CITATION: R. v. McWatters, 2016 ONSC 1477

COURT FILE NO.: CRIMJ (P) 326/14

DATE: 20160302

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Sean Doyle, for the Crown

• and -

RONALD MCWATTERS

Michael Morse, for the accused

HEARD: December 14, 15, 16, 17, 2015

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

[1] As a result of a set of facts which occurred on September 16, 2013, Mr. McWatters, the accused, was originally charged with 22 criminal offences. At the request of the Crown, counts 17, 18, 19, 20, 21 and 22 have been stayed.

[2] The accused remains charged with:

1. One count of criminal negligence causing death, contrary to section 220(b) of the Criminal Code of Canada;

2. One count of failing to remain at the scene of an accident with another motor vehicle, contrary to section 252(1.3) of the Code;

3. One count of possession of a motor vehicle of a value exceeding $5,000.00 knowing it to have been obtained by the commission of an offence, contrary to section 354(1)(a) of the Code;

4. One count of possession of a quantity of items of a value exceeding $5,000.00 knowing them to have been obtained by the commission of an offence, contrary to section 354(1)(a) of the Code; and

5. Eleven counts of operating a motor vehicle while disqualified, contrary to section 259(4) of the Code.

[3] It is alleged by the Crown that on September 16, 2013, the accused was operating a stolen black Ford F150 pickup truck which was transporting 18 empty stolen beer kegs. In an effort to avoid the police, it is alleged that the accused drove the truck, at a high rate of speed, against a red traffic light, through the intersection of Clark Boulevard and Bramalea Road, in the City of Brampton, and in doing so struck a burgundy Ford minivan, gravely injuring the driver, George Knowles, who later succumbed to his injuries.

[4] Filed as Exhibit 1 is an agreed statement of facts. There is no issue that the accident occurred and caused the death of Mr. Knowles. The truck had been stolen and in the cargo area were 18 stolen empty beer kegs.

[5] At the date of the collision the accused was subject to 11 driving prohibitions.

[6] There is also agreement as to the information obtained from the truck’s data recorder, “the black box”, in regards to the speed the truck was travelling in the seconds preceding the collision.

[7] It is agreed that the utterances made by the accused before his arrest were made voluntarily.

[8] It is also agreed that the speed limit on Clark Boulevard from its intersection with Dixie Road to its intersection with Bramalea Road is 50 kph and that the speed limit on Dixie Road and on Queen Street where Officer Simmonds observed a black pickup truck is 60 kph.

THE EVIDENCE

Constable Daniel Simmonds

[9] This witness testified at the trial on two occasions.

[10] Constable Simmonds is a member of the Peel Regional Police Force and on September 16, 2013, at 10:58 am was parked across from a liquor store at the Bramalea City Centre. He was in uniform and operating what was referred to as a “ghost car”, an unmarked police car with the exception of faint police markings.

[11] On that day Constable Simmons was an acting Sergeant and had with him roadside alcohol testing equipment. He had backed in to a parking spot, directly across from the entrance to the liquor store, to observe liquor store customers, looking for evidence of impairment.

[12] The officer initially testified that at 10:58 am a black Ford F150 pickup truck backed into a parking spot on the opposite side of the lot adjacent to the liquor store. The vehicles were separated by 20-30 metres. The pickup truck had no tint on the front windshield.

[13] Officer Simmonds testified that the pickup truck was operated by a male white driver who was alone in the pickup truck. He testified the driver was staring in his direction and never exited the vehicle.

[14] After 20-30 seconds the driver of the pickup truck pulled out of the parking spot and drove directly towards Officer Simmonds and then turned left, to travel in an easterly direction and proceeded through the parking lot.

[15] Officer Simmonds testified that he delayed following the truck to allow it to reach a public roadway where he would have preferred to stop the truck.

[16] While the officer for a short period of time lost sight of the black pickup truck he reacquired the truck westbound on Clark Boulevard, travelling at a high rate of speed, estimated to be 70-80 kph.

[17] The black pickup truck then turned right on to Dixie Road to travel northbound. By the time the officer arrived at the Dixie Road intersection, the pickup truck was further north on Dixie Road and was still driving at a high rate of speed. The officer made the turn onto Dixie and accelerated to 100 kph in an attempt to catch up to the pickup truck.

[18] The black pickup truck was observed turning right on to Queen Street from Dixie Road to travel eastbound. The officer testified that when he reached the Queen Street intersection the pickup truck was turning into a driveway for the Bramalea City Centre. The officer travelled eastbound on Queen Street but by the time he reached the same mall entrance, he had lost sight of the pickup truck.

[19] The officer drove his car around the area and through the mall in an attempt to reacquire the pickup truck, but was unsuccessful. The officer testified that after a minute or so he heard a radio message from Officer Dhillon advising of a motor vehicle accident at the intersection of Bramalea Road and Clark Boulevard. Officer Simmonds responded and asked if a black pickup truck was involved in the accident. Upon receiving an affirmative answer Officer Simmonds proceeded to the accident scene, arriving at 11:02 am.

[20] The officer described the scene as chaotic and observed significant damage. Upon his arrival the officer heard over the radio that one person was in custody. The officer then became involved in assisting victims and co-ordinating the scene.

[21] Exhibit 3 was identified by the officer and contained four pictures of the accident scene. A black pickup truck was in each of the pictures. On the back of the truck is observed a “cap” which Officer Simmonds testified was the same as the one he noted on the black pickup truck he observed in the mall.

[22] The officer, when on scene, observed Officer Dhillon escort the accused back to his police cruiser.

[23] On cross-examination Officer Simmonds testified that when he arrived at the scene he observed that numerous cars were involved in the collision and radioed for a minimum of three ambulances. He stayed with Mr. Knowles until the fire department arrived.

[24] He agreed on cross-examination that he had a lot of duties when on the scene of the accident, including clearing tow trucks, traffic and pedestrians.

[25] Upon the arrival of the Duty Inspector, Officer Simmonds was instructed to return to his vehicle and wait for further instructions and to learn whether the SIU would be involved. The officer was later driven to 21 Division and taken to what the officer referred to as a quiet area. He spoke to his police association representative and to a lawyer. While waiting in the room he continued to complete his notes.

[26] Officer Simmonds testified that on September 17, 2013, he gave a statement to two investigators from the Special Investigations Unit (“SIU”).

[27] On cross-examination the officer agreed that at the preliminary hearing he testified that at the liquor store the pickup truck left a couple of seconds after arriving and parking. He stated that he did not notice if the side windows of the pickup truck were tinted.

