COURT FILE NO.: 11-30000374-0000
DATE: 20120208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
ROBERT CLIFFORD SMITH
Andrew Pilla, for the Crown
Ed Schofield, for the Accused
HEARD: January 23, 24, 25, 26 and 31, 2012
Kelly j.
REASONS FOR DECISION
[1] Mr. Smith was charged with 25 criminal offences arising from various break and enters and an accident resulting in the death of one person and serious bodily harm to five others. After hearing from several witnesses and making a number of admissions, Mr. Smith changed his plea on 19 of those offences from “not guilty” to “guilty”.
[2] Mr. Smith has plead guilty to the offences of dangerous driving causing death and dangerous driving causing bodily harm. The six remaining charges deal with the same circumstances giving rise to those convictions. What I must determine is whether Mr. Smith’s conduct gives rise to convictions for criminal negligence causing death and criminal negligence causing bodily harm.
[3] After having considered all of the circumstances of this case, I have decided that Mr. Smith is guilty of the criminal negligence offences. What follows are my reasons.
The Facts
[4] On or about February 10, 2010, Mr. Smith stole a Dodge Caravan belonging to Mr. Robert Nunes. Over the next few days, Mr. Smith broke into Glamorous You, Chopstick Delight, Portugrill Restaurant and Auto Zone Central Inc. He stole various items and money from all but Portugrill Restaurant. He also stole gasoline from a Shell Station and on February 14, 2010 he purchased gasoline from an Esso Station using funds stolen from Auto Zone Central Inc.
[5] Shortly after Mr. Smith was at the Esso station, he attended at the Herbal Magic Store located at Midland Avenue and Ellesmere Road in the City of Toronto. Two people passing by observed Mr. Smith in the midst of conducting a break and enter. They reported their observations to the police and while doing so, they observed Mr. Smith depart the parking lot and proceed southbound on Midland Avenue. They followed the van that Mr. Smith was driving.
[6] Police were notified of a break and enter in progress at the Herbal Magic Store. One police cruiser occupied by Officers Seaban and Guy happened to be heading north on Midland Avenue when they passed the van driven by Mr. Smith. They immediately made a u-turn and followed him. A second cruiser occupied by Officers Poirier and Machell was also heading northbound on Midland Avenue at the time they received the radio call. They, too, made a u-turn and followed the van and the first cruiser.
[7] Mr. Smith made a right hand turn at a fast pace onto Lawrence Avenue to head in a westerly direction. The officers who followed the van described the speed of travel along Lawrence Avenue to be between 100 kms. per hour up to 160 kms. per hour. Both cruisers had activated their emergency lights and sirens. They were also traveling at a high rate of speed but stopped at each intersection as mandated.
[8] The area between Midland and Pharmacy Avenues on Lawrence Avenue is described as being occupied by low rise apartment buildings, small businesses such as restaurants, a church, school, etc. All officers described the traffic as light due the fact that it was after midnight when the chase ensued.
[9] At Kennedy Road and Lawrence Avenue Mr. Smith failed to stop at a red light. A car driven by Mr. Steven Straker was traveling through this intersection as he was entitled to do because the light was green. Out of the corner of his eye, he noticed the van driven by Mr. Smith. He concluded that the van was not going to stop for the red light and that he was going to be hit. He slammed on his brakes but did not escape a collision. The van clipped his front bumper causing approximately $900 in damages. Mr. Smith did not stop the van following this collision and continued traveling eastbound on Lawrence Avenue.
[10] Officer Guy testified that the van travelled westbound in the eastbound lanes for a significant period of time and from Birchmount Road to Pharmacy Avenue (where the accident causing death and bodily harm ultimately occurred). Officer Machell testified that the van travelled westbound in the eastbound lanes on two occasions: once at Birchmount Avenue for a short period of time and at Pharmacy Avenue immediately before the collision. Officers Seaban and Poirier testified that the van driven by Mr. Smith entered into the eastbound lanes only once: at Pharmacy Avenue and just before the collision.
