Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 11 18 COURT FILE No.: Central East Region (Oshawa Court) 20-36402-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

AARON J. GEORGE

Before Justice Peter C. West

Evidence heard on August 17 and 18, 2022 Counsel provided written submissions Reasons for Judgment released on November 18, 2022

Counsel: Mr. P. Affleck................................................................. counsel for the Crown Ms. J. Griffiths................................. counsel for the accused Aaron J. George

WEST J.:

[1] On August 6, 2020, Aaron George was charged with assault with a weapon and dangerous operation of a motor vehicle. Mr. George pleaded not guilty. The Crown called four witnesses, Adam Hay, Tracy Vasconcelos, Olena Bolcic and John Diloshan. Mr. George testified in his defence. At the conclusion of the evidence counsel suggested that they provide written submissions and I want to express my appreciation for the work completed by counsel in addressing the issues raised in this case.

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

[3] The onus remains on the Crown to prove Mr. George’s guilt beyond a reasonable doubt throughout his trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of his guilt beyond a reasonable doubt. Of course the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt and the application of W. (D.) should not result in a triumph of form over substance. As Justice Cory reiterated in R. v. S. (W.D.), there is no “magic incantation.”

[4] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.); Avetsyan v. The Queen.

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

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

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

However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

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

[8] I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

[9] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.

[10] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman, is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence.”

[11] These are the principles I must use in my assessment of the totality of the evidence led during Mr. George’s trial.

Law Relating to Assault with a Weapon

[12] Section 265 of the Criminal Code defines an assault as follows:

s. 265(1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.

[13] Section 267 (a) provides:

s. 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault (a) carries, uses or threatens to use a weapon or an imitation thereof.

[14] With respect to the offence of assault with a weapon it is my view if I find that Mr. George intentionally drove his vehicle into Mr. Hay or that he was reckless in the manner in which he set his vehicle in motion, this will satisfy the required mens rea for the offence of assault and his motor vehicle would certainly qualify as a weapon under this section. Obviously, Mr. Hay did not consent to Mr. George operating his vehicle in such a way that it came into contact with him, whether on one or two occasions.

The Law Relating to Dangerous Operation of a Conveyance (Motor Vehicle)

[15] Section 320.13 (1) of the Criminal Code provides: Everyone commits an offence who operates a conveyance (which includes a motor vehicle) in a manner that, having regard to all the circumstances, is dangerous to the public.

[16] In Beatty, Justice Charron, for the majority of the Supreme Court of Canada, indicated it was necessary to restate the summary of the test for both the actus reus and mens rea for the offence of dangerous operation, which she did as follows:

(a) The Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, 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".

(b) The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[17] The fault requirements for s. 320.13(1) [previously s. 249(1)] are discussed in R. v. Beatty, supra, and in R. v. Roy. In R. v. Roy, the Supreme Court stressed it is “critically important to ensure that the fault requirement has been established.” Cromwell J, for the Court, held:

The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

[18] In terms of the actus reus, Cromwell J. in R. v. Roy, supra, held that dangerous driving requires an objective inquiry into whether the conduct was dangerous to the public. In paragraph 34, he cautioned, “The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved.” Although in Beatty, at para. 46, Justice Charron also observed:

The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.

[19] The mens rea component of dangerous operation turns on whether the conduct was “a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances": R. v. Roy, supra, at para. 36 and R. v. Beatty, supra, at para. 36. In approaching this issue Justice Cromwell suggested it is helpful to ask two questions:

The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[20] In determining whether a marked departure has been proved, a modified objective standard is employed. The modified objective standard means that while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused's incapacity to appreciate or to avoid the risk (see R. v. Roy, supra, at para. 38 and R. v. Beatty, supra, at para. 40). In R. v. Roy, supra, at para. 40, Justice Cromwell further elaborated on the proof of this fault requirement, where he held generally the existence of the objective mens rea can be inferred from the fact that the accused conducted himself or operated the motor vehicle in a manner that constituted a marked departure from the norm. However, even where the conduct is a marked departure from the norm, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the conduct. Justice Cromwell held:

The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

[21] Consequently, the mens rea required for dangerous operation of a motor vehicle is not proof of a positive state of mind, such as intent or recklessness. Rather, the court must be satisfied beyond a reasonable doubt that the accused's objectively dangerous, conduct was accompanied by a degree of care that was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances: see R. v. Beatty, at para. 43; R. v. Roy, at paras. 28, 36. The mens rea is assessed based on all of the evidence, including evidence about the accused's actual state of mind, if any. "The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment": see R. v. Beatty, at para. 48; R. v. Roy, at para. 28.

