Court File and Parties

Court File No.: Central East - Newmarket 13-02969 Date: 2014-07-29 Ontario Court of Justice

Between: Her Majesty the Queen — And — Ravinder Khattra

Heard: April 3-4, July 10, 2014 Before: Justice Peter Tetley

Reasons for Judgment Released on July 29, 2014

Counsel:

• S. Kumaresan, for the Crown
• P. Lindsay, for the accused, Ravinder Khattra

TETLEY J.:

Background

[1] On April 3, 2014, Ravinder Khattra was arraigned on charges of dangerous operation, contrary to section 249(1)(a) of the Criminal Code, and impaired driving, section 253(1)(a).

[2] During the course of submissions on July 10, 2014, the Crown conceded that the offence of impaired operation had not been established. The defendant was accordingly acquitted of that offence. The charge of impaired operation was noted as dismissed.

[3] As a consequence, the sole remaining count for adjudication is that of dangerous driving.

Factual Summary

[4] At approximately midnight on April 6, 2013, a Chevrolet Impala automobile operated by the defendant eastbound on Highway 7 collided with Veronica Chung's westbound Honda automobile.

[5] On attending at the scene, Police Constable Anastasia Rosell observed the engine block from the Chevrolet Impala in the middle of the roadway. It was on fire. Traffic was described as being very light, the roads were dry and the weather was clear. The area in which the collision occurred was described as being "not very well lit" with illumination provided by street lights along the roadway. Both of the vehicles involved in the collision suffered significant damage. The entirety of the front end of the Impala was sheared off by the force of impact and Ms. Chung's vehicle was damaged to the point that she had to be extricated from the vehicle by attending emergency personnel.

[6] Veronica Chung, a mother of six, advised that she sustained whiplash, bruising and extensive soft tissue injuries as a result of the force of impact. More than a year after the fact, Ms. Chung continues to experience pain and headaches which impair her ability to properly care for her children and her enjoyment of life generally.

[7] Ms. Chung indicated in her trial testimony that prior to impact, she had observed a group of cars approaching from the east as she proceeded in a westerly direction. One of these cars was noted to be travelling in the left lane as it approached with another vehicle travelling behind. The second car, operated by the defendant, was then noted to lose control as it appeared to change lanes. As a consequence of the loss of control, the vehicle was noted to "fishtail" and then suddenly cross the centre median of the roadway, following which, in Veronica Chung's words, "he suddenly drove directly at me".

[8] In addition to Veronica Chung and Constable Rosell, the Crown called 39 year old transportation engineer, Ting Ku. Ting Ku indicated that he was travelling eastbound on Highway 7 about midnight on April 5, 2013 and that he observed a series of events leading to the collision.

[9] His attention was initially attracted to three motor vehicles, which appeared to be "jockeying for position" at a stop light west of the scene of the site of the collision. These vehicles were identified by Ting Ku as including a white tow truck, a 2008 Acura TL and a Mazda Miata. In due course, the vehicles were noted to be joined by a fourth car, which Ting Ku initially indicated was a Chevrolet Caprice, presumably the Impala, later confirmed to have been operated by the defendant.

[10] Ting Ku testified that he observed all four vehicles rapidly accelerate as they proceeded eastbound on Highway 7, with the three initially observed vehicles to be travelling at what he described as "very, very high speed".

[11] Ting Ku indicated that the defendant's motor vehicle also rapidly accelerated and began to catch up with the other three vehicles whereupon he observed the Impala to attempt to pass the other vehicles by proceeding into the westbound lanes of Highway 7. He noted the Impala to swerve in and out of the eastbound lanes into the westbound lanes on a couple of occasions, with speeds approximating over 100 kilometres per hour. Despite these reported maneuvers, the defendant's motor vehicle was never noted to pass any of the other three vehicles.

[12] As the Impala continued eastbound on Highway 7 east of Jane, Ting Ku testified that it veered out of control as a consequence of efforts to avoid hitting a raised concrete median and struck the westbound vehicle operated by Veronica Chung, losing its engine block in the exchange.

[13] Surprisingly, Ting Ku did not stop at the accident scene, although he witnessed what would effectively amount to a head-on collision between the defendant's motor vehicle and that operated by Veronica Chung. Instead he drove home, researched tail light patterns of the vehicle he initially believed to be a Caprice and subsequently, some hours later, reported his observations to the police.

[14] Ting Ku conceded that he had not observed the four "racers" exchange any gestures or effect any noted communication, which might have served to confirm an intention to race. He acknowledged that he had originally described the defendant's vehicle, erroneously, as a Caprice. His subsequent internet research led him to conclude that the unique round taillights of the observed vehicle confirmed its identity as an Impala.

