Court File and Parties

Ontario Court of Justice

Date: December 13, 2013

Court File No.: Central East 12-1137

Between:

Her Majesty the Queen

— and —

Shaun Gallagher

Before: Justice C.M. Harpur

Heard on: January 23, 2013 and October 4, 2013

Reasons for Judgment released on: December 13, 2013

Counsel:

• Mary Anne Alexander, counsel for the Crown
• Richard R. Darrah, counsel for the defendant Shaun Gallagher

Judgment

Harpur J.:

Introduction

[1] Mr. Gallagher is charged with operating his motor vehicle in a dangerous manner on February 12, 2012, contrary to s. 249 C.C. At his trial on October 4, 2013, Ms. Alexander for the Crown called the two O.P.P. officers who occupied a marked O.P.P. van as they trailed Mr. Gallagher's motor vehicle southbound on Highway 400 in the evening in question. Mr. Darrah called the evidence of Mr. Gallagher in defence. For the reasons which follow, I have found Mr. Gallagher guilty.

The Crown's Evidence

[2] P.C. David Lalonde was the van driver and P.C. Samuel Kewaquado was in the van's passenger seat. P.C. Lalonde testified that, over some fifteen kilometres and eight minutes of travel southbound on a heavily-travelled Highway 400, he made several observations of Mr. Gallagher's driving. P.C. Lalonde said he activated the SUV's radar and that Mr. Gallagher's average speed over this distance was approximately 120 km/hr but that he exceeded that, reaching 140 km/hr on at least one occasion while passing other vehicles to the right. P.C. Lalonde said that while Mr. Gallagher travelled in the outermost lane of the highway (lane one), he pulled up to and tailgated cars in front of him several times, braking as he did so, in an apparent effort to induce them to pull to the middle lane (lane two) and allow him to pass. P.C. Lalonde said that Mr. Gallagher's tailgating brought him within one to two car lengths of the car in lane one preceding him.

[3] P.C. Lalonde described the tailgating/braking manoeuvres as "consistent" and occurring "constantly" during the period of observation. He said most of the several drivers preceding Mr. Gallagher's car in lane one whom he came upon did move over but some did not. He said that, with those who did not, Mr. Gallagher would move into lane two, pass them and return to lane one. He said he saw several instances of Mr. Gallagher moving unsafely (in the sense of having inadequate space to do so) from lane one to lane two, and of Mr. Gallagher moving unsafely, in the same sense, back into lane one. He said drivers in both lanes one and two were compelled to apply their brakes when Mr. Gallagher made these unsafe lane changes.

[4] In cross-examination, P.C. Lalonde acknowledged being uncertain of either the precise number of instances of tailgating or of unsafe passings-in-lane-two executed by Mr. Gallagher. He said the former manoeuvre was probably, but not certainly, carried out more than two times.

[5] He said the roads were wet throughout the fifteen kilometres, that his wipers were on high, that it was dark and that visibility was only fair.

[6] P.C. Kewaquado said that, many times in the approximate 15 kilometre route of observation, he observed Mr. Gallagher tailgate and then pass cars in lane one by using lane two. He put the number of lane changes to pass drivers in lane one at approximately ten. His description was "many passes in tight quarters". He estimated that Mr. Gallagher had come within one-half car length of cars in front of him when tailgating. P.C. Kewaquado said he could not testify to Mr. Gallagher's speed.

[7] P.C. Kewaquado described the highway as damp to the point where the traffic raised a spray.

[8] The officers gave contradictory evidence as to who approached Mr. Gallagher's car once the roadside stop had been carried out. P.C. Lalonde said he attended at the passenger door of Mr. Gallagher's car. P.C. Kewaquado said he went to the passenger door and P.C. Lalonde to the driver's door.

The Defence Evidence

[9] The sole defence witness was Mr. Gallagher. He admitted exceeding the 100 km/hr speed limit and that he drove primarily in lane one but said he was only keeping pace with the flow of traffic. Mr. Gallagher denied driving aggressively in general or tailgating drivers ahead of him in lane one or changing lanes unsafely. He said – and P.C. Lalonde had agreed – that he signalled his lane changes. He said he did pass lane one drivers in lane two, but only if they were advancing at less than his and the traffic's speed of 110 to 120 km/hr. Mr. Gallagher said that, although not having made any note of the incident at the time or subsequently, he passed two cars between Highway 89 and Canal Road – the area in which he was observed by the police - by moving from lane one to lane two and then back to lane one. He said he did apply his brakes repeatedly. He said this is customary in heavy traffic.

[10] Mr. Gallagher acknowledged having had two mixed alcohol drinks between 2:30 and 4:00 p.m. on February 12, 2012, but said they did not affect him. He said he was en route to his girlfriend's residence at Highway 427 and Renforth Drive in Toronto and planned to be there at 7:00 p.m., although he had not committed to arriving then.

[11] Mr. Gallagher said he did not regard the conditions on February 12, 2012 as calling for a speed less than the traffic's 110 to 120 km/hr.

The Submissions and Analysis

[12] Counsel agree that the apt law is set out in R. v. Beatty, 2008 SCC 5: the Crown must prove, as actus reus, a marked departure from the standard of motor vehicle operation expected of a reasonably prudent person and, as mens rea, that a person in the position of Mr. Gallagher would have been aware of the risk created by his conduct. In attempting to prove the latter, the Crown may rely on the "common sense inference", that is, absent an explanation to the contrary, a person may be taken to have intended to engage in the conduct impugned.

