Court File and Parties

Court File No.: Toronto 10/10007401

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Eric Corazza

Before: Justice Paul H. Reinhardt

Heard on: 5, 6, 7, 8 November 2012; 4, 25 March & 6 June 2013

Reasons for Judgment released on: 31 July 2013

Counsel:

• Mary Anne Mackett, for the Crown
• David Landesman, for the accused

REINHARDT J.:

Charges

[1] Eric Corazza stands charged that on or about 16 August 2010 at the City of Toronto, in the Toronto Region, at Highway 427 southbound near Dundas Street, he did:

(1) By criminal negligence to wit by operating a motor vehicle at a high speed and dangerous manner cause the death of Allison Stachyra, contrary to section 220(b) of the Criminal Code of Canada; and further:

(2) Operate a motor vehicle on Highway 427 in a manner that was dangerous to the public and thereby caused death to Allison Stachyra, contrary to section 249(4) of the Criminal Code of Canada.

Election and Preliminary Inquiry

[2] On 5 November 2012 Mr. Corazza was arraigned and elected to have a preliminary inquiry and to be tried by a court composed of a judge without a jury.

[3] As a result, the preliminary inquiry commenced before me on that date. I heard evidence over five days from eight witnesses:

1. Konstandinos Rorras;
2. Domenico Morano;
3. Christine De Bruin;
4. Keith De Bruin;
5. Hakan Senkaya;
6. Ontario Provincial Constable Peter Shouldice;
7. Centre of Forensic Science Toxicologist Betty Chow, M.Sc.; and,
8. Ontario Provincial Constable Kelly Wiltshire.

[4] I have concluded that the Crown has placed sufficient evidence before this court for a committal on Count 2. These are my reasons.

1: Summary of The Evidence

Witness Evidence

[5] The first Crown witness, Konstandinos Porras, testified that on 16 August 2010 as he was driving southbound in the middle lane on the 427, shortly before the accident he first noticed a black GM vehicle, "Cavalier or Sunfire" that he later saw crashed at the side of the road. This vehicle moved up behind a silver-brown Mazda that was positioned to Mr. Porras left in the passing lane. When the Mazda did not pull over, the black GM vehicle pulled in behind Mr. Porras' vehicle and then back into the passing lane as if attempting to pass but then stayed some distance behind his vehicle and did not actually ever pass his car. He testified that when the black vehicle next caught his attention it was behind his vehicle, visible through his rear-view mirror, heading in a "90 degrees" right angle going down into the ditch at the side of the express lanes some considerable distance behind his vehicle.

[6] Mr. Porras testified in cross-examination that when he gave his statement to the police, from his perspective it was as if someone cranked the steering wheel in the black GM vehicle while the car maintained its speed.

[7] Mr. Porras further testified in response to cross-examination that another possibility was that "something broke" in the black GM vehicle. His response was:

A. Yeah, that is why…that was my thought. Like I thought maybe something broke that caused it to…

Q. Something broke?

A. Yeah, I don't know, to go…either broke or somebody just turned the steering wheel.

Q. Okay.

A. For it to be like so severe. Like 90…usually when a car is…doesn't go like this, right? But this was like really sudden.

[8] Mr. Porras also testified that traffic was light at the time of the crash and that he never changed his own driving speed, of approximately 110 kilometers per hour, or changed any other aspect of his driving as a result of his encounter with the black GM vehicle and his observations of that vehicle.

[9] Mr. Domenico Morano was the second Crown witness. He testified that at the time of the accident he was driving southbound with his wife on the 427 approaching Dundas Street, and saw a plume of brown dust up ahead. As he approached he noticed a black Pontiac Sunfire facing sideways towards the guardrail on the right side of the road.

[10] Mr. Morano testified that he proceeded to pull over and stop his vehicle in order to offer assistance.

[11] Mr. Moreno testified that he observed the accused, Mr. Corazza, in the driver's seat, and outside the vehicle, very close to the passenger front side of the vehicle, lying face down towards the curb, the body of a young lady.

[12] He testified that he proceeded to call 911 and observe other citizens attempting to assist the young woman.

[13] Mr. Morano testified that he later saw Mr. Corazza out of the driver's seat and sitting down.

[14] He testified that the car was "fairly crumpled", not driveable, and agreed with counsel that it was a "miracle" that anyone had survived the accident.

[15] Mr. Morano testified that Mr. Corazza did not appear injured but was clearly in shock and very quiet.

