ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 655/10
DATE: 2012-10-03

BETWEEN:

HER MAJESTY THE QUEEN – and – Johnny Harmiz Defendant

P. Renwick, for the Crown
R. Christie, for the Defendant

HEARD: September 25 and 26, 2012

REASONS FOR JUDGMENT

Ricchetti, J.

[ 1 ] Mr. Harmiz is charged that he, on November 13, 2009, committed the following offences:

i. Dangerous driving ( s. 249(1) (a) of the Criminal Code of Canada (Code);

ii. Assault using a weapon ( s. 267 (a) of the Code );

iii. Wilfully damaging property ( s. 430(4) of the Code ); and

iv. Uttering a death threat ( s. 264.1(1) (a) of the Code ).

[ 2 ] The allegations arise from an incident that occurred at approximately 6:35 a.m. on November 13, 2009 southbound on Hwy #50 near Mayfield Road.

[ 3 ] There were three different versions of what occurred that morning.

Testimony of Mr. Azevedo

[ 4 ] Mr. Jogelind Azevedo, is a truck driver. He was on his way to work driving a pick-up truck. At approximately 6:35 am, he was stopped southbound on Hwy. 50 at Mayfield Road in the right lane behind several trucks. When the light turned green, the trucks started to move. Mr. Azevedo moved to the left lane to go around them.

[ 5 ] Mr. Harmiz's dump truck was in the left lane approaching Mr. Azevedo's vehicle travelling fast southbound on Hwy 50. As Mr. Harmiz's truck came closer to Mr. Azevedo's vehicle, Mr. Harmiz started to flash his high beams at Mr. Azevedo and honking his horn.

[ 6 ] Mr. Harmiz pulled his truck very close to Mr. Azevedo's vehicle - approximately 10 feet from his bumper. When Mr. Azevedo passed the trucks, which had been in the right lane, he moved to the right lane. Mr. Harmiz pulled his truck up beside Mr. Azevedo's vehicle and started to "push him' onto the gravel shoulder by getting very close to the right side of the lane with his truck.

[ 7 ] Mr. Harmiz started to throw things at Mr. Azevedo's vehicle including a water bottle.

[ 8 ] Mr. Azevedo was forced to move completely onto the gravel shoulder of the road. Then, Mr. Azevedo stopped his vehicle and Mr. Harmiz stopped his truck. Mr. Azevedo asked "what did I do?"

[ 9 ] Amongst other things, Mr. Harmiz started to yell that he was going to "kill" Mr. Azevedo. He said this twice.

[ 10 ] As Mr. Azevedo started to drive away, he heard something and his driver's side window broke, shattering glass over him and his vehicle. Mr. Azevedo did not see what broke his window. Mr. Azevedo threw his coffee and cup at Mr. Harmiz's truck.

[ 11 ] Mr. Harmiz drove off.

[ 12 ] Mr. Azevedo denied yelling or doing anything improper such as unnecessarily putting his brakes on while Mr. Harmiz's truck was behind him.

Testimony of Mr. Harmiz

[ 13 ] Mr. Harmiz was on his way to a site with a "new dump truck." He stopped at Mayfield in the left lane and noticed that Mr. Azevedo was staring at him from the right lane. Mr. Harmiz could not understand why since he had done nothing wrong.

[ 14 ] When the light turned green, Mr. Harmiz started to move. Mr. Azevedo "intersected" him (meaning cut him off) by getting in front of him. When Mr. Azevedo's vehicle was in front of Mr. Harmiz's truck, Mr. Azevedo started to unnecessarily apply his brakes several times despite the fact there was no one ahead of him.

[ 15 ] Mr. Harmiz flashed his high beams to question why Mr. Azevedo was braking and suggest "respect" for other drivers. This did not deter Mr. Azevedo who deliberately braked a further 4-5 times again and thereby, blocking Mr. Harmiz from proceeding southbound on Hwy. 50.

