Court File and Parties

Court File No.: Halton Information no. 127202

Date: 2015-11-24

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Johnathon Cai

Before: Justice of the Peace Kenneth W. Dechert

Heard on: May 13, 2013, January 6, 2014, July 7, 2014, December 3, 2014, June 3, 2015 and July 27, 2015

Reasons for Judgment released on: November 24, 2015

Provincial Offences Court – Burlington Ontario and Milton, Ontario

Counsel

For the Crown: H. Apel, S. Bradley, O. Bykov, J. Dafoe, C. Gelbard and A. Weafer

For the Defendant: D. Zito (paralegal representative)

Statutes, Regulations and Rules Cited

• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, section 128, subsections 172(1) and 172(2) and paragraph 172(20)(c)
• Ontario Regulation 455/07, as amended, made pursuant to the Highway Traffic Act, paragraph 2(1)(3)(ii) and subsection 2(2)

Cases Cited

• Regina v. Araujo, 2008 ONCJ 507
• Regina v. Beauchamp (1953), 16 C.R. 270
• Regina v. Bishop, [2008] O.J. No. 5501
• Regina v. Brown, 2009 ONCJ 6
• Regina v. Bunda, [2009] O.J. No. 5588
• Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788
• Regina v. Erredia, [2006] O.J. No. 3421
• Regina v. Hull, [2006] O.J. No. 3177
• Regina v. Lifchus, [1997] 3 S.C.R. 320
• Regina v. Raham, 2010 ONCA 206
• Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299
• Regina v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144
• Regina v. W.(D.), [1991] 1 S.C.R. 742
• Regina v. Wilson (1971), 1 C.C.C. (2d) 466

K.W. DECHERT, J.P. (orally)

Introduction

[1] Under Halton Information no. 127202, Johnathon Cai stands charged that he on or about the 8th day of March, 2012, at the Town of Halton Hills, in the Region of Halton committed the offence of "race a motor vehicle on a highway to wit: driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed", contrary to the Highway Traffic Act, section 172(1).

[2] On May 13th, 2013, upon arraignment, the defendant entered a plea of not guilty to the said charge and a trial then ensued before me. The trial continued on January 6th, 2014, July 7th, 2014, December 3rd, 2014, June 3rd, 2015 and July 27th, 2015, when it was completed. The proceeding was then adjourned to November 24th, 2015, for my judgment.

[3] The Crown was represented by Mr. C. Gelbard on May 13th, 2013, by Mr. S. Bradley on January 6th, 2014, by Mr. H. Apel on July 7, 2014, by Mr. A. Weafer on December 3rd, 2014, by Mr. O. Bykov on June 3rd, 2015 and by Ms. J. Dafoe on July 27th, 2015. The defendant was represented by his paralegal representative, Mr. D. Zito.

The Law

(i) Relevant Statutory Provisions

[4] The defendant is charged with driving a motor vehicle on a highway in a race or contest, contrary to subsection 172(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A.". That subsection reads as follows:

No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

[5] Additionally, the following subsections of section 172 are relevant to this proceeding:

(2) Every person who contravenes subsection (1) is guilty of an offence…;

(20) The Lieutenant Governor in Council may make regulations,

(c) defining the terms 'race', 'contest' and 'stunt' for the purposes of this section.

[6] The terms "race" and "contest" for purposes of section 172, are defined in section 2 of Ontario Regulation 455/07, as amended, made under the H.T.A. (the "Regulation"). The definition of those terms, relative to the subject charge are set out in paragraph 2(1)(3)(ii) of the Regulation, as follows:

2(1) For the purposes of section 172 of the Act, 'race' and 'contest' include any activity where one or more persons engage in any of the following driving behaviours:

3. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,

ii. outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed.

[7] The phrase "marked departure from the lawful rate of speed" is, for purposes of section 2 of the Regulation, defined in subsection 2(2) of the Regulation, as follows:

2(2) 'marked departure from the lawful rate of speed' means a rate of speed that may limit the ability of a driver of a motor vehicle to prudently adjust to changing circumstances on the highway.

(ii) Relevant Common Law

[8] In his decision in Regina v. Raham, 2010 ONCA 206, Doherty J.A. writing on behalf of the Court, stated "on the authority of Sault Ste. Marie," [Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299], the rules of the road offences contained in Part X of the H.T.A., including section 172 thereof, are "prima facie strict liability offences". In support of this proposition, at paragraph 33 therein, he wrote in part as follows:

The Highway Traffic Act is public welfare legislation designed to protect those who use the roads of the province. The Act, and in particular Part X, 'Rules of the Road', creates a wide variety of offences, including the offence in s. 172. Those offences, taken together, are designed to regulate and control conduct on the roads. The offences are properly regarded as public welfare offences:…

[9] In his decision in Regina v. Sault Ste. Marie (City), supra, Dickson J., as he then was, defined offences of strict liability as follows:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves a consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. …

