Court Information

Ontario Court of Justice

Date: May 11, 2017

Central East Region: Oshawa

Court File: 15-00147

Parties

Between:

Her Majesty the Queen

— and —

Blaise Gelinas

Before the Court

Justice Peter C. West

Heard on: December 6, 2016 and April 18, 2017

Reasons for Judgment released: May 11, 2017

Counsel

Mr. D. Slessor — counsel for the Crown

Mr. E. Chan — counsel for the defendant Blaise Gelinas

Judgment

WEST J.:

Introduction

[1] On December 5, 2015, Blaise Gelinas was charged with dangerous driving, contrary to s. 249(1)(a) of the Criminal Code. Mr. Gelinas pleaded not guilty and a trial was commenced. The Crown called one witness, Matthew Miller, an off-duty Toronto Police Constable. Mr. Gelinas testified on his own behalf. No other witnesses were called.

[2] The defence admitted at the outset of the trial date, time and identity. This obviated the necessity of calling the arresting officer from Durham Regional Police.

[3] The sole issue on this trial was whether the Crown had proven beyond a reasonable doubt that Mr. Gelinas had driven in a manner 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.

Factual Background

[4] Matthew Miller was driving on the 401 Highway eastbound in the express lanes after finishing work as Toronto Police Service police officer. He was driving home at approximately 3:15 a.m. There are three lanes in the express lanes of the 401 Highway eastbound at this point. He was approaching Kennedy Road when he observed a Toyota Yaris, which was in the centre lane behind a taxi cab. Mr. Miller was in the far left lane travelling 120 km/hr. As Mr. Miller was coming up to the Toyota Yaris to pass it, the Yaris suddenly changed lanes, without signalling, and cut off Mr. Miller such that he had to brake his vehicle, a Nissan Altima, to avoid a collision.

[5] The Yaris passed the taxi and Mr. Matthew passed the taxi. Mr. Matthew moved into the centre lane in front of the taxi. The Yaris also moved into the centre lane in front of Mr. Miller's car. As a result of braking Mr. Miller testified his car was now travelling between a 100 and 110 km/hr. There were about two car lengths between their cars when the Yaris pulled into the centre lane. At the time Mr. Miller testified he really thought nothing of the driver of the Yaris' actions.

[6] Mr. Miller saw a tractor trailer ahead of them in the centre lane. Mr. Miller moved into the far left lane to pass the Yaris and the tractor trailer. As his car drew along beside the Yaris, the driver once again quickly and abruptly without any signal, jerked his car aggressively over towards Mr. Miller's car. Mr. Miller had to take an evasive manoeuvre and served to the left, over the rumble strips onto the far left paved shoulder. He slammed on his brakes to avoid hitting the median and he honked at the driver of the Yaris as he did not know whether or not the driver had seen him. This occurred around the McCowan Road bridge that goes over the 401 Highway.

[7] Mr. Miller was able to move his car back into the far left lane and was now driving behind the Yaris. The tractor trailer was directly beside Mr. Miller in the centre lane and the driver of the Yaris was now slowing his car to prevent Mr. Miller from being able to get passed the tractor trailer. The Yaris picked up speed again and passed the tractor trailer and Mr. Miller was able to move into the centre lane in front of the tractor trailer.

[8] The Yaris was still in the fast lane two car lengths ahead of Mr. Miller's car. The driver of the Yaris then moved into the centre lane in front of Mr. Miller's car. Suddenly the driver of the Yaris applied his brakes, in a manner described by Mr. Miller as "aggressive" and "a screeching halt kind of applying the brakes." Mr. Miller swerved to the right into the slow lane because he did not want to be hit by the tractor trailer that was behind him in the centre lane and he did not want to hit the Yaris that was just in front of him.

[9] Mr. Miller was now beside the Yaris. He looked over into the Yaris and saw there was a male passenger and a male driver in the car. Both the passenger and driver were laughing at Mr. Miller and the passenger flipped Mr. Miller "the bird" by putting up his middle finger. This occurred around Meadowvale Road in Scarborough. Both cars were still in the express lanes.