[22] I do not agree with the defence rejection of the Crown’s assertion that I must look at all of Mr. George’s driving conduct on the day in question to determine whether both the actus reus and the mens rea of the offence of dangerous operation are proven beyond a reasonable doubt. I do not believe that there was anything wrong with the defence approach of breaking the evidence down to attempt to simplify and organize it; however, I must examine the nature, condition and use of the place where the motor vehicle was operated and the amount of traffic (vehicular and pedestrian) that at the time is or might reasonably be expected to be at that place. It is also my view I must look at the entirety of the driving conduct engaged in by Mr. George and the circumstances it occurred in to properly assess whether his operation of his motor vehicle was a marked departure from the norm and that a reasonable person in his position would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. Further, as I have discussed the focus must be on the risk created by Mr. George’s manner of driving and not the consequences, although the consequences may assist in assessing the risk despite not being able to answer the question of whether his vehicle was operated in a manner dangerous to the public.

Factual Background and Findings of Fact

[23] On August 6, 2020, at approximately 4:40 p.m., Mr. Hay and Ms. Vasconcelos were walking down an aisle in the parking lot of the No Frills Plaza on King Street, Oshawa to go shopping for groceries at the No Frills store. Their attention was drawn to the loud sound of a car accelerating in the parking lot. A silver Ford Focus turned left at the top of the aisle (in front of No Frills), they were walking in and drove at a high rate of speed, which caused them both to yell at the driver to “slow down.” The car was driving too fast for a parking lot. There were other pedestrians and vehicles in the lot at this time. Ms. Vasconcelos saw a woman with her daughter walking in the aisle they were walking in. This was likely Ms. Bolcic who testified she was walking to No Frills after parking her car.

[24] There is no dispute that Mr. George was the driver of the Ford Focus. Mr. Hay and Ms. Vasconcelos watched the Focus drive towards the McDonald’s, which was south of their position. They continued to walk to No Frills. As they were walking to No Frills they heard further acceleration sounds from a car. Mr. Hay observed the same silver Focus driving half way up one aisle over driving back towards the No Frills store.

[25] Mr. George testified originally when he went into the No Frills parking lot he intended to go to McDonald’s to buy a drink and then go to Dollarama. He abandoned this plan after Mr. Hay and Ms. Vasconcelos yelled at him to slow down and he decided to only go to Dollarama. He did not think he was driving fast in the parking lot and decided to speak to the man who had yelled at him, to inquire what he had done wrong. He first saw the man walking towards No Frills. He denied being angry, he was only annoyed with Mr. Hay for yelling at him.

[26] In cross-examination he denied watching where Mr. Hay and Ms. Vasconcelos were walking when he was looping around the parking lot. He agreed he did not know those two people and did not know where they were going. He maintained he just happened upon them again when he went up the other aisle and then turned in front of the No Frills store. He tried to maintain it was a chance meeting when he came upon them in front of No Frills. When he was questioned further about this his evidence changed and he conceded he did want to speak to Mr. Hay to find out what he had done wrong. It is my view this was an area where Mr. George’s evidence was exceedingly evasive.

[27] From the totality of the evidence I find when Mr. George decided not to go to McDonald’s he did so because he intentionally drove back to confront Mr. Hay and Ms. Vasconcelos. It was no accident or mere happenstance that he came upon them again as he testified. I do not accept his evidence of this issue. If he just wanted to go to Dollarama after deciding not to get a drink at McDonald’s, as he testified, then he would logically have turned right after driving past Mr. Hay and Ms. Vasconcelos at the bottom of the aisle. He would then have driven west to one of the next two aisles going north and made another right turn, which would have taken him closer to where Dollarama is located in the plaza. This would have taken him away from where Mr. Hay and Ms. Vasconcelos were walking. Dollarama is some distance west of No Frills. As I indicated, Mr. George finally conceded in cross that he did want to speak to Mr. Hay and he turned left at the bottom of the aisle by the McDonald’s going to the next aisle over to the east, made another left turn and then proceeded to drive north back towards No Frills and the roadway in front of the No Frills entrance, where Mr. Hay and Ms. Vasconcelos were clearly walking towards. His evidence that he just happened upon them again despite conceding he wanted to talk to Mr. Hay to find out what he did wrong, in my view demonstrates that Mr. George’s position respecting these issues is completely inconsistent and nonsensical. I find he was intending to confront Mr. Hay and Ms. Vasconcelos because he was angry and upset they had yelled at him to slow down.

