Court Information

Date: 2012-10-25

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Kevin Jones

Before: Justice of the Peace R. J. Le Blanc

Heard on: September 7, 2012

Reasons for Judgment released on: October 25, 2012

Counsel:

• Ms. McGuire for the Crown
• Mr. Parker for the defendant Kevin Jones

Regulations and Case Law Considered

• s. 172 (1) of the Highway Traffic Act
• Ontario Regulation 455/07 s.s. (1) and (2)
• R. v. Smith, [1971] 5 W.W.R. 674 (Sask. Dist. Ct.)
• R. v. Flannery (1982), 15 M.V.R. 116, 15 Man. R. (2d) 162 (Co. Ct.)
• R. v. Allan, 2009 ONJC 270
• R. v. Bunda, 2009 ONCJ 620
• R. v. Kaizer, 2009 ONCJ 674
• R. v. Stevens, 2010 ONCJ 348

Charge

[1] Kevin Jones stands charged on July 24, 2012 with the offence of operating a motor vehicle and racing by outdistancing or attempting to outdistance one or more other motor vehicles while travelling at a rate of speed that is a marked departure from the lawful rate of speed, contrary to s. 172 of the Highway Traffic Act.

[2] A second charge of careless driving was withdrawn at the start of the approximately 1 ½-hour-long trial.

[3] Agent Mr. Parker pleaded not guilty to the charge on behalf of Mr. Jones, who was not present in the courtroom during the trial.

Evidence for the Prosecution

[4] Durham Regional Police Const. Craig Etheridge testified he was dispatched to a single vehicle accident on Rossland Road near Lakeridge Road in Whitby in Durham Region on July 24, 2012 at about 11:30 p.m. The road in question is described as being a single lane in each direction, with a posted 60 km/h speed limit.

[5] The officer said he spoke to witnesses including Douglas Pennefather, observed a black Honda Civic Ontario licence AWEM 377 located a distance of 40-50 metres off the roadway in a field, and as a result of his investigation, laid charges against motorists Christopher Sukanan and Kevin Jones.

[6] Mr. Sukanan, the driver of the Honda, was transported to hospital. There was extensive damage to his vehicle.

[7] The other vehicle involved in the incident was a black Chev, Ontario licence BHCA 537. Const. Etheridge said he received an Alberta photo driver's licence in the name of Kevin Jones, and was satisfied with the defendant's identity.

[8] Crown Ms. McGuire tendered exhibit one being a computer and template generated drawing of the area in question which included the disposition of the vehicles involved. The court overruled Mr. Parker's objection to the exhibit, noting the weight attributed to it would be no more than to help establish a visual concept of the area in question.

[9] Witness Douglas Pennefather said he was driving home from work along Rossland Road, travelling at between 60 and 70 km/h when he saw, in his rear view mirror, two vehicles travelling at a high rate of speed.

[10] Mr. Pennefather said the "two cars came up suddenly from behind," and began tailgating him, which "made me feel uncomfortable." Mr. Pennefather said the headlights of the vehicles behind his "filled my rear view mirror," and he estimated the lead car to be no more than one car length behind his.

[11] Rossland Road in this area is described as being one lane in each direction with gently rolling hills. Mr. Pennefather estimated these two vehicles followed his for a distance of about 200 metres before passing him going up a 'blind' hill. Mr. Pennefather said it wasn't possible to see if anything was coming over the hill from the opposite direction.

[12] Both vehicles passed, single file with the Chevy first followed by the Honda, and both pulled back into the same lane as they crossed an intersection known as Rushworth, he said. At that point Mr. Pennefather estimated his speed to be 70 km/h in a posted 60 km/h zone. He said he did not see either car use its brake lights after passing, instead continuing to outdistance his vehicle at a high rate of speed.

[13] Mr. Pennefather said there was another rise in the road as he approached an intersection at Audley – a distance of about 600 metres – where he saw the vehicles travel through the intersection at Lakeview side by side.

[14] "They seemed to be going at great speed given the distance they'd covered," Mr. Pennefather told the court. At that point he saw one car's brake lights, and the second travel off the road. He said he lost sight of the two motor vehicles briefly when he crested another hill. He stopped to see if the drivers needed help. He said he saw two males and two females. The Honda was perhaps 100 metres off the road, lying on its roof. The driver of the Honda was sitting against the car and "amazingly did not seem injured."

[15] Mr. Pennefather said he could not positively identify the drivers.

[16] He estimated the accident occurred "less than 60 seconds from the time they passed" his vehicle.

[17] Mr. Pennefather said traffic on the roadway was light after 11 p.m. The roads were dry and he had no difficulty stopping.

