CITATION: R. v. Aleksev, 2016 ONSC 1834
COURT FILE NO.: 95/15
DATE: 20160414
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
ALEKSEY ALEKSEV
John Rinaldi, for the Crown
Michael Simrod, for Mr. Aleksev
HEARD: March 7, 9, 10 and 11, 2016
TROTTER J.
INTRODUCTION
[1] Adrian Dudzicki, 23, was riding his bike near a busy Toronto intersection. After the light turned green, he pedaled along the pedestrian crosswalk. Aleksey Aleksev, 20, drove his car through the intersection against the red light, hitting Mr. Dudzicki and killing him instantly.
[2] Mr. Aleksev is charged with manslaughter (Criminal Code, s. 234), criminal negligence causing death (s. 220) and dangerous driving causing death (s. 249(4)). On Mr. Aleksev’s behalf, it is conceded that he caused Mr. Dudzicki’s death. The main issue in this case is whether Mr. Aleksev’s driving was merely careless, or whether it reached the standard of criminality.
THE FACTS: SUMMARY AND KEY FINDINGS
(a) The Setting and Road Conditions
[3] The collision occurred as Mr. Aleksev drove his car (a 1992 black BMW) in a West/North direction along Sheppard Avenue (“Sheppard”). He crossed over Allen Road (“Allen”) and continued westbound. Sheppard then curves in a northerly direction. Approximately 500 meters from Allen is the intersection of Sheppard and Kodiak Crescent (“Kodiak”). On Sheppard, there are two lanes that go directly through the intersection, in addition to separate left and right turn lanes. This is the same in both directions.
[4] On the morning of this terrible collision, it was a clear, sunny day. Mr. Aleksev was not driving into the sun; it was behind him. The road was in good condition. Later in these Reasons, I will discuss the Collision Reconstruction Report prepared by Det. Sean Davey. For present purposes, he found the drag factor on Sheppard at Kodiak to be within normal parameters.
[5] The collision occurred on a weekday at 9:30 a.m. The area was busy with vehicular and pedestrian traffic. This is confirmed by surveillance footage from a nearby gas station. The area is very built-up with condominiums and a military facility (Dennison Armoury). Mr. Aleksev worked nearby, at his father’s business. He had travelled this road many times.
(b) The Speed of the BMW: Eyewitness Accounts
[6] Four people saw Mr. Aleksev’s driving just before the collision. Eghtedar Manouchehri, 38, was a Major with the Canadian Armed Forces. That morning, he was on his way to the Dennison Armoury. As Mr. Manouchehri walked westbound along Sheppard, as he had done so many times, the BMW passed him, also travelling westbound. He said that the engine made a loud noise. The car was in the curb lane going “significantly faster than anyone else.” Mr. Manouchehri said that the car was going too fast for the curve and almost sideswiped a school bus in the passing lane. The driver took “corrective action” to avoid a collision and then “zig-zagged” as it went around the curve.
[7] Mr. Manouchehri estimated that the BMW was going at 90 to 110 km/h in a 50 to 60 km/h zone. He only saw the BMW for a brief period of time as it drove past. He could not tell if it was accelerating. The BMW left his field of view due to the curve in the road. As he approached Sheppard and Kodiak, Mr. Manouchehri could tell that there had been an accident. He rushed to the scene to offer assistance.
[8] In cross-examination, Mr. Manouchehri said his speed estimate was based on sight and his personal opinion. Moreover, he was unsure of the length of the school bus. He agreed that the BMW did not leave its lane to the left, nor did it strike the curb to the right. The bus did not leave its lane and it did not appear that the driver of the bus had to take evasive action.
[9] Maor Matzliach and Roland Greber saw the BMW hit Mr. Dudzicki. I deal them together because they are co-workers. They were travelling in separate cars, en route to the same destination. The two men were in the front row of cars stopped at the intersection. They were facing Mr. Aleksev as he drove towards them.
