Rex (City of Mississauga) v. Olavo Williams-Cordeiro, 2024 ONCJ 706

Court File No.: 2020-001881 Date: April 16, 2024

Ontario Court of Justice

Between: Rex (City of Mississauga) — AND — Olavo Williams-Cordeiro

Before: Justice of the Peace V. Fisher-Grant

Heard on: November 1, 2, 3, 2023 Reasons for Judgment released on: April 16, 2024

Counsel: Ms. S. Skoropada ..................................................................... counsel for the prosecution Ms. K. Dumais ................................................................................. agent for the defendant

[1] Olavo Williams-Cordeiro is charged with careless driving causing death and stunt driving on August 16, 2020 in the City of Mississauga.

[2] He has pled not guilty to those charges. Date, time and jurisdiction are not in issue. The burden of proof is on the prosecution to prove all of the other elements of the offences beyond a reasonable doubt.

[3] The prosecution called three civilian witnesses, several police officers including an officer qualified as an expert witness over the course of three days. The defendant chose not to call any evidence, as is his right. The witnesses were all cross-examined by the defence. After hearing submissions, the Court reserved judgment on the matter.

[4] After review of all the evidence, the case law provided and consideration of the submissions made, I find Mr. Williams-Cordeiro guilty of both charges, subject to any considerations regarding Kienapple. These are my reasons.

Evidence

[5] Andrew Erdman testified that he was driving to a friend’s home that evening, August 16, 2020, on highway 403 travelling eastbound near Erin Mills and going to Cawthra Road. It was around 2 a.m. There was fairly light traffic, and it was dry. He was travelling just at the curve of the road before the Mavis exit when a motorbike, a white car along side the motor bike, and a third car “blew” past him. He estimated that they were going between 140-150 kms/hour. He testified that the vehicles crested a hill. Mr. Erdman then saw an explosion and orange plume in the distance. As he approached, he noted that the man on the motorbike had fallen off and that the motor bike was 50 feet ahead of him (the rider). The bike was on fire.

[6] He testified that one of the cars was a BMW and he did not recall the make of the other but that it was a white sedan. He and others pulled over to assist. He indicated that the 3 vehicles were going noticeably faster than the other cars, all going the same speed and thus they stood out. Based on this he felt they had been travelling together. He had been travelling at about 110 km/hr. He stopped his car and called 911.

[7] Michael Cody testified that he was out visiting friends and had been in Oakville. He entered the highway 403 at Upper Middle Road and was driving around in Mississauga for fun. It was around 2 a.m. At the bend in the 403, there were cars that passed him really fast. He saw one of the cars and heard the noise from two. Near the entrance of the 407 two cars “blew” past him. He saw one and heard the noise so believed it was two. He thought one of the cars might have been black but was unsure. He saw brake lights of cars around Mavis Road. He realized someone was deceased on the roadway. He pulled over because he did not want the body to be hit by a car. He saw a BMW that was facing the wrong way in the area. He estimated that the cars were going at "impound levels, at least 150.” He estimated he was travelling about 100 km/hr. His car shook when the others went past him. In cross examination, he admitted one of the cars he heard could have been a motorcycle, saying he was focussed on other things.

[8] Andrew Miasik testified that he was travelling on the 403 from the Dundas area going home to Etobicoke. It was around 2 a.m. and there were a few cars on the road at that time. His wife was driving their car. He was in the front passenger seat, and they were travelling in the HOV lane. He saw the motorcycle going “pretty fast.” He took note because he is a motorcyclist too. He looked at their car speedometer and noted they were going about 120 km/hr. They were at the sweeping turn. There was a white car coming up beside them that “blew past us” and they had to slow down. Almost immediately, according to him, there was another car. The cars had loud exhausts. When there was space the car went right and continued onward. The motorcycle was in the far-right lane going around the traffic. The first white car blew past but, according to him, the second white car couldn’t make the same type of maneuver because of the traffic in front of it. When there was space the second white car hammered it and passed the cars. He described the white cars as one with four doors and one with two. He estimated the speed of the motorcycle as “easily 150 plus”; it “blowing by like they were standing still.” The cars were “going easily 20 kilometers faster” than their car.

[9] He testified that they passed him around Erin Mills and then they were in the distance where he lost sight of them. He saw the explosion and flames when he was at Hurontario. He observed two white cars pulled over and wondered if it was a coincidence or the same cars.

