His Majesty The King v. Paul Greenberg, 2024 ONCJ 542
ONTARIO COURT OF JUSTICE DATE: 2024 10 21 COURT FILE No.: Toronto 998-23-48103098-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
PAUL GREENBERG
Before: Justice Christine Mainville
Heard on: September 23 and 24, 2024 Reasons for Judgment released on: October 21, 2024
Counsel: Jessica Cheng, counsel for the Crown Howard Cohen, counsel for the accused
Mainville J.:
[1] Mr. Greenberg is charged with dangerous operation of a motor vehicle. In the evening hours of April 13, 2023, he was driving his Volkswagen Golf home from work, heading north on the Don Valley Parkway (DVP) in Toronto. He sped past a marked Toronto Police Service (TPS) Collision Reconstruction Squad equipment van and several other vehicles.
[2] After passing these vehicles on the left and right, he got boxed into the curb lane and collided with a truck in front of him. There was significant damage to his vehicle. The police seized the car and sought a warrant to obtain and analyze its dash-camera.
[3] The dash-camera video footage depicting approximately 58 seconds of driving prior to the collision was made an exhibit at this trial. There was no reconstruction of this collision and I do not have evidence of the precise speed Mr. Greenberg was going. The Crown relies on what is depicted in the video, and on the testimony of the police officers involved in the investigation including from the TPS equipment van who directly witnessed some of the accused’s driving. These officers say they observed the accused’s car travelling alongside other vehicles at very high speed, passing by the flow of traffic.
[4] Mr. Greenberg testified in his defence. He is 60 years old and an experienced driver. He testified to the approximate speed he was going and provided context for the driving depicted in the video.
[5] In particular, he testified that he is very familiar with this highway and was headed home that day, driving “marginally” above the posted speed limit of 90 km/h. He acknowledged several lane changes including to the right of cars but said he was moving with the flow of traffic and described his lane changes as having been conducted in a “safe fashion”. He testified that he is cognizant of other cars on the road and that he was accordingly paying attention to the traffic immediately around him but was not concerned with other vehicles potentially driving at an excessive speed, only with vehicles in his field of vision or that may impact his progress on the road.
[6] Mr. Greenberg explained that the truck ahead of him in the curb lane was going slower than most vehicles that were driving at the speed limit and that he misjudged its speed. He stated that he moved into the curb lane to pass a yellow SUV that was in the centre lane. As he did so and realized that the truck was moving more slowly than anticipated, he sought to return to the centre lane in front of the yellow SUV. He testified that there was still approximately 30 to 40 metres between him and the truck when he started his lane change. He checked all his mirrors and his blind spot, and at that time saw a dark SUV moving into the centre lane from the fast lane, “competing for the same lane”.
[7] Mr. Greenberg described the dark SUV as shooting by and “bullying his way into that lane”. He weaved his own vehicle to avoid side-swiping the SUV and “a potentially catastrophic accident” with that vehicle. He testified to the SUV going “a significantly greater rate of speed” than he was and being instantly forced back into the curb lane. He asserted that his lane changes would’ve allowed for a safe pass had he not been cut off by the SUV darting into the centre lane.
Dangerous Driving and Principles to be Applied
[8] As recently summarized in R. v. Akhtar, 2022 ONCA 279, at para. 29, the actus reus of dangerous driving “is conduct which, viewed objectively in all the circumstances, constitutes a danger to the public actually present or who may reasonably be expected to be present.” Relying on R. v. Roy, 2012 SCC 26, the Court stated that “[i]t is the manner in which the vehicle was driven that is at issue, not the consequences of that driving”. Nevertheless, “the consequences may assist the trier of fact in assessing the risk involved: R. v. Mueller (1975), 29 C.C.C. (2d) 243 (Ont. C.A.).” See also R. v. Beatty, 2008 SCC 5, at para. 46.
[9] The circumstances to be taken into account include “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”: Beatty, at para. 43.
[10] The mens rea for dangerous driving was explained as follows in Beatty, at para. 7:
The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a “marked departure” from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.
[11] Of note, “while the modified objective test calls for an objective assessment of the accused’s manner of driving, evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea. … [I]f 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”: Beatty, at para. 43.
[12] The accused is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.
[13] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether that person was trying to tell the truth and if the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue.