[10] Every time Mr. Miller tried to get past the Yaris, the driver would speed up and then slow down to prevent Mr. Miller from passing the Yaris. When they past Port Union Road the express lanes expand to four lanes and the driver of the Yaris was driving across all four lanes, back and forth, to prevent Mr. Miller from passing. The Yaris would go to the far right and then drive across the four lanes to the far left lane. Mr. Miller's speed was between 100 and 110 km/hr. Mr. Miller decided to contact the OPP by calling 911, which he did as he was approaching Whites Road in Pickering. He testified he made this decision because, "It was quite simply the combination of things that [had] occurred."

[11] He advised the operator the license plate of the silver Yaris as being ARWN881. He advised there were two males in the car, trying to run him off the road by slamming on the brakes, driving aggressively, whenever he changed lanes the Yaris changed lanes in front of his car. Mr. Miller told the operator the Yaris was straddling two lanes to prevent him from passing. He told the operator the occupants of the Yaris were both looking at him and laughing.

[12] Mr. Miller advised who he was and that he was driving a black Nissan Altima, license number BFWN998. He told the operator the Yaris was accelerating, as they were approaching Brock Road, to what he believed was approaching 150 km/hr. He advised his exit was Westney Road and it was approaching. The driver of the Yaris had slowed again and was now in front of Mr. Miller's car, attempting to block his vehicle. He described there were transport trucks on the highway at this point.

[13] Mr. Miller advised the operator he believed the driver and passenger were trying to egg him on, acting like idiots. At Brock Road he asked the operator if there was an officer close by as Mr. Miller's exit was coming up. The 911 operator advised there was an officer at Thickson Road in Whitby. Mr. Miller told the operator he would continue to follow at a safe distance as he wanted to have a word with them.

[14] As they passed Westney Road, Mr. Miller described the Yaris once again slowing and straddling two lanes in front of him. As they were passing Salem the Yaris once again picked up speed as it was approaching the construction on Highway 401 between Lakeridge and where the new 412 Highway was being constructed, approaching Brock Street (Highway 12) in Whitby. Mr. Miller described the Yaris again slowed down so it was directly in front of his vehicle, despite fact there were no other vehicles on the road.

[15] It was December, it was cold, the roads were dry and it was a little bit foggy out. He testified one could not see more than a kilometre ahead. He never lost sight of the Yaris. There were no other incidents after they passed Lakeridge Road and Brock Street until the stop at Simcoe Street in Oshawa. As they approached Thickson Road, Mr. Miller described observing an OPP cruiser travelling westbound. Mr. Miller described the Yaris being approximately a half a kilometre ahead of him. As they passed Thickson Road, Mr. Miller put on his 4-way flashers. At Stevenson an OPP cruiser caught up to Mr. Miller and the Yaris and exited at Simcoe Street in Oshawa. The OPP officer activated his roof lights and the Yaris was stopped on the Simcoe Street exit ramp.

Crown Witness — Cross-Examination

[16] In cross-examination Mr. Miller advised he was a TPS police officer with 12 years' experience. He works in 51 Division as a patrol officer but had previously worked as a traffic officer. Mr. Miller was questioned about TPS policy respecting police officers engaging in high speed chases. It was Mr. Miller's evidence he was not engaged in a high speed police chase given he was not on-duty or driving a marked police cruiser. Mr. Miller testified he had just finished work, he was off duty and in civilian clothes, driving his personal vehicle.

