Court File and Parties
Court File No.: Toronto Region, Metro North Court
Date: 2012-09-05
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
June Keita
Before: Justice Carol Brewer
Heard on: April 12 and 13, 2012
Reasons for Judgment released on: October 24, 2012
Counsel:
Paul Alexander, for the Crown
Leonard Stigler, for the defendant, June Keita
Brewer J.:
Introduction
[1] June Keita is charged with committing the following offences on October 20, 2010:
- failing to remain at the scene of an accident causing bodily harm;
- criminal negligence causing bodily harm; and
- dangerous driving causing bodily harm.
[2] These charges arise out of a tragic incident in which the vehicle operated by Ms. Keita struck and ran over her co-worker, Savita Kubarie, while exiting a parking space in a parking lot at their workplace. Ms. Kubarie suffered serious injuries, including fractures to her left cheekbone, 6 to 8 of her ribs, the left scapula, right hand, and one vertebrae; two damaged disks in her back; and bruising on her right leg and back. The complainant spent 10 days in the hospital, had extensive physiotherapy and has been unable to work since the collision.
[3] There is no suggestion that the collision was deliberate, in the sense that the defendant intended to run over her colleague. Rather, the issue in this case is where on the continuum between accident and criminal negligence, the Crown has proven that this case falls.
The Evidence
[4] It is not disputed that Ms. Kubarie and the defendant worked a shift that ended at 11:00 p.m. on October 20, 2010. Ms. Keita left building 8 of Symcor and hurried through the parking lot to her vehicle about two minutes before the complainant entered the lot. It was cool and rainy at that time. The two women, as well as other employees, went behind the parked cars while going through the lot to their vehicles. The parking lot is flat,[1] properly paved, and was free of debris. Ms. Kubarie's automobile was parked three or four parking spots past the defendant's car. While the parking lot is darker in some places, there was a light standard approximately two car widths from the rear of the defendant's vehicle, as well as lights on the outside of the building where they worked.
[5] A surveillance video of the parking lot showed that Ms. Keita used a remote device on her car key to unlock her Chevy Blazer. About 40 seconds after entering the vehicle, the car was turned on and the headlights were visible. The defendant put on her windshield wipers and front defogger to clear her windows. According to Ms. Keita, the "check engine" light on her dashboard lit up as soon as she turned on her car. While this concerned the defendant, she was not worried about the safety of the vehicle and chose to drive it.
[6] Two pedestrians, later identified as Jo-ann Gallagher and Imelda Faminial, walked by the defendant's vehicle, sharing an umbrella. Savita Kubarie entered the parking lot about a minute after Ms. Gallagher and Ms. Faminial passed the defendant's car. The complainant had her black jacket pulled up to cover her head. Under the jacket she was wearing blue pants and a light gray sweater.
[7] Ms. Keita's vehicle had been backed into its parking space, so that the front of the car was facing outwards towards the road. As Ms. Kubarie moved towards the defendant's automobile, Ms. Keita pulled out of her parking space. However, when the defendant noticed two other cars approaching, she reversed direction and moved back into her parking spot.
[8] The complainant stopped and waited for a few moments after Ms. Keita moved out of and back into her parking space. Before walking in front of the Blazer, Ms. Kubarie looked directly at the defendant, who was gazing in her direction. The complainant assumed that Ms. Keita saw her, as they had a clear, unobstructed view of each other.
[9] A one-way sign was located on the opposite side of the road, directly in front of the defendant's vehicle. The traffic was meant to travel to the defendant's right. Although she was aware of both the sign and the proper flow of traffic, Ms. Keita made a conscious decision to drive the wrong way on the one-way street. There was evidence that it was not unusual for employees of Symcor to ignore the one-way signs, despite the company posting memos, sending emails and holding meetings to emphasize the importance of obeying the signs. The defendant had only been in this building at Symcor for 3 months. There is no evidence that she was aware of the company's efforts in seeking the employees' compliance with the rules of the road while on the business' private roadway. Ms. Keita admitted having disobeyed the one-way sign a couple of times prior to this incident.
[10] When the complainant had moved just past the driver's side headlight on the Blazer, Ms. Keita drove out of her parking spot, turned to the left and struck Ms. Kubarie. The complainant called out to Ms. Keita, but was not heard. The surveillance video shows the Blazer driving onto the complainant's body, stopping for a few seconds and then proceeding to the end of the road. The movement of the vehicle as it bounces onto and off of the body is clearly apparent. Ms. Kubarie described seeing the brake lights of the Blazer as it reached the end of the parking lot and believing that Ms. Keita was stopping in order to come back to assist her. That hope was dashed when the car continued out of her sight.
[11] Ms. Faminial noticed the defendant's car stopping for a few seconds, almost directly in front of her car, as she waited to drive herself and Ms. Gallagher home. When Ms. Faminial began to drive forward, she saw something move on the pavement, which appeared to be a person's head. She backed up, exited the vehicle and discovered the complainant lying on the ground. Ms. Faminial ran to the building to summon help and Ms. Gallagher called 911.
