COURT FILE NO.: CR-16-50000338-0000 DATE: 20 170421 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Michael Coristine for the Crown

• and -

MARK AHYE Charn Gill for Mark Ahye

HEARD: February 28, March 1 – 3, 2017

REASONS FOR DECISION

CORRICK J.

Introduction

[1] On September 6, 2014 at 5:40 p.m., Mr. Ahye was driving a black Acura westbound on Burnhamthorpe Road at a high rate of speed when he struck a Toyota Prius driven by John Penner. Mr. Penner’s wife, Heather, and son were passengers in the Prius at the time of the collision. Mr. and Mrs. Penner, who was in the front passenger seat of the car, were injured as a result of the collision.

[2] Mr. Ahye was tried by me without a jury on two counts of dangerous driving causing bodily harm.

[3] I heard evidence from Mr. and Mrs. Penner, a police officer who took photographs at the collision scene, two civilian witnesses who saw the collision, and two accident reconstruction experts. Finally, an Agreed Statement of Facts was filed as Exhibit 1. Mr. Ahye did not testify.

[4] The following facts are admitted in the Agreed Statement of Facts, or are not in dispute.

[5] Burnhamthorpe Road is a four-lane road that runs east and west with two lanes in each direction. The posted speed limit is 50 kph. September 6, 2014 was a sunny day. The roads were dry. Alcohol and drugs were not factors in the collision.

[6] The witnesses describe three cars involved in these events; a light coloured car operated by an unknown driver, a Prius operated by Mr. Penner, and a dark or black car, which is the black Acura operated by Mr. Ahye.

Evidence of Mr. and Mrs. Penner

[7] Mr. and Mrs. Penner testified that during the afternoon of September 6, 2014, they had attended a social gathering at a friend’s home near the collision site. Mr. Penner had a plane to catch that evening from Pearson airport. They left their friend’s home at 5:30 p.m., and intended to proceed directly to the airport.

[8] Mr. Penner has no recollection of the collision. His recollection ends before he reached the stop sign at Shaver Avenue North and Burnhamthorpe Road. He testified that his intention that afternoon was to drive south from his friend’s home on Shaver Avenue North to Burnhamthorpe Road, turn right on Burnhamthorpe Road to travel west to Highway 427, and proceed north to the airport. He testified that he was not in a rush.

[9] Mrs. Penner testified that her husband drove the route that he had intended to. He stopped at the stop sign at Shaver and Burnhamthorpe. He began to turn right into the curb lane of Burnhamthorpe Road, when their car was struck by a black car that was travelling westbound at highway-type speed in the curb lane of Burnhamthorpe Road. Mrs. Penner testified that she saw a light car and a black car travelling westbound on Burnhamthorpe in the passing lane when Mr. Penner first arrived at the stop sign. She made no note of the speed of the cars at that time. The black car moved into the curb lane before striking the Penner car.

Evidence of Michael Lethbridge

[10] Michael Lethbridge saw the collision. He testified that he was standing on the sidewalk just west of the northwest corner of Burnhamthorpe and Martingrove Roads, when the sound of two cars racing towards him caught his attention. He testified that he heard engines revving and tires squealing. He first caught sight of the cars, one light in colour, and one dark, when they were 50 to 100 yards away from him, near a church at Wedgewood Drive and Burnhamthorpe, east of the intersection of Burnhamthorpe and Martingrove. As the cars approached the intersection, they were weaving between lanes, jockeying for position. When they travelled through the intersection, the dark car was in front. They switched lanes and the dark car was in the curb lane and the light car was in the passing lane. The light car passed the dark car and moved into the curb lane. The dark car moved into the passing lane. Just before Shaver Avenue North, the two cars came upon traffic. The light car accelerated to get ahead of the dark car. It moved into the passing lane in front of the dark car, causing the dark car to collide head on or nearly head on with the Prius, which was travelling eastbound on Burnhamthorpe Road. Mr. Lethbridge testified that the light car did not stop following the collision. He saw the collision from about 100 metres away.

[11] Mr. Lethbridge testified that both cars were being driven aggressively and fast. Each car was trying to block the other. They were competing for space with each other, giving him the impression that they were racing or engaged in road rage. In chief, he testified that they changed lanes twice. In cross-examination, he described only one lane change, which occurred as the cars passed through the intersection of Martingrove and Burnhamthorpe Roads.

Evidence of Silvia Yeomans

[12] Silvia Yeomans also witnessed the collision. She was driving west on Burnhamthorpe Crescent with her two young children in the car at around 5:30 p.m. on September 6, 2014, when she noticed a black Acura following behind her very closely. Burnhamthorpe Crescent is a roadway with speed bumps on it. Ms. Yeomans testified that she was travelling about 20 kph. She stopped at a stop sign before travelling west on Burnhamthorpe Road. The Acura also continued on to Burnhamthorpe Road and at some point passed Ms. Yeomans’ car. The Acura reached a red light at Kipling and Burnhamthorpe before Ms. Yeomans. They both stopped at that intersection.

