Court File and Parties

COURT FILE NO.: CR-16-30000016-0000 DATE: 20170526 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MICHAEL DEAN LIGHTS Accused

Counsel: Thomas Pittman, for the Crown Christopher Murphy, for the Accused

HEARD: April 7 to April 12, 2017

B.A. ALLEN J.

REASONS FOR DECISION

Background

[1] The accused, Michael Lights, was arrested on January 1, 2014 and charged with four driving offences involving two victims: dangerous driving causing bodily harm against Vicky Milevska and Colibu Tchadouwa under s. 249(3) of the Criminal Code and charges of criminal negligence causing bodily harm under s. 221.

The Collision

Site of the Collision

[2] The collision occurred at about 4:32 a.m. at the intersection of Lawrence Ave. E. and Brimley Rd. in Scarborough. The collision occurred about 700 metres from Scarborough General Hospital. Now retired P.C. Scott Kerr, the scene of crime officer, arrived at the scene of the collision and took photos, 56 of which are exhibits. The photos capture the conditions at the intersection from multiple vantage points. He took numerous photos of the three vehicles involved in the collision which depicted the damage to each and their locations at the intersection.

[3] Lawrence Ave. runs east and west with three lanes running in each direction and a designated left turn lane in each direction. There is a concrete median with a traffic light standard in the centre on Lawrence Ave. E. separating the eastbound and westbound traffic. Brimley Rd. has two lanes running northbound and two lanes running southbound. There is a dedicated left turn lane running in each direction.

Scene of Crime Photos and Expert Report

[4] The Crown retained the services of a collision reconstruction expert. The defence did not challenge the expertise of the report’s author. After hearing D.C. Daniel Fairwell’s background and experience I accepted him as an expert in collision reconstruction.

[5] D.C. Fairwell arrived at the scene of the collision at 7:45 a.m. with his team. He made notes and prepared a report entered into evidence at trial. D.C. Fairwell described the road surfaces as wet. Scott Kerr testified the weather that morning was clear and cold with snow on the ground. He testified there was a mix of snow and icy glaze on the road and snow on the ground. The temperature was 8.9 ° C.

[6] D.C. Fairwell indicated that the area was well lit with artificial lighting. Mr. Tchadouwa’s evidence was in accord that the area was well lit and the weather clear with some snow on the road. Mr. Tchadouwa testified there were very few vehicles on the road at the time of the collision.

[7] D.C. Fairwell included in his report the results of the mechanic’s post-accident assessment of the Nissan. The mechanic reported low brake pads and minimum tread on the tires. The vehicle would not have passed a Ministry of Transportation test.

[8] A dark coloured 2002 Nissan Altima (“the Nissan”) alleged to have been driven by Mr. Lights was on the northeast corner of Brimley and Lawrence Ave. E. when D.C. Fairwell arrived. At the time the photos were taken of the Nissan the front driver’s door was closed. The rear passenger window on the driver’s side had no glass and the front driver’s side window was completely closed.

[9] A white Ford Escape SUV (“the white SUV”), driven by Ms. Milevska, was located post-accident in the eastbound lane on Lawrence E. facing south in the curb lane just east of the intersection. The photos depict damage to the driver’s side left quarter panel and wheel and damage to the driver’s door. D.C. Fairwell testified that the damage was caused by the rear tire of the Nissan.

[10] A Ford Flex (“the Ford Flex”), driven by Mr. Tchadouwa, was located on the northeast corner of Brimley Rd. and Lawrence Ave. E. The photos depict damage to the left front corner of the driver’s side. D.C. Fairwell testified that the damage next to the battery at the left front of the vehicle was caused when the Nissan struck the median and the light standard and then struck the Ford Flex on its left front corner.

The Victims of the Accident

Vicky Milevska and the White SUV

[11] Ms. Milevska was on her way home at about 4:30 a.m. on January 1st with her husband, Vlado Milevska. She was driving the white SUV northbound on Brimley toward Lawrence Ave. E. approaching the intersection. The light was red when she first arrived there. She waited until it turned green and then proceeded through the light. That is the last thing she recalled until she found herself in the hospital.