[11] I accept the evidence of both officers Seaban and Poirier that the van entered the eastbound lanes once. This was the position advanced by Counsel for Mr. Smith and it is more likely Mr. Smith entered into the eastbound lanes just before entering into the intersection of Pharmacy Avenue. The reason he did this was because all lanes traveling westbound on Lawrence Avenue were occupied. There did not appear to be any traffic traveling eastbound when Mr. Smith moved his van into that lane. There was no evidence that any cars were traveling either northbound or southbound when Mr. Smith entered the intersection.
[12] There are four lanes on Lawrence Avenue heading west at Pharmacy Avenue. All four were occupied by vehicles. The left turning lane was occupied by a Honda that contained six females who were the victims of the accident caused by Mr. Smith.
[13] When the light turned green, the Honda proceeded to make a left turn as it was entitled to do. The van driven by Mr. Smith was in the eastbound lane traveling west and collided with the Honda.
[14] It is estimated that the van was traveling at 100 to 102 kms per hour at the time of the collision. This was the evidence given by the reconstruction expert and the evidence of the officers following the van. The speed did not appear to be disputed by Counsel for Mr. Smith either during cross-examination or in his submissions.
[15] The Honda was pushed a number of feet over the median and finally came to rest in the westbound lanes on Lawrence Avenue. The van spun approximately 180 degrees so that it was facing eastbound in the eastbound lanes. The police cruisers arrived within seconds and arrested Mr. Smith.
[16] The six women in the Honda were ultimately removed from the Honda and were taken to hospital. The driver of the Honda died and the five other women suffered bodily harm.
Analysis
[17] As stated above, at the conclusion of the Crown’s case, Mr. Smith pleaded guilty to one count of dangerous driving causing death and five counts of dangerous driving causing bodily harm. What I must decide is whether the above-mentioned driving gives rise to a conviction for criminal negligence causing death and criminal negligence causing bodily harm.
[18] Section 220 of the Criminal Code[^1] creates the offence of criminal negligence causing death and s. 221 creates the offence of criminal negligence causing bodily harm. Section 219(1) of the Criminal Code defines criminal negligence as follows;
(1) Every one is criminally negligent who,
(a) in doing anything, or
(b) in omitting to do anything that is his duty to do,
shows wanton or reckless disregard for the lives or safety of others.
This section of the Criminal Code requires the Crown to prove that Mr. Smith’s conduct represented a “marked and substantial departure” from the conduct of a reasonably prudent person in the circumstances.[^2]
[19] As stated by O’Connor A.C.J.O. in the case of R. v. M.R.[^3]: “The high standard of a ‘marked and substantial departure’ from the conduct of a reasonably prudent person applies to both the physical and mental elements of the offence…[citation omitted].” The Court should examine the actus reus of the offence to determine if the conduct or the omission involved meets the marked and substantial departure standard.
[20] If the conduct of the accused meets the marked and substantial departure standard, the court should then consider the question of whether the mens rea is established. The consideration of the mental element was again, clearly set out by O’Connor A.C.J.O. in the case of R. v. M.R., supra, at para. 30:
The mental element for criminal negligence is described as a modified objective test: R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867, at p. 887, Cory J.; R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, at p. 1413, McIntyre J. A court must consider the facts existing at the time in light of the accused's perception of those facts and assess whether the accused's conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances: see R. v. Tutton, at p. 1432. In considering this issue, the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all. In most cases, the mental element can be inferred from the accused's conduct or omission: see R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, at pp. 73-74, McLachlin J. (as she then was); R. v. Hundal, at p. 872, McLachlin J., concurring; R. v. Tutton, at p. 1432, McIntyre J.
[21] A last consideration in determining whether Mr. Smith had the required mental element to establish liability for causing death or bodily harm is this: “whether the reasonable person in all the circumstances would have foreseen the risk of bodily harm [or death]”[^4].