[15] Ravinder Khattra was the sole defence witness called during the course of the trial. He acknowledged that he had consumed four alcoholic "coolers" between the hours of 6:00 p.m. and 10:00 p.m. and that he was operating his 2001 Chevrolet Impala automobile eastbound on Highway 7 east of Creditstone Road on the night in question. He also conceded that it had subsequently become involved in the collision with the vehicle operated by Veronica Chung.

[16] Ravinder Khattra denied racing any other motor vehicles and indicated the collision had been caused when the vehicle he was following abruptly and without warning applied its brakes, resulting in the loss of control of his Impala as he endeavoured to take evasive action to avoid colliding with the vehicle ahead. As a consequence of the loss of control, Ravinder Khattra's vehicle careened across Highway 7 into the westbound lanes whereupon it struck the Honda sedan operated by Veronica Chung.

The Position of the Crown

[17] Ms. Kumaresan submits that the offence of dangerous driving has been established on the basis of the evidence adduced at trial.

[18] It is asserted that the evidence establishes that, at some point prior to the collision, the defendant's motor vehicle joined a group of three other motor vehicles that were engaged in a race at high speeds, speeds estimated at more than 100 kilometres an hour, as they proceeded together eastbound on Highway 7.

[19] The evidence is also asserted to establish that the defendant lost control of his motor vehicle as he attempted to pass one or more of the co-participants in the "race". This loss of control, at high speed, well beyond the posted speed limit, led directly to the collision of the defendant's motor vehicle with that operated by Veronica Chung.

[20] The defendant's evidence is submitted as being unreasonable. Where it conflicts with that offered by Ting Ku, the Crown submits the evidence of Ting Ku ought be accepted.

[21] Ting Ku is viewed as a credible witness with no interest in the outcome of this case. Despite several acknowledged shortcomings in his trial testimony, the Crown nevertheless submits his account of events as being both reasonable and reliable.

[22] Veronica Chung's evidence is asserted to confirm that several cars were approaching Ms. Chung's location from the east prior to the collision.

[23] Ting Ku is contended to have enjoyed an unobstructed vantage point from which to observe the activities of the four referenced vehicles. A viewing distance, estimated to be between 100 and 200 metres, is submitted as affording further reliability to his account of the circumstances leading to the motor vehicle collision.

The Position of the Defence

[24] Mr. Lindsay concedes that his client's motor vehicle was involved in a collision with Ms. Chung's vehicle and that the defendant had alcohol in his system at the time of the collision. It is further acknowledged that the defendant operated the green Chevrolet Impala at the time of impact with Ms. Chung's car.

[25] Mr. Lindsay suggests that the evidence offered by Veronica Chung is, to a degree, confirmatory of the version of events offered by his client to the extent that Ms. Chung saw headlights approaching her location from an easterly, opposite direction, but noted nothing unusual with respect to the speed of the oncoming vehicles. Veronica Chung's account of the events leading to the collision is also contended to be consistent with that offered by Ravinder Khattra and inconsistent, in large measure, with the account suggested by the trial testimony of Ting Ku.

[26] As a consequence, Mr. Lindsay suggests that if a race occurred, there is no reliable evidence or consistent evidence to confirm that Ravinder Khattra was a part of the high-speed driving reported by Ting Ku or that such driving had not come to a conclusion by the time the events directly leading to the collision of the defendant's car with Veronica Chung's vehicle occurred.

[27] Veronica Chung's testimony was reviewed in detail including the fact that she saw headlights approaching her location from the opposite direction. As noted, Ms. Chung indicated that she did not notice anything distinctive about the speed of travel of those vehicles but did note the loss of control by what was referenced as "the second vehicle", that operated by the defendant. The absence of any noted excessive speed, the acknowledged presence of an unidentified car travelling ahead of the defendant's vehicle, and the observed fishtail and loss of control of the defendant's vehicle are contended to undermine the account offered by the other Crown witness Ting Ku. The defence suggests the absence of any note of an abrupt braking by the vehicle, that was reportedly travelling directly ahead of Ravinder Khattra's vehicle prior to the loss of control of the Khattra vehicle, is understandable given the fact Ms. Chung's vehicle was about to be struck head on.

[28] Ting Ku's trial testimony is submitted as being uncertain with respect to the identification of the vehicles which may have been involved in an extended incident of high speed driving.

[29] Mr. Lindsay identified several inconsistencies in the account offered by Ting Ku at trial and the statement he provided to the police shortly after the observed incident had occurred. These inconsistencies include the initial misidentification of the defendant's motor vehicle, conceded misidentification of one of the other vehicles contended to have been involved in the incident of high-speed driving and factual variations in the defendant's witness statement and the testimony offered at trial with respect to the circumstances that resulted in the loss of control of the defendant's motor vehicle.