[28] The officer was questioned as to his ability to estimate speeds and testified that as part of his training in the use of speed radar he had to estimate speeds while he was standing still.

[29] The officer was asked why when attempting to follow the pickup truck he did not activate his lights and answered that he was never close enough to attempt a traffic stop. He testified he received the radio transmission, advising of the collision at 11:01 am and could not recall if a description of the alleged driver was given during the transmission.

[30] Officer Simmonds was recalled by the Crown to comment on a surveillance video recording (Exhibit 16) made by a security camera at the mall. The recording shows the officer’s police cruiser entering the relevant area of the parking lot and backing into a parking spot across from the LCBO building.

[31] The video then shows the black pickup truck enter the lot and make a wide turn in the direction of Officer Simmonds’ unmarked police cruiser. The pickup truck then straightens out and perhaps slows but does not appear to stop. It then left the parking lot and a short time thereafter, the police cruiser pulled out to follow.

[32] Clearly the officer was incorrect when he initially testified that the truck backed into a parking spot facing the police car and remained there for a period of time before pulling out.

[33] The officer was asked about this discrepancy and testified to the effect that he may have remembered the slowing of the truck as the act of parking but restated that he made eye contact with the driver of the pickup truck.

[34] He could not really explain his earlier testimony when he testified that he saw the driver of the pickup truck grab the shift lever and shift the vehicle into drive (to pull out of the parking space). He agreed that he could not have seen such a movement.

Officer Gulab Dhillon

[35] On September 16, 2013 Officer Dhillon was a Peel Regional police officer and on that day was an acting sergeant, in a supervisory capacity, in uniform and operating a marked police cruiser. He testified at the trial on two occasions.

[36] Officer Dhillon was on regular patrol and just before 11:02 am entered the southeast entrance of the Bramalea City Centre. He turned left on the Centre roadway to do a loop around the mall. He immediately observed a vehicle coming eastbound towards him and testified that the vehicle immediately got his attention. He described the vehicle as a black Ford F150 pickup truck with a black cap on the back.

[37] Officer Dhillon testified that the road he was on was a private road, part of the mall property. The average speed on the roadway is 25-40 kph and testified that he estimated the trucks speed to be 70-80 kph. The officer testified that he observed the truck bobbing up and down as it was going over bumps.

[38] As the truck came towards the officer, he heard what he described as a scrape and he initially thought the truck’s undercarriage had bottomed out but then, while he couldn’t be certain, believed it was an attachment on the front bumper of the truck that scraped the asphalt.

[39] When Officer Dhillon first observed the truck he estimated it was 30 metres away from him. He was unable to determine how many people were in the truck or what any occupant looked like, if any.

[40] Officer Dhillon determined that he had to investigate the vehicle because of what he observed. After the truck passed him the officer did a three point turn. The officer estimated it took him less than 10 seconds to complete the turn.

[41] As the officer approached a stop sign at an intersection of the driveway which would lead to Clark Boulevard, he did not immediately observe the truck but shortly thereafter saw it travelling eastbound on Clark, approaching the intersection of Central Park Drive. Clark Boulevard has two lanes for each direction and the truck was observed in the passing lane and travelling at, in the officer’s estimation, 70-80 kph.

[42] Officer Dhillon turned onto the driveway and approached the intersection with Clark and the traffic signal facing him was red. A car was already in the left turn lane so the officer activated his lights and when there was a gap in traffic, entered Clark Boulevard from the right turn lane, turned left and travelled eastbound.

[43] By then the truck was observed entering, on a green light the intersection of Clark and Central Park, continuing eastbound. The traffic was described as moderate to light.

[44] The officer accelerated to 80 kph but soon determined he would not be able to catch up to the truck which he observed approaching the intersection with Kings Cross and facing a solid red light. The officer testified the truck made no attempt to brake or reduce speed and went through the intersection, against the red light, at a speed of at least 80 kph.

[45] Officer Dhillon terminated his attempt to catch up to the Ford F150 and testified he pulled his cruiser off on the shoulder of Clark Boulevard, somewhere east of Central Park but west of Kings Cross. His intent was to advise dispatch of what he observed.

[46] As he was gathering his thoughts he observed the truck approaching a red light at the intersection of Clark Boulevard and Bramalea Road without reducing its speed. The officer observed the truck enter the intersection and come into collision with a red Ford Freestar minivan which had been northbound on Bramalea Road. At no time did he see any brake lights activated on the truck.

[47] The officer testified that the collision caused the back of the truck to rise off the ground and that the vehicles spun around and struck other vehicles.

[48] Officer Dhillon testified that he activated his light and drove to the intersection which he said, “took maybe 10 seconds, if that”. At all times his eyes were on the truck and as he entered the intersection he saw a male exit the driver’s door of the truck. The man was described as white, with a black leather jacket and light coloured blue jeans. The officer testified that the man he saw is the accused before the court.

[49] Officer Dhillon testified that the man, after getting out of the truck, walked behind a portion of a black fence which had been knocked down. He stood in the vicinity of other people who were beginning to converge at the accident site. It was the opinion of the officer that the driver of the truck was attempting to “blend in” (with the crowd).

[50] The officer continued to drive further east bound and parked his vehicle across the westbound lanes, just east of the accident scene. He got out of the car and started walking towards the male who he had observed get out of the driver’s door. The officer testified that the two of them made eye contact and it seemed apparent to the officer that the driver was looking for a path to escape. He described the accused as doing a side shuffle with his feet. At no time did the officer lose sight of the driver.

[51] Officer Dhillon testified that the driver started running, in a north easterly direction, through a gap between townhouses that backed onto Clark Boulevard. The officer advised dispatch that he was in pursuit and ran after the driver. By 11:02 am the officer had the accused in custody.

[52] The pursuit lasted, in the opinion of the officer, 25 seconds and the arrest was made at the front of the townhouses on Fleetwood Crescent. The officer, as he closed the gap, could not see the accused’s hands. He pulled out his taser weapon and activated it. Officer Dhillon testified that he then yelled, “Stop running, I have a taser and get on the ground”.

[53] The accused stopped and said, “You got me, you got me” and was arrested.

[54] The officer testified that the person who he arrested is the accused before the court. He testified that he never took his eyes off the accused from the time he saw him get out of the truck, until the time of the arrest.

[55] Officer Dhillon testified that he had no doubt that the person he arrested was the driver. He estimated that 35 seconds passed between the time the accused got out of the truck to the time of his arrest.

