Court Information
Court File No.: Brampton 15-6800 Date: November 30, 2017 Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Baapushan Thevathasan and Vidhura Thangavelu
Before: Justice I. Jaffe
Heard on: September 18, 19, 20, 21, 22, 25 and 26, 2017
Ruling released on: November 30, 2017
Counsel
M. Thomaidis — counsel for the Crown
A. Gerges — counsel for the defendant Baapushan Thevathasan
H. Kalina — counsel for the defendant Vidhura Thangavelu
Endorsement
Introduction
[1] Baapushan Thevathasan and Vidhura Thangavelu are jointly charged with dangerous driving causing bodily harm. The offence allegedly occurred on May 11, 2015, when the accused, driving separate vehicles, engaged in a street race that resulted in Mr. Thevathasan losing control and colliding with Ms. Huma Khan's Honda Civic. Ms. Khan suffered significant injuries as a result of the crash.
[2] That Mr. Thevathasan was driving a black Mercedes SUV on May 11, 2015 is not in issue, nor is the fact that Ms. Khan's injuries were directly caused by the collision with Mr. Thevathasan's SUV. Rather the issues in this case are whether, in the moments before the collision, Mr. Thevathasan and Mr. Thangavelu were each driving dangerously, and if so, whether Mr. Thangavelu's manner of driving was a significant cause of Ms. Khan's bodily harm, despite the fact his car was not physically involved in the collision.
[3] The Crown argued that the accused were engaged in an inherently dangerous activity of street racing, and that Mr. Thevathasan's loss of control was as a result of that competition. As such, both Mr. Thevathasan and Mr. Thangavelu are responsible for Ms. Khan's injuries. The accused argued that there is no reliable evidence of street racing and speed alone in this case cannot sustain a finding of dangerous driving.
Setting the Scene
[4] Mr. Thangavelu and Mr. Thevathasan are friends and on May 11th, 2015, had been playing basketball near Square One Mall in Mississauga with some other friends. After playing basketball, they decided to meet up at a friend's house, and leaving in separate cars, they travelled along Eglinton Avenue, and turned north on Mavis Road. Mr. Thevathasan drove his black Mercedes SUV with three passengers. Mr. Thangavelu is alleged to have driven his Audi alone. It is in the distance between Eglinton and Bristol roads that it is alleged the two men raced each other — an activity which ultimately led to the collision.
[5] The collision between Mr. Thevathasan's SUV and Ms. Khan's Civic occurred in the evening of May 11, 2015 in the northeast corner of the intersection of Mavis and Bristol roads in Mississauga. Mr. Thevathasan had been travelling northbound on Mavis and Ms. Khan had been travelling west along Bristol. At the time of the collision, Ms. Khan was stopped, waiting at a light in a westbound lane of Bristol.
[6] Mavis Road runs north and south with three lanes in each direction and dedicated left turn lanes. Mavis passes through a mix of commercial and residential neighbourhoods, and the speed limit is 70 kilometers per hour. The distance between Eglinton Avenue (where the accused turned onto Mavis) and the intersection of Mavis and Bristol (i.e. the scene of the collision), is approximately one kilometer.
The Evidence
[7] In proof of its case, the Crown called twelve witnesses, most of whom were civilians driving in the vicinity at the time of the collision. Two witnesses, Lorenzo Durante and his passenger Patrick Gaughan, were driving north on Mavis and described having seen the black Mercedes speed past on the right side of their vehicle followed closely by an Audi. Both described how the Mercedes was out in front of the Audi and was manoeuvring through traffic. Both men testified that they only observed the speeding cars for a matter of seconds before losing sight of them around a slight bend in the road. Mr. Gaughan estimated that they lost sight of the cars about 25 seconds before arriving at the intersection of Mavis and Bristol.
[8] Sandeep Luthra and his wife Monica Luthra were also travelling north on Mavis ahead of Mr. Durante. The Luthras both described how a SUV passed on their left and then moved immediately across them to the right. Approximately 15 seconds later, they arrived at the intersection of Mavis and Bristol, and observed that the same SUV had been involved in a collision. Mr. Luthra estimated that the SUV veered onto Bristol approximately 100 to 120 meters from the intersection. Ms. Luthra recalled that at that point, it started raining.
[9] Ms. Luthra recalled that the traffic light for Mavis at the Bristol intersection was green, and that there was a car turning left from Mavis onto Bristol. In cross-examination, Ms. Luthra acknowledged that she did not know if the left turning car had advanced into the intersection and explained that she only saw it standing there. Mr. Luthra however, testified that the left-turning car had advanced forward about two to three feet into the intersection. Mr. Luthra believed that had the Mercedes continued straight, along the lane in which it was driving, it would have hit the left-turning car.
