Ontario Superior Court of Justice

COURT FILE NO.: CR-12-70000132-0000
DATE: 20120802

Her Majesty the Queen v. Troy Johnson

Counsel:
Scott Patterson for the Crown
Ann Bergenstein for the Defence

Trial heard July 30, 31 and August 2, 2012

Reasons for Judgment of Backhouse, J. released August 2, 2012

[ 1 ] Mr. Johnson is charged with 6 offences arising out of a driving incident on September 2, 2011. He pled guilty to 3 counts:

Count 2-operating a motor vehicle while being pursued by a police officer and in order to evade the police officer, failed without reasonable excuse to stop his vehicle contrary to s.249(1) of the Criminal Code ;

Count 3-operating a motor vehicle in a manner dangerous to the public thereby causing bodily harm to Martin McLaughlin contrary to s.249(3) of the Criminal Code ;

Count 6-having in his possession a 2006 GMC Envoy SUV motor vehicle of a value exceeding $5000 knowing that the property was obtained by the commission of an offence punishable by indictment contrary to s.354(1) of the Criminal Code .

[ 2 ] After the evidence was completed, the Crown advised that it was not proceeding on the charge of attempt murder of Martin McLaughlin by striking him with a motor vehicle (Count 4) or on Count 1, committing an assault on Kevin Marshal while operating a motor vehicle. What remains to be determined is whether Mr. Johnson is guilty of the lesser and included offence in Count 4 of aggravated assault contrary to s.268 of the Criminal Code and whether he is guilty of an assault on Martin McLaughlin causing bodily harm contrary to s.267 (b) of the Criminal Code (Count 5).

[ 3 ] Section 268 (1) of the Criminal Code provides:

“Everyone one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.”

Section 265(1) of the Criminal Code provides:

“A person commits an assault when

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

(b) he attempts or threatens by an act or a gesture, to apply force to another person if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.”

[ 4 ] Crown counsel is proceeding on the “endangers life” part of section 268(1). Counsel agree that the only live issue with respect to both charges is whether the Crown has proven beyond a reasonable doubt that Mr. Johnson intended to apply force or intended to threaten to apply force with his vehicle to Officer McLaughlin.

[ 5 ] The facts are fairly straight-forward. Mr. Johnson was driving a stolen vehicle on September 2, 2011 in Toronto. His girlfriend was in the passenger seat and his baby was in a carseat in the backseat. The incident started when he cut off Officer Marshall who was travelling eastbound on Dundas Street on his bicycle with 3 other officers on bicycles. Officer Marshall pulled Mr. Johnson over and asked him to produce his driver’s license, insurance and car registration. Mr. Johnson has no driver’s license and is a prohibited driver. He took off, driving over Officer Marshall’s bike in the process. Officer Marshall initially held onto the car yelling “stop” but was forced to let go of the vehicle. Mr. Johnson bumped into 2 vehicles in his effort to get away. He entered the wrong lane and went through a red light, forcing pedestrians and other cars out of the way. He then turned east onto Dundas Square which is a one way street. He stopped momentarily at the crosswalk for pedestrians and then proceeded down Dundas Square where he came into contact with Officer McLaughlin.

[ 6 ] The evidence of Officer McLaughlin was as follows. He was about half way down Dundas Square around Okeefe Lane heading west in the middle of the non-parked portion of the street when he saw the SUV turn onto Dundas Square. Mr. Johnson was very surprised and shocked to see Officer McLaughlin in front of him on Dundas Square. Officer McLaughlin waved his hands back and forth and yelled stop. Mr. Johnson saw him and hit the gas, driving at him. He heard Mr. Johnson rev his engine as though the gas pedal was pressed to the floor. He believed Mr. Johnson was trying to kill him. When he realized that Mr. Johnson was not going to stop, Officer McLaughlin moved towards the curb lane. Mr. Johnson did not aim the car towards him in the curb lane. Before the officer could get entirely out of the way, the SUV hit his bike which was pushed under him and his chest, knee and thigh were hit. He went partially onto the hood of the SUV, was pushed off and he hit a parked delivery truck with his left side. He landed on his feet and started to run after the SUV. After a short while he realized he was injured and stopped.

[ 7 ] The left shock of the front wheel of Officer McLaughlin’s bike was cracked and the bar connecting the right and left shocks was bent. He was off work for 12 days and took several months of physiotherapy and massage. His wrist and shoulder are still sore. He had a dislocated bone in his wrist.

[ 8 ] Mark Barbour testified as follows. He is a lawyer. He was walking in the area of Dundas Square on September 2, 2011. He first heard honking and then saw the SUV travelling south cutting through northbound traffic on Yonge Street. It turned east onto Dundas Square. It stopped at the cross walk, appearing to narrowly miss hitting pedestrians who were leaving the southwest corner to cross the street. He noticed a police officer on Dundas Square with a bicycle and saw the SUV accelerate faster than normal down the street towards the officer. This took a couple of seconds. The SUV appeared to make contact with the officer and then continued to accelerate down the street. He did not see whether the SUV hit the bicycle and the bicycle hit the officer. He did not see exactly how the contact with the officer occurred. The officer may have gone down briefly to the ground and then was up and limping.

[ 9 ] Shayna Ahlstedt testified as follows. She was sitting on a bench on Dundas Square. She saw the SUV narrowly miss a pedestrian. The SUV did not slow down and drove down Dundas Square. Her attention was drawn to a police officer who yelled “stop” to the SUV. She heard a metal on metal crunch. The next thing she saw the police officer was on the ground. The SUV continued eastbound on Dundas Square. The bike went in the opposite direction of the police officer. The police officer was toward the sidewalk side of the road when he was hit. He got up and ran towards the SUV and then stopped around where the alleyway was (Okeefe Lane).