[56] The officer wrote in his notes that the driver was a white middle age male, late 40’s, with a heavy build and who wore a black leather jacket and blue jeans. He testified that in his opinion the accused at the time of the trial has a medium to a heavy build.

[57] On cross-examination Officer Dhillon testified that the first thing he did on scene was make the arrest. He turned the accused over to another officer and then took charge of the scene until the duty inspector arrived.

[58] The officer returned to 21 Division at 2:09 pm and reported to a staff sergeant. He was taken to a small room on the second floor and was advised the SIU would likely be involved. In such circumstances, involved officers are to be segregated and given an opportunity to do his/notes.

[59] Officer Dhillon testified that he met with his police association representative and afterwards, at 3:30 pm, made his notes.

[60] Officer Dhillon was interviewed by the SIU on September 27, 2013 with the assistance of a legal representative.

[61] The officer agreed on cross-examination that nowhere in his notes does he use the word, “scrape”, nor did he make reference to the quality of the road surface at relevant points. There was no mention in the notes of the truck’s under carriage contacting the road surface.

[62] Officer Dhillon’s notes indicate that most vehicles in the private roadway around Bramalea City Centre travelled at 30-40 kph and that the truck was doing 60-70 kph. The two things he noticed about the truck was its speed and the lack of a front license plate.

[63] The officer admitted his notes did not indicate why he was interested in the truck but said that the notes were to refresh his memory and that he had an independent recollection of the events.

[64] The officer testified that he tries to write the key elements into his notes but that he will always miss some things. The officer testified that he made 22 pages of notes.

[65] Officer Dhillon testified that he did not give a copy of his notes to the SIU investigators and that he did not have his notes in front of him when he gave his statement to the SIU although he would have reviewed his notes.

[66] The officer agreed that he estimated the speed of the truck when he first saw it, to the SIU investigators, to be 70 kph. This statement was the first time the officer mentioned the “scrapping”. He said the truck was wobbling up and down. He said the scrape occurred going over a slight bump as a result of its excessive speed. He did not notice sparks.

[67] His notes reference a black Ford F150 and the identification number.

[68] The officer agreed that during his direct examination he thought the speed of the truck was 70-80 kph and agreed that the estimate provided on the cross-examination was different from his original estimate. His notes suggest an initial speed of 60-70 kph and his SIU statement estimated a speed of 70 kph. He testified that all references to speed were a guesstimate but that the truck was driving at a high rate of speed.

[69] The officer testified that his testimony is consistent with what he saw that day and that the truck “got his attention”.

[70] The officer was questioned as to what part of the truck scraped the road. He testified that there was a chrome attachment on the bumper that he believed was what scraped. He stated he saw the truck dip down as it was coming towards him and at that point he heard a scrape.

[71] Officer Dhillon admitted that at the preliminary he testified it was the undercarriage that scraped the road but now believes it to be part of the front bumper but he cannot be sure.

[72] He agreed that in his notes he called his turning around movement as a “U turn” whereas in his testimony he spoke of a “three point turn”. He testified he could not recall which he did, but the effect was the same.

[73] The officer agreed that nowhere in his notes is any estimate of speed of the truck along Clark Boulevard to the point of impact. He testified that the truck was travelling at least at 70 kph. He believes the speed limit of Clark to be 50 kph.

[74] When Officer Dhillon decided to terminate any kind of pursuit, he said that he pulled over and was collecting his thoughts and was either stopped or driving very slowly. He called dispatch not to seek assistance but to advise of his observations. From this point he could see the intersection of Clark Boulevard and Bramalea Road.

[75] The officer testified that at this point he was west of Kings Cross Road but closer to it than to Central Park Road. He agreed that at the preliminary hearing he was closer to Central Park Road when he pulled over. He was stopped for seconds when he made the radio call advising of the collision and then immediately drove to the scene of the accident.

[76] He reiterated he observed what he said was a violent initial collision and a number of subsequent collisions. The officer believed he had, what he called, “tunnel vision” and focused on the truck and who got out of the truck.

[77] On cross-examination he testified that he marked on the exhibits where the accused was when he got out of the truck and where the officer was when he made the observation, just entering the intersection. He estimated he may have been 25 metres away from the accused.

[78] The officer acknowledged that when he first saw the driver he could only see a dark jacket and at that point could not determine it was made of leather. He made the determination of a leather jacket when he apprehended the accused. Accordingly, he disputed the suggestion that his initial description of the driver was incorrect.

[79] The officer also agreed that when he first saw the accused out of the truck he could not say for sure if the accused was wearing jeans.

[80] The officer reiterated he never lost sight of the driver from the time he got out of the truck until apprehension.

[81] From the pictures entered as Exhibits 10 and 11 it is clear the black fence, which appears to have been a wrought iron fence, was knocked down in two places. Officer Dhillon was cross-examined as to which location behind a knocked down portion of the fence was the accused standing. He testified that he believed it was closer to the red Ford minivan that it was the portion of the fence knocked down by the silver Honda Civic.

[82] Counsel for the accused then put the proposition to the officer that if that was the case the accused must have been walking towards the officer, that is, in the direction of where the officer parked his cruiser.

[83] To that point Officer Dhillon testified that the accused was never walking towards him and that all he can say was that the accused was behind the vehicles and the fence. He could not say precisely where. The officer was certain that the accused was standing on a grassy area behind the fence.

[84] The officer testified that any suggestion he arrested the wrong guy was ridiculous.

[85] On re-examination, pictures marked as exhibits 12 through 15 were shown to Officer Dhillon. These photos show the location of the vehicles involved and the portions of the fence which were knocked down. The officer testified that it was not until he testified at trial was he aware the fence was knocked down in two locations. On these exhibits Officer Dhillon made an “X” as to where he thought the accused was standing. He testified these pictures were much more helpful in assisting him to mark the location of the accused as compared to the earlier exhibits, being overhead drawings of the accident scene.

[86] Officer Dhillon was recalled as a witness in regards to Exhibit 21(e), being the audio recording of the relevant calls to and from dispatch. The following time sequences were read into court, on consent.

1. 9 seconds passed between Officer Dhillon initiating a call to dispatch to when he reported the collision and states a male is running on foot.

2. 21 seconds passed from the initiation of the call and to when we hear Officer Simmonds’ voice over the radio.

3. 37 seconds passed from the initiation of the call to Officer Dhillon saying he is in foot pursuit.

4. 47 seconds passed from the initiation of the call to Officer Simmonds saying he is heading over to the scene.

5. 1 minute, 25 seconds passed between the initiation of the call and hearing Officer Dhillon say the male (is) in custody.

