Her Majesty the Queen v. Daniel Rasheed Bacchus

CITATION: R. v. Daniel Rasheed Bacchus, 2015 ONSC 3216

COURT FILE NO.: 14-40000400

DATE: 20150619

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Daniel Rasheed Bacchus

Accused

COUNSEL:

Martin Sabat, for the Crown

Edwin Boeve, for the Accused

HEARD: March 30 – April 9, 2015

REASONS FOR JUDGMENT

B.A. ALLEN J.:

THE CHARGES

[1] On May 16, 2013, the accused, Daniel Rasheed Bacchus, was driving a vehicle that struck Agnes Marr Horsey, age 90 years, causing injuries that resulted in her death two days after the accident.

[2] Mr. Bacchus is charged:

• under s. 249(1)(a) and s. 249(4) of the Criminal Code that he operated a motor vehicle in a manner dangerous to the public thereby causing the death of Agnes Marr Horsey; and
• under s. 252(1.3)(b) of the Criminal Code with having the care of a motor vehicle that was involved in an accident with the deceased and knowing that bodily harm was caused to the deceased and being reckless as to whether the death of the deceased resulted from that bodily harm, and the death of the deceased so resulted, did with intent to escape civil or criminal liability, fail to stop his motor vehicle, to give his name and address, and to offer assistance to the deceased, a person who was injured in the accident or appeared to require assistance.

FACTUAL OVERVIEW

[3] Mr. Bacchus was employed by Avante Security at the time of the accident as a security patrol officer. His job was to drive about certain assigned residential areas to check on the security of homes. He was driving a black Toyota Camry sedan. One of Mr. Bacchus’s routes on May 16, 2013 was in the area of Bayview Ave. and York Mills Rd. in Toronto. He started his shift at 7 a.m. and finished his first patrol area between 9:30 a.m. and 10:00 a.m. His next patrol area was in the area of Yonge St. and York Mills Rd. Mr. Bacchus was on the way to that patrol area when he struck Mrs. Horsey.

[4] At trial Mr. Bacchus admitted that at about 12:30 p.m. on May 16, 2013 he was involved in the accident. However, he contends he was not aware he had struck Mrs. Horsey. There were eight Crown witnesses who testified about their observations of the accident from different vantage points.

[5] Mr. Bacchus was driving along Mill St., a street that meets Yonge St. a few blocks south of York Mills Rd. He arrived at the intersection of Mill St. and Yonge St. Mrs. Horsey was on the northeast corner of Mill and Yonge St., heading across Mill St. to walk south on Yonge St. When Mr. Bacchus reached the intersection on a red light, Mrs. Horsey was crossing on a green light. Mr. Bacchus was turning right to go north on Yonge St. and while turning, Mr. Bacchus struck Mrs. Horsey as she was walking in the crosswalk.

[6] At trial, Mr. Bacchus stated he did not see Mrs. Horsey at the curb or in the crosswalk before he struck her. He denies seeing her in front his vehicle at the time of the collision. He also refutes the allegation that he saw and heard his vehicle collide with her.

[7] Sadly, Mrs. Horsey passed away in the hospital two days after the accident.

ISSUES

[8] On s. 249(1)(a) and s. 249(4) of the Criminal Code, there is no dispute Mr. Bacchus operated the motor vehicle and his operation of the vehicle caused the death of Mrs. Horsey.

[9] The only issue in relation to s. 249 is:

a) Did Mr. Bacchus operate the vehicle in a manner that was dangerous to the public?

[10] On s. 252 (1.3)(b) of the Criminal Code, there is no dispute Mr. Bacchus was involved in an accident while he had care and control of the motor vehicle and that he failed to stop his vehicle with the intent to escape civil or criminal liability and failed to give his name and address and render assistance to Mrs. Horsey. He admits to re-attending and seeing Mrs. Horsey’s injuries. What Mr. Bacchus disputes is that he was reckless as to whether Mrs. Horsey’s death would result from the bodily harm he caused.

[11] Mr. Bacchus concedes guilt of s. 252(1.2), that he was involved in an accident while he had care and control of the vehicle knowing that bodily harm had been caused to another person involved in an accident. The Crown did not accept the concession.

[12] The issue to be determined in relation to s. 252(1.3)(b) is:

b) Was Mr. Bacchus reckless as to whether Mrs. Horsey’s death would result from the bodily harm he caused to her in the accident?

EVIDENCE OF THE WITNESSES TO THE ACCIDENT

[13] It is not easy to hear over and again the facts of an accident that detail traumatic impact and severe harm to a human body, particularly for the loved ones of the victim. The evidence can appear overly clinical, and the body of the human victim coldly objectified as if the court is preoccupied with a mere crash test dummy. Hearing the facts of the accident is undoubtedly disturbing for the family. I feel compelled to say that the court’s approach to the facts is not motivated by indifference but by the uncomfortable reality that the trier of fact is required to engage in a precise scrutiny of the facts with offences like those before the court which necessarily means repeating and dissecting the unpleasant details of the accident.

Observation from Vehicle at Southeast Corner of Intersection

[14] Sean Fox was driving his Porsche northbound on Yonge St., just south of the intersection at Mill St., on a green light when he observed the accident. He stated that the speed limit is 60 km/hr. There were no vehicles in front of him and nothing obstructing his view. Mr. Fox testified that as he approached the intersection he observed a vehicle driving westbound on Mill St. approaching a red light and not slowing down, now known to be Mr. Bacchus’ vehicle. He estimated that Mr. Bacchus’ vehicle was driving at a speed of about 10 km /hr. which he thought was too fast for approaching a red light.

[15] Mr. Fox testified he was driving about 20 − 30 km/hr. as he approached the intersection. About 10 ft. from the intersection, Mr. Fox slowed his vehicle as his attention was drawn to a southbound pedestrian in front of Mr. Bacchus’ vehicle in the crosswalk. She was waving her arms and turning to directly face Mr. Bacchus’ vehicle. He then saw Mr. Bacchus’ vehicle strike the woman causing her to fall over backwards onto the road with her hands above her head. He saw Mrs. Horsey collapse over the hood with impact. He indicated she hit her head so hard that it bounced on the road. Mr. Fox’s evidence was that Mrs. Horsey’s body hit the front of Mr. Bacchus’ vehicle slightly to the driver’s side.

[16] After Mrs. Horsey fell, Mr. Fox saw the driver’s side wheel drive over her chest. When the wheel went over Mrs. Horsey, her legs were under the vehicle. Mr. Fox testified when the front wheel went over Mrs. Horsey’s chest, Mr. Bacchus was driving at the speed one would normally travel when turning right on a red light. He said if Mr. Bacchus stopped at all at the red light, it would have been for less than a second. Mr. Bacchus did not skid or squeal his tires. Mr. Fox observed the vehicle rise as it rode over Mrs. Horsey’s chest. He thought as the back wheel went over her legs something caught her leg and twisted it and caused her body to roll but not to be dragged by the vehicle. Mr. Fox did not see Mr. Bacchus’ vehicle ride up onto the curb in the right lane. Mr. Fox was shocked by what he saw.

[17] Mr. Fox indicated that after the turn, as Mr. Bacchus got approximately 30 ft. north of Mill on Yonge St., Mr. Bacchus stopped his vehicle, then opened the driver’s side door, and put his foot out, and then drove northbound on Yonge St. Mr. Fox got out of his vehicle and started waving and yelling for Mr. Bacchus to stop when he began to drive away. Mr. Fox never saw Mr. Bacchus after he went north on Yonge St.

[18] Mr. Fox was the first on scene to assist Mrs. Horsey. He comforted her and held her until the emergency crew arrived. He heard some of her last words − that she did not much like that the emergency workers cut her clothes.

Observation from Vehicle Stopped behind Mr. Bacchus

[19] Robert Bernhardt pulled into the right westbound lane of Mill St. from a restaurant parking lot. His Mercedes was about 6 ft. behind Mr. Bacchus’ vehicle which he said he was certain was stopped at the red light. He could not say for how long but he knew it had stopped because he was stopped behind it.