Christine and Keith De Bruin

[16] The next two Crown witnesses, Christine and Keith De Bruin were also travelling southbound on the 427 and gave separate statements to the police.

[17] Christine De Bruin testified that initially, at the scene, her husband gave a statement to the police, which was partially transcribed by her, and signed by her husband, but with both of their names at the top.

[18] Christine De Bruin testified that on 17 August 2010, Constable Peter Shouldice came to her place of work and she gave him a separate signed statement, in the absence of her husband.

[19] Christine De Bruin testified that she and her husband, her mother and their two children, ages five and ten, had just arrived by plane from their home town of Dryden, Ontario, and were driving from the airport to their Toronto address in Mississauga. Mr. De Bruin was driving, and she was in the front passenger seat.

[20] Christine De Bruin testified that they were travelling from Pearson on Highway 40-1, heading westbound to meet up with Highway 427 and drive southbound.

[21] Christine De Bruin testified that her husband pointed out to her a black Pontiac Sunfire that he described as being driven by someone driving "like an idiot", to quote her husband.

[22] Christine De Bruin testified that her husband told her the driver was "weaving and driving fast" but that she herself made few observations at that time.

[23] Christine De Bruin testified that initially she looked across her husband's seat and out the driver side window and could see a black Pontiac Sunfire that was changing lanes but other than that, she could not recall anything in particular about the driving.

[24] Christine De Bruin testified that her husband drove their car onto the southbound 427, and after some distance, she, herself, this time, noticed the black Pontiac Sunfire, the same vehicle, cross from right to left across three lanes in front of them, and then speed off in the farthest left express lane, going southbound at a "high rate of speed".

[25] Christine De Bruin estimated that the black Sunfire was moving at a speed of approximately 110 KPH, and moving gradually away from them at this point.

[26] However, Ms. De Bruin also testified that the traffic around them was also, as were they, moving at approximately the same speed, of 110 KPH.

[27] Ms. De Bruin testified that to her, the driving of the black Sunfire "appeared dangerous".

[28] Ms. De Bruin testified that she later observed, as she and her husband travelled southbound on Highway 427, "up ahead" approximately thirty car lengths in front of them a "black whizz" go sideways across the highway.

[29] Ms. De Bruin testified that as their car reached this point in the roadway, at least twenty to thirty seconds later, or perhaps a little longer than thirty seconds, they saw the same black Sunfire that had passed them cartwheeling down the embankment from the express lanes to where the collectors merge onto the express lanes, at the right or west side of the highway, heading south.

[30] Ms. De Bruin testified that her husband pulled over and parked, and he ran to the car, which, according to Ms. De Bruin, was now stopped close to or partially under a bridge, with the nose of the car facing right or west.

[31] Ms. De Bruin testified that she then observed the driver climb out of the driver's side door window.

[32] Ms. De Bruin also testified that she then moved their car to a safer spot on the roadway, and then left her car and joined her husband at the scene, at which time she observed a young women on the ground in front of the car.

[33] Ms. De Bruin's husband, Keith De Bruin was the fourth Crown witness.

[34] Mr. De Bruin testified that his family arrived back from Dryden, by plane, and first the family went to his office at Pearson Airport, where their family van was parked.

[35] Mr. De Bruin testified that he then drove his family in the van south from his office on Highway 427.

[36] Mr. De Bruin testified that initially, as they were driving south on Highway 427, he observed a black car pass on their left side, at a very high rate of speed.

[37] Mr. De Bruin testified that he told his wife that an "asshole" was travelling extremely fast given the road conditions and number of cars that he generally observed at that time of the day on Highway 427, when he is leaving work.

[38] Mr. De Bruin testified that later in the drive, as they were just approaching or passing the Dundas Street exit of Highway 427, his wife noticed what she believed to be the same car leave the road, a considerable distance away and in front of their location.

[39] Mr. De Bruin testified that when their car arrived at the scene of the accident his wife ordered him to "pull over" the family car to investigate and perhaps help out.

[40] Mr. De Bruin testified that he got out of his car and he ran down the embankment to where the car had come to rest, perpendicular to the road.

[41] He testified that he could see a child or young woman's body in front of the car and an adult woman kneeling next to the body and calling 911.

[42] Mr. De Bruin testified that he took over the 911 call and then on the instructions of the 911 operator, turned the body over and checked for vital signs. He testified that he observed no pulse and no breathing.

