CITATION: R. v. Mowlai, 2017 ONSC 4815
Court File No. :CR-15-40000586-0000
SUPERIOR COURT OF JUSTICE
5
B E T W E E N:
HER MAJESTY THE QUEEN
10
- and - HAMED MOWLAI
15 * * * * * * * * * * *
R E A S O N S F O R J U D G M E N T
-- Before the HONOURABLE MADAM JUSTICE MOLLOY, at 361
20 University Ave, CR 2-2, Toronto, Ontario, on the 8th day of June, 2017
APPEARANCES:
25 MS. D. BRAITHWAITE MR. R. FEDEROWICZ
30
-- for the Crown
-- for the Defence
Reasons for Judgment - Molloy J.
THURSDAY, JUNE 8, 2017
R E A S O N S F O R J U D G M E N T
5
Molloy J., (Orally):
A. The Charges
Hamed Mowlai is charged with criminal negligence
10 in the operation of a motor vehicle causing death and criminal negligence in the operation of a motor vehicle causing bodily harm, both arising out of a collision involving the car he was driving on August 7th, 2014. Based on the same facts, he is also charged with dangerous driving
15 causing death, dangerous driving causing bodily harm and dangerous driving simpliciter.
B. Factual Findings
The important facts are essentially undisputed.
20 Mr. Mowlai was driving south in a Dodge Charger on Yonge Street in Toronto between Steeles and Finch between 4:15 and 4:30 p.m. on a Thursday afternoon. On his own evidence, as he approached the intersection near 5800 Yonge Street, there were no other cars ahead of him in his lane. He saw the
25 traffic light turn yellow. He also saw the car going southbound in the lane to the left of him apply its brakes as he approached the intersection. Mr. Mowlai, however, did
the opposite. Believing he could beat the light, he floored his accelerator. As he got closer to the intersection he
30 saw a previously northbound car beginning to make a left turn across the intersection which would bring that car directly across his path. That car was an Acura, driven by
Reasons for Judgment - Molloy J.
Sharon Krongh. Mr. Mowlai applied his brakes and moved to his right into the curb lane but, as he said, it was too late. The Acura that was turning left collided with Mr. Mowlai's Dodge Charger. Although Mr. Mowlai says he did
5 not see what occurred next, what happened was he hit a pedestrian, Mengxi Zhang, throwing him 7.4 metres into a steel traffic control box and from there another 4.2 metres into a field. Mr. Zhang died instantly. Mr. Mowlai's car then hit a cement light standard, shearing it off at the
10 top of his car. His girlfriend, who was sitting in the front passenger seat, sustained serious but not
life-threatening injuries.
Mr. Mowlai said that he was driving between 65
15 and 70 kilometres per hour prior to seeing the yellow light.
He then sped up to beat the light. He did not look to see what speed he had accelerated to. He did not notice if there were pedestrians in the area and he did not know what colour the light was when he entered the intersection.
20 A number of witnesses testified as to the extreme
speed of Mr. Mowlai's vehicle as it approached the intersection. Some heard the car revving; some saw it speed by; some noted both the speed and the noise. Their evidence and the opinion evidence of Mr. Bokala, an accident
25 reconstruction expert, is largely consistent. Moreover, there is definitive, precise information as to Mr. Mowlai's rate of speed from the car's computer system.
The collision occurred just after he entered the intersection, just past the traffic light. The crash data
30 retrieval system from the car shows that 5 seconds before impact, Mr. Mowlai was doing 71 kilometres per hour. The speed limit was 50 kilometres per hour. Mr. Mowlai then
Reasons for Judgment - Molloy J.
sped up steadily over the next 4 seconds, reaching a speed of 107 kilometres per hour, at which point the engine throttle was at 100 percent and the accelerator pedal was at
100 percent. He first applied his brake 1 second before
5 impact. The speed of his vehicle was 85 kilometres per hour at the point of impact.
The accident reconstructionist calculated the likely speed of Mr. Mowlai's Dodge Charger using various methods relating to skid marks, crush damage to the Dodge
10 Charger, and the distance the body of Mr. Zhang was thrown.
It is not necessary for me to deal with this in any detail. The evidence of the expert corroborates the data from the crash data retrieval system.
