ONTARIO COURT OF JUSTICE
CITATION: R. v. Allaudin, 2019 ONCJ 53
DATE: 2019-01-29
COURT FILE No.: Toronto 18-10000024
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MUBASHAR ALLAUDIN & THOMAS LANNON
Before Justice P.F. Band
Reasons for Judgment
January 29, 2019
Ms. M. Goldenberg................................................................ counsel for the Crown Mr. C. Bottomley ...................................... counsel for the accused, Mr. Allaudin Mr. H. Gonzalez ........................................ counsel for the accused, Mr. Lannon
Introduction
As a result of their alleged participation in a large, organized motorcycle ride in and around the GTA, Mr. Allaudin and Mr. Lannon were charged with dangerous driving, mischief[^1] and conspiracy to commit both of those offences.
On the afternoon of Sunday August 6, 2017, 100 or more[^2] motorcyclists gathered for an organized ride in and around the GTA that had been billed on social media as The Ride of the 6ix. Prior to the ride, they gathered in a large parking lot in Mississauga where Mr. Allaudin addressed the group and gave them instructions.
During the ride, some of the riders passed other motor vehicles on highways at high rates of speed using all lanes and shoulders. Some of them weaved between other motor vehicles to do so. The group also caused a number of complete traffic stoppages on highways. During the ride and the stoppages, some riders performed a variety of stunts and risky maneuvers. These actions affected traffic travelling in both directions.
Police had prior knowledge of the ride and one of their number participated in it in an under-cover capacity.[^3] He took photographs at the pre-ride meeting and captured video footage of the ride with a GoPro camera affixed to his motorcycle.
The ride also drew significant media attention and public concern.
Search warrants were executed in a number of locations, including Mr. Allaudin’s residence. Eventually, Mr. Allaudin and Mr. Lannon were charged.
Neither of them testified or presented any evidence at trial.
Main Issues
- Mr. Allaudin’s identity as the person described and depicted in the evidence was conceded. Mr. Lannon’s was not. The central issues in this trial were:
• whether Mr. Lannon before the court was among the participants in the ride – in particular, a thin white male wearing a distinctive basketball-style jersey with a large spider tattoo on his right shoulder;
• whether the traffic stoppages and/or the manner of riding constituted the offence of mischief and, if so, whether Mr. Allaudin, Mr. Lannon, or both could be found guilty of those offences as co-conspirators, parties and/or principals; and
• whether the stunts or maneuvers that Mr. Allaudin, Mr. Lannon or others allegedly performed constituted the criminal offence of dangerous driving and, if so, whether one or both accused could be found guilty of those acts as co-conspirators, parties and/or principals.
Glossary
- To make these reasons easier to follow, I provide the following glossary.
Wheelie – riding one’s motorcycle on its rear wheel only, with the front wheel raised; this can be done in a seated position, while standing on the foot pegs or in some cases while standing on the seat.
Endo – coming to an abrupt stop on a motorcycle by applying only the front break in order to cause the rear wheel to lift off the ground.
Burnouts or smoke shows – with one foot on the ground, keeping the motorcycle stationary by applying the front break while supplying power to the back wheel so that it spins such that the friction between the tire and the road surface generates a cloud of smoke.
Lane-splitting – passing between two other motor vehicles who are traveling in adjoining lanes; also, in my view, riding a motorcycle between another motor vehicle and the shoulder or barrier such as a median.
Preliminary Issues: Conspiracy Counts and Identification of Mr. Lannon
The Conspiracy Counts
The conspiracy counts are particularized to allege the existence of a conspiracy between Mr. Allaudin, Mr. Lannon and three other named individuals in relation to whom no evidence was presented. The Defence argued that, having so particularized, the Crown was require to prove the involvement of all alleged members of the conspiracy beyond a reasonable doubt. The Crown disagreed. It was late in the day and no one had any authorities to support their respective positions. So, at my request, the parties provided case-law and written argument, for which I thank them.
As it turns out, this question has been rendered moot. The Crown conceded that a failure to prove Mr. Lannon’s identity beyond a reasonable doubt would render these counts impossible to prove. For the reasons that follow, I am left with a reasonable doubt that Mr. Lannon participated in the ride.
Identity of Mr. Lannon as the White Male in the Basketball Jersey
The Crown’s evidence pointing to Mr. Lannon consists of one photograph of the white male in the basketball-style jersey and the testimony of the undercover officer who took it.[^4] There was no evidence linking him to the motorcycle the male was riding or explaining how he came to be before the courts. There was no evidence as to whether or not he sports any tattoos.