[13] Ms. Yeomans and the Acura continued westbound when the light turned green. Ms. Yeomans was travelling at 60 kph. The Acura was travelling faster. Ms. Yeomans first saw the light car on Burnhamthorpe Road near Tonwell Court, which is west of Wedgewood Drive where Mr. Lethbridge first saw the two cars. According to Ms. Yeomans, the light car was travelling ahead of the Acura in the passing lane.

[14] The light car and the Acura went through a green light at Martingrove Road. She went through the amber light. She did not see any traffic ahead of her. As she went through the intersection at Martingrove, she saw a Prius come out from Shaver Avenue North to turn left onto Burnhamthorpe Road to head eastbound. Ms. Yeomans testified that the light car had just passed Shaver Avenue North when the Prius entered Burnhamthorpe Road into the path of the Acura, which struck it.

[15] Following the collision, Ms. Yeomans stopped her car and called 911. She noticed that the light car had pulled over to the side of the road. Someone got out of the passenger side of the car and walked over to the driver’s door of the Acura. That person did not approach the Prius. Ms. Yeomans walked over to the Prius to determine if the driver was conscious as she was directed to by the 911 operator. When she returned to her car, she noticed that the light car was no longer there.

[16] Ms. Yeomans testified that the light car and the Acura were travelling faster than she was along Burnhamthorpe Road, but not at ridiculous speed. She drove directly behind them until the collision occurred. Her observation of both cars was continuous. She did not see either car change lanes. She did not recall seeing the two cars side by side at any point. She testified that she observed nothing unusual about the movement of the two cars vis-à-vis each other. It seemed to her that one car was simply following the other. She did not hear tires squealing, although she could not remember whether her windows were closed.

Opinion Evidence

[17] Two accident reconstructionists testified. The Crown called D. C. Sean Davey from the Toronto Police Service. Mr. Ahye called William Jennings from Jenish Forensic Engineering. Both witnesses agreed that the Prius was struck near the centre lane of Burnhamthorpe Road, while making a left-hand turn to travel eastbound. They also agreed that the Acura was travelling westbound in the passing lane of Burnhamthorpe Road before the collision and that Mr. Ahye took no evasive action to avoid the collision. Finally, although they used different methods to calculate the speed at which Mr. Ahye was travelling at the time of the collision, both witnesses agreed that it was approximately 90 kph. D. C. Davey testified that it was between 88 and 98 kph. Mr. Jennings testified that Mr. Ahye was travelling between 86 and 95 kph.

[18] The experts disagreed about the driving behaviour of Mr. Penner and the avoidability of the collision. Officer Davey testified Mr. Ahye could have avoided the collision if he had been driving slower. Mr. Jennings testified that Mr. Penner entered Burnhamthorpe Road unsafely and Mr. Ahye could not have avoided the collision.

Issues

[19] This case raises the following issues:

1. Did Mr. Ahye drive in a dangerous manner?

2. If he did, was his driving a significant contributing cause of the injuries suffered by Mr. and Mrs. Penner?

Positions of the Parties

[20] Mr. Coristine, on behalf of the Crown, submits that he has proven beyond a reasonable doubt that,

1. Mr. Ahye drove his car in a manner dangerous to the public in all of the circumstances,

2. the dangerous manner in which Mr. Ahye drove his car was a marked departure from the standard of care that a reasonable person would have observed in the same circumstances, and

3. Mr. Ahye’s dangerous driving was a significant contributing cause of the injuries sustained by Mr. and Mrs. Penner.

[21] Mr. Coristine’s submissions rest on what he argues is ample reliable and credible evidence that Mr. Ahye was engaged in competitive driving with the light-coloured car. He concedes that the speed at which Mr. Ahye was driving is, by itself, insufficient in the circumstances of this case to find Mr. Ahye guilty. However, when taken together with the evidence in this case that supports aggressive and competitive driving on the part of Mr. Ahye, Mr. Coristine submits that he has proven the offences beyond a reasonable doubt.

[22] Mr. Gill, on behalf of Mr. Ahye, submits that the court cannot be satisfied beyond a reasonable doubt that Mr. Ahye is guilty of dangerous driving simpliciter, given the conflict in the evidence given by Mr. Lethbridge and Ms. Yeomans about Mr. Ahye’s manner of driving. Furthermore, he submits that the evidence of Mr. Jennings demonstrates that Mr. Ahye’s driving was not a significant contributing cause of the Penners’ injuries. Rather, Mr. Ahye could not have avoided the collision caused by Mr. Penner’s unsafe entry onto Burnhamthorpe Road.

The Legal Framework

Dangerous Driving

[23] It is clear from the Supreme Court of Canada’s decisions in R. v. Beatty, 2008 SCC 5, [2008] 1 SCR 49 and R. v. Roy, 2012 SCC 26, [2012] 2 SCR 60 that the Crown must prove beyond a reasonable doubt both the actus reus – the dangerous operation of a motor vehicle – and the requisite mens rea – the marked departure from the standard of care expected from a reasonable driver in the same circumstances.

[24] In determining whether the actus reus has been established I am required to focus on the risks created by the manner in which Mr. Ahye was driving rather than on the consequences of his driving: Roy at para. 34.

