NEWMARKET COURT FILE NO.: CR-14-07160-00 DATE: 20170705 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen – and – Rakesh Patel Defendant

COUNSEL: Martin Dionne, for the Crown T. Edward Chan, for the Defendant

HEARD: April 24, 26, 26 and 27, 2017

REASONS FOR DECISION

Delivered Orally

SUTHERLAND J.:

Introduction

[1] This is a tragic case. On September 5, 2014, a seven year old girl, Carol Ni, while on her bicycle with her Aunt was travelling east on the south end crosswalk at the intersection of McCowan Road and Coleraine Avenue, in the City of Markham when she was hit by a Nissan Sentra travelling southbound on McCowan Road driven by the defendant. The girl succumbed to her injuries and passed away at the scene of the collision.

[2] As a result of the collision, the defendant was charged with dangerous operation of a motor vehicle causing death pursuant to s. 249(4) of the Criminal Code [^1].

The Facts

[3] Mr. Patel was 24 years of age at the time of the accident. He is now 26 years of age. He was born in Scarborough and raised in Scarborough and Markham. He is employed full time at Apotex Pharmaceuticals, in Etobicoke. He works approximately 40 hours a week. He is not married and has no children. He lives with his parents and older brother, in Markham. Mr. Patel is engaged to be married to his girlfriend of eight years, Caroleen Tulshiram.

[4] On the day of the collision, he finished his work day at 6:40 a.m. and arrived home at around 7:40 a.m. Upon arrival at home, he had a beer or two, ate a sandwich and went to bed. He woke up later that day around 3:30 p.m. to 4:00 p.m. He set his alarm clock to wake at 3:30 p.m. He got up. He dressed and got ready to go to his girlfriend, Caroleen Tulshiram’s home. She lives approximately a five minute drive from his home.

[5] When he arrived at Ms. Tulshiram’s home, she was crying. There were personal issues between the two of them and their respective sets of parents. They sat in his car where they stayed parked in the driveway for about 10 to 15 minutes. He calmed her down. When she was calm, he drove to a 7-Eleven store on McCowan Road and Denison Avenue, which is approximately a three minute drive from Ms. Tulshiram’s home.

[6] At the 7-Eleven, Ms. Tulshiram was still stressed but calm. Mr. Patel went into the 7-Eleven to purchase a Slurpee. After purchasing the Slurpee, he got back into his car with Ms. Tulshiram in the front passenger seat. From the 7-Eleven parking lot, he turned right, heading southbound on McCowan Road towards Coleraine Avenue in the left lane. The road was clear. There was no construction. The day was sunny and the road was dry. It is at the intersection of McCowan Road and Coleraine Avenue travelling in the left lane that he hit Carol Ni with his vehicle causing her death. Mr. Patel estimated he was travelling approximately 55 km an hour.

[7] Mr. Patel’s evidence is that while he was driving he was looking back and forth between the road and his girlfriend. The last time he saw the traffic light it was green. He was approximately 50 yards from the intersection. He was distracted and he guesses he was “not looking properly.” He was talking to his girlfriend. He did not apply the brakes of his vehicle until after the collision occurred. He was through the intersection when the collision occurred. Carol Ni was on the front hood of his car before he started to brake. He then immediately braked and stopped his vehicle.

[8] Ms. Tulshiram did not witness the collision. Her testimony was that she was preoccupied attempting to connect her mobile phone to the vehicle’s sound system. She was not crying or arguing with Mr. Patel while he was driving. She did testify that they were talking while he was driving.

[9] Four witnesses were called that witnessed the accident. Three witnesses were called by the Crown and one was called by the defence. The three witnesses called by the Crown were: Daniel Menard, Shaquille Edwards and Sherel Smith. The witnesses called by the Crown all agreed that the light was green and the walk indicator was engaged before Carol Ni and her Aunt were walking across the intersection. The witness called by the defence, Siqun Liu, gave evidence that the light was not green when Carol Ni and her Aunt were crossing at the intersection.

[10] All the witnesses that gave testimony of the collision agreed that Carol Ni was hit in the left lane, the lane closest to the median, going southbound on McCowan Road and that she was between the lines marked for pedestrians.

[11] It was agreed between the Crown and the defendant that Carol Ni was on her bicycle while crossing.

