen

v.

Edward Durrani

Before: The Honourable Justice P.C. West

Location: Oshawa, Ontario

Date of Hearing: November 7th, 2017

Appearances

R. Connolly – Counsel for the Crown

K. Manitius – Counsel for Mr. Durrani

Oral Reasons for Judgment

Charges and Plea

On May 4th, 2016, Mr. Durrani was alleged to have operated his motor vehicle in a manner dangerous to the public causing bodily harm, contrary to s.249(3) of the Criminal Code.

He is also alleged to have failed to stop at the scene of an accident, also causing bodily harm, contrary to s.252(1.2) of the Criminal Code of Canada.

Mr. Durrani pleaded not guilty to both charges. A trial was commenced on November 6, 2017, and continued until November 7, 2017, when the defence called its evidence.

Crown's Case

The Crown called three witnesses:

1. Tony Brown (the complainant)
2. Louise Mitchell (an independent witness)
3. Stewart Weaver (an independent witness)

Admissions by the Defence

The following admissions were made by the defence:

1. Jurisdiction: The offence occurred in Ajax, Central East Region
2. Identification: Mr. Durrani and Mr. Brown had known each other for over 20 years
3. Bodily Harm: Mr. Brown's broken wrist amounts to bodily harm
4. Evidence: Photographs taken by S.O.C.O. officer and a surveillance video from Esso Gas Station located at the southwest corner of Bayley Street and Pickering Beach Road in Ajax

Defence Witnesses

The defence elected to call two witnesses:

1. P.C. Nicholas D'Andrea
2. Mr. Durrani

Factual Background

Prior Relationship

Tony Brown testified he had known Edward Durrani since high school. They lived across the street from each other. A year prior to May 4th, 2016, Mr. Brown and Mr. Durrani would talk to each other daily. At that time, Mr. Durrani was having financial difficulties and he borrowed money from Mr. Brown in two amounts: $1,000.00 and $200.00. Mr. Brown told Mr. Durrani not to worry about repayment, that he could repay the amount if and when he had the money.

Mr. Durrani's evidence was different on this issue; namely that Mr. Brown would provide him with money on different occasions, and that there was no expectation of repayment. Mr. Durrani also did renovation work for Mr. Brown after he had had a car accident, and Mr. Durrani did not charge Mr. Brown for that work.

They both described their relationship up until just before May 4th, 2016 as good friends.

Deterioration of Relationship

Two or three months prior to May 2016, Mr. Brown had heard that Mr. Durrani had come into some money, and he requested repayment of the monies he said he had loaned. Mr. Durrani told Mr. Brown he was broke, could not repay the money that had originally been provided, and about three weeks before May 2016, Mr. Durrani called Mr. Brown asking for the return of a shop vacuum that he had lent to Mr. Brown. Mr. Brown told him once he repaid the loan, the shop vac would be returned.

According to Mr. Brown, Mr. Durrani told Mr. Brown he would never call again. Mr. Durrani's evidence was somewhat similar to Mr. Brown's. There was an understanding between the two of them. The result of their discussion a few weeks before May 4th, 2016, was that they would no longer have contact or anything to do with each other as friends as a result of this dispute.

This evidence was led by both parties in this trial to provide some context for what happened on May 4th and for no other reason. I am indicating right now that I am not determining what the truth is with respect to this; all that it shows is that there were bad feelings and a bad relationship between the two men, which to some extent provides a background and context for what happened on May 4th.

Events of May 4th, 2016

At the Esso Gas Station

On May 4th, 2016, Mr. Brown attended at the Esso Gas Station located at the corner of Bayley Street and Pickering Beach Road in Ajax with his friend Jamie Smith. They had gone there for cigarettes and coffees. There is apparently a Tim Horton's Donut Shop right within the Esso Store.

Exhibits 1A to 1C are Google satellite photographs of the Esso Gas Station and store showing it from above, and showing the layout of the parking lot and buildings.

While they were waiting in line at the Tim Horton's, Mr. Durrani walked into the store. He shook hands with Jamie Smith and according to Mr. Brown, went to shake Mr. Brown's hand, but Mr. Brown said, "What's up loser? Must be nice not to pay people back money you owe."

Mr. Durrani has a somewhat different version. He says that when he walked in, he agrees with what Mr. Brown said to him, but he doesn't agree that he wanted to shake Mr. Brown's hand or have anything to do with him because of what had happened the two or three weeks before on the telephone.

