CITATION: R. v. Bhatty, 2015 ONSC 1969

COURT FILE NO.: Brampton SCA(P) 375/14

DATE: 2015-03-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

HARJODH SINGH BHATTY

Appellant

Gregory Hendry, for the Crown

H. David Locke and G. Henderson, for the Appellant

HEARD: March 20, 2015

SUMMARY CONVICTION APPEAL

REASONS FOR JUDGMENT

Gray J.

1This is an appeal from a conviction registered by Her Honour Justice Kastner on March 20, 2014. She acquitted the appellant of failing to remain at the scene of the accident but convicted him of dangerous driving. The appellant also appeals the sentence.

2For the reasons that follow, the appeal is dismissed.

Background

Background

3On April 7, 2012, the appellant was involved in an accident with the driver of a motorized scooter, also referred to as a moped. The appellant was driving a taxi cab. He had his children with him and was not on duty. He was driving northbound on McLaughlin Road in Brampton, which had a posted speed limit of 50 kilometres per hour, between Queen Street and Flowertown Avenue. The driver of the moped was Abdolreza Sangian. Mr. Sangian was driving his moped northbound on McLaughlin Road, also between Queen Street and Flowertown Avenue.

4Apparently, Mr. Sangian was going to turn left at Flowertown Avenue, but he was in the curb lane. He said he checked the oncoming traffic and thought it would be all right to go left through the northbound lanes in order to turn left on Flowertown. Before he reached Flowertown, he was struck by the appellant’s cab. It is the driving that led up to the collision that gave rise to the charge of dangerous driving.

5Sandra Medeiros was driving north on McLaughlin, in the passing lane, and observed the cab driven by the appellant. She said she was going between 45 and 50 kilometres per hour. She said the taxi seemed to be in a rush and kept changing lanes without signalling.

6Ms. Medeiros first saw the appellant in the rear of her and in the curb lane. She testified that she thought the appellant was trying to get the car ahead of him in the curb lane to move faster.

7Ms. Medeiros testified that the appellant’s car was parallel to hers, with its front beside her back end. He then went back behind her in the passing lane and was very close to her car’s rear end. She said she felt nervous and intimidated.

8Ms. Medeiros testified that the appellant’s cab then returned to the curb lane because there was now a space that allowed him to do so. He subsequently moved back into the passing lane behind her. He then cut into the curb lane again and behind the moped. The appellant’s cab then cut her off suddenly with no signal towards the passing lane and he was half in each lane. She then said the pedal of the moped caught in the wheel well of the cab and she saw the moped “flying through the air”.

9Ms. Medeiros’ sister, Simmonia, also testified, but as she was the passenger in her sister’s car she did not remember a lot of the pre-accident driving.

10Some evidence was given at the trial as to what actually caused the accident. Constable Carty testified as to measurements he took, but he also expressed opinions as to what caused the accident. It is notable that he was not qualified as an expert, but no objection was made to his expressions of opinion.

11Counsel for the appellant called Charles Ross Eddie, who is an accident reconstructionist, and was qualified as an expert. He gave opinion evidence as to the cause of the accident. In the view I take of this matter, the actual cause of the accident is not overly material.

12The appellant testified. While he said he was exceeding the speed limit, and was travelling approximately 55 kilometres per hour, he said he was not in a hurry. He was to deliver his children to where they were going sometime between 1:00 p.m. and 1:20 p.m. He did tell Mr. Sangian, after the accident, “I have a baby in the car. That’s why I go a little bit fast. I want to get to the babysitter.”

13The appellant testified that he did not strike the moped, but rather the moped struck him. In essence, he testified that when changing lanes he did so safely.

14In her reasons for judgment, the trial judge instructed herself on the principles to be applied in dangerous driving cases, as established by the cases of R. v. Hundal (1993), 1993 CanLII 120 (SCC), 79 C.C.C. (3d) 97 (S.C.C.); R. v. Beatty (2008), 2008 SCC 5, 228 C.C.C. (3d) 225 (S.C.C.); R. v. Roy (2012), 2012 SCC 26, 281 C.C.C. (3d) 433 (S.C.C.); and R. v. Belanger (2013), 2013 SCC 7, 299 C.C.C. (3d) 417 (S.C.C.). She stated that the trier of fact must be satisfied beyond a reasonable doubt that viewed objectively the accused was driving in a manner that was dangerous to the public having regard to all the circumstances. She noted that it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The fact that an accident occurred has no bearing on the question of whether the offence of dangerous operation of a motor vehicle has been made out. In terms of the mens rea requirement, it must be shown that what occurred was a marked departure from the norm of a reasonably prudent driver.

