Court File and Parties
COURT FILE NO.: CR-17-40000221-0000 DATE: 20180405 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – MURAT GULER Accused
COUNSEL: Andrew Weafer, for the Crown Richard Gorrin and Courtney Kazembe, for the Accused
HEARD: February 26-28, 2018
BEFORE: HIMEL J.
REASONS FOR JUDGMENT
[1] Murat Guler is charged with the offence of dangerous operation of a motor vehicle causing bodily harm contrary to s. 249(3) of the Criminal Code, R.S.C. 1985, c. C-46. He has elected to be tried by a judge sitting without a jury. The parties filed admissions pursuant to s. 655 of the Criminal Code which were that the single car collision witnessed by Esron Duncan occurred on May 22, 2016 in Toronto, that the accused was the driver of the motor vehicle and that Yasar Ari was the passenger in the motor vehicle. The parties also agreed that the officer who testified at trial used a pen to mark on a Google Maps document the location of the motor vehicle on May 22, 2016 following the collision. The issue is whether Mr. Guler drove in a manner that was a marked departure from the norm and caused the collision and the resulting injuries to his passenger. The following are my reasons for judgment.
FACTUAL BACKGROUND:
[2] On Saturday, May 21, 2016, in the early evening, Yasar Ari drove to a Tim Hortons restaurant at Keele and Wilson in the City of Toronto and met up with some friends. One of the persons there was Murat Guler, a friend who worked with him as a painter. Both men had emigrated from Turkey to Canada. After drinking coffee and talking for a while, they decided to drive in Mr. Ari’s car to another Tim Hortons restaurant at 401 and Dixie to meet up with some other friends. They spent the evening talking and drinking coffee. Neither consumed alcohol. At approximately 1:30 a.m., Mr. Ari wanted to go home. He was not feeling well, was nauseated and dizzy and had some blurred vision. As a result, he asked Mr. Guler to drive his car as they lived close by to each other in the Keele and Finch area.
[3] The men left the Tim Hortons just before 2:00 a.m. Mr. Guler was driving the 2000 silver Honda motor vehicle owned by Mr. Ari. They proceeded eastbound along the 401 Highway from Dixie. The traffic was light, the road was dry and the weather was clear. Just after Mr. Guler passed over a curve along the highway, he came up behind another vehicle being driven by Esron Duncan in the third lane of the highway, the lane closest to the passing lane.
[4] Mr. Guler was within a car length of Mr. Duncan’s vehicle and he had to make a quick lane change to pass him. In order to do this, Mr. Guler had to speed up. Mr. Duncan was driving to a friend’s house after work at approximately 2:00 a.m. and was travelling at 130 km per hour. He had just passed the intersection of Highway 401 and Carlingview Drive when he saw the vehicle approach from behind, move up rapidly, overtake him and pass in front of him. He thought to himself that “the vehicle was going way too fast.”
[5] Mr. Duncan was cross-examined about his evidence concerning speed and agreed that he could not gauge speed of a vehicle while it was behind his car. However, he could see that it was approaching rapidly and was overtaking his vehicle at a high rate of speed. He provided a “guestimate” that the vehicle was travelling at 160 to 180 km per hour because it was travelling faster than he was, sped up to pass him and he observed that it took two seconds for it to travel between two light standards which were approximately 80 to 100 metres apart.
[6] He testified that he could more accurately gauge the speed of the vehicle once it had passed him. He was also cross-examined about his evidence concerning where the vehicle had passed his vehicle. In his testimony at trial, he said the vehicle passed on the right. In his statement given to the police after the collision, he described how the vehicle had passed on the left. At the preliminary hearing, he said he was not able to remember which side the vehicle passed him and then went in front of him. He said that he has gone through his memory and remembers that he passed on the right.
[7] After the car passed him, he saw the car fishtail a few times. Then Mr. Guler lost control of the car, collided with the left guard rail, and was weaving and fishtailing as he crossed four lanes until he collided with the right guard rail and travelled along the guardrail until the vehicle came to a stop. At trial, Mr. Duncan said that the car passed him and then went in front of him into the same lane. Mr. Duncan said that the car had come close to two or three other vehicles as it crossed the highway and that the other cars had to slam on their brakes. Mr. Duncan pulled over on the side of the highway and went to see if anyone was injured. He saw Mr. Guler get out of the vehicle and sit on the guardrail in the curb lane of the highway. Mr. Duncan described him as a little disoriented but not injured. Then he saw the passenger trying to crawl across the driver seat to get out of the car. Mr. Duncan assisted him and helped place him on the ground next to the guardrail. Police and EMS arrived 10 to 15 minutes later.