[17] He agreed he thought nothing of the Toyota Yaris moving into his lane without signalling after he had moved into the left lane to pass the Yaris and the taxi. As he was coming alongside the Yaris as he was going to pass the Yaris and the tractor trailer, the Yaris once again began to come into his lane without signalling and he had to take evasive manoeuvres by moving onto the shoulder over the rumble marks to avoid a collision. He initially thought the driver of the Yaris might not have seen him. Mr. Miller testified he really could not fathom why anybody would do what the driver of the Yaris had done but he did not know if driver saw his car. Perhaps the driver did not check his blind spot. This was why Mr. Miller honked his horn at the Yaris when he moved quickly onto the shoulder to avoid the Yaris colliding with his car.

[18] Mr. Miller testified it was only after they both passed the tractor trailer and the driver of the Yaris slammed his brakes when Mr. Miller was behind the Yaris that Mr. Miller realized something was not right. He swerved to the right to avoid hitting the Yaris from behind and to prevent the tractor trailer from hitting him from behind. It was at this point he pulled alongside the Yaris, which was to his left, and saw the passenger and driver both laughing and the passenger giving him the finger.

[19] Defence counsel suggested to Mr. Miller when the driver of the Yaris slammed on his brakes Mr. Miller was really close to the Yaris' back bumper. Mr. Miller testified he was two to three car lengths behind the Yaris, which allowed him to move to the right in the slow lane and avoid the collision. He denied tailgating the Yaris. Mr. Miller agreed he was upset when he saw the driver and passenger laughing and the passenger gave him the finger.

[20] Mr. Miller described the Yaris getting in front of him again and swerving across lanes to prevent him from passing. It was at that point he got the Yaris' license plate number and called 911. Mr. Miller testified it was the combination of things that occurred that caused him to call 911.

[21] In cross-examination, Mr. Miller testified he attempted to slow down to create some distance between himself and the Yaris but the Yaris would then slow down as well. When he attempted to change lanes and pass the Yaris the driver of the Yaris sped up and got in front of his car to prevent him from passing. Mr. Miller described the actions of the driver of the Yaris as being "road rage." Mr. Miller denied he was engaged in road rage with the driver of the Yaris.

[22] Mr. Miller agreed he told the 911 operator he wanted to have words with the driver because of his driving actions, which he believed were dangerous. He told defence counsel he wanted to ask why the driver was driving like an idiot. He never had an opportunity to speak to the driver after the OPP pulled him over.

[23] The 911 tape was played during Mr. Miller's cross-examination. It was filed as Exhibit 1. On the second day of the trial a transcript of the 911 tape was filed as Exhibit 1A. On the 911 call Mr. Miller described an occasion after they had passed Salem Road, where there was a car in front of his car and the Yaris slowed so that it was driving beside him, boxing him in. Mr. Miller was finally able to move to the middle lane and at that point the Yaris took off, driving at speeds of 130, 135 and 140 km/hr., in Mr. Miller's estimation. Mr. Miller testified he was trained to estimate the speed of cars on the road when he worked with the traffic unit.

[24] He agreed he went to the OPP detachment around 4:20 or 4:30 a.m., he was not sure of the time and wrote out his statement. He agreed he testified in his evidence in chief of an occasion when the Yaris' driver, around Westney Road, came across the lanes to prevent him from going around another car that was driving eastbound. In the 911 tape there was another similar incident just before Lakeridge that he told the 911 operator about as it was happening. He agreed he did not talk about this later incident in his evidence in chief but on hearing it on the 911 tape his memory was refreshed.

[25] Mr. Miller testified he and the 911 operator discussed whether he should continue to follow the Yaris or whether he should take his exit home at Westney Road. They decided it was best for him to continue to follow the Yaris until it was pulled over by the OPP. This was why he continued to follow the car until it was pulled over on the Simcoe Street exit ramp. Mr. Miller told the 911 operator he would activate his 4-way flashers to identify himself to the OPP officer and identify the Yaris.

[26] Mr. Miller testified there were only two occasions when he was driving beside the Yaris, perhaps in the driver's blind spot: when the Yaris forced him onto the shoulder when Mr. Miller was starting to pass the Yaris and the first tractor trailer and when the Yaris braked suddenly causing Mr. Miller to move to the right lane to avoid a collision and he saw them laughing and the passenger giving him the finger.