[20] Mr. Bernhardt’s view was unobstructed. He saw the vehicle proceed to turn right at a normal speed. He testified that as the vehicle turned right, he saw both the front and back driver’s side tires run over a pedestrian’s legs and lower body. This happened very quickly. He estimated Mr. Bacchus’ vehicle was travelling about 5 − 8 km when it hit and ran over Mrs. Horsey. He was alarmed by what he witnessed.

[21] Mr. Bernhardt observed the vehicle rise when the front and back driver’s side wheel rode over her. Mrs. Horsey landed on the road, her head and shoulders sticking out at right angles to the driver’s side of Mr. Bacchus’ vehicle. Mr. Bernhardt testified he did not recall Mr. Bacchus’ vehicle changing speed after he hit Mrs. Horsey. He recalled when he was behind Mr. Bacchus’ vehicle that Mr. Bacchus’ vehicle was a normal distance from the right curb and it did not hit or mount the right curb on Mill St.

[22] Mr. Bernhardt jumped out of his vehicle and went to Mrs. Horsey’s aid. He said that moments after he arrived other people came to help. He observed her bleeding on the pavement. He did not see Mr. Bacchus return to the scene. He stayed and gave a statement to the police.

Observation from Pedestrian Southbound on Yonge St.

[23] Adam Dover was walking southbound on the east side of Yonge St. at around 12:15 p.m. He passed an elderly woman as he was walking toward Mill St. Mr. Dover crossed the intersection on a green light at Mill St. He first estimated that when he was about 500 ft. to 700 ft. along Yonge St., he heard a loud “thud” from behind him like metal hitting a person. He heard men’s voices shouting and horns honking. At first he did not know what caused the thud.

[24] On cross-examination, Mr. Dover indicated he was bad at guessing distances. He conceded he was closer to the intersection than he first estimated. He had testified at the preliminary inquiry that he was 75 ft. to 100 ft. from the intersection. After hearing the thud he immediately turned around. He did not see the collision. He indicated that he has 20% hearing loss in his left ear.

[25] Mr. Dover then went to the scene and saw a woman lying in the road, unconscious, bleeding from her head and twisted onto her side. He saw other people at the scene. He indicated the paramedics arrived after about 4 to five 5 minutes and the police were on the scene about 7 minutes after the accident. At the scene, Mr. Dover noted that the vehicle that struck Mrs. Horsey was a security vehicle that had a logo on its door starting with “A”. He accessed the Yellow Pages App on his cellphone looking for a nearby security company with such a logo. He told another person on the scene that the name of the security company was “Avanti Security”. Another witness made a call to Avanti. Mr. Dover made a statement to the police.

Observations from Vehicles Southbound on Yonge St., Turing Left onto Mill St

[26] Jordan Korn was in the intersection of Yonge and Mill St., in the left, southbound lane on a green light about to make a left turn onto Mill St., when he observed the accident. He testified there were no vehicles in front of him and nothing obstructed his view. He saw Mr. Bacchus’ vehicle, while in the process of turning right onto Yonge St., run over Mrs. Horsey. Mr. Korn could only see the driver’s side of the vehicle. He did not see it collide with Mrs. Horsey. The first time he saw her, the top part of her body was underneath the driver’s side front wheel of the vehicle with her head and shoulders pointed toward him.

[27] Mr. Korn testified he could clearly see the driver of the vehicle that struck Mrs. Horsey through the driver’s partially opened window. He observed a male in his late 20s or early 30s with a device at his ear and thought based on his facial expressions that he was engaged in a conversation. He saw Mr. Bacchus moving his head back and forth to check for oncoming traffic. Mr. Korn observed Mr. Bacchus then continue with his right turn with Mrs. Horsey’s body under the vehicle. He saw the rear driver’s side wheel run over her at a smooth, even speed. He also expressed shocked at what he saw.

[28] Mr. Korn got out of his vehicle and, like Mr. Fox, saw Mr. Bacchus stop his vehicle in the right northbound lane of Yonge St. about 20 ft. – 30 ft. from the intersection. Mr. Korn then saw Mr. Bacchus proceed on Yonge St. and make a U-turn and speed southbound. He saw another vehicle pursue Mr. Bacchus. Mr. Korn did not see Mr. Bacchus return to the scene. He also remained and gave a statement to the police.

[29] Ian Crapper also testified he was stopped in the southbound lane on Yonge St. about to turn on to Mill St. with no vehicle or other obstruction blocking his view. He saw Mrs. Horsey step onto the street from the curb, go about 3 ft. into the crosswalk, get hit by Mr. Bacchus’ vehicle, and fall to the road. He testified the vehicle stopped and then ran over her. Mr. Crapper indicated he saw the driver’s side front wheel roll over her chest. He stated that the impact was more to the front passenger’s side of the vehicle towards the centre. He also testified when she stepped in front of the vehicle the upper part of her body was above the height of the front of the vehicle and the impact was to her legs. He was horrified by what he saw. His view was that the driver would absolutely have seen her before impact.

[30] Mr. Crapper observed Mr. Bacchus go north on Yonge St. then do a U-turn and go south on Yonge St. Mr. Crapper left his vehicle and went to Mrs. Horsey who he observed was bleeding and in grave condition. At that point, he saw Mr. Bacchus’ vehicle arrive at the scene. He observed the logo starting with “A” on his driver’s side door. According to Mr. Crapper, Mr. Bacchus said nothing and left the scene after about 20 − 30 seconds.

[31] Sandy Power and Roula Fogarty were together in a vehicle driven by Ms. Fogarty. They were stopped in the left southbound lane at the intersection of Yonge and Mill St. One vehicle was ahead of them. Ms. Fogarty was focused forward waiting for traffic to clear when Ms. Power yelled asking whether she saw what happened. Ms. Fogarty then saw a woman lying on the road but did not see the collision. Mrs. Horsey was lying on the road parallel to her vehicle with her head pointed toward her vehicle. There were others running to assist so she and Ms. Power decided to stay in the vehicle and call 911.

[32] From the front passenger seat, Ms. Power was facing Ms. Fogarty speaking to her so she was facing the scene of the collision before it happened. Ms. Power saw what she thought was a “shock video”. Then she realized she saw a women fall to the road. She did not see the impact. She saw the vehicle’s front driver’s wheel on top of Mrs. Horsey, saw it drive over her, and then saw Mrs. Horsey lying between the front and back driver’s side wheel. She testified she saw the vehicle stop for a second and then the rear driver’s side wheel rode over the woman. She next saw the vehicle make the right turn onto Yonge St.

[33] Oliver Coughlan was also making a left turn from Yonge St. onto Mill St. He testified he was sitting at the intersection and observed to his left, a woman under the engine of a vehicle. There were no vehicles in front of him. Nothing obstructed his view. The next thing he noticed was that the vehicle that hit the woman was gone and Mrs. Horsey was lying on the road on Mill St. about 3 ft. from the sidewalk. Then he heard shouting from another man who parked just north of the intersection to assist at the scene.

[34] Mr. Coughlan returned to his vehicle to get his coat and placed it under Mrs. Horsey’s head. He comforted her and told her help was on the way. Mrs. Horsey also spoke some words to him telling him her chest was sore. He saw bleeding from her head and a dark tire track across the front of her white blouse. He was shown a photo exhibit of a white blouse with a track mark across the chest and shoulders and he confirmed it was the blouse Mrs. Horsey was wearing. Mr. Coughlan did not see Mr. Bacchus’ vehicle again. He also remained to give a statement to the police.

Mr. Bacchus’ Evidence

The Accident

[35] Mr. Bacchus was age 28 at the time of trial. He had worked for Avanti Security for only two months when he was involved in the accident. His day started off normally. His vehicle was functioning properly. He had no vision, hearing or other health problems that day. He said the roads, weather and visibility were clear.