The Actus Reus
[22] There is no issue but that Mr. Smith operated the van. There is also no issue but that it was Mr. Smith’s operation of the motor vehicle that caused the death of one female and caused bodily harm to the five others. What I must decide is whether Mr. Smith operated the van in a manner that was a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances. To answer that question, I may consider the following:
• The nature, condition and use of the place where the driving occurred;
• The amount of both vehicular and pedestrian traffic actually there at the time; and
• The amount of both vehicular and pedestrian traffic that might reasonably expected to be there at the time.
(i) The nature of Mr. Smith’s Driving
[23] The nature of Mr. Smith’s driving may be summarized as follows:
a. The van was driven at a high rate of speed on a city street in Toronto. The estimated rate of speed down Midland Avenue was over 100 kms per hour. This was double the posted speed limit of 50 kms per hour on this avenue.
b. It was also estimated that the van turned right onto Lawrence Avenue at a rate of speed of 60 kms per hour. Again, this was a significant speed for a van to be making a turn on these particular streets.
c. In analyzing the evidence of the police at trial, it appears that at the very least, Mr. Smith travelled at approximately 100 kms per hour in a posted 60 km per hour zone across Lawrence Avenue. Accordingly, Mr. Smith was traveling at a rate of speed well in excess of the posted zone.
d. The distance between Midland and Pharmacy Avenues along Lawrence Avenue is close to four kilometres in length. That means that Mr. Smith was driving at a high rate of speed for close to four kilometres on a city street.
e. Mr. Smith travelled through a red light at Kennedy Road. At that point he collided with a vehicle that was travelling through a green light causing damage to the bumper of the other car. Mr. Smith did not stop following this collision.
f. Mr. Smith veered into the eastbound lanes while traveling westbound on Lawrence Avenue. There were cars waiting at a red light at Lawrence and Pharmacy Avenues when he did so. Accordingly, there was other traffic in the area although there may not have been cars proceeding in the eastbound lanes when this manoeuvre occurred.
g. Although there was no advanced green light for the cars turning left to head south on Pharmacy Avenue at Lawrence Avenue, the victim’s car was parked in that lane. The Honda proceeded to make a legal left hand turn and while doing so, the van driven by Mr. Smith collided with it at a speed of almost 100 kms per hour. Mr. Smith was wrongfully in the eastbound lane when this occurred.
h. There was no reason for the driver of the Honda to have expected a van to approach on her left side. Mr. Smith should have anticipated such a turn in light of the fact that the Honda was sitting in the left turning lane as he approached the intersection.
i. At the time the collision occurred, Mr. Smith had been pursued by two police cruisers that had their emergency lights and sirens activated. Such a pursuit had happened over a fair distance from Midland to Pharmacy Avenues crossing three major intersections at Kennedy Road, Birchmount Road, Warden Avenue and finally into Pharmacy Avenue.
j. There is no doubt that this chase ensued for the time that it did because Mr. Smith was attempting to avoid arrest. Mr. Smith controlled the chase and the outcome. All that he needed to do to end the chase was stop his van. He did not. Because he did not, he caused the accident at Pharmacy Avenue.
(ii) The Conditions
[24] The conditions of the road at the time were dry and clear. Any light was provided by the streetlights and lights at the intersections. There might have been a limited amount of light provided by the storefronts or apartments in the area.
(iii) The Place where the Driving Occurred
[25] As stated above, the place where the driving occurred was occupied by low rise apartments, a church, a school and small businesses. There was an Esso station located on the northeast corner of Kennedy Road and Lawrence Avenue. The evidence is that it was open for business as of 11:30 p.m. because it appears from the video evidence that Mr. Smith put gas in the van and paid for it from funds stolen during a break and enter.
(iv) The Vehicular and Pedestrian Traffic
[26] At the time of the collision, the traffic in the area was described by the police officers as light. From the testimony that I heard, there were at least two cars at the intersection of Kennedy Road and Lawrence Avenue. There were at least 3 to 4 cars at the intersection of Pharmacy and Lawrence Avenues.