[10] Mr. Matzliach testified that he was in the left through lane. To his right was the car driven by Mr. Greber. Mr. Matzliach testified that he was listening to loud music with his windows up. He communicated with Mr. Greber by hand gestures. Mr. Matzliach saw the BMW come through the intersection and hit Mr. Dudzicki. He turned just in time to see the impact. He said that the car was going 90 to 110 km/h, noting, “Nobody runs a red light going that speed.” He said he was stopped for 6 to 7 seconds before the collision.
[11] Mr. Matzliach agreed that he only saw the BMW for a moment, as it crossed through the intersection. He insisted that his speed estimate was based on his driving experience. Confronted with the evidence of the Det. Davey (discussed below) that, just after the impact, the BMW was travelling at 67 km/h, Mr. Matzliach said, “That’s impossible, in my opinion.”
[12] Mr. Matzliach testified that he saw a dump truck drive through an amber/red light 5 to 10 seconds before the collision. This was not borne out by video surveillance evidence. Mr. Matzliach did not mention this in his statement to the police or in his preliminary inquiry testimony. He explained that he was not specifically asked about a dump truck. On the other hand, he did not see a garbage truck enter the intersection close in time to the collision. Video evidence shows a truck of this description in the intersection when the collision occurred.
[13] Mr. Greber testified that he was stopped at the intersection to the right of Mr. Matzliach. They both had their windows down and he was providing directions to Mr. Matzliach. He saw Mr. Dudzicki on his bike, in the crosswalk, moving towards him. He saw the black BMW “out of the corner of my eye, coming quickly.” He saw the collision with Mr. Dudzicki. Mr. Greber said that the BMW could have “easily” been going 90 km/h or more. Interestingly, Mr. Greber saw that the countdown timer for pedestrians had counted down 23 of 30 seconds. He had driven this stretch of road “thousands” of times because he worked in the area for nearly 9 years.
[14] In cross-examination, Mr. Greber acknowledged that he first saw the BMW when it was a few feet away from the intersection. He said he saw it 3 to 4 seconds before the impact, travelling 100 metres before the collision, but then admitted, “I am guessing as to the distance.” Mr. Greber agreed that he was “guessing” about the speed, but then said that it was based on experience. Lastly, Mr. Greber did not see the dump truck that Mr. Matzliach thought he saw, nor the green truck that was actually in the intersection when the collision occurred.
[15] Master Corporal Miller of the Canadian Armed Forces also saw the collision. He was going to work and was stopped in the right turn lane at the intersection. As Master Corporal Miller looked to his left, he saw a cyclist hit by a car. He did not notice any trucks in the intersection. He tried to render assistance to Mr. Dudzicki, but his injuries were too severe.
(c) The Speed of the BMW: Collision Reconstruction
[16] Det. Sean Davey was qualified to give opinion evidence in collision reconstruction. While his testimony touched on a number of issues, the most important was speed.
[17] The BMW had an anti-locking braking system. Det. Davey found no skid marks on the road, indicating that the “brakes were not applied in a manner that would lock those tires up.” Thus, the vehicle was brought to a “controlled stop,” 31 metres from the point of impact.
[18] Det. Davey estimated a number of measures by using video surveillance recordings from the gas station. When the BMW entered the intersection, the light had been red for 6 seconds. This would have been in addition to a 3.9 second amber-to-red signal time lapse.
[19] Det. Davey calculated the speed of the BMW based on 2 frames from the video. The camera recorded images at a rate of 1 frame per second (movies are generally 60 frames per second). The first frame showed the shadow of the BMW as it approached the intersection. The second frame showed Mr. Dudzicki suspended above the vehicle, after being hit. Based on these images and other measurements and calculations, Det. Davey estimated that the BMW was travelling at 67 km/h (+/- 5%) just after hitting Mr. Dudzicki. This calculation assumed that the car was travelling at a constant speed. However, the second frame shows that the BMW was “pitched forward”, causing the hood of the car to be lower than it would be while stationary. This was confirmed by comparing the damage to the bike with the damage to the car. Det. Davey concluded that the car was braking and was going much faster as it entered the intersection.
[20] Det. Davey testified that, assuming that Mr. Aleksev was driving 67 km/h as he approached the intersection, he would have been 113m from the intersection when the signal changed. However, the Crown alleges that he was going faster and that 67 km/h was a minimum speed. As Det. Davey testified, the BMW was “positively not slower at the time of impact,” a moment that was not captured in any of the surveillance frames.