[43] In cross-examination Mr. De Bruin conceded that he was not sure that the car that passed his car at a high rate of speed earlier in his drive on the 427 was the same car that crashed later on in his drive and which he attended on the side of the 427.

[44] Also in cross-examination Mr. De Bruin conceded that he was travelling unusually slowly that evening because he had a soft tire, and therefore kept his speed at approximately 100 KPH to 105 KPH, whereas the other traffic generally was probably going at between 110 and 115 KPH.

[45] When asked to estimate the speed of the car that had passed him initially, that he thought had been "speeding", Mr. De Bruin estimated that the car could have going as fast as 130 KPH to 140 KPH.

Hakan Senkaya

[46] The fifth Crown witness, Hakan Senkaya, is a truck driver and driving southbound on the 427 in his truck in the express lanes, in the right express lane at the time the Corazza vehicle veered off the road. He indicated that the road was clear, conditions were good and traffic was "moving easily" at the time of the accident.

[47] Mr. Senkaya testified that his vehicle was travelling at a controlled speed of 105 KPH, the maximum speed permitted by his employer and his vision was clear because of his high cab.

[48] Mr. Senkaya testified that he could see the crash unfold in front of him.

[49] Mr. Senkaya testified that he first observed through his left side mirror the Corazza vehicle "coming fast" up behind him in the middle express lane.

[50] Mr. Senkaya testified that the Corazza vehicle passed and then after approximately 200 or 300 meters later:

The car just start spin over I think two or three times and then start roll over from hill. It's happen too fast.

[51] Mr. Senkaya testified that the Corazza car then rolled over and came to rest on a grassed hill or incline between the express and the collector lanes on the right side of the highway.

[52] Mr. Senkaya testified that as the Corazza vehicle moved into the right line in front of him, the driver appeared to lose control.

[53] Mr. Senkaya testified that the entire period of his observation was very brief that it all happened "pffft, pffft" and then it was over, with the entire distance he observed the Corazza vehicle approximately 700 meters.

[54] Mr. Senkaya estimated that when the accident occurred the traffic was moving easily with the other cars moving at approximately 110 to 115 KPH while the Corazza vehicle was travelling faster than the others, at a speed of 120 to 125 KPH when it spun out of control.

[55] Mr. Senkaya testified that he was the first person to arrive at the scene.

[56] He testified that he and the driver, Mr. Corazza, attempted without success to open the driver-side door and spoke briefly.

[57] Mr. Senkaya testified that Mr. Corazzo kept repeating:

Where is she? Where is she?

[58] Mr. Senkaya testified that he then moved to the front of the car and saw a young lady lying beside the car, face down, bleeding from the left ear.

[59] Mr. Senkaya further testified that he concluded when he saw the body of the young lade beside the car, that she was dead, and he then turned to Mr. Corazza and stated:

You see what you have done?

[60] Mr. Senkaya testified that as a result of his comment to Mr. Corazza, Mr. Corazza began to cry.

[61] Under cross-examination, Mr. Senkaya stated that he made this statement because he presumed or concluded that it was the manner of Mr. Corazza' s driving that caused the car to spin out and crash in front of him.

[62] In explaining his answer, Mr. Senkaya testified that it was the speed of the car, roughly 120 to 125 KPH and after about ten seconds the sudden changing of one lane some distance in front of his truck that caused the car to spin out and crash.

Constable Peter Shouldice - Collision Reconstruction

[63] The sixth Crown witness was Constable Peter Shouldice of the Ontario Provincial Police. Constable Shouldice prepared a Collision Reconstruction Report, and that report was filed as Exhibit 3 in this proceeding on consent. For the purposes of this preliminary inquiry, the defence took no issue Constable Shouldice's competency to give expert opinion evidence in the area of accident reconstruction.

[64] On page 24 of his Report, Exhibit 3, Constable Shouldice, under the title, CONCLUSIONS, states:

On Monday August 16th at approximately 6:57 pm Eric Corazza was operating a black 2002 Pontiac Sunfire motor vehicle southbound on Highway 427 in the City of Toronto. Eric Corazza was accompanied by Allison Stachyra who occupied the front passenger seat.

South of Bloor Street, the 2002 Pontiac Sunfire entered into yaw and began to rotate in a clockwise fashion. The vehicle was travelling at approximately 125 km/h which is 25 km/h over the posted 100 km/h speed limit. Once a vehicle enters into yaw the driver has lost control of the vehicle.