Defence Evidence

[27] Mr. Gelinas had worked at The Keg in Ajax as a server on December 5, 2015. His partner, Fabrizio Melaragno, had been downtown at a club and Mr. Gelinas drove downtown to pick him up before going home in Oshawa. He took the DVP and then proceeded eastbound on the 401 Highway express lanes to get home.

[28] He described his partner advising that Mr. Miller's car was following their car, driving in the blind spot and looking into their car. He initially testified neither he nor his partner were making gestures toward the driver of the other car but he later testified his partner was gesturing towards the driver with an open palm, as if to say – "Buddy, what are you doing?" His partner had been drinking alcohol but was not intoxicated. He described his partner as being "just a little giggly." Mr. Gelinas denied his partner gave Mr. Miller the finger.

[29] According to his partner, Mr. Miller was behind their car or driving in Mr. Gelinas' blind spot. Mr. Gelinas testified his only memory of this car was his partner pointing out the other car and asking why this guy was following them. He thought the other car was silver or grey but he did not really recall.

[30] Mr. Gelinas really had no memory of having any interaction with Mr. Miller's car. He testified he was always in front of this car, it kept coming closer behind him so Mr. Gelinas would speed up to create a safer distance. He remembered having to accelerate three times. He testified in Ajax the car backed off but he did not know why.

[31] Mr. Gelinas testified he did not cut off Mr. Miller's vehicle at any time. He denied moving from the middle lane to the far left lane causing Mr. Miller to take an evasive manoeuvre onto the far left shoulder. He denied slamming on his brakes when he was in front of Mr. Miller. He testified there "definitely were no tractor trailers" on the 401 highway. Later in his evidence in cross examination he testified there were no tractor trailer trucks that were close to their two cars. He later testified he could not remember if he ever passed a tractor trailer travelling eastbound. It was "dead" on the 401 that early morning according to Mr. Gelinas.

[32] Mr. Gelinas denied ever driving over to the far right lane from the far left lane. He was never in the slow lane. He denied straddling two lanes to prevent Mr. Miller's car from getting by him. He described speeding up to 130 km/hr. to get away from Mr. Miller's car. He testified Mr. Miller never got in front of his car, Mr. Miller was always behind him or beside his car. In Oshawa, Mr. Gelinas indicated the other car backed off, put on his 4-way flashers and when Mr. Gelinas turned at the Simcoe Street exit he saw a uniformed police car at the side of the ramp. He testified he "assumed the guy called it in."

[33] In cross Mr. Gelinas testified he did not recall the lane changes he made as he was driving. He does not have a specific memory of the things he did when he was driving.

[34] Mr. Gelinas had no memory of there being road construction around Lakeridge to just before Brock Street in Whitby. As far as he was concerned there was no construction on 401 Highway that he could remember.

[35] His partner was only pointing out the other driver to him, he did not give him the finger. He testified he could see his partner at all times in his peripheral vision, as he was driving. When Mr. Gelinas was being pressed on this issue he testified he had spoken to his partner and his partner denied giving Mr. Miller the finger.

[36] Mr. Gelinas testified he did not cut off Mr. Miller's car. Mr. Miller made this up. Mr. Gelinas believe it was an ego thing, a little bit of road rage on Mr. Miller's part. The other driver according to Mr. Gelinas would not back off. Mr. Gelinas had maintained in his evidence in chief he was not really aware of the other car as the car "was in his blind spot apparently." He testified he did not see anyone in his blind spot. Later in his evidence in chief he testified Mr. Miller was either coming up behind or was beside his car in his blind spot. He testified when the other car came closer to the rear of his car he would speed up to 130 km/hr. to get away. He testified he sped up three times but could only recall doing this in Scarborough.

The Law of Reasonable Doubt (R. v. W. (D.))