[18] Under cross examination Mr. Pennefather said he had been on Rossland Road for about 400 metres when the two vehicles caught up to his, "one car riding on my bumper; the other car single file behind him." Both overtook at the Rushworth intersection going uphill. Mr. Pennefather said he continued travelling "at my rate of speed," when he saw two sets of tail lights "beside each other," though he could not tell from that distance which car was in which lane, nor for how long.

[19] This was the case for the Crown.

Motion for Non-Suit Dismissed

[20] The court dismissed a motion for non-suit over identity. Mr. Parker said he had not heard the officer identify the defendant. The court noted the officer confirmed identity by way of a valid Alberta driver's licence.

Evidence for the Defence

[21] Mr. Parker called Christopher Sukanan as a defence witness. Mr. Sukanan had been summonsed as a Crown witness but was not called as such.

[22] Mr. Sukanan said he and his girlfriend were in his Honda, coming from a movie theatre in Ajax. Mr. Jones and his girlfriend – friends – were in another vehicle in front of his. Both vehicles came upon a slow moving vehicle which he estimated as travelling at a rate of speed of between 50-60 km/h.

[23] Mr. Sukanan said he had to "really slow down," until Mr. Jones vehicle overtook the slow moving vehicle. Mr. Sukanan said he followed suit, and both he and Mr. Jones pulled back into the right lane.

[24] Mr. Sukanan said he waited for Mr. Jones to successfully overtake the slow moving vehicle before undertaking to do the same.

[25] After travelling for a distance Mr. Sukanan said Jones braked "suddenly" and he was unable to stop successfully, swerving to avoid collision and losing control of his motor vehicle before it came to rest in a field.

[26] He said he was travelling "side by side" while passing Mr. Jones' vehicle, but denied doing so for a distance of 800 metres.

[27] Mr. Sukanan said he was travelling at between 85-90 km/h while attempting to overtake Mr. Jones. He added he could not say how fast Mr. Jones was going while they were travelling side by side.

[28] Mr. Sukanan, who is also charged with similar offences, denied racing that night and denied "chasing," saying instead he was "simply following," Mr. Jones.

[29] Under cross examination Mr. Sukanan confirmed he was aware the speed limit on Rossland Road in that vicinity is 60 km/h. Mr. Sukanan said he believed he was travelling at a speed of 60 to 65 km/h when he passed the slow moving vehicle travelling at between 40 and 50 km/h.

[30] He said he and Jones picked up speed moving down hill; Jones remaining in front when he "slows suddenly and puts on his brake lights because he's going 80 (km/h)."

[31] "He's three car lengths ahead of me and he slams on his brakes. I saw that and went around without hitting him," Mr. Sukanan said.

Submissions

[32] Mr. Parker says Mr. Jones is charged with racing by outdistancing or attempting to outdistance another motor vehicle at a marked departure.

[33] Mr. Parker says Mr. Jones and Mr. Sukanan passed Mr. Pennefather in single file and returned to the driving lane in the same order. Mr. Pennefather did not need to brake as a result of the maneuver.

[34] Mr. Parker says there wasn't any evidence that Jones and Sukanan were engaged in a competition or were chasing each other, and that there was no evidence of a marked departure in speed. Mr. Parker said Jones and Sukanan's actions were "a simple overtake," and as such this does not constitute outdistancing.

[35] As such Mr. Parker says the Crown has failed in its duty of proof beyond a reasonable doubt and he invited the court to dismiss the charge.

[36] Ms. McGuire told the court the evidence is a matter of credibility and reliability. She asked the court to believe Mr. Pennefather who has no vested interest in the outcome of the trial, and to dismiss Mr. Sukanan's testimony as self-serving.

Regulations Considered

[37] s. 172 (1) of the Highway Traffic Act reads: Racing, stunts, etc., prohibited – No person shall drive a vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

[38] Ontario Regulation 455/07 defines "race" and "contest" as "any activity where one or more persons engage in any of the following driving behaviours:

1. Driving two or more motor vehicles at a rate of speed that is a marked departure from the lawful rate of speed and in a manner that indicates the drivers of the motor vehicles are engaged in a competition.

2. Driving a motor vehicle in a manner that indicates an intention to chase another motor vehicle.

3. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,

   i. Driving a motor vehicle at a rate of speed that is a marked departure from the lawful rate of speed,

   ii. Outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed, or

   iii. Repeatedly changing lanes in close proximity to other vehicles so as to advance through the ordinary flow of traffic while driving at a rate of speed that is a marked departure from the lawful rate of speed."

Subsection (2) defines "marked departure from the lawful rate of speed" as a rate of speed that may limit the ability of a driver of a motor vehicle to prudently adjust to changing circumstances on the highway.

Case Law Considered

[39] Neither party cited cases but there are a number on point.

