REASONS FOR JUDGMENT

b.a. allen j.:

THE CHARGES

[1] The accused, Dennis Peric, faces two charges under s. 252 of the Criminal Code. It is alleged that on October 26, 2012 he was the driver of a vehicle in a motor vehicle accident involving two pedestrians and, knowing bodily harm was caused to these persons, failed to stop his vehicle with the intent to escape civil or criminal liability. Mr. Peric faces a further charge under s. 249 of the Criminal Code of operating a motor vehicle in a manner dangerous to the public.

EVIDENCE

Overview

[2] On October 26, 2012, at about 8:30 p.m., Mr. Peric was driving westbound on Lakeshore Blvd. in a rented red Dodge Caravan. Around the same time, Tracy Cole and Cheryl Grant arrived at a No Frills grocery store parking lot on the north side of Lakeshore Blvd. near the intersection of 37th St. They were planning to meet a friend, Fred Carter, to attend a fundraiser at the Moose Lodge on the south side of Lakeshore across from the No Frills. Mr. Carter was to meet the women at the lot and cross with them to the Moose Lodge. There are two westbound and two eastbound lanes divided by a yellow line on that section of Lakeshore.

[3] The three walked onto Lakeshore between 37th and 39th Streets to cross over to the south side. There were no traffic lights or cross walks where they crossed. As the three were approaching the yellow line, they saw, from about 50’ away, a bus coming eastbound from their right. So they stood at the yellow line between the east and westbound lanes until it was safe to cross.

[4] As Albert Haase approached the three pedestrians from the passing lane, they were standing on the yellow line in front of him to his left. They remained there as he passed through the green light. After he passed through the green light, Mr. Haase looked into his driver’s side mirror and witnessed Mr. Peric’s vehicle strike the two women. The two women landed on the road and the man remained standing.

[5] Ms. Cole recalls being in the No Frills parking lot, crossing Lakeshore to the yellow line and seeing a bus proceeding eastbound. She does not recall the impact. Her next memories are sitting up and looking at Ms. Grant lying on the road and she recalls entering the ambulance. Ms. Grant only remembers getting out of the car at the No Frills parking lot and nothing afterwards until she was in the hospital.

[6] Mr. Peric’s vehicle struck the two women but not Mr. Carter. The women went down in the westbound passing lane. Ms. Grant landed flat on her back and remained unresponsive. Witnesses saw the two women collide with the vehicle at the front mid driver’s side. Mr. Peric immediately left the scene and Mr. Haase followed him to get his plate number. Mr. Haase eventually got the plate number and passed the information on to the police. I will deal with the post-accident pursuit in greater detail later.

[7] At the time of the accident it was dark. Street lights and lights in the No Frills parking lot provided artificial light. It had been raining earlier that day but at the time of the accident, visibility and the roads were clear. Ms. Cole was 5′ 2″, 180 lbs at the time of the accident, wearing a black jacket and a black and a white printed dress. Ms. Grant was 5ꞌ, about 105 lbs. and wearing a black trench coat and blue jeans. Mr. Carter was 5′ 9″, 200 lbs. and wearing a black jacket and pants. Mr. Peric testified he could clearly see out of all windows of his vehicle. Although the back and side windows were tinted, the front window was not.

[8] The two women suffered serious injuries. Ms. Cole sustained a concussion, scalp swelling and lacerations, a fracture to the left shoulder, two neck fractures and a back fracture. She underwent surgery on her left shoulder. Ms. Grant sustained a concussion, a lower back injury, a broken back rib and bruising to her entire back. She suffers from vertigo, numbness on her right side, and short term memory deficits. She was in a wheel chair, then used a walker, then wore a back brace. She has only recently returned to work full time. Ms. Grant described her short term memory problems as the greatest obstacle to her performing her job. She has gone from being very competent at her job to having to write everything down and having instructions repeated to her.

[9] Understandably, Ms. Cole and Ms. Grant have filed civil suits for the damages they incurred in the accident.