[12] Ms. Milevska sustained a concussion, a cut on her head, broken ribs and a broken pelvis. She testified she still suffers from headaches and pain in her shoulder and pelvis. Mr. Tchadouwa and Ms. Bopaul looked inside the driver’s side window of the SUV. They saw, who turned out to be Ms. Milveska, her head covered with blood and dangling back over her left shoulder.

[13] I will deal below with Mr. Tchadouwa’s evidence about the impact to his vehicle.

[14] Mr. Tchadouwa gave details about what he observed of the collision of the Nissan with the white SUV. He saw the white SUV to the left of the Nissan in the northbound lane on Brimley Rd. The white SUV first stopped on a red light and then it proceeded through the green light. The Nissan was speeding eastbound facing a red light which Mr. Tchadouwa saw the Nissan speed through. The Nissan’s collision with the white SUV occurred as the white SUV was proceeding northbound on Brimley Rd.

[15] The Nissan struck the white SUV and the Nissan went airborne, struck the light standard in the median and then struck Mr. Tchadouwa’s Ford Flex.

Colibou Tchadouwa and the Ford Flex

[16] Mr. Tchadouwa was on his way to drive home a couple and their baby who had attended a party at their home. The father of the couple sat beside Mr. Tchadouwa and the mother and baby were in the back seat.

[17] When the Nissan hit the light standard it snapped the pole and dropped in height. The Nissan spun and made its first impact on the driver’s side of the Ford Flex. Mr. Tchadouwa felt his vehicle was pushed back about three metres with impact. Then the second impact to the Ford Flex occurred. The front of the Nissan contacted the back driver’s side bumper of the Ford Flex.

[18] Mr. Tchadouwa jumped out of his vehicle and first approached the Nissan to see the circumstances of its occupants and then went to the white SUV. I have already mentioned his observations of the white SUV. I will deal below with Mr. Tchadouwa’s observations of the Nissan and its occupants.

[19] The Nissan caught on fire so Mr. Tchadouwa returned to his Ford Flex and drove it a little distance away from the Nissan.

The Nissan and the Collision

[20] Mr. Tchadouwa observed the movement and circumstances of the Nissan before the collision. He was driving his Ford Flex westbound in the centre lane on Lawrence Ave. E. He approached the intersection from 150 to 200 metres from the intersection. The light facing him turned amber and then red. As he approached at three metres from the light his vehicle was crawling forward.

[21] There was no other vehicle or anything else obstructing Mr. Tchadouwa’s view. Before he came to a full stop, from about 500 metres away, he saw the Nissan in the centre lane speeding eastbound on Lawrence Ave. The Nissan sped through the intersection and through the red light. There was no attempt to slow down or brake.

[22] Mr. Tchadouwa observed that all the lights on the Nissan were out. Scott Kerr’s report of the mechanic’s findings reveals that the Nissan’s light switch was on during the inspection. This suggests that although the switch was on during the collision, the lights were not operational. The Nissan then struck the white SUV - which was proceeding on a green light northbound on Brimley Rd. - on its left front.

Witness Observations

The Witnesses

[23] A defence was not called. The defence takes the position that the Crown has not proven beyond a reasonable doubt that Mr. Lights was driving the Nissan at the time of the collision.

[24] In addition to Mr. Tchadouwa, the Crown relied on persons who arrived at the scene to help, Sally Bopaul and Angelo Hofilena and an EMS worker, Justin Pears, as well as P.C. Christopher Hargreaves, to testify about their observations.

Colibou Tchadouwa

[25] As Mr. Tchadouwa approached the Nissan, he saw a woman in the rear passenger seat on the driver’s side screaming, “My boyfriend has been shot. My boyfriend has been shot”. He saw a male in the driver’s seat. Mr. Tchadouwa observed that the driver’s side window was up.

[26] Mr. Tchadouwa testified the male in the driver’s seat had corn rows in his hair braided from front to back. His face was covered with a powdery substance from the engaged airbag. He described him as “African American”, not as dark as him. He agreed with his police statement that the driver was wearing a light or beige top.

[27] Mr. Tchadouwa testified he saw a male in the back seat on the driver’s side with his feet sticking out of the window. He said there was no glass in that window. He saw another male in the back seat with the torso of the other man (who had his feet sticking out of the window) laying on his lap. The man was stretched out across the laps of the man in the rear passenger seat and the woman in the rear seat on the driver’s side. Mr. Tchadouwa believed the man lying across the two laps was the boyfriend who was shot.