[10] In Regina v. Raham, supra, Mr. Justice Doherty found that section 172 of the H.T.A. created three offences: (1) Driving a motor vehicle on a highway in a race or contest; (2) Driving a motor vehicle on a highway while performing a stunt; and (3) Driving a motor vehicle on a highway on a bet or wager. In reaching this conclusion, the said jurist made the following comments pertaining to the proper interpretation of section 172 from a grammatical perspective, at paragraph 23, as follows:

I also accept the Crown's submission that from a grammatical point of view, the insertion of the comma after the word 'contest' in s. 172 supports the Crown's interpretation. The placement of the comma suggests that the three prepositional phrases, 'in a race or contest', 'while performing a stunt' or 'on a bet or wager', all modify the verb 'drive'. The section effectively sets out a list of three ways in which the offensive driving may be committed: see R. v. Brown, 2009 ONCJ 6 at paras. 27-28; R. v. Araujo, 2008 ONCJ 507.

Accordingly, the placing of a bet or wager is not an element of the actus reus of either the offences of driving a motor vehicle in a race or contest or driving a motor vehicle while performing a stunt, under subsection 172(1) of the H.T.A.

[11] It is noted that the text of subsection 2(1)(3) of the Regulation contains, in part, language similar to that found in section 130 of the H.T.A., pertaining to the offence of careless driving. This language is similar to that contained in section 3.8 of the Regulation, relative to the offence of stunt driving under subsection 172(1) of the H.T.A.

[12] In his decision in Regina v. Bunda, [2009] O.J. No. 5588, at paras. 48 and 49, Cuthbertson J.P. made, in part, the following comments pertaining to the careless driving language as it relates to the offence of stunt driving defined by section 3.8 of the Regulation:

There is as yet no on point case law for the matter at bar. However, I note the similar language in s. 3.8 to that of careless driving under s. 130 HTA. As it pertains to the common language, I will adopt relevant s. 130 case law to further analyze this matter.

In R. v. Erredia, [2006] O.J. No. 3421, Justice Fairgrieve commented on the standards for a conviction of careless driving. He stated:

(6) The offence of 'driving carelessly', created by s. 130 of the Highway Traffic Act, is defined as driving on a highway 'without due care and attention or without reasonable consideration for other persons using the highway'. The law has been clear for decades that in order to make out the offence under s. 130, the driving must be of such a nature that it amounts to a breach of one's duty to the public and is deserving of punishment: see R. v. Beauchamp (1953), 16 C.R. 270 at p. 278. A driver is not held to a standard of perfection, and a mere error of judgment is not necessarily sufficient to establish the offence: see R. v. Wilson (1971), 1 C.C.C. (2d) 466. Careless driving, generally speaking requires proof of a departure from the standard of care that a reasonably prudent driver would have exercised in the circumstances, and normally involves, I would think, conduct that includes other less serious Highway Traffic Act infractions.

The Evidence

(i) The Testimony of Police Constable Moreen Smith

[13] During the trial of this matter, I received testimony from Police Constable Moreen Smith of the Halton Regional Police Service tendered on behalf of the prosecution, on May 13th, 2013 and on January 6th, 2014. Furthermore, on January 6th, 2014, I received testimony from the defendant. On July 7th, 2014, I received some evidence from defence witness, Mr. Ryan Keith. He did not complete his testimony-in-chief on that date due to illness. The defendant did not produce Mr. Keith as a witness for the continuation of his testimony on the December 3rd, 2014 trial continuation date, and accordingly, the Crown was not afforded an opportunity to test his evidence through cross-examination.

[14] Police Constable Smith testified that she was employed by the Halton Regional Police Service and had been so employed since 2003. She indicated that between 1989 and 2003, she was employed as a police officer by the Toronto Police Service. She advised that she was trained and qualified in the operation of radar speed measuring devices in 1989 and that she continued to be so qualified on the date of the subject offence, March 8th, 2012. She stated that in order to be qualified in the operation of radar devices, she was required to pass a test showing that she was able to estimate the speed of vehicles travelling towards her or away from her.

[15] Constable Smith testified with the assistance of her original investigative notes, which were made contemporaneously with the time of the events recorded, for purposes of refreshing her existing memory of the relevant events, under the doctrine of present memory revived.

[16] Constable Smith testified that on March 8th, 2012, she was conducting general patrol duties, utilizing an unmarked police vehicle, in the area of Atwood Avenue, in the Town of Halton Hills. She stated that Atwood Avenue was located in a residential area of Halton Hills. She advised that Atwood Avenue was a two-lane highway (one north bound lane and one southbound lane), which ran from its intersection with Mowat Crescent to the north to Princess Anne Drive, to the south. She described these lanes as being "very wide". She went on to advise of the existence of a "long gradual curve" on Atwood Avenue and of the speed limit on the highway, being 50 kilometres per hour.