The undercover officer took the photograph with his smartphone while he was observing the male among approximately 200 people in the parking lot before the ride. The male was of interest as he had been performing stunts in the parking lot. The officer was able to observe him very briefly without a helmet. For obvious reasons, he wanted to be discreet when he took the photograph.
Later, the male was seen and filmed performing wheelies on highways at high speeds.
In examination-in-chief, the Crown showed the undercover officer the photograph and he identified Mr. Lannon as the male it depicted. The officer had never seen the male before that day or since, and the first time he was asked to identify Mr. Lannon was in court, 16 months after he took the photograph. Also, Mr. Lannon was the only white male who could not be excluded (by virtue of his role or function in court) as the male in the photograph.
The photograph depicts a slim white male from head to toe. He is wearing jeans, a distinctive basketball-style jersey and a baseball cap backwards. He is facing towards the left such that his face is positioned at (roughly) a 30 degree angle from center. He is holding a cell phone to his right ear. Because of the camera angle, the baseball cap and the cell phone, one cannot see either of his ears, his hair or his hairline. His eyes are squinting and their colour is invisible, his nose is not fully depicted and his eyebrows are very difficult to make out due to glare.
In response to my questioning, the Crown all but conceded that the officer’s in-court identification of Mr. Lannon was not entitled to much weight, if any. Her ultimate reliance on R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, supports this conclusion.
I would describe the quality of the photograph as moderate and its clarity as poor, given the weaknesses I have listed.
I had the opportunity to observe Mr. Lannon over a number of days in court. He is a slim white male. His hair is short on the sides and a little longer on top. It is light in colour. As I stated on the record, in my admittedly subjective opinion, his ears protrude noticeably. At best, he bears some resemblance to the male depicted in the photograph.
As a result of these factors, the photograph falls far short of being clear and convincing enough to prove Mr. Lannon’s identity beyond a reasonable doubt.
Therefore, Mr. Lannon is entitled to acquittals on all counts.
For the same reasons, Mr. Allaudin is entitled to acquittals on both conspiracy counts.
Summary of the Facts
- Aside from the content of the instructions Mr. Allaudin gave the group before the ride, the facts in this case are largely uncontroversial.
The Pre-Ride Gathering
After a good number of riders had arrived at the parking lot, some of them began doing stunts such as wheelies. At approximately noon, once the gathering had become quite large, Mr. Allaudin announced that riders should gather around. He stood on the front bumper of a green jeep and addressed the crowd. (This jeep later traveled with the pack to capture video footage of the ride.) According to the undercover officer, he told them that, when the ride heads out, people who are able to stunt, who can hold wheelies in air, should be at front; everyone else was to fall in line and be in the middle and rear of the pack. He also announced the route: Derry Rd. eastbound to Airport Rd. northbound to 401 eastbound. Then, there would be a fuel stop at Bayview and Eglinton. He told the group to stay with ride until the end because of a big surprise. He also advised them not to “tag” anyone or their motorcycles on social media “or the feds would be all over us.” He closed by telling the group to wait by their motorcycles for the ride to begin. This was not a verbatim account. It was the “gist” of it.
The officer did not videotape Mr. Allaudin’s speech and he drafted his notes some 10 hours after the fact. Nonetheless, I find his account reliable. It was an important event that caused him and others to focus on Mr. Allaudin. I have no concerns about his ability to hear Mr. Allaudin at the time, and Mr. Allaudin’s identity is not in issue. Also, as I will discuss below, some of what he related to the court ultimately enures to Mr. Allaudin’s benefit.
The Ride – Generally
After Mr. Allaudin’s speech, the group began to funnel out of the parking lot onto Derry Rd. behind him. They rode, en masse, on city streets in Mississauga and on various highways surrounding the city of Toronto. It was the middle of the afternoon on a clear, dry and sunny summer’s day. Traffic was mild to moderate on Derry Rd. On the DVP it was moderate to busy. On the 404 and the Gardiner, it was busy.
To keep the group together, some riders blocked certain intersections much like the police do to keep a funeral cavalcade together. By stopping in large numbers across all lanes of traffic and shoulders on one side of the highway, they also caused a number of complete traffic stoppages. This happened on at least three occasions: on the Don Valley Parkway, on the Gardiner and on the 401. These lasted between one and four minutes. During that time, traffic was forced to stop in the direction of travel of the motorcycles and traffic flowing in the other direction slowed to a crawl or standstill.[^5] Riders would insinuate themselves between the slowing or stopped cars to join the rest of the pack. Cars and trucks could not move through or past the phalanx.