[28] In his evidence in chief Mr. George testified he drove at a normal or average speed when he operated his Focus in the No Frills parking lot. In cross-examination he rejected all suggestions that he drove 40 km/hr in the parking lot. He agreed 40 km/hr was too fast for a parking lot. He denied even driving 35, 25, or 20 km/hr and maintained the fastest he was driving would have been 15 km/hr or under that speed. This was another area in Mr. George’s evidence where in my view he was evasive in his answers and not forthright in his testimony when it is contrasted with what he said to the 911 dispatcher concerning his speed when he was driving in the No Frills parking lot and Mr. Hay and Ms. Vasconcelos yelled for him to slow down. The 911 operator asked why the pedestrian got mad at him and Mr. George responded, “He said I was, uh, driving too fast in the parking lot.” The operator asked, “Were you?” Mr. George responded, “I don’t think I was. Like, I was going the speed limit.” The 911 operator asked, “In the parking lot,” and Mr. George responded instantly, “Like, I was going like 40.” When confronted with what he told the 911 operator he said this was just an estimate and he was inaccurate, he merely said the first number that came to his mind. He agreed 40 km/hr would be incredibly fast for a parking lot. He maintained given he was driving a normal speed for a parking lot he was surprised by Mr. Hay yelling for him to slow down. Mr. George then tried to explain his inaccurate estimate because of the fact he was intimidated by being in the presence of a police officers. The difficulty with his assertion is the fact that no police officer was in his presence when he called 911. No officer came out of the police station as it was COVID. When this was pointed out to him he immediately added that he had seen a police officer in the window of the station and this intimidated him. In my view his explanation was evasive and made no sense whatsoever. He also agreed everything else he told the operator in his 911 call was completely accurate, which belies his feeling intimidated.

[29] Both Mr. Hay and Ms. Vasconcelos testified they continued to hear the Ford Focus revving its engine, driving fast in the parking lot after it passed them. This is what drew their attention to observing the Focus coming back to where they were heading. This also supports my finding that Mr. George was intending to confront the couple who yelled at him to slow down. Mr. Hay testified he saw the Focus loop around and come back to where he and Ms. Vasconcelos were about to cross the roadway to enter No Frills. The Focus stopped in front of them, with the driver’s window down, before they were able to cross the roadway. This area can be seen on the Google map identified by the witnesses on Exhibit 1 (overview of parking lot) and Exhibit 2 (closer view of parking lot) and Exhibit 3 and 4, which show the roadway directly in front of the No Frills entrance. Mr. Hay testified the driver, Mr. George, used profanity and asked who Mr. Hay and Ms. Vasconcelos were to tell him to slow down. Mr. Hay said he also used profanity, calling the driver a “fucking idiot.” He told the driver he should not have been driving the way he had in a parking lot and asked why the driver drove back. Their argument lasted for about a minute. Mr. Hay said Ms. Vasconcelos told him to just ignore the driver and they should go. They both testified they walked around the front of the Focus toward No Frills. Mr. Hay continued to argue with the driver through the windshield and Ms. Vasconcelos got past the car and closer to the entrance.

[30] Mr. Hay described the Focus suddenly accelerating forward, hitting him around his knees. It was not particularly hard. Mr. Hay testified he remained standing and yelled, “What the fuck are you doing” and “What’s wrong with you” at the driver. Mr. Hay described the car accelerating again and hit his legs causing him to fall onto the hood. He slammed his hands on the hood and rolled off the hood. He then went to the driver’s window, grabbed Mr. George and punched him. He tried to remove the driver from the Focus through the open window to hold him for the police but the car moved forward and Mr. Hay had to let go. The Focus drove away quickly down an aisle and left the plaza.

[31] Ms. Vasconcelos testified the Ford Focus came back around the parking lot after passing them and they had yelled for the driver to slow down. The Focus stopped in the crosswalk in front of them as they were walking to No Frills. In cross-examination she said she believed the driver came back to confront them. He asked why they cared about his driving. Mr. Hay told the driver they were concerned about his speed. She could not recall everything that was said. Both the driver and Mr. Hay were raising their voices and were loud and both were using profanity. Their discussion was heated and people began noticing the altercation. She said to Mr. Hay they should just leave and do their grocery shopping. They decided to continue into No Frills. As they walked in front of the Focus the car moved forward and came into contact with Mr. Hay’s knees, which caused him to fall forward. She was past the front of the Focus when this happened. Mr. Hay yelled at the driver, “What the fuck did you think you’re doing?” As he was getting off the hood of the car it hit him again. The movement was faster the second time. Mr. Hay tumbled. Mr. Hay used his body to push off the Focus.

[32] Ms. Vasconcelos described Mr. Hay moving quickly from the front of the car to the open driver’s window and he punched the driver. Words were exchanged by both men. Mr. Hay’s upper body was inside the window, as Mr. Hay was grabbing at the driver. The car was still moving and her concern was he was going to be dragged. She called 911 and grabbed Mr. Hay and pulled him away. The car then sped away quickly. An employee from No Frills gave them water. In cross Ms. Vasconcelos said the vehicle physically moved forward the first time it struck Mr. Hay. The first time it was a slow movement but the second time the vehicle accelerated. When Mr. Hay was hit the second time his body bent forward onto the hood of the Focus. Everything happened very quickly. When Shaun was punching the driver, the driver was hitting Shaun back. The Focus was rolling forward slowly at that point. When it drove away it was going very fast.

