Court File and Parties

Ontario Court of Justice

Date: 2014-10-17

Court File No.: Halton 12-2817

Between:

Her Majesty the Queen

— and —

Michael-Richard McKay

Before: Justice L.M. Baldwin

Heard: May 30, 2014

Reasons for Judgment Released: October 17, 2014

Counsel:

• Mr. J. Coppolino, counsel for the Crown
• Mr. M. Rombis, counsel for the defendant Michael-Richard McKay

BALDWIN J.:

[1] Charge and Jurisdiction

[1] Mr. McKay is charged with dangerous driving on the QEW Highway in the City of Burlington on August 12, 2012, contrary to s. 249(1)(a) of the Criminal Code.

[2] The Crown proceeded summarily.

[3] Jurisdiction, date, and Mr. McKay's identity as the driver involved in an accident was admitted at the outset of trial.

[4] Issues at Trial

[4] The first issue at the end of trial involved a WD analysis to determine what the driving in question consisted of.

[5] The second issue was whether Mr. McKay's driving amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation as set out in the governing case law.

Elements of the Offence of Dangerous Driving

[6] Section 249(1)(a) of the Criminal Code reads as follows:

Every one commits an offence who operates 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.

[7] The case law has established that the mental element for the offence requires proof of an intention to operate the vehicle in a way which, objectively viewed, constitutes a departure from the standard of care expected of a prudent driver in the circumstances. The distinction between a mere departure and a marked departure is a question of degree.

[8] The appropriate mens rea for this offence is based on a modified objective test. The mens rea requires the trier of fact to be satisfied on the basis of all the evidence, including any evidence about the accused's actual state of mind, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Subjective mens rea is not necessary. The objective mens rea is based on the premise that a reasonable person in the accused's position would have been aware of the risks arising from the conduct. A reasonably held mistake of fact may provide a complete defence. Reference: R. v. Hundal, [1993] 1 S.C.R. 867, 79 C.C.C. (3d) 97; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, 228 C.C.C. (3d) 225; R. v. Roy, 2012 SCC 26, 281 C.C.C. (3d) 433.

Background

[9] Three witnesses testified in this case: Mr. Steven Gerend and Mr. Carlos Pestana for the Crown; Mr. Michael McKay on his own behalf.

Incident Details

[10] Time of Incident: 6:45 p.m. on Sunday, August 18, 2012.

[11] Location: QEW westbound from Guelph Line to the Brant Street 'S'-shaped off-ramp.

[12] Weather: Nice clear warm evening – no rain.

[13] Road Conditions: Fairly light/moderate traffic flow.

[14] Mr. McKay was driving a dark coloured RAV 4 Toyota (small SUV); Mr. Gerend was driving a grey coloured small 4-door BMW.

[15] Mr. McKay acknowledged at trial that he threw a plastic coffee cup at the BMW and gave the other driver, Mr. Gerend, the finger.

[16] Mr. McKay acknowledged that he cut in too close to the BMW during the course of his driving.

[17] The driving in question resulted in Mr. Gerend hitting the back of Mr. McKay's SUV on the Brant Street off-ramp when both vehicles were in the far right lane to exit onto Brant Street northbound.

[18] McKay says Gerend was "chasing" him down the ramp – he was not in the far left lane to go southbound on Brant (which is his way home) because he did not want Gerend to follow him home.

[19] This case involves alleged 'road rage'.

Summary of the Testimony of Steven Gerend

[20] Mr. Gerend was born August 19, 1952.

[21] On August 18, 2012, he and his wife Susan, together with their 11-year-old daughter Stephanie, had been at the GO station parking lot located off Guelph Line in Burlington. Mr. Gerend was driving a BMW 328 series, small 4-door vehicle which was light grey in colour.

[22] After dropping one of Stephanie's friends off at the GO station, Mr. Gerend and his family (wife in front seat, daughter in back seat) got back on the QEW going westbound off the Guelph Line entrance. They were headed to the Indigo book store which is located on Brant Street in Burlington. The Brant Street exit is the very next exit off the QEW from Guelph Line.

