Court File and Parties

Court File No.: Newmarket 13-00657

Date: September 25, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Hadi Kamali

Reasons for Judgment

Heard: July 11, September 24, 2013

Judgment: September 25, 2013

Counsel:

Ms. Jina Lee for the Crown

Mr. Babak Vakili for the accused

KENKEL J.:

Introduction

[1] Security officers at the MacKenzie Health hospital found Mr. Kamali's taxi parked in the fire zone at the front entrance. Mr. Kamali had been ticketed for parking in that zone a number of times and had been served with a trespass notice barring him from attending on hospital property.

[2] The two security guards approached Mr. Kamali and asked him to move his van from the fire zone and leave the property. He refused and argued with the officers. One of the security guards switched on the video recorder in his cellphone. During the 2 minutes and 30 seconds that was captured on video Mr. Kamali was repeatedly asked to leave the property. He argued telling the security officers seven times that, "you can't do nothing to me". He also dared them to call the police twelve times.

[3] Eventually Mr. Kamali was arrested for trespassing. It's alleged that Mr. Kamali then drove into a security guard striking him three times before backing up and fleeing at high speed through a crosswalk narrowly missing a pedestrian. Mr. Kamali is charged with Dangerous Driving contrary to s. 249(2) of the Criminal Code.

[4] The central issues at trial are the credibility of the witnesses and whether the Crown has proved that the driving was dangerous within the meaning of s. 249. These reasons also consider the impact of body-worn video evidence in this case.

Submissions of Counsel

[5] The Crown submits that the evidence of the Crown witnesses was credible and was consistent with the video record. The Crown submits the following circumstances show driving that was objectively dangerous and a marked departure from a reasonable standard of care:

• Deliberately driving into the security guard striking him with the vehicle three times.
• Failure to stop after hitting the security officer and flight in reverse at high speed in a hospital entrance zone.
• Driving through a crosswalk while a pedestrian was crossing, at high speed, narrowly missing the pedestrian.

[6] The defence submits that:

• Mr. Kamali calmly reversed his vehicle away at 10km/hour and did not strike or come close to any other person. The driving he described does not pose any danger to the public.
• The bystander who witnessed the incident is not independent as he does contract outdoor landscape work at the hospital.
• The security officer who testified is not credible as has a personal bias against Mr. Kamali and has been found to have fabricated evidence against him in another judicial proceeding.
• The testimony of the security officer and the civilian witness is not credible as it is internally contradictory.
• The testimony of the security officer and bystander is not credible as it shows similarities and is therefore the product of collusion.
• The video evidence shows that Mr. Kamali shows that the vehicle engine did not "rev" as described by both Crown witnesses.
• Even if the Crown's evidence is accepted, the driving described is not dangerous and does not markedly depart from the standard of care expected of a reasonable driver.

Dangerous Driving

[7] To obtain a conviction on the charge alleged the Crown must prove beyond a reasonable doubt that viewed objectively, the accused was driving in a manner dangerous to the public having regard to the circumstances of the driving and the context in which the driving occurred. R. v. Beatty 2008 SCC 5 at para. 43.

[8] If the Crown proves objectively dangerous conduct, the Crown must also prove to the same standard that the driving amounted to a marked departure from the standard of care that a reasonable person would observe in those circumstances. The court must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and danger inherent in the manner of driving. Beatty at para. 43. The Crown must show a marked departure from the standard of care beyond mere carelessness. R. v. Reynolds 2013 ONCA 433 at para. 19

Video Record

[9] Both parties agree that the video is of good quality and provides a reliable record for the portion of the incident that it captures. Both parties have relied on that record in their submissions as an accurate and objective account in a case where witness credibility is in dispute. Unfortunately, the crucial final minutes of the incident are not recorded. At the moment the security officer says he was first hit by the accused's van there is a noise and the view of the camera is abruptly shifted away from the van. The camera lens is then covered by what we learned at trial was Mr. Di Nicola's badge flopping over the phone in his pocket. The video ends shortly afterward as we see Mr. Di Nicola's hand taking the phone to call police.

[10] While this video record does not capture the entire incident, it's worth noting how easy it was for this security officer to make such a reliable record simply by using a phone in his shirt pocket. If a security officer or police officer were to be issued a purpose built camera like the inexpensive helmet cameras or micro video cameras now used in sports and other applications, a record of an entire investigation could be created.

[11] In the United Kingdom police officers have been using what the Home Office calls "body-worn video" or the press calls "bobby cams" since 2006. Police note-taking and paperwork has been significantly reduced and evidentiary issues in criminal trials narrowed or eliminated. The original pilot was rapidly expanded. See: Guidance for the Police Use of Body-Worn Video Devices July 2007 UK Home Office Police and Crime Standards Directorate (available on the internet).

[12] Considering the typical accuracy and objectivity of a video record, the assistance such a record can provide to both parties and to the trier of fact, and the potential savings to the police and the administration of justice, police forces in this province may wish to consider testing body-worn video in their work.

Analysis

[13] I've first considered the evidence at trial as a whole and make the following findings in that context.