[40] First, the court considers the credibility and reliability of the witnesses. The court determines Douglas Pennefather's version of events that night, as an independent, unbiased witness, to be both credible and reliable.

[41] The court is somewhat more critical of Mr. Sukanan's testimony given he faces charges stemming from the same set of allegations, and therefore applies a number of tests to determine whether all or even some of his evidence may be considered credible and reliable.

[42] So what tests to apply in assessing Mr. Sukanan's credibility? The court turns to existing case law on the subject.

[43] Raymond v. Bosanquet (1919), 50 D.L.R. 560, 59 S.C.R. 452, 17 O.W.N. 295 says, "For a trial judge to say, 'I believe him because I judge him to be telling the truth,' is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind."

[44] The court is mindful in determining reliable testimony of simply choosing one set of evidence and rejecting the other. A court must be careful to give the defendant's evidence fair consideration in the context of all of the evidence. The court must avoid premature acceptance of police evidence or in this case, Crown evidence thus excluding the possibility of being left with a reasonable doubt on the defendant's evidence, and the evidence as a whole.

[45] In R. v. Gagnon, 2006 SCC 17, [2006] S.C.J. No. 17 it is said, "Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L. v. Attorney General for Canada, 2005 SCC 25, [2005] 1 S.C.R. 401, that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected."

[46] The court is also mindful of R. v. Tzarfin, [2005] O.J. No. 3531 (Ont. C.A.) which is an appeal of a case by a justice of the peace who gave short oral reasons accepting the evidence of the prosecution. Tzarfin (supra) determined that although the reasons were short they were adequate and left no doubt as to why the justice of the peace accepted the evidence of the prosecution. An accused is entitled to adequate reasons, not perfect reasons.

[47] In R. v. Leung, [2005] O.J. No. 1888, L. Favret J. says the proper approach to the burden of truth is to consider all of the evidence together and not to assess individual items of evidence in isolation. It is essential that the credibility and reliability of the evidence be tested in light of all of the other evidence presented, particularly when the Crown's case depends solely on the unsupported evidence of any of the witnesses and what are principle issue is that witnesses credibility and reliability. When the case turns almost entirely on the credibility of any of the witnesses and the accused, the issue is not which version of the matter is true or whether to believe the complainant or the accused, but the issue is whether the Crown's case has been proven beyond a reasonable doubt.

[48] In assessing credibility, the following excerpt from the case of R. v. White, [1947] S.C.R. 268 is helpful: "The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his antecedence in this statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is bias, reticent and evasive. All these questions and others must be answered from the observations of the witnesses' general conduct and demeanour in determining the question of credibility."

Assessing Mr. Sukanan's Credibility

[49] The court has trouble believing Mr. Sukanan's self-serving version of events in its entirety. Mr. Sukanan tried weaving fact and fiction but the latter turns out largely to be his ill-informed opinion, and little else.

[50] Mr. Parker called Christopher Sukanan as a defence witness. Mr. Sukanan had been summonsed as a Crown witness but was not called as such.

[51] The court believes Mr. Sukanan with regard to the date, time, place, and identity. It finds it is only Mr. Sukanan's opinion that he and Mr. Jones came upon a slow moving vehicle; slow moving in as much as it was doing the speed limit while Mr. Sukanan and Mr. Jones were travelling at a high rate of speed.

[52] The court accepts Mr. Sukanan's evidence that both he and Mr. Jones had "really slow down," until they were both able to overtake Mr. Pennefather's vehicle at night in the lane of traffic reserved for oncoming traffic in an area best described as having hills. That they did so successfully is as much a tribute to the fact there was no oncoming traffic as to their driving skills.

[53] The court believes Mr. Sukanan lost control of his vehicle when Mr. Jones braked "suddenly" for some unexplainable reason, and the court finds his evidence believable when he said he was travelling "side by side" in an effort to pass that vehicle. That Mr. Sukanan does not believe this happened for any great distance is likely as much the result of the speed travelled -- estimated at upward of 90 km/h in a posted 60 km/h zone by his own account, and possibly higher than that.

[54] Mr. Sukanan, who is also charged with similar offences, denied racing that night and denied "chasing," saying instead he was "simply following," Mr. Jones. This is a self-serving statement at best, and is discounted by the court given the evidence it finds to be credible and reliable.

[55] Normally the test to be applied where there is conflicting evidence by way of a difference of opinion is by way of three questions established in R. v. W.(D.), [1991] 1 S.C.R. 742. Since Mr. Jones did not testify on his own behalf the court does not have any conflicting evidence that would require an R. v. W.(D) analysis. The court has explained how it arrives at a determination of credibility and reliability with regard to Mr. Sukanan's testimony, and has spelled out the evidence it does accept.