[10] OPP Constable Ospina testified that she received a call for service for the 403 in Mississauga arriving on August 16, 2020, at 2:23 a.m. It was clear, dark and about 20 degrees. It was a chaotic scene when she arrived with fire service and ambulance there. There were 2 white vehicles parked at the Hurontario off ramp and a dark sedan, a blue Toyota corolla, was facing the wrong way, west, at the barrier. The corolla had heavy damage to the rear driver’s side and the front drivers’ side [^1] was against the concrete barrier. The two white cars were a BMW sedan and a Hyundai Genesis coupe. They were on the off ramp to Hurontario, both on the shoulder. There was also a motorcycle on the left shoulder and the driver of it was laying in lane 3, deceased. The motorcycle was almost destroyed according to the officer. The gas tank was on the bullnose to Hurontario and had been burned.

[11] The driver of the Genesis was identified as Olavo Williams-Cordeiro through an Ontario drivers’ licence. The Genesis had a Manitoba licence plate. The driver of the BMW was identified with an Ontario drivers’ licence as Tremaine Brown. The BMW had an Ontario licence plate.

[12] The officer obtained video footage from the Ministry of Transportation wherein she observed the motorcycle and the two white cars driving at high speeds. In the footage the motorcycle can be seen driving at a high speed and hitting the back of a sedan that does not have any rear lights on. The sedan, identified as the blue corolla, as a result gets thrown into the barrier and ended up facing the wrong direction.

[13] The officer noted that when she arrived there were only two white sedans at the scene, and they were both parked on the ramp. The officers, she testified, decided to obtain cautioned statements from the drivers.

[14] When viewing the video footage, the officer explained that they had backtracked the video footage from the crash to the area of the 403 and Dundas. She described the cars [^2] as white but that the BMW was a sedan, more box-like in shape and had 4 doors. The window style of the BMW she indicated as more square and the headlights brighter. The Genesis as a sport coupe is slimmer and 2 doors. The windows are thinner, and the headlights have a blue tint. Its rear lights are more elongated. The Genesis’ trunk appears lower to the ground and the licence plate area is lower than the BMW where the plate is on the trunk area and not as low down.

[15] Constable Ospina reviewed, in the course of her testimony, the video footage that was retrieved and her analysis of it. The video footage tracks the cars from Dundas and the 403 to Hurontario where the accident occurred. [^3] At the 403/Burnhamthorpe Rd [^4] in lane 1 one can see the white Genesis under the bridge and the motorcycle in lane 3. The Genesis is then seen behind the motorcycle in lane 3 with the BMW in lane 2. Then the camera shows the 403 at Winston Churchill Blvd. The motorcycle is in lane 3, the Genesis can be seen in the HOV lane, and the BMW is in lane 2. [^5]

[16] At 403/Erin Mills one can see the motorcycle, the Genesis and the BMW; they are almost next to each other and driving parallel. [^6]

[17] At Mississauga Rd./403 the motorcycle is in lane 3, the Genesis is in the HOV lane, and the BMW is in lane 2. They all appear to be near each other. [^7] One can then see that the Genesis appears to change lanes to avoid a motor vehicle in front of it. One can see the two double solid lines of the HOV lane that are meant to prevent moving from the HOV lanes. The BMW that is in lane 2 also has its brake lights on.

[18] At Creditview Rd./403 one can see the motorcycle in lane 3, the BMW now in the HOV lane and the Genesis now appears in lane 4. [^8] In the video one can see that the Genesis is now going much faster than the other cars. The motorcycle also appears faster in lane 2 or 3. The Genesis has changed lanes from 4 to 3.

[19] West of Mavis Road the vehicles are together again. It appears from the video that the Genesis is now increasing speed and trying to pass the motorcycle. The speed of the BMW, in lane 2, also appears to have increased. [^9]

[20] West of Hurontario Street, the video shows the motorcycle seemingly pull away. One can see the Toyota Corolla sedan on the screen without its rear lights on. There is artificial light in the area. The Corolla relative to the motorcycle appears to be moving very slowly. They are both in lane three, when the motorcycle collides into the rear of the Corolla.

[21] Constable Weaver testified that he was on duty as an OPP constable that day. He arrived at the accident scene at 2:22 a.m. He observed emergency services already on scene as well as the damaged motorcycle and two motor vehicles on the shoulder that he described as the BMW and the Genesis. He had a brief interaction with the defendant, got identification, and felt that the defendant was in shock.