[25] In determining whether the mens rea has been established, I must consider whether a reasonable person in Mr. Ahye’s position would have foreseen the risk and taken steps to avoid it, and if so, whether his failure to foresee the risk and take steps to avoid it was a marked departure from the standard of care expected of a reasonable person in the circumstances: Roy at para. 36.

Dangerous Driving Causing Bodily Harm

[26] There are two components to causation; one factual and one legal. To prove factual causation, the Crown is not required to prove that Mr. Ahye’s driving was the predominant contributing cause of the injuries suffered by the Penners. The Crown need only prove that Mr. Ahye’s driving was a significant contributing cause of their injuries: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 at para. 71.

[27] Legal causation requires an inquiry into whether an accused person should be held criminally responsible for the injuries caused. This analysis engages value judgments of moral responsibility. Reasonable foreseeability of harm is a relevant consideration in the analysis of legal causation: R. v. Kippax 2011 ONCA 766 at para. 27.

General Legal Principles

[28] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.

[29] The first is that the Crown must prove beyond a reasonable doubt that Mr. Ahye is guilty of the offences charged. This standard is a high one. It is not enough for me to believe that he is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt.

[30] The second is the presumption of innocence. This presumption stays with Mr. Ahye throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that he is guilty of the crimes charged.

[31] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

Analysis

[32] I agree with Mr. Coristine’s submission that the court ought to first determine whether Mr. Ahye was driving dangerously, and then determine whether that driving caused the injuries to the Penners. I also accept his submission that Mr. Penner’s driving behaviour is not relevant to the determination of whether Mr. Ahye drove dangerously with the requisite intent on September 6, 2014.

[33] This case is difficult because honest witnesses have recounted conflicting versions of the manner of Mr. Ahye’s driving on September 6, 2014. The conflict concerns whether Mr. Ahye was racing or otherwise driving aggressively with the light car. It is difficult to reconcile the evidence of Mr. Lethbridge with the evidence of Ms. Yeomans. Trial judges are not strangers to this phenomenon in which witnesses to the same event provide divergent accounts. As the trier of fact, my task is to consider the whole of the evidence to determine whether the Crown has proven the charges beyond a reasonable doubt.

[34] Mr. Coristine submits that the whole of the evidence includes Ms. Yeomans’ evidence that following the collision, a passenger in the light car went to the crash scene to check on the condition of Mr. Ahye and no one else. Mr. Coristine submits that this is compelling circumstantial evidence that there was a relationship between Mr. Ahye and the driver of the light car. In my view, this conclusion would be highly speculative, and cannot be drawn from this evidence.

[35] Similarly I am unable to conclude that Mr. Ahye was racing or driving aggressively against the light car because he was following Ms. Yeomans’ car too closely when they were driving on Burnhamthorpe Crescent, a street with speed bumps.

[36] Ms. Yeomans’ evidence raises a reasonable doubt in my mind about whether Mr. Ahye drove his car in a manner dangerous to the public. I prefer her evidence to the evidence of Mr. Lethbridge for the following reasons.

[37] Mr. Lethbridge witnessed events from a stationary position standing on the street. He described hearing squealing tires and revving engines and seeing two cars weaving between lanes and competing for space on the roadway at a high rate of speed. Ms. Yeomans witnessed the events driving directly behind Mr. Ahye. She described the two cars travelling faster than the posted speed limit, one behind the other. She did not hear squealing tires and revving engines, nor did she see the cars change lanes.

[38] Ms. Yeomans was in a better position than Mr. Lethbridge to observe Mr. Ahye’s driving and the movement of the two cars. She observed the driving behaviour of Mr. Ahye for a much longer period of time and over a greater distance than Mr. Lethbridge. Mr. Lethbridge saw the two cars travel for about 350 metres before the collision. Ms. Yeomans observed Mr. Ahye driving for at least five times that distance, and observed both cars for at least twice that distance according to Exhibit 8. Her vantage point, driving directly behind Mr. Ahye, was better as well. She had every reason to be paying attention to the road in front of her where Mr. Ahye and the light car were travelling as she was driving in the same direction.

[39] Ms. Yeomans testified that she did not observe the two cars racing or driving aggressively; they were simply following each other.

[40] Finally, Ms. Yeomans recounted the details of what she had observed to the police at the scene following the collision. Mr. Lethbridge, however, did not recount what he had seen until some time later. He did not give a statement to the police that day. He was contacted by the police within a week of the collision and a police officer took a statement from him subsequent to that.

[41] In light of Ms. Yeoman’s evidence that Mr. Ahye was not racing or driving aggressively against the light coloured car, I am not satisfied beyond a reasonable doubt that Mr. Ahye was driving his motor vehicle in a manner that was dangerous to the public in all of the circumstances.

[42] Given this conclusion, it is unnecessary to determine whether Mr. Ahye’s driving was a significant contributing cause to the injuries sustained by Mr. and Mrs. Penner.

Conclusion

[43] I find Mr. Ahye not guilty of the two counts of dangerous driving causing bodily harm upon which he was arraigned.

[44] I also thank and commend counsel for the competent and efficient manner in which they conducted this trial.

Corrick J.

Released: April 21, 2017