[10] Aldo Abitrante was driving south on Mavis and was immediately behind the left-turning car. Mr. Abitrante testified that the car ahead of him had advanced into the intersection a little bit and had stopped because it did not make the green light. It was while waiting behind that car that Mr. Abitrante observed a northbound vehicle "come out of nowhere", swerve and hit a Honda. Mr. Abitrante estimated the vehicle which swerved, was travelling at approximately 120 kilometers per hour.
[11] Mr. Abitrante disagreed with the suggestion in cross-examination that the car ahead of him had completed its left turn, maintaining that it had stopped because the traffic light had turned red. When asked if his view of oncoming traffic was obstructed by the car ahead of him, Mr. Abitrante insisted that his view of the Mercedes was unimpeded.
[12] Emedet Endalew and Emile Abi-Ghanem were two other independent witnesses driving separate vehicles. They had both been travelling west on Bristol and had been stopped at the lights at the intersection of Mavis and Bristol roads when the collision occurred. Ms. Endalew testified that she was in the middle lane with two cars ahead of her. She recalled that the traffic lights were red for the traffic on Mavis, and her light had just turned green when the Mercedes, travelling fast and coming from Mavis, hit the "silver car". She described how even after hitting the silver car, the Mercedes continued to move and hit the "big box" that controls the lights.
[13] Mr. Abi-Ghanem was waiting in the left turn lane on Bristol with his head down, when he heard tires screeching. Mr. Abi-Ghanem looked up and observed a black SUV northbound on Mavis hop the curb ahead of him. He felt the SUV skim his car and heard a loud bang. Believing the SUV had hit his car, he exited his car in a state of shock, and realized that the SUV had hit the car next to him.
[14] Two of Mr. Thevathasan's passengers testified. Mr. Abilaash Nantheeswaran was called by the Crown, and Vasekan Xavier was called by Mr. Thangavelu. The evidence of both men will be addressed later in these reasons.
[15] In addition to the civilians, the Crown called two police officers, both of whom are members of the Peel Regional Police Service. P.C. Blackburn testified that at approximately 11:09 p.m. on the night of the collision, he arrested Mr. Thangavelu on a charge of criminal negligence causing bodily harm. P.C. Blackburn provided Mr. Thangavelu with his rights to counsel, after which Mr. Thangavelu made the following remarks:
Sir, I was on Mavis at Eglinton. We took off from the stop line at first, but Babu was driving way too fast I didn't even want to follow him. We had a big gap between us. Babu was driving so fast that I lost him. My conscious is clear. I don't want to talk to a lawyer. I want to talk to a lawyer and tell him what happened.
[16] P.C. Blackburn testified that he wrote down Mr. Thangavelu's remarks verbatim as he was speaking. The voluntariness of Mr. Thangavelu's post-arrest utterances has been conceded, and both the Crown and defence rely on portions of the statement to support their arguments.
[17] P.C. Mladen, a 35-year veteran PRPS, was qualified to provide expert opinion evidence on the topic of motor vehicle collision reconstruction. The officer's qualifications were admitted by both defence counsel, and were borne out by his curriculum vitae.
[18] P.C. Mladen described the capabilities of a vehicle's 'black box' and explained that they can provide valuable information about such things as the vehicle's speed, seat belt assembly, braking and turning. Unfortunately, for reasons related to the manufacturers of the vehicles, none of this data was available to investigators in this case.
[19] Based on his observations of the scene, it was P.C. Mladen's opinion that the Mercedes had been travelling northbound on Mavis, went right, travelled over the center median on Bristol and past Mr. Abi-Ghanem's vehicle, causing scratches to its front bumper. The Mercedes then hit the driver's side of the Ms. Khan's Honda Civic — which at the time was headed in a westbound direction — and caused the Honda to turn counter clockwise 180 degrees. The Honda came to rest facing east. The Mercedes' forward momentum continued northbound where it went onto the grass, and struck a utility box.
[20] While P.C. Mladen could not estimate the exact speed of the Mercedes at the time of the collision, it was his opinion that it was travelling faster than the posted speed limit of 70 kilometres per hour. The officer's opinion was based on the damage profile of the Honda. Specifically, he noted that the impact to the side of the Honda, caused the "B pillar" — the pillar which separates the front and back cabins of the car — to bend. As well, the impact to the side of the Honda, caused its roof to deform and its windows to shatter.
[21] The officer's opinion concerning the speed of the Mercedes was also based on the fact that after hitting the Honda, the Mercedes' forward momentum continued with such force as to knock over the utility box. He explained that while these boxes frequently get struck at intersections, they rarely get knocked over.