Based on a review of significant video footage and testimony presented in this case, the main purpose of these stoppages was to create an open stretch of highway ahead to enable the riders to travel free of cars and trucks and to perform stunts. The stoppages also allowed members of the group who were lagging behind to get past other motor vehicles in order to catch up with the larger collective. Some did so at speeds that were estimated at 160 km/h or more. Some riders took advantage of the stoppages to get off their motorcycles, to take photos and to perform stunts including wheelies and burnouts. Burnouts caused billows of smoke that dissipated within seconds. Those captured on video were no more significant than the exhaust of a motor vehicle burning oil or overheating.
Various riders engaged in lane-splitting as they passed other motor vehicles on streets and highways. One officer saw riders on the sidewalk of Derry Rd. as they were approaching Airport Rd.[^6]
Some riders performed wheelies on streets and highways. Some performed wheelies through intersections. Some performed them at highway speeds or greater. In one instance captured on video, a rider in the middle of the pack performed a wheelie at speed on the DVP for over one minute.
In this sense, to paraphrase the Crown’s submissions, the group turned the streets and highways into their own (at times) high-risk playground.
Witnesses explained that the stoppages and the manner of riding caused delays and interfered with their day. Witnesses also described the effect of numerous riders passing them on the highway by lane-splitting and riding in all lanes including the shoulders at highway speeds or greater. While some details about their accounts were challenged, over all their credibility was not. The events left very strong impressions on them. I believed their evidence and found them to be reliable witnesses.
Eugene Kuleshoff, who had been driving his truck southbound on the 404 near the 401, referred to the riders as a “black wave” that was “scary.” He had to stay “sharp” and “not do any movements.” It would have been dangerous to move his truck. The same thing happened to Sharon Whalen as she was trying to merge onto the Gardiner in heavy traffic. Motorcycles were “weaving in and out.” Some were doing wheelies as they did so. Some while standing on their seats. It was “chaotic and quite frightening.” It made it difficult to merge as she was afraid she would hit one of the motorcycles. What was normally a nice drive on her regular route was like “rush hour.” It delayed her, and left her frightened and unnerved.
Catherine Campbell, who was travelling northbound on the 427, gave a similar account. She was at the tail end of the group. She was prevented from changing lanes. Some riders made signals to her which she interpreted as meaning “get off,” “go” or “get out.” She felt nervous. At one point, as she was traveling at highway speeds, one of them braked very sharply in front of her. She had to slam on the brakes. It appeared as though he was herding others to go in front of him.
Ernest Abukov was travelling northbound on the DVP as 100-150 motorcycles were going southbound. The riders were weaving “dramatically.” Some were doing wheelies at highway speeds. Northbound traffic slowed down. In his view, northbound traffic became “a little less safe.”
Duncan Ross was driving southbound on the 403 and onto the on-ramp to the westbound QEW near the Ford plant with his 13 year old son. He was driving approximately 80 km/h when he was passed by two packs of 30-40 motorcycles traveling at approximately twice his speed. They came very close to his car. He felt that he could not make any move, slow down or take any evasive action without jeopardizing himself, his son or one of the motorcycle riders; “it was just terrifying.”
The destination of the ride was an establishment in Oakville called Shakers Smokehouse BBQ. The group arrived at approximately 3:00 p.m. By that time, it had dwindled to less than 50 riders. There is no direct evidence that Mr. Allaudin was there at the time. The riders scattered when police presence became apparent.
Mr. Allaudin’s Actions
The video evidence shows that after leading the pack out of the parking lot, Mr. Allaudin leads them onto Derry Rd. toward Airport Rd., and onto Airport Rd. to Highway 409. He remains at the front of the pack and can be seen making hand gestures to the group and, at times, to the people in the green jeep who are filming from the front.[^7] Sometimes he appears to be urging the group to continue forward by waving one hand; the procession continues.[^8] On occasion, he appears to be signaling to everyone to slow down by extending both arms; the group then slows down.[^9] As they approach Airport Rd., he appears to be signaling a right turn with one arm.[^10] The group proceeds onto Airport Rd. He signals a left turn with his left arm as they approach the on-ramp to the 409 and the pack proceeds onto the ramp.[^11] On the 409, he appears to signal to the pack that they merge into the left hand set of lanes. They do so.[^12]
Mr. Allaudin’s license plate, which is affixed to the rear of his motorcycle, is bent upwards so that it sits horizontally and cannot be read from behind. It was still in that position weeks later, when the police executed the search warrant at his home.