[22] Constable Campos Arce testified that she was working as an OPP officer that day. She attended the scene at 3 a.m. to assist with closure of the roadway. She spoke with the defendant and obtained his identification, a driver’s licence. She cautioned him and obtained a statement from him. [^10] In the statement the defendant indicated that the Genesis car he was driving belonged to his father. He was alone in the car. He had been in Hamilton and was headed to another friend’s house near Keele. It was dark, clear and there was lighting for the roadway. He was using his GPS to get to where he was going. The motorcycle had been driving in front of him when it hit something. He knew the driver of the motorcycle, J.C., for about a year through other friends. He indicated that the traffic was light and that he was going 100 to 105. He and other friends were going to J.C.’s house. They had been in Hamilton together. They all left at the same time. Tray was driving the BMW with Blue in the passenger seat. He could see J.C. ahead. He did not see the car without the lights on ahead. He indicated that J.C. wasn’t going that fast. It was quick, the car came out of nowhere and he didn’t see the car.

[23] Constable Steve Roy of the OPP testified as an expert in Collision Reconstruction. [^11] He testified as to the process he used to determine the speeds of the vehicles involved in the matter. His evidence regarding speed was not challenged in cross-examination as to its accuracy. He was requested to analyze the speed of one car (the Genesis [^12]) and the motorcycle. He testified that the car was travelling 184 km/hr at camera 810, 403 West of Mavis Road [^13]. At camera 811, 403/Mavis Rd, he testified that the passenger car was travelling at 193 km/hr. At camera 812, West of Hurontario/403, he calculated the car travelling at a rate of speed of 141 km/hr. For camera 812, he calculated the speed of the motorcycle as 282 km/hr. He testified that the speed of the motorcycle would have been a contributing factor in the collision given that if the motorcycle had been travelling at the speed limit it would travel 27.7 metres per second while at 282 km/hr it would travel 78 metres per second. This would then, in his opinion, affect the driver’s reaction time; at the speed limit the reaction time would be 5 seconds but less than 2 seconds at 282 km/hr.

[24] In cross examination, Constable Roy explained he was only asked to calculate for three cameras, the motorcycle and one motor vehicle. He agreed that the speed of 141 km/hr is not rare on a 400 series highway. He agreed that one can see better in the day versus at night. He admitted that a speed of 282 is rare but he has encountered these speeds before in the course of his duties. He indicated he did not know if the collision would have happened had the Corolla had its lights on because it would depend on what the motorcyclist was able to perceive. It may have been less likely, but he did not know.

Issues

[25] There are several issues that need to be addressed. (1) Was the defendant operating his motor vehicle in such a manner that the court can find beyond a reasonable doubt that he was stunt driving? (2) Has the Crown proven beyond a reasonable doubt that the defendant was driving carelessly pursuant to section 130(3) of the Highway Traffic Act? (3) If the defendant was driving carelessly, did that driving cause the death of the driver of the motorcycle? Or put another way, did the accident occur through no fault of the defendant?

Findings of Fact

[26] I find beyond a reasonable doubt that the vehicles the civilian witnesses described are the same as those that can be viewed in the video evidence. The vehicles were all described as travelling at a high rate of speed at 2 a.m. on August 16, 2020, on Highway 403. This is what is depicted on the videos as well.

[27] Defence submits that as no one specifically indicated that the vehicles are motor vehicles as defined by the HTA nor specifically indicated that the 403 is a highway, the court should have a doubt regarding these two elements of the offences. With respect, I disagree and find beyond a reasonable doubt that the Genesis, the BMW, the motorcycle and the other vehicles as described by the witnesses and seen in the video clips are motor vehicles as defined by the Highway Traffic Act. The Highway Traffic Act defines motor vehicle as “includes an automobile, a motorcycle…” and goes on to additionally define motorcycle. [^14] Although no one testified explicitly that for example the “Genesis is a motor vehicle”, I find that based on the actions of the Genesis i.e. it moving on a roadway on 4 wheels, passing other cars, being observed by persons and being seen to be driven by someone, that it is a motor vehicle. Similarly, regarding the motorcycle one can see on the video that it is self-propelled, has a seat or saddle and designed to travel on not more than 3 wheels. With respect, I further also find that what those motor vehicles were travelling on was a highway. Highway is defined in part as “includes a common and public highway, street, avenue, … any part of which is intended for or used by the general public for the passage of vehicles…”. [^15] I heard evidence from the witnesses that the roadway was the 403. They described travelling in their cars upon it. One can see in the videos cars on a paved lengthy area demarcated by lines separating them into lanes; it is clearly an area intended for use by the public for the passage of vehicles, and it is not necessary based on all the evidence herein for a witness to have specifically so indicated for the court to find it a highway or a motor vehicle specifically.