Mr. Durrani waited and purchased his cigarettes. Mr. Brown and Mr. Smith had moved into the line at Tim Horton's to buy coffee, and Mr. Durrani testified that he decided that he was not going to get in line to purchase coffee because of the comments Mr. Brown had made to him and because he was concerned that something might develop as a result of Mr. Brown's comments. So he decided that he would leave the store, which he did.

Mr. Brown testified that as a result of the exchange and the comments that he made to Mr. Durrani, Mr. Durrani left the Esso Store but as he left, he turned and told Mr. Brown that, "You ain't getting it," referring to the money that was owed. Mr. Durrani denied saying, "You ain't getting it."

This upset Mr. Brown who ran out after Mr. Durrani, yelling and swearing into the parking lot. Mr. Durrani ignored Mr. Brown, got into his car, locked the doors, put the key in the ignition, put the car in reverse and began to reverse.

Mr. Durrani agreed with Mr. Brown that Mr. Brown chased him after Mr. Durrani had left the Esso Store, that he was requesting money and he wanted to fight Mr. Durrani. Mr. Durrani testified he walked quickly to his car, got in, locked the doors and began to reverse to avoid a confrontation with Mr. Brown.

Witness Observations

Ms. Mitchell confirms that the second man, Mr. Brown, was running after the first man, Mr. Durrani and that he was yelling, screaming and swearing at Mr. Durrani. Ms. Mitchell could not make out most of the things that were being said or she did not recall what they were, but she did recall Mr. Brown saying something about Mr. Durrani owing him money. Mr. Durrani did not dispute what Ms. Mitchell says she heard.

Mr. Weaver could hear the second man, Mr. Brown, screaming and yelling and saw him chasing after the first man who got into a motor vehicle.

The Collision

Mr. Brown testified he ran up to the car. As he got to the car, he hit the driver's window with the side of his right hand, which was in a fist. Mr. Durrani put his car in reverse and backed out of the parking spot, and in fact on the video what is depicted is that the car is in reverse, prior to Mr. Brown reaching the car and striking the driver's window.

In the process of backing up and turning, the front left quarter panel of the car struck Mr. Brown in the legs, throwing him over the car and onto the ground.

Video Evidence

The video that is Exhibit Two in these proceedings is a stop action video. It seems to take a picture for every second so that there are gaps. It is not flowing such that it would be a video that you would watch of an interview in a police station of somebody who is providing a statement, either a witness or an accused person. So, there are some setbacks or difficulties with respect to the video. The quality of the video, however, is excellent. I can make out who the individuals are, and I can see the general actions of each individual.

Mr. Brown's Statement to Police

Mr. Brown testified he told the police that he was hit by Mr. Durrani's car when it moved forward but after he saw the Esso Store's video which showed that the car hit him when it was reversing and turning to the west, he realized what he had told the police was incorrect. He testified that he must have been in a state of shock when he was at the hospital speaking to the police.

In fact, it was the left front quarter panel that struck Mr. Brown, not the front of the vehicle.

Mr. Brown told the police the following concerning Mr. Durrani's actions when he provided his statement to Constable D'Andrea:

"He, referring to Mr. Durrani, put the car into reverse, whipped out aggressively. He put it in drive and aimed for me as if he deliberately tried to hit me. He could have easily reversed more and turned away from me, but came straight toward me, struck me with the front end, possibly the front passenger side. I did a flip off the corner of the hood and fell to the ground. It looked like he stopped after he struck me. I was able to get up right away, but then he accelerated again toward me, but I was able to jump away."

Mr. Brown testified he was in shock when he provided this statement to the police in the hospital. P.C. D'Andrea testified he took a statement from Mr. Brown. There is no evidence from P.C. D'Andrea that Mr. Brown was in a state of shock or was confused or did not understand. It is clear from Constable D'Andrea's testimony that he basically asked what happened, and then Mr. Brown told him what had happened without the officer asking any questions or making any suggestions to him. He provided all of the details just quoted.

At the end of recounting what had happened, the officer then asked Mr. Brown what his injuries were, and that's when he told the officer his injuries in answer to that second question. Mr. Brown reviewed his statement according to P.C. D'Andrea by reading it on the officer's computer where he had been typing as they were going along, and he made no changes or corrections to the statement that he provided.

Mr. Brown's Injuries

Mr. Brown testified when he struck the driver's window with his right hand, the window was not damaged. Further he testified he did not injure his hand or wrist when he did this.