[8] Mr. Guler testified at trial that he is 24 years old, born in Turkey and a Canadian citizen. He knew Mr. Ari as they worked together as painters. On May 22, 2016, at approximately 8:00 p.m., he took a bus to the Tim Hortons restaurant at Keele and Wilson and met up with Yasar Ari. After an hour, they decided to go to another Tim Hortons where some of his friends were, located at 401 and Dixie. Mr. Ari drove his car. They sat around and drank coffee and spoke to friends. At 1:40 a.m., they left and he drove Mr. Ari’s car because Mr. Ari said he had a headache and was not feeling well. They were heading home on the 401 eastbound to Keele. Mr. Guler also testified that the traffic was light, the road was dry and weather conditions were clear. Mr. Guler was driving in the middle lane (the lane beside the extreme left lane of the highway) when he drove up behind a car which was one car length ahead and had to pass the vehicle. He signaled to go left, picked up speed to pass and at that point, he said that Mr. Ari thought he was going to collide as Mr. Ari said “you’re going to hit the car” and grabbed the steering wheel with his left hand and pulled right. Mr. Guler said he pulled the wheel with his right hand, struck Mr. Ari’s hand with his fist so he would let go and he could take back control of the steering wheel but he could not control the car. He said the car was shaking and going side to side. He could not remember if he braked as the car was swerving right and left. The car hit the left guardrail and the air bag opened. He did not remember anything after that. Mr. Guler said, as a result of the collision, that he had a crack on his finger and a bruise on the back of his head. He was able to get himself out of the car. He woke up in the hospital.
[9] When he was cross-examined by Crown counsel about the conditions that night, he said that the traffic was light and when he was asked about the speed he was travelling, he testified that he was not paying attention to the speed as he was following other traffic. He said he did not look at his speed but acknowledged that the speed limit on the highway was 100 km per hour. He remembered that there was a curve on the road. It was put to him that he was driving faster than 130 km per hour as he approached the curve on the road. Mr. Guler denied that but agreed he had no idea how fast he was travelling. He said that he was following the flow of the highway. He also denied that Mr. Ari said anything to him about slowing down as he was driving. When Crown counsel asked, “Is it possible you were going faster than 130 km per hour before you go into the curve?” he answered, “I don’t know. I never paid attention.”
[10] Mr. Guler also testified that when he passed the vehicle on the left and Mr. Ari grabbed the steering wheel, he did not know if he was in the left lane or in front of the car as he had lost control. He remembers hitting the left guard rail, the air bag opened and he closed his eyes. Once the car stopped, he said he came back to consciousness. He got out of the car and then helped pull Mr. Ari out through the driver’s door and then he sat on the ground. He said he did not remember what happened after that. He also testified that he did not pass any cars when he was in the curve and there were only three or four cars as he drove on the straight part of the highway. He agreed that he got within one car length of one of those cars and, “I had to give it the gas to pass it.” Crown counsel suggested that when he passed the vehicle he drove even faster than 130 km per hour and he replied, “I don’t know that.”
[11] Officer Rebecca Lindsay of the Ontario Provincial Police arrived at the scene of the collision at 2:12 a.m. She said that the collision occurred approximately 200 to 300 metres following a gradual curve on Highway 401 after Carlingview Drive. She described the silver Honda vehicle as having extensive damage. She observed one male sitting on the guardrail on the right of the highway. The other male was lying on the guardrail with injuries to his leg, arm and head. Both men were not responding to questions. Officer Lindsay got close to the men in order to ensure that they were breathing. She said they both seemed to be in shock. Mr. Ari was not responsive to questions or commands and would not open his eyes.
[12] The officer began to interview witnesses and spoke with Mr. Duncan who provided a statement. The officer took notes and drew a diagram of the scene. Mr. Duncan said that as he was driving in the third lane, a vehicle passed him at an extremely high rate of speed and, immediately after passing him, began to wobble and fishtail and hit the left side guardrail and then cross all four lanes of traffic and collide with the right side guardrail. Mr. Duncan said that he had to brake to avoid hitting him. He also told the officer that Mr. Guler and the passenger had a strong smell of alcohol and were intoxicated. Officer Lindsay did not detect a smell of alcohol on either man. The officer followed the ambulance to the hospital.
[13] Yasar Ari had suffered a broken left kneecap which required surgery. He also had injuries to his ribs, lower back and neck and suffered a concussion from a head injury. At trial, he described that he is still in pain, cannot sleep at night and has not been able to work. He said that he has suffered memory loss but remembers some things about the night of the collision. He clearly had difficulty testifying in court and required frequent breaks. He could not estimate distances or time. He did recall that Mr. Guler was driving him home, that he was in the passenger seat and Mr. Guler was driving extremely fast. He did not look at the speedometer. He also said that, “When there was an empty opening, he was immediately throwing himself into that gap.” He said that he told Mr. Guler many times to slow down. He remembers that, “There was a car in front of us, he braked, our car slid and my side collided.” He said that he lost consciousness and could not talk. He opened his eyes in the hospital.
