Regina v Markos, 2017 ONSC 90

CITATION: Regina v Markos, 2017 ONSC 90

COURT FILE NO.: CR-15-10000611

DATE: 20170110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HAYTHAM MARKOS

Defendant

Marnie Goldenberg, for the Crown

Richard Diniz, for the Defendant

HEARD: December 12-13, 2016, with written submissions

EM Morgan J:

[1] The Defendant, Haytham Markos, is charged with dangerous driving causing bodily harm and criminal negligence causing bodily harm.

[2] The charges result from a collision that occurred on April 6, 2014, while Mr. Markos and two friends were driving their motorcycles northbound on Yonge Street at the corner of Pleasant Boulevard in Toronto. Upon colliding with a left-turning southbound vehicle, Mr. Markos was ejected from his motorcycle. The motorcycle continued under its own propulsion northbound and veered east onto the sidewalk, hitting and seriously injuring Dorianne Sears, who was walking on the sidewalk on the east side of Yonge Street some 18 meters north of Pleasant Boulevard.

I. The collision

[3] The basic facts are not really in dispute. There were a number of other drivers and at least one passenger in a nearby car who were witnesses to the collision. One of those drivers, Charles Wiley, was positioned one vehicle behind the intersection when the collision occurred, and happened to be operating a dash camera at the time. The camera captured the collision as it transpired.

[4] The relevant portion of the video starts at a traffic light just south of Yonge and Pleasant, showing the northbound traffic. The two lead cars are a Hyundai Elantra driven by Jeff Elliot in the right lane and a CAA service truck driven by Jason Pullicino in the left lane. Mr. Markos is on his motorcycle in the right lane behind Mr. Elliot’s Elantra. A BMW SUV driven by John Roland can be seen coming southbound on Yonge Street and turning left onto Pleasant Boulevard in front of the northbound traffic.

[5] In his written submissions, defense counsel has summarized the video footage as follows:

TIME (Video

Time/Time Stamp)

DESCRIPTION

1:49-1:50/16:17:21

The silver Elantra driven by Mr. Elliot pulls up to the red light at Yonge Street and Rosehill, in the northbound curb lane of Yonge street. It pulls up next to the white CAA truck driven by Jason Pullicino, which is stopped at the red light in the northbound passing lane on Yonge Street

1:51/16:17:21

Mr. Markos appears on screen on his motorcycle, in the northbound curb lane, behind and to the left of Mr. Elliot’s vehicle

1:53-1:54/16:17:24

A second motorcycle appears on screen, to the right of Mr. Markos.

1:55-1:56/16:17:25-

16:17:26

Mr. Markos can be seen looking backward and speaking to somebody behind him

1:56-1:57/16:17:27

Mr. Elliot waves his arm signaling the motorcycles to pass (see in combination with Mr. Elliot’s evidence in the Agreed Statement of Facts)

The light turns green, and the CAA truck starts to move forward. Mr.

Elliot’s vehicle does not move yet

1:59/16:17:29

Mr. Elliot’s vehicle begins to move forward, as does the vehicle with the dash camera in it (belonging to Wiley and Holcomb).

2:00-2:03/16:17:30-

16:17:33

Mr. Elliot’s vehicle is moving forward, slower than the CAA truck, and appears to be leaving space in front of it (see in combination with Mr. Elliot’s evidence in the Agreed Statement of Facts)

2:02/16:17:33

Mr. Markos is changing lanes to the passing lane, in order to pass Mr. Elliot’s vehicle.

2:04/16:17:34

Mr. Markos is in the passing lane, behind the CAA truck and next to Mr. Elliot’s vehicle.

2:05/16:17:34

Mr. Markos is changing lanes back to the curb lane

2:05-2:06/16:17:35

Mr. Markos is back in the northbound curb lane, ahead of Mr. Elliot’s car, and beside the CAA truck (appearing to be near the back of the CAA truck)

2:06-2:07/16:17:36

Mr. Markos is beside the CAA truck, in the northbound curb lane. The headlights of Mr. Roland’s vehicle can be seen in the southbound passing lane, just to the left and above the left brake light of the CAA truck. At this time, Mr. Roland’s SUV can be seen to begin its left hand turn as Mr. Markos is beginning to get just ahead of the CAA truck. The CAA truck is not initially braking, but its brake lights come on after Mr.