When Mr. Durrani finished reversing, Mr. Brown got up from the ground, ran towards the car trying to get Mr. Durrani to stop. Mr. Durrani drove to the left around Mr. Brown and out of the parking lot.

When Mr. Durrani was leaving the Esso parking lot, Mr. Brown testified he heard Durrani say, "You should have moved or why didn't you move." Mr. Durrani testified he exited onto Bayley and turned right onto Pickering Beach Road and stopped at the east exit, rolled down his window and said to Mr. Smith who was standing outside the Esso Store, 'This whole situation could have been avoided.'

Mr. Brown walked back to the Esso Store. Mr. Brown called 9-1-1. He testified he called because he thought that the woman, Ms. Mitchell, who was standing beside her car, had called 9-1-1 because he saw her on the phone. Jamie Smith had remained in the store when all of this took place, and was not outside when Mr. Brown ended up on the ground.

Surveillance Video Analysis

The surveillance video was shown and entered as Exhibit Two.

At 3:52 on the video counter, a gold car enters the Esso parking lot and parks in one of the parking spots west of the store. In fact, right beside Ms. Mitchell's car. Mr. Brown recognized the car as being Mr. Durrani's car. Mr. Durrani also identified this gold Mercedes as being his car. Apparently it is a 2000 Mercedes.

At 4:21 on the counter, Mr. Durrani can be seen walking towards the entrance to the Esso Store, which is off camera.

At 5:49, so Mr. Durrani was only inside the store for approximately a minute and 28 seconds; almost a minute and a half. Not very long. Maybe just enough time to buy a package of cigarettes. But at 5:49 Mr. Durrani can be identified as walking westbound back to where his car is parked.

Mr. Durrani enters his car at 6:00 on the counter. It takes him 11 seconds to walk the distance to his car while he is on video.

At 6:02 Mr. Brown first comes into the video and in my view, he appears to be walking very fast, following Mr. Durrani. Mr. Brown denied he was running or walking fast to catch up to Mr. Durrani. He agreed that he was angry and he agreed that he was yelling and swearing at Mr. Durrani.

Now, 6:04 Mr. Durrani's car is reversing, turning the rear of his vehicle towards the west, with the front left side moving to the east. While he was in the process of this, at 6:06, Mr. Brown runs up to the driver's door of the car and hits the driver's window with his right hand.

It is important to note that it only took Mr. Brown four seconds instead of 11 seconds to walk the distance from where the video captures him until he is at the car. It took Mr. Durrani 11 seconds.

At 6:07, the left front quarter panel strikes Mr. Brown as the car is reversing and turning and Mr. Brown falls to the ground.

At 6:08 Mr. Brown can be seen on his knees and hands. What is important is that Mr. Durrani is still reversing the car and that was why I asked for the video to be played because Mr. Connolly submitted that when Mr. Brown was on the ground after being struck, that the car had stopped, and that Mr. Durrani would have had an opportunity because he was about to go forward, he would have been looking forward, he would have seen Mr. Brown on the ground. But it is quite clear from the video that at 6:08 to 6:09 the car is still reversing. Ms. Mitchell did not see the gold car strike Mr. Brown, because she was looking at the left front of the gold car turning to the east as it was reversing, as she was concerned about the gold car striking her car. She was on the opposite side, this would be striking the passenger side of her car. She was on the driver's side talking on her phone to a client she said. Ms. Mitchell is an accountant. Mr. Durrani did not strike her car, and when she looked back, she saw Mr. Brown on the ground as the gold car continued to reverse. She testified that Mr. Brown was up on his feet quickly and immediately running towards the gold car. Mr. Brown was still yelling and swearing as she testified he had been as he ran after Mr. Durrani, and this was what first drew her attention to both of these gentlemen, who she described as the first man and the second man.

Mr. Weaver, who was parked with the back end of his vehicle towards the car wash and facing the parking area where Mr. Durrani's car and Ms. Mitchell's car are parked, he could not hear what was being said by the second man because either the tire pump or the vacuum that was beside his vehicle was still on. An individual put his money in and did not use it for very long, or he put a second amount of money in and only needed it for a short period of time. In any event, that provides support to Mr. Weaver that it was still from noise being made by either the tire pump or the vacuum, and he could not hear what was being said but he could hear that the second man was screaming at the first man, both when he was running from the store and when he was running towards the gold car after he got up from the ground. Mr. Weaver told police he believed the second man was struck by the rear of the first man's car, but realized his mistake when he was shown the video by the Crown.

