ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMNJ 556/13
DATE: 20140523
B E T W E E N:
HER MAJESTY THE QUEEN
A. E. Beaton, for the Crown
- and -
JEFFREY SANFORD
J. Park, for the Defence
HEARD: May 20-22, 2014
REASONS FOR JUDGMENT
HILL J.
INTRODUCTION
[1] Following an accident between a pickup truck driven by Mr. Sanford and a man riding a bicycle, the cyclist died of his injuries.
[2] The focus of this trial was not to assign fault for the fatal accident but rather to determine whether the prosecution proved, beyond a reasonable doubt, the accused’s liability for failing to comply with the duties described in s. 252 of the Criminal Code:
s. 252 (1) Every person commits an offence who has the care, charge or control of a vehicle…that is involved in an accident with
(a) another person,
and with intent to escape civil or criminal liability fails to stop the vehicle…, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.
[3] For the reasons which follow, the accused is found guilty as charged.
FACTUAL BACKGROUND
The Accident
[4] In August of 2012, Mr. Sanford was, and remains today, a co-owner of RFN Transport. He has resided in Mississauga for about 16 years.
[5] On the accused’s evidence, on August 19, 2012 he had the flu. At 10:20 to 10:30 p.m., he left his Mississauga Valley Blvd. residence located south and west of the intersection of Burnhamthorpe Road and Tomken Road, and about four (4) kilometres away from that location, to search out a drug store to purchase medicine. Later in his evidence, he claimed to have no wallet. In any event, on his evidence, he had not been drinking and, at the time, had no car of his own. He drove his business partner’s 2005 F150 pickup truck along Burnhamthorpe Road to Cawthra Road but the drug store at that location was closed. He continued eastbound to the Rockwood Mall at Burnhamthorpe Road and Dixie Road but the drug store there was also closed. He decided to proceed to a drug store located at Highway #10 and Eglinton Avenue.
[6] On Sunday night, August 19, 2012, 75-year-old John McBride was riding his bicycle on Burnhamthorpe Road just east of Tomken Road in the City of Mississauga.
[7] The accused testified that as he drove westbound along Burnhamthorpe Road toward Tomken Road, at about 40 k/hr, and as he began to slow for a red light at Tomken Road, a bicycle “came out of nowhere” out of the gravel or the ditch. He considered that perhaps the cyclist had been drinking. He hit the brakes and thought a collision would be avoided. He believed however that Mr. McBride’s head was struck by the right front of the truck. The collision occurred at 10:42 p.m. To the accused’s recall, Mr. McBride had dark clothing and was not wearing a helmet. According to the accused, this location was an “extremely poorly lit area” – there were not many street lights.
[8] On August 19, 2012, shortly before midnight, Mueen Hakak was driving his vehicle westbound on Burnhamthorpe Road in Mississauga. There were street lights along the road and, in his view, it was “fairly lit”. He was travelling about 80 km. The roads were dry and it was about 14˚C. Traffic conditions were very light.
[9] Mr. Hakak was in the passing lane of the road east of Tomken Road which runs north/south. About 100 to 200 metres ahead, in the curb lane, he observed a white F150 pickup truck. At 10:42 p.m., Mr. Hakak observed sparks on the roadway at the location of the truck and two objects rolling along the ground to its right in the area of the gravel shoulder.
[10] Mr. Hakak slowed and brought his vehicle to a stop in the curb lane. He observed the pickup truck stop. There was a bicycle and a cyclist on the ground.
[11] According to Mr. Hakak, as he exited his vehicle and began to jog toward the body, he observed the accused leave his truck and also run toward the cyclist. Mr. Hakak testified that he immediately called 9-1-1 on his cellphone as he ran toward the body. The 9-1-1 call began at 10:43 p.m.
[12] Mr. Sanford testified that he stopped his vehicle and ran back to the injured cyclist arriving only slightly ahead of Mr. Hakak. On the accused’s evidence, his cellphone flew off the seat of the truck somewhere into the floor area when he braked to try to avoid a collision. He did not attempt to find the phone.
[13] Mr. Hakak requested an ambulance attend the scene. He reported an accident had occurred with a vehicle having struck a cyclist. On reaching the location of the cyclist, Mr. Hakak observed obvious injuries. Mr. McBride was unconscious. The victim’s face was bloody. Blood covered his eyes. There was a lot of blood in the cyclist’s mouth and gushing from his nose. Mr. McBride was having difficulty breathing apparently on account of blood in his throat and nose. Mr. Hakak began to take instruction from the operator as to whether the victim should be on his side to prevent him from choking on his blood.