[14] Testimony can be assessed through a non-exhaustive list of factors, including the plausibility of the evidence; the presence of independent supporting or contradicting evidence; the external and internal consistency of the evidence; the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, the witness’ demeanour while testifying.
[15] A trial judge is entitled to believe all, part, or none of a witness’ evidence and may attach different weight to different parts of a witness’ testimony.
[16] In assessing the credibility and reliability of the witnesses, a trial judge does not simply choose one conflicting version of events over another. Instead, I must apply the framework set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742.
Findings of Fact and Analysis
[17] Mr. Greenberg entered the northbound DVP ramp at Lakeshore Road, where it merges with traffic coming from the Gardiner East expressway. Officers Uchman and Osborne were travelling in a TPS equipment van in the same direction.
[18] It is agreed that the posted speed limit on the DVP is 90 km/h. As it merges with the Gardiner, it opens from a two-lane highway to a three-lane one. There are several on-ramps in the first few kilometers of the DVP at that juncture. The weather was clear, and the roadway was in good condition.
[19] Officer Uchman characterized the traffic at the time as light. Officer Osborne characterized it as moderate. Mr. Greenberg indicated it was moderate upon entering the roadway as vehicles converge onto a two-lane highway, but it became light as the DVP opened into three lanes. He acknowledged that there were a number of cars on the roadway, but they were spaced well apart.
[20] My assessment of the video evidence is that the traffic was generally moderate. It was not heavy peak hour traffic and traffic was flowing well. While it could be characterized in some places as light for the DVP – which is a very busy highway extending across the city that is frequently congested and where traffic can be at a standstill – there were still many vehicles on the roadway such that moderate traffic I think better describes the scene. This is supported by the various lane changes Mr. Greenberg had to make to get ahead of the moving traffic. No one lane was free of traffic such that he could simply proceed straight at his chosen speed.
[21] Officers Osborne and Uchman testified to travelling with the flow of traffic, and suddenly being overtaken by several vehicles travelling at high speed. This was shortly prior to the Volkswagen colliding with the truck in the curb lane.
[22] Mr. Greenberg testified that he was driving with the flow of traffic – which he described as “trying to travel at the same rate as the majority of drivers on the road”. He said he was going only marginally faster than the posted speed limit – approximately ten to 15 km/h over the limit. He testified that on this occasion, there were a variety of speeds on the roadway: some vehicles were driving considerably slower and some faster than the speed limit – he assesses that he was somewhere in the middle.
[23] I completely reject this characterization of his speed. The videos show him going significantly faster than almost all the other vehicles on the highway.
[24] While I do not have evidence purporting to establish Mr. Greenberg’s exact speed or indeed his range of speed with any level of accuracy, I may draw certain inferences about his general speed based on the circumstantial evidence adduced: see, for instance, R. v. Baker, 2013 ONCA 746, at para. 11 and R. v. Pyrek, 2017 ONCA 476, at para. 36.
[25] Officer Uchman, the front passenger of the TPS van, estimated that they were travelling at or around the speed limit of 90 km/h and with the traffic that was moving very well. He testified that some speeding vehicles “blew by” them, stating that there was “quite a bit of speed involved”. He observed the cars “doing fair speed more than what [they] were doing at the time”, providing a speed estimate of 140. He characterized all the speeding cars as “driving very fast” and “driving way excessively”. He testified that the speed was a “marked departure” from their own though he did not intend to use the expression in its legal sense.
[26] Officer Osborne, the driver of the TPS van, testified that he was going somewhere between 70 to 90 km/h and that their van was travelling with the flow of traffic. They were in the middle lane when observed on the dash-camera. At that time, he noticed a car speeding in his right rearview mirror. A car then passed on his right at high speed. He observed three to four more cars pass them at a high rate of speed, shortly before a collision occurred ahead. He also characterized the speed as “fast, a marked departure from the other cars on the road at the time”.
[27] These observations align with my own observations of the objective dash-camera video footage, as it relates to Mr. Greenberg’s Volkswagen. The video shows him easily overtaking several other vehicles including the TPS van to its right. Mr. Greenberg agreed with the suggestion that, altogether, he overtook at least 18 vehicles during the 58-second duration of the video. The other cars seen on the video at around that time are generally moving at about the same pace as the TPS van, or at least substantially slower than Mr. Greenberg’s vehicle – except for one dark SUV which I will return to below.