[ 10 ] Mr. Johnson testified as follows. He knew that the police were pursuing him. He had taken some illegal drugs the night before and had been up until he went to sleep at 5 or 6 a.m. until 10 a.m. He smoked marijuana before he left on September 2, 2011 which enhanced his high from the night before. He got paranoid and panicked when he got stopped by Officer Marshall. He knew he was going to take off. He had a music performance that evening and the night after and did not want to go to jail and miss it. He waited for the light to turn red so he could do it without hitting anyone. He knew he ran over Officer Marshall’s bicycle. He slowed down and stopped a bit at Dundas and Yonge because there were too many pedestrians and he was not trying to hit anyone. He had to slow down and stop for a moment for pedestrians at the crosswalk on Dundas Square. When he first saw Officer McLaughlin on Dundas Square, he was in the middle of the non-parked portion of the street. He took his foot off the gas for a second when he thought Officer McLaughlin was not getting out of his way. When he saw him moving out of the way, he thought he could keep going and he accelerated. He did not intend to hit or harm the officer. If Officer McLaughlin had still been in the middle of the road, he would have slammed on his brakes and swerved around him. He did not believe he hit him. He did not hear a thud or a noise. He saw him running behind the SUV.

[ 11 ] Mr. Johnson has a lengthy criminal record.

Submissions

[ 12 ] The Crown submits as follows. Mr. Johnson is an unsavoury witness and his

evidence should not be accepted without corroboration. Mr Johnson’s evidence that he

was high at the time raises doubts about his reliability. In order to avoid going to jail, Mr. Johnson drove the SUV directly at Officer McLaughlin who he saw standing in the middle of the road yelling at him to stop. He intended the natural consequences of his act which was either to hit the officer or to threaten to hit him to force him to get out of the way.

[ 13 ] The defence submits as follows. It is conceded that Mr. Johnson was driving atrociously and recklessly. He does not deny that he hit Officer McLaughlin. He has admitted driving dangerously and to causing bodily harm to the officer. When he drove down the wrong lane, he waited for the light to ensure there was no oncoming traffic. He stopped or slowed down at the intersection to avoid hitting pedestrians. He wanted to get away but not to the point of hitting an officer and spending the rest of his life in prison. He looked behind him as he travelled down Dundas Square to see if he was being pursued. There was no evidence of squealing tires when he accelerated. He drove straight down Dundas Square and did not swerve to aim at Officer McLaughlin as Officer McLaughlin moved towards the curb lane. The incident occurred in a short time and over a short distance from the crosswalk to where Officer McLaughlin was hit. Mr. Johnson misjudged the situation. He did not intend to hit or injure the officer. Other than Officer McLaughlin’s impression that Mr. Johnson was trying to kill him, there is no evidence to support that Mr. Johnson intended to assault or threaten to assault the officer. It was not Mr. Johnson’s intention to threaten Officer McLaughlin or cause him to fear for his life. His intention was merely to evade the police.

Analysis

[ 14 ] I did not find Mr. Johnson a credible witness. His evidence is contradicted by the other witnesses, including the bystanders. Neither Mr. Barbour, Ms. Ahlstedt nor Officer McLaughlin observed him to stop accelerating after the crosswalk. For him to suggest that he was acting safely when he went through a red light, forced pedestrians out of the way and cut into the traffic going southbound is ludicrous. His testimony that he did not know he hit officer McLaughlin is incredible.

[ 15 ] I found Mr. Barbour, Ms. Ahlstedt and Officer McLaughlin to be credible witnesses. They each had a good opportunity to observe what occurred on Dundas Square. They each gave their evidence in a consistent, unexaggerated manner. Their evidence was consistent with one another. Their evidence was not undermined on cross-examination.

[ 16 ] Even though I do not believe Mr. Johnson’s evidence, if it leaves me with a reasonable doubt about his intention to apply or threaten force, I must find him not guilty. Further, I may convict only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[ 17 ] The evidence of Mr. Barbour which I accept was that Mr. Johnson accelerated faster than normal from the cross walk towards the officer. The evidence of Ms. Ahlstedt which I accept was that the SUV did not slow down on Dundas Square. The evidence of

Officer McLaughlin which I accept was that Mr. Johnson saw him, hit the gas, revved the engine and drove at him, causing him to believe that Mr. Johnson was trying to kill him.

[ 18 ] I find that Mr. Johnson was intent on evading the police, whatever the cost. I reject Mr. Johnson’s evidence that he accelerated the SUV towards Officer McLaughlin because he saw Officer McLaughlin get out of the way. I also reject his evidence that he took his foot off the gas when he thought Officer McLaughlin was not getting out of his way which is contradicted by the other evidence which I accept. His evidence does not leave me with a reasonable doubt about his actions. I find that Mr. Johnson saw Officer McLaughlin in the middle of the non-parked portion of the street, heard him say “stop” and accelerated the SUV towards him to scare him to get out of the way and enable Mr. Johnson to escape. I find that this constituted a threat by Mr. Johnson to apply force to Officer McLaughlin and that this caused Officer McLaughlin to believe on reasonable grounds that Mr. Johnson had the ability to hit him if he did not get out of his way.

Conclusion

[20] In the result, I find that the Crown has proven beyond a reasonable doubt that Mr. Johnson assaulted Officer McLaughlin and is guilty of aggravated assault. With respect to Count 5, assault causing bodily harm, this charge is stayed at the Crown’s request.

Released August 2, 2012 ______________________

Backhouse, J.

COURT FILE NO.: CR-12-70000132-0000
DATE: 20120802

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN - AND – TROY JOHNSON

REASONS FOR JUDGMENT Backhouse J.

Released: August 2, 2012