CITATION: R. v. Somel, 2015 ONSC 2207

NEWMARKET COURT FILE NO.: CR-11-00709

DATE: 20150408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SARDARVIR SOMEL

Defendant

L. Thompson, for the Crown

E. Schmid, for the Defendant

HEARD: June 23, 24, 25, 26, 27, 2014, January 19, 20, 21 and 22, 2015

REASONS FOR JUDGMENT

P.A. DOUGLAS J.

[1] Sardarvir Somel (hereinafter referred to as “Somel”) is charged with the following offences:

(a) Dangerous operation of a motor vehicle causing bodily harm to Adrian Joseph contrary to s.249(3) of the Criminal Code, and

(b) Dangerous operation of a motor vehicle causing bodily harm to Christopher Morris contrary to s.249(3) of the Criminal Code.

[2] Somel has admitted jurisdiction, identification, bodily harm and the date of the alleged offences. The sole issue before me is whether Somel’s operation of the motor vehicle was “dangerous” within the meaning of the Criminal Code.

[3] Somel is presumed innocent unless and until the Crown proves beyond a reasonable doubt that he is guilty of the offences charged. Proof of probable or likely guilt is insufficient. On the other hand the Crown need not prove guilt with absolute certainty. If on the evidence I am not satisfied beyond a reasonable doubt of Somel’s guilt he must be given the benefit of the doubt and found not guilty.

Summary of Evidence of Christopher Morris

[4] At the time of testimony, Christopher Morris (hereinafter “Christopher”) was 22 years old. At the time of the alleged offences he would have been approximately 18 years of age. He was in the midst of a two year program at Sheridan College upon the conclusion of which he hopes to become a registered practical nurse. He has known Somel since high school. He was also friends with Bryan Joseph (hereinafter “Bryan”) and Adrian Joseph (hereinafter “Adrian”) and Jerome Brodie (hereinafter “Jerome”).

[5] Christopher rode with Dwayne Henry (hereinafter “Dwayne”) to a party. Somel drove his car, a BMW 325i to the party. Bryan, Adrian and Jerome were also at the party.

[6] At the party alcohol was being served. Christopher had two or three Jell-O shots with, he believed, vodka in them. They were served in little McDonald’s ketchup dispensers. Christopher had a shot together with Dwayne and Jerome. He was not sure if Bryan, Adrian and Somel had shots at that time. Beer and other alcohol was also being served. Christopher just had the Jell-O shots. He saw Somel have beer in a bottle but could not recall what time in the evening that was. No one was smoking or consuming drugs that he was aware of.

[7] It had been decided that Christopher, Bryan and Jerome would ride home with Somel in his vehicle. There was some discussion with Somel about his being able to drive later in the evening. Christopher had a “gut feeling” Somel was unable operate a motor vehicle because he had been drinking. Christopher “could just tell he wasn’t able to operate the vehicle”. Christopher asked Somel if someone else could drive and Somel said “no”. Somel insisted he was “okay to drive”. Christopher suggested that Jerome drive. Again, Somel said “no”.

[8] The group left in Somel’s car around 1:30 a.m. Somel was driving the car. Adrian was in the front passenger seat. Christopher was behind Adrian. Bryan was seated behind Somel. Jerome was in the middle back seat.

[9] The roads were “fine”. There was snow on the grass. It was “pretty cold”. There was no traffic.

[10] Morris was in the back seat listening to music on the car stereo. He had no concern regarding Somel’s operation of the vehicle until, travelling on Rutherford Road, they approached the intersection with Highway 27. As the vehicle approached Highway 27 the “speed started to go drastically up” as they went up the hill. At the top of the hill there are train tracks. He travelled this route regularly. He believed the speed limit to be 60 kilometres per hour. He could not see the speedometer. Christopher testified: “We told him to slow down”. He did not hear any answer. He yelled it out. At the top of the hill the speed was getting faster. There was a bend further up and once the vehicle hit the bend the car “spun out”.

[11] Christopher saw lights from the other side of the road and then there was a collision after. He remembers waking up in the vehicle upside down, hanging from his seatbelt. Jerome, Somel and Adrian were all unconscious. Bryan helped remove him from the vehicle. He could smell gasoline.

[12] In terms of his sense of the speed of the vehicle, he testified that he had no way of knowing but it felt the vehicle was travelling at approximately 150 kilometres per hour.

[13] The vehicle had a manual transmission. The car was running fine and there was nothing wrong with the transmission of which he was aware.

[14] When he was yelling at Somel regarding his speed, there was “a bunch of us yelling at the same time”.

[15] In cross-examination he testified that he was telling the truth during the preliminary hearing when he said that prior to this incident Somel did not speed and he obeyed the rules of the road. In his December 20, 2010 statement to police he described his observations of Somel’s “day-to-day driving” as Somel being an “okay driver. He doesn’t speed. He’s always doing the speed limit.” He was not sure how fast the vehicle was travelling at the time of impact. The road conditions were clear. There was no need to be extra cautious. There was no traffic. Somel’s vehicle was in the far right lane. He was not keeping track of who was drinking what at the party. He saw Somel with one beer and he was not sure if Somel had a Jell-O shot. He had the beer between the hours of 11:00 p.m. and 1:00 a.m.. He told Somel that he was concerned about Somel’s alcohol’s consumption before leaving.

[16] On December 20, 2010 at the time of the statement to police he had received some information about the accident from the police. At the time of the accident he was not a licenced driver.

[17] He had felt Somel was unable to drive a car.

[18] Christopher was not concerned about Somel’s driving until going up the hill at Highway 27. There were tracks at the top of hill. The speed limit is 60 kilometres per hour. The speed limit of 60 kilometres per hour ends at the bend. He is certain of this. While the vehicle was climbing the hill the speed gradually increased. He lost control of the car and it started to spin.

[19] During examinations for discovery in civil proceedings, he testified that once Somel hit Highway 50 that is when he started speeding; however, he was mistaken in the reference to Highway 50, as it is actually Highway 27. Acceleration started when the vehicle hit “Highway 27 at the bottom of the hill”.

[20] In his December 20, 2010 statement to police while he was in hospital, he told the investigating officer that Somel was speeding going down the hill and doing fine going up the hill. He did not mention concerns regarding Somel’s alcohol consumption to the police.

[21] During re-examination Christopher confirmed that the vehicle was travelling westbound on Rutherford Road crossing Highway 27 and approaching Highway 50. The accident happened on Rutherford Road between Highway 27 and Highway 50. Somel started speeding going up the hill after crossing Highway 27. The railway tracks are after crossing Highway 27. He lost control after he sped up. He told police he thought Somel was travelling 160 kilometres per hour. There is downhill grade on Rutherford Road approaching Highway 27 and then an uphill grade approaching the railway tracks. The bend is past the tracks.

Summary of Evidence of Bryan Joseph

[22] During examination-in-chief Bryan testified that he was 21 years old (making him approximately 17 at the time of the alleged offences). He was at York University pursuing a degree in business/economics. He was Somel’s friend in high school although they did not share classes. They met through his brother Adrian. Adrian and Somel were closer friends. They socialized together after school and on weekends. Bryan, Christopher and Jerome got into Somel’s car to go to a party. Somel was driving a four-door BMW.

[23] Upon arrival at the party Bryan had a Jell-O shot. He saw Somel have a Jell-O shot as well. Bryan did not have anything else to drink. He believes he saw Somel have a beer, but he was not sure.

[24] They left at about 12:35 a.m. Somel had brought him to the party and he had arranged with Somel for a ride home.

[25] Bryan, Adrian, Jerome, Christopher and Somel were in the car. Bryan asked Somel if he was okay to drive. He asks anyone who had a drink if they are okay to drive.

[26] He was seated behind Somel in the car.

[27] As to the weather, it was snowing lightly. The road was a little icy. Approaching Rutherford Road and Highway 50 the vehicle was picking up speed. He was not too sure about the railroad tracks or hills along the road. He “blanked out” for approximately five minutes and then he remembered crawling out of the vehicle after the accident. He thought everyone was dead. Somel was still in the driver’s seat. He could smell gasoline.