[14] The accused informed the court that he observed the injured party, who was on his back, to be both unconscious, also described as in shock with laboured breathing. Mr. McBride’s nose was bleeding and blood clots were coming from his mouth. He appeared to be in pretty bad shape. He was not regaining consciousness.
[15] According to the accused, he told Mr. Hakak that they needed “to get hold of someone” and to move the injured party, who was on his back, to a level area and to turn him so that he did not choke on his blood. At that point, to the witness’ recall, Mr. Hakak said he had a medic on the phone. During cross-examination of Mr. Sanford as to how long he stayed at the scene, using the timing of Mr. Hakak’s reference in the 9-1-1 call to seeing the accused leaving in his truck, the accused stated with respect to the commencement of the 9-1-1 call that, once at the location of the body, Mr. Hakak then removed his cellphone from his pocket and, “[i]t was a couple of seconds…it was actually probably 30 seconds into him being at the person” before he made the call.
[16] In his testimony, Mr. Sanford agreed that he told Mr. Hakak that he thought the cyclist was drunk.
[17] At about 1:32 into the 9-1-1 call, Mr. Hakak is heard to state, “I called the medics don’t worry”. At trial, the witness was uncertain whether this statement was directed to a passing motorist or to the accused.
[18] Mr. Hakak testified that it was 45 to 60 seconds after the accident before two vehicles fully stopped and others provided assistance.
[19] Mr. Hakak recalled that the accused did not come right to the location of the body. He seemed to be in a state of shock. The accused stood and observed some distance from the body. The witness testified that:
The driver of the white pickup was few feet away but wasn’t with me or didn’t touch the body. He was simply standing there and observing, and a minute or two later, he comes back and went to his pickup truck.
Mr. Hakak further testified that the accused did not move closer to the victim at any point or approach him.
[20] Mr. Hakak testified that the accused kept repeating words to the effect of: “This guy was drunk…he was drunk…he came in my way”. The accused had other “mumblings” which Mr. Hakak could not understand. The accused seemed nervous and perhaps in shock. Mr. Hakak testified that he had no recall of the accused asking him to call 9-1-1 or the police, or saying that he was leaving to go and get water and blankets. Mr. Hakak reported to the 9-1-1 operator that:
Ah the only thing he [the accused] told me was that man this guy was drunk. He’s just c-, you know came out of nowhere. This guy was drunk, this guy was drunk. I, I mean you know he was pretty, pretty nervous…pretty crazy at that point.
[21] When asked in cross-examination about his feelings at the time of the accident, the accused stated that, although he was angry and extremely upset, it never crossed his mind that he might be investigated. He felt that the cyclist was an asshole and was at fault. The accused agreed that within hours of the accident when he was at the police station he did say, “I’m gonna be in serious trouble because somebody did something absolutely wrong”.
The Accused Leaves The Scene
[22] The accused informed the court that he had had some first aid training relating to when he was a Ski Patrol member from 14 to about 25 years of age. In his view, an injured party should be stabilized to the extent possible and turned over to medical personnel.
[23] To the accused’s recall, other vehicles stopped at the scene although no one else approached the body. Accordingly to the accused’s testimony, as others arrived on scene, he “told everybody to stay back, way back”. Nevertheless, in his view, others were there to assist and the 9-1-1 call was in progress. He stayed at the scene more than a minute or two. In cross-examination, the accused stated that he was at the scene more than 1 ½ minutes. In Mr. Sanford’s words, there was “nothing more I could do” except to leave and, as quickly as possible, get water and blankets as the injured party was in shock and “so he could breathe”. No one asked him to go and obtain water. Mr. Hakak appeared to have things under control. He told Mr. Hakak and others at the scene that he was going for water and blankets. He did not tell Mr. Hakak his name.
[24] Late in the evening of August 19, 2012, Mr. David Raan was driving westbound on Burnhamthorpe Road. His (then) fiancée, Loren Chamale, was in the passenger seat with her brother occupying the rear seat of the car. It was a “pretty warm” evening.
[25] Mr. Raan informed the court that as he approached Tomken Road he observed “a commotion” on the right shoulder of the road. A man was laying on the shoulder and, to his recall, a person seemed to be assisting him. Ms. Chamale testified that she saw someone on the ground with a bike on top.
[26] Mr. Raan decided to stop his vehicle to see if he could help. As he pulled toward the shoulder to pull in ahead of a parked pickup truck, that vehicle almost drove into the passenger side of his car. In her testimony, Ms. Chamale agreed with this description of events. She feared she would be hit by the truck but Mr. Raan braked in time.