[ 16 ] Mr. Harmiz moved into the right lane. He drove on. When Mr. Harmiz came up to another truck in the right lane, he moved over to the left lane to pass the truck.

[ 17 ] Somehow, Mr. Harmiz found himself in front of Mr. Azevedo's vehicle. Mr. Harmiz denied doing this deliberately. Mr. Harmiz passed the truck and decided to return to the right lane.

[ 18 ] Just as Mr. Harmiz was moving into the right lane, he saw Mr. Azevedo's vehicle move into the right lane causing Mr. Azevedo's vehicle to go onto the gravel shoulder. Mr. Azevedo continued to drive on the gravel shoulder while Mr. Harmiz continued to drive in the right lane. Mr. Azevedo then threw his coffee and cup at Mr. Harmiz.

[ 19 ] Mr. Azevedo accelerated along the gravel shoulder, made gestures at Mr. Harmiz including possibly the "middle" finger, and sped off.

[ 20 ] Mr. Harmiz denied he threw anything and stated he did not yell at Mr. Azevedo.

Testimony of Amad Kachou (witness for the Defence)

[ 21 ] Mr. Kachou works at the same company as Mr. Harmiz. Mr. Harmiz is a supervisor at this company.

[ 22 ] Mr. Kachou was also driving southbound on Hwy 50 at 6:35 a.m. on November 13, 2009.

[ 23 ] It was clear to Mr. Kachou that something had occurred between Mr. Harmiz and Mr. Azevedo prior to the intersection at Hwy 50 and Mayfield Road.

[ 24 ] Mr. Kachou saw Mr. Azevedo's vehicle and Mr. Harmiz's truck side by side. Mr. Azevedo's vehicle got in front of Mr. Harmiz's truck and then started to put his brakes on. When Mr. Harmiz tried to change lanes, Mr. Azevedo tried to block him from changing lanes.

[ 25 ] At times Mr. Harmiz's vehicle would be in front and he would block Mr. Azevedo's truck from changing lanes.

[ 26 ] As both vehicles continued southbound on Hwy 50, both vehicles would cut each other off to prevent the other vehicle from overtaking them. This happened several times.

[ 27 ] The drivers were giving each other the "finger."

[ 28 ] Mr. Kachou described the driving by Mr. Harmiz and Mr. Azevedo as "terrible." Mr. Kachou described the driving as "very dangerous" which could hurt innocent people. Both Mr. Harmiz and Mr. Azevedo were deliberately trying to obstruct and interfere with the other by using their vehicles.

[ 29 ] Mr Kachou slowed down to 100 to 150 metres back as he was concerned there might be an accident and he did not want to be involved in the accident.

[ 30 ] At one point, Mr. Azevedo was behind Mr. Harmiz. Mr. Azevedo tried to overtake Mr. Harmiz's truck on the right. Mr. Azevedo did not back off. Mr. Azevedo would up travelling on the gravel shoulder. Mr. Azevedo accelerated and left.

Credibility of Mr. Azevedo

[ 31 ] I do not accept significant portions of the evidence of Mr. Azevedo. Some of the reasons include:

a)He was trying to minimize his involvement in the incident. He suggested he was not very upset, did not react and was a respectful driver. He said he was trying not to "irritate" Mr. Harmiz that morning. Mr. Azevedo suggested his driving was exemplary and the fault was entirely that of Mr. Harmiz. It is clear from the evidence of Mr. Kachou that this was not the case;

b) Mr. Azevedo's "story" had changed from his statement or prior testimony on several significant points, such as whether he had come to a stop or not on the gravel shoulder of the road and such as, when he got the license plate or part of the license plate of Mr. Harmiz' vehicle;

c)On a very significant point - the utterance that Mr. Harmiz was going to kill him, Mr. Azevedo failed to tell the police this when he gave them a written statement. It is hard to imagine that Mr. Azevedo would have forgotten to tell the police about this; and

d) At one point, Mr. Azevedo suggested that Mr. Harmiz's dump truck, which may have been moving, was close to his vehicle with the passenger window rolled down, with Mr. Harmiz standing and yelling out through the passenger window. It is hard to imagine how this would be possible between a moving dump truck with a driver standing looking out the passenger window of the dump truck and a pick-up truck travelling on the gravel shoulder.