[12] The Crown called Paul Nause who is a manager with York Region traffic signal operations. Mr. Nause testified that the speed limit on McCowan Road is 60 km an hour and has been 60 km an hour since September 2012. He further testified that the duration of the signal at the intersection of McCowan Road and Coleraine Avenue on September 5, 2014 between 3:00 p.m. and 6:00 p.m. is 4.5 seconds for an amber light to turn to a red light, and 2.5 seconds for a red light in all directions. This total of 7 seconds is for the complete cycle of amber to red before the light facing east/west turns green.

[13] The Crown also called Detective Constable Gordon Hebert. DC Hebert is employed with York Region Police as an Accident/Collision Reconstructionist. He prepared a Collision Reconstruction Report from his observations, notes and calculations. He was qualified as an Accident/Collision Reconstructionist expert.

[14] The evidence of DC Hebert is not contested by the defendant. He testified to, the impact on the bicycle and on the Nissan Sentra, the location of the handle bars of the bicycle on the Sentra and the dents on the front hood of the vehicle in relation to the impact of Carol Ni.

[15] DC Hebert testified to calculations on the distance travelled by the defendant subject to the speed he was travelling. He testified that the speed that the defendant’s vehicle was travelling was between 48 km an hour and 66 km an hour. Speed was not a contributing factor to this collision. He testified that the total distance the bicycle of Carol Ni travelled from point of impact to resting place was 28.91 metres. The bicycle traveled 5.61 metres from impact to where it made the gouge in the pavement and a further 23.3 metres to its final resting place. The bicycle was travelling after impact at 48 km an hour or 54 km an hour, subject to the drag coefficient.

[16] The marked pedestrian walk is 2 metres wide and the point of impact was more on the south side of the pedestrian walk.

[17] At 48 km an hour, the speed would be 13.34 metres per second. At 60 km an hour the speed would be 16.68 metres per second, and at 66 km an hour the speed would be 18.34 metres per second. Thus, the distance that the vehicle would have to travel to the impact point is:

i. For 7 seconds: * at 48 km an hour – 93.38 metres * at 60 km an hour – 116.75 metres * at 66 km an hour – 128.38 metres ii. For 8 seconds: * at 48 km an hour – 106.75 metres * at 60 km an hours – 133.44 metres * at 66 km an hour – 146 metres iii. For 9 seconds: * at 48 km an hour – 120.10 metres * at 60 km an hour – 150.12 metres * at 66 km an hour – 165.13 metres iv. For 10 seconds: * at 48 km an hour – 133.44 metres * at 60 km an hour – 166.80 metres * at 66 km an hour – 183.48 metres

[18] If the assumption is that Mr. Patel was travelling a constant speed of 35 km an hour the distance travelled to the same impact point would be 68.11 metres at 7 seconds, 77.84 metres at 8 seconds, 87.57 metres at 9 seconds and 97.32 metres at 10 seconds.

[19] DC Hebert further testified that the standard reaction time for a driver to recognize and react is 1.5 seconds and that there were no tire marks or skid marks at the scene of the accident. In this case, the reaction time of the defendant, assuming 100% braking, was 1.44 seconds at 48 km per hour and at 1.98 seconds at 66 km per hour.

[20] DC Hebert testified on cross-examination that this collision was an issue of distraction, human factors of failing to perceive risk and react. The failure of the defendant to recognize and react to the change of the traffic control signal light and to Carol Ni crossing the street. On cross-examination, DC Hebert did concede that it is possible for a driver in an emotional state or under stress to see but fail to recognize a red light or a young girl with her bicycle.

[21] DC Hebert testified that failure to perceive and react could be from distracted driving and failing to look while driving. In re-examination, DC Hebert testified that if you move the impact point closer to the north side of the pedestrian walk that would shorten the throw distance by 2.1 metres which would decrease the high end calculated speed by 2 km an hour. At 53 km an hour the speed would be 14.73 metres per second and at 64 km an hour the speed would be 17.81 metres per second. Thus, the distance travelled would be:

i. at 53 km an hour: * 7 seconds – 103.11 metres * 8 seconds – 117.82 metres * 9 seconds – 132.57 metres * 10 seconds – 147.30 metres ii. at 64 km an hour: * 7 seconds – 124.67 metres * 8 seconds – 142.48 metres * 9 seconds – 160.29 metres * 10 seconds – 178.10 metres

[22] The issue for this court to determine is if the Crown has proven beyond a reasonable doubt that the defendant contravened section 249(4) of the Criminal Code.