[28] In the vehicle, before the accident he never said anything to Somel about his driving but someone, he was not sure who, told Somel to slow down.

[29] Bryan had no concerns about Somel’s driving until Rutherford Road/Highway 50, when Somel’s speed started increasing. While Somel was driving before the accident, Bryan was worried as Somel was speeding up and someone said to slow down.

[30] He believed the speed limit on Rutherford Road to be 70 kilometres per hour.

[31] Prior to getting into the car someone did suggest to Somel that someone else should drive the car before leaving the party.

[32] He “felt a little nervous when the car was speeding up, a little fearful”. After losing control the car spun three times and the impact with the other vehicle was on the last spin.

[33] The vehicle started speeding up after passing Highway 27 on Rutherford Road.

[34] On December 19, 2010, after the accident he gave a statement to the police. His memory was better then, than now. In the statement he indicated that Somel had a shot or two plus one beer. He had spoken to Somel before Somel got into the car to drive everyone home. Somel said he was “okay to drive” and that he had stopped drinking at 11:00 p.m. He said he only had one beer and a shot. They left the party in Somel’s car at 12:58 a.m. Regarding the weather it was not snowing hard, but the road was damp, and not slippery. He did not think it was “icy”. There was no snow on the roads but it was damp and not slippery. Regarding his consumption of alcohol before driving everyone home, Somel told him: “I’m good, I’m good” when asked about alcohol consumption.

[35] The accident happened on Rutherford Road before Highway 50. The speed of the vehicle was increasing but Bryan could not tell how fast the vehicle was going. He had concerns. He felt nervous. He was fearful when the car began to spin. He was not fearful before that moment. On Rutherford Road there is a hill with a downgrade toward Highway 27 and then an upgrade toward the tracks and then there is a bend. The car started to spin out when they approached the bend. There are no hills from Highway 27 to Highway 50. The car started to speed up two minutes or so before Highway 50 and after Highway 27, but he was not sure re the time element. In relation to the bend, the car started speeding up before the bend. His fear started before approaching the bend. He felt an accident would happen when the first spin out happened. The vehicle was in both lanes. He felt that when the spinning started the back tires “lifted up off the floor” and “when the tires came back to the floor that’s when he lost control.”

[36] There was no conversation while the car was spinning.

[37] His memory was better at the time of the preliminary hearing than at the time of trial. The turns were becoming sharper before the accident. There was probably just one turn before taking the bend where the loss of control took place.

[38] He spent the majority of his time at the party with Somel.

[39] During cross-examination Bryan testified that while he spent most of his time at the party with Somel in the basement, he was not with him the whole time.

[40] He has given four statements regarding the accident, first to the officer after his discharge from the hospital, the second statement at home on December 23, 2010, the third at discovery in March, 2013 and the fourth at the preliminary hearing in April, 2013.

[41] In those statements he described Somel’s driving as normal on the way to the party. Somel’s driving that night was normal until he hit the curve and lost control. It was snowing that night but not hard. There was some snow on the ground. Somel’s vehicle did not have snow tires. Somel said he had stopped drinking at 11:00 p.m. though Bryan is not personally sure. Bryan generally trusted Somel as a driver. Somel generally abided by the rules of the road in Bryan’s experience.

[42] Somel was driving normally until “shortly before Highway 50”. Then the speed increased but he did not feel the speed. The car lost control at the curve, spun out and hit the other vehicle.

[43] He received some information from police regarding injuries of the other passengers in the vehicle.

[44] He had asked Somel if he was okay to drive and Somel responded: “I’m good”. They assumed Somel was “okay because he had a shot or two at the party”. Bryan was not wearing a seatbelt since he was not concerned about Somel’s ability to drive.

[45] In his statement of December 23, 2010 he described Somel as driving fine up to Highway 27 and that he was not really paying attention.

Summary of Evidence of Adrian Joseph

[46] Adrian was 23 years old at the time of trial (making him approximately 19 at the time of the events in question). He is attending Durham College in the second year of a three year accounting program.

[47] He has known Somel for approximately eight years. He met him through high school.

[48] He arrived at the party at approximately 10:00 p.m. Alcohol was being served at a table. It appeared to be an open bar. There were some adults supervising the table.

[49] He did not drink alcohol. He cannot recall if any of his friends drank any alcohol.

[50] In his statement to police on December 22, 2010 he indicated that he drank two Jell-O shots and one beer. He was heavily medicated at the time he gave this statement.

[51] After he made arrangements with Somel at the party for a ride home, he could not recall any discussions with Somel regarding whether Somel could drive. In his statement to police on December 22, 2010 he confirmed that his friend Jason Cobral was leaving the party at the same time. Jason asked Adrian if he needed a ride home. Somel said: “I’m kinda drunk”. Adrian told Jason: “We’re fine”.

[52] The weather was “bad” and “slippery”. It had “snowed earlier that day” but “it was not snowing that evening”. He believed there was rain but he was not sure.

[53] He was part of a civil case resulting from the accident. It had settled before trial. He received compensation. He is not still friends with Somel.

[54] In cross-examination Adrian conceded he had very little recollection of the accident. Prior to the accident he had no recall of bad driving by Somel and no recall of speeding. Somel showed no signs of impairment. No one in the group of persons in the car was visibly impaired. No one had consumed drugs to his knowledge.

[55] There was nothing about Somel’s driving that stuck out in his mind. He saw no traffic on the roads that evening. He recalled going up a steep hill, the car slid, the Honda Civic came downhill and slammed into Somel’s vehicle. He recalled no discussion in the vehicle prior to the collision.

Summary of Evidence of Jerome Brodie

[56] At the time of trial Jerome was 21 years of age, making him approximately 17 at the time of the alleged offences. At the time of trial he had most recently been employed as a lot attendant at a car dealership.

[57] He met Somel in high school. They had mutual friends. Regarding the events in question he “sort of kind of recalls the events.” He arrived at the party with Somel. He was not sure what time he arrived. He did not see people serving or drinking alcohol. They were perhaps 15 to 22 people at the party.

[58] He did not remember leaving the party. His memory of the events is “not that good”. On the way home they ended up on Rutherford Road. Somel was driving. Also in the car were Adrian, Bryan and Christopher. The weather was cold. He had no recollection regarding rain or snow. He had no recollection of speaking with the police officer at the hospital. He acknowledged his statement to police in which he indicated that at the time of the accident it was neither raining nor snowing.

[59] He did not look at the speedometer before the accident. He did not know the speed of the vehicle just before the accident.

[60] He was yelling just before the accident. He does not recall what he was yelling.

[61] He did recall giving evidence at discovery in the civil proceedings.

[62] While he does not specifically remember what he was yelling, he was yelling because he was in fear for his life.

[63] During cross-examination he confirmed that he told the police that he did not see Somel consume any alcohol or drugs prior to the accident. He saw no signs of impairment. According to his statement he told the officer that he was not concerned about Somel’s driving and that nothing like this had happened before. He also told the officer that he never had any issue with Somel’s driving. He told the officer he did not know what speed Somel was travelling at. He was in the backseat. He could not recall anything specific about what the passengers in the car were talking about. There was no other traffic around. He did not how fast Somel was going. He just remembers hitting the car and being out of control and everything else is black. He told the officer in his statement that Somel was not speeding.

Summary of Evidence of Naomi Ramirez

[64] At the time of trial Ms. Ramirez was 33 years old. She is a lawyer with a practice in Mount Forest, Ontario. She is married with two children.

[65] On the date in question she was at a friend’s house in Woodbridge with her husband and children. They left the house around 1:50 a.m. She was driving a Land Rover. She was the designated driver.

[66] In the vehicle was her husband in the front seat beside her and the children in the backseat.

[67] They were on Rutherford Road. She did not recall there being much traffic at all. Her brother-in-law was also in the vehicle. He may have been dozing off. Everyone else was awake.