[17] Constable Smith testified that at approximately 5:20 p.m., she was positioned in her unmarked police vehicle, which was parked on the west side of Atwood Avenue facing in a southerly direction, several metres north of its intersection with Berton Boulevard, in the Town of Halton Hills, for the specific purpose of looking for H.T.A. infractions.

[18] Constable Smith testified that at that time, as she was sitting in her police vehicle with her seatbelt on speaking with a pedestrian through her driver's side window, she heard the sound of a motor vehicle engine revving, and then observed a Volvo motor vehicle pass her on her left side, travelling in a southerly direction in the southbound lane. The officer went on to testify as follows:

The driver [of the Volvo] was accelerating quickly. I could see the nose of the car rising slightly. Seconds later, a second vehicle passed my police car and pulled immediately into the northbound lanes travelling southbound. The Honda vehicle [the second vehicle] was attempting to pass the Volvo and the driver of the Volvo motor vehicle continued to accelerate refusing to allow the Honda to pass and as a result, both vehicles continued to accelerate south on Atwood Avenue, one vehicle taking the lead then the other taking the lead. So they were side by side. This continued through the long curve in the road where the north and south are separated by a solid yellow line.

[19] Constable Smith testified that upon observing the two vehicles pass her, she immediately put her vehicle in gear and attempted to stop the drivers. She stated that she did not lose sight of the vehicles and that as she was pursuing the vehicles as they travelled southbound on Atwood Avenue, she activated the emergency lights on her vehicle and eventually stopped both vehicles at a location just north of Princess Anne Drive. She advised that just prior to stopping, the Honda turned back into the southbound lane from the northbound lane.

[20] Constable Smith advised that upon stopping both vehicles, she spoke with the drivers and made a demand for their driver's licences, ownership, insurance and keys for their motor vehicles. The officer stated that Johnathon Cai was the driver of the Honda motor vehicle and that she was able to identify him through the Ontario driver's licence produced, which contained a digitized photograph. She indicated that the licence produced was a G-2 driver's licence showing Mr. Cai's address on Mowat Crescent in Georgetown, Ontario and his date of birth of December 20, 1994.

[21] Constable Smith testified that as both the Volvo and the Honda passed her parked location on Atwood Avenue just north of Berton Boulevard, they appeared to be accelerating as she noticed the nose of the vehicles rise. She stated that as the Volvo accelerated, the Honda moved into the northbound lane and accelerated in an attempt to pass the Volvo. She advised that the Honda remained in the northbound lane until it was stopped by the officer just north of Princess Anne Drive. She stated that to the best of her recollection the vehicles travelled an estimated distance of 1.5 to 2 kilometres on Atwood Avenue over an estimated time frame of approximately 20 to 25 seconds, before they were stopped.

[22] Constable Smith testified that the radar speed measuring device in her police vehicle was not working at the relevant time and as such she was not able obtain a speed measurement for both vehicles. She did, however, estimate that the vehicles were travelling at a rate of speed of between 110 and 120 kilometres per hour, as they were travelling in a southerly direction on Atwood Avenue. She testified that as both vehicles were travelling at this estimated speed, they would attempt to outdistance one another, stating "they continued to edge forward – one would edge forward a little bit and then the other one".

[23] During cross-examination, Constable Smith acknowledged that a few days after the incident, she completed a "General Occurrence Report" pertaining to the subject incident. She stated that in preparing that report, she returned to Atwood Avenue and measured the length of that highway from Mowat Crescent to Princess Anne Drive, utilizing the odometer on her police vehicle. She determined the length of Atwood Avenue to be .77 of a kilometre. Additionally, she advised that at the material time, her police vehicle was parked at a location very close to the northerly boundary of the intersection of Atwood Avenue and Berton Boulevard, which was approximately 50 metres south of Mowat Crescent.

[24] During cross-examination, Constable Smith elaborated on her testimony-in-chief in stating that as the two motor vehicles were travelling in a southerly direction on Atwood Avenue at the relevant time, the Volvo was travelling in the southbound lane and the Honda was travelling in the northbound lane. In this regard, she stated as follows:

They travelled from the top of Atwood Avenue in a residential area with kids around, edging in front of the other, one in the northbound lane, one in the southbound lane, continuously from Mowat, just south of Mowat about – I guess about Berton, so maybe 150 feet south of Mowat, straight down through the curve all the way to Princess Anne where I managed to stop them.

The officer went on to state that the vehicles were travelling side by side continuously, as they proceeded down Atwood Avenue in a southerly direction.

[25] Constable Smith testified that when she first observed the Volvo passing her parked location, she estimated that it was travelling at a rate of speed of "60 to 80 kilometres per hour and climbing". At a later point in cross-examination, Constable Smith stated that she estimated that both the Volvo and the Honda were travelling at an estimated speed of "70 to 80 kilometres per hour", when they passed her location. She went on to say that she first observed the Honda pass her location about a "half a second" after the Volvo passed her location, noting that the Honda was right behind the Volvo.