Section 249 (4) of the Criminal Code

[23] The burden of proof to satisfy this court that the defendant’s actions have contravened s. 249(4) of the Criminal Code is on the Crown. The Crown must satisfy this burden of proof beyond a reasonable doubt. This burden stays with the Crown throughout the trial. The burden does not shift.

[24] Sections 249(1)(a) and (4) reads:

(1) Every one commits an offence who operates:

(a) A motor vehicles 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: …

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.

[25] The Supreme Court of Canada has addressed the offence of dangerous driving causing death in three decisions: R. v. Hundal [^2], R. v. Beatty [^3] and R. v. Roy [^4]. In addressing the offence, the Supreme Court examined the actus reus and the mens rea of the offence.

[26] From the three decisions, I discern the following:

1. “The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code).” [^5] The actus reus of the offence should be assessed objectively, that is, in reviewing all the surrounding circumstances “viewed objectively, the accused exercised the appropriate standard of care.” [^6] The consequences of the driving are not material, it is the manner in which the motor vehicle is operated that is at issue. [^7] The driving of a motor vehicle is an “inherently dangerous activity” with both legal and social value. [^8]
2. The mens rea is assessed subjectively and objectively. The negligent driving can be recognized as on a continuum “that progresses and regresses from a momentary lack of attention giving rise to civil liability through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code.” [^9]
3. In a criminal setting, “[t]he degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.” [^10]
4. Given that the accused’s mental state is relevant, the objective test “must be modified to give the accused the benefit of any reasonable doubt whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger.” [^11] Thus, when using this modified objective test the qualities and characteristics of the accused are relevant such as inexperience, youth, mental development and education. [^12]
5. In objectively determining the manner in which the accused drove is a “marked departure”, the trier of fact must ascertain from all the circumstances whether it is appropriate “to draw the inference of fault”. Driving which is simply dangerous on its own will not support a “marked departure” from the standard of care. The act of the offence, without more, does not support a reasonable inference of the fault element. The accused driving must constitute “a marked departure from the norm may reasonably support that inference.” [^13]

[27] The Ontario Court of Appeal in R. v. Willock [^14] reversed a trial judge’s conviction against an eighteen year old driver resulting in the death of a passenger and serious injuries to himself and four other individuals. In determining whether a 2.5 second timeframe of the collision supported the conviction, the Court of Appeal found that conduct in such a brief time frame in the course of driving where there is no other evidence of improper driving, “is more suggestive of a civil rather than the criminal end of the negligence continuum.” [^15]

[28] Doherty J.A., writing for the Court, found that the conduct of the accused during this two or three seconds prior to the collision could only support a conviction where there is a marked and substantial departure from the conduct expected of a reasonable driver, if the accused deliberately jerked the steering wheel to cause the vehicle to swerve to oncoming traffic. [^16] Doherty J.A. concluded that without a deliberate act of jerking the steering wheel, “a momentary lapse of attention by the appellant (accused), but, in my view, cannot reasonably sustain a finding that his driving amounted to criminal negligence or dangerous driving under the Criminal Code.” [^17]

[29] The Manitoba Court of Appeal in R. v. Manty [^18] upheld a conviction of three counts of dangerous driving causing death and one count of dangerous driving causing bodily harm. The accused was 22 years of age at the time of the collision. The accused was not speeding. There was no evidence of alcohol, drugs or visible restriction. The highway was clear. The accused failed to heed numerous traffic signs advising of a pending stop sign. He failed to stop at the stop sign and drove straight through the stop sign causing the collision. There was no issue of credibility. There was no dispute that the accused did not respond to several highway indicators of the pending stop sign.

[30] Freedman J.A., writing for the Court, upheld the convictions and supported the trial judge’s findings of inferring “substantial inattentiveness” on the part of the accused. The driver is obligated to pay attention and respond not only to traffic and the road itself but also to signs and indicators on the road. The Court of Appeal found that the failure to be attentive and respond to the various indicators of the pending stop sign, which included advance warning signs, the highway turning signs, the large stop sign itself with a flashing red light, was a marked departure from the standard of care. [^19]

[31] MacDougall J. in R. v. Hamilton [^20] dealt with a dangerous driving causing death where the accused, an experienced police officer, failed to stop at a stop sign and continued to drive into the intersection colliding with a vehicle travelling through the intersection.