15Since the accused had given evidence, she applied the principles as outlined by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

16The trial judge relied mostly on the evidence of Sandra Medeiros, who she called an “impressive witness”. In substance, she accepted Ms. Medeiros’ evidence as to the nature of the appellant’s driving and her observations of the other vehicles.

17The trial judge considered the evidence of the appellant, but found that it did not raise a reasonable doubt as to the nature of his driving.

18The trial judge considered the driving of the appellant under a number of headings, as follows:

a) Speed;

b) Lane changes;

c) Passing on the right;

d) Other pre-collision driving;

e) Point of impact;

f) The place.

19The latter two headings require some discussion.

20With respect to the penultimate heading, “Point of Impact”, while the trial judge referred to it as a “very important aspect of the evidence”, in fact, it only related to the actual place where the accident itself occurred, and particularly in which lane it occurred. It really had nothing much to do with the nature of the appellant’s driving prior to the accident.

21With respect to the last heading, “The Place”, the trial judge noted that the place where the motor vehicle was being operated was a busy multi-lane road running north and south in Brampton. There were no adverse road or weather conditions. One might expect a significant amount of traffic at that place, particularly as it is close to a recreation centre and schools. She noted that Brampton is, by its nature, a city in which private motor vehicles congest the roads.

22The trial judge stated that it was necessary for the Crown to prove both the actus rea and the mens rea of the offence. As to mens rea, she held that if the court is satisfied beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the court must then consider whether a reasonable person in the accused’s position would have been aware of the risk created by his conduct. She stated that the 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.

23In her conclusion, the trial judge held that a reasonable person in the position of the appellant would have been aware of the risks arising from his conduct. Her conclusion was as follows:

A reasonable person in similar circumstances ought to have been aware of the risk and the danger involved in the conduct manifested by the accused, including speed, rapid lane changes in slower moving traffic, tailgating, the impatience shown by erratic lane manipulation, passing in the curb lane contrary to the Highway Traffic Act, and a disregard for the lives and safety of his passengers, his children and other users of the road on this arterial and quite busy road.

Rather than a single and momentary lapse of judgment, Mr. Bhatty evinced a continuous course of conduct or pattern of behaviour, which he must have appreciated was very risky, all to get to his destination faster.

The court is satisfied beyond a reasonable doubt that Mr. Bhatty could and did appreciate the level of risk created by his driving. There will be a finding of guilt on count 2.

Submissions

Submissions

24Mr. Henderson, one of the appellant’s counsel, submits that the conviction should be set aside and an acquittal entered, or in the alternative there should be a new trial.

25Mr. Henderson submits that the trial judge misapprehended certain aspects of the evidence. He submits that the trial judge’s misapprehensions were material, as opposed to peripheral, and they were essential to the trial judge’s reasoning process.

26Mr. Henderson submits that while there was evidence of speeding, there was no evidence of excessive speed. Furthermore, there was no evidence of a motive for speeding, namely, that Mr. Bhatty was late for an appointment. Mr. Bhatty himself denied that he was late.

27With respect to lane changes, Mr. Bhatty passed two other cars on the left. He changed lanes to do so. The lane changes did not have a causal connection to the accident.

28With respect to passing on the right, the trial judge stated that this contravened s.150 of Highway Traffic Act. Mr. Henderson submits that passing on the right is not presumptively prohibited, and it can be done provided it is done in safety. There is no suggestion that passing on the right was in any way the cause of the accident.

29With respect to other pre-collision driving, the trial judge stated that there was some evidence as to a lack of signalling of lane changes. It is not certain as to what this means.

30With respect to point of impact, Mr. Henderson submits that the accident occurred because Mr. Sangian was changing lanes to the left and there was some negligence on his part. Mr. Sangian was travelling considerably slower than the other motor vehicles. He was travelling at 15 kilometres per hour and the other vehicles were travelling at approximately 50 kilometres per hour. There was no damage to Mr. Bhatty’s taxi in the front. If Mr. Sangian veered into Mr. Bhatty’s vehicle, then Mr. Bhatty was less culpable for the accident. Mr. Henderson submits that the trial judge overestimated the importance of the lane in which the collision occurred.

