# ONTARIO
## SUPERIOR COURT OF JUSTICE
**COURT FILE NO.:** 7315/12
**DATE:** 2013 04 09
### BETWEEN:
**HER MAJESTY THE QUEEN**
– and –
**Brent Earl Garson**
Defendant
Mike Kelly, for the Crown
Bruce Willson, for the Defendant
**HEARD:** **December 17,18,19,20, 2012; February 15, 2013**
E.J. Koke J.
---
[1] Brent Earl Garson has been charged with Dangerous Driving causing Bodily Harm, contrary to [section 249(3)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec249subsec3_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of Canada, and with Assault using a Weapon, contrary to [section 267](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec267_smooth)(a) of the Criminal Code.
[2] The charges arise out of an incident which occurred on the afternoon of July 23, 2010, where Mr. Garson struck Mr. Dennis John Couturier, a pedestrian, with his vehicle on the roadway in front of 30 Grace Street in the City of Sault Ste. Marie, Ontario.
## Evidence of Constable Poderys
[3] Constable Poderys has been an officer with the Sault Ste. Marie Police Services for 12 years. He has received specialized training in the area of accident reconstruction.
[4] Officer Poderys testified that on the afternoon of July 23, 2010, he was requested to prepare a map and take photographs of the scene of a reported motor vehicle/pedestrian accident which had occurred on Grace Street, in the City of Sault Ste. Marie.
[5] Constable Poderys described Grace Street as an older downtown residential street which runs in an east west direction. The street is narrow and is designated as a one way street. Traffic is required to travel in a westerly direction. The closest intersection to where the accident occurred is the intersection of Grace Street and Bruce Street. Bruce Street is located approximately 300 feet to the west of the scene of the collision. Elgin Street is the first major intersecting street to the east.
[6] Constable Poderys identified 33 photographs which were taken at the scene. The items depicted in the photographs included the following:
- Red spots on the surface of the road to the south of the centre of the roadway, adjacent to the south sidewalk, in front of 30 Grace Street, and across from a Dodge Pick-up truck which was parked along the north curb in front of 30 Grace Street. Officer Poderys interpreted these red spots as an indication of blood at this location.
- A red Hyundai Santa Fe automobile (the “Hyundai”);
- Fresh marks on the north side of the roadway, several car lengths to the west of 30 Grace Street, referred to by Officer Poderys as” scratch marks”. Constable Poderys interpreted these scratch marks as evidence of tire tracks travelling in an easterly direction. These tracks matched the tires on the Hyundai;
- Fresh marks on the north side of the roadway several car lengths to the west of 30 Grace Street, referred to by Constable Poderys as “loading marks”. According to Constable Poderys, loading marks indicate a turning motion or a change in direction by a vehicle. In this case the marks indicated a turn to the right or to the south of the roadway, by a vehicle coming from the west;
- Scratches above the front licence plate of the Hyundai;
- Scratches and marks on the centre right of the bumper below the upper grill of the Hyundai;
- Blue paint marks between the lower and upper grill on the front of the Hyundai;
- Blue paint marks on the left half of the upper grill on the front of the Hyundai;
- Some separation in the joint between the left side corner of the front bumper and front left fender of the Hyundai;
- A mark on the front right side of the hood of the Hyundai. According to Officer Poderys this mark was caused by an object which was moving across the hood in the direction of the front windshield of the vehicle;
- Four drops of a red fluid, which had the appearance of blood, on the right side of the hood of the Hyundai;
- An indentation on the centre of the hood, just below the windshield;
- Photographs of brass knuckles, taken at the police station but which were purported to have been recovered from the cavity which is located between the hood and the front of the windshield (this is the cavity where the windshield wipers are recessed when not in use).
- A Dodge pick-up truck parked on the north side of the street in front of number 30 Grace Street;
- An Oldsmobile sedan parked on the south side of Grace street several car lengths to the east of number 30 Grace Street;
- A blue coloured Suzuki GS-1100 motorcycle.
[7] Grace Street, as described by Officer Poderys is approximately 6.92 metres wide. He referred to it as a narrow street, pointing out that the average width of a street lane in the City of Sault Ste. Marie is 4 metres.
[8] Constable Poderys stated that Grace Street is not a busy street. He agreed that on a scale of 1 to 10 of business it would rank about a 2 or a 3.
[9] According to Officer Poderys, there is a directional sign at the intersection of Bruce Street and Grace Street which warns motorists that Grace Street as a one-way street, as well as a do-not-enter sign. In cross examination he agreed that he would not be surprised if some motorists who live at the west end of Grace Street choose on occasion to travel to their homes by driving in an easterly direction on the road.
[10] Constable Poderys stated that the damage to the left rear light housing and license plate of the Suzuki motorcycle was consistent with the damage to the front of the red Hyundai Sante Fe. He submitted that the dent on the hood of the car was consistent with someone landing on the hood of the car, but could also be consistent with someone pounding a fist on the hood. He testified that the scrapes on the front of the hood were consistent with scrapes caused by clothing.
## Evidence of Constable Nicole Magnan
[11] Constable Nicole Magnan has been employed with Sault Ste. Marie Police Services for almost 18 years, and for the last 8 years she has worked in the forensic identification unit.
[12] Constable Magnan arrived at the scene at 3:40 p.m. and took a series of photographs, including some of the photographs which were made exhibits on the examination of Officer Poderys.