Credibility of Mr. Harmiz

[ 32 ] I accept none of Mr. Harmiz's evidence. Some of the reasons include:

a)It was clearly intended to minimize his involvement. His evidence was to suggest his driving was exemplary and the fault was entirely that of Mr. Azevedo. Again, the evidence of Mr. Kachou clearly demonstrates otherwise;

b) I cannot imagine anyone who has been driving trucks as long as Mr. Harmiz has to suggest that flashing high beams behind another vehicle is anything other than to signal Mr. Azevedo had obstructed him. Along with the honking on Mr. Harmiz' horn, he was very upset at Mr. Azevedo's move to the left lane. Given that it was still dark out and the height of a dump truck, flashing of high beams could be dangerous as at one point Mr. Harmiz was within 10 - 15 meters of Mr. Azevedo's vehicle;

c)Mr. Harmiz' evidence was that, when he realized Mr. Azevedo was in the right lane, he continued to move over to the right lane knowing that Mr. Azevedo was on the gravel shoulder. It is hard to imagine that a driver would not immediately put on the brakes and give the driver on the gravel shoulder an opportunity to get back on the pavement or at least to avoid the possibility the vehicle on the shoulder could spin out of control;

d) Mr. Harmiz testified that Mr. Azevedo, driving a pick-up truck, was deliberately attempting to have Mr. Harmiz, driving a dump truck, hit Mr. Azevedo's vehicle. That is simply unbelievable given the substantial difference in size and weight of the two vehicles and the tremendous risk to both vehicles, drivers and others on the road if the accident occurred. Mr. Harmiz testified that Mr. Azevedo's attempt to cause an accident upset him but he did not say or do anything except to slow down. This is entirely inconsistent with Mr. Kachou's evidence;

e)After all that had happened between Mr. Harmiz and Mr. Azevedo, Mr. Harmiz, later down the road, changed lanes to get in front of Mr. Azevedo's vehicle. I do think this was simply accidently that Mr. Harmiz came to be in from of Mr. Azevedo. It was deliberate to get in front of Mr. Azevedo's vehicle, which is consistent with Mr. Kachou's evidence;

f) Mr. Harmiz did not call the police. Given that Mr. Azevedo was trying to cause an accident with Mr. Harmiz, this is surprising that Mr. Harmiz did not contact the police; and

g) Mr. Harmiz testified he did not speak with other truck drivers from the same company. However, it is clear from Mr. Kachou that Mr. Harmiz did in fact speak to him on several occasions regarding what had happened, albeit briefly, and one such conversation took place shortly after the incident.

Credibility of Mr. Kachou

[ 33 ] There is no reason to question the evidence of Mr. Kachou. It was given in a straightforward manner. It was consistent. No one seriously challenged his credibility.

[ 34 ] Mr. Kachou may not have seen anything thrown between the two vehicles because it was still dark and he had backed his vehicle 100-150 meters away from Mr. Harmiz and Mr. Azevedo's vehicles to avoid being involved in any accident which might occur.

The Facts

[ 35 ] Obviously, something had occurred between Mr. Harmiz and Mr. Azevedo while driving southbound on Hwy. 50 at or before the Mayfield Road intersection. Perhaps it was Mr. Azevedo who cut Mr. Harmiz off. Perhaps not. However, it does not matter which of the drivers started it or was at fault initially.

[ 36 ] What is clear is that while travelling southbound on Hwy. 50, south of Mayfield Road, Mr. Harmiz, driving a large vehicle - a dump truck, was involved in deliberately cutting off Mr. Azevedo's vehicle. Mr. Azevedo's vehicle was likely doing the same to Mr. Harmiz's truck.