[26] The officer stated that when Mr. Cai, operating the Honda motor vehicle, passed her location, she noted that he was in the process of "pulling into the northbound lane going southbound". She stated that she put her police vehicle into gear "seconds" after the Honda passed her location and that she made her observations of the driving conduct of both vehicles through the front windshield of her police vehicle as she pursued the vehicles travelling southbound on Atwood Avenue. She stated that she never lost sight of the vehicles from the time that she first observed them until the time that she stopped them on Atwood Avenue near Princess Anne Drive. Constable Smith specifically advised that she saw the Honda "pulling in to the northbound lane of Atwood Avenue" and then travel in a southerly direction in that lane, the entire length of Atwood Avenue starting from a point just south of Mowat Crescent.

[27] Constable Smith testified that after she stopped the defendant, she had a brief conversation with him. She advised that at that time, Mr. Cai simply advised her that he was late for work.

[28] During the course of cross-examination, Constable Smith acknowledged that the lanes on Atwood Avenue were "fairly wide", and that there are motor vehicles parked on either side of the highway. She agreed with the suggestion of the defendant's representative that there was enough room in either lane for a vehicle to manoeuvre around parked vehicles without having to move out of the particular lane.

[29] In completing his cross-examination of Constable Smith, the defendant's representative made the following suggestion to the officer:

I'm also going to suggest to you that, at most, there were two cars driving along side by side but that were not racing because none of the – Mr. Cai's vehicle was still in the southbound lane straddling somewhat in the northbound lane.

The constable responded to this suggestion by stating: "I disagree".

(ii) The Testimony of Johnathon Cai

[30] Mr. Cai testified that during the afternoon in question, after school, he was at his residence on Mowat Crescent, located near its intersection with Atwood Avenue. He advised that he was at that location with his friends, Brandon Biafore and Ryan Keith, as well as his younger brother. He advised that they were jointly participating in a work-out routine at the residence.

[31] He advised that late in the afternoon he discovered that he was late to report for work at his family's restaurant business. He and his friends then proceeded to leave the residence. He advised that Brandon Biafore left his residence driving his Volvo motor vehicle and that Ryan Keith left the residence driving a separate motor vehicle. He advised that after Mr. Biafore left his residence, he proceeded to drive away from the residence in his father's Honda motor vehicle. Mr. Cai advised that Mr. Keith then followed him driving away from the residence.

[32] Mr. Cai testified that as he was in the process of turning from Mowat Crescent onto Atwood Avenue to proceed in a southerly direction on Atwood Avenue, he noticed Mr. Biafore's Volvo motor vehicle stopped at the side of the southbound lane of Atwood Avenue at a location between its intersections with Mowat Crescent and Berton Boulevard. Mr. Cai stated that he then proceeded to go around Mr. Biafore, by "veering to the left" portion of the southbound lane, near the centre dividing line between the north and southbound lanes.

[33] Mr. Cai testified that as he was in the process of attempting to manoeuvre around Mr. Biafore's stopped vehicle, he noticed Mr. Biafore start to accelerate back into the southbound lane from his stopped position at the side of the lane. Mr. Cai stated that upon observing Mr. Biafore return to the travelled portion of the southbound lane, he abandoned his decision to try to manoeuvre around him, returning to the left-centre portion of the lane from its left edge behind Mr. Biafore's vehicle.

[34] Mr. Cai testified that once Mr. Biafore's vehicle moved back into the travelled portion of the southbound lane from the side portion of the lane where it was stopped, he remained in the left portion of the southbound lane behind Mr. Biafore's vehicle, and followed that vehicle until both he and Mr. Biafore were stopped by the police officer, near the intersection of Atwood Avenue and Princess Anne Drive. He stated that he did not during this period of time, ever pass Mr. Biafore's vehicle or move into the northbound lane of Atwood Avenue.

[35] When Mr. Cai was asked to explain where his car was situated in relation to Mr. Biafore's car at the relevant time, Mr. Cai stated that he was "behind his car to the left". In clarifying his response in this regard, he stated that the left, front and rear tires of his vehicle "were probably" on the centre, yellow line of the road. He stated that during the complete period of time that he travelled on Atwood Avenue from its intersection with Mowat Crescent to its intersection with Princess Anne Drive, he was driving his vehicle in the left portion of the southbound lane such that his left tires were on the centre, yellow line of the highway. He stated categorically that he never crossed the centre line.

[36] Mr. Cai testified that he first saw the emergency lights of the police vehicle behind him, when he was approaching the second curve on Atwood Avenue approximately two hundred metres prior to its intersection with Princess Anne Drive. He advised that at that time, he looked at the speedometer in his vehicle and determined that he was driving at a rate of speed of a little over 60 kilometres per hour, in the posted 50 kilometres per hour speed-limit zone.