[87] Officer Dhillon confirmed to the Crown that he had listened to the dispatch recording for the first time the afternoon he was recalled to testify. He was also given an opportunity to read the trial transcript of his original examination in chief and cross-examination.

[88] The officer advised the Crown that when he observed the collision while in his police cruiser he was either moving or was about to start moving. He testified that when he identified himself to dispatch using his identification number, 21B, he was pretty sure he was moving at that point. He also said that when he told dispatch “male is running on foot”, he was approaching the intersection and had seen the accused get out of the truck.

[89] Officer Dhillon testified that he was asked by dispatch for his location but did not answer as he was in foot pursuit. He testified that pursuit was not lengthy as the accused was quickly out of breath and was slowing down. It was after the accused was on the ground and cuffed that the officer radioed he had the male in custody.

[90] The officer said that he saw the accused scurry from the truck and go to grassy area behind downed fence. The accused started side stepping and then as the officer moved in his direction, took off.

[91] In this second cross-examination the officer was taken to the transcript of his evidence in chief, page 16 to page 17. Counsel for the accused put to him that the officer testified that he advised dispatch, activated lights and started driving. Counsel for the accused suggested this meant that he was sitting in his stationary cruiser on the side of Clark Boulevard just east of Central Park Drive when he saw the accident. He then was on the radio a period of time before he started moving towards the collision scene.

[92] Officer Dhillon responded that he was not sure if he was driving when he initiated the call to dispatch and that once he made the call he had to wait for dispatch to respond. He was uncertain whether his car was moving when he told dispatch of the collision. The officer reaffirmed that he saw the collision, notified dispatch and drove to the scene.

[93] Officer Dhillon testified that the exchange of the radio was, “of a duration” and that he was likely driving to the collision during the conversation.

[94] It was suggested to the officer that after hearing the dispatch audio and reviewing his previous evidence he was fudging his answers as to the sequence of events which was denied.

[95] Officer Dhillon was then taken to the transcript of his trial cross-examination, pages 43 to 45 in which it was suggested to him that he testified that he was stopped when he was talking to dispatch and only started moving after getting off the radio. It was further put to him that he was between Central Park Drive and Kings Cross Road when speaking to dispatch which put him some distance from the collision scene and therefore when he saw the man running he was still stopped.

[96] It was further suggested that from that distance he would not have been able to get a description of the man, a description that he could not get until much later.

[97] Officer Dhillon disagreed with all these suggestions and said he was driving during the radio transmissions and that he saw the accused get out of the driver’s side door of the truck although he conceded he did not give a description of the accused to dispatch.

Leonardo Fernandez

[98] On September 16, 2013 this civilian witness was travelling with his brother and on his way to the library. He was driving northbound on Bramalea Road and turned left, westbound, onto Clark Boulevard. He continued to the intersection of Central Park Drive where he stopped for a red traffic signal.

[99] Mr. Fernandez then noticed a black truck travelling very fast towards him. He estimated the truck speed to be 100 kph. The truck proceeded through the intersection against the red light.

[100] Mr. Fernandez testified that the truck had a green light at the intersection of Kings Cross. When the truck reached the Bramalea Road intersection it was facing a red light. The truck entered the left turn lane and entered the intersection against the red traffic light and collided with another vehicle.

[101] Mr. Fernandez estimated the truck was travelling at the same speed as it was when it passed his vehicle.

[102] At some point Mr. Fernandez noticed there was a police car eastbound on Clark Road, following the truck. He testified that the police cruiser was perhaps three to four car lengths behind the truck and used the left turn lane at the intersection of Central Park Road to enter the intersection.

[103] Mr. Fernandez, when the light turned green, proceeded through the intersection but then turned around to drive to the accident scene. He had CPR training and thought he might be of assistance. When at the scene he identified himself to a policeman and told him what he had witnessed.

[104] On cross-examination Mr. Fernandez testified that the truck, a Ford F150, entered the Central Park intersection from the left turn lane against a red traffic light. He testified that it was after the truck passed through the Kings Cross intersection that he turned to speak to his brother. It was then he noticed the police cruiser.

[105] It was pointed out to Mr. Fernandez that the distance between Kings Cross and Central Park is at least 320 metres, which is much more than three to four car lengths. In response he said, “I’m doing it by eye and not measuring”. He described it as an educated guess.

[106] It was also pointed out to Mr. Fernandez that a previous police witness testified the light at Central Park was green and that the light at Kings Cross was red. Mr. Fernandez disputed this evidence and reiterated the light at Central Park was red and at Kings Cross, green.

[107] Mr. Fernandez did not get a look at the driver of the Ford F150 truck when it passed him. He testified that the truck passed too quickly and the driver’s side window was tinted. In his SIU statement he described the tint as really dark.

[108] Mr. Fernandez testified that it took him, at most, five minutes to turn and drive to the scene of the accident and that by that time emergency personnel had arrived. He believed he saw three police cars, one of which was somewhere close to the middle of the intersection of Bramalea Road and Clark Boulevard and that it had it emergency lights on.

Leslie-Ann Gaetano

[109] Ms. Gaetano was a witness to the collision. She was in her car eastbound on Clark Boulevard and was stopped for the red light at the intersection of Bramalea Road. She was in the curb lane with one car ahead of her.

[110] Ms. Gaetano testified that after she was stopped at the intersection for about 15 seconds, she heard a vehicle approaching from behind her and that it sounded like it was travelling at “quite a rate of speed” and sounded as if it was accelerating. She thought at the time it would be difficult for it to stop.

[111] She identified that vehicle as a dark truck which approached in the left or passing lane. She described the truck as being like a pickup truck with a cap. She estimated it was travelling at a speed of 80 kph.

[112] Ms. Gaetano testified that the truck entered the intersection against a red light. The light was green for traffic travelling north and south on Bramalea Road.

[113] Ms. Gaetano testified that the truck struck a northbound vehicle and described the collision as the truck “T-boning a van right at the driver’s door”. She said it was, “quite an impact”. She testified it caused both vehicles to turn counter-clockwise and then collide with other vehicles in the westbound lanes of Clark Boulevard which were stopped waiting for the light to change.

[114] Ms. Gaetano testified that shortly after the collision a police car arrived eastbound on Clark Boulevard. She estimated the police car arrived five seconds or so after the impact. A second police car arrived travelling southbound on Bramalea Road. When the traffic light changed Ms. Gaetano made a right hand turn, stopped and dialed 911.