[13] Photographs described by her included the following:
- A blue coloured Suzuki motorcycle;
- Scratches around the left lower side of the rear light housing of the motorcycle, below the fender;
- Scratches on the licence plate attached to the rear of the motorcycle;
[14] In describing these photographs for the court, Constable Magnan noted what she described as blue paint transfer on the damaged areas of the front bumper of the Hyundai. She stated that the blue paint was the same colour as the motorcycle and she confirmed that the scratches and damage on the rear of the motorcycle were the same height as some of the scratches and damage to the front bumper of the Hyundai.
[15] Officer Magnan attended at the hospital after taking photographs at the scene of the accident, where she took additional photographs of Mr. Denis Couturier. The photographs she took depicted the following;
- Mr. Couturier in a neck brace;
- Deformed right lower leg;
- Abrasions above Mr. Couturier’s left eye and left cheek;
- Right hand and wrist in tensor bandage;
- Right wrist wrapped in bandage, and revealing a red substance with appearance of blood;
- Abrasion on left knee;
- Half of a black T shirt with the name “Sturgis” printed in white lettering on the front, with one of the letters stained the colour red;
- Pictures of dark coloured pants;
- Wallet removed from pants pocket.
## Evidence of Officer Turco
[16] Officer Turco is an 18 year veteran with the Sault Ste. Marie Police Services. He arrived at the scene of the accident at 3:20 P.M. and was the first officer on the scene.
[17] Upon arriving at the scene, Officer Turco noted that an ambulance had already arrived and the ambulance personnel were attending to an individual who was later identified as Denis Couturier. He observed that a Dodge pick-up truck was parked on the north side of the street, adjacent to the location where Mr. Couturier was being tended to and that there was also an Oldsmobile automobile parked on the south side of the street a short distance to the east of the Dodge pick-up.
[18] Shortly after arriving at the scene, Officer Turco observed a red Hyundai Sante Fe automobile pull up to the scene from the east. The vehicle was driven by an individual who was subsequently identified as the accused, Brent Garson. He was with three other males who were identified as Troy Bozowski, Jody Swanson and Kevin Swanson.
[19] While at the scene, Officer Turco retrieved a pair of brass knuckles from the hood of the Hyundai. The brass knuckles were located in front of the driver’s side windshield.
[20] Officer Turco spoke to Daryl Colynuck who was a witness. After conducting his scene investigation he arrested Mr. Garson.
## Evidence of Joshua Couturier
[21] Joshua Couturier was born on April 11, 1990, and at the time of this incident he was 20 years old. He is the son of Denis Couturier who was injured in the accident on Grace Street.
[22] Joshua testified that he has received his high school equivalency, and for the last two years he has been employed on a seasonal basis with a company called Vinyl Touch Property Maintenance. This winter he is employed at a ski hill as a snowboard instructor.
[23] Joshua informed the court that he had dated a young woman by the name of Amanda Guest for a period of time prior to July 23, 2010. At the time he was dating Amanda, Mr. Garson was dating Amanda’s sister Samantha.
[24] Joshua explained that during the time they were dating the two sisters he and Mr. Garson had gotten along well. However, on the day he and Amanda broke up, Mr. Garson had shown up at his house and attempted to kick the door in. Thereafter there had been continuing tension between him and Mr. Garson.
[25] Joshua testified about an encounter he had with Mr. Garson earlier in the afternoon of July 23, 2012 while riding his blue Suzuki motorcycle. He stated that he had been travelling south on Dennis street in Sault Ste. Marie and after turning right on Queen street he discovered that he was travelling adjacent to a red Hyundai Sante Fe. The Hyundai was to the left of him.
[26] Just after they passed the bus terminal on Queen Street the Hyundai suddenly swerved in the direction of his motorcycle. Joshua was able to swerve to the right curb and avoid a collision. There was a passenger in the Hyundai’s passenger seat. The passenger window was open and somebody in the Hyundai yelled something at him. He looked into the vehicle and he realized that Mr. Garson was driving the Hyundai.
[27] Joshua sped up in an attempt to get ahead of the Hyundai, swerving between a number of vehicles. The Hyundai followed. When he reached Gore Street he made a right turn into the curb lane. Mr. Garson followed him on to this four lane road, making a wide turn into the left or inside lane. Joshua testified that the Hyundai then moved to the right and struck the left side of his motorcycle in the rear, almost causing him to lose control of his motorcycle.
[28] Joshua was able to regain control of his motorcycle and he continued to drive north on Gore Street past Albert Street, following which he stopped in the area of Wellington Street to check the damage to his motorcycle. Mr. Garson also stopped and exited his vehicle and motioned over to Joshua in a way that suggested he wanted to fight. Joshua’s motorcycle was still operable and he decided to ride home.
[29] Joshua testified that he had had his motorcycle painted blue about five days before this incident, and except for a small stone chip on the right side of the gas tank, there was no damage on the motorcycle prior to the collision with the Hyundai. He was shown photographs of his motorcycle and identified the following as damage which occurred as a result of the collision with Hyundai:
a) A black plate attached to the rear light of the motorcycle was twisted and there was evidence of scuff marks on the plate;
b) The left side of the plastic rear light housing was cracked;
c) The rear licence plate showed scuff marks;
d) The bottom of the main rear light was cracked.