[22] When asked in cross-examination where he believed the Honda was situated at the time of impact, P.C. Mladen explained that he believed it had been stopped in the through lane of Bristol behind the white stop line. The officer also acknowledged that he could not determine whether the Mercedes had been braking at the time of the collision, and while he can conclude the Mercedes was travelling in excess of the speed limit, he could not say whether it was 10 or 20 kilometres per hour in excess.
The Driver of the Honda
[23] Huma Khan, the driver of the Honda Civic hit by the Mercedes, also testified. It is clear that Ms. Khan has no memory of the collision, nor of the moments leading up to it. As a result of her injuries, Ms. Khan was hospitalized for two months at two separate hospitals, and spent a third month at a rehabilitation facility. Ms. Khan's impaired mobility resulted in her family's need to sell their home, and purchase a new home with no stairs. Ms. Khan clearly suffered extensive injuries in the collision, and both defence counsel fairly concede that the Crown has proven beyond a reasonable doubt, the bodily harm element to the offence charged.
Dangerous Driving
Legal Principles
[24] Section 249 of the Criminal Code is the section under which both accused have been charged. The relevant subsections provide as follows:
1(a) Every one commits an offence who operates a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.
(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Actus Reus
[25] The actus reus of the offence is lifted straight from the wording of s. 249(1) and is established with proof that the accused was driving in a manner that was "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": R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28.
[26] In determining whether the actus reus has been proven, the focus must remain on the manner of driving, not its consequences: Beatty, at para. 46. While the consequences, say for instance a collision with a pedestrian, may provide insight into the risks associated with the accused's driving, they do not determine whether the driving was dangerous.
Mens Rea
[27] The mens rea requires proof that the accused's conduct amounted to a marked departure from the standard of care that a reasonable person would observe in his circumstances. In Beatty, at para. 7, Charron J. writing for the majority of the Court emphasized the importance of distinguishing between the standards for civil and criminal liability. Whereas a departure from the standard of care expected of a reasonably prudent driver may be sufficient to ground a finding of civil liability, in the criminal context, the Crown must establish that the accused's driving was a marked departure from the norm: Also Roy, at para. 28.
[28] Departures from the standard of care of the reasonably prudent person are to be expected given the "automatic and reflexive" nature of driving: Beatty, at para. 34. Momentary lapses of attention occur, and even ones that result in a risk to others (such as in Beatty and Roy), should not automatically lead to criminal sanctions: Beatty, para. 34; Roy, at para. 37.
[29] The moral blameworthiness of a driver whose otherwise proper driving is punctuated by a moment of inattention, is different from the blameworthiness of the driver who deliberately conducts him or herself in a manner that markedly departs from the norm. The indelible branding of criminalization, and its associated penal consequences, can only be justified by an objective standard which requires the Crown to establish a marked departure from the norm.
[30] In Roy, at para. 36, the Court suggested that the following two questions be asked in determining whether the mens rea requirement has been met:
The first is whether, in light of all 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.
[31] While evidence concerning the accused's subjective state of mind (e.g. Proof that the accused expressed an intention drive dangerously), would undoubtedly assist the Crown in establishing the mens rea, it is not necessary. A finding that the driving constituted an objectively marked departure from the normal standard of care, imports with it the presumption that the driver possessed sufficient mens rea, together with the presumption that a reasonable person in the position of the accused would have been aware of the risks created by the manner of driving: Beatty, at para. 37.
[32] However, a purely objective test which did not allow an accused to raise reasonable doubt concerning his or her actual state of mind, would be incompatible with criminal law. Accordingly, the objective test applied to a dangerous driving offence has been modified to accommodate evidence of the accused's actual state of mind which may raise a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by his driving: Beatty, at para. 37.
[33] Additionally, an honest and reasonably held belief will afford a defence to the charge of dangerous driving, where, according to the accused's reasonable perception of the facts, his or driving was consistent with the normal standard of care: Beatty, at para. 38.
[34] Finally, the driving in question need not have persisted for proscribed period of time to constitute a "marked departure". Driving that lasts only seconds can be a "marked departure". However, where the driving is otherwise proper in every respect, a fleeting instance where it markedly departs from the norm, is more suggestive of civil negligence, than criminal: Beatty, at para. 48; R. v. Willock, 210 C.C.C. (3d) 60, at para. 31.
Street Racing
[35] Street racing does not adhere to a standard template. It can take many different forms, and neither a pre-arrangement nor a minimum duration is required to characterize high speed, in tandem driving, a race: R. v. Menezes, [2002] O.J. No. 551, at para. 83. Regardless of its form, all street races have one thing in common — they are all dangerous. Any form of street racing carries with it a predictable, and significant risk to the public. In Menezes, at para. 84, Hill J. outlines some of the risks inherent in street racing:
…In-tandem travel on the streets at speeds well above the posted limit, especially at night, as one can easily imagine, increases the prospects of split-second misjudgment, misreaction, and miscalculation by the participants as to steering, braking, and safe curve speed and time-distance estimates — these are motorists, not professional racecar drivers, unlawfully using normal thoroughfares for purposes entirely at odds with safe passage.