[32] In assessing whether the conduct of the accused as a “marked departure” of the standard of care, MacDougall J. found that it was not. The accused, up to the stop sign, was driving quite proper. There was no evidence of speeding or aggressive driving. There was evidence prior to the collision that the accused slowed down and gave people walking on the road a wide berth. MacDougall J. found that the time between visibility and impact was a few seconds. The decision by the accused to pull out into traffic did not amount to a “marked departure”. [^21]

[33] In the case of R. v. Sippel [^22], Bird J. convicted the accused of criminal negligence and dangerous driving cause death and two counts of criminal negligence and dangerous driving causing bodily harm. The accused was driving his vehicle when he hit three cyclists. Bird J. found that the accused was speeding, driving 35 km over the speed limit. There were no other vehicles on the road. The accused would have been able to drive around the cyclists without striking them. The brakes of the accused’s vehicle were not engaged until the time of the collision or at the earliest less than 0.5 seconds before the collision.

Analysis

[34] There are minimal credibility issues in this case. There is no dispute that Mr. Patel was not speeding, driving aggressively, or driving under the influence of alcohol or drugs. Up to the collision, there is no evidence that he was driving “improperly”.

[35] The only credibility issue in this case is that of whether Carol Ni entered the intersection to cross the street before the walking sign was engaged. As indicated previously, three of the Crown witnesses testified that she waited until the traffic light turned green heading easterly and one of the defence witnesses testified that she did not. I will deal with this discrepancy in the evidence.

[36] In assessing the credibility of the witnesses, I am cognizant that the reasonable doubt principle applies. [^23]

[37] Each of the Crown witnesses had frailties in their evidence.

[38] Daniel Menard testified that he was stopped at the intersection of McCowan Road and Devonshire, travelling northbound. He testified that he was in the left lane next to the left hand turning lane. He viewed Carol Ni and her Aunt along with the collision through the window of his vehicle while stopped in the left lane. He testified that he heard honking. He testified that it appeared that the car in the collision did not begin to brake until just before the collision. He gave his audio statement approximately a month after the collision. The second person was about a metre behind the first girl. He did not know the colour of the intersection light when the two people, including the girl, crossed the street. But he was stopped at the light because his light was red.

[39] Shaquille Edwards was walking northbound on McCowan Road on the west side of the street. He was on his way to work at the community centre. He supervises children and for his job he was trained to be aware of the colour of traffic lights in all directions due to his responsibility of walking with children. He was approaching the intersection of the collision when it occurred. He was about 20 feet from the intersection when he saw the north/southbound traffic lights turn red and then green on the east/westbound lights. He testified that the girl on the bike did not enter the intersection until the light in the eastbound direction turned green. He estimated that the time that elapsed from the time the light turned green on the eastbound direction and when the car collided with the little girl was 3-4 seconds. He testified that the little girl was on her bicycle pedaling and not walking. No helmets were worn by the riders. He did not have a chance to yell out as the collision happened “so quickly”. He did not hear any honking. He was wearing headphones but he testified that he could still hear outside noise.

[40] Sherel Smith was driving northbound on McCowan Road. She was stopped at the traffic light. She was the first car in the line of cars. The northbound traffic was heavy. When the “walk sign” was engaged going eastbound the little girl walked across with her bike. A woman had bags and was a short distance behind the little girl. A car coming southbound was the only car travelling southbound. It was seconds from the time the little girl walked from the edge of the road to the point of collision. The adult female was a couple of seconds behind. The car entered the intersection and struck the little girl. She was honking to get the car heading southbound to stop. She called 911. She testified that she believed at the time of the collision the speed limit was 70 km an hour and was later changed to 60 km an hour.

