COURT FILE NO.: CR-756/17 DATE: 20180629 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – ANTHONY BOTELHO
R. Levan A/Crown Attorney A. Heath, Counsel for the Respondent
HEARD: March 14, 15, 16, 19, 20, 21, 2018 May 25, 2018
TZIMAS J.
REASONS FOR JUDGMENT
INTRODUCTION
[1] The defendant, Anthony Botelho is charged with dangerous driving while street racing causing death, contrary to s. 294.4(4) of the Criminal Code of Canada. The offence is said to have occurred on November 29, 2014. The victim was Eric Dhandari.
[2] The Crown alleged that Mr. Botelho drove in a manner that was dangerous to the public and that marked a departure from the standard of care that a reasonable person in the same circumstances would have exhibited. He, together with the victim engaged in dangerous driving by racing up Summerlea Road, where the accident occurred.
[3] The defence disputed the position. Counsel conceded that the drivers in the two vehicles may have been driving above the speed limit but that their behaviour did not rise to the level of dangerous driving.
[4] The Crown’s case was constructed entirely on a number of inferences to be made from the testimony of the various witnesses and from the viewing of isolated video clips recorded from cameras located at certain addresses along Summerlea Road. Counsel submitted that the court could infer from the depicted behaviour and from the evidence in court that Messrs. Botelho and Dhandari were car racing and that this is what caused the accident.
[5] There is no question that the accident that occurred was dreadful. However, for the reasons that follow I conclude that the Crown failed to meet the burden of proof to permit a finding beyond a reasonable doubt that Mr. Botelho was operating a vehicle in a race with Mr. Dhandari and that he did so in manner that was dangerous to the public and that caused Mr. Dhandari’s death, contrary to section 249.4(4) of the Criminal Code of Canada.
BACKGROUND FACTS
[6] Briefly, Mr. Botelho and the Mr. Dhandari worked at a company called Faurecia Emissions Control, (Faurecia), located at 40 Summerlea Road near Walker Drive. At around 2 a.m. on November 29, 2014, they got off work and went into their cars. They both drove Honda Civics; one was a white car and the other was grey. They pulled out of the parking lot and they proceeded to drive north on Summerlea. At all times, Mr. Botelho drove ahead of Mr. Dhandari. The area is industrial and it had good lighting. The road and the driving conditions were good. There was some other light traffic and principally trucks. The road is one lane each way and on that night it was in good condition. There was no evidence of any difficulty with any ongoing traffic.
[7] The two drivers were headed towards Summerlea Road and Clark Boulevard, where the first traffic light is located. Before they got there, just south of Barton Road, Mr. Dhandari’s vehicle collided with the left rear quarter panel of Mr. Botelho’s vehicle. He then lost control of his vehicle, veered in a northeasterly trajectory onto the sidewalk, and slammed into a utility pole located at the northeast corner of the intersection at Barton Court and Summerlea Road. The parties agreed that Mr. Dhandari died as a result of blunt force traumatic injuries to his head and neck, which he sustained as a result of the impact on the utility pole.
EVIDENCE
[8] In addition to certain agreed facts concerning the characteristics of the two vehicles implicated in the accident, the nature of Mr. Dhandari’s injuries, the Court heard evidence from Davinder Sharma, Mian Muhammed Saud, and Constables Wilson, Mr. James Smit, Cst. Mladen and Cst. Mooney. The court also viewed various video clips from CCTV cameras that captured excerpts from the driving in question.
[9] The defendant did not testify and did not lead any evidence in response to the Crown’s case.
[10] With respect to the testimony, the court therefore heard the following:
a) Davinder Sharma
[11] Mr. Sharma worked with Mr. Botelho and Mr. Dhandari. He was on the same shift as the two guys. His shift ended at 2 a.m. and he got off work a few minutes after that. He went out to warm up his car and went back inside to have a smoke. From the smoking area, he looked out to the parking lot and he saw two cars move from the parking lot out through the southern exit. He was not paying much attention but he thought he saw the two cars move at about 50 km and then they stopped by the northern exit to the parking lot. At trial he said that he could not recall the make of the two vehicles. In his statement to the police he said they were both Hondas and that they were white.