[28] The rear-view dash-camera footage shows at least one additional vehicle traveling at high speed early in the journey, but it subsequently slows down to some extent. No vehicle other than the dark SUV ever catches up to Mr. Greenberg’s vehicle.
[29] I accept Officer Uchman and Officer Osborne’s testimony that they were moving with the flow of traffic at or a little below the posted speed limit. As indicated above, traffic was not heavy. The circulation was fluid. In that context, it is not plausible that the overall flow of traffic on the DVP was markedly slower than the posted speed limit. While it is possible that one car, or perhaps a limited number of cars, was going slow, I find that the overall traffic was moving fluidly at around the posted speed limit or slightly below it.
[30] Mr. Greenberg was going substantially faster than that flow of traffic, and thus significantly faster than the posted speed limit – not marginally so, as he described. He repeatedly overtook other cars on the roadway, in a very short amount of time.
[31] In fact, the two vehicles that are most certainly not moving with the flow of traffic are Mr. Greenberg’s Volkswagen and the above-mentioned SUV. They are going markedly faster than the other vehicles. They overtake car after car, including the TPS van, passing them at a rate that was substantially in excess of those vehicles’ speed.
[32] Mr. Greenberg stated that he was “travelling at any given moment at a rate of speed that the roadway would allow”. He pointed to the dark SUV to state that he did not overtake every vehicle on the road. But aside from this one SUV which was also going excessively fast, in my assessment he did overtake every other vehicle seen ahead of him on the dash-camera footage, up to the point of the collision.
[33] Indeed, the dash-camera video depicts a dark SUV that is clearly speeding through the flow of traffic like Mr. Greenberg. They occasionally appear to be driving in tandem, with that vehicle going left to overtake one or several vehicles in the centre lane, and Mr. Greenberg going right. This is essentially what happened when Mr. Greenberg was forced to retreat to the curb lane and collided with the truck ahead of him. This other vehicle was in the fast lane and moved into the middle lane at a high rate of speed, effectively boxing in Mr. Greenberg.
[34] But by repeatedly passing to the right at the rate of speed he did, Mr. Greenberg clearly took that risk. He repeatedly went from a faster lane to a slower lane to pass other vehicles. By my count, he did so four times within the 58 seconds depicted in the video and attempted to do so on a further occasion.
[35] Indeed, in a couple of instances early on in his journey, it is apparent that Mr. Greenberg is looking to change lanes to get around a vehicle but is prevented from doing so because another car is in the way, or the vehicle ahead accelerates and opens a different trajectory on the roadway.
[36] Mr. Greenberg described making a lane change from the left lane to the centre lane to the right lane early on in his driving, because he saw a clear path in the right lane.
[37] In my view, despite his testimony that he was at that time driving with the flow of traffic, at approximately 90 km/hr or marginally above that, the reason he sought out “a clear path” ahead was to speed and pass the traffic in the faster lanes. It belies his suggestion that he was travelling with the flow of traffic throughout. If he was travelling with the flow of traffic, he could have remained in the left or centre lane – there would be no need to find a clear path to move beyond the traffic in front of him. In fact, passing several other vehicles is precisely what Mr. Greenberg does once in that right lane.
[38] Mr. Greenberg in fact changed lanes several times to get around vehicles and find the clearest lane that would enable him to do so. This continuous lane-changing, especially early on in this journey, and at an excessive speed, is despite him acknowledging that up to the onramp from Eastern Avenue, the onramps come in very close succession to each other, which speaks to a lot of things happening and the need to remain very alert. Despite these fast-evolving circumstances, he proceeded to pass vehicles in the right lane, at a significant rate of speed.
[39] Mr. Greenberg described this as the cars positioning themselves upon merging onto the DVP, or “jockeying for a position” on the highway as it opened up and cars merged from various onramps.
[40] In my view, the video footage depicts something akin to video-game racing, where the goal is to overtake other motor vehicles on the roadway to simply get ahead – whether passing from the left or the right.
[41] A similar description was given of the driving at issue in R. v. Yogeswaran, 2021 ONSC 1242, at paras. 212-216. There, the court characterized the driving as resembling “what one might expect from a stock car driver on a racetrack, not a reasonably prudent driver on a public roadway”. The accused was convicted of dangerous driving for accelerating towards an intersection in moderate to heavy traffic, on a city street, before changing lanes to pass a stopped vehicle on the right and in the intersection.