[14] Mr. Ari’s recollection of the night of the collision seems to have improved over time. Initially, he told Officer Lindsay, when he was interviewed on June 12, 2016, that he could not remember the collision but then gave her some details. In a follow up interview on December 22, 2016, he provided several additional details to the officer. These statements were taken in English and without an interpreter. The officer said that he understood her and she understood Mr. Ari. In that later statement he repeated that he remembered Mr. Guler driving and passing cars so fast, that he told him many times that he was driving so fast and that he saw the car in front of them and told Mr. Guler to brake but when he did brake, the car slid out and turned and hit the concrete wall. When he was asked by the officer, “What made you believe you were driving fast?” he said, “I know that he’s going fast, I could see that he’s going fast, he was passing, when he saw an empty lane he took it and he was passing cars. I told him slow down, he was going too fast and almost hit another car.”
[15] At trial, where Mr. Ari had an interpreter, Mr. Ari described that he remembered certain events and not others. When he was cross-examined, he agreed that there was a mistake in his statement which said that he went to the Tim Hortons restaurant during the afternoon. In fact, he was there at night. He had no memory of going to two Tim Hortons restaurants that evening. He could not remember the location of the Tim Hortons restaurant. He could not recall driving the car to the second Tim Hortons. He could not remember the friends that he was with at the restaurant. In the statement taken on December 22, 2016 he said that there were only two of them. Now he acknowledges that there was Mr. Guler, his cousin and some other friends.
[16] Mr. Ari recalls not feeling well at the Tim Hortons restaurant and that Mr. Guler took the keys and drove the car. In his statement to the police officer on December 22, 2016 he said that he does not remember what happened before, during or after the accident. In his evidence at the preliminary hearing, he said that he did not remember anything about the accident. At trial, however, he testified that his memory comes and goes. He recalls that he did not consume alcohol that night and he does not recall Mr. Guler having any alcohol. While he was feeling dizzy and had a headache prior to the collision, he recalls that he was the passenger in the car and that Mr. Guler was driving fast. He could not say the speed of the vehicle. He denied the proposition put to him by counsel that he was nervous and anxious and that he pulled on the steering wheel with his left hand as Mr. Guler was increasing speed to pass the vehicle in front of them and that was the cause of the collision. He said that was “a lie” and that the collision happened because Mr. Guler was driving too fast.
[17] After Officer Lindsay learned of the significant injuries of Mr. Ari, Mr. Guler was charged with dangerous driving causing bodily harm on June 29, 2016.
ISSUES:
[18] The issues raised at this trial are as follows:
(1) Is the Crown able to prove beyond a reasonable doubt that Murat Guler was the driver of the 2000 silver Honda that was involved in the single car collision at Highway 401 east of Carlingview Avenue on Sunday, May 22, 2016?
(2) Is the Crown able to prove beyond a reasonable doubt that the manner of Mr. Guler’s driving was such that it was a marked departure from the standard of reasonable driving conduct and viewed objectively was dangerous to the public having regard to all the circumstances?
(3) Did the driving cause the injuries of the passenger Yasar Ari?
POSITIONS OF THE PARTIES:
[19] The Crown takes the position that Mr. Guler’s driving on May 22, 2016 was dangerous to the public (which includes his passenger) as it demonstrated a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.
[20] The Crown argues that it has proven beyond a reasonable doubt that Mr. Guler was driving at an excessive speed on a highway while approaching other vehicles and while passing other vehicles to a point that he lost control and endangered the public. Relying on decisions of the Court of Appeal for Ontario in R. v. Richards (2003), 2003 48437 (ON CA), 174 C.C.C. (3d) 154 (Ont. C.A.), and R. v. M.(M.K.) (1998), 1998 1324 (ON CA), 35 M.V.R. (3d) 319 (Ont. C.A.), he submits that depending on the context, excessive speed can amount to a marked departure. Further, he argues that the Crown does not have to prove the exact speed that the accused was driving. Mr. Weafer points out that Mr. Duncan was travelling at 130 km per hour, that he saw the vehicle behind him rapidly overtaking him and that, while he could not say the exact speed the vehicle was travelling, he could say that it was going faster than 130 km per hour as it passed him. He argues that it was because of the speed that Mr. Guler lost control and smashed into the left guard rail and then the right guard rail.