[12] With respect to the positioning of the two vehicles, Mr. Sharma said that one was positioned ahead of the other. This was different from his statement to the police when he said that the cars were side by side. He explained that when he gave his statement to the police he was excited and he may not have been very accurate. He said that he did not have any intention of lying. He also said that on viewing the footage from the cameras that were recording that night he could see that they were not resting or moving parallel to each other and so he concluded that he must have been wrong. He also suggested that from his vantage point, he did not have the best view and that in any event he was not paying attention.
[13] Mr. Sharma could not recall if the cars stayed in one lane but he said that according to his best recollection he did not see either car crossing into the opposite lane. He admitted to telling the police that he thought the cars were racing but at trial he explained that he only thought they were racing but he could not be certain any longer. He went as far to state that on full reflection, he did not see anything to suggest that they were racing. He said that he jumped to that conclusion without being certain. He admitted that he only came to that conclusion after he heard a report on CP24. He apologized in his testimony for jumping to a conclusion with insufficient information.
b) Mian Muhammed Saud
[14] Mr. Saud saw the drivers before the accident, he heard a noise, and then he saw the immediate aftermath of the accident. That night, (2 a.m. in the morning or so), he was driving a truck on the night of the accident. It was a white 2005 Freightliner. He had just picked up a load from Action Transport and was leaving. He was driving on Summerlea Road and approaching Clark Blvd. As he began to turn left, he saw through his rearview mirror bright lights, then the grey Honda moving into and out of the southbound lane, and then he heard a noise. He said that he saw the white Honda spin 2-3 times and then go into a driveway. Mr. Saud estimated that he was going at a speed of about 50 km/hour. He thought that the two Hondas were travelling at a speed between 70-90 km/ hour.
[15] Immediately upon hearing the noise, he pulled over and approached the driver of the white Honda, who was Mr. Botelho. He recalled Mr. Botelho telling him that his buddy was in the other car, that they were co-workers and that he was not moving. He was standing by the grey car calling out to his friend to move.
[16] Mr. Saud was shown a number of photographs of the accident scene and he agreed that they accurately reflected what he saw.
[17] In cross-examination he elaborated that he initially saw headlights in his rearview mirror. He thought that the vehicles were no further than 150 to 250 metres behind him and that one was driving behind the other. He agreed that he never actually saw the collision. He reiterated that he thought he saw the grey car in the wrong lane for a few seconds but then saw it moving back into the northbound lane. When he heard the noise he concluded that there must have been a collision.
[18] He said in his testimony that the drivers were racing. He acknowledged that he had never said anything about any racing up until trial. He agreed that the police specifically questioned him about racing and he told them that he did not think the drivers were racing. He said that he was being truthful at the time but after he talked to his friend about the accident, he came to the conclusion that the cars must have been racing.
c) Cst. Maria Wilson
[19] Cst. Wilson attended at the scene of the accident and conducted her investigation of the accident. She was assisted by Cst. Mladen. She reviewed the photographs from the scene of the accident and provided particulars of the grey Honda with the dead victim in the vehicle, the various marks on the road, the discoloration on the yellow line on the road and the tire marks on it, the tire marks on the grass, the knocked transit sign, a recycling bin, and scrapes on the roadway leading to the resting spot of the deceased’s vehicle. The evidence on the road tracked the direction that the grey Honda travelled before it drove into the utility pole.
d) Mr. James Smit
[20] Mr. Smit is a Forensic Video Analyst and works in a civilian capacity with the Peel Regional Police. He was qualified to give evidence as an expert in the analysis of recovered video recorded materials using computer software.
[21] Mr. Smit first became involved in this case on February 28, 2018, at which time he was asked to break down a portion of the video retrieved from cameras at various locations along Summerlea. He reviewed two videos. One was from Paccar and the other was from 150 Summerlea.
[22] Mr. Smit explained the methodology and approach he used to determine the frame rate of a video, or in other words, how many frames to a second. He concluded that the video from Paccar had a rate of between 14 or 15 frames / second. The video at 150 Summerlea had a rate of 15 frames / second. He turned over the information to Cst. Mooney.