[23] As he was driving westbound in the right-hand lane of the QEW fairly close to the Brant Street exit, Mr. Gerend noticed a car behind him tailgating him. He believed the car was a dark coloured Toyota RAV 4 small SUV. It was so close that he could not see the RAV's bumper.

[24] Mr. Gerend testified that he had slowed his speed down to between 80 to 85 kilometres an hour at this point because he was going to exit the highway onto Brant Street.

[25] The QEW has 4 lanes of travel as the Brant Street exit is approached.

[26] Mr. Gerend testified that he thought it was "reckless" and "dangerous" for the RAV to be tailgating him, so he pulled over one lane to the left to get out of his way. He did not want to get hit by the RAV vehicle.

[27] The RAV vehicle passed Mr. Gerend's vehicle on the far right lane. Then the driver (Mr. McKay) threw something at their car which hit the passenger side window where his daughter was sitting with a "huge bang". The driver was "leaning out the window and yelling at us and he threw something at the car". The BMW's windows were all closed at the time.

[28] Mr. Gerend could not make out what Mr. McKay was yelling. Before Mr. Gerend could even react to the object that had been thrown at his car, he saw Mr. McKay pull right in front of him again. Now both vehicles were in lane 3 of 4 which were both exiting onto the Brant Street ramp. There was no vehicle in front of Mr. McKay's vehicle before he pulled over in front of Mr. Gerend's vehicle.

[29] Mr. Gerend testified that he then pulled his vehicle back into the right-hand lane to avoid hitting Mr. McKay.

[30] Mr. Gerend testified that he thought Mr. McKay's driving up to this point was "crazy". He kept his own hands on the steering wheel at all times trying to avoid Mr. McKay's vehicle. He did not gesture or verbally react to him in any way.

[31] Mr. Gerend testified that he had slowed to a speed between 30 to 35 kilometres at this time as they were on the exit ramp.

[32] Mr. McKay's vehicle swerved right in front of him again. McKay's vehicle had its brake lights on and "I had absolutely no chance and I ran into the back of his car".

[33] McKay's car had a big spare tire on the back which hit the hood of the BMW which wedged under it. The BMW's hood buckled. None of the airbags were deployed because of the low speed of travel at the time of impact. The BMW sustained approximately $10,000.00 in damage. No one in the car was injured.

[34] Mr. Gerend testified that there were no other vehicles in front of the RAV that would have accounted for it changing lanes. None of the RAV lane changes were signalled. It all happened in 10 to 15 seconds.

[35] After the collision, Mr. McKay exited his car, as did the Gerend family. The first thing Mr. McKay said was "Good. You hit me."

[36] Within seconds, a third vehicle stopped that had been driving behind them. This driver said he had witnessed the driving. The witness driver was yelling at Mr. McKay. Mr. McKay was getting into the witness' face and his wife's face and he was yelling.

[37] Mr. McKay appeared agitated and threatening, so Mr. Gerend told his family to get on the side of the road and he called 911 reporting a road rage incident. The police arrived on scene within 3 to 4 minutes.

[38] The only thing Mr. Gerend said to Mr. McKay at the side of the road was to go onto the other side of his car and to stay away from his family.

[39] In cross-examination Mr. Gerend testified that his wife was upset after the incident. She was concerned about their daughter. Her voice was raised when Mr. McKay took steps towards her and was a couple of feet from her at the roadside.

[40] Mr. Gerend testified that he had originally been travelling at highway speed – 100 kilometres an hour – before Mr. McKay began tailgating him. Mr. Gerend testified that he did not apply his brakes in an effort to make Mr. McKay back off.

[41] Mr. Gerend testified that the collision was caused by Mr. McKay "swerving back in front of him" and "jamming on his brakes". Mr. Gerend hit Mr. McKay's car within a second or so.

Summary of the Testimony of Carlos Pestana

[42] Mr. Pestana was born November 23, 1962.

[43] On August 18, 2012, he was driving his green in colour Chevy Cobalt vehicle on the QEW westbound from Mississauga. He was driving to Burlington and also planning to exit the Brant Street off-ramp. His wife and his daughter were in the vehicle.

[44] The traffic on the QEW was moderate and vehicles were travelling at a moderate speed.