[41] Siqun Liu was called by the defence. He testified that he was travelling northbound. He was in the left passing lane. He saw a little girl with a bike approaching the corner of the intersection of McCowan Road and Coleraine Avenue. He saw the light just turn green on the eastbound and he heard a bang. He saw the little girl lying on the street. During examination he changed his testimony of which light he saw turn and he thinks it was the traffic light for the north/southbound traffic on the northwest corner. There was one car in front of him. His testimony of the location of the light he saw changed from the light controlling the northbound traffic, probably to the traffic light on his left side, being the east side traffic light.

[42] After reviewing all the evidence from the four witnesses, I am satisfied, beyond a reasonable doubt, that Carol Ni crossed the intersection in an easterly direction after the lights for the southbound traffic was red and her light was green with the walking signal engaged. Even though there are some frailties in the testimony of Mr. Edwards (not hearing the horn) and that of Ms. Smith (the speed limit) and Mr. Menard (his visibility and not knowing the light color), they are all consistent on the colour of the light, that it was red in their direction. Mr. Edwards and Ms. Smith were also consistent that the light was green when Carol Ni began going across the intersection on her bicycle.

[43] Mr. Liu was not consistent in his testimony regarding which light he was observing. He was not consistent in his testimony at the preliminary inquiry and at trial.

[44] I find based on the testimony of Mr. Edwards and Ms. Smith that the light was green and the walking light engaged when Carol Ni began walking and continued walking through the intersection heading eastbound before she was struck by the Nissan Sentra driven by the defendant.

[45] Based on the evidence at trial, from the last time Mr. Patel saw the light was green, 7 seconds elapsed for the north/southbound light to turn red and the east/westbound light to turn green. In addition, another 2-3 seconds elapsed for Carol Ni to cross the intersection on her bike and arrive at the collision point, that is, in the left lane of the southbound traffic on McCowan Road and Coleraine Avenue. Therefore, I find from the evidence that 9 to 10 seconds elapsed from the time Mr. Patel last saw the green light travelling southbound and the time his Nissan Sentra struck Carol Ni.

[46] The next question for this court to answer is, did the driving of Mr. Patel constitute dangerous driving?

Actus Reus

[47] Mr. Patel was not aggressively driving nor was he speeding. He did, however, drive through a red light that was clearly visible. There was no obstruction to his view. There was no mechanical issue with his vehicle.

[48] Defence counsel has conceded that Mr. Patel’s driving on the day of the collision fell below the reasonable standard of care of a prudent driver. I do agree that the driving through a red light that was clearly visible does, with no mechanical failure of the vehicle, falls below the standard of care of a reasonable prudent driver in the circumstances.

[49] I therefore find, beyond a reasonable doubt, that Mr. Patel’s driving satisfies the actus reus component of the offence.

Mens Rea

[50] Counsel for the defendant spent his submissions focusing on the mens rea of the offence. He eloquently argued that Mr. Patel’s actions fall short of the mens rea required to convict him of dangerous driving. He argues that the driving of Mr. Patel was not as “marked departure” of the standard of care of a reasonable prudent driver in the circumstances. There is a reasonable doubt on whether the driving of Mr. Patel was to the extent that merits punishment. On the spectrum, Mr. Patel’s driving is that of civil liability and careless driving but does not meet the high threshold of criminal fault for dangerous driving beyond a reasonable doubt.

[51] In determining whether the Crown has proven beyond a reasonable doubt that Mr. Patel’s driving is that of criminal fault, dangerous driving, I am to review subjectively and objectively, Mr. Patel’s actions and driving up to and including the collision. The results of the collision are not relevant for this inquiry.

[52] The driving of Mr. Patel was not impaired by drugs or alcohol. He was inattentive. He was distracted by his girlfriend. He was preoccupied by watching her, talking to her, having discussions with her. He was inattentive and distracted while driving his Nissan Sentra southbound on McCowan Road for 9 to 10 seconds.

[53] He was aware of the road and the intersection. He drove that route numerous times. His car was not malfunctioning. He had been driving his Nissan Sentra for years. He was driving properly without incident up to the time of the collision. From the evidence, driving at 53 km an hour, the Nissan Sentra would have travelled 132.57 metres in 9 seconds and 147.30 in 10 seconds. Driving at 60 km and hour, the Nissan Sentra would have travelled 150.12 meters in 9 seconds and 166.80 metres in 10 seconds. Reviewing the distance travelled between 53 km an hour and 60 km an hour, the distant per second is approximately 2.5 metres per km of speed at 9 seconds, and at 10 seconds the calculation is 2.38 metres per km of speed. Using 2.4 metres per km, the distance travelled at 55 km an hour, the speed conceded by the defendant, at 9 seconds is approximately 137.37 meters and at 10 seconds is 154.92 metres.