[36] Mr. Bacchus testified that on May 16, at about 12 p.m., he was travelling at 40 km/hr. as he approached the intersection of Mill St. and Yonge St. in the westbound right lane of Mill St. He testified the light facing him was red and the light was green for the Yonge northbound traffic and pedestrians.

[37] As Mr. Bacchus arrived closer to the intersection, he saw a vehicle travelling northbound on Yonge in the right lane of the southeast intersection. It is agreed that the vehicle Mr. Bacchus saw is the black Porsche driven by Mr. Fox. Like Mr. Fox, Mr. Bacchus testified the Porsche was travelling about 20 – 30 km/hr. as it approached the intersection on a green light. Mr. Bacchus testified he did not observe anyone in the intersection when, as he was looking left, he noticed Mr. Fox proceeding north. Mr. Bacchus said he proceeded halfway into the crosswalk planning to make a right turn.

[38] Mr. Bacchus also testified even when he reached halfway into the crosswalk, and he looked forward and to the right, he saw no one. From this position he again looked left as Mr. Fox was moving into the intersection. Mr. Bacchus stated that he slowed his speed to 10 – 15 km/hr. just before he stopped in the crosswalk. He said that after he checked that traffic was clear in front of him and to his left, he made the right turn.

[39] Mr. Bacchus acknowledged there were no obstructions to his view but maintains he saw nothing of note in the cross walk. He contends he did not see Mrs. Horsey as he was turning. Even though he acknowledged his driver’s side window was open part way, Mr. Bacchus denied hearing a “thud” as the vehicle hit Mrs. Horsey. Nor did he hear the sound of crushing plastic beneath the vehicle as it ran over her body.

[40] Mr. Bacchus also rejected the Crown’s suggestion that he stopped his vehicle on Yonge St. after he turned the corner because he knew he had hit Mrs. Horsey. Mr. Bacchus countered that he stopped, not because he knew he hit someone, but because he heard people yelling and saw another driver get out of his vehicle and cross the street towards him. He said he thought there had been some kind of accident so he continued north on Yonge St. in order to make a U-turn to return to see what people were yelling about.

[41] Mr. Bacchus was also adamant he did not feel the collision nor feel the elevation of the driver’s side and the movement of the steering wheel as the left tires rolled over Mrs. Horsey. Mr. Bacchus countered that it was the right rear side that lifted leading him to believe the right tires had hit and mounted the curb. He said he felt the right side of his vehicle rise. Other than that, Mr. Bacchus described his turn as “just a normal right turn”.

After the Accident

[42] Mr. Bacchus returned to the scene and saw Mrs. Horsey bloodied, lying in the intersection badly injured, with others attending to her. He admitted he did not offer assistance or give his name and address or identify himself as the culprit. He just fled the scene. On cross-examination, after going in a circular route through his thoughts after the accident, he admitted as he was standing at the scene he knew he was responsible for hitting Mrs. Horsey. However, he justified his escape by his need to collect his thoughts and figure out what to do. He said he drove south on Yonge St. and stopped to gather his thoughts in a driveway at an apartment building.

[43] Minutes later, he drove to his place of work ostensibly to get his driver’s license he claimed he had left in his personal vehicle. However, he did not explain the prominence of the license in his mind at a time he knew he had just run down and badly injured an elderly lady. As the dispatcher also testified, Mr. Bacchus returned to the office, saw the dispatcher and left the premises without mentioning the accident.

[44] Mr. Bacchus testified that after he left the office he was intending to return to the scene of the accident, but said he could not because of traffic jams and barriers near the scene.

[45] However, the Crown used the Global Positioning System, or GPS, and the Fleetmatics data in evidence to track Mr. Bacchus’ vehicle’s movements and the route he followed. (These systems will be discussed further below with the evidence of the accident reconstructionist). He pointed out that Mr. Bacchus’ route was not towards the scene but rather away from the scene. Referring to the data, the Crown demonstrated Mr. Bacchus’ vehicle was actually heading in the direction of his next patrol area. The Crown suggested Mr. Bacchus was intending to return to work. Mr. Bacchus denied this but did not to my satisfaction explain why he took the route he did. He certainly was not headed for the police station as he should have.

[46] From the scene of the collision, the dispatcher at Avanti, Khaled Ahmadi, received a call from one of the accident eyewitnesses telling him one of Avanti’s vehicles had hit a pedestrian. At 1:05 p.m., he called Mr. Bacchus and asked him what he knew about the accident. There were two calls, minutes apart, between Mr. Bacchus and Mr. Ahmadi. These calls and other calls were recorded and transcribed and the recordings played in court. Perhaps, Mr. Bacchus, being a new employee, did not know he was being recorded.

[47] In the first call, Mr. Ahmadi asked him if there was anything he would like to say before things went further into the hands of the police. Mr. Bacchus overtly lied to Mr. Ahmadi and said,

“Um honestly I remember kind of skipping the curb” ... “I remember skinning it … I remember somebody yelling at me. I thought they were like, because I kind of cut off a guy.”

[48] When the Crown confronted him with his fabrication, Mr. Bacchus hesitatingly conceded that he should have been honest with Mr. Ahmadi and admitted he knew he had struck an elderly lady. In the second call with Mr. Ahmadi, Mr. Ahmadi told Mr. Bacchus to report to the police. Mr. Bacchus did so but clearly not of his own accord. The police charged him with dangerous driving causing bodily harm, which was later upgraded to dangerous driving causing death, and failure to remain. His driver’s license was seized.

[49] Immediately after he spoke to the police, over another recorded call, Mr. Bacchus spoke to his manager, Shlomo Bursthein. The conversation with Mr. Bursthein reveals other credibility problems for Mr. Bacchus. What he said to Mr. Bursthein significantly undermines the testimony he gave at trial about the accident.

[50] To start with, Mr. Bacchus attempted to minimize his culpability by telling Mr. Bursthein his only charge was failure to remain when he had just been charged with both failure to remain and dangerous driving causing bodily harm. When the Crown questioned him about this Mr. Bacchus testified he just forgot to tell Mr. Bursthein about the dangerous driving charge.

[51] More damaging were his first utterances to Mr. Bursthein about the accident. In response to Mr. Bursthein’s enquiries, Mr. Bacchus said:

“And uh I saw a woman. She was making a, she was crossing the str- she was about to cross the street, or at least she was waiting there … Plus the pedestrian stop sign is up, so nobody’s moving. As I am making the right turn, she walked out in front of the car and um at first I didn’t see her. Um all I felt was the rear wheel bump up, and apparently that was her leg because she fell and then the rear wheel went over her leg. I stopped up the uh road. I saw what happened, I turned back. Went back to the scene. Um she was in shock. She was, she was ba- she was in bad condition. And I’m not going to lie, at point I was kind of panicking, so I sort of, I sort of, left, and then uh came back.”

[52] Crown counsel cross-examined Mr. Bacchus about his statement that he saw Mrs. Horsey before he struck her. He suggested Mr. Bacchus was about to say he saw her as she was crossing the “street”, that when he uttered the sound “str”, that is what he was about to admit. Mr. Bacchus denied that suggestion and stated that he was “just making this up all on the fly.” Mr. Bacchus admitted that by saying the pedestrian stop sign was up when Mrs. Horsey was crossing the street he was attempting to deflect blame onto her. At trial, he ultimately denied the truth of the words he spoke to Mr. Bursthein and insisted he did not see Mrs. Horsey in the crosswalk. Mr. Bacchus testified he would not see a pedestrian in front of him and just intentionally knock them down for no reason.

[53] Mr. Bacchus made an attempt during examination-in-chief to explain his state of mind after the police charged him. He admitted he was being very deceptive with Mr. Bursthein in not admitting the accident was his fault. He further admitted that fear of losing his job was on his mind and that by saying the accident was not entirely his fault he hoped to save his job with the company.