[115] On cross-examination Ms. Gaetano testified that it was only a couple of seconds from the time that she first heard the truck and it passing her. She estimated it was 10 seconds between the arrival of the two police cars. The first police car was stopped in the intersection. She was not sure if the first police car used the lane beside her to enter the intersection or used one of the westbound lanes.

[116] Ms. Gaetano could not recall seeing a police officer out of a car and recalled seeing two police cars in the intersection. She agreed that when testifying at the preliminary hearing she said that it was less than 10 seconds between the truck passing her and the arrival of the police. She agreed that on that occasion she said she saw a police officer get out of his car and that she testified the second police car arrived five seconds after the first.

[117] Ms. Gaetano testified that she did not think her judgment was impaired by the frightening and shocking violence of the collision. She felt cool and level-headed.

[118] Ms. Gaetano testified that she never saw the driver of the truck.

Constable Thomas Mladen

[119] On consent and after reviewing this witness’ curriculum vitae (Exhibit 19), Officer Mladen was qualified as an expert witness in accident reconstruction. He is an officer with the Peel Regional Police Force with 33 years’ experience and has been in the major collision bureau since 2007.

[120] Officer Mladen is a level 4 collision investigator.

[121] Officer Mladen’s expert report is Exhibit 20.

[122] The officer testified that on September 16, 2013, he arrived at the accident scene around 4:37 pm. There were already numerous markers on the road which were placed there by the SIU investigators. The officer identified a number of photographs of the scene taken from various vantage points and showing all the vehicles involved. These pictures were entered as Exhibits 17 and 18.

[123] Officer Mladen provided testimony as to the speed of the black Ford F150 pickup truck. He testified that he retrieved the data recorder from the truck and downloaded it contents. This box is often referred to as the “black box” which receives and stores data with regards to the speed of the truck, the use of the brakes, seatbelts and the airbags.

[124] Officer Mladen testified that the rates of speed are locked in when the airbags deployed. From the pictures it is clear that the driver’s front airbag, located in the steering wheel, deployed as did the driver’s side curtain airbag. The front passenger side curtain airbag also deployed but the dashboard passenger airbag did not deploy.

[125] The officer then testified as to the recorded speed of the truck in the five seconds immediately preceding the collision and whether the brakes were engaged. The evidence is as follows:

5 seconds 109 kph brake off

4.5 seconds 110 kph brake off

4 seconds 110 kph brake off

3.5 seconds 108 kph brake on

3 seconds 105 kph brake on

2.5 seconds 103 kph brake off

2 seconds 99 kph brake off

1.5 seconds 99 kph brake off

1 second 99 kph brake off

.5 seconds 100 kph brake off

0 seconds 98 kph brake on

[126] It was the opinion of Officer Mladen that there was no pre-impact braking. There were no marks on the roadway indicating such. Had there been an attempt to engage the brakes there would have been black tire marks on the road.

[127] The officer testified that the three recordings of “brake on” suggests attempts to keep the truck straight and perhaps an attempt to apply the brakes at the end when it was too late.

[128] When the speed was 110 kph the truck was travelling at 30.58 meters per second. At 99 kph the distance travelled in a second was 27.522 metres. Using the lower speed, five seconds before impact the truck was 122 metres west of the point of impact which would have put it 44 metres east of the intersection of Clark Boulevard and Kings Cross Road.

[129] It was also recorded that the driver’s seatbelt was buckled but that the front passenger’s seatbelt was not.

[130] Officer Mladen was of the opinion that if there was a passenger in the front seat, who was not using a seatbelt the momentum would have propelled the passenger forward and there would be marks on the dashboard or window, a dent or some blood. No such evidence was present.

[131] It was the opinion of Officer Mladen that the black Ford F150 caused the accident by entering the intersection on a red light at a high rate of speed and striking a red Ford Freestar at the driver’s door. The vehicles then remained engaged and turned and after separating struck the other cars noted damaged in the pictures. Certain vehicles were forced onto the sidewalk by the force of the collision and a black fence was knocked down in two locations.

[132] The officer agreed that the side windows of the truck were tinted but could not say how much or as to how dark.

[133] On re-examination the officer was shown Exhibits 23 and 24 but could not say if the windshield was tinted to the extent of the side windows. He did say the side windows appeared darker than the windshield. Exhibit 27 is a picture showing the front of the truck including the windshield.

[134] Officer Mladen testified that in a collision of this magnitude, if someone was sitting in the front passenger seat or if the front passenger seatbelt was engaged the front airbag would have deployed. A significant weight of even 20–30 pounds on the front passenger seat would likely have caused the front airbag to deploy.

Police Constable Maria Wilson

[135] This witness is the officer in charge of this investigation and in September, 2013, was with the Major Collision Unit of the Peel Regional Police.

[136] Through this witness’ testimony was introduced the dispatch logs for the relevant times as recorded on September 16, 2013. Exhibit 28(a) is a document entitled Audio Copy Report and identifies seven tracks, the start times of the tracks and the duration of the tracks.

[137] Exhibit 28(b) is a short synopsis prepared by Officer Wilson of what she heard when listening to the dispatch recordings.

[138] Exhibit 28(c) is a DVD copy of the dispatch recordings.

[139] When listening to the recordings the voices of Officers Simmonds and Dhillon were identified. At 11:00:21 Officer Dhillon calls dispatch and reports the collision and the male occupant on the run.

SUBMISSIONS AND THE LAW

The Crown

[140] The Crown submits that the evidence proves, beyond a reasonable doubt, that accused was the driver of the black Ford F150 pickup truck that caused the accident resulting in the death of Mr. Knowles. It is submitted that the driving was done in a criminally negligent manner.

[141] It is submitted that by running from the scene the accused is also guilty of failing to remain.

[142] Further, it is submitted that the accused was in possession of a stolen vehicle and in possession of the stolen empty beer kegs.

[143] Finally, it was submitted that at the time the accused was the subject of 11 orders prohibiting him from driving any motor vehicle.

[144] Section 219 of the Criminal Code of Canada dictates that everyone is criminally negligent who in doing anything, shows wanton or reckless disregard for the lives or safety of other persons.

[145] One of the authorities provided by the Crown is R. v. M.R. [2011] O.J. No. 1017, a decision of the Ontario Court of Appeal. At paragraph 28, Appeal Justice D.R. O’Connor A.C.J.O., states,

“The test for criminal negligence as set out in section 219 requires the Crown to show that an accused’s conduct or omission represented a “marked and substantial departure” from the conduct of a reasonably prudent person in the circumstances.”