Based on the whole of the evidence I am fully
15 satisfied that Mr. Mowlai was accelerating as he approached the intersection and that 1 second before the crash he had reached a speed of 107 kilometres per hour. He did apply his brakes at that point, with the result that he was doing
85 kilometres per hour when he shot in front of the Acura,
20 causing the collision. Ms. Krongh testified that her speed would have been about 20 kilometres per hour. Her brother Daniel, who was in the front passenger seat, estimated her speed at between 20 and 30 kilometres per hour. The accident reconstruction expert, Mr. Bokala, estimated her
25 speed at 15 to 18 kilometres per hour.
I am also fully satisfied on the evidence that the southbound traffic light was red when Mr. Mowlai went through it. Not every witness who testified noticed what
colour the light was. However, every witness who did see it
30 was clear that the light was red. In particular, I found the following witnesses to be reliable on this point:
(1) Mary Lee: Ms. Lee was in the front passenger
Reasons for Judgment - Molloy J.
seat of the car Mr. Mowlai saw slowing down as it approached the intersection in the lane to the left of him. She heard a loud revving sound to her right and looked in that
5 direction. At that point the car she was in was stopped and the Acura had entered the intersection, about to turn left. She saw the Dodge Charger approach at a high speed and then whiz by them and then crash. She
10 was quite clear that the light at that point
was red.
(2) Keyon Harris: Ms. Harris was walking north on the east side of Yonge and was intending to cross from east to west over the same
15 intersection where this collision occurred.
As she approached she noticed the Acura in the centre of the intersection, from the left turning lane for northbound traffic. She remembered noticing the Acura and wondering
20 what was taking her so long to turn since the
oncoming cars were stopped and the light was yellow. She saw the light turn from yellow to red and the Acura proceed into the left turn. She was very clear that the light had
25 turned red before the collision.
(3) Kay Lukin: Ms. Lukin was walking on the west side of Yonge with her 5-year-old daughter and 15-year-old son. She was crossing on a pedestrian crosswalk and saw that the
30 vehicular traffic light was amber as she was crossing. She was in a hurry to get across the crosswalk because she planned to cross
Reasons for Judgment - Molloy J.
Yonge Street from west to east and wanted to catch that light. She said the light turned red after two steps or so onto the crosswalk and that she and her children ran across. It
5 is unclear whether she was referring to the vehicular traffic light turning red as she started onto the northbound crosswalk or if it was the pedestrian signal. However, upon reaching the northwest corner, the plan was
10 to head east across Yonge Street and they
proceeded to do so. Her son was in front and he actually stepped onto the roadway but then jumped back to avoid the Dodge Charger that came speeding through at that point. Ms.
15 Lukin was positive that the pedestrian crossing had lit up white, signalling that it was safe to walk across. If the pedestrian east west crosswalk was lit up to show "walk", I am satisfied that the southbound
20 vehicular traffic light had to be red. This
is a notorious, commonly known, obvious fact about which I can take judicial notice.
Accordingly, I have no doubt whatsoever as to the
25 light being red when Mr. Mowlai went through it. That said, not a whole lot turns on that from my perspective. I do not know when the light turned red in relation to the accident, other than to say it was a matter of mere seconds.
Certainly, by the time it turned red it was too late for Mr.
30 Mowlai to stop. However, that is not a function of his distance from the intersection as much as the excessive speed at which he was travelling.
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Finally, it is an agreed fact that there was nothing mechanically wrong with the car. Further, the traffic lights were tested and found to be operating properly.
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C. Analysis
- Dangerous Driving Defined
Dangerous driving is defined in s. 249(1) of the
10 Criminal Code as follows:
249(1) Everyone commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the
15 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...
Pursuant to s. 249(4), when dangerous driving
20 causes death, it is punishable by a sentence of up to 14 years in prison.
In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, the Supreme Court of Canada revisited and clarified the essential components of this offence. It consists of an actus reus
25 (the prohibited conduct) and a mens rea (the required degree of fault or intent). Both elements are required and must be separately proven beyond a reasonable doubt. The prohibited conduct for dangerous driving is operating a motor vehicle in a dangerous manner having regard to all the
30 circumstances. This is an objective test. Referring to its earlier decision in R. v. Beatty, 2008 SCC 5, 2008 S.C.C. 5, [2008] 1
S.C.R. 49, the unanimous court in Roy described this actus
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reus component as follows, (at para 28):
In Beatty, the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles. In brief, the Court decided as follows. The actus reus of the offence is driving in a manner dangerous to the public,
5 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)
And further, at paragraph 34:
10
In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para.