The 2002 Pontiac Sunfire left the roadway and rolled down the grass embankment separating the express lanes from the transfer lanes. The vehicle came to a rest upright in the southbound Highway 427 transfer lanes.

As the 2002 Pontiac Sunfire rolled Allison Stachyra was ejected from the vehicle and died as a result of the collision. The cause of death was blunt force cranio cerebral trauma. Allison Stachyra was not wearing her seatbelt.

Eric Corazza was wearing his seatbelt and was not injured in the collision.

The primary causes of the fatal collision were the manner in which the 2002 Pontiac Sunfire was operated and the failure of the front passenger to use the seatbelt provided.

The Possibility The Steering Wheel Was Grabbed By The Passenger

[65] Starting at page 45 of the transcript of Constable Shouldice's testimony on 7 November 2012, defence counsel cross-examined regarding the car's trajectory, which he described in his report as "yaw". He was asked what the term describes or means and the possible explanations of how it can be created. At page 46 of the transcript, Constable Shouldice explained that "yaw" is a circumstance in which the driver loses control of the car, in which the driver's tools – the steering wheel, the throttle and the brake no longer control the car.

[66] Constable Shouldice was asked in cross-examination regarding the possibility that the passenger, Ms. Stachyra, had grabbed the steering wheel at the time the car swerved radically to the right, thus causing Mr. Corazzo to lose control of the car, resulted in the "Yaw" and thereby caused the car to crash.

[67] Constable Shouldice testified under cross-examination that, indeed, a sudden grabbing of the steering wheel could cause the car to go into "yaw" and could explain the crash.

[68] Constable Shouldice testified that a sudden 180 degree turn of the steering well of the car would cause the car to enter the "yaw" where the car was moving at a sufficient speed.

[69] He further testified that a less obvious and more subtle steering wheel "correction" by a driver, resulting from the beginning of a slide due to passing over gravel or other circumstances, could also produce a situation where the car would enter the "yaw".

[70] Constable Shouldice further testified that a driver may attempt to correct for other circumstances, such as the passenger tugging on the steering wheel.

[71] Constable Shouldice testified that on the night of the accident he was told by other officers at the scene that they were aware of the possibility that the steering wheel of the car had been grabbed by the passenger, the deceased Ms. Stachyra, causing it to turn to the right.

[72] Constable Shouldice further testified that he investigated the possibility that this had happened and that the driver, Mr. Corazza, had tried to correct for this by pulling the steering wheel back into its normal position.

[73] Constable Shouldice testified that he pursued this possible cause of the accident by walking the highway further north of the start of the tire skid marks, to see if there were other "back and forth" tire skid markings on the road, before the car entered into the out-of-control skid or "yaw" which he diagramed in his report.

[74] Constable Shouldice testified that he could find no tire-skid-mark-evidence on the highway that would support the steering-wheel-grabbing or back-and-forth struggle for the steering wheel hypothesis.

[75] Constable Shouldice also testified that, in his opinion, another indication of a struggle for the steering wheel would be an indication of the brakes being slammed on by the driver.

[76] Constable Shouldice testified that, in his opinion, it is normal for a driver to attempt to "slam on the brakes" when they sense they are losing control of the steering wheel.

[77] Constable Shouldice also testified that he found no physical evidence on the roadway of braking prior to the car entering into "yaw".

The Significance of The Crash Data Retrieval System Data As To Time of Braking

[78] Constable Shouldice was also cross-examined by defence counsel with respect to the Crash Data Retrieval Report System recordings (Appendix "5", pages 3, 4 & 5 of the Appendix also numbered as pages 81, 82 & 83 of the consecutive numbered pages of the entire report) which defence counsel suggested seemed to indicate that indeed the brakes were applied by the driver at an early stage of the accident, in response to the grabbing of the steering wheel by the passenger.

[79] Constable Shouldice would not budge from his interpretation of this data as not supporting the hypothesis of early braking before the car entered into "yaw".

[80] Constable Shouldice testified that although this recorded data confirmed the deployment of the air bags due to a rapid deceleration and that this rapid deceleration was an integral part of the crash, he did not consider that it was due to the application of the brakes by the driver.

[81] Defence counsel also made inquiries regarding the inferences that might be drawn from the entry in Appendix "5" page 5 of 7 (page 83 of 93 of the full Report) of the figure entitled "Maximum SDM Recorded Velocity Change (MPH) of -16.56).