[10] Mr. Peric testified he discovered the damage to the Dodge Caravan a few days after the accident. He took the vehicle to be fixed at a body shop that he chose in Etobicoke. By way of background, the Dodge Caravan was a rental which the family was using because the family vehicle had been damaged in an accident. Mr. Peric paid cash for the damage which he described as a fist-size dent. He testified he paid $600 for the repair. He provided no damage estimates or invoices for the repair and did not recall the name or exact location of the body repair shop.

[11] About two months after the accident, the police contacted Mr. Peric based on the licence plate number information. Mr. Peric willingly made a statement to the police on January 4, 2013. The defence did not challenge the voluntariness of the statement. He was arrested on January 8, 2013.

Testimony of Witnesses

Mr. Haase

[12] Mr. Haase testified that when he arrived at the red light at the intersection of Lakeshore and 37th St. in the right lane, he saw a driver in the passing lane next him, now known to be Mr. Peric. Mr. Haase testified Mr. Peric never stopped on the red light. He described seeing Mr. Peric edging into the intersection on the red light. Mr. Peric was halfway into the intersection when the light turned green. Mr. Haase pulled up in front of Mr. Peric’s vehicle in the passing lane because he did not feel safe driving beside him.

[13] Mr. Haase testified that as he sat at the red light in the passing lane he clearly saw three pedestrians quickly crossing Lakeshore west of the 37th St. intersection and then stopping at the yellow line. He testified there was no approaching traffic at that time. Mr. Peric was immediately behind him. Mr. Haase stated that he feared Mr. Peric would hit the pedestrians because of the way he was driving. As Mr. Haase proceeded on the green light, he passed the pedestrians standing to his left on the yellow line. He indicated that there was sufficient room to the left of his vehicle to pass the pedestrians safely.

[14] From about a 30 to 40’ distance, through his driver’s side mirror, he saw Mr. Peric’s vehicle strike the two women. Consistent with Andre Grant’s evidence that he heard “a couple of thumps”, and contrary to Mr. Peric’s testimony that he heard nothing, Mr. Haase testified he heard a “big bang”. None of the three pedestrians remember hearing the impact. Mr. Haase testified he saw the women fly up and one of the women slide up the hood of Mr. Peric’s vehicle. He then saw two women on the ground and a man standing. Mr. Haase testified the collision was 100% avoidable.

[15] Mr. Haase testified he pulled over to the curb lane to see if he could assist. He then saw Mr. Peric’s vehicle drive very quickly past him, go into the curb lane ahead of him, and proceed to the intersection at Browns Line. As noted earlier, knowing Mr. Peric had just hit the pedestrians, Mr. Haase decided to follow him to get his plate number. It appeared to Mr. Haase that Mr. Peric was trying to turn right at Browns Line where no right turn was permitted. Mr. Haase then kitty-cornered Mr. Peric’s vehicle there to try to stop him.

[16] Mr. Haase then started yelling and waving his hand at Mr. Peric, saying he had just hit two pedestrians. Mr. Peric just looked at him through his closed window without saying anything. According to Mr. Haase, Mr. Peric flew through the red light and made a U-turn and sped eastward on Lakeshore. Mr. Haase then also made a U-turn and followed Mr. Peric. He had not yet obtained Mr. Peric’s plate number.

Mr. Pala

[17] Zeljka Pala was driving a bus that evening. He had just made a left turn from Long Branch to go eastbound on Lakeshore. He planned to turn left again to go north on Browns Line. He witnessed the accident from the passing lane on Lakeshore as he was about to turn north on Browns Line.

[18] Mr. Pala said from that vantage point, from 10′ to 15′ away, he saw three pedestrians, two women and a man, standing at the curb on the north side of Lakeshore. There were no obstacles impeding his view of them. Contrary to Mr. Haase’s and the three pedestrians’ evidence, Mr. Pala testified traffic was going full speed westbound on Lakeshore when he saw the three pedestrians run across the two westbound lanes. He said the man was in the lead and, after delaying a couple of seconds, the two women followed a few feet behind him.

[19] Mr. Pala testified he saw a vehicle in the curb lane (Mr. Haase’s) slightly ahead of the vehicle in the passing lane (Mr. Peric’s). Mr. Pala saw the vehicle in the passing lane strike the women with the left front side of his vehicle. He testified that about two feet from the yellow line, the older woman was struck hard and the younger woman was “brushed off” by Mr. Peric’s vehicle. They both landed between the yellow line and Mr. Peric’s vehicle. Mr. Pala testified his bus side window was open about four inches and he did not hear the impact. He told the police he could not have heard the impact with the bus’s blowers on. He testified the blower was on at the time of the accident.