Mr. Allaudin’s Allegedly Dangerous Riding
The evidence of Mr. Allaudin’s riding in this trial is limited to what was captured on video during the early parts of the ride on Derry Rd., Airport Rd. and the 409. No witnesses were called who observed his riding directly at those or any other locations.
The Crown alleges that he performed the following dangerous maneuvers.[^13] It is not alleged that his speed was excessive. In any event, it is impossible to gauge from the videos.
On Derry Road
Mr. Allaudin performs a wheelie lasting four seconds during which his motorcycle migrates from the middle of one lane to the middle of the lane to his left. There are no other motor vehicles present (he his at the front of the pack). He puts the front wheel down just before entering a four-way intersection. He has the green light.
Mr. Allaudin rides with both hands extended outward as he slows for a traffic light.
Mr. Allaudin performs a wheelie lasting six to seven seconds during which he proceeds straight through a “T” intersection. He has the green light. No motor vehicles are present within the intersection and none in the periphery appear affected. His motorcycle migrates from the middle of one lane to the middle of the lane to his left. One motorcycle is some distance ahead and many are a good distance behind him.
Mr. Allaudin performs a wheelie lasting four seconds. No motor vehicles are present and he is at the front of the pack in his own lane.
As Mr. Allaudin approaches a traffic light, he extends both hands to his sides as though indicating to others to slow down. His motorcycle remains upright and proceeds in a straight line. There is a car in the lane to his left which appears unaffected.
On the 409
After merging onto the 409, Mr. Allaudin performs a wheelie lasting three to four seconds. He is at the head of the pack pulling away from the nearest rider and there are no other motor vehicles present.
Further down the 409, Mr. Allaudin does another similar wheelie, and then another one lasting less than one second.
A short while later, he removes both hands from his handle bars for less than one second. His motorcycle remains upright and on course.
A short while later, he makes a flapping motion with both arms for approximately four seconds. His motorcycle remains upright and well within its lane.
At various times, Mr. Allaudin is looking backwards while riding. Usually very briefly, but at least once for up to two or three seconds. He is at the front of the pack at that time. His motorcycle remains upright and on course. There are no vehicles in his path.
Applicable Legal Principles
- On the Crown’s theory, Mr. Allaudin can be found guilty of mischief and dangerous driving as a principal or party.
Mischief
- Subsection 430(1)(c) of the Criminal Code makes it an offence to willfully obstruct, interrupt or interfere with the lawful use, enjoyment or operation of property. The person whose use of the property was interfered with need not to be its owner. Also, as Defence counsel conceded, the impact need not be permanent.
Dangerous Driving – R. v. Roy, [2012 SCC 26](https://www.minicounsel.ca/scc/2012/26), [2012] S.C.J. No. 26
In Roy, the Supreme Court of Canada had occasion to review the law of dangerous driving as discussed in R. v. Beatty, [2008] 1 S.C.R. 867. The actus reus is “driving 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 was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at the place.” The mens rea requires that the Crown prove that “the degree of care exercised by the accused was a marked departure from the standard that a reasonable person would observe in the accused’s circumstances” (para. 28). Not every departure from the norm constitutes dangerous driving. The lack of care must be serious enough to warrant punishment.
At para. 34, the Court discussed the actus reus further. The driving must be considered objectively, and the focus must be on the risks created. Driving can be considered dangerous when it endangers the public. In considering this question, one must remember that driving is an inherently dangerous, but legal activity of social value.
When assessing the mens rea, one must ask whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, then the “question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure” (para. 36). The trier of fact is permitted to draw inferences from the manner of driving provided that all circumstances are considered (para. 39). Proof of the actus reus alone is never sufficient to make out the fault element (para. 41).