[42] Mr. Greenberg acknowledged that it may not be desirable to pass on the right based on the rules of the road, but he was reacting to a de facto situation where other motorists on the road are not all observing the rules of the road, “where ideally you are always passing on the left.” He explained that in an ideal world, the right lane is the slow lane and when overtaking cars, those slower cars should move into the center or right lane. But, he said, “the rules of the road don’t apply in reality” so you have to pay attention to what is going on on the road, primarily in front of you.
[43] The difficulty with that explanation is that Mr. Greenberg never gave any car the chance to move to the right and out of his way; he simply picked the clearer path and moved his way around other vehicles as he could – and at a high rate of speed. It was him who was not abiding by what is expected of reasonably prudent motorists when it comes to passing. While a right lane pass is not illegal in and of itself, I must account for the totality of the circumstances here including the speed at which the passing was done.
[44] In his testimony, Mr. Greenberg responded to a suggestion made in the Information to Obtain (ITO) the search warrant that the group of speeding vehicles was observed weaving between cars. In his testimony, however, Officer Osborne indicated that nothing stood out to him in terms of lane changes, but the period of observation prior to the collision was very brief. Officer Uchman testified that the cars were changing lanes, but he indicated that after the Volkswagen – Mr. Greenberg’s vehicle – passed them to the right, it very quickly thereafter collided with the truck. He did not see it weaving. The video indeed shows Mr. Greenberg passing the police vehicle approximately 41 seconds into the video. The collision occurs quickly thereafter.
[45] Mr. Greenberg testified that he was not “weaving”, stating that there was no reason for him to weave as there weren’t sufficient vehicles on the road to be in close quarters to them. His definition of weaving is analogous to a type of car test called a slalom test, where cars are steering constantly going through a sequence of cones, and tires are heard squealing with the lateral movement of the car from side to side. He admitted to conducting several lane changes but explained that he was merely traveling in his lane until he was close enough to the vehicle in front to change lanes.
[46] What can be observed on the dash-camera video, if the entire period of driving depicted there is considered, is Mr. Greenberg’s vehicle overtaking cars from the left and the right as he makes his way past the flow of traffic. I agree that Mr. Greenberg was not consistently zigzagging from one lane to another between cars in a manner that involved cutting them off and tailgating. Nevertheless, he was rapidly moving back and forth between lanes and in between cars.
[47] Mr. Greenberg testified that the truck he ultimately collided with ahead of him was going noticeably slower than the posted speed limit. I do not accept this characterization.
[48] Officer Uchman testified that based on his observations, the truck was keeping pace with other vehicles. There are no vehicles immediately ahead of the truck forcing it to slow down, nor is there any indication that it was slowing to exit or change lanes. No braking lights can be seen on the truck in the video.
[49] This description aligns with the video evidence. The truck was certainly going noticeably slower than Mr. Greenberg was. But in my assessment, that is because of Mr. Greenberg’s own speed. The video shows the truck moving along with the rest of the traffic, at a reasonable pace. I am not prepared to rely on Mr. Greenberg’s testimony as to the truck’s speed, given the video evidence and the credibility issue I have found relating to his assessment of his own speed.
[50] In any event, the truck was in the curb lane of a three-lane highway. It was entitled to be driving below the maximum speed limit. The video does not show it driving dangerously slow – again, it is moving along with the general flow of traffic.
[51] And, as a general rule, it is reasonably foreseeable that some motorists on a highway – in particular on a central thoroughfare in Toronto – will travel at varying speeds including some at speeds substantially below the speed limit. In this case, Mr. Greenberg in fact testified that he was aware that the traffic was moving at varying speeds.
[52] Moreover, there is of course a higher chance of encountering slower drivers in the curb lane – also known as the slow lane. That is the safe lane for vehicles travelling slowly, in particular on a three-lane highway where three options are available to motorists. That is why it is generally ill-advised to pass in the slow lane. Passing lanes are for passing. It is more dangerous to be travelling at high speed in the slow lane, and indeed to be changing lanes back and forth repeatedly to pass other vehicles. A reasonably prudent driver is cognizant of the possibility of encountering vehicles moving more slowly and is prepared to react such as by reducing their speed.