[33] The two independent witnesses, Ms. Bolcic and Mr. Diloshan do not become aware of the Ford Focus being driven by Mr. George until it is on the roadway in front of No Frills for the second time. Each of these witnesses testified their attention was drawn to this car because of the revving and loud noise it was making.

[34] Ms. Bolcic was in the No Frills parking lot with her 11 year old daughter. She described hearing a loud noise of a vehicle stopping suddenly. She observed the car speed up to where this couple was and stop suddenly. She observed a man and woman beside the car, which was stopped in the roadway in front of the No Frills. There was a heated conversation between the man and the driver. It is my view this evidence supports my finding of Mr. George’s intention to confront Mr. Hay and Ms. Vasconcelos after they yelled to him to slow down. The man, Mr. Hay, stood right beside Mr. George’s car. It was Ms. Bolcic evidence the man outside the car was trying to explain and convince the driver of something. She could not see inside car so did not know if driver was male or female. She then observed the man walking away from the car walking towards the No Frills entrance. The car followed him and made contact with this man. She believed it contacted his torso, his stomach. She believed when the car made contact with the man it caused him to bend over the front of the car. It happened very quickly. There was another argument between the two men after this and then the car drove away quickly. She described the driving of the car after coming into contact with the man as “stunt driving,” meaning it raced down the lot before exiting. She recalled the sound of its acceleration, like the driver was pressing hard on the gas. It was driving faster than normal in the parking lot and there were pedestrians in the lot when this occurred.

[35] In cross Ms. Bolcic described an argument between the man and the driver before the car contacted the man. She viewed it as an argument based on the voices and body language. The person inside the car was louder than the man outside the car. The voice of the man outside was initially raised but then it became calmer and went down like he was trying to explain something to the driver. Apparently she had not provided a statement at the time to the police and first gave one to the Crown on the trial date, which was disclosed to the defence. When the car contacted the man it was a sudden move. The female was ahead of the man when he was trying to walk away from the open driver’s window. In her statement to the Crown she did not indicate the man’s body was bent over the front of the car. Nobody told her the man’s torso was on the front of the car, this is what she remembers specifically happening. The car moved suddenly when it hit the man. There was more verbal exchange after the contact. It was Ms. Bolcic’s evidence she was on the passenger side of the car so she could not see everything that was happening on the driver’s side because of where she was.

[36] Mr. Diloshan testified he was sitting outside No Frills on a bench with a co-worker talking, during a break. He first saw a male and female crossing the roadway towards No Frills. They were holding hands. He then heard a car revving its engine in the roadway, the sound was louder than normal. Prior to this, as he was talking with his co-worker he was not taking notice of what was occurring in front of the No Frills. Mr. Diloshan testified there was an argument between the man and the driver of the car. It was heated and loud. There was a “gentle” push that he testified he would not describe as a hit. The verbal argument heated up and words were exchanged. The man outside punched the driver and was reaching inside the car. He observed both persons punching each other. The fight happened back and forth. In my view Mr. Diloshan’s evidence was somewhat confused in terms of the sequence of the events he observed between the pedestrian and the driver of the car. Looking at his evidence in its totality it would appear Mr. Diloshan first heard the car revving its engine then an argument between the pedestrian and the driver then the pedestrian was pushed by the car or the car moved forward and came into contact with the pedestrian then a further argument where the pedestrian and driver were involved in a fight, after the vehicle had contacted the pedestrian. After this the driver left revving his car’s engine again and the pedestrian was on the ground. Initially he indicated the car “pushed” the male pedestrian but then in cross he said he heard the revving of the engine, the car moved forward and made contact with the pedestrian.

[37] Mr. Diloshan did not see the car until he heard the noise. There was an argument about the bump. It was a heated argument. The pedestrian was mad because the guy bumped him and was racing the engine. Within 30 seconds of arguing the fight started. The pedestrian fell to the ground because the driver was leaving and the man was still reaching inside the car before the driver “released the brake” and drove “really fast in the parking lot” and then exited the parking lot. He described the pedestrian falling to the ground because his hand was still in the car when the driver left.