[21] The video evidence is also important because it shows a large truck entering the intersection, moving southbound on Kodiak. It slowly moved forward to make a left turn, but stopped short. The BMW was driven around the front of the truck and entered the intersection. It is likely that the truck blocked Mr. Aleksev’s view of Mr. Dudzicki, and vice versa.
[22] Det. Davey testified that the BMW had no mechanical deficiencies apart from a worn brake pad, which was insignificant. However, the vehicle was not drive tested.
[23] Det. Davey acknowledged being trained in the use of radar devices. He was also trained in making visual estimates of car speeds. He said that it is possible for laymen to “roughly estimate” speeds and that it is easier to do so when a car is well above a speed limit.
(d) Mr. Aleksev’s Evidence
[24] Mr. Aleksev purchased the BMW a month before this incident. He responded to an on-line advertisement and bought it for $800. A friend, whose full name never revealed, accompanied Mr. Aleksev to buy the car. This friend brought “dealer plates” with him and put them on the car because Mr. Aleksev did not have insurance. In cross-examination, Mr. Aleksev said that the dealer plates did not belong to his friend, but instead to his friend’s friend.
[25] Mr. Aleksev testified that he only drove the BMW only one or two times before the collision. He did not properly register the car, nor did he obtain a safety inspection. He affixed different dealer plates to the car, this time from his father’s tire shop, believing that the car would be covered by his father’s business insurance policy.
[26] On the morning of the collision, Mr. Aleksev departed from his parents’ home. He was going to his father’s tire shop on Sheppard, very close to the scene of the collision. Mr. Aleksev originally testified that he had driven this road at least 100 times. In cross-examination, he said that he had been in vehicles taking this route about 100 times, but only 50 times as a driver.
[27] Mr. Aleksev testified that, as he was travelling west on Sheppard, he faced a green light at Allen and went through the intersection at 60 km/h. He maintained this speed as the road curves north. He acknowledged seeing a school bus travelling slower than he was. Mr. Aleksev said he passed the school bus safely and at the speed limit. He said he looked at his speedometer.
[28] Mr. Aleksev testified that, as he continued towards the intersection, he adjusted the heat in his car. He looked at the knobs on the console “momentarily.” Almost in the same breath, Mr. Aleksev said, “I was just checking the radio.” When he looked up again, he saw a truck moving towards him. I believe that Mr. Aleksev meant that it was moving into the intersection in a perpendicular direction. The truck seemed to stop for a moment. Mr. Aleksev assumed that the driver saw him. Mr. Aleksev moved his vehicle into the left lane to get around the truck. As he did so, he saw the “cyclist popping out of nowhere.”
[29] Mr. Aleksev acknowledged that the light was red. He did not see anyone in the crosswalk. Mr. Aleksev said he first applied the brakes was when he saw the cyclist. However, in cross-examination he said he applied his brakes when he saw the truck. Mr. Aleksev said that the brakes did not perform as he expected. He thought they would make a squealing sound and would immediately stop the car. He had no previous difficulties with his brakes.
[30] Mr. Aleksev was inconsistent about when he checked his speedometer. He said that, as he took the curve towards the lights at Kodiak, he “assumed” he was travelling 60 km/h. On the other hand, he insisted that he checked the speedometer at some point.
[31] Mr. Aleksev was familiar with the intersection at Kodiak and had no trouble with it in the past. He knew it was a busy area and that he might face an amber or red light. Curiously, Mr. Aleksev said that it was bright that day and he referenced an “open field” to his left as he proceeded along the road. However, there was no open field at that location. It is irrelevant in any event. There were multiple signal stands facing in his direction. The sun was at his back.
[32] Mr. Aleksev denied that he was speeding and that he almost lost control when he passed the school bus moments before hitting Mr. Dudzicki. He suggested that his car might have sounded loud because of a modified manifold. Mr. Aleksev insisted that he did not see Mr. Dudzicki until just before he collided with him. He thought it was safe to go through the intersection when he did. Also, and without prompting, Mr. Aleksev mentioned that a pedestrian on foot would not have been moving as fast as Mr. Duzicki on his bike was that day.