With respect to motorcycles in particular, three cases provide useful insights. In R. v. Nedelcu, 2007 54970 (ON SC), [2007] O.J. No. 4906 (S.C.J.) at para. 41, Justice T.P. O’Connor made the following reflection: “[a] reasonable person would operate a motorcycle with particular care and attention, given the vulnerability of riders to severe injury in an accident.” In R. v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091 (C.A.), at para. 21 (a case involving Highway Traffic Act (“HTA” offences), Justice Doherty wrote on behalf of the Court that “it is certainly arguable that ‘wheelies’ are inherently dangerous.” In R. v. Markos, [2017] O.J. No. 87 (S.C.J.) at para. 10, Justice E.M. Morgan found that it is “self-evidently risky” for a motorcyclist to weave in and out of lanes around cars at high speeds. This is because the rider’s visibility is likely to be obscured.[^14]
Party Liability
Section 21 of the Criminal Code states that everyone is a party to an offence who (a) actually commits it, (b) does or omits to do anything for the purpose of aiding any person to commit it or (c) abets any person in committing it.
Persons can commit an offence as co-principals by participating in it together – see David Watt, Manual of Jury Instructions (2nd ed., Carswell 2015) at pp. 450-452.
Participation as a party requires both an actus reus and mens rea. The actus reus of aiding or abetting “is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence.” More specifically, to “aid” means “to assist or help the actor.” To “abet” includes “encouraging, instigating, promoting or procuring the crime to be committed” – see R. v. Briscoe, 2010 SCC 13, [2010] S.C.J. No. 13 at para. 14.
At para. 16 of Briscoe, the Court explained that the mens rea requirement – the “purpose” – has two components: intent and knowledge. Intent requires proof that the accused intended to assist the principal in the commission of the offence. “As for knowledge,” the Court added, “the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed.”
Mischief
The Crown alleges that Mr. Allaudin ought to be found guilty of mischief as a principal or a party for the stoppages and the manner of riding that interfered with others’ use of the streets and highways.
The Defence argues that there is no evidence that Mr. Allaudin was present at any of the stoppages or that he aided or abetted any of the risky riding. The Defence also points to the apparent fact that police do not normally lay charges against motorists who cause traffic stoppages even when they do so by their own fault. For example, a drunk driver who causes an accident that shuts down a highway is not normally charged with mischief. The Defence also points to offences in the HTA that could be laid instead.
I am satisfied that groups of participants in the ride committed mischief in two ways.
First, by causing stoppages lasting up to four minutes on the highways surrounding the GTA. This was willful conduct on the part of the riders, orchestrated to create a clear and open road ahead. They could only have accomplished this by acting in concert. Moreover, the testimony of the witnesses satisfies me that their lawful use of the roads was obstructed, interrupted or interfered with.
Second, in all the circumstances, the “black wave” of riders committed mischief by weaving between cars, splitting lanes and riding on the shoulders at high speeds. The witnesses’ testimony painted a compelling picture of how this conduct interfered with their lawful use and enjoyment of the highways. The motorcycles went through traffic like a river, leaving drivers unable to do anything but try to maintain their direction and pace, fearing that to do otherwise would jeopardize them, their passengers or the motorcycle riders. Changing lanes or merging was impossible.
That the Crown could not point to a case in which such circumstances have ever led to criminal charges or that charges under the HTA would also fit the bill is not fatal, in my view.
The real issue is whether Mr. Allaudin’s guilt has been proven, as a principal or party, even though there is no direct evidence that he was present when this conduct took place. The question of his involvement beyond the initial travel along the 409 is a matter of circumstantial evidence. The question is whether it can be inferred from the facts as I find them to be.
I am satisfied beyond a reasonable doubt that Mr. Allaudin’s guilt can be founded on his role as both a principal and a party regarding the stoppages. He was a co-principal among many as a knowing and active participant in the stoppages. He was also an aider or abettor. Here is why.
Based on his speech at the outset, including mention of a surprise at the end, and his behaviour during the portions of the ride in which he can be seen directing the pack from the front – signaling to the others to stop, to continue, to make turns and to merge onto the 409 – the inescapable conclusion is that Mr. Allaudin was the organizer, marshal and helmsman of The Ride of the 6ix. As a result, the only reasonable inference available is that he participated in the ride from start to finish, including during the several stoppages. I am convinced beyond a reasonable doubt that he coordinated and participated in the stoppages.
That said, the Crown has not proved Mr. Allaudin’s guilt, as a principal or a party, with respect to the riding that terrorized the users of the highway. First, there is no evidence, direct or otherwise, that would permit me to conclude that he engaged in the type of riding that was exemplified by the “black wave” of riders or that he was among them. According to the evidence of the undercover officer, DC Carullo and some of the civilians, that kind of riding took place toward the middle or rear of the pack. Second, the evidence does not demonstrate that Mr. Allaudin did anything “for the purpose” of assisting or encouraging them to ride the way they did where they did. Third, the evidence does not permit an inference that Mr. Allaudin knew that they would do so. His speech, however it is interpreted, does not assist the Crown in this regard. He told riders who would perform “stunts” to do so at the front.