[23] He understood that these calculations were required to conduct speed calculations. He clarified that he did not do speed calculations and that his expertise was limited to being a video expert. He said that through various sources of information he understood that there were too many variables to consider to be able to engage in accurate speed calculations, using video frames. He specifically said that one could not get an accurate calculation strictly from video analysis and that there was a lot more involved than just looking at a video.
e) Cst. Mladen
[24] The Crown attempted to qualify Cst. Mladen as an accident reconstructionist. An extensive voir dire was conducted regarding his qualifications. I ultimately refused to qualify him as an expert and gave oral reasons. Although I do not propose to elaborate or expand on that ruling, for the purposes of context and in a nutshell, Cst. Mladen said that after 35 years of service with the police he could observe the damages caused by vehicles impacting stationary objects and given an opinion about the proximate speeds of the vehicles prior to impact. His methodology was no more sophisticated than eyeballing an accident scene and giving a speed estimate without regard for a host of variables engaged in accident reconstruction. There was nothing in his approach that suggested any peculiar or special knowledge to qualify him as an expert.
[25] Cst. Mladen was permitted to testify on his observations of the scene of the accident. He also viewed the videos from L.B. Lomas at 40 Summerlea.
[26] Cst. Mladen explained that in the newer cars, one would expect an Event Data Recorder (EDR), to be available to be able to obtain information on such questions as the speed of a vehicle. He said that the EDR is usually part of the airbag and / or seatbelt system. A Crash Data Retrieval system, (CDR), would then be used to retrieve the data. One could use a commercial kit to extract the data or the task could be assigned to a private company to interpret the EDR. He went on to explain that although such information is very accurate and could be determinative of what occurred and at what speeds vehicles are travelling, the police would not hire private companies to undertake such an extraction because it is too expensive and it would not be covered by the police budget.
f) Cst. Mooney
[27] Cst. Mooney attended at the scene of the accident and described what he saw. He was also qualified as an expert in accident reconstruction and speed calculations based on the Analysis of Video-Recordings.
[28] Cst. Mooney was examined and cross-examined extensively on his methodology and his conclusions concerning his speed calculations based on the analysis of video-recordings. His hypothesis was based on the assumption that if one has a fixed distance and then knows the number of frames it takes a vehicle to travel that distance at a fixed rate of speed, then one could proceed to draw conclusions about the velocity of another vehicle that covers the same distance, over a different number of frames. The theory was constructed on the conventional formula of velocity equaling distance over time: , where
[29] Building on that model, Cst. Mooney submitted that one could determine the velocity of the victim vehicle or the accused’s vehicle if one had a control vehicle, knew the velocity of the control vehicle and then had the comparative frame rates for the two cars. That translated into the following equation:
Where: ₁ (control vehicle) (victim vehicle) (control vehicle) The resulting equation would be calculated as follows: ₁ .
[30] In other words, the victim would have been driving at 118 km/h. He did not offer any estimate for the accused’s vehicle.
[31] In cross-examination, Cst. Mooney was taken through a number of alternate calculations and assumptions concerning constant speeds, frame rates, and total frames. He was also asked for allowances for the measuring of car lengths and he explained that he took that into account by reducing the number of frames by deducting a total of 8 frames from the control car and then adding 8 frames to the victim car. What emerged from the various calculations was that this methodology produced a variation in estimates of about 40 km / hour such that the victim vehicle may have been travelling as low as 87 km / hour or as much as 127 km / hour.
[32] Cst. Mooney agreed that the particular distance covered in the frame analysis was only a point in time assessment and he could not say anything about acceleration or deceleration. He also had no way of knowing if the vehicles stopped at any point in their travel.
g) Video Clips
[33] The Court viewed the video recordings from CCTV cameras retrieved from 4 different spots along Summerlea Road, where the driving occurred. Specifically, the clips were from Faurecia Emissions Control, 40 Summerlea Road, L.V. Lomas, at 99 Summerlea Road, Paccar, at 108 Summerlea Road, and Anti-Friction Enterprises, at 150 Summerlea Road. The clips captured a white Honda and grey Honda driving one behind the other at a high speed, some initial stop and go by the two vehicles, and also some trucks driving by at moderate speeds. Finally, one of the clips included Mr. Saud’s vehicle, and later the emergency vehicles that arrived at the scene of the accident.
ANALYSIS
a) Legal Framework
[34] To find Mr. Botelho guilty of operating a motor vehicle while street racing thereby causing the death of Mr. Dhandari, the Crown must prove the following essential elements beyond a reasonable doubt:
- That Mr. Botelho operated a motor vehicle;
- That he did so in a manner that was dangerous to the public;
- That Mr. Botelho was racing with Mr. Dhandari; and
- That Mr. Botelho’s operation of the motor vehicle caused Mr. Dhandari’s death.