[45] Mr. Pestana first noticed the RAV 4 vehicle as it passed him coming from the merge lane off Guelph Line onto the QEW. Mr. Pestana was in the right lane of the QEW at the time. The QEW has 3 lanes of westbound travel at this location.

[46] From his rear view mirror, he observed the RAV vehicle move from one of the highway lanes into the merge lane before it passed his vehicle. Mr. Pestana was not expecting the RAV to pass him by using the merge lane. Mr. Pestana was travelling at approximately 105 kilometres an hour at the time. The RAV was going faster than that.

[47] Mr. Pestana saw the RAV go behind another vehicle in the middle lane. The RAV was tailgating this vehicle. This was not the BMW.

[48] Mr. Pestana then saw the RAV drive into the right lane and it drove beside the BMW who was in the middle lane. The driver of the RAV made a hand gesture at the BMW and the driver threw a water bottle and it hit the right passenger's side door. Mr. Pestana's car was approximately a car length away at the time. All of them were transitioning onto the Brant Street off-ramp at the time.

[49] The BMW came behind the RAV. The RAV was "travelling way too slow and there was no traffic ahead of him, so at the rate of speed and the rate of braking, that's when the accident happened". The driver of the BMW did not have time to stop.

[50] After the collision, everyone exited their vehicle.

[51] He observed Mr. McKay at the scene to be calm. He was saying that the driver of the BMW had rear-ended him and that he (Mr. Gerend) was at fault.

[52] Mr. Pestana told Mr. McKay that he was the cause of the accident.

[53] Mr. Pestana testified that he saw no aggressive driving or gestures by the BMW.

[54] He concluded that Mr. McKay's driving was "dangerous" because he drove up to the BMW, threw a water bottle and made a gesture to the driver, and then stopped in front of the BMW for no reason.

[55] Mr. Pestana testified that Ms. Gerend's wife was distraught after the collision. She was worried about their daughter.

[56] In cross-examination, Mr. Pestana repeated that when the RAV passed him from the merge lane, it had not been entering the highway from the Guelph Line ramp. He first saw the RAV in the middle lane of the QEW before it crossed over into the third lane, then into the merge lane and then passed him in the third lane.

[57] His focus was on the RAV because of its driving behaviour. His focus was not initially on the BMW.

[58] He observed the RAV from Guelph Line until just before the collision on the Brant Street off-ramp. There are two lanes on the Brant Street off-ramp until the end when a third right-hand turn lane is added for vehicles travelling north.

[59] Mr. Pestana testified that he did not see the RAV swerve from one lane to another on the Brant Street off-ramp. He saw it in the right lane and it was braking abruptly.

[60] In re-examination, Mr. Pestana read the statement he gave to police on the day in question. In that statement he said that he saw the RAV tailgating the BMW on the QEW. The statement he gave to police was correct. The RAV was tailgating the BMW on the QEW.

[61] Motor Vehicle Accident Report of Officer Conant – Entered on consent as Exhibit #1 for the limited purpose of location of the collision.

Summary of the Testimony of Michael McKay

[62] Mr. McKay is 32 years of age, not married, has no criminal record. He has 22 entries on his driving abstract. His licence has never been suspended.

[63] Mr. McKay did not complete high school. He is employed as a sales engineer for Sunoco and travels a lot for work. He lives in Burlington, just behind the Court House, which is south of the Brant Street exit off the QEW westbound.

[64] On September 18, 2012, he had been in Mississauga helping a friend move.

[65] He was driving home to Burlington when the events in question occurred.

[66] He was driving westbound on the QEW in the middle lane as he approached the Guelph Line on-ramp. There was a big truck in front of him. He wanted to move to the third (right) lane because he was going to exit at Brant Street. As he started to move over he noticed that a number of vehicles were going significantly slower than the posted speed limit, so he decided to use the merge lane to avoid the slow cars.

[67] He passed Mr. Pestana's car. There was another vehicle in front of Mr. Pestana's car that moved out of the right lane into the middle lane. At the same time as that car moved over he cut a bit too close to Mr. Gerend. As soon as he cut in behind Mr. Gerend, Mr. Gerend raised his hand up to the rear view mirror and started shaking it at him at the same time Mr. Gerend applied his brakes in an effort to have him back off, which he did. This required Mr. McKay to abruptly hit his brakes as well.

