ONTARIO COURT OF JUSTICE

CITATION: R. v. Muto, 2019 ONCJ 125

DATE: 2019 03 06

COURT FILE No.: Newmarket 18 02786

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOSEPH MUTO

Before Justice David S. Rose

Heard on March 4, 5, 2019

Reasons for Judgment released on March 6, 2019

Ms. Pakosh ......................................................................................... counsel for the Crown

Mr. Sciarra counsel .......................................... counsel for the defendant Joseph Muto

Rose J.:

[1] Mr. Muto pleaded not guilty before me to the charge of Dangerous Driving on November 5, 2017.

[2] The allegations surrounded a motor vehicle collision on November 5, 2017 when Mr. Muto was the passenger in a car which collided with another car on Zenway Boulevard.

Evidence – Magdelena Ciemiega

[3] Ms. Ciemiega gave evidence that she had been in a romantic relationship with Mr. Muto for about 11 weeks by the time of the accident. Things were not going well in the relationship – so badly that by November 5, 2017 she had told him that the relationship was over. That discussion happened at her apartment in downtown Toronto. By the morning of November 5 Mr. Muto had been more or less living in her apartment and she wanted him out. He wanted his father to drive him home but his father was not available. He said he would call a taxi but never did, so Ms. Ciemiega chose to drive him home. Ms. Ciemiega testified that Mr. Muto did not want to end the relationship, and this was the source of an argument that morning on the drive home.

[4] She put his belongings into her car, a White Mitsubishi Lancer, and both went on to the Highway, eventually leaving Highway 427 at Zenway Boulevard. Ms. Ciemiega drove, and Mr. Muto was in the front passenger seat. She testified that she was driving at the speed limit, namely 100 km/hr on the highway. The exit ramp has rumble strips, and the light from the off ramp to Zenway was green. At that point, with the car moving Mr. Muto said he wanted out of the car and opened the car door. She said no, and asked what he was doing, and he closed the door. The Lancer then turned right onto Zenway Boulevard, going about 60 km/hr. Mr. Muto asked her to pull over a number of times, but it wasn’t safe to do so, because another car was behind the Lancer as it left the highway.

[5] As the car proceeded eastbound on Zenway Boulevard Ms. Ciemiega passed a blue truck. Ms. Ciemiega testified that the car door was closed by the time that she passed that vehicle. At that point Mr. Muto reached over from the front passenger seat and grabbed the steering wheel causing it to lurch to the right. That caused the Lancer to cut off the blue truck. Ms. Ciemiega got control over the Lancer and kept it on the roadway. Mr. Muto then pulled the emergency hand brake and the car started spinning in a counter clockwise rotation. She did not see him do that, but she felt it. It moved to the left into the west bound lanes of Zenway Boulevard hitting a car which was travelling in the opposite direction. Ms. Ciemiega testified that she had no control over the car at that point because of Mr. Muto grabbing the hand brake.

[6] The Lancer collided with a black passenger car on the passenger side. The other car had a young woman and child in it. There was significant damage to both cars. Airbags went off. Ms. Ciemiega testified that she initially stayed in her car and then got out. She admitted to being hysterical at that point. She also said that Mr. Muto was by then outside the Lancer. According to Ms. Ciemiega Mr. Muto asked her to lie about the cause of the accident, telling her to say that the accident was caused by the weather.

[7] Ms. Ciemiega went to the hospital from the accident scene but was cleared physically upon examination. She had bruising which required several months of physiotherapy.

[8] Ms. Ciemiega said that she was in shock when the police first arrived. She gave a brief statement to the police on scene, one in which she admitted that she didn’t mention the parking brake. Later in the hospital she gave a cautioned statement to an officer, saying that he pulled the steering wheel and pulled the emergency brake. She later gave a video statement to the police wherein she said that she didn’t know if he grabbed the steering wheel at the same time he grabbed the emergency brake. As she put it, it all happened very quickly, and she was in shock when she spoke to the police that day. She was adamant in her evidence that the accident was caused by the emergency brake. Ms. Ciemiega had no memory of her car’s condition when it eventually stopped. She said that the emergency brake was up and the keys were in the ignition. She left the car as it was when she was taken to the hospital. She testified that she was overwhelmed after the accident and crying.