[53] If a driver decides to speed in the slow lane, they must anticipate that they may encounter vehicles who are travelling below the maximum speed limit, and indeed potentially well below it. If the driver intends to use that lane to overtake other cars, they must take reasonable care to ensure that they can do so safely. They must ensure that they will be able to safely re-enter the faster lanes without getting boxed in or be prepared to slow down substantially to accommodate the slower traffic in the curb lane.
[54] Instead, Mr. Greenberg passed several cars in the right lane at high speed. I accept that he did so with the expectation that he would be able to re-enter the faster lanes once he encountered a slower vehicle ahead of him or a clearer path in one of the other lanes. He misjudged or struggled to properly judge the speed of the truck and the actions of the SUV. But that was because he was going too fast when he approached the truck, in particular for the curb lane, and because of his frequent lane changes. See, in that regard, the fact scenarios in R. v. Parkin, [2005] O.J. No. 5557, at para. 4 and R. v. McLennan, 2016 ONCA 732, at para. 40.
[55] He took a serious risk by driving as fast as he did in the curb lane and assuming that he would be able to safely merge back into the middle lane. The risk that he could get boxed in and that a collision could materialize was entirely predictable.
[56] This was even more so the case given that he would have been aware of at least one other vehicle travelling at very high speed.
[57] Indeed, the dark SUV is speeding markedly and overtaking other vehicles alongside him. Mr. Greenberg pointed to that vehicle to show that he did not seek to catch up to it. He stated that he is not looking at what is happening behind him or two lanes over unless a vehicle comes into his field of vision. But I find that Mr. Greenberg was aware of the speeding SUV prior to it entering his field of vision as he tried to change lanes behind the truck.
[58] Mr. Greenberg did in fact manage to pass it at one point and when that vehicle was in front of him in the middle lane and went into the fast lane to pass a vehicle in front of it, Mr. Greenberg chose to go into the curb lane to do the same rather than follow suit.
[59] Vehicles that speed and overtake other vehicles at the rate that Mr. Greenberg and the dark SUV did that day are highly noticeable on a highway. They tend to generate feelings of nervousness and anxiety in other reasonably prudent motorists because they put others at risk.
[60] A reasonably prudent response to observing such driving is sometimes to slow down, but certainly to be increasingly vigilant to the surrounding traffic given the real risk of a collision ahead or of traffic being forced to suddenly slow down due to a car getting boxed in or having to react to the motorist driving at an excessive speed. Indeed, a reasonably prudent driver would normally adopt a defensive stance or one of avoidance – avoidance of the speeding car and of potential trouble ahead. They certainly would not engage in excessive speeding while changing lanes to overtake other cars themselves, given that that would clearly increase the already-present risk of getting boxed in or boxing in another car. It would dramatically increase the risk of a collision.
[61] Yet here, despite the fact that he clearly had to be aware of the speeding SUV, Mr. Greenberg did just that. He proceeded to pass several vehicles and change lanes from left to right as necessary to do so, at high speed. He tried to do so again when he went into the curb lane to pass a yellow SUV – because the dark SUV was in the fast lane passing it to the left. This latter point can be inferred by viewing both the front and rear-view cameras. It is also confirmed by an exclamation from Mr. Greenberg that is captured by the dash-camera.
[62] Indeed, approximately 52 seconds into the video, Mr. Greenberg is heard reacting to what I can clearly infer was a reaction to the speeding SUV either accelerating into the space he had intended to take or not otherwise enabling him to pass on the left. Mr. Greenberg acknowledged that was his voice, but he could not make out what was said. He denied that he sounded aggrieved. What I hear is clearly an aggrieved or frustrated utterance, and it is heard at a time when he is looking to pass a vehicle in the middle lane, but the dark SUV is speeding in the passing lane to his left.
[63] My reference to the dark SUV is not intended to lay blame for that vehicle’s driving at Mr. Greenberg’s feet. Rather, it is to point out that Mr. Greenberg’s response to the obvious hazard posed by the speeding SUV was the opposite of what a reasonably prudent driver would do in the circumstances.