Evidence of Accident Reconstruction Expert

[54] Bohdan Sybydlo testified as an expert in motor vehicle accident reconstruction. He is a retired police officer who had served 40 years with the Toronto Police Services and had been an accident reconstructionist for 21 years. He has been qualified as an expert by other courts. The defense did not challenge his expertise. I qualified Mr. Sybydlo as an expert in motor vehicle accident reconstruction.

[55] Mr. Sybydlo received the information about the accident on May 16, 2013 and visited the scene that afternoon. At the scene he observed that the road and visibility were clear. There were no tire skid marks on the road. He confirmed the speed limit was 60 km/hr. There were no obstructions at the northeast corner of Yonge and Mill St.

[56] Mr. Sybydlo prepared a report with a summary of his observations, graphic representations, calculations and photographs of the scene to illustrate his opinion. He also inspected Mr. Bacchus’ vehicle at the police division later that day where he took photographs of it. His partner further inspected the vehicle on July 11, 2013 from a hoist at the Centre for Forensic Sciences. The vehicle was found to have no mechanical defects that could have contributed to the collision.

[57] The vehicle was covered with a film of dirt. Mr. Sybydlo testified that certain marks on the vehicle were “fresh”, meaning they occurred on May 16. He explained that a cleaning of the dirt is indicative of contact with an area of the vehicle by an object.

[58] Mr. Sybydlo noted that on the hood, in the centre, more towards the left driver’s side, there was a “fresh” cleaning of dirt. This evidence tends to confirm Mr. Fox’s evidence that he saw Mrs. Horsey collapse over the left centre of the hood with impact and supports other witnesses who saw the left centre front of the vehicle strike her. There was also a cleaning on the bumper and to the lower front of the bumper fascia more to the left of centre. There was further cleaning on the front licence plate cover. Also, the left front grill was loose and damaged.

[59] Mr. Sybydlo testified about his partner’s observations underneath the vehicle. There was cleaning to the left side of the sub-frame and cleaning on the left side of the transmission pan. As well, the front plastic undercarriage cover to the left side was cracked and pushed up and its four pins were missing. The fresh damage beneath the left side of the vehicle is consistent with the evidence of witnesses who saw Mrs. Horsey under the driver’s side after the left front wheel rolled over her. Mr. Fox observed Mrs. Horsey’s leg get caught by something under the vehicle, consistent with the damage under the vehicle.

[60] There was also what Mr. Sybydlo determined to be pre-existing damage to the front licence plate cover, to the right bumper and bumper fascia, and to the right rear quarter panel.

[61] Mr. Sybydlo also gave evidence about the collision and the point of impact. On the pavement of the road he examined pools of blood, pieces of Mrs. Horsey’s clothing and strewn personal effects. He also observed a fresh scuff mark on the rear quarter of her right shoe. The blood was situated into the walkway just off the corner of the east curb line of Yonge St. and the south curb line of Mill St.

[62] Mr. Sybydlo also examined a fine black powder scuff mark on the pavement in the crosswalk which he found to have been caused by the shoe scuffing on the pavement. He found that the scuff mark was fresh as it had not been disturbed by traffic or the elements. The scuff mark is significant because it marks the point Mrs. Horsey was struck by the vehicle. The scuff mark was located in the crosswalk about 1.23 metres (about 4 ft.) south of the radial point of the north curb of Mill St. This generally accords with Mr. Crapper’s and Mr. Coughlan’s estimate that Mrs. Horsey was about 3 ft. from the curb when she was struck.

[63] In estimating speeds, locations and distances of Mr. Bacchus’ vehicle and Mrs. Horsey, Mr. Sybydlo reviewed data produced by an electronic application program used by Mr. Bacchus’ employer to track the vehicles in its fleet, a Fleetmatics program which the employer correlates with GPS data. He applied formulae and measures obtained from recognized scientific and empirical studies on trajectories of pedestrians and vehicles involved in road accidents and relied on studies of throw distances in the reconstruction of road accidents. He explained that the faster the speed of the vehicle the greater the throw distance of a body. Mr. Sybydlo also applied the findings of studies he had himself conducted on the travel times of various pedestrians of different ages in Toronto. He also consulted the eyewitness statements.

[64] The height of the vehicle from the ground is .76 metres (or 76 cm) and Mrs. Horsey’s height was 157 cm. According to Mr. Sybydlo, if Mrs. Horsey were standing vertically, the top front of the hood would reach her at the middle of her body. The top half of her body would therefore be visible to the driver through the front windshield if she were standing at the mid-front of the vehicle. This evidence accords with the observations of Mr. Fox and Mr. Crapper that the upper half of her body was above the height of the hood when she was struck.

[65] Mr. Sybydlo concluded − based on the fresh cleaning to the left centre front of the vehicle and on the underside areas at the left centre of the vehicle and, in view of the recent physical damage to the grill and areas underneath the vehicle − that the point of impact was to the left centre of the vehicle directly in front of the driver's side.

[66] Based on her age of over 80 years, Mr. Sybydlo estimated that Mrs. Horsey was travelling about .80 metres/sec. and was in the walkway for about 1.35 seconds when the collision occurred. This is consistent with the eyewitnesses’ evidence about how quickly she was struck after she stepped off the curb into the crosswalk. As noted above, based on the location of the scuff mark, she was struck 1.23 metres south of the north curb. He concluded there was no evidence Mrs. Horsey was dragged by the vehicle. Mr. Sybydlo estimated Mr. Bacchus was travelling at least 15 to 18 km/hr. when the front of the vehicle hit Mrs. Horsey.

[67] Mr. Sybydlo’s opinion based on the evidence he reviewed was that Mr. Bacchus would have seen Mrs. Horsey before he struck her and during the collision. He testified there would have been the distinct sound of a thud with the collision which he said Mr. Bacchus would have heard irrespective of whether his windows were opened or closed. There would also have been the sound of damage to the plastic parts under the vehicle as he passed over the body.

[68] Mr. Sybydlo stated that after Mrs. Horsey was thrown to the ground she would have been out of Mr. Bacchus’ view. However, he testified there would have been a distinct rise in the altitude of the vehicle as the left front and back tires went over Mrs. Horsey’s body, which in his opinion, Mr. Bacchus should have felt. There would have also been a movement of the steering wheel with the rise in altitude since the steering wheel is connected to the front wheels. Mr. Sybydlo described the altitude rise as being akin to a vehicle going over a speed bump. Mr. Fox, who was facing the left side of Mr. Bacchus’ vehicle, and Mr. Bernhardt, who was behind Mr. Bacchus’ vehicle, saw the driver’s side rise up as it passed over Mrs. Horsey.

[69] Mr. Sybydlo concluded when Mr. Bacchus arrived at the red light his vehicle either stopped momentarily or was rolling at a slow speed. This is consistent with eyewitness observations. There were no skid marks to indicate an abrupt stop. He opined that there was nothing mechanical that would have prevented Mr. Bacchus from stopping before he collided with Mrs. Horsey. Mr. Sybydlo also stated there was nothing mechanical that would have precluded braking after he first struck her before he ran over her. In his opinion, the hitting and running over Mrs. Horsey could have been avoided. He gave no opinion as to whether Mr. Bacchus could have stopped after the front wheel rolled over her to prevent the back wheel from doing the same. However, Ms. Power testified she observed Mr. Bacchus’ vehicle stop for a second after the front wheel rolled over her before the back wheel ran over her. Mr. Sybydlo’s ultimate conclusion was that the accident was avoidable.

THE LAW ON DANGEROUS DRIVING

[70] The only question before the court on this offence is whether Mr. Bacchus operated his vehicle in a manner dangerous to the public at the time he struck Mrs. Horsey.

[71] It is trite law that a fundamental principle of criminal law is a crime consists of both a mental and a physical element. The mens rea is the mental element, the person’s awareness that their conduct is criminal and the actus reus, the physical element, is the person’s actual act or conduct. The actus reus and mens rea of the offence of driving in a manner dangerous to the public must be proved beyond a reasonable doubt.