[37] As in any criminal case, Mr. Gelinas is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.), R. v. Lifchus and R. v. Starr. Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[38] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

[39] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen at paras. 20-22, per Major J.

[40] As the Ontario Court of Appeal in R. v. Hull noted:

W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the 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.

[41] I must assess the evidence of the Crown witness and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing 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.

[42] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the Crown's witness' evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus.

Dangerous Driving under s. 249(1)(a)

[43] Section 249(1)(a) of the Criminal Code provides:

Everyone commits an offence who operates

(a) 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.

[44] In R. v. Roy, at paras. 33 to 35, Cromwell J., for the court, indicated the actus reus for dangerous driving is set out in the wording of s. 249(1)(a). The question is whether the driving, viewed objectively, was dangerous to the public in all the circumstances. The focus must be on the risks created by the accused's manner of driving, not the consequences. As indicated by the earlier decision of the Supreme Court in R. v. Beatty, at para. 46, Charron J., for the majority, held "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving that endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident."

[45] The mens rea analysis was also discussed in R. v. Roy, supra, at paras. 36 to 42. In para. 36 Cromwell J. held:

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances. [Emphasis in original]

[46] Of course, proof of subjective mens rea, that is, evidence from which it can be determined an accused deliberately drove dangerously, would support a conviction for dangerous driving. R. v. Roy, supra, at para. 38; R. v. Beatty, supra, (per Charron J., at paras. 47-48; see also McLachlin, at paras. 74-75; and Fish J., at para. 86). In R. v. Willock, at para. 32, Doherty J.A. similarly equates the deliberate actions of the driver over the two to three seconds in issue with a "marked and substantial" departure from the norm in the context of a criminal negligence charge, where the driver deliberately jerked the steering wheel to cause the vehicle to swerve, either to show off or scare his passengers and subsequently was unable to retain control of the vehicle before it crossed the median and collided with oncoming traffic.

[47] Although subjective mens rea is not required to be proved by the Crown, it will clearly suffice, but it is not essential. Cromwell J., at para. 40, holds:

Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

Analysis

[48] The evidence of Mr. Miller, if believed, in my view constitutes a marked and substantial departure from the standard of care expected of a reasonable person in Mr. Gelinas' position. Making a lane change without signalling and failing to check one's blind spot before making a lane change may not, alone without other evidence, amount to a marked and substantial departure. Certainly this conduct would create a serious danger to another driver on the 401 Highway; however, such driving could simply occur from momentary inadvertence. This was how Mr. Miller initially viewed Mr. Gelinas' driving behaviour and as Mr. Miller testified he thought perhaps the driver of the silver Yaris "just did not see him." Mr. Miller gave Mr. Gelinas the benefit of the doubt when he again moved to the left, without signalling, as Mr. Miller's car was coming alongside the Yaris. Mr. Miller had to take evasive action to avoid being side swiped by the Yaris and moved onto the shoulder. Again, Mr. Miller thought maybe Mr. Gelinas did not see his car and gave him the benefit of the doubt.

[49] Unfortunately, the driving conduct of Mr. Gelinas did not stop there. Mr. Miller described Mr. Gelinas deliberately driving slowly so as to not allow Mr. Miller to get past the tractor trailer. When both vehicles were finally past the tractor trailer and had moved into the centre lane, several car lengths ahead of the truck, Mr. Miller described the driver of the Yaris to aggressively slam on his brakes. This as at a point in time when Mr. Gelinas would have been aware Mr. Miller's car was behind his car having moved into the centre lane. This caused Mr. Miller to once again take evasive manoeuvres to avoid a collision either from the tractor trailer or the front of his car hitting the Yaris. Mr. Miller quickly changed lanes into the right lane and was now beside the Yaris.