[13] Mr. Darrah for Mr. Gallagher submits that (a) applying R. v. W.D., I should accept Mr. Gallagher's evidence of the manner of his driving or, even if not accepting it, be left in reasonable doubt on the issue; and (b) I should acquit since Mr. Gallagher's description is not a marked departure from the motor vehicle operation of a reasonably prudent person.

[14] I find that the reliable version of Mr. Gallagher's driving is that related by the police officers. P.C. Lalonde, as driver of the police van and controller of the police radar, was the officer particularly attuned to, and in a position to observe and note, matters such as Mr. Gallagher's speed and the prevailing driving conditions. Both officers made notes at the time of the occurrence and refreshed their memories from them. Apart from the matter of which of them attended at the driver's door – which I did not regard as material – they corroborated each other in almost all respects with regard to Mr. Gallagher's driving. P.C. Kewaquado put at approximately ten the number of instances of Mr. Gallagher's lane changes where P.C. Lalonde was uncertain of the number. P.C. Kewaquado had Mr. Gallagher somewhat tighter to the car ahead in his tailgating than did P.C. Lalonde. However, these are the sort of minor differences one would expect from independent witnesses.

[15] I have applied the reasoning in R. v. W.D. In those several instances where the officers' evidence conflicted with Mr. Gallagher's, I accept that of the officers and reject that of Mr. Gallagher. I do so on the basis of (i) the straightforward, detailed manner in which P.C. Lalonde gave his evidence, including readily conceding such factors as Mr. Gallagher's eventual competent stop at the roadside and his cooperativeness following the stop; (ii) the corroboration, with the one noted exception, of his evidence by P.C. Kewaquado, who seemed to me to testify in an equally sincere and careful fashion, not speculating in areas of uncertainty such as road condition, which might have been prejudicial to Mr. Gallagher; and (iii) what I regarded as weaknesses in Mr. Gallagher's testimony.

[16] The chief flaw in Mr. Gallagher's evidence was his insistence that he passed exactly two cars travelling in lane one by moving to lane two in the fifteen kilometres/ eight minutes approximately from Highway 89 to Canal Road. Mr. Darrah submits that this seemingly prodigious feat of memory, more than fourteen months subsequent to the event and unaided by note, can be explained by the dramatic effect a first-time criminal arrest would have for Mr. Gallagher. I am not persuaded that this is so. The arrest might inscribe itself in memory but momentous events do not, in my experience, preserve in any abnormal detail the routine which has preceded them. The passing of cars by Mr. Gallagher in the eight minutes prior to his stop was unexceptional according to his evidence. He was unaware of being followed by the O.P.P. van until the stop. I regarded his adamance about passing two cars in this interval as implausible and unhelpful to the cause of his reliability generally.

[17] Parenthetically, I have given no weight to Mr. Gallagher's admission in cross-examination to a large number of speeding and other Highway Traffic Act infractions on his driving record. In my view, the matter of his driving record cannot be seen as relating to his credibility and is not admissible pursuant to s. 12 of the Canada Evidence Act or otherwise.

[18] I did take into account the fact that Mr. Gallagher was not prepared to concede in cross-examination Ms. Alexander's self-evident proposition that there was cause for him and the traffic generally to reduce its speed from what might be observed in normal driving conditions by reason of the heavy traffic, the darkness and the road spray which were present on the night of his arrest. This inflexibility suggested a lack of objectivity in Mr. Gallagher's testimony.

[19] Does Mr. Gallagher's driving as described by P.C. Lalonde and P.C. Kewaquado constitute the actus reus described in s. 249 C.C.? I accept Ms. Alexander's submission that it is the totality of the aspects of the driving observed by the officers which is to be considered, not its individual components discretely. That totality persuades me beyond reasonable doubt that this is not a mere departure from the conduct of a reasonably prudent person in Mr. Gallagher's circumstances which should attract legal liability only in negligence or under the Highway Traffic Act. If this were one or two instances of following too closely or of speeding or of an unsafe lane change, the facts might well be seen as falling short of a criminal standard. However, the description of driving which I accept involves a combination of (i) speeding repeatedly over some 15 kilometres up to 140 kilometres per hour; (ii) repeated over-close approaches to the rear ends of preceding cars in lane one, whether within a half car length or one to two car-lengths, at speeds averaging 120 km/hr; and (iii) repeated unsafe lane changes both out of and back into lane one causing other drivers to take evasive action. All of these steps were taken at night time on a road surface wet enough to require the use of windshield wipers and on a roadway full of cars. Together these features constitute dangerous conduct markedly distinct from the norm.

[20] As to Mr. Gallagher's state of mind, a reasonable person would appreciate that, in these circumstances, a substantial risk to the public existed, whether in the form of traffic suddenly coming to a stop, another driver failing to accommodate Mr. Gallagher's extremely aggressive moves or some other unexpected event for which Mr. Gallagher had reduced to negligible the margin for error. There is nothing in the record to suggest that the common sense inference ought not to be drawn that Mr. Gallagher could and did appreciate the level of risk created by his driving. Accordingly, there will be a finding of guilt.

Released: December 13, 2013

Signed: "Justice C.M. Harpur"

Justice C.M. Harpur, O.C.J.