For these reasons, I find that the Crown has proved Mr. Allaudin guilty of mischief in relation to the stoppages only.
Dangerous Driving
The Crown alleges that Mr. Allaudin ought to be found guilty of dangerous driving as a principal or a party. As a principal for his own manner of riding, as seen on the video footage. As a party for assisting or encouraging others to engage in similar or more risky riding.
I have no doubt that some of the riding that was attributed to the “black wave” of riders was dangerous and constituted a marked departure from the standard of a reasonable motorcycle rider. I would point in particular to lane-splitting and weaving between motor vehicles at high speeds, for the very reasons that Ms. Whalen and Mr. Ross described. I say this notwithstanding the undercover officer’s testimony that when he did so, his many years’ experience riding motorcycles made his own riding reasonable. Surely the impact on the other users of the road is a relevant aspect of the inquiry. But his testimony also demonstrates the difficulties inherent in determining what constitutes a marked departure.
I also find that sharply slamming on the brakes in front of another motor vehicle in order to shepherd one’s fellow pack-members ahead of traffic is another clear instance of dangerous driving – especially at highway speeds.
Wheelies are a more difficult issue. Particularly when they take place in traffic and over long stretches of road or highway. I will discuss them below.
However, for the reasons I have addressed above, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Allaudin possessed the requisite mens rea to be found guilty of dangerous driving as a party. The facts of the case show that, while Mr. Allaudin was the organizer of a set of circumstances in which some riders operated their motorcycles in a dangerous manner, those riders did so when and where they pleased. Based on the evidence before me, the dangerous driving took place in the middle or rear of the pack. I also point to Mr. Allaudin’s speech, at which he appeared to limit his definition “stunts” to wheelies, and urged those who wished to perform them to ensure that they were (1) able to and (2) at the front of the pack. This, too, contributes to my doubt about his knowledge.
After much consideration, I have come to the same conclusion concerning Mr. Allaudin’s wheelies and other risky maneuvers. It cannot be doubted that motorcyclists are more vulnerable than other users of the road and therefore ought to be more careful. I also accept that wheelies are arguably inherently dangerous. Finally, I accept that a wheelie can constitute a “stunt” or dangerous operation or both. The distinction does not turn on labels but on the circumstances.
By the same token, I have also reminded myself that not every departure from the norm constitutes dangerous driving and that, to be considered criminal, the lack of care must be serious enough to warrant punishment.
It is with these principles in mind that I have considered the specific circumstances in which Mr. Allaudin performed risky maneuvers such as wheelies, removing his hands from the handlebars and looking backward more than momentarily. Those circumstances, described in detail above, include the perfect weather and road conditions, Mr. Allaudin’s position at the front of the pack and the absence of other traffic at the relevant times, the absence of evidence that Mr. Allaudin was speeding or street racing, the fact that his feet remained on the foot pegs and able to access the rear break, and his demonstrated ability to put the front wheel down when entering the four-way intersection.
Having done so, I am left with a reasonable doubt that Mr. Allaudin’s risky conduct endangered the public or himself in a way that constitutes a marked departure.
Conclusion
- For these reasons, I find Mr. Allaudin guilty of mischief in the manner described above and not guilty of the remaining counts on the Information.
Released: January 29, 2019
Justice Patrice F. Band
Ontario Court of Justice
[^1]: Pursuant to ss. 430(1)(c) of the Criminal Code. [^2]: Estimates varied to as many as 200. At times during the ride, the group became divided and its numbers dwindled over the course of the afternoon. [^3]: On consent, he testified anonymously for safety reasons pursuant to ss. 486.2 and 486.31. [^4]: It was marked as Exhibit 10A in these proceedings. [^5]: See GOPR0031 footage, Exhibit 11. [^6]: See Evidence of DC Joseph Carullo. [^7]: See DJI_0028 for a particularly emphatic example of the latter, Exhibit 5A. [^8]: See DJI-0018 and 19, ibid. [^9]: See DJI_0021 and DJI_0028, ibid. [^10]: See DJI_0027, ibid. [^11]: See DJI_0028, ibid. [^12]: Ibid. [^13]: See DJI_0017, 0018, 0019, 0020, 0022, 0027 and 0028, ibid. [^14]: I would also add the ability of others to see and react to the motorcyclist.