[35] I will review the legal elements for each of the requirements.
1. Operating a Motor Vehicle
[36] To operate a motor vehicle means to drive it. That is not an issue in this case. Mr. Botelho was driving the white Honda Civic. That essential element has been proven beyond a reasonable doubt.
2. Dangerous Driving
[37] The dangerous operation of a motor vehicle involves more than carelessness. The Crown must satisfy the court beyond a reasonable doubt that Mr. Botelho’s driving involved a “significant” or “marked departure” from the standard of a reasonably prudent person, see R v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49. In other words, the onus lies on the Crown to prove both the actus reus and the mens rea of the offence.
[38] To establish the actus reus, the trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was 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 is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”, (Beatty at para. 43). Significantly, the inquiry is concerned with the manner in which the motor vehicle was operated and not the consequence of the driving.
[39] The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. To make that assessment the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s state of mind, if any, that the impugned conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Specifically, at paragraph 49 of Beatty, the Court said:
[I]f the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the accused.
[40] In R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26, at paragraphs 36 – 38, the Supreme Court of Canada observed that the marked departure is from the standard of care expected of a reasonable person in the same circumstances. It observed that simple carelessness, “to which even the most prudent drivers may occasionally succumb”, is generally not a crime. By focusing on the issue of the accused circumstances, the Court sought to place the reasonable person in the shoes of the accused person.
[41] Finally, the Court in Roy drew a significant distinction between dangerous driving and driving which constitutes a marked departure from the norm:
[42] Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.
3. Racing
[42] High speed racing on a public roadway carries a predictable element of risk. R v. Menezes, 2002 CarwellOnt 531 offers a description of the features of a race. Hill J. said:
It is important not to be hyperfocused on whether the driver’s conduct actually amounted to a race within the exact definitional contemplation of a dictionary or the provincial highway traffic legislation. Frequently, there is no racetrack, no agreed-upon finish line, and certainly no regard for the hazards created. We have come to accept, as a matter of common sense, that the synchronized or in-tandem movements of tow motor vehicles, marked by high speed and close proximity over a materials distance, often accompanied by abrupt lane changes, blocking, or bold manoeuvres in and out of traffic, amounts to racing behaviour even though all the trappings of a drag race may not be present. Whether by express arrangement or tacit agreement, the joint venture involves mutual incitement and encouragement toward a rivalry or demonstration of motor speed.
4. Causation
[43] To determine whether a person can be held responsible for causing a particular result the trier of fact must look at factual and legal causation. In R v. Nette, 2001 SCC 78, [2001] 3 S.C.R., 488, at para. 44, the Court held that factual causation involves an inquiry about how the victim died, in a medical, mechanical or physical sense and an accused’s contribution to that result. In other words, did “A” cause “B”?
[44] In R v. Kippax, 2011 ONCA 303, at para. 24, the Court of Appeal for Ontario noted that:
[24] To prove factual causation, the Crown does not have to prove that an accused’s conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the death or injuries, or said another way, that the accused’s conduct was “at least a contributing cause … outside the de minimis range”: Smithers, at p.519; Nette, at paras. 70-71; and R v. Hughes, 2011 BCCA 220, 305 B.C.A.C. 112, at paras. 56 and 64.
[45] In contrast to factual causation, the Ontario Court of Appeal, in Kippax, explained that legal causation has to do with whether an accused should be held responsible in law for a prohibited consequence of his or her conduct, for example, death. The associated inquiry is directed to the answering of that question. The analysis engages a consideration of reasonable foreseeability of harm. The Court observed at para. 27 that:
[27] Conduct that is inherently dangerous and carried with it a reasonably foreseeable risk of immediate and substantial harm satisfies the standard required for legal causation: Shilon, at para. 54. A person may be liable as a principle if she or he actually does or contributes to the actus reus with the required mens rea: Hughes, at para. 77.