[27] Mr. Raan described the driver of the pickup truck as a white male. The witness recalls that either he or his fiancée asked if anyone had called 9-1-1. The driver of the truck, who appeared panicked, responded that he was leaving to go and get some water.
[28] Ms. Chamale recalled that through the open vehicle windows she asked the pickup driver, “What’s going on?” and repeatedly inquired, “Has somebody” or “Have you called the police?” The only reply from the accused was him twice repeating that he had to go and get some water. To her, the driver of the truck seemed frantic and in a rush.
[29] Mr. Raan described the pickup truck as accelerating quickly away speeding away westbound. Ms. Chamale described the truck as speeding away quickly kicking up gravel from the shoulder of the roadway.
[30] During the 9-1-1 call, which lasted for 8 minutes and 18 seconds, Mr. Hakak stated, at the 1:52 point of the call, “Oh, that guy just left”. He had seen the accused enter his truck and then observed him turn northbound on Tomken Road. He was surprised to see the accused departing. Consistent with the timing of the 9-1-1 call, the witness testified that he believed that the accused was at the scene only one to two minutes before leaving. On the basis of Mr. Hakak’s testimony, supported by the 9-1-1 call, the accused left the accident scene at about 10:45 p.m.
[31] At about 2:40 into the 9-1-1 call, after the accused had driven away, background voices can be heard in Mr. Hakak’s vicinity as he conversed with the ambulance and police operators to whom he was connected through the 9-1-1 communication centre. At about the 3-minute mark of the call, or about 10:46 p.m., Mr. Hakak says, “Can I get some help here sir?” which sounds in the audiotape like a request for help in turning Mr. McBride to his side because of the blood filling his mouth. Mr. Hakak can then be heard saying, “Carefully, carefully,” and later, “can we turn him on his side…very softly…very slowly”, as he works with one or more others to shift the injured party’s position. When Mr. Hakak reported to the ambulance operator that Mr. McBride was also visibly bleeding from the back of his head, the operator stated, “Can somebody grab a clean cloth or towel?” This occurred immediately before Mr. Hakak reported the arrival of a fire truck on scene at 5:30 into the 9-1-1 call, or about 10:48-49 p.m.
[32] A/Sgt. Farley testified that there were many stores open within a kilometre of the accident scene. On August 19, 2012 he specifically turned his mind to this issue because of the accused’s statement to him about leaving the accident scene to obtain water. He recorded in his notes the location of two convenience stores along the route taken by the accused which were open on that date – one in a strip mall at Burnhamthorpe Road and Tomken Road (across from the accident scene) and a second in the Tomken Centre at Tomken Road and Rathburn Road. Although the officer’s testimony on the point was not entirely clear, it seems that he based that assertion on his extensive policing experience in the area, including personal attendance at the stores in the past, and from the lights on at those establishments on August 19. The officer testified that he knew from his experience that a bar was also open in the Tomken Centre at that time of night.
[33] A/Sgt. Farley further testified that there was an open gas station at Burnhamthorpe Road and Dixie Road just to the east of the accident location.
[34] As to the strip plaza at the southeast corner of Burnhamthorpe Road and Tomken Road, the accused testified that in his years of living in the area he had never seen the convenience store open past 9:00 p.m.
[35] The accused testified that he was in an extreme rush to the closest place. His first choice to stop was at a No Frills store at Tomken Road and Rathburn Road, about a quarter of a mile away, which he thought was open 24 hours a day like the Metro store around the corner from his own residence. In his evidence in-chief, the accused testified that, “…as I was going into the entrance, I noticed the No Frills wasn’t open”. Pressed in cross-examination as to why he had not proceeded through the Tomken Centre and out to Rathburn Road as the quickest way to the gas station at Rathburn Road and Cawthra Road, the accused stated that while he realized before reaching the Tomken Road entrance to No Frills that the lights were not on at the store and that it was closed he nevertheless continued on Tomken Road past the entrance.
[36] Mr. Sanford testified that he had no idea whether the bar in that mall was open any more. He had never been to the bar. The accused testified that while he knew there was a convenience store in the mall, owned by Gus, he knew that it was not open at night. Although he had initially considered attending the gas station at Burnhamthorpe Road and Dixie Road, he considered going back east and eventually getting past a median to enter the station was too far to travel.
[37] Mr. Sanford informed the court that his second choice was a PetroCan gas station located to the southwest at Cawthra Road and Rathburn Road. In the accused’s words, he “knew it would be open”. Asked why he continued north on Tomken Road rather than proceeding west on Rathburn Road directly to that gas station, the accused responded that he was already north of Rathburn Road when he determined that No Frills was closed. In his view it would be “way faster” to continue north to Eastgate Parkway.