[38] Mr. George testified in chief when he came back around up to the roadway in front of No Frills he stopped at the yellow line and it was the man and woman who approached his vehicle. They were really aggressive, shouting at him. He testified he just wanted to know what he did wrong. They walked towards him. Words were exchanged back and forth and Mr. George testified he specifically asked the man if he could go. The man called him a “fucking idiot.” Mr. George could not recall everything that was said and didn’t remember exactly what he said. He testified he wasn’t yelling or over the top but he said he was giving the man “attitude.” He did not feel like he had done anything wrong. The man was yelling very loudly, cussing and being aggressive. Mr. George testified he was not angry, he was just annoyed because he was being accused of something he did not think he was doing. The man’s wife was there during the argument. The man was standing right in front of the driver’s side window. His wife was closer to the No Frills entrance. Mr. George testified he wanted to leave the situation to de-escalate it.

[39] Mr. George’s evidence of his demeanour when he was speaking to Mr. Hay is not supported by any of the Crown witnesses. Both Mr. Hay and Ms. Vasconcelos testified it was Mr. George who came up quickly to where they were walking and blocked them. This is supported by Ms. Bolcic and Mr. Diloshan who both describe their attention being drawn to a car that was revving is engine and stopping suddenly close to where a couple was walking towards No Frills. All of the Crown witnesses describe a loud argument between Mr. Hay and Mr. George, who were yelling at each other, with both using profanity. Mr. Hay candidly admitted to calling Mr. George “a fucking idiot” after Mr. George asked why they yelled for him to slow down. Ms. Bolcic’s evidence supports Mr. Hay’s and Ms. Vasconcelos’ evidence of the driver questioning what he had done wrong and Mr. Hay explaining to him that he was driving too fast in the parking lot. This is exactly what Ms. Bolcic describes she observed in her evidence. Ms. Bolcic also testified that the driver became increasingly loud and angry sounding as the argument went on, with Mr. Hay becoming calmer trying to explain things to the driver, which is completely contrary to Mr. George’s evidence.

[40] The two independent witnesses’ evidence is also in conflict with Mr. George’s assertion that he was calm and was only giving “attitude” to Mr. Hay. I do not accept Mr. George’s evidence that the couple approached him when he came to a stop at the yellow line by the bench and were being aggressive towards him and shouting at him. Both witnesses’ attention is drawn to Mr. George’s driving, his revving the engine, his sudden stop and his preventing the man and the woman from continuing into No Frills. This was what Ms. Bolcic observed. It was not a one-sided argument with Mr. Hay as the aggressor and Mr. George attempting to de-escalate the situation. Mr. George, as I have found, was coming back to confront the man and woman who told him to slow down. This is supported by the evidence of Ms. Bolcic and Mr. Diloshan.

[41] According to Mr. George the man then walked in front of Mr. George’s car and Mr. George didn’t believe he did anything that he knew of which would have caused his car to contact Mr. Hay. His evidence in chief changed when his counsel asked him if it was possible his car came into contact with the man and Mr. George conceded it was possible he bumped the man with his car but it was because he thought the man had walked past the front of his vehicle. Mr. George’s evidence once again became evasive and equivocal – his car did not contact Mr. Hay was his initial position to yes it was possible his car did come into contact with Mr. Hay but this was because he thought Mr. Hay was past the front of his car. However, all of the Crown witnesses testified Mr. Hay was directly in front of the car when it moved forward and contacted Mr. Hay. In fact, Mr. Hay and Ms. Vasconcelos both say after Mr. Hay left the open driver’s window to walk in front of the car to go to the No Frills entrance he stopped and was still facing the front windshield of the Focus, still saying things to Mr. George. It was while he was standing there that the car accelerated forward and hit Mr. Hay’s legs.

[42] The only discrepancy between the Crown witnesses is whether there were one or two hits. Ms. Bolcic observed the car contact Mr. Hay causing him to bend over the front hood and come into contact with it, with his stomach. This is what Mr. Hay and Ms. Vasconcelos described as being the second time the car hit Mr. Hay. The first contact was only described as being slight or gentle, contacting Mr. Hay’s knees but he remained standing. In my view it is within the realm of reason that Ms. Bolcic did not see the initial “bump” or “gentle” contact by the Focus to Mr. Hay’s knees. It is my view that both Mr. Bolcic and Mr. Diloshan were not observing everything that occurred during the interaction between Mr. Hay and Mr. George. In my view this is not surprising as they were not personally involved in the altercation themselves. Their attention was drawn by the revving and loud acceleration of the car and then a loud and heated altercation between the driver of the car and Mr. Hay, a pedestrian. Their perception and memory of what occurred in my view will be affected by that, as well as where they were situated when they made their observations. For some reason Ms. Bolcic was never interviewed by the police such that a statement was obtained close to the events. Ms. Bolcic could not see into the car and did not know what the driver was doing or if the driver was male or female. Mr. Diloshan testified the driver was fighting with the pedestrian, punches were being thrown by both from my notes of his evidence. Ms. Vasconcelos observed both men punching each other as well. This conflicts with Mr. George’s evidence who testified he did not fight with Mr. Hay. I do not accept Mr. George’s evidence on this issue as well.