(e) Key Findings
[33] In addition to other findings below, I reach the following factual conclusions:
(a) Mr. Dudzicki had the right of way in the intersection. The video evidence shows he obeyed the traffic signals and only started on his path when he was permitted to do so;
(b) Mr. Aleksev drove into the intersection against a red light. On all of the evidence, I conclude that the light had been red for 6 seconds before Mr. Aleksev entered the intersection. The preceding amber light was more than 3 seconds long;
(c) Mr. Aleksev was driving well above the speed limit when he entered the intersection; and
(d) I cannot accept much of Mr. Aleksev’s evidence. His evidence changed on a number of issues, including: (i) whether he was adjusting the heat in his car or checking his radio; (ii) when (or if) he checked his speedometer; (iii) when he applied the brakes; and (iv) the origin of the first set of dealer plates. I was also puzzled by his explanation for not properly registering his vehicle. I do not use the evidence concerning insurance and registration to infer that, because Mr. Aleksev may have been careless in his obligations as a purchaser, he is more likely to have committed the offences. I use this evidence (the admissibility of which was not contested) in assessing Mr. Aleksev’s credibility only.
ANALYSIS
(a) Introduction
[34] Causation is not in issue. As the trial progressed, counsel for Mr. Aleksev conceded that the evidence established causation. This is a well-founded concession. The evidence overwhelming proves that Mr. Aleksev was a significant contributing cause of Mr. Dudzicki’s death: see R. v. Nette (2001), 2001 SCC 78, 158 C.C.C. (3d) 486 (S.C.C.) and R. v. Maybin (2012), 2012 SCC 24, 283 C.C.C. (3d) 275 (S.C.C.), at pp. 281-282.
[35] During the evidence of Det. Davey, there was some suggestion that the law requires cyclists to dismount and walk their bikes at intersection crosswalks. Moreover, in his testimony, Mr. Aleksev volunteered that Mr. Dudzicki was moving faster than a pedestrian. In this case, it does not impact on causation. Mr. Simrod, on behalf of Mr. Aleksev, did not suggest otherwise. The sole issue is whether Mr. Aleksev’s driving was careless, dangerous or criminally negligent.
(b) Dangerous Driving Causing Death (ss. 249(1), (4))
[36] Dangerous driving is defined in s. 249(1) of the Criminal Code as follows:
249(1) Everyone commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place…
By virtue of s. 249(4), when death is caused in these circumstances, the maximum penalty is 14 years’ imprisonment.
[37] The fault requirements for s. 249(1) are discussed in R. v. Beatty (2008), 2008 SCC 5, 228 C.C.C. (3d) 225 (S.C.C.) and in R. v. Roy (2012), 2012 SCC 26, 281 C.C.C. (3d) 433 (S.C.C.). In Roy, the Court stressed that it is “critically important to ensure that the fault requirement for dangerous driving has been established.” (p. 443) Writing for the Court, Cromwell J. explained at p. 443:
The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness. [emphasis in the original]
[38] In terms of actus reus, Cromwell J. held that s. 249 calls for an objective inquiry into whether the driving was dangerous to the public. As he cautioned at pp. 444-445, “the focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved.”
[39] The mens rea component of the offence turns on whether the 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”: Roy, at p. 445 and Beatty, at p. 250. In Roy, Cromwell J. held that this element has two components. First, it should be asked whether a reasonable person would have foreseen the risk and taken steps to avoid it. The second question is whether the accused’s failure to foresee the risk and take steps to avoid it amounted to a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.