[146] Commencing at paragraph 29, the Court goes on to say,

“The high standard of a “marked and substantial departure” from the conduct of a reasonably prudent person applies to both the physical and mental elements of the offence; R. v. J.L. (2006) 204 C.C.C. (ed) 324 (Ont.C.A.), at para. 16. In addressing the offence of criminal negligence causing death, a court should first look to the actus reus of the offence and determine if the conduct or omission involved meets the marked and substantial departure standard. If it does, the court should then consider the question of whether the mens rea is established.

The mental element for criminal negligence is described as a modified objective test: R. v. Hundal 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at p. 887, Cory J.; R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1S.C.R. 1392, at p. 1413, McIntyre J. A court must consider the facts existing at the time in light of the accused’s perception of those facts and assess whether the accused’s conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances; see R. v. Tutton, at p. 1432. In considering this issue, the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all. In most cases, the mental element can be inferred from the accused’s conduct or omission.; see R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 73-74, McLachlin J. (as she then was); R. v. Hundal, at p. 872, McLachlin J., concurring; R. v. Tutton, at p. 1432, McIntyre J.”

[147] In R. v. Al-Kassem 2015 ONCA 320, [2015] O.J. No. 2330, the Ontario Court of Appeal, at paragraph 4 noted that, “…what distinguished criminal negligence from dangerous driving is the mental element”.

[148] It is noted that at paragraph 8 of the same case, the Court states “we do observe that pursuant to s. 662(5) of the Criminal Code, where criminal negligence causing death by driving is not proven, dangerous driving causing death is expressly made an included offence”.

[149] The Crown submits that the evidence in this case establishes the driving in issue was criminally negligent in that it represents a marked and substantial departure from that of a reasonably prudent person. The driving involved very high speeds and the running of two red lights, in an urban area, in the middle of the day.

[150] The Crown submits the motive for such driving was to evade the police.

[151] The Crown submits that the logical inference to draw is that the Ford F150 was the same vehicle observed initially by Officer Simmonds and shortly thereafter by Officer Dhillon. At best, two minutes passed between these sightings and both vehicles had the same cap on the back.

[152] The Crown submits that the only real issue is whether or not the accused has been identified as the driver of the truck. The only witness for the Crown who can identify the accused as the driver is Officer Dhillon and the Crown submits that the evidence of Officer Dhillon in that regard ought to be accepted. It is submitted that he was engaged and focused on the accused from the time the accused exited the driver’s door to the point he was apprehended. It is submitted that any discrepancies in the officer’s testimony, and with taking into account the evidence of the other witnesses is in regards to time, distance and other details, do not detract from Officer Dhillon’s identification of the accused as the person who exited through the driver’s door of the truck.

[153] The Crown submits that the truck, post collision, was in a position by which Officer Dhillon, as he approached the scene, could easily see the driver door of the truck. Further, the passenger side front airbag did not deploy from which the inference can be drawn that no one else was in the truck. Therefore, it is submitted that the person who got out of the driver’s door must have been the driver.

[154] The Crown points to the fact that only 1 minute and 25 seconds passed between Officer Dhillon initially contacting dispatch and his apprehension of the accused.

[155] The Crown also relies on the evidence of Officer Simmonds who identified the driver of the truck he observed as a white male, a description, although general, is not inconsistent with the accused.

[156] The Crown also relies on the post offence conduct of the accused, pointing to the accused’s side stepping, his running to avoid apprehension and his utterances of “you got me”. Such evidence, it is submitted, corroborates Officer Dhillon’s evidence that the accused was the driver.

[157] R. v. Bains 2015 ONCA 677, [2015] O.J. No. 5191 is a decision of the Ontario Court of Appeal. Starting at paragraph 124 Watt J.A. stated,

“Post-offence conduct refers to anything said or done by an accused after the commission of an offence. It comprises a vast array of words and conduct: R. v. White, 2011 SCC 13, 2011 SCC13, [2011] 1 S.C.R. 433, at para. 21. Most evidence of post-offence conduct enters the trial record unexceptionally as an unremarkable part of the narrative: White, at para. 140.

Evidence of post-offence conduct is a species of circumstantial evidence, not some special category or type of evidence. It invokes a retrospectant chain of reasoning, sponsoring an inference from things said or done later, after an event, to involvement in the prior event or a state of mind associated with it. As a species of circumstantial evidence, no special rule is attached to evidence of post-offence conduct: White, at paras. 31,105,137.

But in some cases where a trier of fact may find the evidence of greater value than it intrinsic worth, a caution about use may be required: White, at paras. 106,185.”

[158] In relying on post-offence conduct the Crown submits the only inference that can be drawn is that the accused was the driver of the truck and was attempting to evade the police.

[159] Another authority on the issue of post-offence conduct is R. v. Hamade [2015] O.J. No. 6057, a decision of the Ontario Court of Appeal. The decision of the court was given by G.I. Pardu J.A. and, in part, dealt with the issue of what instructions should be given to the jury when post-offence conduct gives rise to more than one inference to be drawn from the conduct. It was argued by the appellant that the jury ought to have been instructed that if multiple inferences can be drawn, the conduct has no probative value.

[160] At paragraph 26 the Court states, “As a general rule, it is for the jury to decide, on the basis of the evidence as a whole, whether the evidence of an accused’s post-offence conduct is related to the commission of the offence charged rather than to something else, and if so, how much, if any weight should be accorded to the evidence in the final determination of guilt or innocence: Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) at para. 340-341.”

[161] I was also provided with R. v. Moffit [2015] O.J. No. 3024 a decision of the Ontario Court of Appeal released in September, 2015. At paragraph 41 the Court again discusses post-offence conduct, stating, “There is no special rule governing when evidence of post-offence conduct will be probative of guilt.”

[162] At paragraph 43 the Court notes that where such conduct has no probative value the jury should be so instructed.

[163] The Crown submits such concerns are not relevant in that the only reasonable inference to be drawn with respect to the accused fleeing the scene and making the utterances is that he was the driver of the truck who caused the collision, he was in possession of a stolen vehicle and it’s stolen contents and was subject to numerous driving prohibitions.

The Defence

[164] Defence counsel candidly admitted that the only real issue in contention is whether or not the Crown has proven the identity of the driver of the Ford F150, beyond a reasonable doubt.

[165] Defence counsel submits that it has not been established, beyond a reasonable doubt, that the accused was the driver.

[166] Counsel took no issue with the legal authorities relied upon by the Crown. Nor did the defence take any issue with the description of the driving of the truck as wanton and reckless.