[9] Ms. Ciemiega wasn’t sure about the distance from the intersection of 427 and Zenway Boulevard to the accident scene but didn’t disagree with Mr. Sciarra’s suggestion that it was about 500 meters away or that she was travelling at 60 km/hr on Zenway. In cross-examination she testified that Mr. Muto said that he wanted to go to a Tim Hortons to talk but she didn’t. That is when he opened the car door.

Allison Beard

[10] Ms. Beard was driving her black Ford Fusion westbound on Zenway Boulevard on the morning of November 5, 2017. She was driving her 7 year old daughter to Adrenalin gymnastics on Zenway at about 8:50 that morning when she collided with a white sedan. She could provide few details about the collision. Traffic was light and the roads were damp. It was drizzly out.

[11] Ms. Beard said that she was slowing down to turn into the gym – going about 40 km/hr – when she saw the car come at her sideways. She reacted and ended up facing the curb in a northbound direction. Airbags went off. The other car had a dent in the passenger side where it hit her Fusion but she wasn’t sure of the other damage. Ms. Beard’s daughter was upset by the accident. As she put it, she was “freaked out” and in shock. Although she had a hurt neck, her daughter wasn’t injured. Ms. Beard had whiplash and needed physiotherapy for some months.

[12] After the accident the female driver of the other car came over and asked if she was ok. The male passenger was on the phone, and Ms. Beard asked if he was on the phone to the police but he said no so she called the police herself. She identified Mr. Muto in Court as that male.

Paul Collura

[13] Mr. Collura was the passenger in a car following a White Mitsubishi off Highway 427. He thought it to be around 10am when he saw the passenger door of the Mitsubishi open. He could see a man holding the door open about 2 feet. He first testified that the car door closed after the car turned onto Zenway, but in cross-examination said that the car door was still open while on Zenway. He paid attention to the car because something seemed amiss when the car was travelling with an open passenger door.

[14] Mr. Collura said that his car didn’t stop at the intersection of 427 and Zenway. The light was green and his car turned right after the Mitsubishi, which was ahead of them by about 1 or 2 car lengths. As Mr. Collura’s car travelled east bound on Zenway the white Mitsubishi was going a bit faster than his car. The Mitsubishi was going about 60.

[15] Mr Collura saw the Mitsubishi suddenly jerk to the curb, correct itself and then move from the right to the left and collide into an oncoming car. A male got out of the passenger side of the Mitsubishi. He was angry, yelling and pacing back and forth, but he couldn’t describe him any more than saying he had a shaved head, was a Caucasian about 6 feet tall.

[16] Mr. Collura described the time from the open door to the crash as being very quick, less than a minute. He saw the couple from the white car talk to each other. Mr. Collura called 911 himself. In the 911 call Mr. Collura told the operator that the door was completely open and that the car almost hit another car with the door open. He testified that when the door closed the car swerved to the right, before it swerved left into the collision. The first swerve, the one to the right, was corrected before the swerve left. If Mr. Collura first testified that the car door closed before the turn onto Zenway, he later said that the car door was open while the car travelled on Zenway.

Cst. Millan

[17] Cst. Millan arrived at Zenway and Vaughan Valley Road at around 9:18 am on November 5, 2017. He described the scene as being a motor vehicle collision involving a Ford Taurus and White Mitsubishi Lancer. There was fairly significant damage to both vehicles. His focus was traffic control so he set up pilons and kept traffic moving. He then went to Etobicoke General Hospital and spoke with the female from the Mitsubishi around 10:04 am. In that statement he learned about the involvement of the emergency brake of the Mitsubishi and jerking of the steering wheel in the accident and passed that information along to a Detective involved in the case. He described her as being visibly upset and emotional. She was crying off and on. She was emotionally drained and appeared to be in shock. When she was medically cleared he took her to 4 District police station of York Regional Police.

Defence evidence

[18] Mr. Muto testified. He said that he woke up on November 5, 2017 at Ms. Ciemiega’s house. He said that they both planned to see his mother that day. When he got up that day he saw a bottle of Oxycodone pills. He was concerned that she was addicted to those pills. He had never seen her take pills and he didn’t see her take any that day but he mentioned his concern to her.