[64] The situation here is in many ways akin to that in R. v. Soni, 2016 ABCA 231. There, the appellant was driving a Mercedes which was proceeding parallel to a Lexus when an accident occurred. Both were proceeding at high speed towards an intersection. As part of her analysis finding that the appellant’s driving constituted a marked departure, the trial judge relied on how the appellant drove in relation to the Lexus. She remarked that:
[W]hat makes his driving a marked departure from the standard of a reasonable person is how he reacted to the presence of another vehicle which was being driven in an obviously dangerous manner. The Lexus was traveling faster than the Mercedes. Mr. Soni should have noticed that vehicle. There was very little traffic. The Lexus was traveling very fast, possibly twice the speed limit. A reasonable driver would notice this vehicle and the dangerous manner in which it was operated.
What does a reasonable driver do when they encounter another vehicle that is being driven in a dangerous and reckless manner? They get away from the obvious threat by slowing down or taking other evasive steps which might seem prudent to get away from such a vehicle. A reasonable driver would, and Mr. Soni should, have taken steps to distance himself from the Lexus, but instead he continued to drive at a high speed close to it over some distance. [Soni, at para. 29]
[65] The Alberta Court of Appeal found no error with this analysis, rejecting the appellant’s contention that the trial judge was thereby making him responsible for the co-accused’s driving, and placing a duty on him to get out of the way: Soni, at para. 33. The Court found that “the trial judge realized the appellant could only be held responsible for his own conduct, not that of the co-accused. But the presence of the co-accused, and the way he was driving, was a part of ‘all the circumstances’ specified in s. 249”: Soni, at para. 34.
[66] The Court’s analysis found support in the leading case of Roy, at para. 36. There, the Supreme Court discusses what is to be expected of a driver who comes upon a foreseeable risk:
The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking 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.
[67] In Soni, the trial judge found that the operation of the Lexus created a foreseeable risk, and a reasonable person driving in proximity to it would have taken steps to avoid it. The Court of Appeal at para. 39 held that “[m]easuring how the accused driver reacts to the traffic around him does not amount to imposing a duty to ‘get away’ from other drivers. The criminal culpability of the appellant is not to be measured as if he was driving in a vacuum.” See also R. v. Hughes, 2011 BCCA 220, at para. 52.
[68] As in Soni, the analysis here remains focused on Mr. Greenberg’s own manner of driving, not that of another motorist. But his driving must be considered in the context of the circumstances that existed around him at the time. A reasonably prudent driver must reasonably account for and react to those surrounding circumstances, and in some circumstances, adjust their driving accordingly. That includes encounters with other imprudent drivers on the roadway.
[69] Similarly, I do not rely on the collision that occurred to infer that there was a risk that it could occur. It is abundantly clear to me that that risk was entirely foreseeable based on the accused’s driving, in the circumstances that existed on the roadway at the time. To my mind, the risk of such a collision or a similar consequence was obvious when looking at the nature of the driving and the surrounding circumstances. The fact that a collision materialized merely confirms the obvious.
[70] As stated by the Supreme Court in Roy, at para. 34, the focus of the actus reus 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. … A manner of driving can rightly be qualified as dangerous when it endangers the public.”
[71] It is the accused’s driving that has me finding that the actus reus of the offence is made out in this case. The consequence that has occurred can however verify the nature of the risks that existed: R. v. Romano, 2017 ONCA 837, at para. 71. But “the relevant risk to be considered is not the risk that the specific accident event would materialize. … [W]hat is of interest is danger to the public generally”: Romano, at para. 72. Here, the driving in all the circumstances, and viewed objectively, created significant risks and endangered the public.
[72] Mr. Greenberg points to the slow truck and the dark SUV’s aggressive driving as explanations for the collision. The Court of Appeal in Romano, at para. 73, said the following with respect to intervening acts:
Even when it comes time to consider causation in the context of intervening acts, the relevant foreseeability inquiry is not concerned with whether the specific consequence that occurred was reasonably foreseeable; the inquiry is whether the general kind of event that constitutes the putative intervening event is foreseeable. This is why this court asked in Malkowski, at para. 16, whether it was “reasonably foreseeable that a person would go on to the road in some manner at the time and place of the appellant’s dangerous driving”, rather than whether it was reasonably foreseeable that someone would attempt to run across the road as the victim did in that case. [Emphasis added.]
[73] See also R. v. Ally, 2017 ONCA 67, at para. 7; R. v. Porto, 2018 ONCA 291, at para. 4; Romano, at paras. 22, 78-80; and R. v. Bradley, 2020 ONCA 206, at paras. 4-8.