[28] I accept the evidence of the specific characteristics of the vehicles testified to by Constable Ospina such that one can see which car is in which area of the roadway on the video and that the Genesis motor vehicle is the lower, 2 door car. I further accept that the Genesis is the car that Constable Roy analyzed the speed of based on the overlay of the screen shots of the videos and the comparable and matching characteristics of the cars that can be seen in the video evidence as testified to by Constable Ospina and the photo still evidence reviewed by Constable Roy.

[29] I find beyond a reasonable doubt that the defendant was operating the Genesis motor vehicle that is depicted in the video and described by the witnesses. He admits to driving the vehicle in his statement to the officer. He is at the scene of the accident at the roadside. While there was some movement of the two white cars on the ramp after the collision, it does not raise a doubt that the Genesis is the vehicle involved nor that the defendant was operating it. Lastly, the vehicle records [^16] from Manitoba show the licence plate on the Genesis is registered to a Manuel De Matos Barb Cordeiro Olavo. This leads to the inference that the car belonged to someone related to the defendant.

[30] As said, the witnesses all described the motor vehicles speeding. Mr. Erdman testified the vehicles were going between 140-150. Mr. Erdman described the vehicles as a motorcycle, a white car and another car. Given the same time of day, the same roadway, and the number of vehicles, I find beyond a reasonable doubt that the vehicles described by Mr. Erdman are those involved in this matter.

[31] Mr. Cody testified too that the vehicles were going at 150 km/hr, he heard them and when they went past his car shook. Although he testified that he thought the car was dark and he only heard one other, he testified that he was travelling at the same time, 2 a.m., in the same area, Highway 403 at the 407 where there is a bend. He testified he came upon the accident thereafter. I find that based on those similarities, an inference can be drawn that these were the same vehicles as are alleged to be involved in this matter.

[32] Mr. Miasik was a passenger in a car and had the ability and opportunity to make the observations he did. I accept his evidence that the motorcycle was going “pretty fast” and that the white car blew past causing them to slow down. Similar to Mr. Cody, he testified about the sound saying the cars had loud exhausts. I accept that he could see the maneuvers of the cars and the motorcycle relative to the other cars on roadway. I accept that his testimony refers to the same vehicles as in the allegations based not only on the time of day and same location, but also his description of the vehicles involved. I further accept his evidence that the motorcycle was going 150 km/hr or more and that the cars were also going more than 20 kilometers faster than his which was going 120, so therefore at least 140 km/hr.

[33] The speed analysis of Constable Roy, which was not challenged, measured the speed of the defendant’s car at between 141 and 193 km/hr. When reviewing the video, Constable Ospina’s evidence about the video and Constable Roy’s analysis, it is clear that the vehicle Constable Roy was measuring was the Genesis motor vehicle and the motorcycle. The motorcycle which Mr. Chen was operating was measured travelling at 282 km/hr immediately prior to the crash. The motorcycle had been travelling at a similar speed to the car throughout the remainder of the videos.

[34] Based on all the evidence of the witnesses as well as the video evidence and the analysis of the expert, I find that the Genesis, the BMW and the motorcycle were speeding at high rates of speed at the time specified in the information. I further find based on the video and Mr. Maisik’s evidence that the speed of the vehicles caused them to need to manoeuvre their vehicles to avoid the other slower moving vehicles on the roadway. Based on the evidence in the videos and the witness testimony, I also find beyond a reasonable doubt that the vehicles were travelling together, in tandem on the roadway.

Issue: Was the Defendant Engaged in Stunt Driving?

[35] Mr. Williams-Cordeiro is charged with stunt driving contrary to section 172(3)(iii) of the Highway Traffic Act.

[36] Section 172 provides that: (1) no person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

[37] O/Reg. 455/07 2(1) provides that a race is defined as “[d]riving two or more motor vehicles at a rate of speed that is a marked departure from the lawful rate of speed and in a manner that indicates the drivers of the motor vehicles are engaged in a competition.”