[40] In determining whether a marked departure has been proved, a modified objective standard is employed. This standard places the reasonable person in the accused’s circumstances, but personal attributes (such as age, experience, etc) short of incapacity are irrelevant: Beatty, at pp. 249-250. In Roy, Cromwell J. further elaborated on proof of this fault requirement at p. 446:
Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. 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: Beatty, at para. 37. [emphasis added]
[41] The Crown relies on a number of features of Mr. Aleksev’s conduct to establish dangerous driving, especially his speed. As discussed above, the precise speed of the BMW was not established. Det. Davey was able to say that it was going 67 km/h (+/- 5%) immediately after hitting Mr. Dudzicki and that it was braking. I also rely on the evidence of the three laypersons (Messrs. Manouchehri, Matzliach and Greber) who provided speed estimates. Collectively, they established a range of 90 to 110 km/h, with complete convergence at the lower level. I am satisfied that the speed estimate of Mr. Manouchehri was completely independent of Messrs. Matzliach and Greber. It might be said that the latter were not independent of each other, given their association as colleagues. However, the evidence of these two men was inconsistent on a number of points, restoring my confidence in each making their own estimate of the speed.
[42] I find the speed estimate evidence of Messrs. Manouchehri, Matzliach and Greber to be helpful: see R. v. Graat (1982), 1982 33 (SCC), 2 C.C.C. (3d) 365 (S.C.C.) and Hon. David Watt, Watt’s Manual of Criminal Evidence – 2015 (Toronto: Carswell, 2015), at §30.01. I appreciate that all 3 men had just a brief period of time to observe the BMW that morning. But this is often the case with speed estimate opinion evidence. This evidence must be considered in context. It was bolstered somewhat by Det. Davey, especially given that his calculations generated a minimum speed estimate of a braking car.
[43] On all of the evidence, I conclude that as the BMW approached the intersection, it was travelling in the range of 90 km/h. This is significantly over speed limit. Moreover, it must remembered that, at the critical time of the collision, the speed of the car is not to be measured against the speed of other cars moving in the same direction. The BMW was travelling at 90 km/h when it should have been stationary.
[44] In some circumstances excessive speed may be enough to constitute dangerous driving: see R. v. Richards (2003), 2003 48437 (ON CA), 174 C.C.C. (3d) 154 (Ont. C.A.) and R. v. M. (M.K.) (1988), 1998 1324 (ON CA), 35 M.V.R. (3d) 319 (Ont. C.A.). But the Crown relies on more than just excessive speed at the time of impact; it also relies on the manner of driving that preceded the collision. This includes the speed and erratic driving observed by Mr. Manouchehri when Mr. Aleksev’s car passed the school bus. I accept his evidence that Mr. Aleksev had to take evasive action when passing the school bus, the type of vehicle that other drivers ought always to approach with caution.
[45] The Crown also relies on the fact that, while driving so fast, Mr. Aleksev chose to remove his attention from the road. As I have already noted, Mr. Aleksev’s evidence was problematic on this issue. On the one hand, he said that he was adjusting the heat. This seems unlikely given he was almost at his destination. On the other hand, Mr. Aleksev said that he was checking his radio. This seems more probable in the circumstances. In either situation, it was a dangerous thing to do when driving at a high rate of speed when there was so much pedestrian and vehicular traffic in the area, an area that was well known to Mr. Aleksev.
[46] The combination of speed and distraction created a real hazard that any reasonable person in Mr. Aleksev’s circumstances would have realized. As a result, he did not notice that the light had changed and a truck had entered the intersection. Without braking, Mr. Aleksev drove around the truck and into the intersection, completely blind to what or who was on the other side. It could have been anybody – an elderly pedestrian, a group of school children, members of the Armed Forces going to work or a parent pushing a stroller. It was Mr. Dudzicki on his bike.
[47] I am satisfied beyond a reasonable doubt that this conduct constitutes a marked departure from what is expected of the reasonable person in the circumstances. Had Mr. Aleksev not attempted to take evasive action and collided with the truck coming through the intersection, I still would have characterized his driving in the same manner.
[48] I find Mr. Aleksev guilty of dangerous driving causing the death of Mr. Dudzicki.
(c) Criminal Negligence Causing Death (ss. 219 and 220)
[49] I turn now to the offence of criminal negligence causing death. For this offence, a greater departure from what is expected of a reasonable person must be established. This flows from the wording of the section and the manner in which the courts have interpreted it.