The Arguments
[36] The Crown argued that Mr. Thevathasan and Mr. Thangavelu were involved in the enterprise of racing from Eglinton to Bristol. A pillar of the Crown's street racing theory is found in the evidence of Mr. Durante and Mr. Gaughan. According to Mr. Durante and Mr. Gaughan, shortly after turning onto to Mavis from Eglinton, Mr. Thevathasan raced past them. An Audi alleged to be Mr. Thangavelu's, followed closely behind and similarly sped past the two witnesses. The two speeding vehicles were less than a car's length apart and the Audi followed.
[37] The Crown characterizes Mr. Gaughan as the most reliable witness who gave unshaken evidence concerning distance and speed. Mr. Gaughan estimated that he observed the speeding vehicles for approximately ten seconds, and they were approximately 25 seconds from the intersection (i.e. the crash site). In other words, 25 seconds before the crash, according to the reliable evidence of Mr. Gaughan, the two accused appeared to be racing. The Crown argues that even if Mr. Thangavelu was not intent on passing Mr. Thevathasan, the manner of his driving (i.e. driving right behind him), served to incite Mr. Thevathasan, causing Mr. Thevathasan to drive even faster.
[38] Mr. Nantheeswaran's evidence also supports the Crown's theory of racing. Mr. Nantheeswaran (an occupant in Mr. Thevathasan's Mercedes), testified that for a brief period of time as they were driving along Mavis (perhaps for five seconds), the two accused were driving side by side at a high rate of speed and that at one point, Mr. Thevathasan passed Mr. Thangavelu.
[39] As against Mr. Thangavelu only, the Crown also relies on his police statement. The Crown argues that Mr. Thangavelu's reference to having "taken off from the stop line" is unambiguous when considered in the context of the other evidence. This statement provides insight into Mr. Thangavelu's mind, and supports an inference that he believed he was in a race.
[40] The Crown argues that even if the Court has not been persuaded that the accused were street racing, the manner of driving by both accused was nonetheless in marked departure from the normal standard of care. They were both travelling at speeds in excess of the speed limit. In fact, Mr. Thevathasan approached the unblocked intersection of Mavis and Bristol at such a high rate of speed, that his ability to react was compromised.
[41] However, the Crown's case does not rest solely on excessive speed. The Crown also relies on the fact that the driving in this case, occurred in a mixed residential area, not a highway. Moreover, the accused were not simply speeding in one straight lane, but rather they made a lane change as they were speeding up Mavis, Mr. Thevathasan making more than one.
[42] For Mr. Thangavelu, Mr. Kalina filed written submissions and made oral submissions in reply. Mr. Kalina argues the evidence concerning Mr. Thangavelu's driving is unreliable. He argues that neither Mr. Durante nor Mr. Gaughan actually identified the driver of the Audi which they each claim to have seen speeding past them. Moreover, none of the other witnesses observed the Audi at all. Taken together, the witness' evidence does not prove unequivocally that there were two vehicles speeding in tandem, let alone that one of them was Mr. Thangavelu.
[43] Mr. Kalina also argues that Mr. Thangavelu's police statement does not assist in proving the charge against him because the Crown is imputing a meaning to Mr. Thangavelu's comments which is not supported by the evidence.
[44] On behalf of Mr. Thevathasan, Mr. Gerges argues that the trial evidence fails to establish a driving pattern which is in marked departure from the norm. Mr. Gerges argues that the evidence of the various civilian witnesses are inconsistent on every issue, such as speed estimates, colour of traffic lights, locations at which they observed the Mercedes and the Audi, the weather conditions and the time of day. Moreover, while it appears Mr. Thevathasan was speeding, the evidence does not prove by how much his speed exceeded the limit.
[45] Mr. Gerges points to Mr. Luthra's evidence that the left turning car on the other side of the intersection was obstructing Mr. Thevathasan's lane. Mr. Gerges argues that Mr. Thevathasan successfully took evasive action to avoid hitting the left turning car but that in so doing, he lost control. Mr. Gerges submits that there is no evidence to suggest that Mr. Thevathasan would have avoided the consequences had he been driving slower.
[46] The evidence of Mr. Abitrante, who was immediately behind the left turning car, should be discounted as Mr. Abitrante was clearly guessing. Mr. Gerges submits that Mr. Abitrante's account of events, including his evidence concerning the colour of the lights, was speculative, uncertain and unreliable.