[14] The defence submits that the security officer Mr. Di Nicola is not a credible witness as he has a personal dislike for Mr. Kamali. As the video shows Mr. Kamali was argumentative with the security officers, disregarded their instructions and challenged their authority. Both security officers responded in a polite manner throughout. There's no evidence of personal contact between Mr. Kamali and Mr. Di Nicola other than in that hospital context. I accept Mr. Di Nicola's evidence that Mr. Kamali has behaved in a similar manner on prior occasions as credible and consistent with Mr. Kamali's actions and statements on the day in question. I also accept Mr. Di Nicola's evidence that he does not know Mr. Kamali personally and has no reason to dislike him as a person.

[15] I'm mindful though that Mr. Kamali's behaviour in yelling and arguing with Mr. Di Nicola and his partner was deliberately provocative so in reviewing Mr. Di Nicola's evidence I've been cautious to look for signs of embellishment or bias but have found none. To the contrary, Mr. Di Nicola's account minimizes certain evidence to the benefit of the accused.

[16] In cross-examination and again in final argument the defence submitted that Mr. Di Nicola has been found to have deliberately falsified one of the speeding tickets given to Mr. Kamali in another proceeding. The transcript of that proceeding tendered by the defence shows that this submission is completely without foundation.

[17] The record of that proceeding marked as Exhibit #3 shows that in a provincial offence proceeding that post-dates this matter, a discrepancy was discussed involving the writing of the final digits of the accused's license plate on the ticket. The prosecutor did not provide an explanation and ultimately invited the court to quash the ticket. In that busy court there was no hearing as to the cause for the discrepancy nor was there any finding of misconduct on the part of Mr. Di Nicola as submitted by the defence. As we heard in this trial, Mr. Di Nicola was present in the provincial offences court that day and if anyone had asked him he would have told the court about his pen running out of ink and having to press harder with respect to the final digits in that section causing the apparent discrepancy.

[18] Given that a very serious accusation was so recklessly made in cross and then repeated in final submissions, it's important to note that there is no evidence of any misconduct on the part of Mr. Di Nicola in relation to the provincial offence proceeding referred to in Exhibit 3 or in the matter before this court.

[19] Mr. Kamali admitted in his evidence that whenever he drops a fare off at the hospital he likes to wait in the fire lane at the front entrance for potential passengers leaving the hospital. I disagree with the defence that the enforcement of the bylaw in relation to Mr. Kamali is "bias" or the fact that they came to his taxi first when others were waiting further ahead is evidence of selective enforcement.

[20] Mr. Di Nicola's testimony that they've asked taxi drivers generally not to wait in the fire zone but that Mr. Kamali has been particularly un-co-operative is consistent with Mr. Kamali's evidence as to his usual practice and consistent with his statements that day that he doesn't care about the bylaw and takes the view that the security officers can do nothing to enforce it.

[21] The defence submitted that the testimony of the two Crown witnesses is internally contradictory on important points including the description of the reaction of the woman in the crosswalk. The bystander Mr. De Jong said that Mr. Kamali just missed hitting a woman as he drove through a crosswalk immediately after reversing at high speed away from the security officers. He said Mr. Kamali went "racing" out of the hospital area. The lady was upset and Mr. De Jong testified that she screamed that the driver, "almost hit her and almost knocked her down and he shouldn't have a license".

[22] This portion of the evidence referred to by the defence occurred when Mr. De Jong was in close proximity to the woman in question speaking directly with her. While the truth of her statement is not relevant, her apparent reaction is a circumstance which is consistent with Mr. De Jong's evidence and inconsistent with the testimony of the accused. It's true that Mr. Di Nicola didn't hear her reaction as he was still by the front entrance and was on the phone with 911 at the time. If that amounts to a discrepancy in their evidence I find it's reasonably explained by the position of each witness and their activities at the time.

[23] A more important internal discrepancy involves the force at which Mr. Kamali's taxi hit Mr. Di Nicola. The defence is correct that from a distance Mr. De Jong apprehended more forceful contact than Mr. Di Nicola described. I accept Mr. Di Nicola's evidence that the second and third strikes were pushes rather than strikes and that none were forceful enough to cause injury. Again I find the difference in their evidence is reasonably explained by their relative positions and Mr. Di Nicola's ability to actually feel the force of the contacts. I do not find that the different perceptions in that context could reasonably detract from the credibility of either witness.

[24] Mr. Di Nicola's testimony on this central point regarding the limited force of all three vehicle contacts certainly contradicts any notion of embellishment or exaggeration.

[25] Finally, the defence submits that the evidence of both Crown witnesses that the vehicle reversed at high speed and then drove away from the hospital at high speed such that there was noticeable engine noise or "revving" as described by Mr. Di Nicola or "heavy acceleration" as described by Mr. De Jong is contradicted by the video evidence. The defence is correct that the driving and engine noises are not captured on the video but that's of no significance as the video plainly ends moments after Mr. Di Nicola was struck, prior to the departure of Mr. Kamali's taxi van.