At 6:09, as I have indicated, Mr. Brown was up on his feet and running towards the front of the gold car. The gold car is still reversing at the point that he is running towards it.

At 6:10, Mr. Brown is now almost directly in front of the car with his arms outstretched, trying to stop it from leaving the parking lot. As Mr. Durrani drove around Mr. Brown, he did not drive into Mr. Brown, this put Mr. Brown on the passenger side, which would be the right side of Mr. Durrani's car.

Mr. Brown denied that he struck the front passenger window of the gold car with his right fist. He testified he was not angry anymore and he did not run towards the gold car. Ms. Mitchell and Mr. Weaver both describe Mr. Brown running towards the car with his arms outstretched. Mr. Durrani described how Mr. Brown struck the passenger door with his right fist as he drove around Mr. Brown. The video shows at 6:11 that Mr. Brown is extremely close to the passenger side of the gold car, as Mr. Durrani drove past Mr. Brown.

At no point from the moment that Mr. Brown is on the ground from 6:07 to 6:12, 6:13 and frankly, even right up until we get into the later portions of this video which ends at 9:23, did Mr. Brown ever hold onto his right wrist as if he was experiencing pain in that wrist. In fact, at 6:08, Mr. Brown was on the ground on his hands and knees supporting his weight with his right wrist and his left wrist and his knees. He did not hold his right wrist at any point that he can be seen on the video.

At 6:22 Mr. Brown can be seen walking towards the entrance of the Esso Store which is off camera. At 8:05 Mr. Brown again can be seen walking west and talking on a phone. At 8:20 Jamie Smith comes into the camera view walking west.

Mr. Brown was interviewed by the police at the hospital where he had been taken and where photographs were taken as to a redness to his left calf, and an injury to his right wrist. The bump on his right wrist is at the same side of his right hand that he testified after he formed the fist and struck the driver's window. It is the area that he struck the driver's window with; very likely if he struck the passenger's window also the same portion of his hand struck the passenger's window.

Mr. Brown testified his right wrist was broken as a result of this incident. It was put into a cast when he was at the hospital. Photographs of Mr. Brown's injuries were marked as Exhibit Three, but in his evidence Mr. Brown was not asked and he did not testify as to when he believed his right wrist was broken. That evidence is completely missing in this trial.

Mr. Durrani's Evidence

Mr. Durrani testified that at no point did he ever see Mr. Brown on the ground. He was completely unaware at the time that the left front quarter panel of his car had come into contact with Mr. Brown. He only became aware of his car having connected with Mr. Brown after he saw the surveillance video from the Esso Gas Station as part of disclosure provided by the Crown. Everything happened so quickly after he left the store. He denied leaving the Esso parking lot knowing his car had struck Mr. Brown.

Mr. Brown was yelling and swearing at him as he was running after him. He was calling Mr. Durrani to fight. He did not dispute Ms. Mitchell's evidence that she heard Mr. Brown saying something about Mr. Durrani owing Mr. Brown money.

Mr. Durrani was only aware of contact between Mr. Brown and his car on two occasions, both occasions as a result of Mr. Brown striking firstly the front driver's window, and then secondly, the passenger front window.

When Mr. Brown struck the driver's side window of Mr. Durrani's car, Mr. Durrani was reversing and looking over his right shoulder, he testified, to make sure no one was behind his car. He did not turn and look out the driver's side window until he stopped reversing and after he put his car into drive. This was when he saw Mr. Brown running towards his car as he moved to the left to avoid hitting Mr. Brown. Mr. Brown struck the driver's window as he drove past him with his right fist, according to Mr. Durrani.

Mr. Durrani testified that he did not call 9-1-1 because he just wanted to be done with Mr. Brown. They had been friends. He did not want to get him in trouble with the police, he had no concerns about civil or criminal liability on his own part, and he had no idea when he left the parking lot of the Esso Gas Station that his car had connected in any way with Mr. Brown causing him to fall to the ground.

Position of the Parties

Defence Position

The defence argues I should not accept any of Mr. Brown's evidence given the complete inconsistency between what he told the police had occurred and what is revealed on the video, Exhibit Two. Ms. Manitius's submission is that what Mr. Brown told the police is completely untrue, and far more serious in terms of its implications. What he told the police was that Mr. Durrani deliberately drove at him and hit him on one occasion and then Mr. Durrani attempted to hit him a second time, and it was only because he was able to jump out of the way was he not struck the second time.