[47] Mr. Gerges argues that aside from the speeding, Mr. Thevathasan was driving in a responsible manner. He was not straddling lanes, swerving or tailgating. The evidence does not provide a foundation upon which a finding of dangerous driving can be safely made.
Assessment of the Evidence
[48] Evidence inconsistent with the guilt of the accused is found in the testimony of Mr. Nantheeswaran and Mr. Xavier, and in Mr. Thangavelu's police statement. Accordingly, my consideration of the evidence must be guided by the principles set out in R. v. W.(D.), [1991] 1 SCR 742. In other words, if I believe the exculpatory evidence relating to an accused, I must find him not guilty. Even if I do not believe the evidence, but I am nonetheless left in a reasonable doubt, I must acquit. Third, even if not left in doubt by the exculpatory evidence, I must ask whether on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by the evidence of the guilt of each accused.
[49] I will start with an assessment of the Crown's civilian witnesses. I agree that there are inconsistencies between the witness' accounts on issues such as the time of day the collision occurred, the speed of the accused's vehicles, the road conditions and weather. However in my view, these inconsistencies are minor and are reasonably explained by different perspectives and quickly evolving events.
[50] None of the inconsistencies caused me to doubt the reliability of the witnesses' evidence on material issues such as the fact that the accused were traveling in excess of the speed limit, and with respect to the evidence of Mr. Gaughan and Mr. Durante, that the Audi and Mercedes were travelling fast, and in close proximity to each other.
[51] Both Mr. Durante and his passenger Mr. Gaughan, testified that they saw the Mercedes and Audi speed past them on Mavis, with the Mercedes ahead of the Audi. To both men, it appeared that the speeding cars were accelerating, and when they lost sight of the speeding cars, they were in the farthest right lane of Mavis. To Mr. Durante, it appeared as though the Mercedes was in the middle lane and cut in front of the Audi, which was travelling in the right lane. To Mr. Gaughan, it appeared that both cars were in the middle lane, and both changed into the farthest right lane. In my view, the discrepancy concerning the lane in which the Audi was momentarily travelling is insignificant.
[52] Both men testified that the cars were speeding. Mr. Gaughan estimated they were travelling between 130-150 kilometres per hour, and Mr. Durante estimated their speeds at 150-160 kilometres per hour. Variations in speed estimates are to be expected and rather than diminishing the reliability of their accounts, these variations suggest to me that Mr. Gaughan and Mr. Durante have not tailored their evidence to match each other's accounts.
[53] In response to Mr. Kalina's argument concerning the identity of the Audi's driver, though neither witness saw the driver of the Audi as it sped past, I have no doubt it was Mr. Thangavelu. At the time the two witnesses made their observations, neither witness could have known that two close friends, one driving a Mercedes and one driving an Audi, had just been together playing basketball and were on their way up Mavis together, to meet up at another location. And according to Mr. Nantheeswaran, around the area that Mr. Gaughan and Mr. Durante made their observations, Mr. Thangavelu's Audi and Mr. Thevathasan's Mercedes were travelling in tandem. There can be no other reasonable explanation than that the speeding cars observed by Mr. Gaughan and Mr. Durante were being driven by the accused in this case.
[54] Similarly, the inconsistencies in the evidence of Luthras were minor and nothing in the content of their evidence, nor manner by which they gave it, led me to doubt its reliability. Moreover, their observations of a speeding Mercedes on Mavis, is not only consistent with the observations which Mr. Gaughan and Mr. Durante had made seconds before, but also with the observations of the other witnesses who had been waiting at the lights at Mavis and Bristol.
[55] Additionally, Mr. Luthra's evidence concerning the position of the southbound "left turning" car, was consistent with the evidence of Mr. Abitrante's. Both Mr. Abitrante and Mr. Luthra insisted that while the left turning car had proceeded into the intersection, it neither fully blocked the intersection, nor completed its turn. Mr. Abitrante and Mr. Luthra were strangers, driving cars on the opposite side of the intersection. The consistency in their accounts concerning the movement of the Mercedes and the position of the left turning car, adds a measure of reliability to each account.
[56] In my view, all of the Crown's civilian witnesses were doing their best to give accurate evidence to the Court. Despite some uncertainties and variations within their accounts, their evidence provides reliable snapshots of the events leading up to the collision.
[57] There is no apparent motive on the part of any of the Crown's civilian witnesses to embellish or fabricate evidence inculpating either accused. In finding this, I am aware of the distinction between the absence of a demonstrated motive to fabricate, and affirmative proof of no motive. R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 107; R. v. L.(L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Accordingly, the absence of a motive to fabricate in this case, is not determinative of the witness' credibility, but is simply one factor amongst others which I have taken into consideration.