[19] For her part Ms. Ciemiega was concerned about the fate of the relationship and told him that he had to leave and that she wanted space. According to Mr. Muto Ms. Ciemiega took offence at the discussion about her pills. According to him Ms. Ciemiega never broke up with him. She just wanted space and was unsure about the direction of the relationship. At that point she packed up his belongings which confused him, because the night before the relationship seemed ok.

[20] Mr. Muto testified that he wanted to take a cab but never called one. He did call his father to ask for a ride home but his father was not home. His father’s girlfriend told him that. Ms. Ciemiega insisted that Mr. Muto leave and put his belongings in a bag into the rear seat of her car. He didn’t want her to drive him home but got in the car anyway.

[21] Mr. Muto testified that he didn’t say much on the ride home. He was thinking that he was expecting to visit his mother with Ms. Ciemiega that day but they never would. He described her driving as a bit aggressive but otherwise following the rules of the road. It was as if she was on a mission to get him home. At some point he wanted to get out of the car and go to the Tim Horton’s outlet on Zenway Boulevard but she refused to let him out.

[22] Mr. Muto gave evidence that when the Mitsubishi was at highway 427 and Zenway the light was red and he wanted to get out. The car was in the right hand lane, and when they were stopped he took his seat belt off and opened the door. At that point Ms. Ciemiega accelerated and said she would drive him home. He said to her “what are you doing”. The door was open as they made the right turn onto Zenway, and it was still open when a car flew by. He then told her to pull over, but didn’t do anything else. Mr. Muto testified that he was putting his seat belt on when the car veered right and then over corrected. He said that he did not touch the steering wheel or emergency brake, but Ms. Ciemiega lost control of the car and it veered left into oncoming traffic hitting a car. He didn’t know if the car slid, skidded or if the brakes were applied.

[23] After the collision Mr. Muto asked Ms. Ciemiega if she was ok, but he was in shock. He testified that at that point Ms. Ciemiega was concerned about alcohol in the back seat. That was his, which was being returned with Mr. Muto home with his belongings. Mr. Muto called his father, and he told him to remove his items from the car. He denied ever telling her to lie to the police. He testified that he told her to tell the truth, which is that she caused the accident. She said to him that it was his fault because he had touched the steering wheel but he denied that to her.

Law

i) Credibility.

[24] This case engages different testimonial versions of evidence from the Crown and Defendant. As such it is not a credibility battle but a matter of whether the Crown has proven the case to the standard of proof beyond a reasonable doubt. I charge myself in accordance with the applicable principles, which are conveniently and authoritatively summarized in Justice David M. Paciocco’s February, 2017 essay Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment 22 Can. Crim. L. Rev. 31.

ii) Dangerous Driving.

[25] This case is uncommon insofar as it is the passenger who is charged with dangerous driving. There is no question that Mr. Muto was at all times the passenger in the White Mitsubishi, and Ms. Ciemiega the driver. The trip from her apartment to Mr. Muto’s parents’ residence started out that way and ended up that way at the time of the collision.

[26] A passenger who grabs the steering wheel of a car being driven by another person briefly, and for that period of time, assumes control of the motor vehicle. If the intervention of that passenger causes the car to be driven in a manner dangerous to the public s/he can be found guilty of dangerous driving, see R. v. Belanger 1970 CanLII 222 (SCC), [1970] S.C.R. 567, and R. v. Fifield 2014 ONSC 2498. In Belanger the Appellant was convicted of dangerous driving because he was a passenger in a police car when he grabbed the steering wheel of the police car and steered it into oncoming traffic. For the majority, Ritchie J. said,

22 The fact is that the police cruiser was driven from its own lane directly into the lane reserved for approaching traffic because the appellant had deliberately grabbed the steering wheel and taken control from the hands of the constable. Under these circumstances, with the greatest respect for those who hold a different view, I am of opinion that for the brief period during which the appellant assumed control, he was solely responsible for the dangerous driving of the cruiser and he was for those few moments "one who drives a motor vehicle on a ... highway ... in a manner that is dangerous to the public..." within the natural and ordinary meaning of those words as they occur in the context of s. 221(4) of the Criminal Code.