[38] And further: (3): driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by, (i) driving a motor vehicle at a rate of speed that is a marked departure from the lawful rate of speed.

[39] As above, I find that based on the evidence of the witnesses and the video evidence that the defendant was driving a motor vehicle at a marked departure from the lawful rate of speed. I find beyond a reasonable doubt that the defendant was operating his motor vehicle at speeds of up to 193 km/hr in a 100 km/hr zone. The speed of the car is almost double the permitted speed limit. This, I find, constitutes driving without reasonable consideration for other persons on the highway in a manner that may endanger them by driving at a marked departure from the lawful rate of speed.

[40] Further I find beyond a reasonable doubt, the changing lane behaviour, the driving in tandem with the other car and the motorcycle at the high speed, as observed through the video and the witness testimony meets the definition of stunt driving as outlined in O/Reg. 455/07 (2)(1).

[41] As above, I find beyond a reasonable doubt that the defendant was operating the Genesis motor vehicle at the time and place specified in count 2 of the Information and that while he was doing so he was engaged in driving that constituted stunt driving.

Issue: Does the Defendant’s Driving Amount to Careless Driving?

[42] Section 130 of the Highway Traffic Act provides: (3) Every person is guilty of the offense of driving carelessly who drives a vehicle … on a highway without due care and attention or without reasonable consideration for other persons using the highway and who thereby causes bodily harm or death to any person.

[43] Careless driving is a strict liability offense. The Crown has to prove whether the defendant “in light of the existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.” R. v. Shergill, [2018] O.J. NO. 6084, Para. 41; quoting R. v. Beauchamp, [1953] O.R. 422 (Ont. C.A.)

[44] In R. v. Shergill, [2016] O.J. No. 1503, (OCJ) affm’d 2016 ONCJ 163, [2016] O.J. No. 4294 (OCA), the court sitting in appeal indicated beginning at para. 22 that:

22. In light of jurisprudence since Beauchamp it would now appear to be settled law careless driving is a strict liability offence and, since mens rea is not a relevant factor for consideration, that the court ought not to look at the conduct to determine whether it is "blameworthy and deserving of punishment". To the extent that Beauchamp added that consideration as an element of the charge it has, in my view, been effectively overruled.

23 What rings loudly from the case law is that a contextual analysis must be undertaken in each case. Viewed in that light this issue need not be complex. If, in the circumstances, the only reasonable inference to be drawn from the fact of an accident is that the defendant was operating his or her vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway then the actus reus has been made out. It then falls upon the defendant to establish that he or she reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that he or she took all reasonable steps to avoid the particular event.

26 In light of the Supreme Court of Canada decisions in Beatty and Roy it seems clear that the gravamen of the offence of careless driving is inadvertent negligence. If the conduct of the defendant falls below the standard expected of a reasonably prudent driver in the circumstances then it is negligent and deserving of punishment under Provincial careless driving provisions. If it does not fall below the standard expected of a reasonable person then it is not negligence and does not amount to a lack of due care and attention.

34 The law is clear that this is a strict liability offence. There is no need for the prosecution to prove a mens rea element. Unless the defendant was able to satisfy the Justice of the Peace that the collision occurred through no fault of his own he ought to have been convicted. [emphasis added]

[45] In viewing the video footage from the MTO cameras one can see the car and the motorcycle travelling at similar speeds during each of the clips. They appear to be keeping up to each other through the traffic. The videos show the vehicles with one of them pulling ahead, one falling behind during the course of the route. I am satisfied beyond a reasonable doubt based on the video evidence along with the testimony of the witnesses that the vehicles were involved in a joint enterprise of racing. The positioning of the vehicles in close proximity to each other over an extended period of time, over several kilometres, at similar speeds leads me to conclude that this is what they were doing.

[46] The speed limit on the 400 series highway is 100 km/hr. The speeds that the two vehicles were travelling was well in excess of the posted speed limit. Constable Roy testified that in his analysis he used lower numbers in his speed estimates so as not to over-represent the readings obtained.

[47] Constable Roy was asked in cross examination whether the accident would have occurred if the Corolla motor vehicle had had its lights on. The officer testified that he did not know, it was maybe less likely, but it depended on what the motorcycle driver was able to perceive and their experience. He also testified that the motorcycle would have been travelling a distance of 78 metres per second. If a motor vehicle had been travelling the speed limit it would cover a distance of 27.7 metres per second. He continued that the extra 50 meters would affect the reaction time taking it from 5 seconds to 2.

