CITATION: R. v. Nahwegezhic, 2016 ONSC 2275
COURT FILE NO.: CR-14-30000771-0000
DATE: 20160401
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Daniel William Nahwegezhic
Defendant
Julie Battersby, for the Crown
Lon Rose, for the Defendant
HEARD at Toronto: March 14, 15, and 16, 2016
Low J. (Orally)
[1] On January 28, 2013 shortly before 8:30 p.m., the accused was driving his car across a row of parking spaces at a strip mall and collided with the complainant, Cody Allydice. Mr. Allydice was struck on the right knee. His face hit the windshield of the accused’s car. He then rolled off the hood of the car on to the pavement, hitting his head.
[2] Mr. Allydice suffered injuries. He had at least one broken tooth. His upper front teeth were knocked deeper into the gum. His lower lip was torn and required some 17 sutures to close. His right knee sustained visible bruising. Mr. Allydice walked with a limp into the courtroom to testify. Whether, however, there is permanent injury to his knee and whether he has suffered a disability is in dispute in other litigation arising out of the incident and I make no findings in that regard.
[3] The incident took place in a parking lot at the south end of a strip mall located at the north of the intersection of Danforth and Birchmount Roads in the east end of Toronto. The intersection of those roads forms a V-shaped parcel of land upon which the mall is built.
[4] The accused did not stop his car when he hit the complainant. Instead, he kept driving and left the parking lot exiting at Danforth Road.
[5] Mr. Allydice walked to the pizza store in the mall where he cleaned the blood off his face in the washroom and returned to the scene of the incident. He shouted out, “Is no one going to help me?” Sarah Tamburano, a witness to the incident went over to him, spoke to him and called emergency services for him. Mr. Allydice was taken to hospital and treated for his injuries in the emergency ward.
[6] The accused is charged with dangerous driving, failing to stop his vehicle knowing that bodily harm had been caused, assault bodily harm, assault with a weapon, namely a vehicle, breach of recognizance by violating curfew of 8 p.m. to 8 a.m., and breach of recognizance by violating a prohibition against communicating with one Megan Ritchie.
[7] The accused initially pleaded not guilty to all charges. Subsequently, it was acknowledged that the accused was in breach of recognizance by violating his curfew. He was out of his residence after 8 p.m. and before 8 a.m. and he was in the company of Megan Ritchie at the time of the incident on January 28, 2013 when he hit Cody Allydice with his car. The plea was changed to guilty on counts 5 and 6.
[8] The complainant and two civilian witnesses, Kathleen and Sarah Tamburano testified, and it is not disputed, that the accused did not stop his car after he hit Mr. Allydice. He drove off into the night.
[9] I find that it would have been obvious in the circumstances of the accused’s car hitting Mr. Allydice, Mr. Allydice’s face coming into contact with the windshield and his subsequent fall to the ground that Mr. Allydice most probably would have suffered bodily harm if not worse. The accused did not bother to stop his car to ascertain the nature and extent of the injury he had caused--much less to offer assistance. He showed a callous disregard for the consequences of his actions and, in contravention of s. 252 of the Criminal Code, he did not stop and give his name and address. There was no evidence of absence of intent to escape civil or criminal liability, and the requisite mens rea is therefore deemed proved pursuant to s. 252(2).
[10] There will therefore be a finding of guilt on count 2.
[11] The central issue at trial was whether the collision was accidental or intentional on the part of the accused.
[12] There were two eye witnesses to the incident, Kathleen Tamburano and Sarah Tamburano. It is their testimony and that of the complainant concerning what took place in the few minutes before the collision that gives some credence to the contention that the accused intended to hit the complainant with his car.
[13] The mall where the incident occurred contains, among other things, a Sun Valley Supermarket and a Pizza Pizza store.
[14] The supermarket is located at the southern end of the U-shaped mall and faces south. In front of the supermarket are two rows of parking spaces perpendicular to the storefront separated by a driving lane. At the west end of the driving lane is the exit to Birchmount Road; at the east end of the driving lane is the exit to Danforth Road. Separating the supermarket storefront and the northern row of parking spaces is a sidewalk. Around the corner to the east and north of the supermarket is the Pizza Pizza store.