[27] In this case Mr. Sciarra concedes that a passenger can in law be an operator of a motor vehicle for purposes of s. 249 of the Criminal Code. Based on Belanger and Fifield (supra) the concession is a fair one.

Findings

[28] Mr. Muto had frailties in his evidence. I would describe them as follows:

i) Mr. Muto testified that on the morning of November 5, 2017 he didn’t believe that Ms. Ciemiega broke up with him. That is quite difficult to believe for a number of reasons. The first is that at that point on the morning of the 5th Ms. Ciemiega was forcing him out of her apartment and removing his belongings. She was intent to drive him home to make that happen and not wait for his father to come and collect him. She even went so far as to remove his alcohol from her place and return that with him too. The facts before him were those of a major break up. Put bluntly he was being kicked out. His failure to recognize this in his evidence bears poorly on his credibility. Second is the text message exchange from 3 days previous which he put into evidence. In that exchange he claims to be mistreated by Ms. Ciemiega and she replies that “…its very obvious that it doesn’t really matter how I want to be treated…Im (sic) done talking”. The text messages establish a fundamental problem with the relationship only days before. Lastly, he contradicted himself in his evidence by saying that the relationship wasn’t over, but then said that it was for him and he wanted his space. That is also difficult to reconcile with his evidence that he wanted to interrupt the trip home with a discussion at the Tim Horton’s. Under the circumstances the only reason for that was to rescue a relationship which was not really over.

This is more than a minimal frailty because the argument on the morning of the car crash was the basis for the argument which took both Mr. Muto and Ms. Ciemiega on to Zenway Boulevard.

ii) Mr. Muto said that he didn’t want Ms. Ciemiega to drive him home, but admitted that he got into her car and let her do that. He said that he wanted to take a cab home but never called one. He also said that he wanted his father to collect him but then chose to let Ms. Ciemiega drive him home. This is an internal inconsistency because if Mr. Muto didn’t want Ms. Ciemiega’s drive he would have called a cab or waited for his father. There is no reason in the evidence why he didn’t just take his belongings and wait downtown outside of Ms. Ciemiega’s residence for the ride. It is more than minimal in weight because Mr. Muto voluntarily entered Ms. Ciemiega’s car and then even by his own evidence changed his mind and wanted to leave the Mitsubishi. Opening the car door would be the commencement of the events which ended up in a car crash.

iii) Mr. Muto struggled to explain whether he wanted to go home. At times in his evidence he said that he did, but at other times he wanted to be alone and not go home. That is why he opened the car door to get out at the corner of Highway 427 and Zenway, so that he could got to a Tim Horton’s outlet. This is internal inconsistency surrounding the reason why Mr. Muto chose to open the car door.

iv) Mr. Muto described his emotions at the point of opening the car door as being scared. When pressed he admitted that he had not been scared about her driving pattern, but rather by a previous driving accident he had been involved in. It was a late addition to his evidence. When Ms. Pakosh pressed him further on this point he testified that he just wanted to get out of the car when he opened the door. His evidence that he was scared at that point in the drive makes no sense because there was nothing scary in the sequence up to him opening the door. He was the one who chose to open the car door, and therefore his fright was self inflicted.

v) Mr. Muto contradicted himself when he gave evidence about Ms. Ciemiega taking pills. At first he said that he never saw her take pills but then later said that he had. He then added that he was counting the Tylenol 3 pills that she had in her residence. He struggled to explain why he would do that. The issue of Ms. Ciemiega’s pain medication was not really apparent to me in this trial, but it was first raised by Mr. Muto, and therefore the inconsistency was put into play by the defence not the Crown. This inconsistency was aggravated by Mr. Muto not answering the suggestion put to him by the Crown that his monitoring of Ms. Ciemiega’s pill consumption by looking at her pill bottles was intrusive. It was a fair question given the evidence at trial, and his reluctance to answer the question was an example of evasiveness.

[29] For the above reasons I would place no weight on Mr. Muto’s evidence. He was in incredible witness. His evidence does not raise a reasonable doubt.