[ 37 ] Mr. Harmiz was flashing his high beams and honking his horn when Mr. Azevedo was behind him.

[ 38 ] Mr. Azevedo was putting his brakes on to obstruct Mr. Harmiz. Mr. Azevedo was deliberately cutting Mr. Harmiz' vehicle from getting beside or ahead of Mr. Azevedo's vehicle.

[ 39 ] Mr. Harmiz got beside and at times was in front of Mr. Azevedo's vehicle and was deliberately cutting off Mr. Azevedo's vehicle from getting beside or ahead of Mr. Harmiz's vehicle.

[ 40 ] Both drivers were giving each other the "finger."

[ 41 ] Both drivers were yelling at each other.

[ 42 ] Both drivers were throwing things at each other's vehicles. Mr. Harmiz threw objects including an empty water bottle at Mr. Azevedo. Mr. Azevedo threw his coffee and cup at Mr. Harmiz.

[ 43 ] During the last of these exchanges of trying to cut each other off, Mr. Azevedo's vehicle wound up on the gravel shoulder while Mr. Harmiz's truck was in the right lane. It is not clear whether Mr. Harmiz was trying to cut off Mr. Azevedo in the right lane one more time or Mr. Azevedo simply got caught trying to pass Mr. Harmiz on the right when he should not have. It was the last event in a continuum of extremely bad and dangerous driving by both drivers that could easily have resulted in an accident involving both vehicles or an accident with other vehicles using Hwy. 50 that morning.

[ 44 ] The driving of both men put at risk the safety and health of others using the roadway, including Mr. Kachou and other vehicles described by both Mr. Harmiz and Mr. Azevedo that were using Hwy 50 that morning.

Analysis

Count #1 Dangerous Driving

[ 45 ] The relevant provisions of s. 249(4) of the Criminal Code , R.S.C. 1985, c. C-46 . provide:

249. (1) Every one commits an offence who operates

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

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

[ 46 ] In R. v. Roy, 2012 SCC 26 , the Supreme Court recently set out the actus reus and mens rea requirement for dangerous driving. At para. 28, the Supreme Court stated the following:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place ( s. 249(1) ( a ) of the Criminal Code ). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances ( Beatty , at para. 43). 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 (para. 48).

[ 47 ] The Defence submits that the actus reus was the driving that resulted in Mr. Azevedo's vehicle going onto the gravel shoulder. Therefore, this court should not consider any of Mr. Harmiz's driving prior to the time Mr. Azevedo's vehicle went into the gravel shoulder. I disagree.

[ 48 ] There is nothing in the Information which limits the dangerous driving charge to Mr. Harmiz's driving to one instantaneous moment when he pulled into the right lane as Mr. Azevedo's vehicle was in that right lane. No particulars were sought or provided by the Crown which would have limited the actus reus to the point in time suggested by Defence counsel.

[ 49 ] It is clear that during the evidence given by all the witnesses, both the Crown and the Defence focussed on all the driving on Hwy. 50 between the time Mr. Azevedo and Mr. Harmiz were at the intersection at Mayfield Road until just before the Rutherford Road turn off.

[ 50 ] To do as the Defence suggests would be unnecessarily focusing on one minute moment of the entire driving. I am satisfied that the dangerous driving charge relates to Mr. Harmiz's driving southbound on Hwy. 50 south of the Mayfield Road intersection.

[ 51 ] The Defence also raised an issue regarding a written statement given by Mr. Kachou to the police. The written statement was lost. I fail to see how this would prejudice the Defence. The Defence choose to call Mr. Kachou. We have his evidence "live". His recollection was not seriously challenged by other counsel. If the Crown had sought to call Mr. Kachou, perhaps I could understand the inability of the Defence to cross-examine on a prior statement might have become significant.