[12] Ms. Keita left the Symcor property and drove to her residence. Immediately after the defendant reached home, she was called by police and directed to return to the scene of the collision. Ms. Keita picked up her mother and the two women drove to Symcor in the defendant's vehicle. When advised by Constable Li that her vehicle had struck a colleague in the parking lot, the defendant appeared shocked and began to cry.
[13] Ms. Keita acknowledged knowing that people would walk through the parking lot in order to get to their cars and seeing people do so on the night of the collision. The defendant maintained that she was paying attention and that she checked to her left, right and through the front windshield before moving her car forward to leave the parking lot. There were no distractions that affected her ability to drive. Her vision is perfect. Ms. Keita testified that she did not see the complainant, nor did she feel any bump, unexpected motion and anything under the car. The defendant did not hear anyone call her name. Ms. Keita explained that she stopped on the road because her engine light was fluctuating. At the time of the trial, June Keita still did not accept that her car hit the complainant.
[14] The defendant took a defensive driving course before getting her driver's licence in 2003. Between 2003 and this incident, Ms. Keita had a clean driving record. However, on October 20, 2010, the defendant's vehicle was uninsured. She had retrieved her car two days earlier from her mechanic and had not reinstated her insurance. Ms. Keita admitted that she had made a conscious choice to drive knowing that she did not have insurance.
The Fundamental Principles
[15] In this case, Ms. Keita is presumed to be innocent, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.
[16] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.
[17] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
[18] In weighing the credibility of the witnesses in this case, I remind myself of the principles articulated by the Supreme Court of Canada in R. v. D.W., 63 C.C.C. (3d) 397.
[19] Assessed in the contest of the evidence as a whole, I do not believe Ms. Keita's evidence, nor does it raise a reasonable doubt in my mind. I find that her evidence was unreliable for the following reasons:
There were internal inconsistencies in the defendant's testimony. For example, Ms. Keita stated that, when the engine light turned on, she was concerned that the car was unsafe but, regardless, she chose to drive it home. Shortly thereafter the defendant asserted that she was not concerned about the car being unsafe, but was worried that the engine light had appeared;
There were discrepancies between the defendant's statement to the police and her evidence at trial. By way of illustration, Ms. Keita told the police that she did not stop or slow down at all after pulling out of her parking space. Yet, at trial, she said that she stopped her car because the engine light was fluctuating;
There were inconsistencies between the defendant's testimony and the surveillance video. For instance, Ms. Keita initially explained the 40 second delay between entering her car and turning it on by saying that she needed to find the keys in her purse. Subsequently, when confronted with the videotape, Ms. Keita admitted that she used the keys to unlock her car from a distance and that her earlier answer was not true. The delay was then attributed to wiping the rain from her face; and
Certain portions of the defendant's evidence appear illogical. For example, Ms. Keita's inability to see the complainant who was walking close to her vehicle, is at odds with her sighting of Ms. Gallagher and Ms. Faminial, who were a greater distance away. It is also inconsistent with the fact that Imelda Faminial was able to see the complainant from her car even though Ms. Kubarie was lying on the ground.
[20] I am satisfied that the surveillance videotape provides an objective and accurate depiction of the events in the parking lot. I find that the accounts given by the complainant and the two independent witnesses are generally consistent with the video.
The Law
[21] Based upon the submissions of counsel, there is no serious dispute that Ms. Keita's vehicle struck and then ran over Savita Kubarie and that the collision caused her bodily harm.
A. Dangerous Driving Causing Bodily Harm
[22] Recently, in R. v. Roy, 2012 SCC 26, the Supreme Court of Canada described the elements of dangerous driving as follows at ¶34 and 36:
In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. … A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. . . . The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.
[23] In this case, I have concluded that the only reasonable conclusion to be drawn from the defendant's failure to see Ms. Kubarie, in circumstances where
Ms. Keita saw other pedestrians who were further away than the complainant;
the defendant acknowledged that there was nothing distracting her at that time;
Ms. Kubarie was standing just past the headlight on the driver's side of Ms. Keita's vehicle at a distance of about one foot in front of the car immediately before the Blazer was driven forward and struck her; and
Imelda Faminial saw the complainant even when she was lying on the ground;
is that Ms. Keita failed to look forward before driving out of her parking space. Standing alone, this piece of driving could be viewed as "momentary inattention". However, in my opinion, the driving must be assessed in its entirety, particularly because all of the driving took place over a very short time frame.[2] This example of poor driving must be considered together with the defendant's deliberate choice to drive the wrong way on a one-way street at 11:00 p.m., in the rain and in a place where pedestrians and other cars were likely to be. Further, I do not accept that Ms. Keita was unaware of the bounces that her vehicle clearly made when driving onto and off of the complainant, given their distinct and obvious character on the video. In my opinion, the failure to stop and investigate the reason for a car bouncing over something in a parking lot that was flat, properly paved, free of debris, and which was used by co-workers going to their vehicles, is another feature of the driving under consideration. When viewed cumulatively, there is no doubt in my mind that Ms. Keita's driving was dangerous and endangered the public.