[58] The same cannot be said for Mr. Nantheeswaran and Mr. Xavier, both of whom were passengers in Mr. Thevathasan's vehicle, and close friends of both accused. It was apparent to me that in court, both witnesses attempted to minimize the culpability of their friends. For instance, until the Crown was permitted to cross-examine Mr. Nantheeswaran on his police statement,[1] Mr. Nantheeswaran insisted that as he was travelling up Mavis in Mr. Thevathasan's Mercedes, he was looking down at his phone and paid little attention to anything else. He also denied that Mr. Thevathasan was speeding.
[59] When cross-examined on his statement however, his evidence changed dramatically, especially concerning observations he made of Mr. Thangavelu's Audi, which he then admitted he observed speeding next to the Mercedes. Mr. Nantheeswaran's attempt to minimize his friends' liability is also apparent in his speed estimates. Mr. Nantheeswaran estimated that Mr. Thevathasan was travelling approximately 90 kilometres per hour the entire time. Mr. Nantheeswaran admitted that at the collision scene, he offered P.C. Wilson an estimate of 130 to 140 kilometres per hour. Subsequently, and without prompting by the police, Mr. Nantheeswaran increased his estimate to 160-170 kilometres per hour. Mr. Nantheeswaran explained in court that he continued to upwardly alter his speed estimates in an effort to satisfy the police. This explanation does not ring true to me.
[60] While I have not considered Mr. Nantheeswaran's higher speed estimates as evidence in this case, (he did not adopt them in cross-examination), I doubt his credibility on the issue of speed. I do however accept his evidence that the accused were travelling "fast" side-by-side for a brief time on Mavis, and that Mr. Thevathasan accelerated sufficiently to pass Mr. Thangavelu.
[61] Mr. Xavier was similarly attempting to mitigate the situation for his close friends. In court, Mr. Xavier posited that in an attempt to avoid colliding into a car turning left in the intersection, Mr. Thevathasan applied the brakes and turned to the right. The roads, wet from the heavy rain, caused Mr. Thevathasan to lose control of his car. I have two problems with Mr. Xavier's evidence. First, to the extent Mr. Xavier was attempting to testify about Mr. Thevathasan's intentions and state of mind at the time of the collision, his evidence is of no weight.
[62] Secondly, I question Mr. Xavier's credibility on the issue of the wet road conditions. In cross-examination by Mr. Thevathasan's lawyer, Mr. Xavier testified that it rained heavily prior to the collision causing the roads to quickly become wet. However, in cross-examination by the Crown, Mr. Xavier admitted that his window was open at the time of the collision making it less likely that it had been raining. Most of the civilian witnesses testified that that the roads were dry when the collision occurred, but that it started to rain immediately afterwards. Mr. Xavier's initial testimony that it had been raining heavily at the time of the collision, struck me as an attempt to excuse or explain his friend's loss of control.
[63] I do however, accept Mr. Xavier's evidence that when they turned onto Mavis from Eglinton, Mr. Thevathasan and Mr. Thangavelu were close to each other. Mr. Thevathasan then "passed" Mr. Thangavelu travelling at estimated speeds between 95 km to 110 kilometres per hour. Mr. Xavier's description of the Mercedes "passing" the Audi shortly after turning onto Mavis, accords with the evidence of Mr. Durante and Mr. Gaughan who, just around that point, saw the Mercedes accelerate past the Audi.
[64] I do not believe the exculpatory evidence given by Mr. Nantheeswaran or Mr. Xavier, which I believe was manufactured to assist their friends, nor does the evidence raise a reasonable doubt. I will address the exculpatory evidence found in Mr. Thangavelu's police statement later. I must now determine whether on the basis of the evidence I do accept, the Crown has proven the guilt of each accused beyond a reasonable doubt.
Was each accused driving dangerously?
[65] I find that on May 11, 2015 just prior to the collision, Mr. Thangavelu and Mr. Thevathasan were street racing on Mavis Road. The below evidence supports this conclusion:
The evidence of Mr. Nantheeswaran that the accused were travelling "fast" side-by-side for a brief time on Mavis, and that Mr. Thevathasan accelerated sufficiently to pass Mr. Thangavelu;
The evidence of Mr. Xavier that when they turned onto Mavis from Eglinton, Mr. Thevathasan and Mr. Thangavelu were close to each other. Mr. Thevathasan then "passed" Mr. Thangavelu travelling at estimated speeds between 95 to 110 kilometres per hour;
The evidence of Mr. Durante and Mr. Gaughan that the Mercedes and Audi sped past them on the left at speeds somewhere between 130-160 kilometres per hour, and the Mercedes accelerated ahead of the Audi.
The evidence of the Luthra's that the black Mercedes sped past them as they were approaching the intersection of Mavis and Bristol.