[72] The language in s. 249 provides the framework for determining the actus reus of dangerous driving. The trier of fact must be satisfied from an objective viewpoint that the accused was driving in a manner “dangerous to the public” with regard to all the circumstances. Factors to be considered under s. 249 include “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.”: [R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43, (S.C.C)].

[73] The focus of the enquiry is on the manner of driving at the time of the accident and not on the consequence of the accident.

[74] The mens rea is determined with regard to the totality of the evidence including evidence of an accused’s state of mind. R. v. Beatty established that a modified objective test is applied with the offence of dangerous driving. What this means is that the Crown is not required to prove the accused had a positive state of mind like intent, recklessness or wilful blindness as is the case with other criminal offences.

[75] No doubt dangerous driving would be made out if it can be shown that a driver purposely or intentionally drove towards a person, for instance, by playing dare devil or engaging in other intentionally dangerous conduct. “[T]he subjective mens rea of intentionally creating danger for other users of the highway within the meaning of s. 249 constitutes a ‘marked departure’ from the standard expected of a reasonably prudent driver”: [R. v. Beatty, at para. 47]. Proof of subjective mens rea is clearly sufficient but it is not essential to establish dangerous driving as contemplated by s. 249.

[76] The presence of objective mens rea is determined by scrutinizing the accused’s driving conduct and weighing it against the standard of driving of the normally prudent driver. Determining the objective mens rea then will be a matter of drawing inferences from all the circumstances including the driver’s actual state of mind: [R. v. Beatty, at para. 43].

[77] R. v. Roy brought some clarity to the distinction between the requirements of the civil and criminal standards of proof. To determine whether the appropriate degree of fault to meet a criminal standard has been met requires an enquiry that distinguishes between conduct that should attract criminal blameworthiness and that which meets the civil standard of mere carelessness or negligence. The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment: [R. v. Roy, [2012] S.C.R. 6036, at para. 32, (S.C.C.)].

[78] As the Court explained:

Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, 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 that inference.

[R. v. Roy, at para. 42]

[79] Separating driving conduct that meets the civil standard of negligence from conduct that should attract criminal sanction requires the trier of fact to closely scrutinize the facts. Two further enquiries must be made: (a) In view of all the relevant evidence would a reasonable person have foreseen the risk and taken steps to avoid it, if possible? (b) Was the accused’s failure to avoid the risk and take reasonable steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?:[R. v. Roy, at para. 36].

[80] The basic lessons from R. v. Beatty and R. v. Roy can be briefly summarized as follows:

• The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree requiring the trier of fact to identify how the driver’s conduct went markedly beyond mere carelessness [R. v. Roy, at para. 30].
• In considering whether dangerous driving has been established, the focus must be on the risks created by the accused’s manner of driving, not the consequences [R. v, Beatty, at para. 46].
• Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances [R. v. Roy, at para. 39].
• The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances: [R. v. Beatty, at para. 48].
• The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm, is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity [R. v. Roy, at para. 40].
• Proof that driving was simply dangerous, 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 that inference [R. v. Roy, at para. 42].
• Simple carelessness, like a momentary lapse in attention, to which even the most prudent drivers may occasionally succumb, is generally not criminal [R. v. Beatty, at paras. 34 and 71].

THE PARTIES’ POSITIONS

The Crown

[81] The Crown takes the position Mr. Bacchus was operating his vehicle in a manner that was dangerous to the public when he struck Mrs. Horsey. He argues that Mr. Bacchus’ “manner of driving” at the time of impact involves three collisions with Mrs. Horsey – the first impact when the vehicle struck Mrs. Horsey, the second impact when the front tire rolled over her, and the third impact when the back tire drove over her.

[82] The Crown contends the only reasonable conclusion that can be drawn from all the evidence is that Mr. Bacchus saw Mrs. Horsey both on the sidewalk before she entered the crosswalk, when she was in the intersection, and when he collided with her.

[83] The Crown relies on the eyewitnesses’ observations of Mrs. Horsey on the curb and in the crosswalk and Mr. Bacchus’ admissions to Mr. Bursthein of seeing her at the curb and in the crosswalk. He also depends on Mr. Sybydlo’s evidence that the top half of her body would have been visible to Mr. Bacchus and he would have seen her particularly given Mr. Bacchus’ evidence that he moved his head back and forth in preparation for making the turn. The Crown contends Mr. Bacchus was “driving blind” when he looked to his left and kept his vehicle moving as he prepared to turn right, not paying attention to Mrs. Horsey.

[84] According to the Crown, on these facts Mr. Bacchus was driving in a manner dangerous to the public when he drove forward and hit her.

[85] The Crown further argues that Mr. Bacchus would have felt and heard the impact with the front of the vehicle, and rather than stopping, he continued forward causing the front tire to collide with her and roll over her. The Crown referenced Mr. Sybydlo’s opinion that there was nothing mechanical that prevented Mr. Bacchus from stopping his vehicle before the front tire ran over her.

[86] The Crown takes the position that Mr. Bacchus’ manner of driving was a danger to the public when he failed to stop after the first impact and caused the tires to roll over Mrs. Horsey.

[87] The Crown argues Mr. Bacchus’ failure to stop his vehicle before the first collision when he saw her at the curb and crossing the street and his failure to stop the vehicle before the tires ran over her constitutes a marked departure from the standard of driving of the normally prudent driver. A reasonable person in the position of Mr. Bacchus, according to the Crown, would have been aware of the risk posed by not fully stopping a vehicle when they saw a pedestrian crossing the street on a green light and would not have undertaken to take the risk of continuing to make the right turn in those circumstances.

The Defence

[88] The defence takes the position Mr. Bacchus’ manner of driving did not reach the standard that should attract criminal sanction.

[89] The defence argues Mr. Bacchus did not see Mrs. Horsey at the curb or on the crosswalk. Nor did he see her when he struck her. The collision occurred very quickly while Mr. Bacchus was checking on traffic to his left as he sought an opportunity to make the right turn.

[90] The defence’s view is the accident resulted from a momentary lapse of attention on Mr. Bacchus’ part under circumstances where things unfolded very quickly. Mr. Bacchus’ manner of driving at the time of the collision, according to the defence, met the civil standard of mere carelessness or negligence for which a finding of criminal liability would be too harsh. In the view of the defence, Mr. Bacchus is liable at most for civil negligence or for the provincial offence of careless driving as his degree of fault does not reach the level of fault required for the criminal offence of dangerous driving.

FINDINGS ON THE ACCIDENT

Assessment of Crown Witnesses’ Evidence

[91] The evidence overwhelmingly supports a finding Mr. Bacchus struck Mrs. Horsey with the front, left centre of his vehicle. She collided in front of the driver’s side windshield right in front of Mr. Bacchus. I arrive at this finding for the following reasons.

[92] I have no reason to doubt the credibility of the eyewitnesses. There is no evidence they knew Mr. Bacchus or each other. They were unsuspecting witnesses to a shocking and traumatic event. Unlike Mr. Bacchus, they have no interest in the outcome of this trial. I also have no reason to question Mr. Sybydlo’s expertise or his findings. I respect his 21 years’ experience as an accident reconstructionist, his 40 years’ experience as a police officer, and his experience as an expert witness.

[93] All eyewitnesses who saw the collision, except Mr. Crapper, spoke of the centre front, more to the driver’s side, hitting her. Mr. Crapper was one of the drivers in the southbound left lane on Yonge St. waiting to turn left onto Mill St. He said he believed the impact was more to the front passenger’s side. It is reasonably the case that he was mistaken about this, likely owing to how quickly and shockingly the collision occurred. His evidence is not only inconsistent with the other eyewitnesses it also does not accord with the expert evidence. Mr. Sybydlo found fresh cleaning and damage to areas on the left centre front exterior of the vehicle and to parts on that side of the vehicle on its underside. The damage to the right front was pre-existing. In light of the other evidence, Mr. Crapper’s evidence does not leave me with a reasonable doubt as to Mr. Bacchus’ guilt.