Mr. Durrani was chased by Mr. Brown in the parking lot. Mr. Brown was angry and upset. He was yelling, screaming and swearing at Mr. Durrani. If I accept Mr. Durrani's evidence, Mr. Brown wanted to start a fight with Mr. Durrani. Mr. Brown physically struck the driver's window which he admits, and the passenger's window when Mr. Durrani was exiting the parking lot.

Mr. Durrani, when he left the parking lot, was not aware that his car had struck Mr. Brown. Mr. Brown is back on his feet in a matter of seconds, and is running again towards Mr. Durrani's car still yelling and still screaming and swearing.

Mr. Durrani's evidence should be accepted as it was not seriously challenged in cross-examination. He was unequivocal in his evidence that he did not know his car had struck Mr. Brown. It didn't matter how many times the Crown asked the question, it didn't matter how many different ways the Crown asked the question, the answer was always the same.

There was no evidence of marked departure on Mr. Durrani's part in terms of his driving. The fact that Mr. Durrani only checked over his right shoulder and the rear view mirror before reversing his car, is not a marked departure.

Ms. Mitchell initially testified that Mr. Durrani reversed aggressively, but her evidence changed in cross-examination that Mr. Durrani backed up quickly. Ms. Manitius's submission was that what occurred was a simple misjudgment on Mr. Durrani's part because of the circumstances that Mr. Durrani was presented with in terms of Mr. Brown's actions, both inside and outside the Esso Store.

On the fail to stop charge, there needs to be contemporaneous knowledge of an accident according to Ms. Manitius, and I don't think that Mr. Connolly took issue with that, that's what the cases say. If I accept Mr. Durrani's evidence or it raises a reasonable doubt on this issue, I must acquit. It was a highly stressful situation. On the evidence that is before me, Mr. Durrani was not aware that he made contact with Mr. Brown and he should therefore be acquitted of both charges.

Crown Position

Mr. Connolly conceded at the outset of his submissions that he had not proven bodily harm as being caused by the dangerous driving or the fail to remain. He is seeking convictions on both of the offences of dangerous driving and fail to stop simpliciter.

Mr. Connolly argued that I should not accept Mr. Durrani's evidence that he was not aware his car had come into contact with Mr. Brown. When Mr. Brown hit the driver's window, Mr. Durrani would have looked, according to Mr. Connolly and would have seen the car connect with Mr. Brown causing him to fall to the ground. He would have seen Mr. Brown on the ground. He would have known that there had been an accident.

At the very least, the Crown argued that Mr. Durrani was reckless. He knew Mr. Brown was chasing him and running towards his car to stop him from leaving, yet he reversed his car and did not look to the left. I should reject Mr. Durrani's evidence after Mr. Brown struck the window, Mr. Durrani had to know that Mr. Brown was beside the car, yet he still reversed. Mr. Connolly also argued Mr. Durrani was in a locked car, so there was nothing Mr. Brown could do to him, so there was no reason for him to reverse in the circumstances. This was not negligence, rather Mr. Durrani was reckless.

Mr. Connolly submitted I should draw the inference that Mr. Durrani had no regard for where Mr. Brown was, and he did not care whether he struck Mr. Brown or he didn't. Mr. Connolly argued Mr. Durrani's evidence that he was unaware that Mr. Brown was on the ground was not worthy of belief, and that I should reject his evidence because of that. He submitted the Crown has proven both charges beyond a reasonable doubt.

Analysis

Standard of Proof and Credibility

As in any criminal case, Mr. Durrani is presumed innocent until proven guilty. I reminded myself that I need not firmly believe or disbelieve any witness and that I cannot accept all, some or none of a witness's testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt.

As this term has been defined and explained by the Supreme Court of Canada in Regina v. W.D., 63 C.C.C. (3d) 397:

"Proof of a probability of guilt would not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings."

I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept, convinces me of the guilt of the defendant beyond a reasonable doubt.

A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence in the assigned standard of persuasion of proof beyond a reasonable doubt. That's again, W.D., supra, per Cory, J.

Proof beyond a reasonable doubt means what it says:

"There is thus nothing illogical in rejecting the defendant's evidence but still not be sufficiently satisfied by the complainant's evidence to find that the case has been proven."