[68] Mr. McKay described his driving from the middle lane into the third lane then into the merge/on-ramp at a speed of 105 as 'zipping' around one car and then 'zipping' around Mr. Pestana', pulling in behind Mr. Gerend and cutting in too close.

[69] He continued driving for another 30 seconds, 2 or 3 car lengths behind Mr. Gerend, and as they approached the Guelph Line exit Mr. Gerend moved over into the left-hand (middle) lane and Mr. McKay continued and passed him. When the cars were beside each other he gestured to Mr. Gerend and he threw a coffee cup out of his car. He admits it was a bad mistake. He did not throw it at Mr. Gerend's vehicle. It was "more an act of frustration" on his part. They were both at the entry point for the Brant Street exit ramp at this point.

[70] Mr. McKay testified that he likes to keep his car on auto pilot at a speed of 105 because he does not like to move his feet on a constant basis due to blood clot issues in his legs.

[71] Mr. McKay continued to stay in the right lane of the Brant Street off-ramp. Mr. Gerend started to follow him by moving his vehicle from the left lane to the right lane of the off-ramp.

[72] "He pulls in behind me and at that point, knowing full well that I had thrown the coffee cup out the car, I had a bit of a fight or flight reaction and accelerated …(not) too much because we had already started to slow down for the off-ramp…as we were coming around specific turn…that sharper turn to the left, I realized that, you know, I was going a little bit too fast for that turn so I had to apply my brakes …it was a little abrupt, but I didn't slam them on by any means…"

[73] At that time Mr. Gerend ran into the back of him. Mr. Gerend had been on his back the whole time since he threw the coffee cup. After he threw the cup, Mr. Gerend "chased" him down the exit ramp.

[74] He did not say, "Oh good. You hit me" after the collision. He said "That's what you get for chasing me".

[75] Mr. Gerend's wife was yelling at him and cursing in front of her child. He was not expecting that.

[76] Mr. McKay testified that his demeanour after the collision was calm. He did not approach or threaten anyone.

[77] In cross-examination, Mr. McKay testified that his intention was to turn south on Brant Street because he lives on the street directly behind the courthouse.

[78] Mr. McKay testified that he was in the northbound Brant Street off-ramp lane because when he saw Mr. Gerend directly behind him in the right-hand lane he had the "fight or flight reaction…I didn't know if he was a huge muscle guy or not. So I decided, instead of going to my home, I decided to just go north and go to a large area."

[79] Mr. McKay stated that he has been truthful in giving his evidence except when he stated that the coffee cup fell out of his hand in the wind to the people at the scene. He just wanted to give Mr. Gerend the finger. He had his coffee cup when he put his hand up and just discarded it.

[80] Mr. McKay agreed that a merge lane is not a lane of traffic a driver should be passing in. Mr. McKay stated that he had to use the merge lanes to avoid a collision because all the other traffic was going too slow. Mr. Pestana, Mr. Gerend, another vehicle and a big truck were all slowing down.

[81] Mr. McKay does not agree that Mr. Pestana was travelling at a speed of 105 kilometres an hour when he passed him. Mr. McKay stated that he was travelling at 105 and he was in no rush to get anywhere. He was looking forward to having some rabbit stew he had prepared.

[82] Mr. McKay denied tailgating any other vehicle.

[83] Mr. McKay agreed that when Mr. Gerend made him back off he was upset and frustrated. Mr. McKay repeated that he didn't throw the plastic coffee cup at the vehicle. He did agree that if someone were to deliberately throw such an object at a car on the highway it would absolutely be unsafe. Mr. McKay then stated that he did throw the coffee cup.

[84] After he threw the coffee cup at Mr. Gerend, Mr. Gerend began chasing him, so he accelerated. Mr. McKay repeated that he did not cause the collision.

[85] A DVD taken from Mr. McKay's cell phone recording a portion of what occurred at the scene was filed as Exhibit #2.