15 46 of Beatty, "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving" (emphasis
added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the
20 manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.
- Dangerous Driving: Actus Reus
25 There is no question that the driving conduct in this case was objectively dangerous. Yonge Street is one of the main north/south thoroughfares in the City of Toronto. The area of Yonge Street in which this collision took place is filled with shops, restaurants, office towers and
30 condominium highrises. It is highly trafficked by vehicles and pedestrians. The collision occurred at 4 o'clock in the afternoon when there would always be people about. On this
Reasons for Judgment - Molloy J.
particular day and this particular time, the southbound traffic was described by the witnesses as light to moderate. That means light to moderate by Yonge Street standards. It was still Yonge Street on a weekday. It is clear that there
5 were many cars and pedestrians in the area. It was daylight, but somewhat cloudy, so visibility was not a problem, nor was the brightness of the sun. The road was dry. The speed limit was 50 kilometres per hour.
Mr. Mowlai was approaching an intersection on a
10 busy main street. The light in front of him turned yellow.
The law requires in this situation that a motorist stop if it is safe to do so, but if not safe to stop, proceed with caution. Mr. Mowlai had plenty of time to slow to a stop when he saw the yellow. Instead he stepped on the gas in an
15 attempt to run the light. He got up to a speed of 107 kilometres an hour and only attempted to slow down when he saw the approaching Acura in the intersection. There is no question that this manner of driving was dangerous to the public, both those on foot and those in cars. Indeed, the
20 defence fairly concedes that the actus reus component of
this offence has been established beyond a reasonable doubt.
- Dangerous Driving: Mens Rea
It is important that the mental element or fault
25 component of the offence be considered separately from the conduct itself. Driving that endangers the public is not sufficient to establish the offence. There must be something that moves the conduct beyond carelessness that would warrant civil liability and into the sphere of
30 unlawful criminal activity deserving of punishment under the criminal law.
In Roy, the Supreme Court held that the "focus of
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the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances": Roy, paragraph 36.
5 This is a modified objective standard. In this case, I must consider what a reasonable person would do in these same circumstances, but without regard to the accused's personal attributes (except in special circumstances that do not
apply in this case).
10 Often it is not possible to know exactly what is in the mind of the accused at the time of the impugned conduct. Typically, state of mind (or mens rea) must be inferred from all the surrounding circumstances. The Supreme Court of Canada in Roy described this process as
15 follows, at paragraphs 39 to 40:
Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence,
including any evidence about the accused's actual
20 state of mind (para 43).
Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier
25 of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the
standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a
30 reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken that activity: Beatty, at para. 37.
Reasons for Judgment - Molloy J.
Of course, it is sometimes not necessary to go through the process of drawing inferences or considering whether the conduct at issue is a marked departure from the standard of care a reasonable person would have exercised.
5 Sometimes, there can be subjective mens rea — that is, deliberate dangerous driving: Roy, paragraph 38.
I have analysed the mens rea component in this case from both perspectives.
First, given that this was inherently dangerous
10 behaviour, can it be said that it was deliberately so? In my view, the answer to that question is yes.
On the accused's own evidence, from approximately
10 car lengths away he saw the light turn yellow. He was in no particular rush. He was not running late for something
15 important. He was taking his girlfriend to Finch subway station to meet her friend. They were nearly there and they had lots of time. He could see just ahead of him what another driver was doing in reaction to the yellow light.
He deliberately chose an alternative, dangerous course of
20 action, simply because he thought to himself he could get to the light before it turned red if he floored the accelerator and drove the car to its maximum speed capacity. He said that he considered only the lane straight ahead of him. It was clear as far as the intersection. So he decided to go
25 for it, for no particular reason other than that he believed he could do it. He acted deliberately. And he acted dangerously. He got his car up to 107 kilometres per hour on arguably Toronto's busiest city street, and, in doing so, he sailed through a red light. He was not presented with a
30 dilemma in which he made a judgment call and merely chose the wrong option. He did not get up to a speed of 107 kilometres an hour by inattention or because he was
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distracted in some way. He did it on purpose. He chose to drive his car in a manner dangerous to the public. That is sufficient to meet the test.