[20] Mr. Pala was cross-examined about an area of his testimony that is inconsistent with what he told the police in January 2013 and testified to at the preliminary inquiry in February 2014. Mr. Pala told the police and testified at the inquiry that he saw the women “flying” in the air after impact. He did not give that evidence at trial. Mr. Pala now says he was wrong and recants that evidence. He now says the women did not fly in the air. He explained that he was exaggerating when he said that to the police. However, the evidence about the women flying up is consistent with Mr. Haase’s observation that the women flew up with impact.

Mr. Peric

[21] Mr. Peric testified he did not see the three pedestrians at the yellow line. He did not see them make impact with the front mid driver’s side of his vehicle. Although Mr. Peric does not deny passing through the intersection at 37th St., he testified he does not recall his vehicle being in the westbound passing lane at the traffic light at 37th St. and Lakeshore. He does not remember seeing Mr. Haase’s vehicle in the right lane beside him or in front of him in the passing lane after Mr. Haase passed in front of him.

[22] Explaining why he did not hear the impact, Mr. Peric testified his vehicle’s windows were closed and he generally plays his car radio very loudly. His reason for not seeing the women hit his vehicle was that possibly he took his eyes off the road while changing the stations on his radio. He said as he moved through the intersection he was looking straight ahead and had no reason to look into his rear view mirror. This is contrary to Andre Grant’s evidence, who standing in front of the Moose Lodge, said he saw Mr. Peric looking into his rear view mirror after impact as he was driving in the passing lane.

[23] Mr. Peric testified that when he continued westbound on Lakeshore, he was not aware he was leaving the scene of an accident since he did not know there had been an accident. He therefore was not fleeing when he drove on and did not have intent to escape responsibility for an accident.

[24] Mr. Peric indicated his first memory of driving in the area of Browns Line and Lakeshore that evening was when he arrived at the intersection of Lakeshore and Browns Line. He said he recalled being in the right lane when a vehicle driving behind him, now known to be Mr. Haase’s, kitty-cornered his vehicle blocking him in. He saw Mr. Haase gesturing to him with his hand up. He could not hear Mr. Haase saying anything. Mr. Peric said he did not know why Mr. Haase was behaving like that. He did not make eye contact with Mr. Haase and proceeded to Dixie Rd. where he saw Mr. Haase beside him in the passing lane.

[25] Mr. Peric testified he felt he had to get away from Mr. Haase because he thought he was dealing with road rage. According to Mr. Peric, at Dixie Rd. he made a quick U-turn on a red light and proceeded eastbound on Lakeshore. He said, after that, Mr. Haase was no longer following him.

ANALYSIS

The Essential Elements of Failure to Stop Offence

[26] Mr. Peric does not deny that a vehicle in his care struck Ms. Cole and Ms. Grant and injured them. However, he denies knowing at the time of the accident that he had struck them and caused them bodily harm. The Crown must prove the following essential elements of the offence beyond a reasonable doubt:

a) that Mr. Peric knowingly caused bodily harm to Ms. Grant and Ms. Cole (that he either had actual knowledge of the injuries or was wilfully blind to the injuries); and

b) that when Mr. Peric left the scene of the accident he did so with intent to escape civil or criminal liability.

The Reasonable Doubt Standard

[27] The Crown takes the position it is impossible for Mr. Peric not to have known he caused bodily harm to Ms. Cole and Ms. Grant or was wilfully blind to the fact. It follows that if he had knowledge and did not stop his vehicle or return to the accident scene to take responsibility, then he left the scene with the intent to avoid liability.

[28] I find while it might not be absolutely impossible for Mr. Peric not to have known he struck and injured the two women, it approaches that standard on the set of facts before the court. However, the Crown’s burden is not so weighty. The Crown need only prove beyond a reasonable doubt Mr. Peric’s knowledge that he caused the injuries and his intent to avoid liability.