[68] She saw a BMW come “flying” by her. She remembers saying: “look at those morons” because they went by so quickly. Ten to fifteen seconds later she came upon the accident scene. She guessed the speed limit was 70 to 80 kilometres per hour. She was driving around 80 kilometres per hour.

[69] Coming upon the accident scene she saw the Honda Civic motor vehicle facing her in her lane. The BMW was in the other lane, to her left. The front of the Honda motor vehicle looked like it was missing. The BMW was upside down. She had been travelling west on Rutherford Road.

[70] In terms of weather, it was “completely dry.” It was not raining or snowing. The roads were not wet or snowy or icy.

[71] Regarding the speed of the BMW she testified: “It was so fast as it went by, I would guess it was double my speed”.

[72] Rutherford Road runs east/west. There are two lanes in each direction. She was travelling west in the left lane. The BMW passed her on the right. The Honda was in her lane when she came up on the accident very shortly after the BMW drove past her.

[73] Her memory of the events has faded somewhat over time.

[74] When the BMW passed her she was on Rutherford Road between Highway 27 and Highway 50, probably closer to Highway 50. She is not that familiar with the area.

[75] At the time that the BMW passed she was in the middle of a conversation and had to interrupt the conversation to comment on the BMW passing. She did not see the BMW come up from behind her. It was traveling significantly faster than she was.

[76] She had no idea regarding the distance from the point of the BMW passing her to the scene of the accident. She could not recall how long she saw the BMW before it disappeared from view.

[77] She, her husband, brother-in-law and sister-in-law all got out the vehicle to tend to the accident victims.

[78] She had no recollection regarding how fast she was going. It was possible she was going 70 kilometres per hour but she did not believe she was traveling at 90 kilometres per hour. The BMW was “going a lot faster than I was.”

Summary of Evidence of Ricardo Costa

[79] This witness is married to Naomi Ramirez. They have two children. He is the General Manager for a construction company in Toronto. He has no criminal record.

[80] Regarding the events of December 19, 2010, he recalls that they were at a friend’s house for a Christmas party in Woodbridge. They were there for about three hours and left probably at 1:30 a.m. He had maybe three to four drinks. They had planned on Naomi driving home. There were in her Land Rover on Rutherford Road. Traffic was very light in volume.

[81] One vehicle drew his attention. It went past their Land Rover. It was a light silver colour. He was not sure initially if was a Honda or BMW.

[82] What he remembers is the vehicle “whipping” or “flying” past them. He recalls the speed limit being 70 or 80 kilometres per hour. He believes Naomi was travelling within that zone. The vehicle that passed them was going pretty quick, about twice their speed. Shortly thereafter they saw it flipped upside down. It was less than one minute after first seeing the vehicle pass them. As the vehicle passed the Land Rover he said: “Look at these idiots flying by us”. Naomi said pretty much the same thing. Regarding weather and road conditions, he remembers it being cold. The road was “fine”. It was not snowing. There was nothing unusual about the road conditions.

[83] When the vehicle passed the Land Rover, “he flew by and swerved into our lane”. He “swerved right in front of us and then just went on.” He “passed us, went into our lane and then straight ahead.” The time from that moment until coming upon the accident scene was just “a few seconds”.

[84] In cross-examination he confirmed having reviewed his statement to police before testifying and that he could visualize a lot of what he recalled of the events. He recalled it being a BMW going past their Land Rover. He said: “Look at these idiots flying by us”. His wife said something along the same line but he did not remember exactly what it was. He did not remember any other cars on the road other than the Honda and the BMW.

[85] The BMW passed on his right and cut back into his lane. He thought it might be less than one-half kilometre from the accident scene to Highway 50. He was not sure.

[86] Regarding the speed of the BMW, “it was really fast”. He thought it was going twice as fast as his vehicle was going. He did not think he had seen any cars go by that fast. This appeared really fast.

Summary of Evidence of Gabriel Santini

[87] Mr. Santini is 31 years old. He has been employed by the York Region District School Board as a custodian for 1.5 years. He is married to Roberta Ruggiero. They have one child. He has no criminal record.

[88] On December 19, 2010 they were on their way home from a Christmas party. They had left the party between 1:30 and 1:45 a.m. He had had maybe three to five drinks. Roberta was driving. They were travelling eastbound on Rutherford Road heading toward Highway 27. He was awake and talking with his wife as she drove.

[89] Traffic was minimal. There were perhaps three cars on the road, including theirs.

[90] He noticed the vehicle that ended up striking their vehicle. That vehicle passed a car in front of them. The area is hilly and speed limits change.

[91] The vehicle that he noticed was driving erratically. It “seemed like he was in a hurry.” The vehicle passed the vehicle ahead of it in the curb lane. He was not sure if the passing vehicle clipped the shoulder of the road, in snow or ice, making him lose control. He saw one of the passing vehicles’ back tires “slip out”. As the passing vehicle came back in the left lane he was initially in, he lost control and started spinning. Maybe after he switched lanes he lost control. He was not sure. The vehicle that the passing vehicle passed seemed like it was “going maybe 70”. The passing vehicle was “going much faster”. He said to his wife: “Look at that car doing donuts”, then the collision happened.

[92] His wife had no chance to swerve to avoid the collision.

[93] In terms of weather and road conditions, it had snowed maybe two days prior. Snow had been cleared off the road. He believed the road was “okay”. There was no snow on the roads, maybe on the shoulder.

[94] In terms of speed of the passing vehicle, he thought he was “doing at least double what I was doing”.

[95] He first noticed the passing car when it was coming up to the car in front of him. The passing car had to either slam on his brakes or swerve to go around the car in front of him. He was not concerned at that point. Although he is not absolutely sure, it looked like the passing car “clipped the shoulder” while passing the other vehicle.

[96] In cross-examination Mr. Santini indicated that he was not concerned about the passing vehicle’s speed when it was behind the vehicle ahead of it. He saw the vehicle when it was about 300-400 meters away. He believes it was travelling at 140 kilometres per hour. It looked to him as though the passing vehicle “hit the shoulder” or, it swerved into the lane in front of the other vehicle too sharply and it lost control and started doing donuts. He is not sure which.

[97] This was not a residential area.

[98] It was not snowing that evening. There were some remnants of snow on the grassy parts. It was possible that it had snowed that evening.

[99] Officer Nazzer did tell him what it was estimated the speed of the passing vehicle was in the course of interviewing him but this is not the basis of his belief regarding speed. Mr. Santini estimated distance from where the BMW was behind the vehicle it passed to the point it pulls out in front as being a “short distance” and certainly “less than 300-400 meters”. When the vehicle was “doing donuts” and approaching his vehicle it was completely out of control and there was nothing that could be done to avoid the collision.

[100] Regarding his conversation with Officer Nazzer, Mr. Santini was the first person to raise the subject of speed when he said the passing vehicle must have being going at least 140 kilometres per hour.

Summary of Evidence of Roberta Ruggiero

[101] She is 32 years old. She is married to Mr. Santini. She works as a Compliance Specialist for RBC. She has no criminal record.

[102] On December 19, 2010 in the early morning she and Mr. Santini were returning from a Christmas party. Mr. Santini had had a few drinks and she drove home.

[103] The weather was clear and cold. The roads were clear. It started to snow a little bit. She noticed this after the accident. There was nothing on the roads.

[104] Rutherford Road was a normal route home for them. Their planned route home was to travel southbound on Highway 50 and turn left onto Rutherford Road, proceeding past Highway 27.

[105] Shortly after turning left onto Rutherford Road from Highway 50 she noticed “bouncing lights”. She had no time to react.

[106] Turning left onto Rutherford Road she turned into the left-most lane. The lanes were clearly marked. As she was driving she could not really tell what was going on with the car with the “bouncing lights”. She said: “Seems like something’s going on with…” and then there was the collision. She estimated she was travelling about 40 to 50 kilometres per hour at the time because she had just completed her left hand turn and had not accelerated up to the speed limit.

[107] The collision was head on. The area is “desolate” until Highway 27 and then it becomes more residential.