31In terms of the place, Mr. Henderson submits that the trial judge improperly took notice of features in the vicinity of the accident, such as a recreation centre and a school, and particularly the suggestion that there may have been school children in the area, and there was simply no evidence to support such a hypothesis.

32With respect to the sentence appeal, Mr. Henderson submits that specific deterrence was not a sentencing concern, and Mr. Bhatty should have received a conditional discharge instead of a suspended sentence.

33Mr. Hendry, counsel for the Crown, submits that the appeal should be dismissed.

34Mr. Hendry submits that there was no material misapprehension of evidence.

35Mr. Hendry submits that speed is about context. What is excessive in one situation will not necessarily be excessive on another occasion. In this particular situation, travelling 55 kilometres per hour on a crowded roadway while attempting dangerous manoeuvers is excessive. Travelling 55 kilometres per hour in other circumstances may not be.

36Mr. Hendry notes that the appellant stated to the victim that he had a baby in his car and he wanted to take the baby to the babysitter. He specifically stated that that is why he was going a little bit fast. His appointment at the babysitter’s, was, at the latest, 1:15 p.m. or 1:20 p.m.

37Thus, it was open to the trial judge to find that the appellant was in a rush because he was late for an appointment, and that may explain the excessive speed.

38With respect to lane changes, the trial judge accepted Sandra Medeiros’ evidence as she was entitled to do.

39With respect to passing on the right, that is only permissible if it can be done in safety. In this case, the trial judge was justified in concluding that it could not be made in safety.

40Mr. Hendry submits that the trial judge was justified in noting that the appellant had cut off another vehicle without signalling. That evidence had been given by Sandra Medeiros.

41With respect to the point of impact, the trial judge did not over emphasize its importance. The movement of each vehicle was not seriously in dispute. It was only the location of the contact that was in dispute.

42With respect to the place where these incidents occurred, Mr. Hendry notes that courts often take judicial notice of geographical locations and facilities within their own jurisdiction. In any event, Simmonia Medeiros did testify that there is a recreation centre nearby. One of the exhibits discloses the presence of at least one school, and another exhibit shows residential buildings. The possible presence of schoolchildren is simply a common sense inference if a school is nearby.

Analysis

Analysis

43The subject of dangerous driving has been extensively discussed by the Supreme Court of Canada in the four cases to which reference was made earlier. In those cases, the court wrestled with the difficulty in pinpointing when negligent conduct becomes criminal. This is particularly an issue with respect to the driving of a motor vehicle.

44Driving motor vehicles is ubiquitous. Almost every adult in good health will drive a motor vehicle at some point. People who drive motor vehicles will make mistakes. By its very nature, driving is something that can give rise to inattention and accidents.

45The court has noted that the degree of negligence in operating a motor vehicle can vary from momentary inattention giving rise to no negative consequences; to simple negligence giving rise to civil liability; to carelessness that can give rise to liability under the Highway Traffic Act; to lack of care to a degree that is a marked departure from the standard to be exhibited by a reasonably prudent driver, which is at the criminal end of the scale.

46The court has noted that it is difficult to pinpoint when the line has been crossed from merely negligent behaviour to criminal behaviour. Nevertheless, it is something that must be analysed by the trier of fact. Any reasonable doubt must be accorded to the driver.

47The court has also noted, as did the trial judge here, that the fact that serious consequences have occurred is not determinative. The fact that there has been a serious accident, even death, is not determinative. Serious consequences can arise from a momentary aberration which is not criminal. Examples include R. v. Beatty, supra; and R. v. Roy, supra.

48In this case, I can find no fault with the trial judge’s approach or with her conclusion.

49I am not convinced that the trial judge misunderstood any of the evidence, at least not in a way that would have made any difference to the result. Whether Mr. Bhatty was late for an appointment is not really material. The fact is he was driving too quickly having regard to the traffic conditions, and he was engaging in dangerous manoeuvers having regard to those conditions. He was tailgating and he was weaving in and out of lanes. Viewed as a whole, the appellant’s manner of driving was dangerous to the public. The actual point of impact of the accident, or who swerved into who, do not really matter. It was the appellant’s manner of driving that led up to the accident that was material, and the trial judge, based on all the evidence, including that of Mr. Bhatty, concluded that it constituted a marked departure from the norm. I see no error.

50The conviction appeal is dismissed.

51I see no error in the trial judge’s exercise of discretion in imposing a suspended sentence rather than a conditional discharge.

52The sentence appeal is dismissed.

Gray J.