[ 52 ] Mr. Kachou works at the same company where Mr. Harmiz works. Mr. Harmiz is a supervisor at that company. If anything, the tendency might have been to favour Mr. Harmiz' evidence. However, Mr. Kachou's evidence was honest and forthright.

[ 53 ] Even if the Defence had Mr. Kachou's prior written statement, the Defence, having called Mr. Kachou would not have cross-examined him on any inconsistencies in the written statement.

[ 54 ] I do not accept Mr. Harmiz's evidence as to the manner of his driving. His evidence does not leave me with a reasonable doubt.

[ 55 ] The evidence establishes beyond a reasonable doubt that Mr. Harmiz was driving his dump truck in a manner that was dangerous to the health and safety of the public and in particular, Mr. Azevedo. The fact that Mr. Azevedo was not charged and may have initially been the instigator is no legal justification for Mr. Harmiz' driving.

[ 56 ] I am also satisfied that Mr. Harmiz's failed to use any reasonable amount of care in his driving that morning when he used his dump truck to deliberately cut off Mr. Azevedo's vehicle. Mr. Harmiz's care while driving exhibited a very marked departure from the standard of care that a reasonable person would expect in the circumstances existing on November 13, 2009. To put it more bluntly, Mr. Harmiz' driving was absolutely shocking and a menace to the public on the roadway.

[ 57 ] I am satisfied beyond any doubt, Mr. Harmiz's driving on November 13, 2009 was dangerous to the public.

[ 58 ] Mr. Harmiz is guilty of dangerous driving.

Count #2 Assault with a Weapon

[ 59 ] It is not clear what "weapon," if any, was used by Mr. Harmiz to assault Mr. Azevedo.

[ 60 ] It is also difficult to determine which driver was the first to start throwing things at the other's vehicle. The only thing identified which hit Mr. Azevedo's vehicle was a water bottle. It caused no damage.

[ 61 ] I am not persuaded that the Crown has established beyond a reasonable doubt that Mr. Harmiz committed an assault on Mr. Azevedo with a weapon.

[ 62 ] Mr. Harmiz is not guilty on this count.

Count #3 Wilful Damage

[ 63 ] While there is little doubt that the driver's side window on Mr. Azevedo's vehicle was broken by something thrown from Mr. Harmiz, no one saw what it was. Is it possible it was a stone that fell off the dump truck or something rose up from Mr. Azevedo's truck while driving on the gravel shoulder?

[ 64 ] I am not prepared to accept that the only inference was the broken window was wilfully caused by Mr. Harmiz. That is not the only reasonable inference which could be drawn from the evidence.

[ 65 ] I am not satisfied beyond a reasonable doubt the Crown has established the essential elements on this count.

[ 66 ] Mr. Harmiz is not guilty on this count.

Count #4 Utter a Death Threat

[ 67 ] I found it difficult to accept that anyone would have been able to hear what was being yelled between these two trucks. One was a loud dump truck, running parallel with a pick-up truck travelling on gravel, there was a difference in height of the two vehicles, Mr. Harmiz was on the driver's side of the dump truck, Mr. Azevedo's pick-up truck was on the right with his window closed for most of the time. Considering all of the above, I have serious doubts that Mr. Azevedo could hear anything Mr. Harmiz may have said. I also found it unusual that Mr. Azevedo only heard the utterance of the death threat but couldn't tell us what else he had heard that morning from Mr. Harmiz.

[ 68 ] I am left with a reasonable doubt as to whether a death threat was uttered by Mr. Harmiz that morning.

[ 69 ] Mr. Harmiz is not guilty on this count.

Ricchetti, J.

Released: October 3, 2012

COURT FILE NO.: 655/10
DATE: 2012-10-03

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Crown – and – JOHNNY HARMIZ Defendant REASONS FOR JUDGMENT Ricchetti J.

Released: October 3, 2012