[24] In my view, a reasonably prudent driver would have been aware that a work shift had just ended, co-workers would be walking through the parking lot to get to their cars and, from the 11 vehicles that were still parked in the lot and the sighting of Ms. Gallagher and Ms. Faminial, that the presence of pedestrians in the area of her vehicle was very likely. The darkness and the rain would have caused the reasonably prudent driver to take extra care in keeping a proper lookout to ensure that no pedestrians were in her vicinity before driving forward. Further, a prudent driver would not have driven the wrong way on the company's private one-way road through the parking lot, as such an action could not be anticipated by any nearby pedestrians and would create a risk to her co-workers and any cars that were likely to be in the area. Lastly, a reasonably prudent driver would have appreciated that the bouncing of her vehicle meant that she had run over something that was almost certainly a pedestrian and stopped to investigate and give aid. Accordingly, I find that a reasonable person would have foreseen the risks arising in these circumstances and taken steps to avoid them. When the evidence is considered in its entirety, I am satisfied that Ms. Keita's failure to see the risks and avoid their obvious consequences was a marked departure from the standard of care that a reasonably prudent driver would have exercised in the circumstances. Further, the defendant's manner of driving raised a foreseeable risk that it would cause bodily harm.
B. Criminal Negligence Causing Bodily Harm
[25] The physical element of criminal negligence involves conduct that is not simply dangerous to the public, but which involves an act or omission that "shows a wanton or reckless disregard for the lives or safety of others". When viewed objectively, the consequences of the negligent driving must be obviously wanton or reckless: R. v. J.L. at ¶18. The greater the risk of harm, the more likely the consequences are the natural result of the conduct creating the risk. "Wanton" means heedlessly, ungoverned, undisciplined or an "unrestrained disregard for the consequences". In this context, "recklessness" means "heedless of consequences, headlong, irresponsible".
[26] The mental or fault element of criminal negligence involves a "marked and substantial departure" from the standard of care that would be employed by a reasonably prudent driver in circumstances where the accused either recognized or ran an obvious and serious risk to the life or safety of another or gave no thought to that risk: R. v. J.F., 2008 SCC 62 at ¶7-9; R. v. M.R. at ¶30.
[27] In applying these concepts, the Court of Appeal in R. v. M.R. directed trial judges to consider the actus reus, or physical element of the offence, first and only where the conduct meets the actus reus requirements is it necessary to go on and consider the mental element of the offence.
[28] In assessing the extent to which an accused's conduct departed from the norm, factors such as planning and premeditation; a sustained course of negligent driving; the consumption of alcohol or drugs; or the egregious character of the driving bear on whether the standard of wantonness or recklessness has been established. The tragic fact that Ms. Kubarie sustained serious injuries is not to be considered when determining whether the defendant's negligent driving rose to the level of criminal negligence: R. v. Beatty, 2008 SCC 5 at ¶46. None of the features that characterize the other cases where criminal negligence was proven are present in this situation. I am not satisfied that the Crown has proven beyond a reasonable doubt that the defendant's negligent driving reached the level of wanton or reckless.
C. Failure to Remain at the Scene of an Accident Causing Bodily Harm
[29] The offence of failing to remain at the scene of an accident knowing that an injury has been occasioned requires proof that the accused had care or control of an automobile involved in a collision with a person or vehicle, and proof that the accused was aware of both the accident and the resulting injury to the victim of the accident. The offence also requires that the accused's failure to stop at the scene of the collision and identify herself or offer assistance was for the purpose of escaping civil or criminal liability, absent evidence to the contrary.
[30] In this case, the issue is whether the knowledge component of the offence has been proven beyond a reasonable doubt. As stated earlier, I am satisfied that Ms. Keita was aware of her vehicle bouncing onto and off of an object. Given the surrounding circumstances, a reasonable driver would have recognized that the bouncing meant that the vehicle had run over something, which was almost certainly a pedestrian. Bodily harm was foreseeable from the fact of a person having been driven over by a car. During cross-examination the defendant agreed she knew that if a car hit a person, that individual could be hurt.
[31] In R. v. Briscoe, 2010 SCC 13 at ¶21 the Supreme Court of Canada stated:
Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"
[32] I am satisfied that the defendant realized she had run over something and did not get out of her vehicle to confirm that it was a person who had been injured because she was uninsured and did not want to know. This was a case of deliberate ignorance on the part of Ms. Keita.
Conclusion
[33] The Crown has proven the charges of dangerous driving causing bodily harm and failing to remain at the scene of an accident causing bodily harm beyond a reasonable doubt. Findings of guilt are entered on those charges. There will be an acquittal on the charge of criminal negligence causing bodily harm.
Released: October 24, 2012
Signed: "Justice Carol Brewer"
Footnotes
[1] This is apart from a pair of speed bumps, located at the exit to the parking lot, that play no part in the case.
[2] The video shows that it was 37 seconds between the complainant arriving at the parking lot and Ms. Keita driving off after running over Ms. Kubarie's prone body. It was 18 seconds between the complainant approaching the defendant's car and Ms. Keita's departure after running over the complainant.