[167] Counsel for the accused described the circumstances of the charges against the accused as “all or nothing” and from that I took that if the accused is found to be the driver of the truck, he is guilty of all the outstanding counts. If it cannot be determined, beyond a reasonable doubt, that the accused is the driver, he is entitled to an acquittal on all counts.

[168] It is submitted that this case is dependent on eye witness evidence and that such evidence is, inherently dangerous.

[169] It is submitted that there a major discrepancies in the evidence of the witnesses as between themselves and even within their own evidence.

[170] In regards to Officer Simmonds, it is submitted that in his original testimony he stated the truck in issue parked across from him and remained so for 20 seconds or so. Eye contact was made and the officer recalled seeing the driver shift the truck into drive. The surveillance evidence clearly shows he is wrong in regards to this evidence as the truck never parked and never even stopped. It is submitted the officer had no real explanation for this discrepancy putting the question, “How could he be so wrong?”.

[171] In regards to L. Fernandez, it is submitted that he was wrong when he testified the police car was only three to four car lengths behind the truck. The vehicles were more likely 180 metres apart. His evidence was also in conflict with that of Officer Dhillon’s as to what traffic lights were red or green when the truck proceeded through the intersections of Clark Road with Central Park Drive and Kings Cross.

[172] With respect to Ms. Gaetano, it was her testimony the first two police cars that arrived on scene, which would have been those of Officers Dhillon and Simmonds, stopped in the intersection. It is submitted that this evidence is inconsistent with that of the officers, particularly Officer Dhillon.

[173] It is submitted that Ms. Gaetano must have been wrong to suggest the first police car went through the intersection five seconds after the truck, noting that at the preliminary hearing she testified the time was less than 10 seconds.

[174] It is submitted the evidence of Ms. Gaetano is unreliable.

[175] Most of defence counsel’s submissions focused on the evidence of Officer Dhillon as he is the only witness who can identify the accused as the person who exited the truck’s driver’s door.

[176] Defence counsel submits that the officer’s notes did not capture the event. Much of the detail he provided through his testimony was not included in his notes.

[177] It is submitted that Officer Dhillon “photo shopped” his evidence of why he arrested the accused. The officer was only able to observe the accused wore a black leather jacket and jeans at the time of his arrest of the accused. However the officer used such descriptors in his initial identification of the accused.

[178] It is submitted that the officer’s recollection of the speeds travelled by the truck changed and increased through the passage of time. The speed of the truck was recorded in the officer’s notes as 60-70 kph and at trial the estimate was 70-80 kph.

[179] The officer did not include in his notes hearing a scraping sound and over time changed what he thought caused the sound.

[180] Initially the officer said that he made a U turn to follow the truck when it passed him on the mall roadway but at trial testified he did a three point turn.

[181] Defence counsel submits that that officer testified that he pulled over to gather his thoughts and contacted dispatch and that he started driving to the scene of the collision after completing his radio call.

[182] The officer stopped his cruiser, it is submitted, more than 300 metres from the scene and he could not have possibly observed the accused as the person who exited the truck from the driver’s door.

[183] Defence counsel submits that on cross-examination Officer Dhillon testified that it is unlikely he stopped but rather slowed down and that he started moving to the scene after seeing the collision well-before he completed his message to dispatch.

[184] Defence counsel submitted that this was another attempt by the officer to tailor his testimony to fit the evidence.

[185] Counsel submits that from the time the officer initiated his call to dispatch nine seconds expired before he reported the collision and reported, “male running on foot”.

[186] It was pointed out to the officer that on his cross-examination he said it took him maybe 10 seconds to get to the collision scene after he witnessed it and that in his SIU statement he said it took 15-29 seconds. To that the officer responded, “I’m accelerating, next thing I know he’s getting out of the car and I am there.”

[187] Another example was noted by defence counsel. In his examination in chief the officer said that he was just coming to the intersection (of Clark and Bramalea) when he sees the accused get out of the truck. He testified he was maybe 10 metres away from the accused when he made the observation. Counsel submits that 10 metres would put the officer half way through the intersection. It was also pointed out that at the preliminary inquiry the officer said he was maybe 25 metres away.

[188] Counsel submits that, in truth, the officer would have been more than 300 metres away.

[189] Officer Dhillon testified that when he arrived on scene he parked his car just past the scene, at right angles to the westbound lanes of Clark Road. It is submitted by counsel that both Officer Simmonds and Ms. Gaetano testified the first police cruiser stopped in the intersection.

[190] Finally, when the officer initially testified he said the accused was standing on a grassy area, behind a downed portion of the fence. He noted his location on the map as adjacent to the silver Honda Civic. On cross-examination he then put the accused behind another section of downed fence adjacent to where the red Ford Freestar came to rest, a point further east from where he place his “X” on the map.

[191] It was suggested to the officer that placing the accused in the latter location suggests the accused was approaching the officer, a point denied by him. Officer Dhillon testified then that the accused was in the area, but he could not say exactly where.

[192] On re-examination the officer was shown some pictures which clearly showed the fence had been knocked down in two locations, and testified that it was not until the trial that he knew the fence was down in more than one location. The officer then marked an X3 on the picture as the location where he saw the accused standing.

[193] It is submitted by defence counsel that this is a further attempt by the officer to tailor his evidence which further erodes Officer Dhillon’s credibility and reliability.

[194] Counsel for the accused submits that Officer Dhillon’s reliability and confidence are depleted.

[195] In regards to post-offence conduct, defence counsel submits the utterances by the accused, “you got me” resulted from the accused being advised by the officer that he had a taser.

[196] In regards to the fleeing, it is submitted that this conduct could be related to the fact he was the subject of 11 orders prohibiting his driving and that such an inference is equal in weight to any inference that he fled because he caused the collision.

[197] On that point this court notes that even if the prohibition orders were the reason the accused fled, he would only be in jeopardy in relation to those orders if he is was a driver.

ANALYSIS

[198] I find that the manner in which the Ford F150 was driven was criminally negligent in that it reflects a wanton or reckless disregard for the lives and safety of others. It represented a marked and substantial departure from what would be reasonable in the circumstances.

[199] All the witnesses testified that the truck was travelling at an excessive speed, and the truck’s black box recorded that in the last five seconds of travel the truck was travelling at a speed of 110 kph.

[200] I find that the only reasonable inference that can be drawn is that the driver was attempting to avoid being stopped by the police.

[201] I find that the driver of the truck observed Officer Dhillon in the parking lot of the Bramalea City Centre and from that point forward drove at excessive rates of speed. This is the only reasonable inference that can be drawn from the evidence.