[38] Questioned as to why he did not turn left off Tomken Road onto Woodslea, the next main street heading west, as opposed to continuing north toward Eastgate Parkway, the accused stated that after 7:00 p.m. cars are parked on that residential roadway and it is a slower route like an obstacle course.
[39] In cross-examination, the accused stated that at some point he also contemplated going to another PetroCan station located at Tomken Road and Eglinton Avenue but that station was a farther distance.
[40] The accused agreed in cross-examination that his travel from the accident scene to the point where he was stopped by the police took him past hundreds of homes. Asked why he made no attempt to secure water or blankets from a residence, the accused responded: “Why take a chance to stop at a house” after 11:00 p.m. The accused maintained that no one in the neighbourhood these days even says “hi” to another person.
The Police Involvement
[41] On August 19, 2012 Acting Sergeant Shane Farley of the Peel Regional Police Service was on duty in a marked cruiser as a road supervisor of uniform patrol officers.
[42] At 10:47 p.m., as he was driving southbound on Tomken Road north of Burnhamthorpe Road, A/Sgt. Farley received a radio call regarding an accident at Burnhamthorpe Road and Tomken Road. From the dispatch, he understood that a white pickup truck had failed to remain at the scene of the accident. To A/Sgt. Farley’s recall, Tomken Road has a post 50 k/hr speed limit.
[43] Almost immediately after the call, A/Sgt. Farley observed a white pickup truck approaching toward him. The passenger front headlight was out. At trial, the witness confirmed his preliminary inquiry testimony that the truck was travelling at a very high rate of speed and that the vehicle made a very fast turn to go west on Eastgate Parkway. The pickup truck accelerated in the 70 k/hr zone to an “extremely high rate of speed”. On A/Sgt. Farley’s evidence, he had doubts that he would be able to stop the vehicle before it reached Highway #403.
[44] The officer followed the pickup truck along Eastgate Parkway accelerating to over 80 k/hr to catch up. In his view, the condition of the headlight and the potential that the vehicle was the subject of the radio call warranted a vehicle stop. He activated his roof lights and the accused immediately pulled his vehicle to the right and stopped at 10:49 p.m. about 150 to 200 metres east of Cawthra Road. The point of the stop was roughly 2.4 k from the scene of the accident and seconds away from the entry ramp to Highway #403 located west of Cawthra Road.
[45] The pickup truck had out-of-province licence plates from the State of Georgia. When A/Sgt. Farley approached the driver’s side of the truck, he noted that the front tire on the driver’s side was flat and largely depleted of air. He would subsequently discover that the front headlight on the passenger side was broken or fractured apparently from an impact.
[46] On reaching the driver’s door, and before he asked the accused any questions, Mr. Sanford said words to the effect of, “I was going to get the guy a bottle of water at the gas station”. Under cross-examination, the officer agreed that the accused may also have mentioned blankets. Once A/Sgt. Farley learned, through questioning, that the accused had been involved in the accident at Burnhamthorpe Road and Tomken Road, he cautioned the accused against saying anything further. The officer, then unaware that anyone had been injured in the accident, was of the view that Mr. Sanford may have committed a fail to remain offence contrary to the Highway Traffic Act.
[47] Mr. Sanford identified himself verbally to A/Sgt. Farley. He did so correctly. A/Sgt. Farley considered that the accused’s home address was “not very far away”. The officer asked the accused for his driver’s licence and for the ownership and insurance documentation relating to the truck. Mr. Sanford had no driver’s licence – he was a suspended driver. He was also unable to produce registration or insurance documentation for the F150, a vehicle which belonged to his business partner.
[48] Mr. Sanford testified that he immediately told A/Sgt. Farley that a man needed help and that he was trying to get water and blankets. When the officer asked what had happened, he elaborated upon the incident involving his vehicle striking a cyclist. On the accused’s evidence, he told the officer “up front” that his driver’s licence was suspended. The accused testified that he had no wallet in his possession.
[49] According to A/Sgt. Farley, while the accused was very cooperative, he was “extremely nervous”. He formed this view from the accused’s tone of voice and from his observations of the driver including his lengthy effort to light a cigarette.
[50] John McBride was transported by ambulance to Trillium Hospital where he was pronounced dead at 11:37 p.m. On August 20, 2012 an autopsy was conducted revealing the cause of death to be blunt force injuries to the head and torso as a result of the collision.
(End of judgment reproduced verbatim continues exactly as in source.)