[30] Joshua testified that when he arrived home he informed his father about what had transpired between him and Mr. Garson. He stated that his father then said words to the effect of “enough is enough…this has gone on long enough and there should be a way to settle the matter”. Joshua and his father then decided to visit Mr. Garson at his house at 30 Grace Street.
[31] Mr. Couturier drove his vehicle, a 2008 Dodge pick-up truck to Grace Street and Joshua rode his motorcycle. When they arrived, Mr. Couturier parked his vehicle adjacent to the north curb in the front of 30 Grace Street and Joshua parked his motorcycle on the sidewalk a short distance to the west of Mr. Garson’s residence.
[32] Joshua then walked over to his father’s vehicle. After his father had exited the vehicle, Joshua noticed Mr. Garson’s red Hyundai travelling the wrong way on Grace Street towards them. They were standing on the road in front of Mr. Couturier’s pick-up. Josh testified that his father stepped a little to the left of his vehicle towards the centre of the road and motioned with his hand for Mr. Garson to stop. Initially, Mr. Garson appeared to heed the motion to stop, bringing his vehicle to a stop about three houses to the west of where they were standing on the street.
[33] Mr. Couturier then proceeded to approach the Hyundai on foot, walking on the road. Joshua remained by the pick-up. Joshua testified that when his father was about 50 to 60 metres away from the vehicle, Mr. Garson accelerated quickly, spinning his tires and in Joshua’s words giving his vehicle “everything it had” and driving his vehicle directly at his father and striking him with the front of his vehicle. The force of the impact threw his father up in the air, flipping him up and over the car. His father landed on the opposite or south side of the street close to the curb.
[34] Mr. Garson then drove away from the scene of the collision. Josh went over to tend to his father who was lying on the ground and noticed that there were bones sticking out of his father’s hand and right leg. He used his mobile phone to call for an ambulance.
[35] In cross examination, Joshua testified that additional incidents involving him and Mr. Garson had taken place during the six months preceding this incident. In January 2010, on the evening of the incident when Mr. Garson had attempted to kick in the door, Joshua had been arrested for assaulting Amanda and he was placed in custody for several days. While he was in custody, the door to his house was kicked in and a number of items were taken from his house, including a big screen television set which Joshua stated belonged to him. His friend, Jake Myers who was living in his house at the time informed him that he witnessed Mr. Garson taking these items.
[36] Joshua testified that several months later his brand new motorcycle, which was parked outside his home, was set on fire. Joshua testified that someone he knew informed him that he had seen Mr. Garson’s vehicle in the area at the time of the fire and Joshua believes it was Mr. Garson who was responsible for setting the fire.
[37] Joshua also testified about an incident when he encountered Mr. Garson at a movie theatre and they had words.
## Evidence of Lee Hault
[38] Mr. Hault is a 34 year old millwright who lives in Sault Ste. Marie. Mr. Hault testified that in the summer of 2010 he was riding his motorcycle westbound on Queen Street in Sault Ste. Marie. He was riding to Advance Transmission, which is located on Queen Street, just west of Gore Street. While driving on Queen Street he observed what he described as some erratic driving. He stated that “there was a fellow chasing a guy on a motorcycle”. They were driving at a high rate of speed, with the car about 10 feet behind the motorcycle. He stated that it looked like a “road rage thing”.
[39] Mr. Hault testified that he first observed the vehicles around the intersection of Dennis and Queen Street in the area of the bus station. The motorcycle and the SUV passed him on the right. He saw the motorcycle and the vehicle turn right on Gore Street, after which he lost sight of them. A day or two after he witnessed this incident he was contacted by the police and was asked to make a statement describing what he had seen.
## Evidence of Denis Couturier
[40] Mr. Couturier was born on December 24, 1964 and is 48 years old. Prior to July 23, 2010 he had worked as a crane operator for 25 years. As a result of the injuries he received on July 23, 2010, he is now disabled from work.
[41] Mr. Couturier testified that he had not met Brent Garson before July 23, 2010. He was aware however that there was animosity between Mr. Garson and his son Joshua. Joshua had told him about an incident when Mr. Garson had allegedly tried to break into his house, following a dispute between Joshua and his girlfriend Amanda.
[42] He was aware of the incidents earlier in the year in which Joshua’s motorcycle had been set on fire, a fire which spread to include part of his house and an incident when his garage door had been kicked in. He testified that he had not connected these incidents to Mr. Garson.
[43] Mr. Couturier testified that at the time of the incident he had thought that the bad blood which had developed between Joshua and Mr. Garson may have been drug related, namely that his son may have owed Mr. Garson money for drugs.
[44] Mr. Couturier testified that after Joshua told him about his motorcycle being hit by Mr. Garson’s vehicle he decided to go to Mr. Garson’s house with his son because he wanted “to get to the bottom of the situation”. He also wanted to know if his son was responsible for causing the trouble between the two young men and whether his son owed Mr. Garson money.
[45] Joshua rode his motorcycle to Grace Street and Mr. Couturier followed in his pick-up truck. When he arrived at Mr. Garson’s house he pulled over on the right side of the street, a little behind or to the east of his son’s motorcycle and directly in front of 30 Grace Street. He was about to walk up the outside steps to the front door when Joshua pointed out that Mr. Garson was driving towards them in an easterly direction on Grace Street.