[108] Regarding speed of the other vehicle, she could only say that it would have been “extremely fast” because from the time she turned until the impact (snaps fingers to illustrate).

[109] In cross-examination she confirmed that she had started a civil suit as a result of the accident. The suit was settled at the time of trial.

[110] When turning onto Rutherford Road she saw a vehicle and bouncing lights. She said to her husband that it looked like the vehicle was “doing donuts”. She can’t really say anything about the speed except that when she turned onto Rutherford Road it seemed so distant then shortly thereafter it was right there colliding with them. Regarding weather, it was clear.

[111] She reviewed her statement to police before giving her testimony. In her statement she indicated that there was light, fluffy snow falling. When they left the party it was dry and there was no snow but when she was on stretcher following the accident she noticed fluffy snow falling. It did not accumulate.

[112] She was certain it was not snowing before the accident.

[113] She had nothing to drink at the party.

[114] In re-examination she confirmed that when she turned left onto Rutherford Road from Highway 50, the “bouncing lights” were in the distance and then before she could finish that thought the accident had happened. The vehicle must have been “going really fast” because of how quickly it covered the distance from where she first saw it to the point of impact.

Summary of Evidence of Greg McGuire

[115] McGuire has been a Detective with the Forensic ID unit of the York Regional Police for almost 14 years. He was contacted at home on December 19, 2010 at 2:45 a.m. with the request that he attend the scene. He went to his office to get some photographic equipment. He left the office at 4:00 a.m. The drive from his home to the office took 30 minutes. The road conditions were “good”. The roads were damp. The weather was cold. There was moisture in the air.

[116] He arrived at the scene at 4:40 a.m. He observed a paved roadway. There were two vehicles that had obviously been in a collision. There was debris on the roadway. Officers were blocking traffic. He started his photography work within 15 to 20 minutes of arrival.

[117] His digital photographs included a secondary metadata file which includes details of the camera settings, exposure time, shutter speed, time of day (which might be an hour off depending on whether the camera had been adjusted for daylight savings time).

[118] Generally for nighttime or dark scenes a flash is used but this results in a dark background. An alternative is a timed exposure using the tripod or a slow/rear curtain flash option. Alternatively exposure compensation can be used as well.

[119] At the accident scene there was some artificial street light available but it was still fairly dark. He used the rear curtain technique, some ambient timed exposure and flash exposure for securing the photographs of the scene.

[120] He also took a second set of photos in daylight.

[121] Photo 4406 shows the pavement is “relatively dry” although it may show a “little bit of moisture”.

[122] Exhibit 7a (Photo 4428) shows one of the vehicles on the roadway and under the vehicle the pavement is dry whereas the pavement is damp or moist beyond the vehicle. The roads were more damp or moist than wet.

[123] Exhibit 9 (Photo 4505) shows snow in the background and no snow on the pavement. It was dry underneath the vehicle. There was some obvious fluid spilling under the vehicle.

[124] In cross-examination he confirmed the weather upon his arrival was “not foggy but there was a mist or dew in the air. It was cold.

[125] In some photos there is a “lighter substance” on the roadway. He is not certain what that is. There was some fresh snow that had fallen while he was at the scene. In photos 4427 and 4499, there are images of the Honda motor vehicle showing an area near the front tire that appears to be wet underneath the vehicle.

Summary of Evidence of Detective Constable Jeff Nazzer

[126] Nazzer has been the Collision Investigation Unit of the York Regional Police force since 2009. On average he attends 15 to 20 accidents per year.

[127] He drew a diagram of the scene and transferred the information from that diagram into a program which produced a more formal diagram (Exhibit 21). This diagram shows tire marks commencing in the left lane of the two westbound lanes on Rutherford Road, just at the point where the road begins a gentle curve to the right. The tire marks continue across the paved median, into the eastbound lanes and past the entrance to the CP Rail compound. The vehicles came to rest in the eastbound lanes to the west of the CP compound.

[128] As to the weather conditions, after he received a call to attend the scene, he recalls it being “cold, not freezing”. He did not recall any snow falling.

[129] One of his practices is to record some Environment Canada information. In his notes he recorded the following information from Environment Canada as of 3:00 a.m. at the Buttonville Airport station:

a) Light snow;

b) Temperature minus 5.6 degrees Celsius;

c) Light winds.

[130] He did not recall any light snow during the drive from his home to the station.

[131] He arrived at his station at Wellington and Leslie around 3:40 a.m. He did not recall any snow.

[132] His notes do not record any snow.

[133] He arrived at the scene at 5:02 a.m. The Honda Civic motor vehicle was “somewhat straddling the median turn lane”. The BMW was near the shoulder. There was a debris field. He observed tire marks starting in the westbound lanes closest to the centre of the roadway. The tire marks crossed over the median lane into the eastbound lanes closest to the centre of the roadway. He remained on the scene for 40 to 45 minutes.

[134] He also observed “gouge marks” in the asphalt roadway.

[135] When the vehicles collided the force of the collision caused the gouge marks in the asphalt. The engine compartments of both vehicles were destroyed resulting in leakage of radiator fluid, air conditioning fluid, gasoline, washer fluid and oil. These are all possible sources of leakage under the vehicles where they came to rest on the roadway.

[136] The fire department typically applies Absorball to absorb the fluids from the roadway. This substance is similar to kitty litter. Some of the photographs show Absorball on the roadway, not snow.

[137] In cross-examination he confirmed that if he had a reasonable basis to believe someone had been drinking while driving he would be making a demand for a sample and look for other indicia of impairment. If he had reasonable and probable grounds for impaired driving then he would arrest that person.

[138] Travelling along Rutherford Road westbound to the collision the area changes from a residential area to an industrial area.

[139] It appeared that the BMW motor vehicle had been travelling westbound from a residential to an industrial area. He was vaguely familiar with the area.

[140] Travelling westbound on Rutherford Road and after passing Highway 27 the speed limit increases to 70 kilometres per hour from 60 kilometres per hour.

[141] He took no measurements at the scene but he did assist others in doing some measuring.

[142] He took statements from Christopher Morris, the accused, Adrian Joseph and Bryan Joseph in the days immediately following the accident.

[143] Officer Braye took a statement from Jerome Brodie.

[144] The statement that he took from Christopher Morris confirms that Christopher Morris said that he saw Somel have “one drink” and that he “stopped at 11:00 p.m.”

[145] The statement that he took from Bryan Joseph on December 19 in the early morning after the accident confirmed that Bryan told him that Somel was “driving normally until just before the crash.” The vehicle sped up some. There was a turn in the road prior to the crash. The rear of the vehicle lost traction and the vehicle did a full 360 degree spin. Bryan indicated while in the car the music was playing but no one was really talking. He was tired. They passed Highway 50. He did not really feel the speed at that point. It was where there is a bend in the road that Somel lost control and the car “spun 360 degrees”. The passengers in the car did not really have conversation through the whole ride. He did not really pay attention. Somel was driving fine up to that point in the road. There is a curve in the road on Rutherford Road and he went a bit fast on the curve. His driving was completely normal until the curve in the road.

[146] He made no demands of Somel for a breath sample.

Summary of Evidence of Constable Bryon Braye

[147] The defence called this witness. Braye has been an officer with York Regional Police since July, 1988. On the morning of December 19, 2010 he attended Brampton Civic Hospital as directed by Constable Nazzer to conduct witness interviews.

[148] He attended with Somel at 7:27 a.m. He could not detect any odour of alcohol on Somel.

[149] He next attended with Jerome Brodie at 8:03 a.m. He denied drinking any alcohol. He indicated that he did not know if Somel had consumed alcohol. He said he did not know how fast Somel was driving. When asked whether he was concerned at all about Somel’s “driving habits” he answered: “No nothing like this has ever happened. I was completely fine with it.” He indicated the radio was not on in the vehicle prior to the accident.