[82] Defence counsel asked if that entry was "miles per hour per second" and the witness stated that it was not, stating:

No, it is miles per hour, distance in time.

[83] At the request of defence counsel, the witness undertook to review specifically the "Recorded Velocity Change (MPH) figure of -16.56" and his answer that it indicated simply "miles per hour" and inform the accused through the Crown Attorney's Office if he wished to revise his answer prior to trial.

[84] In summation on the question of the cause of the accident due to passenger interference, at 136 and 137 of the transcript of the proceedings on 7 November 2012, Constable responded to further cross-examination as follows:

Q. I understand that even on the date that you were there, you received information and investigated the possibility that the passenger pulled right on the steering wheel, you explained that you investigated that, did you consider any other possible causes for this car to have crashed the way it did?

A. Yeah, we would look at the evidence, look at what is before us, look for maybe damage from another vehicle. We would try and eliminate as much as we could to determine what happened, yes.

Q. Did you discover any other possible causes?

A. No.

Q. So, the suggestion to you that this…it is suggested to you hypothetically that this vehicle (sic) was caused by passenger tugging right on the steering wheel; you would accept that as being consistent with the evidence that you came up with?

A. Yes.

Q. And you haven't come up with another explanation for the accident having been caused?

A. Well, it would be the steering input, and I couldn't say it was the passenger or the driver.

Q. It could be either, passenger, driver?

A. There is no evidence that I could come up with that give us the answer.

Q. Other than either the passenger or the driver turning the steering wheel abruptly to the right, is there any other possible explanation that makes sense to you?

A. Not in this case, no.

2: Submissions of the Parties

[85] In her submissions to the court, Crown counsel Mackett did not seek a committal on the first count, criminal negligence causing death, and sought only a committal on the second count of dangerous driving causing death.

[86] Crown counsel submitted that the Crown evidence, if accepted by the trier of fact, was sufficient to result in a conviction.

[87] Counsel for the accused, Mr. Landesman submitted in his concluding remarks that there was not sufficient evidence to commit his client on the remaining count before the court.

[88] Defence counsel submitted, inter alia, that there was no evidence before the court that his client's manner of driving, even if it were found to be in a manner dangerous to the public, at some stage, caused the death of his passenger Allison Stachyra, the deceased, because of intervening factors, such as her not wearing her seat belt, and the reasonable hypothesis that she tugged on the steering wheel, thereby causing the driver to lose control of the vehicle.

[89] As I stated above, I have concluded that the defence argument must fail, and therefore I must commit Mr. Corazza to stand trial on the single count of dangerous driving causing death.

[90] I have reached this conclusion because of the limited jurisdiction I have, at this stage of the proceeding, to weigh the evidence.

3: The Legal Framework

The Test for Committal

[91] The test to be applied at this stage is that set down by Justice Roland Ritchie of the Supreme Court of Canada in USA v. Sheppard, [1977] 2 S.C.R. 1067 where he states:

I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[92] In R. v. Coke, [1996] O.J. No. 808, Justice Casey Hill dismissed an accused application to quash his committal for trial on a charge of first degree murder, where the original information only alleged second degree murder, and the evidence disclosed a lethal shot at close range, evidence of animus between the alleged shooter and the deceased, and luring of the deceased to an ambush. Justice Hill reviewed the role of the preliminary inquiry judge in ruling on committal, starting at paragraph 8:

The Analytical Framework

8 The assigned function of a Part XVIII justice is to determine whether there is sufficient evidence of the essential and constituent elements of the offence charged or other offence in respect of the same transaction to justify committal to trial. The sufficiency determination requires the provincial court to decide whether the record reveals evidence upon which a trier-of-fact, properly instructed and acting reasonably, could convict. This is undoubtedly a minimalist threshold informed by the restrictive purpose of the inquiry.

9 Judicial consideration of the committal authority reflects some consensus as to the existence of a subset of interpretive guidelines governing the exercise of the authority including the following:

(1) Credibility assessment and related factors affecting weight are not to be resolved short of trial. In effect, the court considers the prosecution case in its best light could the evidence if believed provide proof of the essential elements.

(2) Any reasonable interpretation or permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution. Some evidence, if only at the level of a scintilla of evidence, must however exist respecting the constituent elements.

(3) The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing there from without regard to the context of the totality of the evidence.