[46] Mr. Couturier recalls that Mr. Garson was driving slowly and then came to a stop a couple of hundred feet to the west of where he was standing with Joshua. He stated that the next thing he knew was that the Hyundai was coming towards them at a fast rate of speed. He pushed Joshua out of the way of the speeding vehicle and then the vehicle hit him on his right side.
[47] In cross examination, Mr. Couturier denied that he had driven to Grace Street with the intention of assaulting Brent Garson. He denied that he was wearing or had with him brass knuckles, and stated that prior to the trial he had never even seen a set of brass knuckles.
[48] Mr. Couturier’s injuries included the following:
a) Bruising and abrasions around the left orbital region and face, left chest region and right upper leg, as well as a minimally displaced fracture of the lateral wall of the left maxillary sinus.;
b) Fracture dislocation of the right distal radius and ulna (wrist and forearm);
c) Right tibial plateau fracture (top of the shin bone, within the knee joint);
[49] With respect to fracture of the right tibial Plateau, Mr. Couturier underwent an open reduction and internal fixation procedure which included the insertion of several metal plates attached with screws.
[50] With respect the fracture of the wrist and forearm, the wound underwent debridement and irrigation, followed by external fixation
[51] The injuries have had a serious impact on his lifestyle. He is no longer able to work as a crane operator; in fact, he is unable to work at all. Also, prior to the accident he was an ardent motorcycle rider and outdoorsperson and he is no longer able to ride his Harley Davidson for long distances, or enjoy camping and other outdoor activities.
## Evidence of Maria Martel
[52] Maria Martel is 51 years old and lives at 42 Grace Street which is several doors down the street from where the incident took place.
[53] She stated that after she became aware that someone had been hurt on her street she went outside and sat on her porch. While she was sitting there she saw Mr. Garson drive up to the scene in his Hyundai vehicle, accompanied by several friends. One of the friends, who she described as a big guy, with tattoos all over his arms, came over to her house and sat on her porch. She stated that she had not invited him to sit with her and that she was scared.
## Evidence of Brent Earl Garson
[54] Mr. Garson was born on March 3, 1983, and at the time of the incident he was 27 years old. He testified that he was injured in a work related accident 7 years ago and has not worked since that time. He has a criminal record which includes convictions for public mischief, failing to appear, obstructing a police officer, possession of proceeds of crime, causing a disturbance, driving with a blood alcohol reading of over .08, failing to comply with probation, resisting arrest and driving while disqualified.
[55] Mr. Garson stated that on the afternoon of July 23, 2010, he had driven to Queen Street with a young man by the name of Troy Bozowski who he had hired to clean up the yard of his home on Grace Street. He described Troy as a “young kid who weighed about 90 pounds”. He was intending to go to the Western Tire store, which is located on the south side of Queen Street just west of the intersection of Dennis and Queen Street. When he reached Dennis Street, he saw a motorcycle coming around a corner. The windows of his vehicle were open. The motorcyclist pulled up to the right side of his vehicle, put his arm through the open window and yelled “I’m going to kill you”. He then pulled his arm back and took off. Mr. Garson recognized the motorcyclist as Joshua Couturier. When the motorcycle sped away Mr. Garson followed him. When Joshua made a right turn on to Gore Street Mr. Garson followed him around the corner.
[56] Mr. Garson testified that he turned right from Queen on to the outside or curb lane of Gore Street. The motorcyclist made a wider turn on to the left or inside lane, closer to the centre of the roadway. When the motorcyclist then tried to move over to the right lane and in front of his vehicle, the back of the motorcycle struck the front of his vehicle. He stated that there was no intention on his part to hit the back of the motorcycle and that the collision occurred when the motorcycle swung into his lane.
[57] Mr. Garson testified that after the collision, he drove past Albert Street and then he pulled over off the road in the vicinity of Gore Street and Wellington, adjacent to a Mike’s Mart store, and exited his vehicle to see how much damage his vehicle had received. Joshua had stopped his vehicle on the other side of the street and Mr. Garson challenged Joshua to a fight. Joshua then sped away.
[58] Mr. Garson admitted that he was following Joshua too closely and that he was chasing him while they were on Queen Street. He testified that he almost hit the motorcycle at the intersection of Queen and Gore Streets when Joshua slammed on his brakes. However, after he turned the corner on to Gore Street, he decided that he did not want anyone to get hurt and so he stopped pursuing the motorcycle and made his way back to Western Tire.
[59] According to Mr. Garson, the collision with the motorcycle occurred because Joshua had made a wide sweeping turn on to Gore Street, following which the rear of the motorcycle struck his vehicle when Joshua attempted to pull into the right lane. He denied that it was he who made the wide sweeping turn and then struck the motorcycle while moving his vehicle to the right.
[60] When it was suggested to Mr. Garson in cross examination that the damage to Joshua’s vehicle would have occurred to the right rear side of his motorcycle if the accident occurred the way he described it, Mr. Garson explained that the collision occurred because Joshua turned into his lane and then slammed on his brakes.
[61] When it was suggested to him that if it was in fact his intention to return to Western Tire after he turned on to Gore Street, he could have made a right turn on to Albert Street, which would have provided a much shorter route back to Queen Street, he replied that he failed to choose this shorter route because the incident had left him frazzled.