[28] Mr. Tchadouwa testified he next went to the driver’s window. He asked the man in the driver’s seat if he was okay. The window was up. The man nodded and gestured raising his left hand. He remained at the driver’s window for about 5 to 15 seconds. When he thought the people in the Nissan were alright he went to the white SUV but felt he should not try to help the woman because of her condition.

[29] Mr. Tchadouwa returned to the Nissan. He saw two East Indian males who had arrived to help at the Nissan. He thought about how they could extricate the injured man in the rear seat on the driver’s side. He tried pulling on the passenger door and it was jammed. He said their attention was on the rear of the Nissan on the driver’s side where the female, the injured man and the other male were still situated.

[30] Mr. Tchadouwa tried to open the rear door on the driver’s side but no matter what he did it would not open. He pried it open and it became slightly ajar. Mr. Tchadouwa testified that he saw smoke and a flame coming from the Nissan. As noted earlier, he returned to his Ford Flex to move it and its occupants away from the Nissan.

[31] When Mr. Tchadouwa returned to the Nissan, the two Asian males were removing who he assumed was the male who was positioned across the laps of the male and female in the back seat. At this point Mr. Tchadouwa observed that the male in the driver’s seat was already out of the vehicle. He did not see how the driver got out of the vehicle.

[32] Mr. Tchadouwa testified the two Asian males had to carry the male like a child one holding his upper body and the other his feet. They placed him on the curb or shoulder on the south side of Lawrence Ave. E. between the white SUV and a red vehicle parked at the south curb. He said the woman and the other male from the back seat were already out of the Nissan on the curb.

Angelo Hofilena

[33] Mr. Hofilena testified he arrived at the scene of the accident at around 4:30 a.m. travelling southbound on Brimley Rd. As he drove through the intersection at Lawrence Ave. E. he saw the collision. He made a U-turn and drove northbound to the scene just south of the intersection.

[34] Mr. Hofilena got out of his vehicle to help. He saw the Nissan on fire. He saw a stocky black man and a smaller brown man run towards the Nissan. When Mr. Hofilena reached the Nissan he saw the stocky black man try to pry open the driver’s side front door. He testified the stocky man got the door opened to some extent but the damage prevented it from opening wider.

[35] Mr. Hofilena testified he saw the man in the driver’s seat. He described him as an “African American” with a thin build and corn rows in his hair running to the back of his head. He had on a light coloured top with a thin black jacket that was zipped down showing his shirt. Mr. Hofilena said he saw no one else in the Nissan when he arrived.

[36] Mr. Hofilena stated that they proceeded to extricate the driver from the seat. He stated that the stocky man pulled the driver out. Mr. Hofilena recalls he grabbed the man by the legs and the other man grabbed him under the armpits. They squeezed him through the opening in the driver’s front door.

[37] On cross-examination, defence counsel put to Mr. Hofilena that the back door on the driver’s side was the one pried open. Mr. Hofilena responded that he definitely recalls the steering wheel being close to the man he pulled out and that the steering was in his (Mr. Hofilena’s) face. He agreed that the photos show the driver’s door and window are closed; there is no window in the rear door on the driver’s side; that door appears to be closed; the frame on that door appears bent; and the door was slightly open but not widely enough to pull someone through.

[38] When defence counsel pointed to the photos and queried whether it is possible he and the stocky man had pulled the man out of the back window, Mr. Hofilena said it is possible. He testified however that those were not the details fresh in his head and that he wrote down.

[39] On re-examination, Mr. Hofilena testified the act of pulling the driver out of the driver’s door is seared into his memory. He testified he could not have pulled him out of a window because he recalls bending down and scooping the man’s legs and carrying him, the stocky man at his head and he at his legs.

[40] Mr. Hofilena testified he and the stocky man then placed the driver on the ground between the white SUV and the red vehicle parked on the south curb of Lawrence Ave. E., just east of the intersection. Mr. Hofilena testified the man’s leg was bleeding and looked deformed. He could hear a woman screaming “He’s been shot”, as she walked toward the south side of Lawrence Ave. E.