[29] It has been long established what reasonable doubt entails.

a reasonable doubt is not based upon sympathy or prejudice
it is based upon reason and common sense;
it is logically connected to the evidence or absence of evidence;
it does not involve proof to an absolute certainty;
it is not proof beyond any doubt, nor is it an imaginary or frivolous doubt; and
more is required than proof that the accused is probably guilty

[R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 (S.C.C.)]

[30] This is a common sense case. Common sense draws me to the comments made by Donnelly, J., as he then was, in a tragic case that involved dangerous driving causing death:

I find that there was an impact between the car and the tractor mower. I find that it was a substantial impact because of the energy transfer. I remind myself, and this is not evidence but I am entitled to use common sense and my everyday experience. I am not a pool of 12. I am a pool of one. I remind myself that if one drives down a highway at 60 miles per hour and hits a bumble bee on the windshield, one hears and feels. One does not know if the bumble bee is coming toward you at 30 miles per hour or going the other way at 30 miles per hour. Hit a June bug on a summer night, and you know.

[R. v. Lynch, [1997] O.J. no. 967, at para. 69, (O.C.J. Gen. Div.)]

Application of the Law

Knowledge

[31] I find for the following reasons the Crown has proved beyond a reasonable doubt that Mr. Peric knew he struck the two women and that his intent in leaving the scene was to escape responsibility for his actions. I point to the following evidence in support of that conclusion.

[32] The weather was clear and artificial lighting made visibility good. The pedestrians were wearing dark clothing but they were full-sized human beings and not diminutive objects. Mr. Pala, from his bus in the passing lane near the intersection of Lakeshore and Browns Line at 10′ to 15′ from impact, had no difficulty seeing them. Mr. Haase from the passing lane, (the same lane Mr. Peric was in), could clearly see the three pedestrians standing at the yellow line immediately to his left as he approached the traffic light. Mr. Peric’s vehicle would have encountered the pedestrians at the same proximity to his left.

[33] Mr. Peric made much of the fact that his employment involves checking buses for mechanical problems and taking them on test drives on the road several times a week. He indicated his job demands cautious driving and he testified he exercises the same care when driving outside of his job. Given that evidence, it strains reason to accept that Mr. Peric would not have his eyes on the road on a busy roadway like Lakeshore for the time it would take to spot the pedestrians, approach them and then hit them.

[34] It is also beyond belief that Mr. Peric did not hear the sound of the impact, or feel it, given the fact that the vehicle struck the women right in front of him at the mid driver’s side. There is no evidence that Mr. Peric suffered hearing deficits. Mr. Haase witnessed and heard the impact from about 30′ to 40′ away. He heard “a big bang”. Mr. Grant, standing on the south side of Lakeshore in front of Moose Lodge, heard “a couple of thumps”. Mr. Pala did not hear the impact but he did tell the police this could be explained by the noise of the bus’s blowers. He was also 10′ to 15′ away sitting up high in a bus.

[35] Ms. Cole, Ms. Grant and Mr. Carter do not recall hearing the impact. The two women testified their memories were impaired by the trauma of the accident, Ms. Cole having a sketchy memory after impact and Ms. Grant having no memory until she arrived at the hospital. Mr. Carter testified he did not see Mr. Peric’s vehicle coming and explained his state of shock at realizing the two women standing right next to him had been struck by a car. This could reasonably explain his lack of recall.

[36] There is of course the further fact that we are not dealing with a bumble bee or a June bug striking a wind shield. I hesitate to put this so graphically, but I must do so to make an important point, and that is, that two human body masses hit Mr. Peric’s vehicle right in front of him. I find absurd Mr. Peric’s assertion that the sound of his music and being distracted by changing radio channels could explain missing the rather dramatic event that unfolded in front of him. Mr. Peric stated the visibility through his vehicle’s front window was clear and there is no evidence of Mr. Peric having vision problems.

[37] There is also Mr. Haase’s evidence that with impact, the women flew into the air. Mr. Pala said the same to the police after the accident and at the preliminary inquiry and recanted it at trial. I, however, believe what both men saw was the women lifted into the air with impact. The severity of their injuries − concussions, head injuries, broken bones, lacerations and extensive bruising − are consistent with a high impact collision.