[37] During cross-examination, Mr. Cai reiterated his testimony-in-chief that on the subject date, he had invited his friends Brandon Biafore and Ryan Keith to his residence, for a group work-out routine. He stated that the work-out went on too long, such that he was approximately 20 minutes late for the start of his 5:00 p.m. work-shift at his family's restaurant. He acknowledged that he was in a rush at that time.

[38] Mr. Cai testified that Mr. Biafore left his residence first and then he followed him, with Mr. Keith being the last person to leave the residence area in his vehicle. Mr. Cai stated that when he arrived at the intersection of Mowat Crescent and Atwood Avenue, he immediately turned right onto Atwood Avenue. He advised that once he turned onto Atwood Avenue, he noticed Mr. Biafore's vehicle stopped in the area of the community mailboxes, approximately one metre to the side of travelled portion of the southbound lane of Atwood Avenue. Mr. Cai acknowledged that since he was in a rush, he took steps to move to the left edge of the southbound lane to attempt to manoeuvre around Mr. Biafore's stopped vehicle. He stated that as he attempted to go around Mr. Biafore's vehicle, without moving into the northbound lane, he noticed Mr. Biafore's vehicle begin to accelerate to move back into the travelled portion of the southbound lane. He went on to state that when he observed Mr. Biafore moving back in to the lane, he abandoned his intention to pass the vehicle on the left-hand portion of the lane and manoeuvred his vehicle back behind Mr. Biafore's vehicle. Mr. Cai denied the suggestion of the prosecutor that at this time, he was operating his vehicle at a rate of speed in excess of 60 kilometres per hour, given that he was late for work.

[39] Mr. Cai denied the prosecutor's suggestion that after Mr. Biafore accelerated his vehicle to move back into the centre portion of the southbound lane from the area for parked cars, that he moved into the northbound lane to continue to attempt to pass the Biafore vehicle. Mr. Cai stated that he was never fully on the other side of the road; in the northbound lane of Atwood Avenue, at the relevant time. When he was asked by the prosecutor to explain why there was evidence before the court that he was at the relevant time, operating his vehicle in the northbound lane, Mr. Cai responded as follows:

It could, it could appear like that because of the fact that I was on the left side of the road – I mean, sorry, I was on the left side of that lane versus how he was on the right side of the lane. … It could appear that we were side by side.

[40] Upon being further pressed by Crown counsel if he might be mistaken and that he was side by side with Mr. Biafore's vehicle at some point, Mr. Cai clearly denied that proposition stating that there was "absolutely no way" that he was side by side with Mr. Biafore's vehicle.

[41] During cross-examination, Mr. Cai admitted that upon being pulled over by the police officer he didn't understand why, but he assumed that he was being stopped for speeding at a rate of speed of 60 kilometres per hour in a 50 kilometres per hour zone. In light of that, he immediately told the officer that he was late for work, rather than question her as to what he was being stopped for or what he did wrong. He denied the proposition put to him by the prosecutor that he made that statement as an explanation to the officer at the time, because he was conscious of the fact that he had engaged in driving behaviour indicative of street racing.

[42] Mr. Cai testified that at the time of the traffic stop, he initially told the police officer that he was late for work. He stated that when the officer told him that he was being charged with the offence of street racing, he advised the officer that he wanted to pass Mr. Biafore's car immediately after he turned right from Mowat Crescent onto Atwood Avenue, because he was late for work and obviously did not want to just "sit there" waiting for Mr. Biafore to move his car.

[43] Mr. Cai eventually stated that he decided to advise the officer of the fact that he was in a rush because he was late for work, rather than protest to the officer that he had done nothing wrong; because at the time he honestly thought that he had been pulled over by the officer because he was driving in excess of the speed limit and was receiving a speeding ticket.

[44] Mr. Cai testified that after he had been charged with the offence of racing, he met with Mr. Biafore later that evening at his family's restaurant, to discuss the incident and the charges which were laid. The prosecutor then engaged in the following question and answer session with Mr. Cai:

Q: So at what point in the evening did you [Mr. Cai and Mr. Biafore] decide to concoct the story about him pulling over?

A: I never made a story.

Q: Whose idea was it? Was it your or his?

A: Of?

Q: To say that he was pulled over to the side.

A: It was neither of our ideas.

Q: No?

A: Like it happened.

Q: Okay.

A: So.

Q: And we have an officer that testifies that you two were racing, side by side.

A: Right.

Q: And that's completely fabricated?

A: There's no way my car was side by side to his, like the street's not that long. I wasn't going that fast. There's no way I was side by side.

Q: Okay.

A: Or, I didn't – I never even passed him. There's…

Q: So can you explain to me how come we hear the revving of engines prior to the attempted pass?

A: His car was accelerating and so was mine.