[41] Mr. Hofilena testified he only saw a man he thought had been shot after he got the driver out of the Nissan. When he and the stocky man carried the driver to the sidewalk between the white SUV and the red vehicle he saw a man with blood coming out of his chest near the woman who was screaming about him being shot.

[42] Mr. Hofilena then called 911. He and four others who had stopped at the scene waited in Ms. Bopaul’s vehicle for the police to take statements.

Sally Bopaul

[43] Sally Bopaul approached the scene at about 4:30 a.m. She had a male friend, Hayden, in the vehicle with her. She saw smoke and vehicles stopped as she was driving westbound on Lawrence Ave. E. She got out of her car and called 911. She approached the white SUV and saw a woman with blood on her face. The man in the back seat yelled to Ms. Bopaul to open the door of the vehicle. Ms. Bopaul said she did not open the door because she did not know what the woman’s injuries were.

[44] Ms. Bopaul then went over to the Nissan. There was a woman screaming in the rear passenger’s seat of the Nissan on the driver’s side. She was bleeding from her hand and arm. The woman was yelling, “My boyfriend has been shot”. Ms. Bopaul helped get the woman from the back seat through the back door of the Nissan to sit on the south curb of Lawrence Ave. E. between the white SUV and the red vehicle parked at that curb. Ms. Bopaul resisted defence counsel’s suggestion that she assisted the woman out of the back seat through the back window. Ms. Bopaul observed that a man had helped the man who was shot from the Nissan to the curb to sit beside the woman who was screaming.

[45] Ms. Bopaul testified her friend, Hayden, placed his jacket over another male from the Nissan who was lying on the ground. She described the male lying on the ground as curled up due to the cold. In-chief, Ms. Bopaul said he did not have on a jacket and under cross-examination after being shown her police statement she said he had on a black jacket. He had white jeans and his hair in shoulder length corn rows. He was a fair-skinned black man.

[46] Ms. Bopaul testified she saw two men who came to help, Angelo (Hofilena) and Cam, a man who also attended the scene, take the driver out of the Nissan and put him on the ground. On cross-examination, Ms. Bopaul testified she did not have firsthand knowledge of that man being the driver of the Nissan.

Justin Pears

[47] Mr. Pears is an EMS attendant who, just after 4:30 a.m., attended with his partner at the scene of the collision. They were directed by their supervisor to the southeast corner of the intersection of Lawrence Ave. E. and Brimley Rd. to a male who the supervisor advised them was the driver of one of the vehicles. Mr. Pears recalled the male was near the white SUV.

[48] The man was found to have a broken femur. He was placed in the ambulance and transported to Sunnybrook Hospital. Mr. Pears testified that in the ambulance, the male identified himself as Michael Lights and provided his health card containing his picture. Mr. Pears testified he compared the picture to the male he was attending to and found he was the man depicted. Mr. Pears testified the man told him he was driving a friend to the hospital.

P.C. Christopher Hargreaves

[49] P.C. Hargreaves was called to Sunnybrook Hospital. A male was brought in unaccompanied by police. The officer was directed to step in and provide security because of information about a gunshot wound. The patient was agitated and the officer attempted to calm him down. He spent two hours with him in the hospital.

[50] The officer described the man as being a black male in his 20s, with corn rows in his hair braided from front to back. The clothes that were taken from him included a black jacket, white jeans, a black t-shirt. There was a health card with his picture on it with the name Michael Lights. At court, P.C. Hargreaves identified Mr. Lights in the prisoner’s dock as the man he was with in the hospital.

Analysis

Was Mr. Lights the Driver of the Nissan?

[51] I find the Crown was able to prove beyond a reasonable doubt that Mr. Lights was driving the Nissan when it collided with Ms. Milevska’s white SUV and Mr. Tchadouwa’s Ford Flex in the early hours of New Year’s Eve 2014.

[52] There are some seeming discrepancies among some of the witnesses’ evidence and some minor gaps. However, I do not find these things are sufficient to raise a reasonable doubt as to the identity of the person driving the vehicle that caused the collision.

[53] I find Mr. Tchadouwa’s and Mr. Hofilena’s evidence most critical to my conclusions. They had close, firsthand observations of the circumstances surrounding the Nissan. The focus of Mr Hofilena’s evidence was on the front driver’s side of the vehicle and the occupant. Mr. Tchadouwa’s account provided details of the rear passenger area of the vehicle and the occupants.