[50] Section 219(1) of the Criminal Code does not require mere proof of dangerous conduct (e.g., driving); instead, to prove criminal negligence, it must be established that the conduct of the accused person “shows a wanton and reckless disregard for the lives and safety of other persons.” Compared to dangerous driving, the departure from the norm must be “marked and substantial”: see R. v. J.F. (2008), 2008 SCC 60, 236 C.C.C. (3d) 421 (S.C.C.), at p. 212. The Crown must prove either that the accused was aware of the obvious and risk to the lives or safety of others, but went ahead anyway, or gave no thought to the risk.
[51] Courts have attempted to explain the distinction between “a marked departure” vs. “a marked and substantial departure”, often in the context of driving cases. For example, in R. v. J.L. (2006), 2006 805 (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.), Weiler J.A. noted at p. 329 that “criminal negligence causing death is at the high end of a continuum of moral blameworthiness,” cascading down to dangerous driving and then careless driving under provincial statutes. She noted that, “[w]hether specific conduct should be categorized as criminal negligence is one of the most difficult and uncertain areas in the criminal law…” Citing R. v. Anderson (1990), 1990 128 (SCC), 53 C.C.C. (3d) 481 (S.C.C.), at 484-485, Weiler J.A. drew the following distinction at pp. 329-330:
Criminal negligence requires a more elevated standard. The departure from the norm must be more marked in both the physical and the mental elements of the offence. See R. v. Palin (1999), 1999 9834 (QC CA), 135 C.C.C. (3d) 119 (Que. C.A.), leave to appeal refused…The requirement for a greater marked departure in both the physical and mental elements is consistent with the higher level of moral blameworthiness associated with criminal negligence, namely, wanton or reckless disregard for the life or safety of others. See R. v. Fortier (1998), 1998 12917 (QC CA), 127 C.C.C. (3d) 217 (Que. C.A.).
[52] Similarly, in R. v. Willock (2006), 2006 20679 (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.), the Court grappled with this distinction, at p. 72:
This was an unusual criminal negligence trial in at least two respects. First, there was little, if any, dispute as to the credibility or reliability of any of the witnesses who testified. Second, the conduct said to constitute the act of criminal negligence occurred entirely within a two to three second timeframe. There was nothing in the appellant's conduct or his manner of driving before that brief timeframe that offered any support for the Crown's case. To the contrary, the appellant's driving prior to those fateful seconds was entirely proper.
There can be no doubt that conduct occurring in a two to three second interval can amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others. However, conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum: see R. v. Waite (Ont. C.A.), supra, at 342; R. v. Hundal (1993), 1993 120 (SCC), 79 C.C.C. (3d) 97 at 106 (S.C.C.).
[53] Before he hit Mr. Duzicki, Mr. Aleksev’s driving was anything but pristine. As I have detailed, Mr. Aleksev was on a reckless course that morning, almost clipping a school bus on a road with a pronounced curve. After taking corrective action, he continued to drive at a high rate of speed towards a busy intersection. If this was not treacherous enough already, Mr. Aleksev decided to adjust his radio, which took his attention away from the road, so much so that the light changed from green-to-amber-to-red a number of seconds before realizing it. In the meantime, a truck drove into the intersection. Instead of slamming on his brakes and attempting to stop, Mr. Aleksev decided to drive blindly into the intersection, giving no thought to what was on the other side of the truck. Mr. Aleksev saw Mr. Dudzicki, he braked, but it was too late.
[54] On this evidentiary basis, I am also satisfied beyond a reasonable doubt that Mr. Aleksev’s conduct also reflected a marked and substantial departure from what is expected of a reasonable person in the circumstances. That morning, Mr. Aleksev showed a wanton and reckless disregard for the safety and lives of others, one that led to the death of Mr. Dudzicki.
[55] I find Mr. Aleksev guilty of criminal negligence causing the death of Mr. Dudzicki.
(d) Unlawful Act Manslaughter (s. 222(5)(a) and (b))
[56] In the normal course, the findings I have already made would be sufficient to decide this case. However, the Crown has also charged Mr. Aleksev with manslaughter based on the unlawful act of dangerous driving (s. 222(5)(a)) and by criminal negligence (s. 222(5)(b)).