[43] One thing is clear from all the evidence, Mr. Hay, after being struck by the car, went back to the driver’s window and reached into the open window, grabbed at Mr. George and punched him. Again, Mr. Hay candidly admitted to doing that and Ms. Vasconcelos testified Mr. Hay did that. Mr. Diloshan described a fight between both. I found Mr. Hay and Ms. Vasconcelos to be forthright witnesses who were not evasive in their evidence, answered questions directly and much of their evidence corroborated each other but was not so identical or similar to cause concerns about them tailoring or influencing the other’s testimony. Mr. Hay conceded initially being upset with Mr. George because of the speed he was driving in the parking lot, then volunteering when Mr. George returned and confronted them that he swore at him and after being hit by the car becoming angry with him to the point where he ended up punching him and trying to pull him out of the car to hold him for the police. All of these candid admissions were contrary to Mr. Hay’s interests and came out in his evidence in chief. In my view he was forthright and candid in his evidence and at no time did he try to minimize or excuse his interactions with Mr. George.

[44] Mr. George testified he intended to go down the aisle he had already gone down to exit but the guy came back to his window. The man put his torso through the window and grabbed at Mr. George’s chest and clothes. The man punched Mr. George in the left side of his jaw. He was trying to pull Mr. George out the window. Mr. George was trying to lean away but his seatbelt was on. At this point the man’s wife was to the right of the man telling him to stop. He testified he was making sure his car did not roll and he didn’t throw any punches. He did not know if his car was moving forward. The man then began to pull himself out of the car and then he walked in front of the car and turned, looked at Mr. George and slammed his hands down on the hood of the car before he went into the entrance of No Frills. No one else described that occurring.

[45] Both Mr. Diloshan and Ms. Vasconcelos testified that Mr. George was moving his car forward when Mr. Hay was still leaning into the car grappling with him. They both describe that as the car moved forward Mr. Hay fell to the ground and then the car sped off and exited the parking lot. As I will discuss further, this action by Mr. George in my view was extremely dangerous and this concern was expressed by both of these witnesses. I do not accept Mr. George’s version of Mr. Hay letting go and taking his body out of the open driver’s window and then walking in front of the car and slamming his hands on the hood. I find that did not occur.

[46] Mr. George testified he drove at a normal speed when he exited out of the parking lot. He maintained it was not possible that he was speeding when he left from where the altercation with Mr. Hay occurred in front of No Frills. He denied revving his engine at any time in the parking lot. He did not believe he was in the parking lot for more than five minutes in total. In my view this evidence is completely disproved by the evidence of all four Crown witnesses, who described his exit as “stunt driving,” pressing hard on the gas and accelerating fast out of the parking lot, driving really fast in the parking lot, having regard to other pedestrians and other vehicles present at that time, which was what originally caused Mr. Hay and Ms. Vasconcelos to yell at Mr. George to “slow down” as he drove past them. I do not accept Mr. George’s evidence as to his manner of driving after the altercation between himself and Mr. Hay as he drove to leave the No Frills parking lot.

Conclusions

[47] Dealing first with the dangerous operation charge facing Mr. George. As I have indicated in my discussion of the facts and my findings, I do not accept Mr. George’s evidence respecting his driving conduct on August 6, 2020, when he drove around the parking lot in the No Frills plaza on King Street in Oshawa. On the totality of the evidence I make the following findings of fact:

1. It was 4:40 p.m. on August 6, 2020, which was a Thursday. The evidence established there were both many vehicles and pedestrians in the No Frills plaza. From the Google Map filed this plaza has numerous retail stores, including a No Frills grocery store, Dollarama and a Walmart Superstore, as well as a McDonald’s Restaurant. This means motor vehicles travelling in the roadways within the plaza, both in the parking lot aisles and in front of the businesses, would expect to experience other motor vehicles looking for parking spaces and pedestrians, which would have included children given the time of day and schools were no longer in session, walking in the aisles going to the various businesses. I heard evidence, which I accept that there were many vehicles and pedestrians in the parking lot and I find a reasonable driver would have expected there to be many vehicles and pedestrians.
2. I accept the evidence of Mr. Hay and Ms. Vasconcelos that after they parked their vehicle they observed Mr. George’s Ford Focus make a left turn from the roadway in front of the No Frills grocery store and that this vehicle was travelling at a speed much greater than would be normal and appropriate for travel within a parking lot in the late afternoon on a Thursday.
3. I accept their evidence that their attention was drawn to this Ford Focus because of the revving of its engine and the acceleration noise they heard before it turned left to proceed south in the aisle they were walking in. Further, I accept their evidence that the speed of this vehicle caused them to be so concerned that they both shouted at the driver to “Slow down.”
4. I accept their evidence that this vehicle did not slow down, rather, they observed the vehicle accelerating at a fast high rate of speed proceeding first eastbound and then northbound in the aisle parallel to the aisle they were walking north towards No Frills where they intended to do their grocery shopping.
5. I accept Ms. Vasconcelos’ evidence that she believed that the driver of this vehicle was looping around to confront she and Mr. Hay. Her belief was confirmed by Mr. George’s own testimony, when he changed his evidence in cross that he wanted to speak to the couple to find out what he supposedly had done wrong because he did not believe he had done anything wrong.
6. I find that Mr. George was observing where Mr. Hay and Ms. Vasconcelos were in the parking lot and he was rushing to intercept them. I find he was driving at a speed far in excess of what would be the normal and a safe speed for vehicles travelling in this parking lot in the late afternoon in August on a Thursday, when one could reasonably expect the parking lot to be busy with vehicles and pedestrians.
7. I find Mr. George’s speed was excessive as corroborated by the evidence of Ms. Bolcic and Mr. Diloshan who both had their attention drawn to this Ford Focus as a result of its revving engine, sound of it accelerating and then coming to a sudden stop. Ms. Bolcic testified and I accept her evidence that when she looked to the direction of this sound of a car revving its engine she observed it to stop suddenly beside a man and a woman who were about to cross the roadway to go into the entrance of No Frills. Ms. Bolcic confirmed both Mr. Hay and Ms. Vasconcelos’ evidence that this vehicle when it stopped suddenly was blocking their intended path to cross the roadway.
8. I do not accept Mr. George’s evidence that Mr. Hay and Ms. Vasconcelos were the aggressors and that they walked eastbound to where Mr. George said he stopped at a yellow line by a stop sign. I find Mr. George was the aggressor and he stopped his vehicle in front of Mr. Hay and Ms. Vasconcelos so he could confront and accost them concerning their yelling at him to “Slow down” when he was proceeding southbound in the aisle they were walking northbound.
9. I find that Mr. George asked who they thought they were to tell him to slow down. I find that he used profanity when he first spoke to them and Mr. Hay responded in kind telling Mr. George he was driving too fast for a parking lot and this was why they told him to slow down. This led to Mr. George and Mr. Hay becoming involved in a heated exchange. I accept Ms. Bolcic’s evidence that Mr. Hay became calmer and attempted to explain to Mr. George why they had yelled.
10. I find Ms. Vasconcelos told Mr. Hay that it was not worth it to continue arguing with Mr. George and they should just continue with their grocery shopping. I find Ms. Vasconcelos convinced Mr. Hay to come with her and they moved from the driver’s side of Mr. George’s vehicle and walked in front of his Ford Focus. Ms. Vasconcelos was ahead of Mr. Hay who continued to engage with Mr. George. Ms. Vasconcelos walked past the front of the Ford Focus and Mr. Hay continued to make comments to Mr. George, looking at Mr. George through his windshield directly in front of Mr. George’s car.
11. I find Mr. George’s car moved forward and bumped Mr. Hay in his knees. I accept Mr. Hay’s evidence respecting this contact made with his legs by the Ford Focus. I find this was not a hard contact. This may very well be the contact between the car and Mr. Hay observed by Mr. Diloshan, which he described as “gentle,” not hard but it was contact where Mr. Diloshan described Mr. George’s car moving forward slowly and contacting Mr. Hay’s legs. Mr. Diloshan did not see Mr. Hay bend over onto the front hood of the car. This contact between Mr. George’s car and Mr. Hay’s legs was seen by Ms. Vasconcelos as well. Mr. Hay testified he remained on his feet when this occurred and he yelled at Mr. George, “What the fuck are you doing” and “What’s wrong with you.” This was heard by Ms. Vasconcelos. Mr. Diloshan heard Mr. Hay exchanged words with the driver after he observed this contact. I accept all of that evidence.
12. I accept the evidence of Mr. Hay and Ms. Vasconcelos that almost immediately after this occurred the car accelerated forward a second time and this time when front bumper struck Mr. Hay’s legs the impact caused him to fall onto the front hood of the Focus on his stomach and torso. Ms. Bolcic observed this as well and she described Mr. Hay falling onto the front hood of the car and then rolling off and going to the driver’s open window.
13. I do not accept Mr. George’s evidence when he initially testified his car did not come into contact with Mr. Hay. I also do not accept his evidence when he changed it that his car possibly came into contact with Mr. Hay. In my view Mr. George was not being honest when he provided either version. Both Ms. Vasconcelos and Ms. Bolcic testified the Focus accelerated and moved forward striking Mr. Hay and causing him to fall forward onto the front hood of the car. I find Mr. George knew full well what he had done. Mr. Hay was continuing the argument and I find Mr. George intentionally pressed on the gas and took his foot off the brake and the car moved forward. Maybe it was an accident the first occasion it contacted Mr. Hay but Mr. George knew then what had occurred because Mr. Hay swore at him asking what the fuck was he doing? This second time was no accident it was I find an intentional deliberate action by Mr. George.
14. It is important to note in the sequence of events the physical altercation had not occurred yet between Mr. Hay and Mr. George. It was only after Mr. Hay fell onto the front hood that he moved to the open window and reached into the car grabbing Mr. George by his chest and clothes and punched him. Mr. Diloshan and Ms. Vasconcelos both observed a fight between both men. I find it was Ms. Vasconcelos who was able to pull Mr. Hay away and he exited the open window but not before Mr. George began to pull away, which caused Mr. Hay to fall to the ground as observed by Mr. Diloshan and Ms. Vasconcelos.
15. Once Mr. Hay was outside the car again and not inside the open window struggling and grappling with Mr. George, this was when Mr. George sped away exiting the parking lot. Ms. Bolcic described him as “stunt driving” and driving really fast down one of the aisles to get to the exit he left by. Mr. Diloshan also observed the speed by which Mr. George left the parking lot and he described him driving at a speed too fast for driving in a parking lot.
16. I further find that Mr. George spoke the truth in his 911 call to police when he responded to a question by the operator that he was driving the speed limit and when he was asked how fast he was going he said, “Like, I was going like 40.” This was a voluntary spontaneous utterance and I do not believe this was an estimate or that Mr. George was mistaken, this was how fast he believed he was driving. In my view the observations of all four witnesses as to the speed by which Mr. George exited after hitting Mr. Hay with his car 40 km/hr is not beyond belief or an impossible speed.