[38] I have difficulty with another area of Mr. Pala’s evidence. He testified the three pedestrians headed for the yellow line with Mr. Carter in the lead by running across Lakeshore into oncoming westbound traffic that was moving at normal speed. This, Mr. Pala testified, would have made it difficult for motorists to avoid a collision with the pedestrians. Mr. Haase said he saw the three walking quickly. Ms. Cole, Ms. Grant and Mr. Carter testified they walked to the yellow line. Of note is that Mr. Pala was the only witness who said there was oncoming westbound traffic.

[39] Mr. Carter is an elderly man, age 67, of some girth. He has a heart condition and indicated he has been unable to run for many years. The three witnesses were sensible people. It makes no sense that Mr. Carter and the women would risk their safety by running into oncoming traffic. I accept Mr. Haase’s version of that evidence, that there was no oncoming traffic when they entered the street and they walked quickly to the yellow line.

[40] There is also the fact that Mr. Peric was able to recall in testimony his activities before the accident. He testified about going home after work and having dinner, meeting with a friend, about his destination after leaving his friend, and his drive along Lakeshore. He also recalled the events when he reached Browns Line. The convenient gap in his memory just happens to be what occurred at the intersection of 37th St. and Lakeshore. This is not a coincidence. I find it is a deliberate attempt by Mr. Peric to deceive the court into accepting that he believed nothing notable to him happened at that intersection and he did not realize he had struck the two women.

[41] I also find it doubtful that Mr. Peric did not recall the name, phone number or location of a body repair shop he himself chose to fix the car. This is compounded by the fact he had no documentation of the nature and cost of the repair. In view of the untrustworthiness of other areas of Mr. Peric’s evidence, I am not prepared to accept, in absence of corroboration, Mr. Peric’s evidence that there was only a “fist-sized” dent on his vehicle as result of the accident.

[42] On all the facts, I find the Crown has proven beyond a reasonable doubt that Mr. Peric had actual knowledge that he had caused harm to Ms. Cole and Ms. Grant. This is not a case of wilful blindness. Nothing in the Crown’s or defence’s evidence raises a doubt in my mind. In fact common sense persuades me that Mr. Peric would have had to be actually blind and hearing impaired to have escaped notice of the women colliding with his vehicle right in front of him. Any other interpretation of the evidence defies reason.

Intent

[43] I have found Mr. Peric knew he hit and injured the two women. He fled the scene immediately afterward and did not return. There is no other way to look at Mr. Peric’s conduct than to conclude he was attempting to evade responsibility and the consequences of the accident.

[44] This view is bolstered by Mr. Peric’s post-accident conduct. Mr. Haase testified, and I accept, that Mr. Peric was driving erratically after he pulled away from the scene of the accident. Mr. Peric alternated between fast and slow speeds, reaching speeds of up to 100 km/hr. as he moved towards Browns Line into the right lane. I accept Mr. Haase’s evidence that he drove beside and then behind Mr. Peric gesturing and yelling that he had hit pedestrians.

[45] I accept Mr. Haase’s kitty-cornering of Mr. Peric in the right lane at Browns Line was his attempt to stop Mr. Peric and get his plate number. Mr. Haase’s actions make sense. He had just witnessed two women get hit by a fleeing car. Since I found Mr. Peric knew he hit the women, his road rage interpretation of Mr. Haase’s conduct is not credible. Mr. Peric’s intent to get away peaked when he made the risky move of running the red light at Browns Line into oncoming advanced green northbound traffic to make a U-turn and then speeding eastbound on Lakeshore.

[46] The Crown has satisfied me beyond a reasonable doubt that Mr. Peric’s conduct demonstrates his intent to avoid civil or criminal liability.

Disposition

[47] I find on all the evidence before the court that, pursuant to s. 252 of the Criminal Code, the Crown has satisfied me beyond a reasonable doubt of Mr. Peric’s guilt of knowingly causing bodily harm to Ms. Grant and Ms. Cole and that when he failed to stop his vehicle he had the intent to escape civil or criminal liability. Nothing in the evidence on a whole raises a reasonable doubt of Mr. Peric’s guilt on counts 1 and 2.