[150] In terms of weather he advised Braye that it was dark, it was not raining or snowing. He had no recollection of any other traffic. He did not know how fast Somel was going. When asked if there was any conversation after the party while driving home about alcohol consumption and before the collision, he answered: “No”. When asked if he considered the speed the vehicle was traveling “fast” he said: “I don’t know how fast he was going, I just remember hitting another car and going out of control and going blank.”

LEGAL FRAMEWORK

[151] Section 249(1)(a) provides as follows:

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 …

[152] The current leading authorities from the Supreme Court of Canada in dangerous operation cases are Regina v. Beatty, 2008 SCC 5 and Regina v. Roy, 2012 SCC 26. In Roy the court outlined the historical background to the distinctions between the levels of negligence from simple recklessness to dangerous operation.

[153] In Roy the court reiterated that “simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.” Quoting Beatty, the court added that “if every departure from the civil norm is to be criminalized, regardless of the degree, the risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.”

[154] The essential elements of the offence set out in s.249 of the Criminal Code are:

(a) the operation of a motor vehicle;

(b) in a manner dangerous to the public;

(c) having regard to all the circumstances including

i. the nature, condition and use of the place at which the motor vehicle is being operated and

ii. the amount of traffic that at that time is or might reasonably be expected to be at that place.

[155] In Regina v. Hundal 1993 120 (SCC), [1993] 1 SCR 867 the Supreme Court sought to clarify the law regarding dangerous operation and the actus reus and mens rea requirements. The court confirmed that criminal liability required a marked departure from the standard of care expected of a reasonable person in the same circumstances; however, the court failed to indicate clearly whether this marked departure test applied to the actus reus only, or also to the mens rea.

[156] In Hundal the court concluded that a modified objective test was applicable in the assessment of mens rea:

Consideration of the context in which the term has been used suggests that the phrase “modified objective test” was introduced in an effort to ensure that jurists applying the objective test take into account all relevant circumstances in the events surrounding the alleged offence and give the accused an opportunity to raise a reasonable doubt as to what a reasonable person would have thought in the particular situation in which the accused found him or herself.

[157] With respect to mens rea, the question is whether the dangerous manner of driving was the result of a marked departure from the standard of care that a reasonable person would have shown in the same circumstances.

[158] In Roy, the court confirms that the mens rea inquiry is a two-step analysis. First, consider whether, in light of all the evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. Second, consider whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the circumstances of the accused.

[159] Whether someone’s conduct constituted a marked departure is a question of degree and courts should be careful not to set the bar too low in coming to a conclusion that a departure amounted to a marked departure. According to the court in Roy:

In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at paragraph 46 of Beatty,

“the court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving” (emphasis added).

[160] A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

[161] In Beatty the Supreme Court also emphasized the distinction between penal and civil negligence:

However, it is important not to conflate the civil standard of negligence with the test of penal negligence. Unlike civil negligence which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state… Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s.249 of the Criminal Code, the distinction between civil and penal negligence acquires a constitutional dimension…

[162] The actus reus for dangerous driving is driving which involves a “significant” or “marked” departure from the standard of a reasonably prudent person (see R. v. MacGillivray 1995 139 (SCC), [1995] SCJ No. 20 at para. 13).

[163] Dangerous driving is not to be equated with failing to exercise the standard of care of a prudent driver (see R. v. Bartlett [1988] O.J. No. 1608 (Ont. CA).

[164] In Roy the accused had driven onto a highway right into the path of a tractor trailer, in snowy and foggy conditions. The court concluded that the decision to go out on the highway was a misjudgment and could not reasonably support the inference of a “marked departure” from the standard of care of a reasonable person.

[165] The court must determine how and in what way the accused’s failure to foresee and respond to the risk amounted to a marked departure from the standard, beyond mere carelessness. In Regina v. Reynolds 2013 ONCA 433, [2013] O.J. No. 2933 at paras. 18 and 19 the Ontario Court of Appeal indicated:

This is not to say that the manner of operation of the vehicle is not a factor in determining the “marked departure” fault element. Quite often it will be. But it may not be enough standing alone, and the trier of fact must go on and examine all of the circumstances relating to the accused at the relevant time. In dealing with the proof of the “marked departure” fault element the court made the following observation in Roy at para. 40:

Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving.

[166] In this case, the speed at which Somel’s vehicle was travelling is a central issue. Under certain circumstances excessive speed alone may be sufficient to constitute dangerous driving. For example, in R. v. Richards 2003 48437 (ON CA), [2003] O.J. No. 1042 (OCA) the accused had lost control of his vehicle, causing it to leave the road, cross onto a grass median dividing traffic lanes, and hit a concrete pillar. Expert evidence confirmed that the vehicle was travelling at a minimum 119 kilometres per hour in a 100 kilometre per hour zone. There was no other cause explaining the accused’s loss of control. The Court of Appeal confirmed that evidence of speed alone can found a conviction for dangerous driving. This conclusion was also reached in R. v. Pezzo (1972) 9 C.C.C. (2d) 30 (OCA) and R. v. M.(MK) (1998), 1998 1324 (ON CA), 35 M.V.R. (3d) 319 (OCA).

[167] In this case, there is no expert evidence as to the speed at which Somel’s vehicle was travelling. We are left with eye witness testimony only in this regard. I must consider such evidence with caution as eye witness estimates of speed, time and distance can be notoriously inaccurate (See R. v. St. Pierre 2005 BCSC 1899, [2005] B.C.J. No. 3131 (BCSC)).

[168] In Regina v. Malkowski [2014] O.J. No. 1911 (OCJ), the court concluded that civilian non-expert evidence regarding speed can be enough, particularly where the civilian employs a turn of phrase that gives meaning to the description of speed.

[169] In Regina v. Sarkis [2003] O.J. No. 5095 (OCJ) the court concluded eye witness evidence of the accused’s excessive speed was sufficient, when combined with loss of control, to ground a conviction for dangerous operation of a motor vehicle. The civilian witnesses described the speed as “full blown” and “faster than anybody would do on the highway”. The speed was estimated to be between 190 and 200 kilometres per hour in a 100 kilometre per hour zone. Another witness estimated the speed to be in excess of 150 kilometres per hour. It was “definitely fast” and the vehicle had passed him at “considerable speed”. One of the passengers in the accused’s motor vehicle told the defendant “there’s no need to speed” and urged him to slow down. He estimated the accused’s speed prior to collision to be between 130 and 140 kilometres per hour shortly after the collision but reduced it to 110 to 130 kilometres per hour at trial.

[170] In Regina v. Nieto-Campos [2005] O.J. No. 5576 (SCJ) the charge of dangerous operation of a motor vehicle supported by civilian witnesses’ testimony as to speed. The speed estimates of the accused’s vehicle ranged from 130 to 200 kilometres per hour in a 90 kilometre per hour zone. One of the witnesses indicated the vehicle in question “took off”. Another witness reported feeling the impact of wind caused by the passing of the vehicle and indicated she had never seen vehicles travel at such a high rate of speed. Another witness indicated that the vehicles passed him as if he was standing still. The court found these descriptions sufficient to find that the subject vehicle was travelling at 150 kilometres per hour and likely faster.

[171] In Regina v. Tyrer [2009] O.J. No. 2684 (OCJ) there was civilian evidence of speeding in an 80 kilometre per hour zone. One witness described the vehicles as “travelling at a very high rate of speed”. The estimate of speed was about 160 kilometres per hour as “they were really travelling”. As the vehicles were travelling away from him it was like “they were splitting”. One witness said: “boy, were they ever going”. Another witness indicated that he could not estimate exactly the speed of the cars but that it was “well in excess of” 90 percent of the cars that drive down the road, and “possibly doubling the speed”. Another witness described the vehicles as proceeding “at a high rate of speed”. Expert testimony as to speed could not be provided do to missing information. The court accepted the civilian evidence as to speed in concluding that the vehicles were travelling at very high speeds.