[62] Mr. Garson admits that when he returned to his house following the incident on Queen Street, he turned the wrong way from Bruce Street on to Grace Street, which is designated as a one-way street. He then proceeded to drive in an easterly direction on Grace Street and observed a pick-up truck parked in front of his house, and Joshua and someone he described as “a bigger guy with a beard” standing either beside the truck on his lawn or in front of the truck.
[63] Mr. Garson testified that after seeing the two individuals he continued to drive easterly on Grace Street at a moderate speed, slowing down and coming to a stop against the curb on the north side of the street in front of his neighbour’s house. He stated that he was now close enough to speak to the two individuals, but not close enough to be attacked. Mr. Garson stated that Joshua was not a very big guy and initially it was his intention to exit his vehicle and tell the two individuals to get lost. However, as he was about to exit his vehicle he noticed the big guy with the beard, who he now knows was Joshua’s father, grab something off the hood of his car and walk out to the middle of the street.
[64] Mr. Garson testified that when he observed the man with the beard pick up the item from the hood he became concerned that the item might be a weapon, so he decided not to exit his vehicle but instead he turned his steering wheel to the right and stepped on the gas in an attempt to pass the two individuals on the south side of the street. He estimated that Mr. Couturier was about 30 feet away from him at this point.
[65] Mr. Garson testified that as he was attempting to make the turn around Joshua and his father, he noticed that Mr. Couturier had raised his right hand, and he noticed that he had a set of brass knuckles on his fist.
[66] Mr. Garson stated that as he was passing Mr. Couturier, Mr. Couturier sidestepped and jumped in front of his vehicle, in an apparent attempt to jump on the hood of the car. One of Mr. Couturier’s legs then hit the front bumper of his vehicle, and his body hit the hood and his face ended up on the windshield sprayer area. He saw the brass knuckles come off Mr. Couturier’s hand, then hit the windshield and fly into the air. He did not know where they went from there. He then heard Mr. Couturier’s body hit the roof of his vehicle.
[67] Mr. Garson admitted that the marks on the pavement identified by Constable Poderys were likely made by his vehicle and he explained that they were likely made when he attempted to turn to the right and drive around Mr. Couturier and his son.
[68] Mr. Garson stated that after his vehicle struck Mr. Couturier he stopped his vehicle. He looked back and noticed that Mr. Couturier had stood back up. He gunned his vehicle to get away, and proceeded to drive east on Grace Street, turning right and driving through a parking lot to Albert Street. He believes he called his girlfriend and asked her to call 911.
[69] Albert Street runs in an east west direction. Although it is a one way street and vehicles are only permitted to drive in an easterly direction Mr. Garson turned right and drove in a westerly direction on Albert to Bruce Street, turning right on Bruce Street and driving to Wellington Street, where he turned left and drove to John Street, eventually arriving at the home of his friend Jody Swanson. Shortly thereafter he returned to the scene with Jody and Jody’s father.
[70] Mr. Garson testified that both Jody and his father are very big men, each weighing about 320 pounds. He denied that they took the brass knuckles with them on the return trip to Grace Street.
[71] Mr. Garson testified that in returning to Grace Street, he first travelled south on John Street to Bay Street. He then travelled east on Bay Street to Bruce Street, turning north on Bruce Street to an alleyway which runs parallel to Grace Street, then drove east along the alleyway to a location where he could exit north onto Grace Street. He believes that he first noticed the brass knuckles on the return trip to Grace Street around the time he turned into the alleyway. They were on the driver’s side of his hood in the recessed area in the front of the windshield. He testified that he noticed them because they reflected the sunlight
[72] Upon arriving at Grace Street he exited his vehicle and he pointed out the brass knuckles on the hood of his car to a police officer.
[73] Mr. Garson explained that he took the Swanson’s back to the scene with him because if the police were not there he wanted someone to back him up.
## The Incident on Queen and Gore Streets: Discussion
[74] Mr. Garson was involved in two collisions with his Hyundai motor vehicle on July 23, 2010. The first involved a collision with Joshua’s motorcycle and which I will refer to as “The Incident on Queen and Gore Streets”. The second was the collision with Mr. Denis Couturier, which was the collision giving rise to these charges, and I will refer to this incident as “The Incident on Grace Street”.
[75] I accept Joshua’s version of the events which led to the collision between the Hyundai and the motorcycle. His version is consistent with the physical evidence of the damage to the motorcycle and is consistent with the evidence of the independent witness, Mr. Hault. Furthermore, I find Mr. Garson’s description of Joshua’s actions on his motorcycle to be implausible. My reasons for coming to this conclusion include the following:
[76] Firstly, with respect to the physical evidence, the damage to the motorcycle was concentrated on the left rear corner. The location of this damage is consistent with the motorcycle having been struck by a vehicle from the left rear side, as described by Joshua.
[77] If I accept Mr. Garson’s revised version of the events, the damage to the motorcycle would have been concentrated on the rear, not the left rear side. I therefore reject his evidence as being inconsistent with the physical damage.
[78] Secondly, Mr. Garson’s description of Joshua’s actions while on his motorcycle is implausible. People who ride motorcycles are aware that they are in a very vulnerable position in relation to other vehicular traffic on the roadway. Motorcyclists avoid serious accidents and stay alive because they maintain a position of control over their motorcycles.