Roland’s SUV is into its turn.

2:08/16:17:37

The collision occurs, ahead and to the right of the CAA truck, and the second motorcycle

2:17/16:17:47

The dash cam vehicle is turning onto Pleasant and the northeast corner of the intersection is visible, where debris can be seen.

[6] The collision occurred around 5:30 p.m. on a spring evening. The witnesses all confirmed that the sun had not set, the weather was pleasant and clear, the road was dry and unimpeded, and the visibility was good.

[7] Officer Mark-Anthony Chin of the Toronto Police Service testified as an expert in collision reconstruction. He testified that this stretch of Yonge Street has an unposted speed limit of 50 km/hr. Based on the trajectory of the motorcycle, the impact, and other factors, Officer Chin estimates that at the point of impact Mr. Markos was travelling at a speed of 70-87 km/hr. Although defense counsel has expressed some doubts about the method in which Officer Chin calculated the speed, the fact is that this roughly accords with the evidence of the other drivers and witnesses. They did not know the precise speeds, but they all saw the motorcycle moving significantly faster than the surrounding cars.

[8] Jamie Holcomb, a passenger in the car driven by Charles Wiley, stated that Mr. Markos’ motorcycle was “weaving in and out of traffic and going much faster than the rest of traffic.” Indeed, this would have to be the case considering that the entire video shows Mr. Markos passing Mr. Elliott’s car directly in front of him and Mr. Pullicino’s truck in front of him and to the left. Mr. Wiley indicated that the motorcycle “immediately took off from the light at a much faster speed than traffic.” Ms. Holcomb estimated that Mr. Markos and his two friends also on motorcycles were driving “[p]robably twice as fast as other traffic.”

[9] Defense counsel’s recounting of the video footage, while accurate in its own way, is also blander than the actual impression left by the video. Mr. Markos can be seen not just passing to the left of Mr. Elliott’s car and, a second or so later, to the right of Mr. Pullicino’s truck, he can be seen slipping in between the two at a much higher speed than they are travelling. He performs what is sometimes referred to as a ‘whip-around’ pass, buzzing past the driver’s side of Mr. Elliott’s car and immediately switching lanes back to the right once he is past that car. In the meantime, being on a motorcycle, he is able to squeeze between Mr. Elliott and Mr. Pullicino, in the process pulling ahead of Mr. Pullicino as well.

[10] For a motorcycle to slip back and forth between the lanes and whip around other cars at a high speed in this way is self-evidently risky. In addition to the danger involved in the pass itself, weaving in and out of larger vehicles is likely to obscure the visibility of a motorcycle driver.

[11] According to Mr. Markos’s testimony and the reconstruction provided by Officer Chin, this is indeed what occurred. The CAA truck driven by Mr. Pullicino obscured the view from the motorcycle as it whipped around Mr. Elliott and Mr. Pullicino. Accordingly, Mr. Markos never saw Mr. Roland’s southbound SUV make its left turn. As Officer Chin observed, “the absence of tire skid marks to imply braking on the part of the Yamaha [motorcycle], indicates he did not have any time to perceive the hazard that the turning BMW presented to him, and affect a braking or evasive maneuver.”

[12] The defense suggests that Mr. Roland was at fault in making a left turn at a point where he did not have sufficient time or space to clear the northbound traffic. Mr. Roland testified that he made the left turn at Pleasant Blvd., where there is no traffic light, because the traffic appeared to be backed up a block south of Pleasant at the traffic light where he would have otherwise turned. He indicated with confidence that he had enough time and distance to complete his turn before encountering the northbound traffic. He also testified that he never saw the motorcycle that hit him, which seem to him to come out of nowhere.

[13] Mr. Elliot, the driver of the first car that Mr. Markos can be seen passing on the video, provided a statement in which he indicated that Mr. Roland’s “left turning car was turning at a high speed”, although he acknowledged that he was unable to judge that speed. At the same time, Mr. Elliot indicated that Mr. Markos’ motorcycle “managed to get up to a high speed in a short amount of time” after taking off from the red light the block south of Pleasant Blvd.