The state of uncertainty at a trial like this, where the Court has heard two conflicting versions from the two parties involved is not uncommon. Ultimately if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witnesses or the absence of evidence, the charge must be dismissed, and that is Regina v. Lifchus, 118 C.C.C. (3d) 1.

Dangerous Driving

Dangerous driving is set out in s.249(1)(a) of the Criminal Code of Canada. It reads as follows:

"Everyone commits an offence who:

(1)(a) Who operates a motor vehicle in a manner that is dangerous to the public, having regard to all of the circumstances including the nature, condition and use of the place at which the motor vehicle is being operated, and the amount of traffic that at the time is or might reasonably be expected to be at that place."

The essential elements of the offence of dangerous driving were outlined recently by the Supreme Court of Canada in Regina v. Roy, 2012 SCC 26. In that case the accused was making a left turn across a highway, pulled his motor home out in front of an oncoming tractor trailer. Visibility was reduced due to fog, and the unpaved road that the accused was turning from was slippery due to snow. The trial judge convicted the accused of dangerous driving causing death, it was the death of his passenger. The Supreme Court of Canada allowed the appeal because the trial judge's error in law in 'leaping' from the consequences of the driving to a conclusion of the reckless at fault elements. See Regina v. Roy at para. 34. See also Regina v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 para. 46.

The Court continues in Roy at para. 41:

"The question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances supports the inference that the driving was a result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited."

In Beatty, supra, which is another leading case in the Supreme Court of Canada, the accused's pick-up truck crossed the solid centre line into the path of an oncoming vehicle, killing all three occupants. Alcohol was not a factor. The issue was whether this momentary act of negligence was sufficient to constitute dangerous driving of a motor vehicle causing death, within the meaning of s.249(4) of the Criminal Code. The trial judge acquitted the accused on the grounds that the several seconds of negligent inattention without more did not constitute the marked departure from the standard of care of a prudent driver. The Court of Appeal allowed the Crown's appeal, but the Supreme Court of Canada restored the acquittal.

These cases demonstrate the elements of the offence of dangerous driving. The actus reus of the offence is driving in a manner that was 'dangerous to the public having regard to all of the circumstances, including the nature, condition, 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 to be at that place.' See Beatty, supra, para. 43, and Roy, supra, para. 28.

Mens rea required for dangerous operation of a motor vehicle is not proof of a positive state of mind, such as intent or recklessness, rather, the Court must be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by a degree of care that was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Again in Beatty, supra, para. 43 and Roy, supra, paras. 28 and 36, mens rea is assessed based on all of the evidence, including evidence about the accused's actual state of mind, if any:

"The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care which would justify civil liability and a marked departure justifying criminal punishment is a matter of degree. A lack of care must be serious enough to merit punishment." See Beatty, supra, para. 48, and Roy, supra, para. 28.

While the required objective mens rea may often be inferred from the fact that the accused drove in a manner that was a marked departure from the norm, the trier of fact must examine the surrounding circumstances to determine whether drawing an inference of fault from the manner of driving is appropriate. See Roy, supra, para. 40.

"Not all dangerous driving will support the inference that the accused's departed markedly from the standard of care expected of a reasonable person in similar circumstances." See Roy, supra, para. 42.

As the Supreme Court wrote in Beatty, supra, at paragraph 7:

"Not every departure from the norm would constitute conduct that demonstrates a blameworthy state of mind. Rather there must be a 'marked departure' from the civil norm in the circumstances of the case."

Fail to Stop

Section 252 of the Criminal Code of Canada provides as follows:

"Every person commits an offence who has the care, charge or control of a vehicle that is involved in an accident with:

(a) another person;

(b) a vehicle, or;

(c) in the case of a vehicle, cattle in the charge of another person; and,

with intent to escape civil or criminal liability, fails to stop the vehicle, if possible, give his or her name and address and where any person has been injured or appears to require assistance, offers assistance."

Under subsection (2), it was not argued before me but it is part of the offence:

"That in proceedings under ss.(1), evidence that an accused failed to stop his vehicle, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability."

From s.252(1) it can be seen that there is a three-part obligation. The person must stop the vehicle, give his name and address and if any person has been injured or appears to require assistance, offer that assistance. That's Regina v. Romanowicz, 14 C.R. (5th) 100, Ontario General Division, affirmed , 26 C.R. (5th) 246 O.C.A.

The actus reus of this offence is therefore that the accused having the care, charge or control of a vehicle that is involved in an accident, failed in his or her duty to do any of the following three things: stop the vehicle, give his name and address or offer assistance to any injured person.

