overview

[1] The defendant is charged with causing the death of Marek Suchowski by criminal negligence in the operation of a motor vehicle. He is also charged with dangerous operation of a motor vehicle causing death in the same incident.

[2] The Crown alleges that excessive speed was an important factor. It is admitted that the defendant was the driver and that he was delivering for Pizza Pizza at the time of the incident.

[3] The Crown alleges that Pizza Pizza had a policy in effect at the time wherein pizza would be delivered within a certain time or the customer would not have to pay.

[4] The defence does not admit that the policy was in effect at the time of the incident or had any impact on the conduct of the defendant.

[5] Shortly after the incident the police located pizza boxes and a delivery satchel from Pizza Pizza in an alley near the scene. There is circumstantial evidence that the items were placed there by the defendant after the incident.

the issue

[6] Should the Crown be permitted to lead evidence that the Pizza Pizza items were moved by the defendant from his vehicle to a location further away?

position of the parties

[7] The Crown submits the following:

The policy of Pizza Pizza was in effect at the time of the incident and was known to the defendant.
The removal of the Pizza Pizza items by the defendant after the incident from his vehicle to a location further away is relevant to his state of mind as he drove immediately prior to the incident. This evidence could reasonably support an inference that the defendant was conscious of and concerned that speed was a factor in the incident based on the company policy.

[8] The Defence submits the following:

The accused admits that he was delivering for Pizza Pizza at the time of the incident. Thus, the finding of the items near the scene is not necessary.
There is a danger that this post-offence conduct could be misused by the jury as going to the level of culpability, i.e. speeding – dangerous driving – criminal negligence.

analysis

[9] There is circumstantial evidence that the items in question were removed from the vehicle at the scene of the incident by the defendant. This post-offence conduct need not be proven beyond a reasonable doubt.

R. v. Hall, 2010 ONCA 724 at para. 133.

[10] Identity is admitted. There is no admission of any level of culpability. Specifically there is no admission of speeding. Further, there is no admission that the policy was in effect at the time of the incident or had any impact on the conduct of the defendant.

[11] Whether the defendant was speeding at the time of the incident or had a motive to speed is an important live issue on this trial. Evidence that the defendant sought to distance of himself from the policy would be relevant to those important issues.

[12] This post offence conduct would not be relevant to elevate the level of culpability. If it is admitted there must be a careful instruction based initially on whether there is a finding that the defendant in fact moved the items to the location where they were found. This post-offence conduct of the defendant based on the particular issues in this trial should be left with the jury with the accompanying limiting instruction:

There is no direct evidence that those items were placed where they were found by the defendant after the incident. There is no evidence that anyone saw him place those items there. The combination of evidence on this issue is circumstantial that he did place those items there. The Crown is not obliged to prove that he did so beyond a reasonable doubt. However, if you find that he did place those items there you may consider that for a limited purpose.

If the defendant did place those items where they were found you may consider that it may have been because he was concerned about his potential jeopardy. The concerns specifically would relate to whether he was speeding in order to make a timely delivery in accordance with the current policy of Pizza Pizza.

If you find that this was the case this does not mean that he was conscious of committing a criminal level of driving in the incident. He may have been conscious of committing a less serious, non-criminal act such as careless driving or speeding. Those offences are provincial charges and not criminal. They are not before you for decision.

The limited and only use you may make of this evidence if you find he removed those items to where they were found is whether he did so out of concern for a link between his assigned pizza delivery and the company policy of “delivery within 40 minutes or customer does not pay” that may have caused him to speed.

You may not use this evidence as proof of criminal negligence or dangerous driving or to elevate dangerous driving to criminal negligence. If you do not find he moved those items to where they were found you should not consider that evidence for any purpose.

Whether the removal of the items was an attempt to conceal a motive to speed preceding the impact is for you to decide. You must look at this matter in light of all the evidence. It is on a consideration of all the evidence that you decide whether the Crown had proven guilt beyond a reasonable doubt.

result

[13] Evidence of the post-offence conduct will be admitted at trial with the accompanying limiting instruction.

B. P. O’Marra J.

Released: June 12, 2013

COURT FILE NO.: CR 12-40000445-0000

DATE: 20130612

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANIMER FATAHAL-DELIL

Defendant

REASONS FOR JUDGMENT

B. P. O’Marra J.

Released: June 12, 2013

Her Majesty the Queen v. Animer Fatahal-Delil, 2013 ONSC 4012

Case Summary

overview

the issue

position of the parties

analysis

result

Counsel

Parties

Areas of Law

Fact Patterns

Issues