Alternatively, applying the modified objective
5 test of mens rea, Mr. Mowlai still easily meets the test.
No reasonable person would even consider driving 107 kilometres per hour down Yonge Street at 4 o'clock in the afternoon. It is astounding that it was even possible to get enough empty road space on Yonge Street to get up to 107
10 kilometres per hour. What, unfortunately, is not astounding
is that within one second of reaching that speed there was an inevitable crash, with equally inevitable devastating consequences. It would be bad enough to drive 107 kilometres per hour on a straight stretch of a busy city
15 road with nobody about. But to do so after seeing the yellow light and heading full throttle through an intersection is outrageous behaviour.
A reasonable driver approaching an intersection
from this distance and seeing a yellow light would slow to a
20 stop. I have no hesitation in finding that what Mr. Mowlai did was a marked departure from that standard.
- Criminal Negligence
Having determined that Mr. Mowlai is, at the very
25 least, guilty of dangerous driving, I next consider whether the evidence in this case supports a conclusion that he is guilty of the more serious offence of criminal negligence in the operation of a motor vehicle. Criminal negligence is more serious than dangerous driving both in respect of the
30 physical and mental elements required to establish the offence.
S. 219(1) of the Criminal Code provides that
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criminal negligence is proven if the accused "shows wanton and reckless disregard for the lives and safety of other persons" whereas dangerous driving requires a "marked departure" from what a reasonable person would do in the
5 circumstances, criminal negligence requires that there be "a marked and substantial departure" from that norm. The accused must have either recognized and ran an obvious risk to the lives and safety of others or, alternatively, given no thought to that risk: R. v. Sharp 1984 3487 (ON CA), [1984] O.J. No. 46, 12
10 C.C.C. (3d) 428 (C.A.); R. v. Kresko [2013] O.J. No. 1523
(S.C.J.); R. v. M.R., 2011 ONCA 190 at para 28 to 29.
"Wanton and reckless disregard" was defined by Hill J. in R. v. Menezes 2002 49654 (ON SC), [2002] O.J. No. 551 (S.C.J.) as follows (at para 72):
15
The term wanton means "heedlessly" (Regina v. Waite (1996), 1986 4698 (ON CA), 28 C.C.C. (3d) 326 (Ont. C.A.) at
341 per Cory J.A. (as he then was)) or "ungoverned" and "undisciplined" (as approved in Regina v. Sharp (1984), 1984 3487 (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.) at 430 per Morden J.A.)) or an "unrestrained disregard for consequences" (Regina v. Pinske (1988), 1988 3118 (BC CA), 6 M.V.R. (2d) 19 (B.C.C.A.) at
20 33 per Craig J.A. (affirmed on a different basis 1989 47 (SCC), [1989] 2 S.C.R. 979 at 979 per Lamer J. (as he then was)). The word "reckless "means "heedless of consequences, headlong, irresponsible": Regina
v. Sharp, supra at 30.
In terms of the actus reus for criminal
25 negligence I am satisfied beyond a reasonable doubt that the manner of driving in this case went beyond a mere "marked" departure from what a reasonable person would do. It is a marked and substantial departure from that norm. It is not a matter of speed alone. It is a deliberate decision to try
30 to beat a light. Instead of immediately slowing down which is what a reasonable person would do, Mr. Mowlai did the exact opposite. He went as fast as he could possibly go —
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down Yonge Street on a weekday afternoon, towards an intersection where he actually knew the light was about to change. That is a substantial departure from the standard of care.
5 I am also satisfied beyond a reasonable doubt
that Mr. Mowlai demonstrated a wanton and reckless disregard for the lives and safety of others. He simply did not care.
He had no great stake in the matter. He was in no particular hurry. He was under no imperatives. He just
10 decided to run the risk thinking he could get to the light
before it changed. He knew what others were doing — he noted that the car to the left of him was stopping. He
testified that he did not see pedestrians. That can only be because he did not bother to check — they were there. He
15 said he did not see the Acura. It was also there to be seen. If his line of sight was blocked momentarily by the car to his left, that is irrelevant. He did not bother to check. He accelerated to 107 kilometres per hour before checking and by the time he saw the car it was too late.
20 From at least 10 car lengths back, he simply put his foot to
the floor and gunned his car towards the intersection, looking only at his objective: beating the light. He said himself that he did not see the pedestrians because he was looking straight ahead.