[21] The Crown submits that the fact that Mr. Duncan was not sure on what side Mr. Guler passed his vehicle or that he thought he smelled alcohol on the accused and the passenger, does not affect his credibility such that his evidence should not be believed. The situation was a traumatic one where there were serious injuries and it is possible he simply got these things wrong. He asks that the court accept his evidence about Mr. Guler’s driving and his speed in particular. Crown counsel also relies on the evidence of Yasar Ari, who, while he has problems with memory, recalls that Mr. Guler was driving fast just prior to the collision. He asks that the evidence of Mr. Guler be rejected that Mr. Ari grabbed the steering wheel and, as a result, he lost control. Mr. Weafer submits that Mr. Guler’s evidence is unreliable and is not credible in that it shows inconsistencies such as when he says Mr. Ari pulled at the steering wheel (whether it was before or after he passed the curve on the highway) and at what point he says the collision occurred (whether it was after he got out of the curve or when he was in a straight lane) or whether he had passed other cars before he passed Mr. Duncan’s car or only passed one vehicle. Furthermore, Mr. Guler did not refute that he could have been driving much faster than 130 km per hour. He was tailgating at a high speed and passed at a speed that could have been much faster than that.
[22] Mr. Weafer argues that it is convenient for Mr. Guler to now say that Mr. Ari pulled at the steering wheel and that is what caused him to lose control of the vehicle. He submits that the true cause of the collision is the driving of Mr. Guler. Further, that dangerous driving was the cause of Mr. Ari’s injuries which are significant and would constitute bodily harm. He asks that Mr. Guler be found guilty of dangerous driving causing bodily harm.
[23] The defence submits that the offence of dangerous driving causing bodily harm requires proof of the actus reus in that, viewed objectively, the court must be satisfied that the accused drove in a manner dangerous to the public having regard to all the circumstances which include the amount of traffic, the road conditions and weather. Mr. Gorrin argues that, in this case, the actus reus is not made out as the accused was driving late at night on an open highway with light traffic at a rate of speed consistent with the traffic. When he switched lanes from the third to the far left lane to pass the vehicle ahead, Mr. Ari grabbed the wheel and pulled the wheel towards himself causing Mr. Guler to lose control. For dangerous driving to be made out, he argues, a “modified objective test” applies such that the conduct of the accused must be a “marked departure from the standard of care that a reasonable person would observe in the accused’s situation”: R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867, at p. 888. In his submission, speed alone is not sufficient to constitute a marked departure but requires other circumstances. He submits that the evidence of Mr. Duncan on speed is unreliable and that there is no other evidence of dangerous driving. Further, a reasonable person would have no indication that someone would pull at the steering wheel to take control of the car. In light of Mr. Guler’s explanation of what happened, counsel argues that the actus reus is not proven.
[24] As for the requisite mens rea, the court must be satisfied of the state of mind of the accused. The issue is whether the evidence raises a reasonable doubt of whether a reasonable person in the accused’s position would be aware of the risk created by his conduct. If an explanation is offered, the trier must be satisfied that a reasonable person would have done something. Counsel submits that there is no evidence of a marked departure from the standard of care of a reasonable person. Rather, Mr. Guler was driving normally with the flow of traffic, was passing the car ahead and had to speed up. A reasonable person could not foresee or believe that someone would pull the steering wheel especially when considering the lane to his left was open. If anything, there was a momentary lapse of attention when Mr. Guler had to speed up in order to pass but that would not equate with dangerous driving: see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 77.
[25] Counsel points to the evidence of the witnesses. He asks this court to find the evidence of Esron Duncan to be highly unreliable on his assessment of speed given the numerous inconsistencies between his evidence at the preliminary hearing, his statement to the officer and his evidence at trial. The most substantial inconsistency was that he testified that he was sure that the accused and Mr. Ari had a strong smell of alcohol and were intoxicated. Mr. Ari and Mr. Guler each testified that they did not drink that day. Officer Lindsay testified that she was within close range of the two men and there was no indication of alcohol for either of the men. Counsel submits that the witness was trying to be a “prosecutor” and was fabricating the smell of alcohol. This renders his evidence, counsel submits, entirely unreliable. Further, Mr. Duncan testified at the preliminary hearing that while the vehicle was behind him, he could not gauge speed. At trial, he said he could tell the vehicle was approaching quickly from behind. A further inconsistency is that Mr. Duncan testified that the vehicle passed on the right but when the drawing was done by the officer who interviewed him and which he reviewed, it showed that he passed on the left. At the preliminary hearing, initially, he said the vehicle passed on the right; in cross-examination, he said on the left. He also said that he was not positive but that, likely, he passed on the right. These inconsistencies suggest that Mr. Duncan is not telling the truth and that, given his propensity to exaggerate, his evidence on speed is unreliable.
[26] Furthermore, the defence submits that Mr. Duncan gave a “fantastical estimation” on speed which he said was based on his experience in traffic enforcement in parking lots, where typically, the speed of vehicles would be between 10 and 20 km per hour. Mr. Gorrin asks that Mr. Duncan’s evidence not be believed as he had said that while he was driving, he had to brake to avoid a collision, was watching other cars and yet was counting seconds as he passed between light standards. Counsel argues that his calculations are incorrect and, applying the numbers he used for the distance of the light standards and the amount of time, the speed would be 119 km per hour.