[79] Queen Street is a busy downtown street. The traffic lights are timed in such a way as to expedite the movement of traffic. There are many intersecting streets and parking lots. Cars are permitted to park on the side of the road. Riding a motorcycle on Queen Street requires concentration and control. Joshua would have known that if he reached into the open window of Mr. Garson’s vehicle it would have taken only one tug on his arm by Mr. Garson’s passenger for him to lose control of his motorcycle. In the circumstances, I do not accept Mr. Garson’s testimony that Joshua let go of his handlebars with his left hand while riding on this busy street, and then reached into the open window of Mr. Garson’s moving vehicle.
[80] Also, given Joshua’s vulnerable position as a motorcyclist, I do not accept Mr. Garson’s testimony that Joshua pulled in front of Mr. Garson’s vehicle on Gore Street and then suddenly applied his brakes. He would have known that by suddenly slamming on the brakes he would have risked being hit from behind by the Hyundai. Also, there was no reason for Joshua to suddenly slam on his brakes on Gore Street. Mr. Garson was chasing Joshua and Joshua was attempting to put distance between himself and Mr. Garson at the time of the collision.
[81] Thirdly, if it was in fact Mr. Garson’s intention to stop chasing Joshua and to return to Western Tire after he made the turn on to Gore Street, he would have made a right hand turn on to Albert Street. Instead, he proceeded to drive past Albert Street to Wellington Street, where he exited his vehicle and had words with Joshua.
[82] Fourthly, Joshua had turned the corner ahead of Mr. Garson and he was in the lead. He was riding an 1100 cc motorcycle which is a very fast motorcycle. If Mr. Garson had stopped chasing him after they turned on to Gore Street, Joshua would have been a considerable distance ahead of Mr. Garson at the location where the collision occurred. There would not have been a collision if Mr. Garson had slowed down after turning on to Gore.
[83] Mr. Garson had no choice but to admit that he chased Joshua on Queen Street because Mr. Hault had witnessed them on this street, referring to it as road rage. However, Mr. Hault lost sight of them once they turned on to Gore Street and Mr. Garson was therefore free to testify that he was no longer chasing Joshua after they turned the corner on to Gore. However, for the reasons stated, his testimony does not stand up to scrutiny and I do not accept it.
[84] In conclusion, the evidence points to the fact that Mr. Garson pursued Joshua in a westerly direction on Queen Street, in a manner which was referred to by Mr. Hault as road rage. He continued his pursuit of Joshua after turning the corner on to Gore Street, and at some point when he caught up to the motorcycle he struck it on the left rear corner with his vehicle.
[85] I acknowledge that Mr. Garson has not been charged with an offence in relation to what I have described as the incident on Queen Street. However, the fact that he felt compelled to be untruthful about what happened, reflects poorly on his credibility. Furthermore, his actions reveal that he regarded his vehicle as more than just a means of transportation, it was also a means to intimidate and threaten.
## The Incident on Grace Street-Findings of Fact
### Who brought the Brass Knuckles to the Scene?
[86] In my view, the evidence supports a finding that the brass knuckles were brought to the scene and placed on the hood of the Hyundai by Mr. Garson or by one of the individuals he brought back to the scene with him.
[87] Firstly, there is no evidence before the court and very little reason to believe that Mr. Couturier wanted to fight or injure Mr. Garson. As a parent, I expect that Mr. Couturier would have been concerned about his son’s report that Mr. Garson had attempted to run him off the road and then strike the rear of his motorcycle with his vehicle. As a fellow motorcyclist, Mr. Couturier would also have been aware of the potential danger to which his son had been exposed as a result of Mr. Garson’s actions. However, Mr. Couturier was candid about the fact that he felt that he could not always trust Joshua to tell the truth, and that he suspected that his son’s confrontation with Mr. Garson may have been motivated by a drug debt. There was very little reason for him to show up at Mr. Garson’s door equipped with brass knuckles.
[88] Secondly, even if I were to accept that Mr. Couturier wished to engage Mr. Garson in a fight, I note that Mr. Couturier was described by Mr. Garson as a “big guy”. When Mr. Couturier arrived at Mr. Garson’s house on Grace Street he had no reason to believe he would encounter anyone other than Mr. Garson. He was accompanied by his son Joshua. It is unlikely that he felt that he required brass knuckles to deal with Mr. Garson.
[89] Thirdly, I do not accept Mr. Garson’s testimony that when Mr. Couturier’s body struck his car he noticed the brass knuckles come off Mr. Couturier’s hand, then fly up in the air, and then come down and strike the windshield of his car. The collision with Mr. Couturier would have occurred in a split second, during which time Mr. Couturiers body would have been thrown up in front of Mr. Garson’s windshield, and Mr. Garson’s vision would have been affected by all kinds of movement in front of him. I do not accept that in these circumstances Mr. Garson would have had the opportunity to observe all of these things happening to the brass knuckles. In my view, this is an all too convenient but entirely unbelievable account.