(iii) The Testimony of Ryan Keith

[45] Mr. Keith testified as a witness called by the defendant, on July 7th, 2014. While it is acknowledged that Mr. Keith provided some testimony by way of examination-in-chief, he was unable to complete his testimony on that date, due to illness. I granted Mr. Keith's request that he be excused from his obligations as a witness on that date and adjourned the proceeding for the receipt of further evidence by way of Mr. Keith's anticipated testimony, to December 3rd, 2014.

[46] On December 3rd, 2014, the defendant's representative advised that he was not able to find Mr. Keith to ensure his attendance in this trial as a witness. He advised that he was not, therefore, seeking a further adjournment for the purposes of compelling the attendance of Mr. Keith to complete his testimony. Accordingly, since the Crown has not had the opportunity of cross-examining Mr. Keith relative to any matter relative to this proceeding, I advised the parties that I would only consider Mr. Keith's limited testimony of July 7th, 2014, on the basis that it be afforded little weight in my ultimate assessment of the evidence herein.

[47] During his testimony-in-chief of July 7th, 2014, Mr. Keith advised that in March of 2012, he was a school friend of Mr. Johnathon Cai. He advised that on March 8th, 2012, he attended Mr. Cai's residence for purposes of participating in a group work-out routine, with Mr. Cai and with Mr. Brandon Biafore. He stated that once the work-out routine ended, he, Mr. Biafore and Mr. Cai left the residence, entered their respective motor vehicles and left the area.

[48] Mr. Keith testified that Mr. Biafore left the area first. He stated that he observed Mr. Biafore turn onto Atwood Avenue and then stop on Atwood Ave. He advised that at this time, he noticed Mr. Cai leave his residence and drive his car around the corner on to Atwood Avenue, at a time when Mr. Biafore's vehicle was stopped. At that time Mr. Keith became confused stating that his "head was pounding" and was seeking a break due to his sudden illness. In light of this circumstance, Mr. Keith was not able to say whether it was Mr. Cai or someone else who was attempting to go around Mr. Biafore's vehicle at that time. At that point in his testimony, Mr. Keith was excused from the witness stand due to his illness. He did not return as a witness in this proceeding on any subsequent trial date.

[49] Mr. Keith's limited testimony in this proceeding is vague and confusing. It was proffered by him at a time when he was ill, thereby affecting his memory of the events of March 8th, 2012. He was not able to remember any significant details pertaining to the relevant events of March 8th, 2012, and he was not able to adequately articulate the limited amount of information which he could recall.

[50] Accordingly, for that reason and based on the fact that the Crown did not have an opportunity to cross-examine Mr. Keith in this proceeding in order to test the veracity and accuracy of his testimony, I find that Mr. Keith's limited evidence is not sufficiently reliable to be afforded any weight in this proceeding.

The Issues

[51] The ultimate issue in this proceeding is whether the prosecution has proven all of the elements of the actus reus of the subject offence, beyond a reasonable doubt. If the actus reus of the offence has been proven to the requisite standard then the fault element of negligence is automatically imported into this strict liability offence, and the defendant will be convicted of the offence unless he is able to establish on a balance of probabilities that in committing the offence he took all reasonable steps to avoid committing the offence or that he committed the offence on the basis of an honest and reasonable mistake of fact.

[52] In this proceeding, I am asked to determine whether the totality of the evidence establishes Mr. Cai's guilt on the subject charge, beyond a reasonable doubt. In that regard, I must remind myself that the defendant is presumed innocent until proven guilty, that the prosecution bears this burden of proof throughout the trial and that it never shifts to the defendant.

[53] Based upon the undisputed evidence, I am of the view that the following elements of the actus reus have been established beyond a reasonable doubt:

1. that on the 8th day of March, 2012, at approximately 5:20 p.m., Johnathon Cai was driving a Honda on Atwood Avenue in the Town of Halton Hills;

2. that a Honda is a "motor vehicle" within the meaning of the H.T.A.;

3. that Atwood Avenue on the Town of Halton Hills, is a "highway" within the meaning of the H.T.A.

[54] The outstanding sub-issues in this proceeding are as follows:

1. whether the prosecution has proven beyond a reasonable doubt that on the date and at the place in question, Johnathon Cai was, in driving the said motor vehicle on Atwood Avenue, outdistancing or attempting to outdistance the motor vehicle being driven by Brandon Biafore at a rate of speed that is a marked departure from the lawful rate of speed; and

2. if the prosecution has proven the aforementioned elements, whether it has also proven beyond a reasonable doubt, that the said driving conduct was serious enough to be characterized as driving without due care and attention, without reasonable consideration for other persons using the highway or in manner that may endanger any person.

[55] There is conflicting evidence before me in this case relative to issue of the proof of the elements of the actus reus set out in paragraph 2(1)(3)(ii) of the Regulation. Accordingly, I am obliged to analyze the issue of the credibility of the conflicting evidence before me through the application of the principles enunciated in the case of Regina v. W.(D.), [1991] 1 S.C.R. 742.