[27] Mr. Gorrin also submits that Yasar Ari’s evidence should not be given any weight as he had said on a number of occasions, including in the statement given to police on June 12, 2016, that he could not remember anything about the accident and in the statement given on December 22, 2016 that he did not remember. While later he recalled certain details, he could not say what roads he was driving on, how far his house was from the Tim Hortons, or that he had been to two Tim Hortons restaurants that night. The only thing he remembered was that Mr. Guler was driving fast and that he had a bad headache, blurred vision and was dizzy and had his eyes closed. The evidence concerning speed or that Mr. Guler was driving into gaps is not reliable and should not be accepted. He says there were too many inconsistencies in his evidence and because of his memory loss, his evidence is not credible.
[28] On the other hand, Mr. Gorrin asks this court to believe the evidence of Mr. Guler. First, Mr. Ari confirmed in cross-examination that the fact Mr. Guler was driving his car was putting him in an anxious state. He had a bad headache, was worried, anxious, dizzy and Mr. Gorrin suggests that it is reasonable he would try to pull the steering wheel because he thought Mr. Guler was too close to the car ahead. Mr. Gorrin also points out that where Officer Lindsay says the point of collision was is 500 metres from the curve in the highway and argues that the curve was not a factor in the collision. Mr. Guler testified that the highway was straight where he tried to pass the vehicle and the collision occurred. Counsel submits that Mr. Guler was honest about speed and agreed he did not know what speed he was travelling but it was late at night and there were only three or four cars on the road, and he was driving to keep up with them.
[29] Counsel distinguishes the circumstances of this case from those in R. v. Richards where the court held that, in rare conditions, speed alone may constitute a marked departure. Mr. Gorrin submits that, in the case at bar, the court cannot be satisfied of the speed of Mr. Guler in light of the unreliable evidence of Mr. Duncan and that it is not the speeding that caused the collision. Similarly, he distinguishes the case of R. v. M.(M.K.) where there was heavy traffic and horseplay on the road while driving that led to the loss of control. Here, the traffic was light, there was no horseplay, no oncoming traffic and no reliable evidence of speeding. Other cases have ample evidence of poor driving but here there is no negligence or dangerous driving except for speed.
[30] Mr. Gorrin asks that the accused be found not guilty as the Crown has failed to prove beyond a reasonable doubt the elements of the offence of dangerous driving causing bodily harm.
ANALYSIS AND THE LAW
[31] The issue before me is whether Crown counsel has proven the offence of dangerous driving causing bodily harm beyond a reasonable doubt. In this case, I apply the following principles in determining whether the Crown has met its onus. First, Mr. Guler is presumed to be innocent unless the Crown has proven his guilt beyond a reasonable doubt. The burden rests upon the Crown throughout. A reasonable doubt is not a far-fetched or frivolous doubt. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence. It is not enough to believe that Mr. Guler is probably or likely guilty. That is not guilt beyond a reasonable doubt. If I am sure that Mr. Guler committed the offence, then I am to find him guilty. If at the end of the case, based on all of the evidence or the lack of evidence, I am not sure that he committed the offence charged, then I am to find him not guilty.
[32] In that Mr. Guler testified at his trial, I must apply the principles enunciated in the case of R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742 as follows: First, if I believe the evidence of Mr. Guler, I must acquit him of the charge. Second, if I do not believe the evidence of Mr. Guler but I am left in a reasonable doubt by it, I must find him not guilty of the charge. Third, even if I do not believe his evidence and it does not leave me with a reasonable doubt of his guilt or about an essential element of the offence charged, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
[33] There is no onus upon Mr. Guler to prove anything. The onus rests upon the Crown throughout to prove the offence beyond a reasonable doubt. The court is not to weigh and compare conflicting versions of the events. The court when faced with two irreconcilable versions of events does not have to figure out which version to believe. Rather, the court is to assess all the evidence and based upon the whole of the evidence, decide whether the Crown has met its burden or whether the court is left with a reasonable doubt as to the accused’s guilt: see R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at paras. 19-22.
[34] In making my decision, I am to consider all the evidence led at trial. It is up to me to decide how much or little I will believe and rely upon the testimony of any witness. I may believe some, none or all of it. In assessing the credibility and determining the reliability of the witnesses, I may consider their honesty, whether they have any reason for not telling the truth, whether they have any reason to give evidence that is more favourable to one side than to another, the accuracy and completeness of their observations, the circumstances of the observations, the memory of the witness, the availability of other sources of information, the inherent reasonableness of the testimony, the internal consistency of the witness’ evidence and consistency with other evidence and the demeanour of the witness. I am to consider the oral testimony, the exhibits filed and admissions made by counsel in making my conclusions.
The Elements of Dangerous Driving
Has the Crown proven beyond a reasonable doubt the identity of the driver?