[90] Fourthly, if the evidence of Mr. Garson is accepted, the brass knuckles must have landed in the cavity which runs along the base of the windshield after flying out of Mr. Couturier’s hand. This is where they were later discovered. Mr. Garson states that he and no one else in the vehicle noticed the brass knuckles until close to the end of the return trip back to the scene of the collision, and that after arriving at the scene they were left on the hood for the police to retrieve. The route taken by Mr. Garson to and from the home of the Swansons required him to make numerous turns with his vehicle. There was nothing holding the brass knuckles in place in the wiper cavity. In my view, if the brass knuckles had come to rest on the hood of the Hyundai following the collision, they would have rattled and slid back and forth in the windshield wiper cavity and they would have been noticed by Mr. Garson and his passenger immediately after they left the scene of the accident, and removed before or upon arriving at the home of the Swansons.
[91] Mr. Garson described the Swansons as very big men who weighed about 320 pounds each. He testified that he took these men with him because he wanted “back up”. It is evident that he returned to the scene equipped to do battle with the Couturiers, and in the circumstances it is reasonable to expect that he also returned armed with brass knuckles. I find as a fact that when Mr. Garson and the Swansons then encountered police at the scene, they left the brass knuckles on the hood of the Hyundai to provide support for Mr. Garson’s allegation that he had been threatened by Mr. Couturier.
[92] In conclusion, I do not accept Mr. Garson’s evidence that Mr. Couturier approached him on Grace Street wearing brass knuckles.
### Did Mr. Garson look back and see Mr. Couturier stand up following the collision?
[93] Mr. Couturier’s injuries were very serious. Joshua testified that when he attended to his father at the scene he observed bones sticking out of his legs. In the circumstances, I do not accept Mr. Garson’s evidence that he looked back and saw Mr. Couturier standing up after he was struck by the Hyundai. In my view, this evidence was fabricated by Mr. Garson in order to justify his decision to drive away from the scene of the collision.
## The Criminal Code Charges – A Review of the Elements
[94] Mr. Garson has been charged with operating a vehicle in a manner that was dangerous to the public, thereby causing bodily harm to Mr. Couturier, contrary to [section 249(3)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec249subsec3_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), and with using his vehicle as a weapon to commit an assault upon Denis Couturier, contrary to [section 267](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec267_smooth)(a) of the Criminal Code. I will review the elements which comprise these charges.
### 1) Dangerous Operation of a Vehicle, causing Bodily Harm
[95] The relevant provisions of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) with respect to this charge are as follows:
249. (1) Everyone 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;
(3) Everyone who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
[96] In order to find Mr. Garson guilty of driving his vehicle in a manner that is dangerous to the public, it is necessary for me to examine all of the circumstances surrounding his driving at the time and apply what is referred to as a modified objective test.[^1]
[97] In applying this test, it is necessary for me to find that Mr. Garson’s operation of his vehicle involved more than mere carelessness; I must find that his driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances. Therefore, although a mere departure from the standard expected of a reasonably prudent driver will meet the threshold for civil negligence, it will not be sufficient for penal negligence; this requires a marked departure. The distinction between a mere departure and a marked departure is one of degree.
[98] With respect to the mens rea of this offence, subjective mens rea of intentionally creating a danger for other users of the highway will always constitute a marked departure from the standard expected of a reasonably prudent driver. Subjective mens rea, however, is not necessary; a finding of objective mens rea will suffice. Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. In circumstances where an explanation for the conduct is offered by the accused, the trier of fact must then consider evidence, if any, about the actual state of mind of the accused to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk of danger created by this conduct.[^2]
[99] The test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger.[^3]
[100] In summary and with respect to the offence of Dangerous Driving the questions which this court must address in the circumstances of this case are the following:
a) Did Mr. Garson’s driving amount to a marked departure from the standard of care that a reasonable person would observe in his circumstances?
b) If the answer to this first question is yes, did Mr. Garson intentionally create the risk which resulted in his vehicle striking Mr. Couturier? If Mr. Garson created the risk, would a reasonable person have foreseen the risk and taken steps to avoid it?
[101] If the answers to the above questions are in the affirmative, I must find Mr. Garson guilty of the offence of Dangerous Driving.
### 2) Assault using a Weapon
[102] The relevant provisions of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) with respect to this charge are as follows:
265. (1) 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.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
267. Everyone who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
[103] In order for me to find Mr. Garson guilty of this offence I must find, beyond a reasonable doubt, that the following elements exist:
a) That Mr. Garson intentionally applied force or threatened to apply force to Mr. Couturier;
b) That Mr. Couturier did not consent to the use of force by Mr. Garson;
c) That Mr. Garson knew that Mr. Couturier did not consent to use of force against him;
d)That a weapon, in this case an automobile, was used to apply force against Mr. Couturier.
## Application of the Law to the Facts
### 1) Dangerous Operation of a Vehicle, causing Bodily Harm
[104] In my view, Mr. Garson’s driving amounted to a marked departure from the standard of care that a reasonable person would have observed in the circumstances which Mr. Garson encountered when he arrived on Grace Street. It is also my view that a reasonable person would have foreseen the risk which was created by the manner in which he drove his car. Accordingly, I find him guilty of this offence.
[105] Particulars of Mr. Garson’s failure to observe the requisite standard of care include the following:
[106] Firstly, Mr. Garson acknowledged that children live on Grace Street. It is reasonable to assume that these children, as well as the other adult residents of Grace Street are accustomed to seeing traffic travelling in one direction on Grace Street, and therefore develop a tendency to look in one direction only when crossing the street. Notwithstanding this fact, Mr. Garson intentionally drove the wrong way on Grace Street, in apparent disregard for the wellbeing of his neighbours.