[202] I find that when the driver of the truck then observed the police car operated by Officer Dhillon he continued in his efforts to flee and evade the police.

[203] I find that prior to the truck arriving at the intersection of Clark Road and Bramalea Road, the driver of the truck proceeded through a red light at either the intersection of Kings Cross or Central Park Drive. While the evidence of Officer Dhillon and Mr. Fernandez is contradictory on which light was red and which was green, both agreed that one of those traffic lights was red.

[204] I find that the driver of the truck proceed into the intersection at Clark Boulevard and Bramalea Road and where the collision occurred against a red light and at a speed of approximately 100 kph and made no effort to brake.

[205] The intersection where the collision occurred was a busy one, in a large urban area, in the middle of the day.

[206] The mental element required for a charge of criminally negligent driving can be inferred from these facts that also make up the actus reus.

[207] Further, as noted, the reason for the excessive speed and the failure to observe traffic signals was to avoid the police, which also goes to the mental element requirement of the charge.

[208] The driving, as described, by all the witnesses reflected a wanton and reckless disregard for the safety of others, a point not contested by the defence. The driver put his own desire the evade capture over the safety of others using the roadway.

[209] This driving caused the death of Mr. Knowles.

[210] The Ford F150 and the 18 empty beer kegs were stolen and if the accused was the driver he was in possession of a stolen vehicle and items as charged. This point was not challenged by counsel for the accused.

[211] I find that the driver of the Ford F150 is guilty beyond a reasonable doubt of failing to remain at the scene of an accident contrary to section 252(1.3) of the Code. Given the violence of the collision the driver would know that the driver of the red Ford Freestar would have suffered bodily harm since the truck struck the Freestar at the speed noted, right at the driver’s door.

[212] If I find the accused to be the driver there is no doubt he failed to identify himself or provide assistance. Further, there would be no doubt that his intention would be to avoid criminal liability given the circumstances and his driving prohibition orders.

[213] The only real issue to be determined, as noted by both counsel, is identity; was the accused the driver of the Ford F150 that caused the accident?

[214] I recognize the inherent dangers in the evidence of eye witnesses. No two witnesses who observe the same set of circumstances will remember the same facts. That is not to say however that their evidence is not reliable.

[215] With the greatest respect to the argument of defence counsel, I do not find that Officer Dhillon’s evidence was such that it was not reliable and cannot stand as evidence to identify the accused as the driver.

[216] Further, the officer’s key testimony is corroborated by the testimony of the other witnesses and the physical evidence.

[217] While there are significant discrepancies and inconsistencies in his evidence related to time, speed and distances, it is clear that things happened very quickly.

[218] I find that Officer Dhillon was focused on the truck from the time he saw it approach him in the mall roadway.

[219] He recognized the manner in which the truck was driving for what it was and after he observed the collision he was even more observant of the truck and its driver.

[220] He was adamant in his identification of the accused as the man who exited the truck and who must have been the driver. When the suggestion was made that he did not observe the accused as the one exiting the truck, the officer responded that such a suggestion was ridiculous.

[221] I find that when Officer Dhillon observed the collision he drove immediately to it, as that would be the reasonable response and his quick arrival was confirmed by the civilian witnesses. While Ms. Gaetano’s estimate of five seconds may have been less than exact, I accept the officer arrived on scene quickly.

[222] I find that he did not wait until the conclusion of his interchange with dispatch to proceed to the scene.

[223] In also find that his difficulties in placing the accused as the officer approached on foot did not detract from the officer’s reliability. There is no doubt that the only person whom the officer had in his sights was the accused, who was standing behind some portion of the downed fence adjacent to the accident scene. The accused quickly realized he was the subject of the officer’s approach and attempted to flee the scene.

[224] From the time the officer commenced his radio transmission to dispatch to the time the accused was in custody only 1 minute and 25 seconds elapsed.

[225] I accept that the truck came to rest in a location and position that allowed the officer to see the driver’s door and anyone who exited the door.

[226] I find that the officer was in a position to identify the accused as the person who exited from the driver’s side door.

[227] I find that no one was sitting in the truck on the passenger’s side otherwise the airbag would have deployed and that the person who the officer observed exiting the driver’s door of the truck was the driver.

[228] I find that the officer parked his police vehicle at right angles across the westbound lanes of Clark Road as depicted in the photographs and immediately started approaching the accused.

[229] I find that Officer Dhillon’s evidence that he was in a position to see the accused exit the truck and his actions thereafter are consistent with the time frames noted on the dispatch audio tapes.

[230] I find that the only reasonable inference to be drawn from the fact that the accused fled the scene, on the approach of the officer, was to evade apprehension. He was operating a stolen vehicle, with a stolen cargo and caused the accident. I do not accept the argument of defence counsel that with respect to his client’s post offence conduct a reasonable inference to be drawn is that he did so because of the driving prohibitions. As noted previously, it was only at risk in that regard was if he was a driver. No doubt the existence of 11 driving prohibition orders was also part of the reason he fled.

[231] The desire to flee is the reason behind all these unfortunate circumstances. The accused initially drove in a manner to evade Officer Simmonds. He then drove in a manner to avoid Officer Dhillon. It is a reasonable inference to conclude that he fled on foot for the same reasons.

[232] In regards to the utterances “you got me”, the only reasonable inference to draw was a recognition that the accused was about to be apprehended for causing the collision which apprehension may have included the use of a taser weapon.

[233] The post offence conduct corroborates the evidence of Officer Dhillon.

[234] The accused is found to be the driver of the black pickup truck.

VERDICT

[235] Accordingly, the accused is found guilty of,

(i) Count 1, criminally negligence causing the death of George Knowles, contrary to section 220(b) of the Criminal Code,

(ii) Count 2, failing to remain at the scene of an accident, contrary to section 252(1.3) of the Code,

(iii) Count 3, possession of a stolen motor vehicle to wit, the Ford F150 truck, having a value exceeding $5,000, contrary to section 354(1)(a) of the Code,

(iv) Count 4, possession of stolen items, to wit, 18 empty beer kegs having a value not exceeding $5,000, contrary to section 354(1) of the Code, and

(v) Counts 5 through to 15, inclusive, of operating a motor vehicle, while prohibited from doing so, contrary to section 259(4) of the Code.

Bielby J.

Released: March 2, 2016

CITATION: R. v. McWatters, 2016 ONSC 1477

COURT FILE NO.: CRIMJ (P) 326/14

DATE: 20160302

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Plaintiff

– and –

RONALD McWATTERS

Defendant

REASONS FOR JUDGMENT

Bielby J.

Released: March 2, 2016