[172] In Regina v. Taylor [2006] O.J. No. 3567 (OCA) the court was considering an appeal from conviction for dangerous operation of a motor vehicle causing bodily harm. Evidence at trial included testimony from a passenger in the subject motor vehicle estimating the speed to be 120 to 140 kilometres per hour in an 80 kilometre per hour zone. There was also expert testimony of “speed loss of 96 km/h” calculated during the vehicle’s skid from a roadway to the end of the furrows in a ditch in an 80 kilometre per hour zone. The speed loss represented only a portion of the total speed at which the vehicle was actually travelling. The vehicle’s actual speed would be far greater according to the expert. This evidence was sufficient both at trial and on appeal to ground a conviction in dangerous operation. The court concluded that the speed likely reached 140 kilometres per hour and was not less than 120 kilometres per hour. The evidence of the civilian was accepted in this regard.

POSITIONS OF THE PARTIES

[173] It is the position of the Crown that the accused’s operation of the motor vehicle was dangerous owing to the combination of excessive speed and aggressive driving.

[174] It is the position of the defence that the Crown has failed to prove the actus reus beyond a reasonable doubt because:

(a) the only viable deviation the Crown can point to in this case is that of speeding;

(b) the evidence of the four occupants in Somel’s vehicle were contradictory in many aspects, inconsistent with prior statements made to the police and tainted by a civil proceeding at which they stood to gain a financial award;

(c) the evidence of Naomi Ramirez and her husband were based on a “guesstimate” and is not sufficient to find beyond a reasonable doubt that Somel was in fact speeding;

(d) Santini and Ruggiero had very limited opportunity to observe the BMW prior to the collision and most likely only observed Somel’s vehicle after he lost control;

(e) there is little to no evidence that alcohol played any role in Somel’s driving on the night in question.

[175] Further, the defence argues, it would be unsafe if not impossible for this court to determine that Somel had the requisite mens rea to commit the offence of dangerous driving. Finally, the contextual backdrop favours an acquittal because:

(a) the driving occurred in an industrial or agricultural area and not a residential area;

(b) there was little or no traffic at that time of the night;

(c) driving conditions were optimal and the standard of care expected of a reasonable person would be lower in such circumstances;

(d) the roadway was lit with additional artificial lighting;

(e) in the area where Somel was said to have accelerated the posted speed limit increases from 60 to 70 kilometres per hour.

ANALYSIS

[176] Before commencing an analysis of the evidence I will give some broad impressions of the witnesses where comment is merited.

[177] As to Christopher Morris, I found him to be an average witness, seeking to share what he recalled happening but struggling with some genuine memory issues (something not surprising given the passage of time since the events in question). He gave his evidence with an element of reluctance.

[178] Bryan Joseph was similar in presentation to Christopher Morris, demonstrating similar memory issues and reluctance. He was flippant in his evidence at least once, suggesting he did not appreciate the gravity of the exercise in which he was engaged.

[179] Adrian Joseph was more articulate and less reluctant than Christopher and Bryan and presented his evidence with more confidence. While he had a civil claim against Somel it appears to have resolved prior to trial and therefore I do not find that he had a lingering interest in the outcome of this trial.

[180] Jerome Brodie gave his evidence with some difficulty. He struggled in answering questions. Whether his difficulty was genuine or obstructive is impossible to say. I weigh his evidence with caution.

[181] Naomi Ramirez and Ricardo Costa were both excellent witnesses. They presented their evidence with confidence and consistency. Their memories were strong and they had no interest in the outcome of this or any other proceedings involving Somel.

[182] Gabriel Santini and Roberta Ruggiero were also very good witnesses. They both gave their evidence with confidence and consistency. Although they suffered injuries neither demonstrated any ill will toward Somel in their testimony. Their civil claims appear to have resolved prior to this trial and thus there is no lingering interest in the outcome of these proceedings.

[183] The police witnesses testified as to the physical aftermath of the collision and the statements of the witnesses. I have no reason to be concerned regarding any of this evidence.

[184] Where the testimony of the passengers in the Somel vehicle differs significantly from that of the other non-police witnesses I generally prefer the evidence of the other non-police witnesses. These witnesses (Ramirez, Costa, Santini and Ruggiero) were observing the behaviour of the Somel vehicle from an external vantage point and were in a position to describe its movement in the context of its surroundings. By way of contrast, none of the passengers in the Somel vehicle appears to have been observing circumstances outside the Somel vehicle; for example, not one of these passengers mentioned passing or even seeing the Ramirez vehicle. Also, the other non-police witnesses all gave their evidence in a careful, confident and consistent manner.

[185] Let me start my analysis by making some preliminary findings of fact.

[186] I find that if alcohol was a factor with respect to Somel’s driving, it was an insignificant one with little, if any, influence on his operation of the motor vehicle on the occasion in question. I say this because of the inconsistent evidence on the subject of his alcohol consumption given by Adrian, Bryan, Jerome and Christopher, including timing of last consumption in relation to the events in question; also, the investigating officers did not conclude that they had grounds to demand a breath or blood sample.

[187] I also find that the area where the offence is alleged to have occurred can be fairly described as industrial or agricultural in nature with no residences in the immediate vicinity, although it appears Somel’s vehicle passed through a more residential area a short time prior to the loss of control.

[188] I also find that on the night in question and at the time of the events in question, there was essentially no traffic on the road apart from the Somel, Ramirez and Ruggiero motor vehicles. Given the positions of intersections of Highways 50 and 27 with Rutherford Road however there was nevertheless the possibility of other vehicles entering the roadway at any time, as did the Ruggiero vehicle immediately before the collision.

Road Conditions

[189] Regarding the road conditions, Christopher described them as “fine” although there was snow on the grass and it was pretty cold. Bryan indicated that it was “snowing lightly” and the roads were a little icy. Adrian described the weather as “bad” and “slippery”, adding that it had snowed earlier that day but was not snowing that evening. He believed there was rain but he was not sure. Jerome described the weather as cold but had no recollection regarding rain or snow, although he acknowledged having given a statement to police following the accident indicating that it was neither rain nor snowing at the time of the accident. Naomi Ramirez described the weather as “completely dry” and confirmed that it was not raining or snowing. The roads were not wet or snowy or icy. Mr. Santini indicated that it had snowed maybe two days prior to the accident. Snow had been cleared off the road. He believed the road was “okay.” There was no snow on the roads but perhaps on the shoulders. According to Ms. Ruggiero, the weather was clear and cold. The roads were clear. It started to snow a little bit after the accident. There was nothing on the roads. Detective McGuire described the road conditions as “good” although damp. The weather was cold and there was moisture in the air. Detective Nazzer described the weather as cold but not freezing. He had no recollection of any snow falling. He had recorded some Environment Canada information as of 3:00 a.m. at the Buttonville Airport station confirming “light snow, temperature -5.6 degrees Celsius, light winds.” He did not recall any snow falling at the accident scene.

[190] The photos are telling. They confirm that at the time the photos were taken the road was damp. There was no snow or slush or ice on the road according to the photos. The areas under the vehicles are largely dry, except for where fluid has been leaking. This suggests that at the time of the collision the road was essentially dry but after the collision some mild precipitation occurred.

[191] Despite some inconsistency with the evidence of Bryan and Adrian, the balance of the evidence is sufficiently compelling for me to find that the driving conditions presented no special challenges in that the roads were either dry or damp and not unusually slippery or icy. Bryan’s and Adrian’s evidence did not address the road conditions immediately prior to or at the site of the loss of control and collision; rather, their evidence spoke broadly to the general road conditions that evening. This lack of specificity leads me to conclude that little weight ought to be given to their evidence on this issue.

Speed

[192] Christopher testified that as the Somel vehicle approached Highway 27 the “speed started to go drastically up.” He could not see the speedometer but “we told him slow down.” He yelled this to Somel. At the top of the hill the speed was getting faster and once the vehicle hit the bend in the road the car “spun out.” He had no way of knowing but it felt the vehicle was travelling at approximately 150 kilometres per hour. In my view, this evidence is not contradicted by his evidence at the preliminary hearing that prior to this incident, Somel did not speed and he obeyed the rules of the road in his day to day driving. Similarly I am not concerned that, in his statement to police, he had earlier indicated that he thought Somel was travelling 160 kilometres per hour. I accept that there is inherent uncertainty in such evidence but I have no reason to conclude that Christopher was, in his testimony at trial, doing anything other than trying to give his best estimate as to the speed at which he honestly believed the Somel vehicle was travelling at the relevant time.

