WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

ONTARIO COURT OF JUSTICE

DATE: 2020-04-22

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

IVAN VAVRYSHCHUK

Before: Justice K.J. Caldwell

Heard on: September 16 – 19, October 3, 2019 and February 25, 2020

Reasons for Judgment released on: April 22, 2020

Counsel:

• Mr. Michael Lockner — counsel for the Crown
• Mr. Calvin Barry and Mr. Rupinjit Singh Bal — counsel for the accused Mr. Ivan Vavryshchuk

Judgment

K. Caldwell J.:

Introduction

[1] A tragic collision on May 15, 2018 caused Mr. Jonas Mitchell to lose his life. Mr. Ivan Vavryshchuk faces one count of dangerous driving cause death as a result.

[2] I am discharging Mr. Vavryshchuk. I emphasize at the outset that my decision in no way devalues Mr. Mitchell's life. It was crystal clear to me throughout this hearing that he was a much-loved young man. That was evident through the appearance throughout of four individuals – his parents, and his parents' current partners. The two couples sat near one another in the front row of the courtroom. It quickly became clear to me which two were his parents – his mother who quietly wept at various points during the evidence, and his father who presented more stoically but looked equally shattered.

[3] What this decision highlights instead is the criminal law's emphasis on the moral culpability of any accused. That focus is on the individual's actions and intentions. The question I must answer is whether a reasonable jury could find that Mr. Vavryshchuk's acts and intent that afternoon rose to that of criminal liability and I find that it could not. That does not change the fact that the ultimate result ended one life and tragically altered the lives of others, specifically his parents. My finding does not change the fact that this was a horrible accident.

Overview

[4] In the late afternoon on May 15, 2018, Mr. Vavryshchuk was driving eastbound on Lakeshore Boulevard West in Toronto. Mr. Mitchell was on his bike, stopped at a treed and grassy median dividing the eastbound and westbound lanes of Lakeshore Boulevard. He headed across the eastbound lanes as soon as his light changed to green. Mr. Vavryshchuk went through his red light. He hit Mr. Mitchell. Mr. Vavryshchuk stopped his car immediately after. Thanks to the ubiquitous nature of cell phone cameras, photos were taken by others in the area. Some show a distraught Mr. Vavryshchuk and others attempting to revive Mr. Mitchell who appeared to be unconscious in the roadway.

[5] Eight bystanders – primarily other drivers – were called by the Crown along with two police witnesses. There is a striking similarity between the evidence of the bystanders. As a result, I will not deal with the evidence of each witness separately but instead will deal with the evidence as a whole.

The Evidence

[6] The intersection where this accident occurred is complex. Lakeshore Boulevard is a major east/west artery through the southern part of Toronto. The specific location of the accident was the Lakeshore Boulevard intersection with Colborne Lodge Drive. Colborne Lodge is a major access road to both Toronto Western Hospital and the popular High Park area of Toronto. Both parkland and the busy Martin Goodman cyclist trail are to the south of the intersection.

[7] There are five lanes of eastbound traffic, including a left-hand turn lane. There is a demarcated pedestrian crossing area that connects the north side of Lakeshore Boulevard to the south side. It spans the median. There is a bicycle crossing area immediately to the east of the pedestrian crossing.

[8] Just beyond the eastbound portion of the intersection, to the left, is a large green sign on the median noting Colborne Lodge to the north. There are two standard traffic lights controlling the eastbound traffic, and a standard, smaller blue street sign for Colborne Lodge affixed to the most southerly of those traffic light standards. Another set of traffic lights controls the left-hand turn traffic.

[9] The pedestrian crossing area is controlled by a pedestrian crossing signal. On the south side, to the east of that crossing signal, there are two smaller light standards that frame a sign marked "bicycle signal", controlling the bike traffic from the median to the south side of Lakeshore Boulevard.

[10] It was the afternoon commute for most of the witnesses. Traffic was busy, with the lanes full but not bumper to bumper or stopped. The driving conditions were fine – pavement was dry, and though there was some glare from the sun, none of the witnesses said it impeded their ability to see.

[11] Mr. Chopra and Mr. Karpik were heading southbound on Colborne Lodge. Mr. Chopra was the first car to drive south into the intersection once his light turned green and the lights were red for the Lakeshore drivers. He had moved halfway across Lakeshore, crossing the four lanes of westbound traffic, to the median area, when he heard the collision.

[12] Mr. Karpik was on his bicycle. Mr. Mitchell rode his bike across the westbound lanes once the southbound pedestrian signal turned green. Mr. Karpik remained stationary as he previously had seen eastbound cars make a U-turn into the westbound traffic as the eastbound traffic was still moving. He saw Mr. Mitchell wait on the median until the southbound bike signal turned green. Mr. Mitchell then rode across the eastbound lanes, making it halfway across before he was hit.

[13] Both men said that the southbound lights had been green for one to two seconds before the accident.

[14] Other witnesses testified that they were stopped in the eastbound lanes at the time of the collision. There were at least seven vehicles stopped when the accident happened.