[54] I found both of those witnesses to be credible and resolute in key parts of their evidence. The other witnesses’ evidence either supported Mr. Tchadouwa’s and Mr. Hofilena’s accounts or filled in some gaps.

[55] Mr. Hofilena described the man he found sitting in the driver’s seat of the Nissan moments after the accident. As soon as he arrived on the scene, he rushed over to the driver’s side of the Nissan following a stocky black man and a smaller brown man. He described the man in the driver’s seat as a slim black man with corn-rowed hair.

[56] Mr. Hofilena was detailed in his evidence of how he and the stocky man extricated the driver from the front driver’s seat. The stocky man pried the door open enough to squeeze the driver through the opening, Mr. Hofilena grabbing his legs and the stocky man holding him under his arms. They carried him to the south side of Lawrence Ave. E. and laid him on the ground at the curb between the white SUV and the red vehicle.

[57] Mr. Tchadouwa is a stocky black man. He worked on prying open the rear door on the driver’s side to get the man suffering from the gunshot out of the back of the vehicle. He was vivid in his description of the circumstances of the occupants in the back seat and how he pried the door open and saw two Asian men carrying the wounded man. They carried him and took him to the south curb between the white SUV and the red vehicle.

[58] Mr. Tchadouwa spoke to the man in the driver’s seat only momentarily. When the man indicated to Mr. Tchadouwa that he was okay Mr. Tchadouwa said his attention went to the wounded man in the back of the vehicle. He left the Nissan to momentarily move his own vehicle away from the fire hazard. When he returned the driver was out of the Nissan. Mr. Tchadouwa did not see how he was removed from the vehicle. He did not assist with moving the driver.

[59] I accept both witnesses’ evidence as credible. Neither witness had any reason I could see to misrepresent their roles or their observations at the scene of the collision. The only reasonable conclusion I can draw is that there were two stocky black men, the man who pried the front door open to get the driver out and Mr. Tchadouwa who pried the rear door open to help get the wounded man out. It is not far-fetched to infer in the circumstances that there were two stocky black men who came to help.

[60] Mr. Hofilena and the stocky black man placed the driver on the ground or curb between the white SUV and the red vehicle parked at the south curb. The wounded man was already out of the Nissan when Mr. Hofilena and the stocky black man carried the driver over to the south curb. Mr. Hofilena said he saw a man with blood coming out of his chest sitting on the south curb between the white SUV and the red vehicle next to the woman who was screaming about him being shot. Ms. Bopaul observed that the man who was shot had been brought to the curb to sit beside the woman.

[61] I believe that a black man with corn rows was carried from the driver’s seat and laid on the ground near the south curb between the two vehicles. Witnesses testified as to what the black man who was lying on the ground near the south curb was wearing. Ms. Bopaul said he had white jeans, a black jacket and corn rows. Mr. Hofilena testified the man with the corn rows that he helped out of the driver’s seat and laid at the south curb had on a black jacket. At Sunnybrook Hospital, white jeans and a black jacket were taken from the black man with corn rows who had been taken from the scene of the collision to the hospital.

[62] Two witnesses saw the man’s identification. The man with the corn rows lying at the south curb provided Mr. Pears, the EMS attendant, with his health card containing his name, Michael Lights, and his photo. The photo matched the person on the ground at the scene. I accept that the man identified on the health card was Michael Lights and that the accused told the EMS attendant that he was Michael Lights. At the hospital P.C. Hargreaves saw Mr. Lights’ health card and confirmed the photo to be of the patient he was guarding in the emergency unit at Sunnybrook Hospital.

[63] I find the evidence is overwhelming that the driver of the Nissan at the time of the collision was the accused, Michael Lights.

[64] There seems to be some unclear evidence as to whom Mr. Tchadouwa saw the two Asian men carrying to the south curb. He had momentarily left the Nissan to move his vehicle. He said when he returned the driver was already out of the Nissan and he did not see how he was removed. However, he said he saw two Asian men carrying a black male in a similar manner as how Mr. Hofilena and the stocky black man carried the driver and lay him on the ground in a similar way. It is not clear whether Mr. Tchadouwa observed the wounded man being carried or the driver.