[94] The evidence also supports that Mr. Bacchus was travelling at a normal speed when he approached the intersection and turned right, according to eyewitness evidence at an average of speed of about 10 – 20 km. Mr. Bacchus does not dispute the evidence that he was travelling at about that speed at the intersection and when he made the turn. The evidence from the eyewitnesses and the expert was that Mr. Bacchus either stopped very briefly or rolled slowly forward before he hit Mrs. Horsey.

[95] There is also expert evidence, which I accept, that given the slow speed of Mr. Bacchus’ vehicle at the time of the collision he could have stopped the vehicle before it struck Mrs. Horsey and could have stopped before he ran over her. I accept Mr. Sybydlo’s opinion, supported by Mr. Crapper’s observations, that the accident was avoidable.

[96] The evidence is also consistent with Mrs. Horsey being upright when she was struck and with her being visible to Mr. Bacchus.

[97] Mr. Crapper saw her step off the curb and get hit while walking in front of Mr. Bacchus’ vehicle. Mr. Fox saw Mrs. Horsey standing in front of the vehicle waving her arms just before she was struck. Mr. Sybydlo testified that given the height of the hood at 76 cm from the ground and Mrs. Horsey’s height at 157 cm, if she were standing upright, the top half of her body would be visible through the driver’s side windshield.

[98] I am also persuaded that Mr. Bacchus would have heard the sound of Mrs. Horsey colliding with the vehicle and making contact with its underside.

[99] Mr. Dover, the pedestrian walking south on Yonge St. at a distance much further from the scene than Mr. Bacchus, heard a “thud”. Furthermore, Mr. Bacchus’ driver’s side window was open. As well, Mr. Sybydlo testified there is a characteristic “thud” sound when a human body collides with a vehicle and that the sound would be sufficiently loud for a driver to hear it whether the vehicle’s windows are opened or closed. Mr. Sybydlo also opined that Mr. Bacchus would have heard the crushing of the plastic undercarriage cover beneath the vehicle.

[100] Common sense also supports this finding. It is hard to imagine a driver in Mr. Bacchus’ circumstance not hearing the noise from the collision.

[101] The evidence also supports a finding that Mr. Bacchus would have felt the driver’s side of the vehicle rise and the steering wheel move as the front driver’s side wheel rolled over Mrs. Horsey.

[102] Mr. Fox, who was facing the driver’s side of Mr. Bacchus’ vehicle from across the intersection, and Mr. Bernhardt, from the vehicle behind Mr. Bacchus, both observed the vehicle drive over Mrs. Horsey and saw a distinct rise of the vehicle on the driver’s side. Mr. Sybydlo confirmed that such a change in altitude would occur and would have felt to the driver like riding over a speed bump. He opined that Mr. Bacchus would have felt the change in altitude.

[103] Common sense also supports this finding. It is a reasonable conclusion that a driver would feel their vehicle travel over an object as dense as a human body. Drivers feel their vehicles drive over a small animals and objects.

[104] I also accept that the traffic light facing Mr. Bacchus was red and facing Mrs. Horsey was green when Mr. Bacchus got to the intersection. The eyewitnesses attested to that fact. So did Mr. Bacchus at trial although right after the accident, as we will see, he told Mr. Bursthein something different.

Assessment of Mr. Bacchus’ Evidence

[105] Mr. Bacchus gave contradictory versions of the accident which obviously pose a serious challenge to his credibility. He as much as admitted he gave versions of facts that suited his interests at different times.

[106] In his conversations with Mr. Ahmadi, as evidenced from hearing the recordings, Mr. Bacchus spoke very nonchalantly and matter-of-factly as he tried to first pretend there was no accident by not mentioning anything about it. He then tried to mislead Mr. Ahmadi into believing he thought he had only hit the curb with his right tire. We know from his testimony at trial that he knew when he was talking to Mr. Ahmadi that he had struck and badly injured Mrs. Horsey. Given my other findings, I do not believe that he hit the curb or that he even thought he had hit the curb.

[107] Then when Mr. Bacchus was speaking to his boss, Mr. Bursthein, he took a different approach. He admitted at trial that when he spoke to Mr. Bursthein he had only his own self-interest in mind, fear of losing his newly acquired job. His voice sounded noticeably more nervous and strained in this conversation. He had just been charged, his license seized and his job was in jeopardy. Rather than expressing sympathy or fear for Mrs. Horsey’s wellbeing, he attempted to share the blame with her by saying she walked into the crosswalk in front of him on a red light. He expressed absolutely no concern for the elderly woman he had just left bloodied on the road. It appears Mr. Bacchus just did not care. This astonished the court.

[108] Mr. Bacchus was a notoriously untrustworthy and unreliable witness who, absorbed by his own self-interest at any given time, unreservedly changed his account of the accident. The way I treated Mr. Bacchus’ discordant accounts is to see them in the context of all the other evidence, the evidence of the Crown eyewitnesses and the expert. In doing this, I am drawn to the conclusion that Mr. Bacchus told the truth in only some aspects of his trial testimony and in only some aspects of his telephone conversation with Mr. Bursthein. I find truth in the relevant areas of Mr. Bacchus’ testimony only insofar as there is consistency with other evidence.

[109] To start, I believe based on eyewitnesses’ evidence, and Mr. Bacchus’ own testimony at trial, that the light facing him was red when he arrived at the intersection and the light facing Mrs. Horsey was green, contrary to what he told Mr. Bursthein.

[110] Mr. Bacchus also attempted, in the phone call with Mr. Bursthein, to retract his words that indicated he saw Mrs. Horsey crossing the street, to suggest he only saw her on the corner waiting to cross the street. However, I believe he briefly observed Mrs. Horsey in both locations. I find Mr. Bacchus saw Mrs. Horsey both on the sidewalk before she entered the crosswalk and in the crosswalk in front of his vehicle immediately before and during the collision, if only briefly.

[111] I come to that conclusion based on the following statements: “And uh I saw a woman. She was making a, she was crossing the str- she was about to cross the street, or at least she was waiting there” and … “As I am making the right turn, she walked out in front of the car and um at first I didn’t see her”. He went back and forth in describing his observations of where he saw Mrs. Horsey, but I believe, in the context of all the other evidence that I accept, that he saw her in each location he mentioned.

[112] Mr. Bacchus told Mr. Bursthein at first he did not see Mrs. Horsey. However, I have difficulty accepting that as true given my findings that he saw her on the corner, saw her crossing the street and saw her walk in front of his car. As well, Mr. Fox said, and I have no reason to doubt his evidence, that Mrs. Horsey was waving her arms directly in front of Mr. Bacchus before the collision.

[113] Other words to Mr. Bursthein also tend to show he was aware of much more than he admitted at trial. After he told Mr. Bursthein the rear wheel went over her leg, he acknowledged that he knew “she fell”. He then made the further statement, “I saw what happened. I turned back.” I would be hard pressed to draw any other conclusion from those words.

[114] I also considered Mr. Bacchus’ testimony that he looked left and right several times when checking for traffic before he turned right. It stands to reason his eyes had to pass over Mrs. Horsey, and given Mrs. Horsey’s height and the height of the trunk, the upper half of her body would have been visible directly in front of him as she waved her arms.

[115] Mr. Bacchus’ statement to Mr. Burshtein contains both inculpatory and exculpatory elements. I find the two elements that tend to be exculpatory are his assertions that Mrs. Horsey walked into the street on a red light and that he did not see her at first. The other elements tend to be more incriminatory. The Supreme Court of Canada addressed the treatment of out-of-court statements by accused which contain mixed inculpatory and exculpatory elements. The Court held an exculpatory statement need only raise a reasonable doubt and the accused is entitled to the benefit of any such doubt: [R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 47, (S.C.C.)]. Further, the trier of fact is entitled to draw an adverse conclusion and not accept the truth of the exculpatory aspects of a mixed statement: [R. v. Rojas, at para.38, as cited from R. v. Aziz, 73 C.R. App R. 359, at p. 485, (H.L.)].