[56] Since the issue of the credibility of witnesses is important in this proceeding, I must remind myself that the concept of reasonable doubt applies to the assessment of credibility and that issue of the guilt or non-guilt of the defendant must not be based on a credibility contest between the prosecution and defence witnesses. These propositions of law were articulated by Cory J. in Regina v. W.(D.), supra, in part, as follows:

In a case where credibility is important, the trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. …

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[57] In Regina v. Hull, [2006] O.J. No. 3177, Simmons, Armstrong and Rouleau JJ.A., rendered the following opinion pertaining to the proper application of the W.(D.) principles, at paragraph 5 thereof:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in doing so comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[58] In her decision written on behalf of a unanimous panel of the Supreme Court of Canada, in Regina v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at paragraph 23, Charron J. made the following comments pertaining to the W.(D.) instructions:

The majority [referring to the majority judgment of the Quebec Court of Appeal under appeal] stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. …

[59] In his Provincial Offences Act appeal decision in Regina v. Bishop, [2008] O.J. No. 5501, D.A. Harris J. set aside the finding of guilt against the appellant for an offence of "disobeying a stop sign" contrary to paragraph 136(1)(a) of the Act, and ordered a new trial. In doing so the jurist determined that the trial Justice of the Peace erred by failing to apply the principles articulated in Regina v. W.(D.), supra, in arriving at her verdict.

[60] In describing the circumstances of the said offence, Mr. Justice Harris stated, in part, as follows:

Both witnesses agree that Mr. Bishop drove up to the stop sign at the intersection of Main Street and Erie Street. Mr. Bishop said that he stopped there before proceeding through the intersection. Provincial Constable Nakagawa said that he did not come to a complete stop. …

[61] Mr. Justice Harris stated that in light of the evidence as set out above, the trial Justice of the Peace should have instructed herself in accordance with the W.(D.) principles. In reviewing the reasons of the trial jurist in this proceeding, he noted that the jurist did not say "that she rejected the evidence of Mr. Bishop" or that his evidence "did not leave her with a reasonable doubt as to his guilt".

[62] In his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320, at para. 39, Cory J. defined the expression "beyond a reasonable doubt". That definition is set out in part, as follows:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[63] In his decision in Regina v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242, Iacobucci J. interpreted the model jury instruction articulated by Cory J. in Regina v. Lifchus, supra, as follows:

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, a 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. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:

If standards of proof were marked on a measure, proof 'beyond reasonable doubt' would lie much closer to 'absolute certainty' than to 'a balance of probabilities'. Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed. …

Analysis

Issue: In driving his Honda motor vehicle at the material time, did Johnathon Cai outdistance or attempt to outdistance the Volvo motor vehicle being driven by Brandon Biafore, while driving at a rate of speed that is a marked departure from the lawful rate of speed?

[64] There is conflicting evidence before me with respect to this sub-issue.

[65] On the one hand, Constable Smith has testified that at the material time, Johnathon Cai was driving his Honda motor vehicle on Atwood Avenue, in a southerly direction in the northbound lane beside Mr. Biafore who was driving his Volvo vehicle in the same direction. She testified that the two drivers appeared to be attempting to outdistance each other, by engaging in behaviour where one driver would "edge forward a little bit and then the other", while the vehicles were travelling at a rate of speed of between 110 and 120 kilometres per hour.

[66] On the other hand, Mr. Cai has testified that at the material time, he was driving his Honda motor vehicle in a southerly direction on Atwood Avenue, in the southbound lane, behind and to the left of the vehicle driven by Mr. Biafore, at a speed of 60 kilometres per hour as measured by the speedometer on the vehicle.

[67] During her testimony, Constable Smith testified in a clear and concise manner, relying on her investigative notes made contemporaneously with the time of the events for purposes of refreshing her existing memory of the relevant events. Her testimony was both detailed and internally consistent and the strength of her evidence was not diminished through cross-examination. I find her testimony to be credible.

[68] Additionally, I find Mr. Cai to be a credible witness. He presented his account of the relevant events in a direct and forthright manner. His testimony was detailed, yet he didn't appear to exaggerate or overstate his observations. His testimony was internally consistent and it did not appear to be significantly weakened as a result of vigorous cross-examination by the prosecutor.

[69] In analyzing the evidence in this proceeding in accordance with the W.(D.) principles, I have applied the interpretation of those principles expressed in Regina v. Dinardo, supra, that in cases which turn on credibility, a trier of fact must direct his or her mind to the "question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt".