[15] The Pizza Pizza security video shows that at 8:12 p.m. the accused, together with a female and two children, entered the pizza store, followed shortly thereafter by the complainant. At 8:27 p.m., the accused exited the store with his entourage, followed shortly thereafter by Mr. Allydice. Mr. Allydice is a person of African descent.
[16] The security video shows that at 8:32 p.m., the Mr. Allydice re-entered the pizza store. He spoke in an animated manner to the counter clerk and then proceeded off camera to the washroom to clean the blood from his face. He then left the pizza store and went back to the sidewalk in front of the Sun Valley. In response to his shouting out, “will no one help me?” Sarah Tamburano left the car she was sitting in and went over to speak to Mr. Allydice who seemed shaken. She went into the Sun Valley Supermarket to call emergency services.
[17] The collision took place some time between 8:27 p.m. and 8:32 p.m.. It took place in a parking space immediately to the south of the sidewalk fronting the supermarket storefront. Katheleen Tamburano and her daughter Sarah were sitting in a car facing the supermarket, the sidewalk and the row of parking spaces on the north side of the driving lane.
[18] The interaction between the complainant and the accused began just shortly after 8:27 p.m.. Both the accused and Mr. Allydice bought pizza. The accused left the store first and, together with the female accompanying him and the two children, got into his car which was parked in front of the pizza store.
[19] Mr. Allydice testified that when he came out of the pizza store, he stopped to look at the car that the accused was sitting in. It was shiny, new and black. Mr. Allydice testified that he likes shiny black cars. He testified that he did not like the way the accused was looking at him from inside the car, and that he therefore said to the accused, “Are you ok?” It appeared to him that the accused could not hear him, and rolled down his window to ask what Mr. Allydice had said.
[20] I find that Mr. Allydice was seeking a confrontation. There was no logical reason for him to have spoken to the accused at all and the question “Are you ok?” made no sense in the circumstances. It was a ploy to engage with the accused.
[21] What followed was a mutual volley of profanity. The complainant challenged the accused to get out of the car and fight; the complainant was heard to say to the accused, “are you calling me a fucking nigger”. The accused was heard to tell the complainant, probably more than one time, to “fuck off”.
[22] The accused initially did not get out of the car to engage in a fight and the complainant proceeded to walk south and west across the front of the Sun Valley Supermarket. The accused pulled out of his parking spot and went westbound along the front of the Sun Valley Supermarket. He stopped his car near the complainant and got out of the car. The complainant put down his pizza and telephone. The accused approached the complainant, but before a fight began, he suspected and that the complainant had a knife and said so. The complainant denied having a knife, but the accused got back into his car and drove off westbound toward the exit to Birchmount Road.
[23] Kathleen and Sarah Tamburano, mother and daughter respectively, had been seated in their car which was parked in the southern row of parking spots facing the Sun Valley Supermarket. Kathleen had come to pick up her daughter after work and the two were seated in the car chatting. They were facing the Sun Valley store front, the sidewalk outside the storefront and the row of parking spots opposite the row in which they were parked. They heard some of the interchange between the complainant and the accused. At one point, the complainant was heard to say, “Do you want to hit me?”At another point, the accused was heard to say, “That sounds like fighting words”.
[24] While Sarah Tamburano testified that the accused was going westbound when he hit the complainant, I find her evidence not reliable on this point. Kathleen Tamburano testified that the accused first proceeded westbound going at about 10 km then made U-turn and went back eastbound going at about 15 km, driving near the sidewalk curb. In this respect, her evidence is consistent with that of the complainant who testified that when the accused got back into this car he drove away in the direction in which he had commenced which was westbound. It is clear that at that point he had not been hit by the car.
[25] The complainant was hit by the accused’s car after it made a U-turn and was proceeding eastbound.
[26] The complainant testified that he was in the middle of the parking lot when he got hit. I do not accept this evidence. I found the complainant’s testimony to be highly problematic as it was rife with exaggeration, motivated perhaps by his interest in compensation in a civil suit in tort. An example was his evidence that his lip was left hanging below his jaw as a result of the collision. That was an untrue statement as evidenced in the Pizza Pizza security video showing him speaking in an animated fashion to the store clerk. His evidence also contained allegations that lacked an air of reality – for example, his evidence that two black males drove by after he had been hit and that the two males simply stared at him for 20 seconds.