[116] In the context of the totality of the evidence that I accept that is contrary to Mr. Bacchus’ exculpatory statements, I do not accept those statements. I find the exculpatory statements do not raise a reasonable doubt in my mind as to his guilt.

[117] Perhaps, Mr. Bacchus’ over-attentiveness to the Porsche entering the intersection from the left, and his dangerous over-eagerness to surpass the Porsche to make the right turn, made him ignore Mrs. Horsey, to her absolute peril. Maybe as he was doing this, as Mr. Korn suggested, he was talking on a cellphone while he was negotiating this very precarious manoeuvre. I find those factors would not reduce Mr. Bacchus’ culpability but would rather enhance it.

[118] Mr. Bacchus did not mention to Mr. Bursthein or Mr. Ahmadi hearing the “thud” caused by the collision and, at trial, denied hearing it. I believe on all the evidence, however, that he heard his vehicle strike Mrs. Horsey. He did not tell Mr. Bursthein what part of his vehicle struck Mrs. Horsey. However, the evidence is irrefutable that Mr. Bacchus’ vehicle collided with Mrs. Horsey at the centre front, more to the driver’s side, right in front of Mr. Bacchus. Under these circumstances it would be absurd to accept he did not hear the collision especially when the driver’s side window was opened. In cases such as this the words of Major, J. as then was, come to mind:

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

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

[119] Mr. Bacchus did not hit a bumble bee or a June bug. He struck a full-grown human body. It simply defies reason to believe, as Mr. Bacchus insisted at trial, that he at no point saw Mrs. Horsey before or during the collision and did not hear the collision.

[120] Further, despite Mr. Bacchus’ denial at trial, I also believe what he told Mr. Bursthein was true, that he felt his back tire rise when his vehicle struck what he thought was Mrs. Horsey’s leg. This is consistent with the witnesses who saw the vehicle rise and consistent with Mr. Sybydlo’s opinion that the vehicle would change altitudes and Mr. Bacchus would have felt this.

[121] Mr. Bacchus stated that he had no vision, hearing or other health issues that day. He agreed with the Crown witnesses that there was nothing unusual about the traffic. There were no obstructions. It was a sunny, spring day and visibility and the roads were clear.

Summary of Findings

[122] In summary, I find the following facts:

• that on May 16, at about 12:30 p.m., the time of the accident, traffic was normal, the roads and weather were clear and Mr. Bacchus’ vehicle had no mechanical defects;
• that Mr. Bacchus had no health, vision, or hearing problems that day;
• that when Mr. Bacchus arrived at the intersection, the light facing him was red and Mrs. Horsey was facing a green light;
• that he was travelling from 15 – 20 km when he reached the corner;
• that he stopped very briefly or was rolling slowly forward just before impact and continued at 15 – 20 km as he turned the corner;
• that Mr. Bacchus saw Mrs. Horsey on the curb before she walked into the crosswalk;
• that Mrs. Horsey was walking very slowly, at about .80 metres/sec., into the crosswalk and was in the crosswalk about 1.35 seconds before impact;
• that Mrs. Horsey was waving her arms before impact and collapsed over the hood with impact;
• that Mrs. Horsey was standing upright in front of the driver’s side of the vehicle before the collision and that the top half of her body would be visible through the driver’s side windshield;
• that Mr. Bacchus looked forward and to his left and right several times before he turned the corner;
• that Mr. Bacchus briefly saw Mrs. Horsey in front of his vehicle immediately before and at the time of impact;
• that the centre of the vehicle more to the driver’s side struck Mrs. Horsey;
• that Mrs. Horsey was struck and fell about 1.23 metres south of the north curb of Mill St.
• that Mr. Bacchus could have stopped before the front of his vehicle struck Mrs. Horsey;
• that the front and back driver’s side tires rolled over Mrs. Horsey;
• that Mr. Bacchus could have stopped the vehicle after the collision before he ran over her;
• that the vehicle changed altitude and the steering wheel moved as the tires rolled over her and Mr. Bacchus would have felt this;
• that there was a “thud” sound and a sound of plastic cracking beneath the vehicle with the collision and Mr. Bacchus would have heard this particularly since his window was opened;
• there were no tire skid marks found on the road at the scene of the accident; and
• that the accident was avoidable.

ANALYSIS

[123] An assessment of whether the manner of driving presents a danger to the public requires a close examination of the factual context. Section 249 requires the trier of fact to consider “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.” Determinations under s. 249 are very much fact-driven, based on the particular facts of the case.

[124] The Crown must establish the presence of the mens rea and actus reus beyond a reasonable doubt.

[125] I must say I find how Mr. Bacchus conducted himself behind the wheel very disconcerting and hard to comprehend. But I pause to make this observation. It is decidedly difficult for anyone to unravel the complex inner workings of the human mind when notionally contemplating plotting a person’s thinking along a spectrum with normalcy on one end and sociopathy at its outer reaches. Nor does the law expect this type of precision of triers of fact. Their task is much less ambitious.

[126] The trier’s task in determining the objective mens rea for dangerous driving is to carefully scrutinize the manner of driving at the time of the collision and weigh it against the standard of driving of the normally prudent driver by drawing inferences from all the circumstances including the driver’s actual state of mind. In a similar vein, the actus reus, of the manner of driving, must be determined in the totality of the factual context of the collision: [R. v. Beatty, at para. 43].

[127] Traffic was normal and the roads and the weather clear. There were no obstructions on the corner.

[128] I found that Mr. Bacchus would have reasonably seen Mrs. Horsey on the curb and in front of his vehicle before and during the collision, if only briefly. I accepted the expert’s and eyewitnesses’ evidence that, despite his strong denials, Mr. Bacchus could have stopped his vehicle before he struck her. There was no mechanical reason preventing him from doing this. I also accepted the expert opinion that at Mr. Bacchus’ slow speed he could have stopped his vehicle after he struck her and avoided running over her. There was also no mechanical reason preventing him from doing this.

[129] There is no evidence whether Mr. Bacchus could have stopped his vehicle before the back wheel rolled over Mrs. Horsey. But I do not think a finding in this area is essential to determining dangerous driving under the circumstances of this case.

[130] I also found Mr. Bacchus would have heard the collision and the damage to the underside of the vehicle and would have felt the vehicle change altitudes and the steering wheel move as he ran over her. But again, even with this, rather than stopping, he just maintained his speed and drove smoothly around the corner and up Yonge St., much to the shock of onlookers.

[131] While I can say with little hesitation that Mr. Bacchus’ driving conduct immediately before and during the impacts with Mrs. Horsey fell considerably below the practice of a conscientious and prudent driver, I do not find the evidence goes so far as to show Mr. Bacchus maliciously intended to hit Mrs. Horsey or that he set out to hit her on purpose. However, I do think a fair conclusion can be drawn that Mr. Bacchus demonstrated driving conduct that considerably exceeded simple negligence, and moved into the realm of patent recklessness.

[132] Determining the actus reus in this case presents an interesting twist. Mr. Bacchus’ manner of driving, in the sense of his speed and control over the vehicle, would not, outside of the factual context, normally be regarded as a danger to the public. He maintained an appropriately slow and even speed as he approached and turned the corner. Eyewitnesses remarked there was nothing out of the ordinary about how he was driving.

[133] I think in considering what constitutes driving in a manner dangerous to the public in situations like the case at-hand, a distinction can be drawn between driving that is inherently dangerous and driving that is not inherently dangerous. That is, there are certain types of driving that would be considered dangerous in most any public roadway context, such as excessive speed, erratic driving, running traffic stops and mounting pedestrian sidewalks. It is not difficult to find this type of driving in any context to be both inherently dangerous and, in the appropriate context, a danger to the public.

[134] The same is not true of a manner of driving that is compliant with the law − at a consistent speed and within the proper speed level for the circumstances. This type of driving is not inherently dangerous. On the face of things, this describes Mr. Bacchus’ driving. He was driving at an appropriately slow speed as he approached and arrived at intersection to make a right turn. He turned the corner at an even and slow speed.