[66] As against Mr. Thangavelu only, I have also taken into consideration his statement to P.C. Blackburn that he and Mr. Thevathasan "took off from the start line" at Mavis and Eglinton. Considered in the context of all the other evidence, the only reasonable interpretation to be given to Mr. Thangavelu's comments, is that he believed he was in a race with Mr. Thevathasan.
[67] Mr. Thangavelu's and Mr. Thevathasan's deliberate act of racing each other along Mavis Road, exposed other drivers and pedestrians to predictable and significant risks of injury or death.
[68] Unlike in R. v. Adams, [2015] O.J. No. 6446 (C.J.) and R. v. Cagliuzun, [2007] O.J. No. 703 (C.J.), (i.e. two cases relied upon by counsel for Mr. Thevathasan), the accused in this case were speeding in a mixed commercial residential area not a highway. And unlike those two cases, there was other vehicular traffic on Mavis around which the accused had to navigate.
[69] While I agree with defence counsel that there is no evidence of either accused straddling lanes or tailgating, I do find that between Eglinton and Bristol roads, Mr. Thevathasan made no fewer than three high speed lane changes prior to veering to the right across Mavis and into Ms. Khan's vehicle.
[70] Whether or not Mr. Thevathasan swerved to avoid the left turning car in the southbound lane of Mavis, or whether he was trying to make the light, it is clear that he was driving too fast to safely operate his vehicle. I have considered the consequences of the collision only in so far as it demonstrates that notwithstanding Mr. Thevathasan collided with Ms. Khan's vehicle with enough force to spin it around, he continued with sufficient forward momentum to hit a concrete base, knocking over a utility box. These movements, together with the extent of damage to Ms. Khan's car, helped inform P.C. Mladen's expert opinion that Mr. Thevathasan was driving over the speed limit — an opinion supported by the observations of the civilian witnesses.
[71] Below is a chart setting out the speed estimates of the civilian witnesses which, in my view, support a finding that Mr. Thevathasan's speed along Mavis Road significantly exceeded the 70 kilometers per hour limit.
| Witness | Speed Estimate |
|---|---|
| Lorenzo Durante | 150-160 |
| Patrick Gaughan | 130-150 "at least 130" |
| Monica Luthra | 85-90 "very fast" |
| Sandeep Luthra | 90-100 |
| Aldo Abitrante | 120 |
| Emedet Endalew | "high speed" fast |
| Emile Abi-Ghanem | "high speed" |
[72] Based on the evidence of Mr. Durante and Mr. Gaughan, I find that for at least a portion of the time during which Mr. Thevathasan was speeding up Mavis, Mr. Thangavelu was travelling at, or slightly below, the same speed. The portions of Mr. Xavier's and Mr. Nantheeswaran's evidence which I do accept, also support this conclusion.
[73] In racing up Mavis, albeit for a brief period of time, both accused drove in a manner that was dangerous to the public having regard to all the circumstances, including the fact that the driving occurred in a mixed residential/commercial area, with other traffic on the road and the potential for pedestrians. The Crown has proven the actus reus of the offence as against both accused.
[74] The actions of both accused as they turned from Eglinton onto Mavis, created predictable and significant risks to the public, which a reasonable person would have foreseen. The failure of both men to foresee those risks, and take action to avoid them, constituted marked departures from the standard of care expected of a reasonable person in their circumstances. The Crown has proven the mens rea against both accused.
Causation
[75] In this case, the dangerous driving is alleged to have caused bodily harm to Ms. Khan, and therefore both factual and legal causation must be proven by the Crown. In determining factual causation, the question is whether the accused's act or omission (in this case driving), significantly contributed to the bodily harm: R. v. Kippax, 2011 ONCA 766, [2011] O.J. No. 5494, at para. 24, leave to appeal refused [2012] S.C.C.A. No. 92.
[76] Factual causation is easily established when as here, an accused person's vehicle crashed directly into another vehicle, causing significant injury to its occupant. However, factual causation does not depend on a finding that the accused was behind the wheel of the car that was physically involved in the collision. For instance where two drivers are found to have engaged in street racing, they may, depending on the circumstances, both be criminally liable for the injury directly caused by one of the drivers: R. v. Rotundo, (1993) 47 M.V.R. (2d) 90 (Ont. C.A.), at para. 2; R. v. Alli, 2012 ONCJ 49, at para. 72; Menezes, at para. 102.
[77] Evidence that a street racer quit the race before the collision may break the chain of causation. However, a driver's unilateral decision to end a race, does not end the causation inquiry. The extent to which a driver's withdrawal from the race will impact on causation, will depend on the particular circumstances of each case.