[50] If Mr. Miller's evidence is believed, both the driver and passenger were laughing and the passenger was giving Mr. Miller the finger. In my view, if this evidence is believed it demonstrates the driver's subjective state of mind and leads to the reasonable and irresistible conclusion his previous driving actions had been deliberate. There had already been an instance of the Yaris cutting in front of Miller's vehicle, without signalling, after Mr. Miller had moved into the far left lane to pass the Yaris and the taxi cab. The second instance was when Mr. Miller was forced onto the shoulder when he was once again attempting to pass the Yaris and the tractor trailer. Mr. Miller testified it was the combination of all the driving behaviour of Mr. Gelinas that caused him to call 911 to advise the OPP about a driver he believed was driving in a manner dangerous to the public.

[51] The 911 tape was introduced in this trial by defence counsel in his cross-examination of Mr. Miller. The defence had not prepared a transcript of the 911 call, which created difficulties in hearing exactly what was said by Mr. Miller to the 911 operator. A transcript was ultimately provided, Exhibit 1A, and it has been of great assistance in making out the conversation between Mr. Miller and the 911 operator. In the 911 call, Mr. Miller described the driver of the Yaris trying to run him off the road, slamming on his brakes, and driving very aggressively. He described the driver of the Yaris changing lanes whenever Mr. Miller changed lanes to prevent Mr. Miller from getting past the Yaris. He described the Yaris straddling two lanes to prevent him from passing. He indicated the driver and passenger were both laughing at him and "showing the finger, like to egg him on." Mr. Miller described the Yaris coming over beside his vehicle to block him in. He described how there were trucks in the lanes. Later Mr. Miller described the Yaris weaving all over the road. Mr. Miller also described the Yaris driving at estimated speeds of 130, 135 and 140 km/hr. On the 911 call Mr. Miller described the driving behaviour of Mr. Gelinas as they were occurring in front of his car.

[52] The evidence of Mr. Miller in chief and cross, for the most part, is completely consistent with what he is described to the 911 operator. In my view it is relevant to my assessment of Mr. Miller's credibility and reliability to determine if there are glaring inconsistencies between what he is telling the 911 operator and what he told the police in his written statement and his testimony in court. In fact, the inconsistencies put forward by the defence between these three sources of evidence were, in fact, not inconsistencies at all. The contemporaneous descriptions indicated in the 911 call are consistent with what Mr. Miller wrote in his statement to the OPP. I was advised by Mr. Miller that he did not have the benefit of listening to the 911 call before he wrote his police statement. I accept his evidence on this. The observations described by Mr. Miller took place from Scarborough to Oshawa along the 401 Highway corridor and in my view, the defence was unable to demonstrate any inconsistencies between Mr. Miller's call to the 911 operator, his police statement or his evidence in court after the passage of a year.

[53] I find the evidence of Mr. Miller to be fair and balanced and provided in a straight-forward manner. At no time did he embellish his evidence, in fact, as I have indicated above, he gave the driver of the Yaris the benefit of the doubt respecting the first two driving actions, which, if they were performed deliberately with knowledge of where Mr. Miller's vehicle was, could only be viewed as a marked departure from the norm of a reasonable driver. Mr. Miller's evidence was consistent in chief and in cross. His description of his observations of the driving actions of the Yaris' driver, Mr. Gelinas, in my view, flowed logically.

[54] Mr. Gelinas' evidence, on the other hand, did not have many details respecting his interaction with Mr. Miller as he was driving eastbound on 401 Highway. He testified he became aware of Mr. Miller's car following him as his passenger told him Mr. Miller kept looking into their car and driving in Mr. Gelinas' blind spot. Yet Mr. Gelinas' continually indicated he did not recall what Mr. Miller's car was doing. Mr. Gelinas, in his testimony, really had no independent recollection of any specifics concerning his own driving behaviour, despite the fact he had been charged by the OPP with dangerous driving shortly after he had driven eastbound on 401 Highway from the DVP to Oshawa.