DANGEROUS DRIVING OFFENCE

Legal Principles

[48] The actus reus and mens rea of the offence of driving in a manner dangerous to the public must be proven beyond a reasonable doubt.

[49] The existence of the actus reus must be determined with an eye to the language in s. 249. The trier of fact must be satisfied, viewed objectively, that the accused was driving in a manner that was “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.” It is the manner of the driving that is to be examined: [R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43. (S.C.C)].

[50] In determining the mens rea, the trier of fact must have regard to the totality of the evidence including evidence, if any, of an accused’s state of mind. A modified objective test is applied. That is, the Crown is not required to prove the accused had a positive state of mind like intent, recklessness or wilful blindness, as is the case with other offences. However, if it can be shown that a driver purposely or intentionally drove towards a person for instance, to play dare devil, dangerous driving would be made out. “[T]he subjective mens rea of intentionally creating danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a ‘marked departure’ from the standard expected of a reasonably prudent driver”: R. v. Beatty, supra, at para. [47].

[51] Hence, while proof of subjective mens rea is clearly sufficient, it is not essential to establish dangerous driving as required by s. 249. The presence of objective mens rea is determined by scrutinizing the accused’s driving conduct and weighing it against the standard of driving of the normally prudent driver. Determining the objective mens rea then will be a matter of drawing inferences from all the circumstances including the driver’s actual state of mind: R. v. Beatty, supra, at para. [43]

[52] In a more recent decision, the Supreme Court of Canada brought some clarity to the distinction between the requirements of the civil and criminal standards. To determine whether the appropriate degree of fault to meet a criminal standard has been met requires an enquiry that distinguishes between conduct that should attract criminal blameworthiness and that which meets the civil standard of mere carelessness or negligence. The civil test involves an enquiry into whether the accused’s driving constituted a mere departure from the standard of care that a reasonable person would observe in the circumstances. The criminal standard requires more.

[53] In R. v. Roy, the Supreme Court of Canada held to separate driving conduct that meets the civil standard of negligence from conduct that reaches criminal blameworthiness, the trier of fact must probe more deeply. Two further questions must be asked, namely: (1) In view of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it, if possible? (2) Was the accused’s failure to avoid the risk and take reasonable steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances? [R. v. Roy, [2012] S.C.R. 60, at para. 36 (S.C.C.)]

Application of Principles

[54] The pertinent area for consideration when deciding dangerous driving under s. 249 is the accused’s manner of driving at the time of the collision. Hence, in determining his liability for the harm to the women, Mr. Peric’s post-collision driving and any related defences are not relevant. Mr. Peric admits he drove dangerously after the collision when he ran the red light at Lakeshore and Browns Line and made a U-turn to go eastward on Lakeshore and asserts the defence of necessity to that manner of driving. However, he presented no positive defence to how he drove at the time of the collision. He simply says he did not realize there was a collision.

[55] For reasons set out earlier, I do not accept that Mr. Peric was not aware he collided with the women. I do not believe he does not remember passing through the intersection at 37th St. Since Mr. Peric’s position is that he did not recall anything unusual happening at that intersection, I have no evidence from Mr. Peric on his conduct to consider on this offence. However, I can infer from all the surrounding circumstances, including the observations of others, whether, when Mr. Peric struck the women, his driving was a danger to the public within the meaning of s. 249.

[56] Mr. Haase’s evidence is critical to my determination as he was driving close to Mr. Peric and gave the most detailed account of Mr. Peric’s driving and the collision. As I noted earlier, I found him to be a credible witness. I accept Mr. Haase’s account that he was at first beside Mr. Peric in the right lane on Lakeshore at the red light at 37th St. and that Mr. Peric was in the passing lane and never fully stopped at the red light. At that point, Mr. Peric was edging into the intersection on the red light and was halfway into the intersection when the light turned green.

[57] Mr. Carter, Ms. Cole and Ms. Grant had crossed the westbound lanes and were standing at the yellow line, just west of 37th St. before 39th St., waiting for the eastbound traffic to clear. I did not accept the bus driver, Mr. Pala’s, evidence that tended to attribute blame to the pedestrians. As I indicated earlier, I do not believe they ran across the westbound lanes into oncoming traffic making it impossible for Mr. Peric to avoid hitting them. On this point, I accept Mr. Haase’s and the three pedestrians’ evidence that they walked quickly across the westbound lanes when there was no oncoming traffic.