[78] In Menezes, the evidence that the accused had slowed down approximately 800 meters prior to his co-racer's fatal loss of control, raised a reasonable doubt concerning causation. Finding it reasonable to assume that co-participants in a race keep an eye on each other, Hill J. concluded at para. 125, that Mr. Menezes' withdrawal from the race amounted to a "sufficiently dramatic lack of commitment to keeping pace" for it to have been communicated to his deceased co-racer. Once he became aware of the accused's withdrawal from the race, the deceased's decision to continue speeding, and the consequences which directly flowed from that decision, were his (the deceased's) alone.
[79] In R. v. O'Leary, 2017 ONCA 71, 36 C.R. (7th) 80, a unanimous Court of Appeal came to a different conclusion. The Court upheld the trial judge's finding that the appellant's decision to slow down at a dangerous curve in the road moments before his co-racer collided with another vehicle, did not absolve him of criminal liability for the injury and death which resulted in his co-racer's fatal collision.
[80] Distinct from factual causation, is legal causation which is focused on whether an accused person should be held criminally responsible for the harm: Kippax, at para. 25; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 45. In R. v. Shilon, 240 C.C.C. (3d) 401, at para. 38, the Court confirmed that legal causation will be met where an accused's inherently dangerous conduct carried with it a reasonably foreseeable risk of immediate and substantial harm.
[81] Dangerous driving having been proven in this case, the question to be asked in assessing legal causation is whether in the circumstances, a reasonable person would have realized that their dangerous driving subjected another person to the risk of bodily harm: R. v. DeSousa, [1992] 2 S.C.R. 944, at para. 28.
Arguments
[82] On the issue of causation, the Crown argues that it has been easily proven as against Mr. Thevathasan. With respect to Mr. Thangavelu, it relies on the argument that co-street racers are equally liable for the harm caused by one driver. And even assuming Mr. Thangavelu may have pulled out of the race moments before the collision, his withdrawal was too late to have been conveyed to Mr. Thevathasan and to have interrupted the chain of causation.
Did the accused's dangerous driving cause Ms. Khan's bodily harm?
[83] Having found that Mr. Thevathasan was driving in a manner dangerous to the public on the evening in question, both the factual and legal causation of Ms. Khan's bodily harm has been established. It was Mr. Thevathasan Mercedes SUV which collided with Ms. Khan's Honda Civic, causing extensive damage to her car, and directly inflicting serious injury to Ms. Khan.
[84] Causation is not as easily determined as against Mr. Thangavelu. Though Mr. Gaughan and Mr. Durante observed the two accused racing next to them between Eglinton and Winterton, they lost sight of both cars within seconds, and according to Mr. Gaughan, it was approximately 25 seconds later that they arrived at the crash site. This begs the question – What was Mr. Thangavelu doing during those 25 seconds?
[85] According to Mr. Thangavelu's police statement, he withdrew from the race because Babu (Mr. Thevathasan) was driving "way too fast" and he did not want to follow him. According to Mr. Thangavelu, there was a "big gap" between him and Mr. Thevathasan.
[86] There is some support for Mr. Thangavelu's statement that he quit the race. For instance, while all of the Crown's civilian witnesses observed Mr. Thevathasan's Mercedes after it had passed Mr. Durante, no one observed Mr. Thangavelu's Audi. Support is also found in the evidence of Mr. Nantheeswaran and Mr. Xavier, both of whom testified that shortly after turning onto Mavis, Mr. Thevathasan accelerated and left Mr. Thangavelu behind.
[87] I find that Mr. Thangavelu did withdraw from the race, leaving to be answered whether his withdrawal was done in sufficient time and/or manner to have been conveyed to Mr. Thevathasan, thus effectively breaking the causal chain.
[88] Mr. Thevathasan made several lane changes while speeding up Mavis. The fact that Mr. Thevathasan was able to manoeuvre through traffic without straddling lanes or causing other drivers to take defensive action, suggests that while he was driving dangerously, he nonetheless retained some awareness of his surroundings, which would reasonably have included an awareness of Mr. Thangavelu's position.
[89] While I have no doubt that Mr. Thevathasan continued to drive dangerously up to the point of the collision, I do have a reasonable doubt about whether in the final twenty seconds or so (during which time he would have covered several hundred meters), his driving was motivated by a continued belief that he was racing Mr. Thangavelu. Accordingly, I have a reasonable doubt that Mr. Thangavelu's driving significantly contributed to Ms. Khan's bodily harm.
Conclusion
[90] I find Mr. Thevathasan guilty as charged, and Mr. Thangavelu guilty of dangerous driving simpliciter.
Released: November 30, 2017
Signed: Justice I. Jaffe
[1] On September 21, 2017, I granted the Crown's application to cross-examine Mr. Nantheeswaran on his prior police statement, pursuant to s. 9(2) of the Canada Evidence Act.