[14] The fact is that both Mr. Elliott and Mr. Pullicino had time to see Mr. Roland make his turn. They both applied their brakes and slowed down to let him clear the turn before proceeding into the intersection at Yonge and Pleasant. Mr. Markos, who started out behind Mr. Elliott and Mr. Pullicino and who in the ordinary course should have had much more time before reaching the intersection of Yonge and Pleasant, did not apply his brakes and did not slow down. If Mr. Roland had sufficient time to make his left hand turn ahead of the lead vehicles, he certainly should have had sufficient time to clear the vehicle behind those lead vehicles.

[15] Although Mr. Roland did make his turn in a way that caused Mr. Elliott and Mr. Pullicino to apply their breaks to let him go by, that is not what caused the collision. The dash cam video leaves little doubt that the reason Mr. Roland had insufficient time to complete his turn was that the motorcycle driven by Mr. Markos came out from behind Mr. Elliott and was going too fast. Moreover, Mr. Markos was weaving between Mr. Elliott’s car and Mr. Pullicino’s truck, and was doing so in a manner which prevented him from seeing Mr. Roland’s SUV and which prevented Mr. Roland from seeing him.

[16] As already indicated, Mr. Markos was thrown from his motorcycle upon impact, while the motorcycle itself travelled another 18 meters northeast onto the sidewalk and struck Ms. Sears, who was on foot. She was apparently driven into the large glass window at the front of a coffee shop that fronted on Yonge Street, and was badly injured.

[17] Given the agreement by the defense that her injuries amounted to serious bodily harm, Ms. Sears did not testify. However, her medical report and the testimony of Officer Arthur Lane, who visited her in the hospital on the evening of the collision, make it clear that her injuries were life threatening. She suffered multiple spinal fractures, facial fractures, pelvic fractures, and respiratory failure at the initial stages immediately after the collision.

[18] Fortunately, Ms. Sears has made a recovery. From the witness stand, Officer Lane indicated that he was pleasantly surprised to see that Ms. Sears was now in good enough health to be attending the trial and sitting in the body of the courtroom. He said that when he saw her at the hospital just after the collision, it was unclear whether she would survive. The trial took place some two and a half years after the collision occurred.

[19] Since Ms. Sears’ injuries were admitted by the defense and her medical report was made an exhibit by consent, she did not have to testify and was free as any member of the public to observe the proceedings. It is worth noting that she sat discretely and otherwise anonymously. Crown counsel made no attempt to call attention to her, and from my point of view she sat without any visible sign of injury or medical assistance that would have attracted my attention. Her recovery, of course, is a testament to the medical care she received; it does not change the fact that her injuries were very severe at the time of the collision.

II. Dangerous driving

[20] The offence of dangerous driving causing bodily harm is set out in the Criminal Code as follows:

249 (1) Every one commits an offence who operates

(a) a motor vehicle 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.

[21] The Supreme Court of Canada has explained that this offence is one of negligence, to be assessed first and foremost in accordance with an objective standard. As Cory J. put it in R v Hundal, 1993 CanLII 120 (SCC), [1993] 1 SCR 867, at para 35:

Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care. It is not overly difficult to determine when a driver has fallen markedly below the acceptable standard of care. There can be no doubt that the concept of negligence is well understood and readily recognized by most Canadians.

[22] Since the substandard driving is defined as criminal conduct it cannot be in the nature of a minor slip or “momentary lack of attention, giving rise to civil responsibility” or to a provincial Highway Traffic Act infraction: Hundal, at para 35. Rather, the Criminal Code offense of dangerous driving occupies the more severe end of a “continuum” of negligent driving offences. It is designed to address “the tragic social cost which can and does arise from the operation of motor vehicles…[and to] thereby lessen the carnage on our highways”: Hundal, at paras 35-36.

[23] The objective test, therefore, is a modified one. “In making the assessment [under s. 249(1)(a)], the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation”: Hundal, at para 43. As further elaborated by Cromwell J. in R v Roy, 2012 SCC 26, [2012] 2 SCR 60, at para 1, “The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence.”