[27] I found Kathleen Tamburano to be a reliable and credible witness. I accept her evidence. The complainant was on the curb when the accused drove off westbound. As the accused’s car came back eastbound and as it got closer to the curb, the complainant stepped off the curb, was hit and rolled over the top of the hood. Before he stepped off the curb, Mr. Allydice was just standing there, yelling. As the accused was speeding up, the complainant stepped off the curb.
[28] In the absence of the verbal altercation that preceded the collision, there would have been nothing in the incident that would suggest anything other than an accident of the kind that takes place with almost routine regularity anywhere pedestrians and motorists must share terrain.
[29] I am asked to infer in these circumstances that the accused intended to strike the complainant with his car.
[30] I am not able to draw such an inference beyond a reasonable doubt. While a reasonable suspicion is raised that the accused may have acquired, in the five minutes between 8:27 p.m. and 8:32 p.m. a sufficient animus toward the complainant to form the intention to strike him with his car, a suspicion reinforced by the U-turn and the driving faster than is usual and closer to the sidewalk than is intended by the designer of the parking lot, I am nevertheless left with an equally plausible explanation for the collision that involves no intention on the part of the accused.
[31] The starting point is the location of the complainant. I find that he was on the sidewalk as the accused drove away to the west. The complainant was still on the sidewalk as he started east across the parking lot. There is no particular reason why the accused would or could expect the complainant to be on the roadway pavement after he turned around to go east to the other exit.
[32] At the same time, there are innocent reasons for making a U-turn within a parking lot to use a different exit. The location may not have been a familiar one, or the driver may have changed his mind as to where he was going next.
[33] I am therefore not satisfied beyond a reasonable doubt that the accused intended to hit the complainant with his car.
[34] I turn next to whether the accused drove dangerously.
[35] It is not in dispute that the collision caused bodily harm to Mr. Allydice.
[36] According to the complainant, there was black ice in the parking lot and it was very slippery. This is not supported by either of the Tamburano witnesses, nor by Officer MacLeod who attended that evening to take photographs of the scene. According to the Tamburano witnesses, the lot was not particularly slippery. This was not inconsistent with the evidence of Officer Macleod who testified that it was wet and snow covered, but not a sheet of ice. In short, the conditions were likely typical of a late January day in Toronto.
[37] The parking lot was, according to the photographs, well lit. There were few parked cars at the time of the incident and, as the Sun Valley Supermarket had close at about 8 p.m., I infer that there was little traffic in the parking lot, either motor or pedestrian.
[38] Ms. Tamburano testified that the accused was going about 10 km as he drove westbound and about 15 km as he drove eastbound. Although I consider her to be a credible witness in the sense that she had no bias or interest and showed none of the indicia of lack of frankness with the court, I am not satisfied that her eye’s estimate as to speed is reliable. She was sitting in her car having a chat with her daughter. Her attention was not focused in particular on the accused’s car or its speed and she had neither scientific means nor personal expertise to measure the car’s speed. I accept her evidence, however, that the accused was going faster than one would normally expect in a parking lot.
[39] That said, I am not satisfied that going faster than is normally expected, even taken together with driving across parking spaces rather than on the intended travelling portion of a parking lot, demonstrates the marked departure from the manner in which a reasonably prudent and careful driver would drive in the circumstances. There was at least one car parked in the southern row of parking spaces and none in the northern row. While the ground was not a sheet of ice, it was nevertheless wet and snow covered. There was little traffic. In those circumstances, it would not seem unreasonable or imprudent to drive farther away from the cars parked in the southern row of spaces than would be the case if there were cars parked in both rows of parking spaces. In totality, I am not satisfied beyond reasonable doubt that the manner in which the accused drove his car was dangerous.
[40] There will therefore be a finding of not guilty on counts 1, 3 and 4.
___________________________ Low J.
Date of reasons for judgment: April 1, 2016
Date of Release: April 5, 2016
CITATION: R. v. Nahwegezhic, 2016 ONSC 2275
COURT FILE NO.: CR-14-30000771-0000
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Daniel William Nahwegezhic
Defendant
REASONS FOR JUDGMENT
Low J.
Date of reasons for judgment: April 1, 2016
Date of Release: April 5, 2016