[48] The defence argues that there should not be a finding of careless driving in this circumstance given the motorcyclist’s actions and speed were their own. This combined with the Corolla not having its lights on, was not something that the defendant could have anticipated nor should they held responsible for the accident.

[49] The case law provides that if the conduct of the defendant falls below the standard expected of a reasonably prudent driver in the circumstances, then it is careless driving. If it does not fall below the standard expected of a reasonable person, then it is not negligence and does not amount to a lack of due care and attention constituting careless driving.

[50] I find that the actions of the defendant in and of themselves fall below the standard expected of a reasonably prudent driver. The actions of the defendant, as captured by the video evidence and through the witness testimony shows a car travelling at a high rate of speed in tandem with the other vehicles. While it may be that generally other cars travel in excess of the speed limit, there is more in this case. The defendant’s car here is travelling at varying times between 141 and 193 km/hr. At the higher end, this is approaching double the speed limit. The defendant’s car is shown travelling in tandem with the other two vehicles, causing each of them to slow down and speed up to maintain proximity with each other. In order to maintain cohesive speeds, the Genesis has to change lanes around other cars at said excessive speed.

[51] While the traffic was light in comparison to other times of day, there were other cars around that the defendant and other vehicles needed to avoid. It was dark with artificial lighting, not daytime. All of these factors increase the dangerousness of the situation and lead to the conclusion that this is not just speed alone involved here. The combined behaviour of the vehicles travelling together, speeding excessively, making lane changes, in the dark, even excluding the fact of the collision, is what makes this driving behaviour fall below the standard expected of an ordinary prudent driver. There is an absence of evidence to conclude anything else except that all of this driving behaviour, excessive speed, in tandem driving, in the dark is due to the defendant’s own personal choices and I find beyond a reasonable doubt that it thus amounts to careless driving.

Issue: Did the Collision Occur Through No Fault of the Defendant?

[52] Therefore, if the defendant’s driving behaviour amounted to careless driving did that driving cause the death of the motorcycle driver? The law provides, as above, that “this is a strict liability offence. … no need for the prosecution to prove a mens rea element. Unless the defendant was able to satisfy the Justice of the Peace that the collision occurred through no fault of his own, he ought to have been convicted.” [emphasis added]

[53] The defence submits that the fact that the Corolla did not have its lights on, and the motorcycle increased its speed immediately before the crash, are facts that should lead the Court to find that the accident occurred through no fault of the defendant. I disagree.

[54] The defendant and the motorcyclist chose to engage in the behaviour that they did. They were both travelling at high rates of speed. The area was illuminated with artificial lighting. Had the defendant, and indeed the motorcyclist, chosen to drive at the speed limit or even at a reasonable rate of speed that took into account the conditions at the time the outcome may have been different.

[55] The fact that there was a car without its rear lights on operating on the highway is reasonably foreseeable and could have been avoided had the defendant been driving with due care and attention. Highways have many differing drivers and cars on them. They are unpredictable. It is reasonably foreseeable that those drivers will behave in a manner that may involve unexpected lane changes, inattention or not properly using their lights. The risk occasioned by the excessive speed and dangerous driving behaviour here created a situation wherein the motorcyclist was unable to react in time to the hazard of the Corolla.

[56] The risk and circumstance of the darkened Corolla does not mean that the defendant was not responsible for the accident. As in R. v. Menezes, [2002] 49654 (On. SCJ), at para. 105, “those at risk from the unreasonable and unjustified danger of an escapade of competitive driving … includes occupants of other vehicles …. This surely includes a risk … arising out of miscalculation or other judgment error by that individual in the course of … [the] dangerous activity.”

[57] The defence here argues that the deceased was responsible for their own driving behaviour and the defendant should not be held responsible. In R. v. Tyrer, [2009] O.J. No. 2684 (Ct. J.), the accused was acquitted when the court held that the deceased was responsible for their own driving behaviour. The court found because the accused had disengaged from the race the deceased was responsible for their own behaviour [^17].