[65] However, given the hectic, fast-paced and dangerous environment and the lateness of the hour it would not be unusual for a witness to not be entirely clear about some things they observed. The same applies to the discrepancies in various witnesses’ descriptions of the colour of Mr. Lights’ shirt and what type of jacket he was wearing.

[66] There is also the evidence that the front driver’s side door was shut in the photos Scott Kerr took. None of the witnesses who were asked recalled shutting that door. That door being shut formed part of the defence’s theory that the driver was taken out through the open back window on the driver’s side rather than the front driver’s door.

[67] However, I find Mr. Hofilena’s evidence about the front driver’s side door being opened wide enough to extricate the driver outweighs any doubt created about the photos showing that the door was closed. As the evidence shows, there were several people on the scene who did not testify at trial. It is not beyond reason that one of those other persons might have shut that door sometime after the driver was removed.

[68] A reasonable doubt has not been raised in my mind as to Mr. Lights’ identity as the driver of the Nissan that early morning.

Dangerous Driving Causing Bodily Harm

Legal Principles

[69] Mr. Lights is charged under s. 249(3) of the Criminal Code with dangerous driving causing bodily harm to Vicky Milevska and Colibou Tchadouwa. Bodily harm to the two complainants is not in dispute. The only issue is whether Mr. Lights’ driving constitutes dangerous driving.

[70] Section 249 sets out the test for determining the actus reus of dangerous driving. The trier of fact must be satisfied from an objective viewpoint that the accused was driving in a manner “dangerous to the public”, with regard to be paid to all the circumstances.

[71] Factors to be considered in the factual context are “the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.”: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43. It is the manner of driving that is the focus of the test and not the consequence of the accident.

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

[73] Dangerous driving is made out if it is established that a driver purposely or intentionally drove towards a person, for instance, engaging in intentionally dangerous stunts. “[T]he subjective mens rea of intentionally creating danger for other users of the highway within the meaning of s. 249 constitutes a ‘marked departure’ from the standard expected of a reasonably prudent driver”: R. v. Beatty, at para. 47. Proof of subjective mens rea is clearly sufficient but it is not essential to establish dangerous driving as contemplated by s. 249.

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

[75] R. v. Roy adds to an understanding of the distinction between the requirements of the civil and criminal standards of proof. To determine whether the appropriate degree of fault to meet a criminal standard has been met requires an analysis that distinguishes between conduct that attracts criminal blameworthiness and that which meets the civil standard of mere carelessness or negligence.

[76] The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment: R. v. Roy, [2012] 3 S.C.R. 606, 2012 SCC 60, at para. 32.

The Court in R. v. Roy explained:

Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

R. v. Roy, at para. 42

[77] The trier of fact must scrutinize the facts to separate driving conduct that meets the civil standard of negligence from conduct that should attract criminal sanction. Two further inquiries must be made:

(a) In view of the relevant evidence would a reasonable person have foreseen the risk and taken steps to avoid it, if possible?

(b) Was the accused’s failure to avoid the risk and take reasonable steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?

R. v. Roy, at para. 36

Application of Legal Principles

[78] It is not difficult to conclude Mr. Lights’ driving during the early morning hours of New Year’s Eve satisfies the actus reus of dangerous driving.

[79] Mr. Tchadouwa had a good vantage point from which to view the Nissan. His Ford Flex was in the eastbound lane of Lawrence Ave. E. approaching the intersection at Brimley Rd. The artificial lighting made visibility good and the weather was clear. There were no obstructions to his view.

[80] Mr. Tchadouwa was moving increasingly slowly toward the intersection as the light turned red. From 500 metres away, he observed from across the intersection, the Nissan in the oncoming westbound lane of Lawrence Ave. E. moving at a fast speed. When the Nissan got to the intersection it was facing a red light. Without reducing speed it blew through the red light. Mr. Tchadouwa was stopped at the red light. Ms. Milevska’s white SUV had just begun to proceed on a green light at the intersection in the northbound lane on Brimley Ave.