As I have already indicated, the Crown is conceding that he is not seeking and has not proven beyond a reasonable doubt knowledge of bodily injury in respect of Mr. Brown in the mind of Mr. Durrani, and he is only proceeding on fail to stop at the scene of an accident under s.252(1).

Where the Crown has proven the first element of failure to stop beyond a reasonable doubt, it is then necessary to consider whether the accused had the intent to escape civil or criminal liability. Under this section, the statutory presumption in s.252(2) automatically applies. Presumption of intent to escape liability applies if there is proof that the accused has failed to perform any one of the duties of subsection (2).

In Regina v. Roche, 1 S.C.R. 491, the Supreme Court adopted the Court of Appeal's reasoning that:

"Subsection (3), as it then was in that case at that time, should be interpreted to mean that presumption arises if the accused fails to do any one of the three things mentioned. The presumption provision does not place any onus on the accused to establish lack of intent. The onus remains on the Crown to prove the case beyond a reasonable doubt. The presumption provision simply assists the Crown in achieving that standard of proof and is applicable only in the absence of any evidence to the contrary."

The trier of fact must look at all of the circumstances to determine where there is, 'any evidence to the contrary' of the lack of intent in order to rebut the presumption.

In Regina v. Nolet, [1980] O.J. No. 3027 O.C.A. para. 8, Martin J summarized the principles as follows:

"(1) Evidence which is rejected or disbelieved is not 'evidence to the contrary,' within s.233(3). Regina v. Proudlock, [1979] 1 S.C.R. 525.

(2) Evidence which is not rejected and which tends to show that the accused may not have had the requisite intent is evidence to the contrary and evidence of drunkenness may constitute 'evidence to the contrary.' Regina v. Campbell, 17 C.C.C. (2d) 320 O.C.A.

(3) Where there is 'evidence to the contrary' the burden is upon the prosecution to prove the requisite intent beyond a reasonable doubt." Proudlock, supra, and Campbell, supra.

An essential element of this offence which the Crown must prove beyond a reasonable doubt is the accused's knowledge of the accident. See Regina v. Slessor, [1970], 1 O.R. 664 O.C.A.

In Regina v. Slessor, Laskin J., stated at paragraph 37:

"Two things stand out in so far as awareness of an accident is a pre-condition of the obligation of a person having care, charge or control of an involved car to stop the car, it is not enough in order to raise that obligation to find that he should have known of the accident. More important, knowledge or awareness of an accident is an element of the offence of which proof must be made by the prosecution, the person in care, charge or control of a car cannot be found guilty of a failure to stop and do the other things required by s.221(2) if he does not know that an accident had occurred." Section 221(2) is the old s.252(2).

The test of awareness was aptly stated in Regina v. MacDonald, [1972] B.C.J. No. 468 para. 11, B.C.S.C. which held that:

"The test was a subjective one requiring the trial judge to ask the question: 'Did the accused know he had been involved in an accident?' Rather than an objective question of: 'Ought the accused to have known he had been involved in an accident?'"

Credibility Assessment

There are a number of difficulties with Mr. Brown's evidence. First, and probably the most significant difficulty with his evidence is that he provided a version of what happened on May 4th, 2016 to the police which is completely and utterly inconsistent with the surveillance video. In fact, as Ms. Manitius submits, it is completely untrue. This causes serious concerns in my view respecting all of Mr. Brown's evidence. I will be frank here. I can only come to the conclusion that Mr. Brown lied to the police about what happened. His statement to the police described a deliberate act of driving by Mr. Durrani directly at Mr. Brown, striking him and then a second attempt to strike him a second time, driving directly at him that was only averted as a result of Mr. Brown jumping out of the way.

I find that the statement provided by Mr. Brown to the police probably an hour or so after this incident occurred was completely false.

Second, in Mr. Brown's evidence, there were numerous occasions where I find that he attempted to minimize his own actions. An example of that is when he testified after being struck by the front of Mr. Durrani's car, that he was no longer angry, and he did not yell or swear when he went towards the car, and he did not run towards Mr. Durrani's car. In my view, this was completely inconsistent with the evidence of both of the independent witnesses called by the Crown.

Assessment of Mr. Durrani's Evidence

I do want to say this. I am not able to accept everything that Mr. Durrani testified to concerning the events of May 4th, 2016. But, I cannot reject his evidence outright as to whether he was aware or that he knew at the time that his car came into contact with Mr. Brown after Mr. Brown struck the driver's window with his right fist.