[193] Bryan described the vehicle as “picking up speed” and he recalled someone in the vehicle telling Somel to slow down just prior to the accident. He had no concerns about Somel’s driving until the Rutherford Road and Highway 50 intersection when Somel’s speed started increasing. He was worried as Somel was speeding up and someone said to slow down. He “felt a little nervous when the car was speeding up, a little fearful.” He could not tell how fast the vehicle was going. In a statement to police after the event he describes Somel’s driving as normal until he hit the curve and lost control. Defence submits that this represents an inconsistency; however, in broad terms this statement is consistent with his evidence at trial which was necessarily much more detailed than his statement to police.

[194] Adrian testified that he had very little recollection of the accident. Prior to the accident he had no recall of bad driving by Somel and no recall of speeding. He recalled no discussion in the vehicle prior to the collision. On this I do not conclude that discussion did not happen; rather, just that he had no recollection of such discussion.

[195] Jerome testified that he did not look at the speedometer before the accident. He did not know the speed of the vehicle just before the accident. He was yelling just before the accident but he did not recall what he was yelling. While he did not specifically remember what he was yelling, he was in fear for his life so he was yelling. He told the officer in his statement that he did not know how fast Somel was going.

[196] Naomi Ramirez was one of the most compelling witnesses in this trial. She was careful in her evidence and consistent. She had one of the best vantage points from which to assess Somel’s operation of his motor vehicle. She testified that she saw a BMW come “flying” by her. She remembers saying: “look at those morons” because they went by so quickly. Ten to 15 seconds later she came upon the accident. She was driving approximately 80 kilometres per hour. Regarding the speed of the BMW, she indicated “it was so fast as it went by I would guess it was double my speed.” At the time that the BMW passed she was in the middle of a conversation and had to interrupt the conversation to comment on the BMW passing. It was travelling significantly faster than she was.

[197] Ricardo Costa testified that he remembers the vehicle “whipping” or “flying” past him and his wife Naomi. He recalls the speed limit being 70 or 80 kilometres per hour. He believed his wife was travelling within that range. The vehicle that passed him was going “pretty quick”, about twice their speed. As the vehicle passed him, he said “look at these idiots flying by us.” Naomi said pretty much the same thing. The state of the BMW was “really fast”. He believed it was going twice as fast as his vehicle. He did not think he had seen any cars go by that fast.

[198] Gabrielle Santini testified that he was in the vehicle being operated by his wife. They were travelling eastbound on Rutherford Road heading toward Highway 27. He noticed the vehicle that ended up colliding with his vehicle ahead coming from the opposite direction, passing a car in front of them. He noticed that the vehicle was driving erratically. It “seemed like he was in a hurry”. The vehicle that the passing vehicle passed seemed like it was “going maybe 70”. The passing vehicle was “going much faster”. He thought the passing vehicle was “doing at least double what I was doing.” His vehicle had not yet reached the speed limit. He believed the passing vehicle was travelling at 140 kilometres per hour.

[199] Roberta Ruggiero estimated that she was travelling approximately 40 – 50 kilometres per hour at the time that she saw the vehicle approaching them losing control. She believed that vehicle would have been travelling “extremely fast” because from the time she turned onto Rutherford Road until the impact was so brief that she snapped her fingers to illustrate the brevity of that lapse of time. She also felt the vehicle must have been “going really fast” because of how quickly it covered the distance from where she first saw it to the point of impact.

[200] Detective Nazzer confirmed that travelling westbound on Rutherford Road after passing Highway 27 the speed limit increases to 70 kilometres per hour from 60 kilometres per hour. It appears clear that the speed limit in the area where the collision took place, and loss of control of Somel’s vehicle was 70 kilometres per hour.

[201] The defence does not strongly argue that Somel was not driving in excess of the speed limit; rather, it is argued that the evidence of speeding is uncertain, inconsistent, imprecise and unreliable.

[202] There are several striking elements of the evidence in relation to the issue of speeding. One of those is the evidence of Jerome Brodie who says he was yelling prior to the accident because he was in fear for his life. This fear was shared by Bryan Joseph who, although he said nothing himself to Somel about his driving, recalled someone telling Somel to slow down. In the circumstances I do not find it surprising that more precise detail is not available in this regard. Christopher Morris also testified that he was yelling at Somel regarding his speed and that there was “a bunch of us yelling at the same time.” I am satisfied that Somel’s speed was at least sufficiently excessive to engender fear and concern in at least three of his four passengers.

[203] Another striking element of the evidence regarding speed involves the verbal descriptions of various witnesses beyond mere numeric estimates. For example, Ramirez saw the BMW “flying” by her. It inspired her to say “look at those morons.” Her husband said essentially the same thing. She indicated the BMW was travelling significantly faster than she was. She also indicated it was “going a lot faster than I was.” Mr. Costa described the vehicle as “whipping” or “flying” past him. He did not think he had seen any cars go by that fast. Mr. Santini said “it seemed like he was in a hurry.” Ms. Ruggiero described the speed as “extremely fast” and snapped her fingers to illustrate the time passing from the moment that she saw the vehicle until impact. All of these descriptions paint a picture of a vehicle travelling at a rate of speed dramatically different from that of the other users of the road and striking in its nature and quality.

[204] Numeric estimates of speed may be summarized as follows:

(a) Christopher Morris - 150 – 160 kilometres per hour

(b) Naomi Ramirez - 140 – 160 kilometres per hour (being double her rate of speed which she estimated as perhaps as low as 70 kilometres per hour and up to about 80 kilometres per hour but not 90 kilometres per hour)

(c) Ricardo Costa - 140 – 160 kilometres per hour (being double the speed at which his vehicle was travelling which was estimated to be between 70 and 80 kilometres per hour)

(d) Gabriel Santini - 80 – 140 kilometres per hour (based on his evidence that the vehicle was travelling at twice his speed combined with Ms. Ruggiero’s evidence that her vehicle was travelling about 40 – 50 kilometres per hour, but also considering Mr. Santini’s stated belief that the vehicle was travelling at 140 kilometres per hour)

[205] Tempering this evidence somewhat is the evidence of Bryan Joseph (who indicated that he could not tell how fast the vehicle was going), the evidence of Adrian Joseph (who had no recall of speeding), the evidence of Jerome Brodie (who did not know the speed of the vehicle just before the accident and specifically told the officer in his statement that Somel was not speeding).

[206] I am mindful of the inherent frailty of eye witness testimony regarding speed and I do not propose to rely upon these estimates in making a precise finding as to Mr. Somel’s speed at the relevant times; however, the foregoing evidence is compelling and mostly consistent with a rate of speed that was grossly in excess of the posted speed limit of 70 kilometres per hour. I find that Mr. Somel’s speed was in excess of 120 kilometres per hour in a 70 km/h zone.

Other elements of Somel’s operation of his motor vehicle

[207] Before addressing other elements of Somel’s operation of his vehicle it is interesting to note that not one of the passengers in Somel’s vehicle described any awareness of other vehicles on the roadway prior to loss of control. It is clear that Somel’s vehicle passed the Ramirez vehicle before losing control and striking the Ruggiero vehicle; however, not a single one of the passengers in the Somel vehicle was aware of Somel having passed that vehicle. I believe it safe to conclude that the attention of the passengers in the Somel vehicle was not directed to observing elements outside the vehicle in which they were travelling. As a consequence, this undermines the reliability of the evidence of the passengers where same contradicts or conflicts with evidence of other witnesses.

[208] Christopher described the speed of the vehicle gradually increasing as it moved uphill and then a loss of control and spinning. There was some inconsistency in comparison to his December 20, 2010 statement to police while he was in hospital in which he described Somel at increasing speed going down the hill. In any event there is little in Christopher’s evidence to assist the court in assessing the quality of Somel’s operation of the motor vehicle.