[30] Ms. Ciemiega was a generally credible witness. There were no internal contradictions in her testimony. She answered questions thoughtfully. Importantly, she limited her evidence where she had no direct observation. Her evidence that Mr. Muto pulled the emergency brake after pulling the steering wheel was qualified. She said that she didn’t see him pull the hand brake, but felt it. As the driver of the car trying to maintain control she was perfectly situated to experience that. I accept her evidence that Mr. Muto opened the car door, and when it was shut pulled the steering wheel to the right and then pulled the handbrake causing the car to lose control and collide with Ms. Beard’s car.

[31] Mr. Collura confirmed much of Ms. Ciemiega’s evidence. He was an independent witness perfectly situated to make his observations. His attention to the Mitsubishi was heightened because that car was travelling with an open door. He confirmed the green light at the intersection of Highway 427 and Zenway Boulevard when the Mitsubishi arrived at the intersection. He confirmed the jerking motion of the Mitsubishi to the right curb, that action ended by the driver re-gaining control and then the jerking motion to the left into oncoming traffic. Both Ms. Ciemiega and Mr. Collura testified that the jerking motion to the right ended up with the driver recovering control. That is a significant fact in my finding. Ms. Ciemiega regained control of her car only to have that control again taken away by Mr. Muto. By then the car door was closed. Ms. Ciemiega was fighting for control of her car but Mr. Muto would ultimately cause the car to crash. Leaving aside for a moment my adverse credibility finding against Mr. Muto, the defence theory that the crash was caused by Ms. Ciemiega over correcting from the veer right does not survive the evidence from both her and Mr. Collura that she regained control of the car after the first jerking motion.

[32] Having rejected Mr. Muto’s evidence there is no evidence about the reason for the jerking motion to the left other than Ms. Ciemiega’s. I draw the common sense inference that when a car travelling at about 60 km/hr has its emergency brake pulled suddenly there will be a loss of control, which was the reason why the car jerked to the left.

[33] Mr. Collura’s evidence was not completely consistent with Ms. Ciemiega’s. He initially said that the car door was opened at a green light and closed by the time the car went on to Zenway Boulevard. Later he testified that the car actually travelled with the door open on Zenway. Ms. Ciemiega testified that the car door was closed on Zenway. I cannot resolve that issue, but I find that the difference in timing is not material, and does not raise a reasonable doubt. Both witnesses testified that the car door was open in the short duration between the time the Mitsubishi left Highway 427 and when the car jerked to the right less than a minute later. Having rejected Mr. Muto’s evidence, I also reject his evidence that the accident was caused by an over-reaction to cutting off the blue truck. The open car door was the beginning of a sequence of dangerous events which culminated in Mr. Muto grabbing the steering wheel and then the handbrake. Mr. Muto’s dangerous operation of the Mitsubishi became most apparent when he grabbed the steering wheel and altered the direction of the car. That was followed almost immediately by him grabbing the hand brake, which caused the car to lurch left into oncoming traffic. Put another way, the only evidence that I accept about what happened inside the Mitsubishi in the seconds before the crash is from Ms. Ciemiega.

[34] There is no real issue in this case with the other elements of the offence of dangerous driving. Mr. Muto’s actions of pulling the steering wheel and the emergency brake would cause a violent loss of control of the Mitsubishi which would pose a danger to other persons, namely those other persons occupying motor vehicles on the highway which was in this case Zenway Boulevard. This case is similar in that regard to Belanger and Fifield (supra) insofar as in both of those decisions the Court found that a passenger who took control of the steering wheel from a driver was guilty of dangerous driving.

[35] I find that the Crown has proven beyond a reasonable doubt that Mr. Muto opened his door in an effort to get out of the Mitsubishi without the consent of Ms. Ciemiega, the driver, and that he then grabbed the steering wheel and then emergency brake. This caused Ms. Ciemiega’s car to lurch right, and then left into Ms. Board’s vehicle. Mr. Muto assumed control of the Mitsubishi in those brief seconds and was its operator. His operation caused the car to veer out of control into the path of oncoming traffic. It was very clearly dangerous to the public.

[36] For these reasons the Crown has proven the charge against Mr. Muto beyond a reasonable doubt. He is found guilty.

Released: March 6, 2019

Signed: Justice Rose