[24] The analysis under s. 249(1)(a) must be contextualized, taking into account all of the circumstances and factors that make up the incident. As Charron J. stated in R v Beatty, 2008 SCC 5, [2008] SCJ No 5, at para 8, the mens rea of the offence “is based on the premise that a reasonable person in the accused’s positon would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care.” Since driving is an inherently risky activity, the accused’s driving must be seen to be beyond something that could happen to anyone. As the Supreme Court put it in Roy, at para 34, “Accidents caused by these inherent risks materializing should generally not result in criminal convictions.”

[25] It is also important to note that while one element of the s. 249(3) offense is that the bodily harm suffered by a victim of the dangerous driving must be serious, the seriousness of the injuries does not provide the measure of the faulty driving. Cromwell J. has pointed out that, “Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible”: Roy, at para 2. Accordingly, “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”: Beatty, at para 46.

[26] The case before me entailed one of those perhaps increasingly frequent instances where the relevant acts are captured on video. The dash camera mounted in Mr. Wiley’s car was ideally positioned to film the prelude to the collision and the collision itself. Although the witnesses added a measure of detail and an expert was able to provide an estimate of the actual speed of Mr. Markos’ driving, the inquiry into the manner of driving was far more meaningful than the usual description of events since it was supplemented by direct video footage.

[27] Moreover, Ms. Sears did not have to testify, and so there was no undue attention focused on her injuries. They were described matter-of-factly in a clinical report, but otherwise were not illustrated or dramatized in any way during the course of the trial. There was no sense that the Crown was emphasizing Ms. Sears’ medical condition in order to accentuate the consequences of the collision and downplay the inquiry into its cause.

[28] Accordingly, this was not a case where the tragic consequences served to cloud the issues on which the court must focus. The injurious consequences of this driving were put into evidence without witness testimony and mentioned only in passing as satisfying a necessary ingredient of the offense as charged. Indeed, virtually the entire trial was devoted to an inquiry into Mr. Marcos’ driving and the circumstances surrounding the collision.

[29] While it may be difficult to articulate in words the precise level of care required of drivers, common sense and experience has made the standard a broadly acknowledged one that is not difficult to discern when one sees it occur. As Justice Cory described it in Hundal, at para 35, and as already noted above, “It is not overly difficult to determine when a driver has fallen markedly below the acceptable standard of care. There can be no doubt that the concept of negligence is well understood by most Canadians.”

[30] Since the acceptable standard of care is well recognized in Canadian society, so too is a “marked departure” from the acceptable standard of care.

III. Criminal negligence

[31] The offence of criminal negligence causing bodily harm is set out in the Criminal Code as follows:

Section 219 (1): Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

[32] While this offence, as applied to driving a vehicle, connotes a similar standard of “marked departure” from the required standard of care as does the s. 249 dangerous driving offence, the conduct that it describes is even more severe. The Court of Appeal has stated that, “The requisite wanton or reckless disregard may…be inferred from proof of conduct that constitutes a marked and substantial departure from that expected of the reasonable driver”: R v Willcock, 2006 CanLII 20679 (ON CA), [2006] OJ No 2451, at para 29.

[33] In this respect, the Court of Appeal has compared the criminal negligence standard to one of recklessness at common law. In R v Waite, 1986 CarswellOnt 122, at para 59 (Ont CA), the court referred to R v Lawrence, [1982] AC 510, 526-7 (HL), where Lord Diplock explained that, “the doer of the act is acting ‘recklessly’ if before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such a risk, he nevertheless goes on to do it.”

[34] In other words, criminal negligence causing bodily harm requires a person to recklessly disregard all risk or to advert to the risk he is creating and to create it anyway. The mental element of the criminal negligence offence is measured on a test of ‘wanton disregard’, which, while similar, sets a more stringent standard than the ‘marked departure’ test for dangerous driving: R v Willcock (2006) 2006 CanLII 20679 (ON CA), 210 CCC (3d) 60, at paras 31-33 (Ont CA).

[35] Where a person meets the ‘wanton disregard’ test for criminal negligence, he will likewise have met the ‘marked departure’ for dangerous driving. But the reverse is not the case. He may meet the modified objective standard utilized in analyzing a dangerous driving charge, but still not meet the recklessness test utilized for criminal negligence.

IV. Burden of proof

[36] It is, of course, trite but fundamentally important law that the onus of proof beyond a reasonable doubt is always on the Crown. Accordingly, I must acquit the Defendant of any given charge if I am unable to come to a determination “as to exactly where the truth of the matter lay”: R v Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA).