[58] Mr. Haase’s evidence was that he grew uncomfortable with Mr. Peric’s driving and moved ahead of him in the passing lane and drove through the green light at 37th St. ahead of him, passing the three clearly visible pedestrians standing to his left at the yellow line just west of the 37th St. intersection. Due to the general untrustworthiness of Mr. Peric’s evidence, I did not accept that he did not see the pedestrians as he approached them just beyond the intersection. Mr. Pala saw them clearly from his bus some 10′ to 15′ away and Mr. Haase saw them when he was at the 37th St. intersection and from 30′ to 40′ away after he passed through the intersection. Mr. Haase stated because of the way Mr. Peric was edging into the intersection on a red light, he feared Mr. Peric would hit the pedestrians.

[59] Mr. Haase’s fears materialized. Mr. Peric struck the women as he approached them from the passing lane as they stood at the yellow line. Mr. Haase’s evidence was that the collision was 100% avoidable. I accept, as he testified, that when he passed the pedestrians, there was adequate room to the left of his vehicle to pass them safely. He observed the collision from his driver’s side mirror and saw the women raised into the air as they were struck. Mr. Peric then swerved his vehicle around the front of Mr. Haase’s vehicle and sped away.

[60] There is no evidence Mr. Peric intended to hit the women. However, I find a reasonable person seeing the three pedestrians at the yellow line would have foreseen the risk of impetuously and daringly driving into the intersection on a red light and continuing on this heedless course on the green light, driving too closely to them. A prudent driver in Mr. Peric’s circumstances would have taken steps to avoid hitting the pedestrians. There is nothing in the evidence, except for his own recklessness, that signalled it was not possible for Mr. Peric to avoid hitting the women as he approached them.

[61] Although it was evening and it was dark out, there is no evidence of any problems with lighting, or any unusual weather or traffic conditions, or any inadvertent actions by the two women that made the collision unavoidable. Mr. Peric testified he had no vision problems or health issues and nothing impaired his view through his vehicle’s windows. There is no evidence of alcohol or drug use. In the circumstances, I find Mr. Peric’s failure to avoid the risk and take reasonable steps to stabilize his driving and to keep further to the right of the women, was a marked departure from the standard of care expected of a reasonable person in Mr. Peric’s circumstances.

Disposition

[62] I find, considering all the circumstances, that Mr. Peric was operating his vehicle in a manner that was dangerous to the public within the meaning of s. 249 of the Criminal Code when he struck the two women causing them to sustain their injuries. Nothing in the evidence, viewed as a whole, raises a reasonable doubt in my mind as to Mr. Peric’s guilt of this offence. I find the Crown has proven Mr. Peric’s guilt of the offence on count 1 beyond a reasonable doubt.

VERDICT

[63] For the foregoing reasons, I am satisfied the Crown has proven Dennis Peric’s guilt beyond a reasonable doubt on all counts on the indictment.

[64] I therefore find Dennis Peric guilty on counts 1, 2 and 3 on the indictment and convictions will be entered accordingly.

B.A. Allen J.

Released: April 17, 2015

CORRIGENDUM

The word ‘marked’ was changed to ‘mere’ on Page 10, para. 52.

CITATION: R. v. Dennis Peric, 2015 ONSC 1698

COURT FILE NO.: CR-14-50000159-0000

DATE: 20150417

CORRIGENDUM DATE: 20150710

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

and -

DENNIS PERIC

Accused

REASONS FOR JUDGMENT

B.A. Allen J.

Released: April 17, 2015

Her Majesty the Queen v. Dennis Peric, 2015 ONSC 1698

Case Summary

REASONS FOR JUDGMENT

THE CHARGES

EVIDENCE

Overview

Testimony of Witnesses

Mr. Haase

Mr. Pala

Mr. Peric

ANALYSIS

The Essential Elements of Failure to Stop Offence

The Reasonable Doubt Standard

Application of the Law

Knowledge

Intent

Disposition

DANGEROUS DRIVING OFFENCE

Legal Principles

Application of Principles

Disposition

VERDICT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 2