[35] There is an admission by the defence that Mr. Guler was the driver of the motor vehicle on May 22, 2016. This essential element of identity is proven beyond a reasonable doubt.
What are the elements of the offence of dangerous driving?
[36] While criminal negligence involves a “wanton or reckless disregard for the life or safety of others”, dangerous driving requires only a “marked departure” from the standard of reasonable driving conduct: see R. v. Beatty, at para. 47.
[37] The essential elements of the offence of dangerous driving were outlined by the Supreme Court of Canada in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60. In that case, the accused was making a left turn across a highway and pulled his motor-home out in front of an oncoming tractor trailer. Visibility was reduced due to fog, and the unpaved road that the accused was turning from was slippery due to snow. The trial judge convicted the accused of dangerous driving causing death (of his passenger). The Supreme Court of Canada allowed the appeal because of the trial judge’s error in law in “leaping” from the consequences of the driving to a conclusion of the requisite fault elements: see R. v. Roy, at para. 34; R. v. Beatty, at para. 46. The court wrote in R. v. Roy, at para. 41:
The question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.
[38] The circumstances in the leading Supreme Court decision of R. v. Beatty were that the accused’s pick-up truck, for no apparent reason, suddenly crossed the solid centre line into the path of an oncoming vehicle, killing all three occupants. Witnesses driving behind the victim’s car observed the accused’s vehicle was being driven in a proper manner prior to the accident. An expert inspection concluded that the vehicle had not suffered from mechanical failure. Alcohol was not a factor. The issue was whether this momentary act of negligence was sufficient to constitute dangerous operation of a motor vehicle causing death within the meaning of s. 249(4) of the Criminal Code. The trial judge acquitted the accused on the ground that a few seconds of negligent inattention, without more, did not constitute a marked departure from the standard of care of a reasonably prudent driver. The Court of Appeal allowed the Crown’s appeal and set aside the acquittals. The Supreme Court of Canada allowed the appeal and restored the acquittals.
[39] The Supreme Court clarified the elements of the offence of dangerous driving. The actus reus of the offence is driving in a manner that was “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”: R. v. Beatty, at para. 43; see also R. v. Roy, at para. 28.
[40] The mens rea required for dangerous operation of a motor vehicle is not proof of a positive state of mind, such as intent or recklessness. Rather, the court must be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by a degree of care that was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances: see R. v. Beatty, at para. 43; R. v. Roy, at paras. 28 and 36. The mens rea is assessed based on all of the evidence, including evidence about the accused’s actual state of mind, if any. According to R. v. Roy at para. 28; relying on R. v. Beatty at para. 48:
The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment.
[41] In assessing whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public given all the surrounding circumstances. It is essential that the inquiry focus on the risks created by the accused's manner of driving, not the consequences: see R. v. Roy, at para. 34. “The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving”: R. v. Roy, at para. 35.
[42] With respect to the mens rea element, the focus must be on whether the driving was a result of a marked departure from the standard of care which a reasonable person in the same circumstances would have exercised: see R. v. Roy, at para. 36; R. v. Beatty, at para. 48. In conducting this analysis and applying the “modified objective standard,” two key questions must be asked. First, whether a reasonable person, in light of the same circumstances, would have foreseen the risk and taken steps to avoid it. Second, whether the accused’s failure to do so is a marked departure from the standard of care expected of a reasonable person in the circumstances.
[43] While the existence of the required objective mens rea may often be inferred from the fact that the accused drove in a manner that was a marked departure from the norm, the trier of fact must examine the surrounding circumstances to decide whether drawing an inference of fault from the manner of driving is appropriate: see R. v. Roy, at para. 40. In R. v. Hundal, McLachlin J. (as she then was) and Cory J. discussed the meaning of the “modified objective test” to apply to the offence of dangerous driving which recognizes that while an objective test must be applied, it will remain open to an accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct.
[44] Not all dangerous driving will support the inference that the accused departed markedly from the standard of care expected of a reasonable person in similar circumstances: R. v. Roy, at para. 42. As the Supreme Court wrote in R. v. Beatty, at para. 7, not every departure from the norm would constitute conduct that demonstrates a blameworthy state of mind. Rather there must be a “marked departure” from the civil norm in the circumstances of the case.
[45] In certain circumstances, excessive speed alone can constitute the offence of dangerous driving: see R. v. Richards, at paras. 10-11. In that case, the appellant had lost control of the vehicle causing it to leave the road, cross onto a grass median dividing traffic lands and hitting a concrete pillar. The two passengers died instantly. The appellant had been travelling a minimum of 119 km per hour in a 100 km per hour zone. There was no other cause explaining the appellant’s loss of control. The Court of Appeal held that the trial judge was in error that evidence of speed alone could not found a conviction. Rather, the court noted that evidence of excessive speed, in itself, can constitute the offence of dangerous driving as it can amount to a marked departure from the standard of care of a prudent driver. The court cited its decision in R. v. M.(M.K.), where the Court of Appeal for Ontario dismissed an appeal from a conviction of dangerous driving causing death where the trial judge concluded that, in the circumstances of the case, the appellant’s excessive speed amounted to dangerous driving.