[26] I find Mr. Di Nicola was a credible witness. His testimony was consistent with the video record. He did not exaggerate the degree of force involved in the contact with the vehicle. His testimony that he was hit by the van and knocked forward onto the hood after placing Mr. Kamali under arrest is consistent with the video record as to his position, the apparent movement of the van, the sound of a bump-like noise and the abrupt skewing of the video angle at that same moment.

[27] Mr. Di Nicola exercised patience throughout, asking Mr. Kamali to leave even though he'd previously been served with a trespass notice for prior violations. He ignored repeated challenges to his authority and repeated dares to call the police. It's plain by his words and actions that he did not want the matter to escalate and wasn't interested in issuing another ticket. He simply wanted Mr. Kamali to leave the fire zone. It was Mr. Kamali who refused to move and eventually compelled the security officer to proceed to arrest him for trespass.

[28] Mr. Di Nicola's demeanor was calm and professional throughout although it's fair to observe that he'd had enough by the time he decided to make the trespass arrest. I find his evidence is reliable, internally consistent and consistent with the video record and the evidence of Mr. De Jong and I accept it.

[29] The fact that Mr. De Jong identified himself to the security guards as having witnessed the incident is not evidence of an opportunity for collusion as suggested given the credible evidence of both witnesses that they did not discuss the matter. Further, the differences in their accounts referred to by the defence in another submission shows that there was fabrication or collusion in this case as submitted.

[30] I disagree that Mr. De Jong is not an independent witness merely because he does outside contract work at that hospital as a landscaper. He does not work for the hospital and does not know either party on a personal basis. The fact that the hospital is an important client to Mr. De Jong's business does not reasonably lead to an inference that he has a motive to collude with hospital security to fabricate or embellish evidence in this matter and there's no evidence of collusion in his testimony.

[31] I find Mr. De Jong is a neutral and credible witness. His description of the argument in the fire lane between the security guards and Mr. Kamali is consistent with the video record. His testimony that the driver told the security guards "You can do nothing" is supported by the video. His evidence that Mr. Kamali drove into the security guard while that person was in front of Kamali's vehicle taking his license plate number is consistent with the credible evidence of Mr. Di Nicola and consistent with the video record which shows an abrupt skewing of the video accompanied by a noticeable bump-like noise at that moment.

[32] Mr. De Jong was in a good position to see what happened when Mr. Kamali accelerated away from the security guards and then drove through the hospital cross-walk. He was an observer not occupied at that moment with any other duty who had a direct view of the observations he described. His testimony that the reversal away was done at high speed is logical given that Mr. Kamali was fleeing arrest and consistent with Mr. Kamali's overall behaviour to that point. I find Mr. De Jong's evidence is credible and reliable and I accept it.

[33] Having reviewed all of the evidence I find that Mr. Kamali's evidence on the central points was neither credible nor reliable. His demeanor during the incident as shown in the video was argumentative and defiant. He did not remember being placed under arrest although those important words were loudly said directly to him as shown in the video. I find Mr. Kamali's agitated demeanor at the time detracts from the reliability of his present recollection.

[34] When advised he was under arrest, Mr. Kamali drove forward into Mr. Di Nicola causing him to pitch forward placing his hand onto the van to avoid falling. Mr. Kamali was directly told by Mr. Mann that he struck Mr. Di Nicola. I do not find it credible that Mr. Kamali would be unaware that he struck the security officer, that such action was accidental when it was repeated twice more, nor in the context of the flight from arrest and failure to stop after contact do I find it credible that Mr. Kamali backed away at 10km/hour and slowly left the hospital as he describes. Mr. Kamali's evidence as to his driving is contradicted by the video evidence consistent with Mr. Di Nicola being struck, the circumstances of the incident and the credible testimony of the Crown witnesses.

[35] Considering all of the evidence as a whole I find I must reject the evidence of Mr. Kamali on the central points relating to his driving. I do not find that evidence leaves a reasonable doubt either alone or in combination with any other evidence. On all of the evidence I can find no reasonable doubt as to the circumstances of the incident and the manner of driving and I accept the evidence of the Crown witnesses in that regard.

[36] The defence submits that even on the Crown's evidence the conduct described is neither objectively dangerous nor a marked departure from a reasonable standard of care. I disagree.

[37] While it's true that there was no bodily harm caused by the contact with the vehicle and the level of force was at the low end of the scale, the contact with Mr. Di Nicola was deliberate and using a vehicle in that manner poses a safety risk. Bodily harm is not a necessary component of the offence alleged.

[38] The reversal at high speed and driving through a crosswalk at high speed narrowly missing a pedestrian both pose a risk of danger, particularly given the time of day and the fact that pedestrians would be and were coming and going from the hospital in that area.

[39] Considering the evidence as a whole I find that the Crown has proved beyond a reasonable doubt that the accused was driving in a manner that was dangerous having regard to the circumstances. That deliberate risk-taking in striking then pushing the security officer, then failing to stop and flight to avoid arrest I find constitutes a marked departure from the standard of care expected of a reasonable driver.

Conclusion

[40] I find that the Crown has proved the offence alleged beyond a reasonable doubt. There will be a finding of guilt.

September 25, 2013

Justice Joseph F. Kenkel