[81] Mr. Tchadouwa testified the lights of the Nissan were out. He watched the Nissan careen through the red light, strike the white SUV on the front driver’s side, go airborne and strike the median and the light standard, come down on the driver’s side of his Ford Flex and then spin around and strike his vehicle on the rear driver’s side. The photos and the collision report corroborate Mr. Tchadouwa’s evidence.

[82] There was little traffic on the road at the intersection and he would have or should have seen the Ford Flex across from him and the white SUV to his left as he approached the intersection.

[83] Part of the factual context to be considered is the poor condition of the Nissan before the accident.

[84] The mechanic’s report disclosed that the switch for the lights was in the “on” position during the inspection. This suggests the lights while set to be on were not actually on, confirming Mr. Tchadouwa’s evidence that the lights were not functional during the accident. This is something Mr. Lights would have been aware of while he was driving. Add to this the low brake pads, the bald tires and the wet slippery roads in the 8.9 ° C. temperature that morning and the risk Mr. Lights was willing to take is evident. Mr. Lights would have known the condition of the brakes and tires just by virtue of driving the vehicle.

[85] Mr. Lights’ manner also establishes the mens rea of dangerous driving. His driving constituted a marked departure from the driving of the normally prudent driver. A reasonable person would have foreseen the risk of speeding through a red light with no lights on slippery, wet road, when other vehicles were at the intersection and taken the reasonable step of not driving in that manner in the face of the obvious risk factors. Mr. Light’s failure to avoid the risk and to take steps to avoid it was a marked departure from the standard of care expected of a reasonable person in Mr. Light’s circumstances.

[86] This was not simple negligence or inadvertence. Mr. Lights acted in a wildly careless manner completely oblivious to the danger to his passengers and other drivers on the road. It is more than ironic that Mr. Lights was rushing to the hospital to save his wounded friend while driving in a manner that could have killed that friend, himself and the other occupants of the vehicle just metres from the hospital he was rushing to reach.

Bodily Harm

[87] There is no dispute that Ms. Milevska and Mr. Tchadouwa suffered bodily harm. Ms. Milevska suffered broken ribs, a broken pelvis and a concussion. Mr. Tchadouwa sustained a back injury. He also testified colourfully about the emotional sequelae of the collision - flashbacks, and bad dreams where he pushes his wife out of bed and rolls out of bed himself as if to avoid danger.

Disposition on Dangerous Driving

[88] I find Michael Lights guilty of dangerous driving causing bodily harm in relation to Colibou Tchadouwa and Vicky Milevska.

Criminal Negligence Causing Bodily Harm

[89] Mr. Lights is charged under s. 221 of the Criminal Code with criminal negligence causing bodily harm to Colibou Tchadouwa and Vicky Milevska.

[90] The Crown must establish beyond a reasonable doubt that Mr. Lights is the person who committed the offence. The Crown must establish that he showed wanton or reckless disregard for the safety of others and that the conduct caused bodily harm.

[91] I have found that Mr. Lights was the driver of the Nissan that collided with the other two vehicles and that Mr. Tchadouwa and Ms. Milevska suffered bodily harm. I must consider whether Mr. Light’s conduct in driving dangerously demonstrated wanton disregard for the lives and safety of others.

[92] Mr. Lights drove with the Nissan’s lights not functional in the dark early morning hours. He would have been aware of the defective lights while he was driving. He would have known the lights were not on. He drove at a fast speed through a red light with low brake pads and bald tires on wet slippery roads with passengers in his vehicle and other drivers on the street. He would have known the poor condition of his tires and brakes from driving the vehicle.

[93] I find the risk Mr. Lights was willing to take in these circumstances is a display of wanton disregard for the lives and safety of others. The Crown has proven Mr. Light’s guilt of criminal negligence causing bodily harm beyond a reasonable doubt.

Verdict

[94] For the foregoing reasons, I am satisfied the Crown has proven Michael Lights’ guilt beyond a reasonable doubt of dangerous driving on counts 1 and 2 on the indictment.

[95] I am satisfied the Crown has proven Michael Lights’ guilt beyond a reasonable doubt of criminal negligence causing bodily harm on counts 3 and 4 on the indictment.

[96] I therefore find Michael Lights guilty on counts 1, 2, 3 and 4 on the indictment and convictions will be entered accordingly.

B.A. ALLEN J.

Released: May 26, 2017