Position of the Parties

[86] Mr. Rombis submits that based on a WD analysis the Crown has not met their onus of proof. He submits that Mr. McKay's evidence was consistent throughout. He submits that Mr. McKay has been honest about being frustrated and mad and throwing a coffee cup, but that is the extent of what has been proven.

[87] The defence submits that based on the inconsistent testimony of Mr. Gerend and Mr. Pestana concerning the driving of Mr. McKay, and what occurred after everyone was out of their cars at the scene of the collision, the Court must be left in reasonable doubt as to what the driving consisted of.

[88] The Crown submits that they have proven that Mr. McKay's driving was a marked departure from the standard of care of a prudent driver and it constitutes dangerous driving.

[89] The Crown relies primarily on five factors in support of their submission:

1. That Mr. McKay was passing vehicles on the QEW highway using the on-ramp merge lane;
2. That he was passing vehicles at speeds over 105 kilometres an hour;
3. He was tailgating vehicles on the QEW;
4. He threw a coffee cup at Mr. Gerend's vehicle; and
5. He deliberately drove into the northbound right turn lane on the Brant Street off-ramp and abruptly slowed down which caused the collision.

Analysis

[90] I have applied the 3 pronged test set out in WD in assessing the reliability and credibility of all the evidence. I accept the position and the submissions of the Crown.

[91] This is a classic case of road rage.

[92] On his evidence, Mr. McKay became angry and frustrated by other drivers on the QEW. I conclude that they were driving properly and safely, and in his distorted sense of entitlement to the road, Mr. McKay personalized their driving as an insult to him and he chose to drive with revenge.

[93] Mr. Gerend presented as a very mature and reasonable man. His evidence was consistent throughout. His evidence is supported on all major points by Mr. Pestana. Mr. Pestana was not at all times focusing on the movements of the BMW, his main worry was the dangerous driving of the RAV driver and to stay away from that particular car. That concern was also the prime focus of Mr. Gerend. He did everything he could to avoid the erratic and dangerous driving of Mr. McKay.

[94] Where there are differences in the testimony about what was said after the collision, I accept the testimony of Mr. Gerend that he felt threatened by Mr. McKay at the scene. Mr. McKay was blaming him for an accident that he himself had caused. Mr. McKay had targeted Mr. Gerend as he was driving and it is understandable why Mr. Gerend would feel he and his family were being victimized.

[95] I reject Mr. McKay's testimony that he had to use the merge lane to pass other vehicles on the QEW because they were travelling too slow. I accept the Crown witnesses' evidence that they were travelling at highway speed and the traffic was light/moderate. There was no reason for Mr. McKay to move from the middle lane all the way over to the merge lane for Guelph Line except for the fact that he wanted to speed around all of them. In his words, he described it as "zipping" around them. That is exactly what he did; at speeds exceeding 105 kilometres an hour and in a manner that was dangerous. He almost caused a collision on the QEW by this driving alone.

[96] I reject Mr. McKay's evidence that Mr. Gerend made any provocative gestures or applied his brakes to have Mr. McKay back off as Mr. McKay was tailgating him on the highway. I accept that Mr. Gerend moved out of Mr. McKay's lane and over to the middle lane at this point.

[97] I find as a fact that McKay then sped up beside Mr. Gerend and gave him the finger and was yelling. Then he aggressively, and very dangerously, threw a plastic cup at the passenger's side door of Mr. Gerend's car which, of course, was startling to the occupants.

[98] I conclude that in his road rage mindset, Mr. McKay then accelerated his speed and he entered onto the Brant Street off-ramp too fast to make his originally intended left-hand turn.

[99] I conclude that as Mr. Gerend was in the far right lane to turn northbound on Brant Street, Mr. McKay swerved right in front of him and applied his brakes giving Mr. Gerend no time to stop. I conclude that Mr. McKay caused the collision.

[100] I reject as rationalized fiction Mr. McKay's testimony that Mr. Gerend was chasing him down the off-ramp. Mr. Gerend did everything he could to get away from Mr. McKay and his continuous dangerous driving.

[101] I am satisfied beyond a reasonable doubt that Mr. McKay's driving amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation.

Decision

[102] A finding of guilt is registered.

Released: October 17, 2014

Signed: Justice L.M. Baldwin