[56] R. v. Smith, [1971] 5 W.W.R. 674 (Sask. Dist. Ct.) says it is not necessary to prove the accused expressly agreed to embark on a race given this may be properly inferred from observed conduct.

[57] R. v. Flannery (1982), 15 M.V.R. 116, 15 Man. R. (2d) 162 (Co. Ct.) says that while speeds were not atrocious, the manner in which the ultimate speed was attained having regard to the time, location and circumstances existing, and the method of accelerating in as short a distance as possible, while driving abreast, connotes only one purpose – to race. Speed is only one element. All circumstances must be looked at.

[58] Mr. Jones specifically finds himself subject to Ontario Regulation 455/07 as it relates to paragraph 2 (driving motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by, and more specifically, subparagraph ii (outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed.)

[59] R. v. Allan, 2009 ONJC 270 is a decision made by this court in this courtroom here in Whitby which appears on point. In Allan (supra) this court determined that paragraph three is to be taken in its entirety, rather than as individual elements, given this offence differs from Careless Driving as per s. 130 of the Highway Traffic Act because of the serious penalties and administrative consequences upon conviction.

[60] Case law states that where there is ambiguity, the language must be read in favour of the defendant, and this is accomplished by requiring the Crown to prove, beyond a reasonable doubt, all three elements in the subparagraphs pertaining to paragraph three. That is to say – and it is in the defendant's favour – that the Crown must prove a marked departure from the lawful rate of speed; that outdistancing or attempting to outdistance one or more other motor vehicles at a rate of speed that is a marked departure from the lawful rate of speed; and repeatedly changing lanes in close proximity to other vehicles so as to advance through the ordinary flow of traffic while driving at a rate of speed that is a marked departure from the lawful rate of speed.

[61] R. v. Bunda, 2009 ONCJ 620, supports the decision reached in R. v. Allan (supra). R. v. Kaizer, 2009 ONCJ 674, a decision of this court made in this courtroom, also reaffirms the higher burden of proof upon the crown.

[62] R. v. Stevens, 2010 ONCJ 348 speaks to the credibility of an involved party in cases where there is a conflict in evidence provided to the court. The test must reasonably subject the interested parties' story to an examination of its consistency with the probabilities that surround the currently existing conditions. The real test of the truth must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions thus allowing for appraisal of a quick-minded, experienced and confident witnesses versus that of one who is adept in the half-lie, skilful exaggeration and partial suppression of the truth.

[63] In applying R. v. Allan (supra) the court considers whether the Crown has proven the essential elements beyond a reasonable doubt. Those elements again are: driving a motor vehicle at a rate of speed that's a marked departure from the lawful rate of speed, ii. Outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that's a marked departure from the lawful rate of speed, or iii. repeatedly changing lanes in close proximity to other vehicles so as to advance through the ordinary flow of traffic while driving at a rate of speed that is a marked departure from the lawful rate of speed.

[64] Based on those elements the court accepts, it finds the defendant was travelling at a rate of speed of 90 km/h which is half as much again as the allowable posted speed limit of 60 km/h on this stretch of road. This would be considered similar to driving at 150 km/h on Hwy. 401 which has a posted 100 km/h, which falls within the 'stunt racing' mandate. The court finds the Crown has met the burden of proof – beyond a reasonable doubt – with regard to subparagraph (i): that the defendant was driving a motor vehicle at a rate of speed that's a marked departure from the lawful rate of speed.

[65] With regard to the second element of the offence, listed as subparagraph (ii), the court finds on the basis of the evidence it does accept beyond a reasonable doubt that the defendant by the nature of his actions that night, did try and outdistance Mr. Sukanan by travelling at this marked departure from the lawful rate of speed.

[66] Finally with regard to the third and final element of the offence, listed as subparagraph (iii), the court finds changed lanes at least once, in close proximity to other vehicles so as to advance through the ordinary flow of traffic while driving at a rate of speed that is a marked departure from the lawful rate of speed.

[67] The single question remaining for the court to determine is whether the Crown has proven the element of 'repeatedly' changing lanes so as to advance through the ordinary flow of traffic while driving at a speed that is a marked departure from the lawful rate of speed.

[68] Certainly the court accepts the defendant passed Mr. Pennefather's vehicle in such a manner, but there is no evidence to support the supposition that he passed other vehicles that night at a rate of speed that is a marked departure from the lawful rate of speed.

[69] Certainly Mr. Sukanan was in the position of passing the defendant when the accident occurred. This is the point the defendant is said to have touched his brakes resulting in the co-accused losing control of his motor vehicle.

[70] Given there is no evidence to support the full wording of subparagraph (iii) of the charge, taken as a whole, the court finds the Crown has not met its burden of proof beyond a reasonable doubt. As such the charge is dismissed.

Released: October 25, 2012

Justice of the Peace R. J. Le Blanc