[46] Similarly, in R. v. Baker, 2013 ONCA 746, 54 M.V.R. (6th) 1, the appellant appealed two convictions for dangerous driving causing death where the trial judge found that he was driving over the 80 km per hour speed limit in a mechanically-sound vehicle equipped with a radar detector when his vehicle crossed into oncoming traffic at a gentle curve in the road, colliding head-on with another vehicle and killing its two occupants. The judge found the accident was not the result of a momentary loss of attention but, instead, resulted from his driving in a manner markedly departing from the standard of a reasonable driver, leaving no margin for error when negotiating the curve in the road. Doherty J.A. held that the trial judge was alive to the fault component of dangerous driving and made findings of fact that supported the conclusion that the appellant was driving at a speed over the speed limit and was going much too fast when entering a curve. The court went on to say that knowing the exact speed of the appellant’s vehicle at the time of the accident was not necessary. The court upheld the guilty verdict.
The issue of causation
[47] The other essential element of the offence of dangerous driving causing bodily harm relates to causation. The Crown must also prove beyond a reasonable doubt that the dangerous driving was a significant cause of the resulting injuries.
[48] Without proving causation between the actions of the accused and the resulting injury, the offence becomes dangerous driving simpliciter: see R. v. Armstrong, 2011 ONCA 709, 22 M.V.R. (6th) 173, at paras. 29-32. In R. v. R. (R.L.) (1998), 1988 9882 (ON CA), 8 M.V.R. (2d) 116, at para. 10, aff’d 1991 115 (SCC), [1991] 1 S.C.R. 115, the Court of Appeal for Ontario held that in driving offences, the trier of fact must first determine whether the accused’s actions constituted criminal negligence or dangerous driving before the harm occurred. Once that is established, if the bodily harm occurred due to the negligence of the other driver and the accused’s manner of driving did not contribute to the bodily harm beyond the de minimis range, the Crown will not be able to establish the element of causation. When analyzing cases with an offence simpliciter, such as criminal negligence, the elements of the offence simpliciter must be proven by the Crown before this causation analysis begins.
[49] Causation is established in a criminal context when an accused’s actions were a significant contributing cause of the resulting death or bodily harm: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71.
CONCLUSIONS:
[50] The circumstances of this case are that Yasar Ari suffered trauma to his leg, back, neck and head as a result of a single car collision on May 22, 2016 during which Murat Guler was driving. Mr. Ari has memory loss and says he cannot work. The injuries are significant. However, it is not the consequence of the injuries that determines whether Mr. Guler is guilty of the offence of dangerous driving.
[51] To prove the offence of dangerous operation of a motor vehicle causing bodily harm, the Crown must prove that Mr. Guler drove in a manner that was 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 might reasonably be expected to be at that place. This must be accompanied by the required mens rea such that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.
[52] As noted above, in certain circumstances, evidence of speed alone will be sufficient to establish dangerous driving: see R. v. Richards, at para. 11. However, “speed must be assessed in relation to all the surrounding circumstances when determining whether there has been a marked departure”: R. v. St. Pierre, 2005 BCSC 1899, [2005] B.C.J. No. 3131, at para. 22. The speed of other vehicles on the highway is also a relevant consideration: see R. v. Richards, at para. 15.
[53] The evidence before me concerning the speed of the Honda is derived from the testimony of Esron Duncan, the passenger Yasar Ari and from the accused Murat Guler himself. Their evidence all supported the conclusion that Mr. Guler was driving well above the speed limit of 100 km per hour and too quickly to avoid any unexpected occurrence on the highway. In fact, what is clear is that he came up behind the vehicle of Mr. Duncan, who himself was driving at 130 km per hour, drove too fast and too close to the vehicle ahead and, suddenly, had to pass the vehicle and increase the speed of the Honda in order to avoid hitting Mr. Duncan’s vehicle. In increasing the speed to over 130 km per hour, he lost control and hit the guardrail to the left of the passing lane and then was weaving and fishtailing until he collided with the guardrail next to the highway at the curb lane on the right.