[70] Mr. Cai's exculpatory evidence in this case is that he did not at the relevant time, drive his motor vehicle in a southerly direction on Atwood Avenue beside the vehicle driven by Brandon Biafore, either in the southbound lane or the northbound lane. While his version of the events in this regard is in conflict with Constable Smith's evidence, it is consistent with all other aspects of his testimony which have not been weakened through cross-examination by the Crown. Furthermore, there are no aspects of Constable Smith's testimony which would objectively diminish the genuineness and reliability of Mr. Cai's memory of his driving behaviour at that time. There is no basis upon which I could reject or discount the probative value of Mr. Cai's recollection of his driving behaviour on Atwood Avenue at the relevant time. Accordingly, I find Mr. Cai's account of the relevant events in this regard, to be plausible.

[71] The plausibility of Mr. Cai's exculpatory evidence is, in my view, enhanced by Constable Smith's acknowledgement that the north and southbound lanes of Atwood Avenue were, at the material time "very wide", thereby allowing ample room for vehicles to pass parked or stopped vehicles in the lane, without leaving the lane.

[72] While I find that I am not able to firmly believe Mr. Cai's assertion that at the material time he never drove his vehicle beside Mr. Biafore's vehicle either in the southbound or northbound lane due primarily to its external inconsistency with Constable Smith's testimony in this regard, I find his assertion to be more than a bare assertion. Mr. Cai's testimony as to why he was operating his motor vehicle behind Mr. Biafore's motor vehicle, close to the left edge of the southbound lane, was sufficiently detailed by Mr. Cai and in my view makes sense. When I consider Mr. Cai's testimony in this regard in the context of the totality of the evidence in this proceeding, I am left in a state of reasonable doubt as to whether, at the material time, he was driving his motor vehicle beside Mr. Biafore's motor vehicle in a manner such that he was outdistancing or attempting to outdistance Mr. Biafore's motor vehicle.

[73] Furthermore, the reliability of Constable Smith's non-expert opinion evidence that at the relevant time, Mr. Cai and Mr. Biafore were operating their motor vehicles on Atwood Avenue between Berton Boulevard and Princess Anne Drive, at an estimated rate of speed of 110 to 120 kilometres per hour is diminished by Mr. Cai's testimony that he was, based upon the speedometer in his vehicle, travelling at a rate of speed of approximately 60 kilometres per hour.

[74] In this regard, it is important to note that the prosecution evidence pertaining to the issue of the rate of speed of both the Cai and Biafore motor vehicles, is based on Constable Smith's lay opinion, rather than through the operation of any recognized speed measuring technology. In my view, Mr. Cai's testimony that he was travelling at a rate of speed of 60 kilometres per hour at the relevant time, is more reliable than Officer Smith's lay opinion estimate of the speed of his vehicle at the relevant time.

[75] There is no evidence before me in this proceeding upon which I could reasonably infer that a rate of speed of 60 kilometres per hour in a 50 kilometres per hour speed zone constituted a marked departure from the lawful rate of speed, as that phrase is defined in subsection 2(2) of the Regulation.

[76] In summary, when I consider Mr. Cai's exculpatory evidence in this proceeding in the context as a whole, in accordance with the second prong of the W.(D.) principles, I find that I am left in a state of reasonable doubt that he committed the element of the actus reus of the offence; relating to the behaviour of driving a motor vehicle in a manner so as to outdistance or attempt to outdistance another motor vehicle, as codified in paragraph 2(1)(3)(ii) of the Regulation.

[77] Furthermore for the reasons stated above, I find that the prosecution has failed to prove the element of the actus reus of the subject offence pertaining to the rate of speed of the offending driver being such as to be characterized as a marked departure from the lawful rate of speed. I find that the prosecution has failed to prove, beyond a reasonable doubt, that Mr. Cai was operating his motor vehicle at the material time at a rate of speed greater than ten kilometres per hour over the posted speed limit, and in turn has failed to prove beyond a reasonable doubt, that that rate of speed constitutes a marked departure from the lawful rate of speed.

The Decision

[78] Based upon the foregoing analysis and after considering the totality of the evidence in this proceeding, I find that the prosecution has failed to prove all of the essential elements of the actus reus of the subject offence of racing, contrary to subsection 172(1) of the H.T.A., as particularized by paragraph 2(1)(3)(ii) of the Regulation, beyond a reasonable doubt. The prosecution has, therefore, failed to prove the guilt of the defendant on the subject charge, beyond a reasonable doubt.

[79] Johnathon Cai is, therefore, found not guilty of the offence of driving a motor vehicle on a highway in a race or contest, contrary to section 172(1) of the H.T.A. as charged. However, in light of his admission that he was, at the material time, driving his motor vehicle at a rate of speed of 60 kilometres per hour in the posted 50 kilometres per hour zone on Atwood Avenue in the Town of Halton Hills, I find Johnathon Cai guilty of the included offence of speeding 60 kilometres per hour in a posted 50 kilometres per hour zone, contrary to section 128 of the H.T.A, and a conviction on that charge is registered.

Released: November 24, 2015

Signed: "Justice of the Peace Kenneth W. Dechert"