[54] Thus, it seems to me that at 9 seconds of delay at 53-55 kms an hour, the Nissan Sentra travelled 132 to 137 metres and at 10 seconds, the Nissan Sentra travelled 150 to 155 metres. I find the distance travelled a significant distance, be it either at 9 seconds or 10 seconds.

[55] The conduct of Mr. Patel was not a momentary lapse of a couple of seconds, as in Hamilton. The inattention of Mr. Patel was substantial, at 9 or 10 seconds, with a substantial distance travelled, between 132 metres to 155 metres, before Mr. Patel engaged his brakes.

[56] In addition, the traffic signal light was plainly visible. There was no obstruction. The traffic was clear. As the Manitoba Court of Appeal stated in Manty, a driver has an obligation not only to be attentive to traffic but also to traffic signs and “indicators on the highway”. The vehicle that Mr. Patel was driving, a Nissan Sentra, and the point of impact on the vehicle indicate to this court that a prudent operator of a Nissan Sentra would have seen Carol Ni and her Aunt crossing on the green light at the intersection.

[57] I find that the inattentiveness of Mr. Patel was “substantial inattentiveness”. Thus, I find his driving was a marked departure of that of a reasonable prudent driver in the circumstances. Does this marked departure satisfy the fault element of mens rea?

[58] Mr. Patel submitted that he did not recognize the red light. He was under stress because of the situation with his girlfriend and their respective families. DC Hebert agreed on cross-examination that a driver under stress can look and fail to recognize an amber or red light. DC Hebert also indicated that it could happen that a driver under stress could not “see a young girl riding a bicycle in the middle of a crosswalk”. Consequently, Mr. Patel argues that the stress of the situation was a momentary lapse of attention that would attract, at best, civil responsibility and not criminal liability.

[59] I do not agree. Viewing the circumstances of this case using the modified objective test, I find that the driving of Mr. Patel merits criminal fault. A prudent reasonable person in the circumstances, I find, would have appreciated the risk and would have paid attention while driving and would have taken some action to avoid the accident. Mr. Patel did not. His inattention was prolonged and substantial that he did not commence breaking until the collision occurred. This conduct is more than a momentary act of negligence. It is more than failure to recognize the red light or a young girl riding her bicycle on the cross walk. The driving of Mr. Patel supports the conclusion that his driving was a marked departure of the standard of care that reaches the height of criminal fault.

[60] I am therefore satisfied that the Crown has proven beyond a reasonable doubt that Mr. Patel is guilty of the offence of dangerous driving causing death.

Justice P.W. Sutherland

Released: July 5, 2017

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.

Footnotes

[^1]: R.S.C. 1985, c. C-46. [^2]: R. v. Hundal, [1993] 1 S.C.R. 867. [^3]: R. v. Beatty, [2008] 1 S.C.R. 49. [^4]: R. v. Roy, [2012] 2 S.C.R. 60. [^5]: Roy, supra note 4, at para. 28. [^6]: Hundal, supra note 2, at p. 885. [^7]: Roy, supra note 4, at paras. 30 and 33-34; and Beatty, supra note 3, at paras. 45-46. [^8]: Roy, supra note 4, at para. 34. [^9]: Hundal, supra note 2, at p. 885. [^10]: Beatty, supra note 3, at para. 35. [^11]: Ibid, at para. 37. [^12]: Beatty, at paras. 38-39. [^13]: Roy, supra note 4, at paras. 41-42. [^14]: R. v. Willock, 2006 ONCA 20679. [^15]: Ibid, at para. 31. [^16]: Ibid, at para. 32. [^17]: Ibid, at para. 36. [^18]: R. v. Manty, 2006 MBCA 25. [^19]: Ibid, at paras. 29-31. [^20]: R. v. Hamilton, 2014 ONSC 1823. [^21]: Ibid, at paras. 94-95, 98 and 100. [^22]: R. v. Sippel, 2016 ONSC 4742. [^23]: R. v. J.J.R.D, 2006 ONCA 40088, at para. 45.