[15] All the evidence, including the accident reconstruction evidence, allow for the inference that Mr. Vavryshchuk was moving at the 60 km/hr speed limit or slightly above. In other words, he was travelling with the speed of traffic. The Crown quite appropriately concedes that excessive speed was not a factor in this collision.

[16] None of the witnesses witnessed any speeding, screeching of brakes, or erratic manoeuvres by Mr. Vavryshchuk.

[17] The accident reconstruction evidence is that there is a five second eastbound amber light followed by a three second all-direction red.

Available Inferences

[18] Factoring in the testimony of the one to two second green southbound light, the available inference that could be drawn by the jury on the basis of the evidence before me was that the time lapse between the start of the amber and the time of the collision was nine to ten seconds.

[19] The Crown argues that the available inference is that Mr. Vavryshchuk was inattentive from the time the light turned yellow to the time he collided with Mr. Mitchell, approximately nine to ten seconds.

[20] I agree that this inference would be available to a properly instructed jury. There is no suggestion that Mr. Vavryshchuk attempted to apply his brakes but simply failed to do so in time, skidding into the intersection. That leaves the jury open to conclude that Mr. Vavryshchuk did not see the yellow light, thus did not slow down, and thus entered the intersection on a red light.

[21] This inference is the Crown's case at its highest. The Crown concedes that Mr. Vavryshchuk did not deliberately try to "beat the red" or try to speed through the intersection.

Dangerous Driving – The Law

[22] "Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code". [1]

[23] Mr. Vavryshchuk was charged under the recently repealed [2] section 249(1) of the Criminal Code which read:

249 (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

[24] Justice Cromwell of the Supreme Court of Canada laid out the elements of dangerous driving in R. v. Roy.

[25] In addressing the actus reus (the act itself), he noted that "the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences". [3] He added that driving is an "inherently dangerous activity" thus "accidents caused by these inherent risks materializing should generally not result in criminal convictions". [4]

[26] In addressing the mental component, or the mens rea, he noted that driving must result from a "marked departure from the standard of care which a reasonable person would have exercised in the same circumstances". [5]

[27] Justice Cromwell elaborated, stating that two questions must be asked when making this assessment:

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. [6]

[28] Further:

37 Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. 34). The Chief Justice expressed a similar view: "Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving" (para. 71).

42 Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances…. In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

The Law and the Inferences Which Can be Drawn in This Case

[29] I am well aware that I exceed my jurisdiction as a preliminary hearing judge if I decide the ultimate question – whether Mr. Vavryshchuk is guilty or not guilty of dangerous driving. The question before me is more limited: could a reasonable jury, properly instructed, find Mr. Vavryshchuk guilty of dangerous driving?

[30] As I indicated at the outset, however, I find that it could not.

[31] A reasonable jury could find that the Crown has established the actus reus component of dangerous driving. Clearly the jury could draw the inference that entering an intersection on a red light was a dangerous act.

[32] The issue in this case is the mens rea component. Carelessness, as emphasized by Justice Cromwell, is not enough. Criminalizing carelessness runs the risk of branding as criminal those who are not morally blameworthy. The mental fault element must be a marked departure from the standard of care expected of a reasonable driver.

[33] Lakeshore Boulevard is a busy thoroughfare. The intersection was well marked with large green signs at the intersection. Traffic around Mr. Vavryshchuk had slowed to a stop. The Crown concedes, however, that there is no evidence that Mr. Vavryshchuk was speeding, tried to "beat the red", or of any dangerous manoeuvres other than entering the intersection a mere second or two after the light changed to red. A blink of an eye.

[34] Taking the Crown's case at its highest, a jury could infer that Mr. Vavryshchuk had been inattentive for, at most, nine to ten seconds. Nine to ten seconds when it is discussed and repeated over days in a courtroom can sound like an eternity. In reality, it is mere seconds. 1/10th of a minute. Several blinks of the eye. Taking the Crown's case at its highest, that is the length of time a jury could infer Mr. Vavryshchuk failed to register what was occurring around him. His driving may have amounted to carelessness – and I say "may", as that is not the issue before me – but I find that a reasonable jury could not infer the mens rea required to find criminal liability.

[35] Justice Cromwell emphasized that it is the driving, not the consequences, that must be examined. It appears in this case that it is the consequences which drove the charge, not the manner of driving. This was an horrific accident. A young man lost his life, a family is shattered, and there is nothing that can be done to reverse that fact. I am certain that everyone in the courtroom in the course of this preliminary hearing including, I suspect, Mr. Vavryshchuk, would do anything in their power to reverse those seconds. Sadly, that is the one thing that none of us can do.

Conclusion

[36] I find that a reasonable jury could not infer the necessary mental element in this case and I therefore discharge Mr. Vavryshchuk on the dangerous driving count.

Released: April 22, 2020

Signed: "Justice K. Caldwell"

Footnotes

[1] R. v Hundal, [1993] 1 S.C.R. 867 at para. 35

[2] This section was repealed in December, 2018 and replaced by the simplified wording in section 320.13(1) which now reads "Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public".

[3] R. v. Roy, 2012 SCC 26 at para. 34

[4] Ibid, at para. 34.

[5] Ibid, at para. 36 referencing R. v. Beatty, 2008 SCC 5 at para. 48

[6] Ibid, at para. 36.