10 Not infrequently, it is submitted by an applicant seeking to quash a committal order that other explanations or inferences, inconsistent with guilt, but equally consistent with innocence, can be rallied to counter the theory submitted by the Crown. This approach risks usurpation of the jury function. Such submissions are, at times, divorced from the context of the whole of the evidentiary record. The extent of weighing evidence for the justice is directed to the presence of any evidence not the reconciliation of contradictions or competing inferences.

11 It is not a legitimate exercise of judicial discretion for a preliminary inquiry justice to ignore the incriminatory probative value of an item or chain of related items of evidence simply because an equally permissible inference accords with an innocent interpretation. Certainly, where the evidence in question is equivocal, in the sense of ambiguous and uncertain and conjectural in nature, the probative force is of such diminished significance as to be valueless.

[93] However, where there are competing reasonable inferences that arise out of the evidence, a preliminary inquiry judge is not to weigh them, but instead, is to accept the inference that favours the Crown. This is because the resolution with respect to competing inferences is to be left to the trier of fact. If a preliminary inquiry justice does not consider the competing inferences in a manner that gives the maximum reasonable benefit to the Crown, the case law characterizes this as the justice exceeding his or her jurisdiction. (R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74, at paragraphs 18 & 25, R. v. Charemski, [1998] S.C.J. No. 23 at paragraph 4, R. v. Magno, [2006] O.J. No. 2590 (C.A.) at paragraph 15, leave refused, [2006] S.C.C.A. 407, R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52 at paragraph 21, 30-32, R. v. Adam, 2012 ONCA 582, [2012] O.J. No. 4165 at paragraph 4 (C.A.)).

The Elements of the Offence of Dangerous Driving Causing Death

Section 249 of the Criminal Code provides:

249. (1) Everyone commits an offence who operates

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

Dangerous operation causing death

(3) Everyone who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

[94] In R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26 (S.C.C.), Justice Thomas Cromwell summarised the elements of the offence, at paragraph 28 of his judgment for the court:

28 In Beatty, the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles. In brief, the Court decided as follows. The actus reus of the offence 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 to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). 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, the lack of care must be serious enough to merit punishment (para. 48).

[95] In R. v. Beatty, the accused's truck had suddenly crossed the solid centre line into the path of an oncoming motor vehicle, killing all three occupants. Witnesses had observed the accused's vehicle being driven in a proper manner prior to the accident, and testified that the accident happened instantaneously. There was no evidence of speeding or vehicle failure, and intoxicants were not a factor. After the accident, the accused stated that he was not sure what happened but that he must have fallen asleep and collided with the other vehicle. The trial judge acquitted the accused on all three counts. The trial judge found that the test in R. v. Hundal required more than a few seconds of lapsed attention to establish objectively dangerous driving. She noted that, in the absence of something more, the accused's few seconds of negligent driving was insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver.

4: Application To the Facts

[96] In my view, the two issues, squarely put, are whether the Crown has placed before this court sufficient evidence that, if accepted by the trier of fact, would permit a reasonable jury, properly instructed to conclude that:

(1) Mr. Corazza's driving was a marked departure from the standard of care of a reasonably prudent driver; and

(2) This driving caused Allison Stachyra's death.

[97] The testimony of the civilian witnesses Christine De Bruin, Keith De Bruin and Hakan Senkaya, in my view, describe a manner of driving that would permit a trier of fact to conclude that Mr. Corazza, for a considerable period of time that day, was driving in a manner that was a marked departure from that of a reasonably prudent driver, and therefore dangerous.

[98] Constable Peter Shouldice's observations at the scene of the accident as recounted in his testimony before this court, and as found in his Collision Reconstruction Report, Exhibit 3, if accepted by a trier of fact at trial would provide a basis for the finding that Mr. Corazza's driving, coupled with the fact that Ms. Stachyra was not wearing her seatbelt, caused her death.

[99] In my view, it would be open for the jury to conclude that without Mr. Corazza's manner of driving, the car crash and death of the Ms. Stachyra would not have happened.

[100] On the basis of that evidence, and the limited scrutiny that is permitted by me, as the preliminary inquiry justice, at this stage of the proceeding, I find that the Crown has met its burden.

5: Order

[101] I therefore order Mr. Corazza to stand trial on Count 2.

Released: 31 July 2013

Signed: "Justice Paul H. Reinhardt"