25 I cannot be sure if this is truthful — whether he considered the potential risk to the safety of others and decided to engage in this dangerous activity anyway — or whether he simply gave it no thought. However, it really does not matter. Either way, his conduct demonstrates
30 wanton and reckless disregard for others. He was heedless of the consequences. He was irresponsible in the extreme. Or in the words of the Court of Appeal in Sharp, he showed
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an "unrestrained disregard for consequences".
I have to say that his evidence, and the manner in which he gave it, was shocking in its complete lack of appreciation for the seriousness of his conduct. He
5 described the situation as if he was required to make a judgment call or guess, and unfortunately miscalculated. His utter arrogance and disregard for the well-being of others is staggering. He claims not to have seen the pedestrian he hit at all and said that he was told about it
10 the next day in the hospital, adding the comment "it was
very sad". He seems to regard that as an unfortunate, but unavoidable, side effect of a split-second decision he was required to make. His conduct at the time, and still, demonstrates a wanton and reckless disregard for the lives
15 and safety of others.
I recognize that the driving that is the subject of this charge lasted for only a matter of seconds and cover ed a relatively short distance along Yonge Street. That is
a relevant, but not determinative, factor. Clearly, a prior
20 pattern of driving infractions would be aggravating and manifestly dangerous driving over a longer period of time and distance would fall more clearly within the criminal negligence umbrella. However, one act is sufficient to constitute criminal negligence. And one decision to carry
25 out that act is also sufficient. It takes only a fleeting moment to decide to pull the trigger on a handgun. That does not mean that firing a handgun down Yonge Street on a weekday afternoon cannot be criminally negligent conduct. Deciding to drive a car at 107 kilometres per hour down
30 Yonge Street towards a light that is about to turn red is one decision and the conduct did not last long. But that is because tragedy ensued within seconds. Such tragedy would
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be no surprise to a reasonable person. It was easily foreseeable. To have avoided tragedy would have been very lucky. The tragedy that did result was, if not inevitable or even likely, at the very least predictable and
5 foreseeable. That is the case regardless of the duration of the conduct involved.
The issue here is not how long this driving conduct went on for. The question is whether the conduct is a marked and substantial departure from what a reasonable
10 person would do in the same circumstance, whether the
accused has demonstrated a wanton and reckless disregard for the lives and safety of others.
I also recognize that a conviction for criminal negligence in the operation of a motor vehicle will
15 typically involve more than mere speeding. That does not mean, however, that speeding, when seen in the surrounding context, is never sufficient to constitute criminal negligence. In my view, this is one of those situations.
There is a reason that speed limits of 100
20 kilometres per hour are found only on major highways, typically with no pedestrians and controlled access ramps for vehicles. Mr. Mowlai was driving on Yonge Street at a speed in excess of the speed limit on the 401. And he did so for no particular reason other than that he wanted to
25 beat the traffic light. He did so with reckless
indifference to the possibly tragic impact of his conduct on the innocent people going about their business on a busy Toronto street. His conduct was egregious, clearly a marked and substantial departure from what a reasonable person
30 would do, and his state of mind demonstrates a wanton and reckless disregard for the lives and safety of others.
I am satisfied beyond a reasonable doubt as to
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both elements required for the offence of criminal negligence in the operation of a motor vehicle.
- Causation
5 There is no issue with respect to causation. As a result of Mr. Mowlai's criminally negligent operation of his motor vehicle he caused the death of a pedestrian, Mengxi Zhang, and he caused serious bodily harm to the passenger in his own car, Jovana Jovicevic.
10
D. Conclusion
Accordingly I find Mr. Mowlai guilty under count
1 (criminal negligence causing death) and count 2 (criminal negligence causing bodily harm).
15 In my opinion, the dangerous driving counts are subsumed within the criminal negligence conviction and those counts are therefore stayed pursuant to the principles in R.
v. Kienapple.
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Form 2
Certificate of Transcript (Subsection 5(2))
5 Evidence Act
I, Vanessa Giorno certify that this document is a true and accurate transcript of the recording of R. v. HAMED MOWLAI, in the Superior Court of Justice, held at 361 University
10 Avenue, Toronto, Ontario, taken from Recording
4899_2-2_20170608_083233 10_MOLLOYA, which has been certified in Form 1.
15
(Date) Signature of Authorized Person
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