[27] I find that the vehicular and pedestrian traffic that might reasonably have been expected in the area at the time was that which was in the area at the time. It was after 12 p.m. on a Sunday evening going into a Monday morning. The area was occupied by low rise apartments and businesses. It is likely that most people would have been in their apartments and that most businesses would have been closed at the time the accident occurred. That being said, the accident occurred shortly after Valentine’s Day ended at midnight. A number of the witnesses testified that they were out celebrating Valentine’s Day at the time which might account for more traffic in the area than is usual.
[28] Based upon all of the above circumstances, I conclude that Mr. Smith’s operation of the van on the night in question was more than just carelessness. I find that his driving was a marked and substantial departure from what a reasonable, prudent driver would do in the same circumstances.
[29] Mr. Smith engaged in a chase on a busy street in Toronto despite the fact that there was light traffic after midnight on February 14, 2010 going into the early morning hours of February 15, 2010. He was involved in a collision (albeit minor) at the intersection of Kennedy Road and Lawrence Avenue. He failed to stop. He continued in his attempt to outrun police, darted into the eastbound lanes traveling at a speed of at least 100 kms per hour and hit a vehicle that was making a legal left hand turn.
[30] It is my view that a prudent driver would not have been driving his or her vehicle at such a high rate of speed in a posted 60 km per hour zone despite the light traffic. At the very least, a prudent driver would have stopped this madness when he or she went through the first red light and clipped the car. Mr. Smith was in complete control of the circumstances and at any point, he could simply have stopped his car. He did not. As such, his conduct caused the senseless death of one person and the bodily harm of five others.
The Mens Rea
[31] Since I have found that the conduct of Mr. Smith meets the marked and substantial departure standard, I will now consider whether the mens rea is established. As stated above, in most cases, the mental element can be inferred from the conduct of the accused. In my view, this is such a case.
[32] Frankly, I cannot describe the mens rea better than Dubin J.A. did in the case of R. v. Tutton.[^5] In that decision he said the following about the mens rea:
Most cases, if not all, where it has been held that the mens rea of criminal negligence is determined by an objective standard have been cases of acts of commission. Where, for example, an accused person drives at a grossly excessive speed through a busy intersection and causes the death of others by so doing, a marked and substantial departure from the standard of a reasonable driver in the circumstances has been held to suffice. It would be open to the jury under such circumstances to find the required blameworthy state of mind in the nature of the accused's driving. [Emphasis added]
That is the case before me.
[33] The driving exhibited by Mr. Smith could easily be defined as criminal negligence and a marked and standard departure from the standard of a reasonably prudent driver in the circumstances. Mr. Smith was on a public roadway. His speed was in excess of that posted and he drove his car through a red light, without hesitation, and was in an accident with another car. He failed to stop the car following that accident. Instead, he continued to race along Lawrence Avenue, entered the lane for oncoming traffic and caused a more serious accident. He was attempting to outrun the police the time.
[34] The dangers to the public were obvious. Mr. Smith put all drivers at risk by controlling the van and the situation as he did. The potential for injury and death to members of the public in the circumstances was obvious. A reasonable person in Mr. Smith’s position would have been aware of the risks arising from his conduct.
Were death and bodily harm foreseeable?
[35] Lastly, for the reasons set out above, I am satisfied that a reasonable person, in all of the circumstances, would have appreciated that driving in the manner that Mr. Smith did, bodily harm and death were foreseeable.
Conclusion
[36] For the abovementioned reasons, I conclude that Mr. Smith is guilty of all counts of criminal negligence causing bodily harm and criminal negligence causing death.
Kelly J.
Released: February 8, 2012
COURT FILE NO.: 11-30000374-0000
DATE: 20120208
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
ROBERT CLIFFORD SMITH
REASONS FOR DECISION
Kelly J.
Released: February 8, 2012
[^1]: R.S.C., 1985, c. C-46
[^2]: See: R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215 at para. 9
[^3]: R. v. M.R., [2011] O.J. No. 1017 (C.A.) at para. 29
[^4]: See: R. v. Creighton, supra, at p. 75 and R. v. M.R., supra, at para. 31
[^5]: 1985 3555 (ON CA), [1985] O.J. No. 44, (C.A.)