[107] I acknowledge that Mr. Garson’s decision to drive the wrong way on Grace Street was not the proximate cause of the collision. However, his actions demonstrate a careless disregard for the rules of the road and for the safety of others, as well as an attitude that the requisite standard of care which is to be observed by the general motoring public does not apply to him.
[108] Secondly, Grace Street is a narrow city street. Mr. Couturier’s truck was parked on the north side of the street, thereby reducing the already limited space available for vehicles to travel on the roadway. The evidence before the court and which I accept is that when he was struck by Mr. Garson’s vehicle, Mr. Couturier was standing on the roadway, somewhere in the area bordered by the left side of his truck and the south curb. Clearly, the fact that there was a pedestrian standing on this roadway imposed on Mr. Garson a high duty of care and caution. Notwithstanding this fact, Mr. Garson chose to accelerate his vehicle forward in the general direction of Mr. Couturier. By the time the Hyundai struck Mr. Couturier, it was travelling at a fast rate of speed, as is evidenced by the fact that Mr. Couturier was vaulted over Mr. Garson’s Hyundai. In my view, Mr. Garson’s action of accelerating his vehicle in the general direction of Mr. Couturier presented a marked departure from the standard of care that a reasonable person would be expected to observe in the circumstances.
[109] Mr. Garson explains and justifies his action on the basis that he was concerned for his safety. I find that even if Mr. Couturier was threatening Mr. Garson with a set of brass knuckles, Mr. Garson’s actions still amounted to a marked departure from the standard of care which a reasonable person would observe in the circumstances. I also find that a reasonable person would have foreseen the risks that were created by Mr. Garson’s actions.
[110] In coming to this conclusion I note that Mr. Garson had choices available to him. He could have reversed his vehicle or turned his vehicle around and driven down the street in a westerly direction. He could also have locked his car doors and remained in his vehicle. He had a cell phone with him and he could have called for help. Instead, he chose to move his vehicle forward at a high rate of speed and in such a way that it created a situation of danger for Mr. Couturier. In my view, if Mr. Garson had exercised the other and more reasonable choices available to him the collision with Mr. Couturier could have been avoided.
[111] Mr. Garson argues that Mr. Couturier was injured because he jumped in front of the Hyundai, and he was therefore the author of his misfortune. In the circumstances of this case, I do not believe it is necessary for me to decide whether Mr. Couturier was foolish enough to attempt to jump onto the hood of the Hyundai in order to find Mr. Garson guilty of Dangerous Driving. Whether or not I find that Mr. Couturier attempted to jump on the hood of Mr. Garson’s car, it remains my view that Mr. Garson’s actions were a significant contributing cause of the accident. Mr. Garson was aware that Mr. Couturier wanted to engage him in some way, either in conversation or in a fight. If he did not wish to become so engaged, he had other and safer choices available to him, as I have already explained; he did not have to accelerate in the direction of an unprotected pedestrian who was standing on a narrow roadway.
### Did Mr. Garson Assault Mr. Couturier?
[112] In order to find Mr. Garson guilty of this offence, I must find that he intentionally struck Mr. Couturier with his vehicle.
[113] Mr. Couturier and Joshua testified that Mr. Garson drove directly at Mr. Couturier, and that he intentionally struck him with his vehicle. Mr. Garson testified that he was attempting to avoid the Couturiers by steering his vehicle around them on the south side of the street, and that Mr. Couturier was struck by the vehicle because he stepped out in front of the moving vehicle and attempted to jump on the hood.
[114] The Couturiers point out that the vehicle had accelerated to a high rate of speed, and that there is no evidence that Mr. Garson attempted to stop his vehicle before hitting Mr. Couturier. I accept this portion of their evidence.
[115] In my view, the loading marks do not provide assistance in determining whether Mr. Garson intentionally struck Mr. Couturier. The marks are consistent with a vehicle turning to the right, either in the direction of Mr. Couturier or to the right of him. The fact that Mr. Garson was travelling at a high rate of speed does not help with this determination either. He could have been travelling at a high rate of speed in order to avoid what he thought would be a confrontation with the Couturiers.
[116] I have found that Mr. Garson’s driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances, and accordingly, I have found him guilty of the offence of Dangerous Driving. Notwithstanding this finding, I am left with reasonable doubt as to whether he intentionally struck Mr. Couturier. In the circumstances I find him not guilty of the offence of Assault with a Weapon.
E.J. Koke J.
**Released: April 9, 2013**
---
**COURT FILE NO.:** 7315/12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Brent Earl Garson
Defendant
**REASONS FOR JUDGMENT**
E.J. Koke J.
**Released: April 9, 2013**
---
[^1]: See the test set out in R. v. Beatty, [2008 SCC 5](https://www.canlii.org/en/ca/scc/doc/2008/2008scc5/2008scc5.html), [2008] 1 S.C.R. 49, 228 C.C.C. (3d) 225
[^2]: See Beatty, at para [47](https://www.canlii.org/en/ca/scc/doc/2008/2008scc5/2008scc5.html#par47)
[^3]: See also R. v. Hundal (1993), [1993 120 (SCC)](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii120/1993canlii120.html), 79 C.C.C. (3d) 97, 108 (S.C.C.), per Cory J.
minicounsel