[135] It is therefore arguable that Mr. Bacchus’ driving in itself would not be considered a dangerous manner of driving. However, as is required in determining the actus reus, Mr. Bacchus’ driving cannot be considered outside of the factual context of the collision. The driving cannot be seen outside the framework of his encounter with Mrs. Horsey. For it is the details of the encounter with Mrs. Horsey that are critical to determining whether Mr. Bacchus’ conduct moved beyond mere negligence or carelessness to conduct that was criminally dangerous.

[136] In the end, the facts compel me beyond a reasonable doubt to the conclusion that Mr. Bacchus’ otherwise safe driving became a danger to Mrs. Horsey, as it would have been to any other member of the public in Mrs. Horsey’s place, in the way he encountered her in the crosswalk. Seeing Mrs. Horsey, even briefly, on the corner and in the crosswalk on a green light, and failing to stop, seeing and feeling the impact of the collision and continuing to drive and roll over her when he could have stopped, and then continuing slowly around the corner like nothing had happened, I find, constitutes a marked departure from the standard of care that a reasonable person would observe in the circumstances: [R. v. Roy, at para. 40].

[137] But for Mr. Bacchus’ reckless disregard for Mrs. Horsey’s safety, he could have avoided the accident and spared her life.

[138] The conclusion that arises from these facts is that a reasonable person in Mr. Bacchus’ position would have been aware of the risk posed by seeing Mrs. Horsey in the crosswalk and failing to stop and would not have taken the risk of going on to execute the right turn. A reasonable driver would have stopped and avoided the accident: [R. v. Roy, at para. 40]. Nothing in the facts raises a reasonable doubt in my mind about this.

CONCLUSION

[139] In the result, I find the degree of Mr. Bacchus’ lack of care sufficient to merit criminal punishment: [R. v. Beatty, at para. 48].

[140] I recognize that Mr. Bacchus’ driving may be regarded as being somewhat close to the ill-defined line that separates negligence from criminal conduct. But I find, on all the facts before me, that nothing raises a reasonable doubt that Mr. Bacchus’ driving crossed over the boundary into the realm of criminality.

[141] Again, Mr. Bacchus saw Mrs. Horsey on the sidewalk and when she entered the crosswalk on a green light and she was walking very slowly. She even waved her arms directly in front of him before he struck her. He looked left as he should have when planning to turn right on a red light. As he swiveled his head back and forth he would reasonably have moved his head to the front as it moved left and right, passing his eyes over where Mrs. Horsey would have been. This is common sense.

[142] This is not a case of a pedestrian suddenly darting in front of an unsuspecting driver. In fact, Mrs. Horsey conducted herself in a manner Mr. Bacchus should reasonably have anticipated for a pedestrian who he first saw standing on the sidewalk at the curb and then walking slowly into the crosswalk on a green light.

[143] I am satisfied this set of facts demonstrates Mr. Bacchus’ degree of care fell considerably below the civil standard that attaches to a transitory lapse in awareness or attention.

[144] I find the Crown has established the mens rea and actus reus of the offence beyond a reasonable doubt. The totality of the facts do not raise a reasonable doubt of Mr. Bacchus’ guilt of dangerous driving causing death contrary to s. 249(1)(a) and s. 249(4) of the Criminal Code .

FAILURE TO REMAIN

[145] With respect to failure to remain under s. 252(1.3)(b), Mr. Bacchus does not dispute involvement in an accident while he had the care and control of the vehicle knowing that bodily harm had been caused to Mrs. Horsey. What he does dispute is that he was reckless as to whether Mrs. Horsey’s death would result from the bodily harm he caused to her.

[146] After Mr. Bacchus initially left the scene of the accident, he returned briefly and observed Mrs. Horsey lying bloodied on the road after being ravaged by his vehicle. Mr. Bacchus was fully aware he was at fault for her dire state. Before emergency personnel arrived several people rushed to her aid to comfort her and to reassure her help was on the way. Mr. Bacchus remained at the scene only momentarily. Before the emergency crew and police arrived, he quickly fled the scene. Mr. Bacchus drove away knowing he was the cause of Mrs. Horsey’s downfall, not caring about her fate.

[147] Once again, Mr. Bacchus had only his own self-interest in mind. He said he panicked. He had to get his thoughts together. He had to figure out what to do. It apparently never crossed Mr. Bacchus’ mind that what he was morally and legally obligated to do was to offer assistance to Mrs. Horsey and stay around to report what he did to the police, to take responsibility for his dreadful deed. Instead, he immediately began contemplating how he could escape responsibility for what he had done. We saw this motivation in action about a half hour later in his conversations with Mr. Ahmadi and his subsequent conversation with Mr. Bursthein in which he fabricated different versions of what happened, trying to diminish his culpability.

[148] Mr. Bacchus’ capacity to surprise the court seemed endless. Yet again, he astounded the court when he posited that he was not reckless as to her wellbeing when he fled because others were attending to her. He was the one at fault and he chose to run away. Mr. Bacchus had the sheer audacity to again assert his own self-interest when he looked to the court to permit him to benefit from the goodwill and compassion of the people who selflessly rushed to Mrs. Horsey’s aid. He sought to use the benevolence of others to erase his culpability for the offence with the obvious hope of securing a not guilty verdict for himself.

[149] There is no other finding but that Mr. Bacchus was reckless as to whether Mrs. Horsey’s death would result from the bodily harm he had caused. The Crown has satisfied me beyond a reasonable doubt of Mr. Bacchus’ guilt of failure to remain at the scene of an accident contrary to s. 252(1.3)(b) of the Criminal Code.

FINAL COMMENTS

[150] Mrs. Horsey’s family attended every day of the trial. The painfulness of that experience was unmistakable. Their sobs were audible and their pained facial expressions visible as one after another of the eyewitnesses told of how they comforted Mrs. Horsey and recounted her last words. It must have been at the same time heartening and sad to know that at her senior age of 90 years, their beloved Marr Horsey had the vitality of spirit to regain consciousness and speak after such a dreadful assault on her physical being.

[151] A cruel irony here is that Mrs. Horsey had the courage at her senior age to walk alone without a cane or walker that sunny day on Toronto’s main street only to meet a dark and tragic end at the hands of a cowardly young man. What is also strikingly sad is that we expect a loved one who has survived a long nine decades in life to privately and peacefully fade in death and not to depart in the throes of a tragic public drama.

[152] I make these final comments both to acknowledge the family’s grievous loss and to set the background for a further observation about Mr. Bacchus.

[153] Ever conscious of the evidence against him, Mr. Bacchus admitted from the stand in front of the family to causing Mrs. Horsey’s death. So, Mr. Bacchus did not come to court claiming complete innocence. An expression of sorrow would have cost him nothing. Instead, Mr. Bacchus lacked the common humanity to be apologetic. He heard the family’s painful sobs, saw their sad faces, and displayed absolutely no remorse or regret for being the cause of that pain.

[154] Mr. Bacchus’ aloof and glib manner on the stand belied his responsibility for ending a human life. Again, and not surprisingly, Mr. Bacchus’ attention from the witness box was focused entirely on spinning more exculpatory fabrications. To the court’s utter chagrin during this trial, this callous attitude was a common theme with Mr. Bacchus. Experiencing this must have felt like a stake through the heart of the family. His cold indifference certainly left a chilling effect on this court.

VERDICT

[155] For the foregoing reasons, I am satisfied the Crown has proven Rasheed Daniel Bacchus’s guilt beyond a reasonable doubt on both counts on the indictment.

[156] I therefore find Rasheed Daniel Bacchus guilty on counts 1 and 2 on the indictment and convictions will be entered accordingly.

B.A. Allen J.

Released: June 19, 2015

CITATION: R. v. Daniel Rasheed Bacchus, 2015 ONSC 3216

COURT FILE NO.: 14-40000400

DATE: 20150619

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Daniel Rasheed Bacchus

Accused

REASONS FOR JUDGMENT

B.A. Allen J.

Released: June 19, 2015