[55] Initially Mr. Gelinas testified no one made any gestures towards the other driver but later he indicated his partner was gesturing towards the other driver, as if to say, like, "Buddy what are you doing." According to Mr. Gelinas, his partner was waving his open palm towards the other driver. This is the only evidence Mr. Gelinas provides as to his knowledge of Mr. Miller, which he testified was as a result of his partner pointing out "why is this guy following us," otherwise he had no awareness of Mr. Miller's vehicle. He altered this evidence later, both in chief and in cross-examination that the other driver was coming up behind his car or driving beside him in his blind spot. At one point in his evidence he testified the other driver came close behind his car but later testified, in cross, the other car was always two car lengths behind his car.

[56] I find Mr. Gelinas was being conveniently vague in his evidence as to his interactions with Mr. Miller's vehicle. For the most part he testified he could not recall anything of any significance respecting his own driving or any specific interactions he had with Mr. Miller's car. He testified in cross-examination he did not recall any of his lane changes and had no specific memory of any of the things he did when driving. In my view Mr. Gelinas' evidence was simply a bare denial of every driver-action alleged and described by Mr. Miller that he had engaged in without providing any detail whatsoever.

[57] As indicated above, there were a number of occasions when Mr. Gelinas' answers in cross-examination were inconsistent with his answers in chief. Most notably, was his original position there "definitely" were no tractor trailers on the highway that early morning. In fact, it was his evidence there was no traffic on the highway as it was "dead." Yet his evidence changed later in cross-examination that there were no tractor trailers close to his car or the other car. He changed his evidence again saying he now could not recall if there were any tractor trailers on the highway.

[58] Another example of what I consider to be a serious inconsistency is his original position that no one in his car made any gestures towards the other driver, Mr. Miller. This evidence changed to his partner only making a gesture towards the other driver with an open palm but he maintained his partner did not give Mr. Miller the "finger." He testified he knew this because he could see his partner in his peripheral vision throughout his driving. Later in cross-examination he testified he knew his partner did not give Mr. Miller the finger because he asked him and his partner told him he did not. This evidence changed again later in his evidence where he testified his partner was "just pointing out" this other driver who kept looking into their car.

[59] In my view these two areas of inconsistency are significant given it is Mr. Gelinas' action of slamming on his brakes when he is in front of Mr. Miller's car after they both had just passed the tractor trailer, which caused Mr. Miller to take evasive action to avoid driving into the back of the Yaris or from being struck from behind by the tractor trailer. After this driving behaviour Mr. Miller described both of the occupants in the Yaris laughing at him and the passenger giving him the finger. I accept Mr. Miller's evidence that Mr. Gelinas slammed on his brakes for no apparent reason other than to cause Mr. Miller to abruptly change lanes to avoid a collision and that Mr. Gelinas and his passenger thought this was funny. In my view the laughter of Mr. Gelinas and his passenger towards Mr. Miller proves Mr. Gelinas' actions were deliberate. The passenger gave Mr. Miller the "finger," which in my view further demonstrated the deliberateness of Mr. Gelinas' driving behaviour.

[60] Another example where Mr. Gelinas' answers were inconsistent was when Mr. Gelinas testified he never saw Mr. Miller's car in his blind spot and was only aware of the car because his partner had pointed it out. Later in his evidence he testified he saw Mr. Miller's car beside his car in his blind spot and he also described Mr. Miller's car coming up behind him. It is significant Mr. Gelinas never testified Mr. Miller was tailgating him as suggested by his counsel in cross-examination to Mr. Miller. I find on the evidence Mr. Miller was not tailgating Mr. Gelinas' car. I accept Mr. Miller's evidence of the numerous occasions Mr. Gelinas was driving from the far left lane to the far right lane or straddling two lanes or boxing in Mr. Miller's car to prevent him from passing the Yaris.