[58] In this case [^18], I find that the defendant and the motorcycle were driving in tandem. They were together throughout the video footage. Although the motorcycle does speed off at the end, I find that this type of acceleration behaviour is what occurs when one engages in racing type driving behaviour. It is exactly what a race is: one vehicle attempting to be the fastest. As observed in Menezes, supra, at para. 101, “[t]hose who race at excessive speeds on a public roadway assist one another in creating a dangerous risk. Each encourages and incites the other. … it is the mutuality of their contribution toward the rivalry of speed which creates a singular hazardous situation. … The actions of each participant are a natural reaction to the stimulus of the situation. During a race, each attempts to pass the other and forge ahead; their actions and reactions to each are to be expected….” In this case when one views the video footage, [^19] the vehicles are operating in tandem, the Genesis is making maneuvers to attempt to get around vehicles and lead in the race. It is this type of behaviour that is a departure from that of a reasonably prudent driver.

[59] There is nothing on the video, or in the evidence, that the car in any meaningful way attempts to disengage nor is there any appreciable signal to the motorcycle that the Genesis was disengaging or abandoning the race. [^20] In the last video clip it appears to be just the Genesis and the motorcycle without any vehicles around them. They are still driving together in tandem at high speed when the motorcycle speeds up and takes off. At 2:07:19 of the video footage, the Genesis caught up to the Motorcycle and passed the BMW. The Genesis surpasses the motorcycle at the end of the frame [^21]. At 2:07:34 the Genesis and motorcycle are in tandem and at the end the motorcycle tries to pull away ultimately at 2:07:51 reaching a speed of 282 km/hr [^22]. One does see the Genesis’ brake lights come on at 2:07:59, however one can also see the plume of fire from the crash leading to an inference that the time timing of the braking to be consistent with the accused, in the Genesis, seeing the crash ahead and braking as a result. Although the vehicles had been driving at varying speeds throughout, the Genesis and the motorcycle continued in tandem throughout the camera footage and up until the time where the motorcycle accelerated.

[60] Therefore, I disagree that the accident did not occur through no fault of the defendant. The defendant engaged in behaviour of in tandem driving with another vehicle, where each would speed up to “win.” This behaviour is racing.

[61] Had the defendant and the motorcyclist not been racing, driving well in excess of the speed limit and maneuvering in and out of traffic, they would have been able to observe the car without its lights on and react to that situation. The area was illuminated, visibility was clear. Other drivers, both those that testified, and those that can be seen on the video, did not have difficultly navigating the roadway that night. Occasions occur when persons are driving that other drivers do not act in an expected way. However, when one engages in the type of driving behaviour that the defendant did on this day, such behaviour can and does results in accidents.

[62] By jointly engaging in the careless driving behaviour, the accident was caused through the driving behaviour of Mr. Williams–Cordeiro and it cannot be said that there is no fault of him. Therefore, it follows that his driving behaviour caused the death of Mr. Chen.

Conclusion

[63] I find beyond a reasonable doubt based on all of the evidence that the defendant is guilty of careless driving causing death and stunt driving. I invite submissions on the Kienapple principle regarding whether one of the charges should be stayed.

Footnotes

[^1]: See exhibit 3 photos of the Corolla. [^2]: Photos of the cars Exhibit 2. [^3]: Exhibit 4 [^4]: Time of video when motorcycle enters is 2:04. Camera 801. [^5]: Time 2:04:48-2:05:01. Camera 803. [^6]: Camera 806. 2:05:56-2:06:00 [^7]: Camera 807 2:06:36 [^8]: Camera 809 2:06:55 [^9]: Cameras 810-811 [^10]: The defendant’s statement was admitted after a voir dire. [^11]: His C.V. was marked as Ex. 6 on the trial. It was not contested by the defense that he was an expert. [^12]: When Cst. Roy was testifying he generally referred to the Genesis as the “car.” When the court compares the car in the screen shots that he analyzed with the screen shots entered through Cst. Ospina, the court was able to conclude the “car” that Cst. Roy was tasked to analyze and testified about was the Genesis motor vehicle. [^13]: See also Exhibit 7, page 14-15. [^14]: Section 1, Highway Traffic Act [^15]: Section 1, Highway Traffic Act [^16]: Exhibit 5 [^17]: Tyrer, supra, involves a discussion of causation. Herein the analogy is with respect to the individuals each being responsible for their own driving behaviour. [^18]: This footnote was missing in the original HTML, but the number [18] was used in the text. I've removed the reference from the text as there is no corresponding footnote content. [^19]: See cameras 806, 807, 810, 812 [^20]: See discussion of abandonment in R. v. Menezes, [2002] 49654 (On. SCJ) [^21]: Camera 810 [^22]: Camera 812