[57] Manslaughter based on criminal negligence is indistinguishable from criminal negligence causing death. There are no further fault requirements. However, to obtain a conviction for manslaughter under s. 222(5)(a), the Crown must prove the predicate offence (dangerous driving), and that the offence was objectively dangerous, in the sense that it was likely to injure: R. v. DeSousa (1992), 1992 80 (SCC), 76 C.C.C. (3d) 124 (S.C.C.). Moreover, the Crown must prove objective foreseeability of the risk of bodily harm that is neither trivial nor transitory: R. v. Creighton (1993), 1993 61 (SCC), 83 C.C.C. (3d) 346 (S.C.C.) and R. v. Sarrazin (2011), 2011 SCC 54, 276 C.C.C. (3d) 210 (S.C.C.), at p. 219. As Watt J. (as he then was) explained in R. v. Worrall (2004), 2004 66306 (ON SC), 189 C.C.C. (3d) 79 (Ont. S.C.J.), at p. 84, the Crown must prove that a reasonable person in the accused’s circumstances would foresee a risk of bodily harm of the nature described, although not necessarily the precise harm that occurred.
[58] In this case, there is ample evidence to support this finding. While a reasonable person may not have foreseen that a cyclist was on the other side of the truck, it would have been obvious to the reasonable person that everyone at the intersection (whether in a vehicle, on foot or on a bike) was in danger of being injured by Mr. Aleksev’s driving. Hence my finding that Mr. Aleksev showed a wanton and reckless disregard for the safety and lives of others.
[59] I find Mr. Aleksev guilty of manslaughter in the death of Mr. Dudzicki on the basis of ss. 222(5)(a) and (b) of the Criminal Code.
CONCLUSION
[60] In concluding these reasons, I make the following observations. At the time of arraignment, I inquired about the inclusion of the manslaughter charge.[^1] The Crown advised that, in this case, “there are some circumstances that put it beyond just the criminal negligence aspect.” Now that the trial has concluded, this additional aspect is not apparent to me. During submissions, I was further told that: “I don’t know what we did in the past, but I can tell you in the future you may be seeing more and more of these cases as manslaughters, as opposed to just the driving offences.”
[61] Looking ahead, although Mr. Aleksev has been found guilty of all three offences, the rule against multiple convictions requires that I enter a conviction on only one and impose conditional stays on the others: R. v. Kienapple (1975), 1974 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.) and R. v. Prince (1987), 1986 40 (SCC), 30 C.C.C. (3d) 35 (S.C.C.). The Crown is entitled to have a conviction registered on the most serious offence, determined by the maximum punishment: R. v. Loyer (1978), 1978 194 (SCC), 40 C.C.C. (2d) 291 (S.C.C.), at p. 294. In this case, however, criminal negligence causing death and manslaughter by criminal negligence are offences of equal gravity.[^2] They both carry maximum sentences of life imprisonment. Consequently, during the sentencing phase of proceedings, I invite submissions on whether it would be appropriate to enter a conviction for manslaughter as opposed to criminal negligence causing death.[^3]
TROTTER J.
Released: April 14, 2016
CITATION: R. v. Aleksev, 2016 ONSC 1834
COURT FILE NO.: 95/15
DATE: 20160414
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
ALEKSEY ALEKSEV
REASONS FOR JUDGMENT
TROTTER J.
Released: April 14, 2016
[^1]: The type of offending in this case is typically criminalized by dangerous driving causing death or criminal negligence causing death. When alcohol is involved, offences under ss. 255(3) and (3.1) are also available.
[^2]: Conceptually, they are indistinguishable. See Hon. David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 750: “Despite the difference in name, manslaughter by criminal negligence is indistinguishable from criminal negligence causing death.” See also R. v. Morrisey (2000), 2000 SCC 39, 148 C.C.C. (3d) 1 (S.C.C.), at p. 28.
[^3]: See R. v. Layugan, [2016] O.J. No. 1725 (S.C.J.), at paras. 75-83. See the thoughtful discussion in the reasons of Chief Justice Freedman in R. v. Williams (1981), 1981 3173 (MB CA), 63 C.C.C. (2d) 141 (Man. C.A.), at pp. 148-151.