Watching the video again confirmed what I had in my notes and was contrary to Mr. Connolly's submission and that is this: That when Mr. Brown can be seen on the ground at 6:08, Mr. Durrani was still backing up. The car was still reversing and that is clear because the next frame shows the car a greater distance back, and it shows Mr. Brown on his feet running towards the car. The next frame shows him right in front of the car and the frame after that, at 6:11, shows Mr. Durrani driving to the left around Mr. Brown so as not to strike him, with Mr. Brown very close to the passenger window of the car.

I am also of the view that Mr. Durrani's driving around Mr. Brown demonstrates that he did not know he had struck him previously and puts a lie to the Crown's submission that he didn't care whether he hit Mr. Brown or didn't hit Mr. Brown. He had an opportunity to hit Mr. Brown because Mr. Brown ran to the front of the car in an attempt to stop Mr. Durrani.

Consequently, I do have a reasonable doubt respecting this aspect of the evidence and this therefore leads to a dismissal of the fail to stop charge. As I have indicated, pursuant to Regina v. Slessor in our Court of Appeal, knowledge that you are involved in an accident is an essential element of this offence.

Dangerous Driving Analysis

Further, looking at all of the circumstances presenting themselves to Mr. Durrani when he was reversing his car out of the parking spot, I cannot say that I am satisfied beyond a reasonable doubt that his driving was objectively dangerous and accompanied by a degree of care that was a marked departure from the standard of care that a reasonable person would observe in Mr. Durrani's circumstances. That comes directly out of Roy and Beatty, S.C.C., that is the test. It is not a question of recklessness, it is not a question of an intent having to be proven by the Crown. It is whether I am satisfied beyond a reasonable doubt that Mr. Durrani's driving was objectively dangerous and accompanied by a degree of care that was a marked departure from the standard of care, that a reasonable person would have observed in Mr. Durrani's circumstances.

On Mr. Brown's own evidence, which was supported by the independent witnesses and by Mr. Durrani's evidence, Mr. Brown was angry and upset. I will say this, there was no reason for Mr. Brown to leave the Esso Store and run after Mr. Durrani. Mr. Durrani had left. Even if Mr. Durrani had made the comment that Mr. Brown testified he did, and as I have indicated, I have great difficulty accepting anything that Mr. Brown testified to or told the police because of what I considered to be an outright lie to make the matter more serious against Mr. Durrani. But there was no reason for him to leave the store, and the only reason for him to leave the store and it lends some credibility to Mr. Durrani's evidence that he was also saying in addition, 'I want my money,' I want to fight you for it, and that he was going to stop Mr. Durrani to fight him.

And Mr. Durrani's fear, which he described was a reasonable fear. There was no reason for Mr. Brown to yell and to scream at Mr. Durrani or to swear at him about money that was owed or wanting to fight. In my view, this would cause any reasonable person to be afraid of what might happen, and would cause them to want to leave as quickly as possible. Lock the doors of the car and get out of there because who knows where Mr. Brown's car is parked, and whether or not he has got a tire iron or a baseball bat or something else in his car.

A reasonable person in my view, might in the emotion of the moment or the stress as Ms. Manitius referred to it of the moment, not check all sides of his vehicle when he is reversing. And I think what was significant from the evidence of the video, was that before Mr. Brown had contact with the gold Mercedes, Mr. Durrani was reversing, he was already reversing. That is when Mr. Brown strikes the driver's window. Mr. Durrani testified he was looking over his right shoulder, looking in his rear view mirror to ensure that there was nobody, no other vehicles, no person behind his vehicle. It was not until he comes to a stop that he checks out the left driver's window, and that was when he saw Mr. Brown charging his car and yelling and screaming and swearing again.

In my view, a reasonable person who in the emotion of the moment does not check all sides of their vehicle, this in my view would be a misjudgment, not a marked departure. As I have indicated, I have a reasonable doubt whether Mr. Durrani saw his car strike Mr. Brown causing him to fall to the ground. Putting all of the evidence together, all of the circumstances, it is my view, that in the end result, the dangerous driving charge should also be dismissed. I am not satisfied beyond a reasonable doubt.

Conclusion

I want to thank counsel for their assistance in this matter and we will call it a day.

MS. MANITIUS: Thank you, Your Honour.