[61] Mr. Gelinas' the explanation, which was volunteered by him completely unsolicited, for why Mr. Miller would describe bad or dangerous driving behaviour on Mr. Gelinas' part was "he (referring to Mr. Miller) made it up" and Mr. Gelinas "believed it was an ego thing." It is my view this does not, on the evidence, accord with common sense or logic. Mr. Miller initially gave Mr. Gelinas the benefit of the doubt, however, as a result of his further observations of Mr. Gelinas and his passenger laughing at him, the passenger giving him the finger and the additional driving behaviour of Mr. Gelinas, Mr. Miller called 911 because of his concerns respecting Mr. Gelinas' driving. I accept Mr. Miller's evidence as to why he called 911.

[62] Further, Mr. Miller described a number of his observations to the 911 operator as they were occurring. Mr. Miller was on his way home from working as a police officer in Toronto. He agreed to drive past his exit at Westney Road in Ajax so that the OPP officer responding to the call would know the car and driver the complaint was being made against. In my view Mr. Gelinas' explanation is without foundation and is incredible. It does not accord with common sense for Mr. Miller to make up a story about another driver's driving behaviour in all the circumstances of this case.

[63] A further consideration in assessing Mr. Gelinas' reliability and credibility is his evidence respecting the construction work that existed on Highway 401. He testified he had no recollection of any extensive construction work being done on Highway 401 from just before Lakeridge Road and continuing to Brock Street (Highway 12) in Whitby. It is my view this construction was notorious in Durham Region because of the extensive delays in traffic flow it created and the great number of motor vehicle accidents that occurred during the more than a year it took to be completed. I believe this construction is so notorious that I can take judicial notice of its existence during the time this charge arose.

[64] Finally, Mr. Gelinas' evidence in chief of what he thought when he saw the OPP officer waiting on the off-ramp for Simcoe Street in Oshawa is particularly revealing in assessing whether Mr. Gelinas was aware he was driving his motor vehicle in a manner dangerous to the public. He testified he "assumed he (Mr. Miller) had called it in." In my view this evidence from Mr. Gelinas demonstrates he knew his driving behaviour in relation to Mr. Miller created a risk and was of such a dangerous nature that another driver would call 911 to report his conduct. This is exactly what occurred.

[65] I do not accept Mr. Gelinas' evidence respecting his manner of driving, for the reasons indicated above. Further his evidence does not raise a reasonable doubt as to whether he was driving in a manner dangerous to the public and it does not raise a reasonable doubt as to whether he was aware of the risk of danger created by his driving behaviour. As I indicated above, I find Mr. Miller's evidence to be credible and reliable and I am satisfied, based on his evidence that Mr. Gelinas drove in a manner dangerous to the public having regard to all of the circumstances of this case. I find Mr. Gelinas' driving behaviour was a marked and substantial departure from how a reasonable person would drive in like circumstances. There is no doubt Mr. Gelinas drove in a manner that created risk of damage or injury to the public. I find the Crown has proved the actus reus beyond a reasonable doubt.

[66] Respecting the mens rea, I find the Crown has proven beyond a reasonable doubt that Mr. Gelinas' had the necessary mental element for dangerous driving. I accept Mr. Miller's evidence that Mr. Gelinas slammed on his brakes, for no apparent reason, thus creating a serious risk of danger to Mr. Miller had he not taken evasive action. Further, I accept Mr. Miller's evidence when he looked into the Yaris he observed Mr. Gelinas and his passenger laughing at him and the passenger giving Mr. Miller the finger. I find these actions demonstrate that Mr. Gelinas deliberately drove in a manner that was dangerous having regard to all the circumstances, which in my view proves Mr. Gelinas had the necessary subjective mens rea. I also find that Mr. Gelinas' driving behaviour was a marked departure from the standard expected of a reasonable person in the same circumstances. I have no doubt that a "reasonable person in the position of [Mr. Gelinas] would have been aware of the risk posed by the manner of driving and would not have undertaken the activity." I make this finding in respect to all of the driving behaviour exhibited by Mr. Gelinas toward Mr. Miller from Scarborough to Oshawa. As a result, there will be a conviction registered on the charge of dangerous driving.

Released: May 11, 2017

Signed: Justice Peter C. West