[54] I do not believe Mr. Guler’s evidence regarding the actions of Mr. Ari in grabbing the steering wheel and causing him to lose control. Further, his evidence does not leave me with a reasonable doubt. As outlined in R. v. W.D., even if I do not believe his evidence and it does not leave me with a reasonable doubt of his guilt or about an essential element of the offence charged, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
[55] As the court said in R. v. Baker, at para. 11, the Crown does not have to prove the exact speed in order to prove excessive speed. On all the evidence that I do accept, I find that Mr. Guler was driving too fast, that his driving speed and lack of attention to the road resulted in his vehicle almost colliding with Mr. Duncan’s vehicle. In an effort to take evasive action, he lost control because of the high speed. Even if I believed Mr. Guler’s evidence that Mr. Ari grabbed at the wheel, which I do not, it is apparent to me that there would have been a collision because of the high speed and lack of attention to the road, unless evasive action was taken. That manner of driving amounted to dangerous driving and the driving was the cause of the collision and injuries to Mr. Ari.
[56] In reaching these conclusions, I have relied upon the evidence of lay persons concerning speed. No expert evidence was called on this issue. The opinion of a lay person may be received on the issue of speed: see R. v. German, 1947 76 (ON CA), [1947] O.R. 395, 89 C.C.C. 90 (Ont. C.A.). I am not relying on the calculations of Mr. Duncan who testified that he has worked for many years as a security officer and has been involved in speed enforcement for three decades. He had testified that, while he was driving, he observed the vehicle driven by Mr. Guler travel between two light standards (which he estimated were approximately 80 to 100 metres apart) in a span of two seconds and, therefore, he believed that Mr. Guler was travelling at 160 to 180 km per hour. As I have outlined above, in making findings, I can accept some none or all of the evidence of a witness. In this case, I do not accept the evidence of Mr. Duncan on his speed estimation based on calculations but I do accept his evidence that he was travelling at approximately 130 km per hour and that he saw a vehicle approaching from behind and rapidly overtaking his. That vehicle being driven by Mr. Guler came up too fast behind him, had to speed up to change lanes and drove in a dangerous manner in conditions where the roads were dry, the weather clear and the traffic was light. There was no reason for Mr. Guler to be travelling behind Mr. Duncan so closely and at such a rate of speed that he suddenly had to change lanes.
[57] I also find that the evidence of Mr. Duncan was corroborated by the evidence of Mr. Ari who testified that Mr. Guler was driving very fast and he was extremely concerned. Further, the evidence of Mr. Guler himself, who agreed that he had not looked at his speedometer and was simply following the speed of other traffic on the road, supports the finding that he was driving at an excessive speed and, in his words, “I was not paying attention.” On his evidence alone concerning speed and a sudden lane change, his driving was dangerous and would constitute a marked departure.
[58] Applying the law on the elements of the offence of dangerous driving as set out in R. v. Beatty and R. v. Roy, I am satisfied beyond a reasonable doubt that the Crown has proven that Mr. Guler’s driving on May 22, 2016 which involved excessive speed over 130 km per hour, coming up too closely behind another vehicle and passing while making an unsafe lane change showed a lack of regard for other users of the highway, particularly in light of the posted speed of 100 km per hour. The weather conditions were fine, the road was dry and the traffic was light. While the driving took place over a brief period of time, in my view, excessive speed coupled with a sudden acceleration of the vehicle in order to pass the car ahead in circumstances of such road and weather conditions demonstrated driving that was a marked departure from the norm: see R. v. Badaracco (2006), 31 M.V.R. (5th) 48 (Ont. C.A.), [2006] O.J. No. 1875 (C.A.) at para. 2; R. v. Garland (1985), 39 M.V.R. 280 [1985] O.J. No. 1868 (Ont. Dist. Ct.), at para. 15.
[59] I am also satisfied that the mens rea of the offence is established beyond a reasonable doubt as a reasonable person in the accused’s position would have been aware of the risk his conduct created. I reject the evidence of Mr. Guler that Mr. Ari grabbed at the steering wheel and that is what caused him to lose control.
[60] In summary, the Crown has proven beyond a reasonable doubt the actus reus and the mens rea to found a conviction of dangerous driving. The nature of the accused’s driving which I have detailed above in the circumstances with the amount of traffic, conditions of the road and the weather, demonstrated a danger to the public including the passenger Mr. Ari. I find that Mr. Guler intended to operate the vehicle in a way which, objectively viewed, constituted a marked departure from the standard of care expected of a prudent driver in the circumstances. I am satisfied beyond a reasonable doubt that Mr. Guler’s driving on May 22, 2016 caused the collision and that his driving was a significant contributing cause of the injuries of Mr. Ari. In light of the medical evidence and the evidence of Mr. Ari, I find that those injuries were extensive and included a broken left kneecap which required surgery, rib fractures, injuries to the neck, back, right foot, and a concussion which resulted in memory loss. Mr. Ari was hospitalized at Sunnybrook Medical Centre and St. John’s Rehabilitation Centre after the surgery. He is unable to sleep, has continuous pain, is unable to work and says that his life has been changed by the collision. His injuries constitute bodily harm.
[61] As a result, I find Mr. Guler guilty of the offence of dangerous driving causing bodily harm.
Himel J.
Released: April 5, 2018