[30] The defence submits the referenced reliability issues, combined with the fact that Ting Ku's observations of the events in issue occurred from a relatively long distance, under limited lighting conditions, are factors that collectively serve to undermine the reliability of that witness's factual account.

[31] In addition, as referenced, the account is contended to be at odds with the version of events offered by Veronica Chung. Ms. Chung's recollection is contended to be more in line with the account of events offered by the defendant himself. The defendant's trial testimony is submitted as offering a reasonable account for the collision that ensued.

The Standard of Proof in a Criminal Trial and Reasonable Doubt

[32] Burden of Proof – The burden of proof in this case, as in every criminal allegation, is upon the Crown. The Crown bears the onus of adducing facts in support of the guilt of the defendant, on the basis of proof beyond a reasonable doubt. The accused is presumed to be innocent.

[33] A reasonable doubt, as per Mr. Justice Cory's judgment in R. v. Lifchus, [1997] 3 S.C.R. 320, is defined as:

a doubt based on reason and common sense which must be logically based upon the evidence or the lack of evidence.

And further in the same judgment, Justice Cory notes:

Proof establishing a probability of guilt is not sufficient to establish guilt beyond a reasonable doubt.

[34] Alternatively, proof beyond a reasonable doubt has been defined by Mr. Justice Iacobucci in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, as falling much closer to proof to the point of near certainty than proof on a balance of probabilities as the following comments indicate:

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, the trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict.

[35] In applying this standard the trial evidence must be examined in totality with the standard applied to the final evaluation of guilt or innocence (See R. v. Menard, [1998] S.C.J. No. 56 at p. 8, paragraph 23).

[36] The Ontario Court of Appeal has recently held in R. v. Minuskin, 68 O.R. (3d) 577, that Courts are not required to slavishly follow or adhere to the formulation set out in R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.). Nevertheless, it is helpful in this case to be reminded of those principles.

[37] In R. v. W.D., Mr. Justice Cory indicated that in cases where credibility is important, as is the case here, the trial judge is required to instruct the jury, or himself in a judge alone matter such as this, that the accused must be acquitted if the accused's evidence is believed. The accused is also entitled to be acquitted, even if his evidence is rejected or disbelieved. The accused is also entitled to be acquitted, even if his evidence is rejected or disbelieved by the trier of fact but a reasonable doubt as to the accused's guilt, after considering the defendant's evidence in the context of the evidence as a whole, exists. Thirdly, even if the trier of fact is not left in doubt by the evidence of the accused, he must ask himself on the basis of the evidence which he does accept, if he is convinced on that evidence beyond a reasonable doubt, of the guilt of the accused.

Conclusion

[38] Having reviewed the entirety of the trial record, the applicable case law and the submissions of counsel, I conclude that the Crown has failed to establish proof of the remaining offence on the basis of proof beyond a reasonable doubt.

[39] In my view, the Crown's case has been compromised by the absence of evidence that usually arises as a consequence of commonly utilized investigative procedures. Such evidence, as that generally offered by an accident re-constructionist, may well have provided factual support for the Crown's theory as to how the collision occurred.

[40] It may well be that the account of events offered by Ting Ku is accurate, but the identified internal inconsistencies of that account, the acknowledged variance between that witness's will-say and his trial testimony, and the limitation of his ability to closely observe the events in issue, as they unfolded, are collectively viewed as sufficient to raise some doubt as to the reliability of his testimony.

[41] The unjustified failure to remain at the scene of a serious personal injury collision and his after-the-fact research further serve to cast doubt on the veracity of certain of his recollections.

[42] That said, the account offered by the defendant seems most unlikely to me. It may well be that he was engaged in racing-type conduct, conduct that would constitute the offence of dangerous driving, immediately before the collision with Ms. Chung's motor vehicle. That suspicion has not been established, in my estimation, on the basis of proof beyond a reasonable doubt on consideration of the entirety of the record here.

[43] It cannot be definitively concluded that the defendant's driving constitutes the operation of a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances under consideration here, including the nature, condition and use of the roadway where the defendant's motor vehicle was being operated and the amount of traffic at that place.

[44] The defendant may well be guilty of following too closely, on his own account, or perhaps careless driving, but even these findings would not likely be available if the defendant's account of events is true. Due to the limitations in the evidence adduced by the Crown and the application of the principles in R. v. W.D., I conclude the totality of the evidence falls short of meeting the requisite standard of proof.

Disposition

[45] Please stand, Mr. Khattra. For the reasons referenced, you shall therefore be found not guilty of the remaining count of dangerous operation and that charge will be dismissed. That effectively ends the prosecution and you are therefore free to go.

Justice P.D. Tetley

Released: July 29, 2014