[209] Bryan similarly described Somel’s driving in terms of the vehicle speeding up and then a loss of control with the car spinning three times and the impact with the other vehicle on the last spin. He indicated the vehicle started speeding up after passing Highway 27 on Rutherford Road. The car started to spin out when they approached the bend. He felt that when the spinning of the vehicle started the back tires “lifted up off the floor” and when the tires came back to the floor that’s when he lost control. Somel’s driving that night was normal until he hit the curb and lost control. Somel’s driving was fine up to Highway 27.

[210] Adrian testified that he had very little recollection of the accident and prior to the accident he had no recall of bad driving by Somel and no recall of speeding. There was nothing about Somel’s driving that stuck out in his mind. He recalled going up a steep hill, the car slid, the Honda Civic came down hill and slammed into Somel’s vehicle.

[211] Jerome similarly had little to say of the nature of Somel’s driving. He remembered hitting the other car and being out of control and everything else was black.

[212] Naomi Ramirez described the vehicle come “flying” by her and then at least ten seconds later coming upon the accident scene. In other words, she did not witness the loss of control which must have happened at least 10 seconds after Somel’s vehicle passed her on the right. She did not see the Somel vehicle approach her from behind.

[213] Ricardo Costa described the Somel vehicle as “whipping” past the vehicle in which he was riding with Ms. Ramirez. It passed their vehicle on the right hand side. Somel “flew by and swerved into our lane.” Somel “swerved right in front of us and then just went on.” Somel “passed us, went into our lane and then straight ahead”. The time from that moment until coming upon the accident scene was just a few seconds. The BMW passed on his right and cut back into his lane.

[214] Gabriel Santini described the Somel vehicle as passing the vehicle ahead of it in the curb lane. He was not sure if the passing vehicle clipped the shoulder of the road in snow or ice, making him lose control. He saw one of the passing vehicles back tires “slip out.” As the passing vehicle came back into the left lane he was initially in, he lost control and started spinning. In other words, Mr. Santini is describing the Somel vehicle approaching from behind the Ramirez vehicle in the same lane the Ramirez vehicle was in, moving into the right lane, passing the Ramirez vehicle and then returning to the same lane in which the Ramirez vehicle was travelling. He described the Somel vehicle as he saw it approaching from behind the Ramirez vehicle as having to either “slam on his brakes or swerve to go around the car in front of them.” He was not absolutely sure but it looked like the Somel vehicle “clipped the shoulder” while passing the other vehicle.

[215] The clipping of the shoulder is not likely as it is inconsistent with the evidence of Ramirez and Costa, both of whom describe a vehicle under control as it swerved back in front of them and speeding off ahead of them.

[216] Roberta Ruggiero described “bouncing lights” which appears to be consistent with the vehicle already having lost control.

[217] The driving in which I am interested is that over which Somel had control of the vehicle. After the loss of control, the laws of physics take over and there can be no moral blameworthiness for what ensues.

[218] The most reliable witnesses with respect to this component of the evidence are the travelers in the Ramirez and Ruggiero vehicles. These witnesses were all in a better position to externally observe the operation of the Somel vehicle. For reasons noted above, it appears the passengers in the Somel vehicle were not paying attention to conditions outside the vehicle.

[219] The evidence of the travelers in the Ramirez and Ruggiero vehicles is consistent with the Somel vehicle approaching the Ramirez vehicle from directly behind, at a high rate of speed, swerving into the right hand lane, passing the Ramirez vehicle at a high rate of speed and abruptly swerving back into the same lane in which the Ramirez vehicle was travelling and then proceeding straight ahead around the bend for at least 10 seconds prior to the collision with the Ruggiero vehicle.

[220] In other words, this evidence is consistent with an aggressive passing maneuver. I describe it as “aggressive” due to the high rate of speed, the fact that it was conducted by passing to the right of the vehicle being overtaken contrary to the rules of the road and then followed by an abrupt return directly in front of the Ramirez vehicle, a maneuver that was completely unnecessary as there were no other vehicles on the road ahead of the Somel vehicle went in the curb lane requiring a maneuver into the left hand lane. This maneuver is consistent with a “showing off” kind of driving with which all users of our highways are familiar when one is approached from behind by someone travelling at a much higher rate of speed in a lane which that high speed traveler feels they have a right to use and then, in an effort to make a point of the slower traveler’s having inconvenienced the higher speed traveler, moving aggressively and abruptly around that vehicle and continuing onward.

[221] The driving described above clearly extends beyond a momentary lapse in judgment. It involved a number of exercises of judgment. First, the decision was made to accelerate when leaving a 60 kilometre per hour zone and entering a 70 kilometre per hour zone, to a rate of speed grossly in excess of the posted speed limit. Next, the decision was made to aggressively approach another vehicle from behind, a vehicle travelling at or near the posted limit, without any evidence of braking. Next, the decision was made to abruptly move from the left to the curb lane and pass the Ramirez vehicle on the right, contrary to the rules of the road. Next, the decision was made to abruptly and unnecessarily move back into the lane directly in front of the Ramirez vehicle and continue at a high rate of speed into the bend in the road ahead for at least 10 to 15 seconds.

[222] I wish to emphasize that I am deliberately ignoring the consequences of this driving in this analysis as the consequences are clearly irrelevant to my assessment of the dangerousness of the driving in question. It is the manner of driving in which I am solely interested.

[223] According to Roy, the question is whether the driving, viewed objectively, was dangerous to the public in all the circumstances. The public of course includes the passengers in the Somel vehicle, the Ramirez vehicle and the Ruggiero vehicle in addition to anyone else who may have been on the road that day. We know from the evidence and findings already made that there was essentially no traffic except for the Ramirez and Ruggiero vehicles. Although the Somel vehicle had passed through a residential area prior to the collision, it appears clear that the collision occurred, and probably the speeding commenced, in the more industrial or agricultural area.

[224] Given the factual findings above, I conclude that the manner in which Somel operated his motor vehicle endangered the public as it created a risk of damage or injury and was therefore dangerous.

[225] As noted in Roy, driving is an inherently dangerous activity; however, the driving described above has clearly moved out of the realm of those dangers one might consider inherent with driving and into the realm of dangerous operation of a motor vehicle.

[226] Regarding mens rea, the court is to apply a modified objective test. The first question is whether, in light of all the evidence, a reasonable person would have foreseen the risk in taking steps to avoid it if possible. I note that even having found that the Crown has established the actus reus in this case, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support such an inference.

[227] In this regard, I consider Somel’s grossly excessive speed combined with his aggressive passing maneuver and the presence of other vehicles on the roadway. I also consider that while the collision took place in an industrial/agricultural environment, the nature of the roadway was one that involved intersections with other roadways where it might reasonably be anticipated other vehicles would be crossing or entering the roadway on which the Somel vehicle was travelling. In fact that is exactly what happened with the Rugguiero vehicle. In such circumstances I conclude that a reasonable person would have foreseen the risk and taken the steps to avoid it if possible.

[228] The next question is whether Somel’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in Somel’s circumstances?

[229] Whether or not someone’s conduct constituted a “marked departure” from the standard of care expected of a reasonable person in the accused’s circumstances is a question of degree and I must be careful not to set the bar too low in coming to a conclusion that a departure amounted to a marked departure.

[230] In my view, the combination of the grossly excessive speed, the aggressive passing maneuver when clearly Somel must have been aware of the presence of at least the Ramirez vehicle on the road, no evidence of braking as the Somel vehicle approached both the Ramirez vehicle and the bend and operation of the Somel vehicle in an area with multiple intersections and the possibility of the entry of other users of the road, all lead me to the conclusion that the manner of Somel’s operation of the vehicle constituted a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

[231] All other elements of the offences before the court have been admitted, including bodily harm. For all the foregoing reasons, I find Somel guilty of the offences before the court.

P.A. DOUGLAS, J.

Released in Open Court: April 8, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.