[37] It has often been said that a criminal case is not a credibility contest where the trier of fact choses which side he or she believes. Where, as here, an accused person has testified in his own defense, the Supreme Court of Canada’s judgment in R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 applies to the analysis of the evidence. I must therefore proceed in accordance with the instructions that Justice Cory, at para 11 of W(D), states that a jury would properly have received in a case where credibility is important:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[38] Mr. Markos has testified that while his driving was not perfect at the time of the collision, it was “not that bad.” His subjective view of whether his driving met the requisite standard, however, is not the issue. “The nature of driving offences suggests that an objective test, or more specifically a modified objective test, is particularly appropriate to apply to dangerous driving”: Hundal, at para 27.

[39] That is not to say that the Crown need not prove every element of the case; of course, it must, since the Crown’s burden of proof is intimately related to the presumption of innocence. The Crown always maintains that burden, even where the mental element of the offence is a modified objective standard rather than the more typical subjective standard. I can put it no better than Cory J. did in Hundal, at para 42:

It follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was ‘dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place’. In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.

[40] The witness’ testimony and agreed statements, together with the video evidence from the dash cam, demonstrate conclusively that Mr. Markos:

(a) was driving substantially faster than the rest of the traffic and considerably over the speed limit;

(b) within seconds of starting from a standstill, passed the vehicle immediately in front of him and the vehicle in front of him in the left lane, both of which started off apace of each other;

(c) passed two vehicles that started off side-by-side and in front of him by whipping around the one in the right lane first and effectively slipping in between it and the slightly faster moving vehicle in the left lane;

(d) drove in a way which obscured his vision of the oncoming traffic, especially of Mr. Roland’s car preparing for a left turn in the southbound left lane;

(e) drove in a way which obscured other drivers’ view of him by darting back and forth from the right northbound land to the left northbound lane and then back to the right;

(f) failed to slow down as he approached the intersection where Yonge Street meets Pleasant Blvd.; and

(g) failed to notice the left-turning SUV when all the other northbound traffic did.

[41] As indicated, counsel for the defence has suggested that it was Mr. Roland that fell below the requisite standard of care in making his left turn in front of the northbound traffic, and not Mr. Markos who failed to stop in time to allow Mr. Roland to proceed. As I see it, although Mr. Roland created a certain amount of risk in turning at Pleasant Blvd. where there is no traffic light, this risk was a measured one. It did not depart from the standard range of prudent driving that a reasonable observer would expect.

[42] The proof of that is that the other northbound vehicles who were not going excessively faster than the speed limit had adequate time to allow Mr. Roland to make his turn. The evidence is that the CAA truck put on its breaks as it approached the intersection, but it did not screech to a halt or stop abruptly. It slowed down and Mr. Roland made his turn in front of it. Mr. Markos, by contrast, was going too fast to stop and approached the intersection at too awkward an angle passing other cars to see Mr. Roland’s vehicle on time.

[43] Mr. Markos did not mean to get into a collision on April 4, 2014. He certainly did not mean to strike Mr. Roland’s SUV, or to injure Ms. Sears or, for that matter, himself. However, he made a dangerous maneuver in speeding up to pass to side-by-side cars, moving substantially faster than the flow of traffic and in a way which was highly risky given the traffic flow on Yonge Street. This was a marked departure from the standard of care that a reasonable person would observe in the traffic situation that prevailed at the time and place of the collision.

[44] On the other hand, Mr. Markos’ driving did not entail a wanton or reckless disregard for the risks he was creating. Rather, he appears to have calculated the risks, but in doing so departed in a marked way from a standard of prudent driving. He drove too fast and passed the cars ahead of him in a dangerous way, but not in a wantonly reckless way. In doing so, he grievously injured Ms. Sears.

V. Disposition

[45] I find Mr. Markos guilty of dangerous driving causing bodily harm. I find him not guilty of criminal negligence causing bodily harm.

Morgan J

Date: January 10, 2017

CITATION: Regina v Markos, 2017 ONSC 90

COURT FILE NO.: CR-15-10000611

DATE: 20170110

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

HAYTHAM MARKOS

Defendant

REASONS FOR JUDGMENT

EM Morgan J

Released: January 10, 2017