[48] The danger to the public caused by Mr. George by his driving relates to the speed he was driving initially that caused Mr. Hay and Ms. Vasconcelos having regard to the number of vehicle and pedestrians in the parking lot and the plaza, as well as his decision to confront Mr. Hay and Ms. Vasconcelos and then the manner in which he drove to accost them before they were able to enter No Frills store. Further, his conduct in applying his gas, (this was heard and referred to by Ms. Bolcic) which causing his vehicle to move forward, striking Mr. Hay and causing him to fall onto the front hood of the Ford Focus was extremely dangerous. Mr. George knew this had already occurred, whether accidentally or intentionally, because Mr. Hay told him the car had moved forward and contacted his legs. Mr. George knew full well Mr. Hay was right in front of his car and if he went forward he would strike him. He had to apply his gas and remove his foot from his brake pedal. These were conscious, intentional acts. There was no evidence that his windshield was blocked by dirt or the sun was shining in his eyes and preventing him from seeing where Mr. Hay was located. His testimony that he believed Mr. Hay was past the front of his car in my view was a blatant and barefaced lie. Further, he knew Mr. Hay was leaning into his vehicle and grabbing him and trying to pull him out of the car through the open driver’s window. As such, he knew if he moved his car forward he was potentially going to be dragging Mr. Hay and Mr. Hay could very well end up under the wheels of his car. Luckily Ms. Vasconcelos was able to pull Mr. Hay away from the car and extricate him from the driver’s window. The final dangerous act by Mr. George was the speed by which he exited the parking lot of this plaza. This created the same danger referred to at the start of this paragraph to the many vehicles and pedestrians who were or could be expected to be in a busy plaza parking lot in the late afternoon on a Thursday.

[49] Mr. Hay has testified he had some soreness from the contact with Mr. George’s car he experienced. Luckily the consequences were not more serious or severe, however, in my view this demonstrates the comments I have referred to in Beatty above that consequences assist in determining the risks but do not answer the question of whether Mr. George operated his vehicle in a manner dangerous to the public.

[50] It is my view when viewed in its totality Mr. George’s operation of his motor vehicle was dangerous to the public having regard to all of the circumstances I have set out above. I find his operation was objectively dangerous and amounted to a marked departure from the standard of care that a reasonable person would observe in Mr. George’s circumstances. Further, I am satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct he manifested on August 6, 2020, and I find the Crown has proven the charge under s. 320.13(1) beyond a reasonable doubt. There will be a finding of guilt.

[51] Having found that Mr. George’s action of applying the gas and releasing his brake on his car causing it to strike Mr. Hay resulting in him falling onto the front hood of the car as intentional, it is my view that the Crown has proven the charge of assault with a weapon beyond a reasonable doubt. Mr. Hay certainly did not consent to being struck by Mr. George’s car. As a result there will be a finding of guilt on the charge of assault with a weapon as well.

Released: November 18, 2022 Signed: Justice Peter C. West