[74] Ultimately, it does not matter whether the dark SUV or the truck were partially at fault in this collision – the actions of others do not excuse dangerous conduct. The analysis must remain focused on Mr. Greenberg’s driving and the risk it foreseeably created.
[75] I find that his driving created an obvious risk to himself and others that he chose to take. He sped past other vehicles to the left and to the right as though the roadway was an obstacle course to get around. The speed was excessive. While I cannot say how fast with any level of precision, I found it was substantially above the flow of traffic and the posted speed limit. By repeatedly passing other vehicles in short order, from their left and from their right, he created a significant risk that they would not have time to see him coming before initiating a lane change of their own. A reasonable person in the circumstances would have been aware of the risk that he or another vehicle would get boxed in by an unexpected move from another vehicle. This is precisely what happened.
[76] I also found that Mr. Greenberg was aware of at least one other vehicle travelling at very high speed. A reasonably prudent driver would adjust their driving or at the very least their state of vigilance accordingly. But Mr. Greenberg did not slow down or scale back on overtaking other cars. Instead, he chose to go into the curb lane to pass several other vehicles at high speed. A reasonably prudent driver is not a risk taker who assumes that no one else will take risks like their own.
[77] In some circumstances, even momentary excessive speeding on its own might be sufficient to establish the mens rea for dangerous driving: see R. v. Chung, 2020 SCC 8, at para. 19; R. v. Laverdure, 2018 ONCA 614, at paras. 20-27; and Porto, at para. 6. Here, excessive speed is only one component of my finding that Mr. Greenberg’s driving endangered the public and was a marked departure from that expected of a reasonably prudent driver in the circumstances. The marked departure emerges from a sustained course of dangerous conduct.
[78] While I accept Mr. Greenberg’s testimony in certain regards, I entirely reject it on the central issues relating to his speed and manner of driving that day. Nor do those aspects of his evidence serve to raise a doubt in my mind regarding his driving and the lack of prudence he exhibited on this occasion. The objective evidence of his driving in my view firmly supports a finding that he exhibited a marked departure from the standard of care that would have been exercised by a reasonably prudent driver in his circumstances.
[79] Much emphasis was placed on the fact that Mr. Greenberg took some evasive measures to avoid colliding with the SUV that was blocking him and with the truck ahead of him. But these evasive measures do not mean he was driving prudently beforehand. Once in the position of facing an imminent collision, unless looking to purposely cause harm to themselves or others, a driver would obviously try to avoid the collision. The problem with the driving here was not in relation to the collision. It was about the driving that led up to it and that created a situation where such a collision occurred.
[80] In any event, the analysis does not involve tallying up the good versus the bad driving: see R. v. Harely, 2020 ONSC 6782, at para. 19. The evasive measures here do not cancel out the dangerous driving that led to those measures needing to be taken in the first place.
[81] This was not mere carelessness or a simple misjudgment of a situation. Nor was it a momentary lapse of attention or a mere departure from the standard to be expected. Mr. Greenberg’s driving in the manner described above was for the better part of a minute – time that “must be evaluated in the context of a reasonable person driving a car”: R. v. Vavryshchuk, 2021 ONSC 2252, at para. 41. The speed and maneuvers around other vehicles travelling at a slower speed was purposeful. This was a pattern of aggressive driving that departed markedly from how a reasonably prudent person would have driven in like circumstances.
[82] There is no need for the Crown to prove a positively blameworthy state of mind, such as intent, recklessness or wilful blindness – that is, a subjective mens rea: Beatty, at para. 47. While evidence of the accused’s actual state of mind should be considered, the analysis focuses on whether the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances – a modified objective fault requirement: Beatty, at para. 43.
[83] Here, several factors rendered the driving dangerous and a marked departure from how a reasonably prudent driver would have driven in the circumstances: the very high speed at which Mr. Greenberg was travelling as compared to the flow of traffic; the back and forth between lanes and the repeated overtaking of vehicles using different lanes, including from the slow lane; the failure to adjust his driving in the face of at least one other car driving at an excessive speed and also overtaking cars by changing lanes; and the failure to slow down in the slow lane or at least drive in a way that enabled him to stop in the event that he encountered slower traffic in that lane. The risk that that foreseeably created materialized.
[84] I therefore find the accused guilty of dangerous operation of a motor vehicle.
Released: October 21, 2024 Signed: Justice Mainville