[28] It is well-established that independent voluntary human intervention in events started by an accused may break the chain of causation: Shilon, at para. 43. A new event may result in an accused’s conduct not being a significant contributing cause of a prohibited consequence. But legal responsibility for an event will remain and the chain of causation will not be broken where an accused intentionally produced the outcome, recklessly brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: R v. Maybin, 2010 BCCA 527, 263 C.C.C. (3d) 485, at para. 35.
b) Findings and Conclusions
[46] Beginning with my assessment of the evidence, I make the following findings. With respect to the civilian witnesses, Mr. Sharma’s evidence appeared credible but his explanation for changing his evidence between his statement to the police, when he said he thought the cars stood parallel to each other before they sped off, and his statement at trial that upon reflection, the cars were always positioned one behind the other, put the reliability of his testimony in question.
[47] As I listened carefully to the totality of Mr. Sharma’s evidence, I concluded that he was not really paying attention to what was going on that evening. He was just done his shift and he was having a smoke in the waiting area at Faurecia, while he waited for his car to warm up. From where he stood, and having regard for the fact that he would have been at ground level and his view would have been obstructed by cars in the parking lot as well as some trees and shrubs, I find it highly doubtful that Mr. Sharma could see the two Hondas or that he could distinguish between the two vehicles being side by side or in a parallel position. His admission that his statement to the police was informed by what he heard on CP24 a few hours after the accident was reported and the media’s speculation that the accident was the result of racing helped explain his contradictions and made his testimony all that more dubious.
[48] For these reasons, it is hard to place any weight on Mr. Sharma’s testimony, although I would observe that his correction to the effect that the cars were driving one behind the other was consistent with what could actually be seen in the video clips. Remarkably, he was also of the view that the two drivers would not have been travelling at a dangerous speed.
[49] Mr. Saud, for the most part was a credible and reliable witness, although here too, I was not impressed by his admission that he only concluded that the cars were racing after he spoke to his own friends about what happened. Given his experience as a driver, and given where he was located relative to where the accident occurred, I do accept his evidence that he saw the cars driving one behind the other and that he also saw the grey Honda moving into the passing lane just before the collision occurred. His estimates of the relative speeds that he and the vehicles were driving at were also reasonable and consistent with what the video clips recorded. His estimate of the distance between his car and the location of the accident was not contradicted by other evidence.
[50] The photographs of the accident were not disputed. There can be no doubt that what occurred was horrific and that Mr. Dhandari’s pronounced impact onto the utility pole is what caused his death.
[51] Cst. Mladen’s evidence insofar as the description of the accident scene is concerned was not disputed. For the reasons I already provided in my ruling on his professed expertise of being able to eyeball an accident and determine the speed of the vehicles, his proposed evidence on the speed of the vehicles was inadmissible. I will say that I found it astonishing that the Crown would even try to qualify Cst. Mladen as an expert when Cst. Mladen made no secret of the fact that he did not follow any methodology, would not take any measurements, and would not do any math as part of his speed estimates.
[52] With respect to Cst. Mladen’s evidence that was admissible, it was deeply troubling to hear that the police did not retrieve the data from the EDR’s of the two vehicles because the police did not have the resources to do so and that any such expense would have to come from the police budget. Given Cst. Mladen’s assessment that such an analysis could provide the court with reliable evidence and coupling that with the tragic magnitude of the accident, the absence of such data was really inexcusable.
[53] Cst. Mooney’s evidence and his methodology in particular, was interesting. Given the pervasiveness of cameras and videos, it struck me that the idea and the theory behind it was an interesting prototype for an analytical model that might offer speed ranges or complement other speed data. The proposed methodology holds the potential of being useful in future cases. However, in its current formulation and application the methodology produced results that were not reliable.
[54] The idea that distance could be measured in terms of frames per second sounded good in theory. But the determination of the number of total number of frames needed to go from point ‘A’ to point ‘B’ assumed the ability to pinpoint with precision the correct frame from which to begin the counting. That pinpointing however is vulnerable to the frailties of perception. One could be off by a number of frames in the identification of that pinpoint depending on the variations in the camera angles, parallax factors, and one’s own perspective. A variation of even a few frames results in vastly different estimates.
[55] This became evident in the number of different scenarios that Cst. Mooney was asked to consider and calculate. Even with the use of generous margins of error, the variability in possible results of about 40 km/hour could not allow the trier of fact to come to a conclusion of any sort beyond a reasonable doubt; the doubt would fall within the 40 km/ hour range. Such a variation is especially significant this case because the lower estimates would support a conclusion that the drivers were merely speeding above the permitted speed limit. The higher estimates would likely place them in the zone of dangerous driving. As between those options, it would be very difficult, absent other evidence, to come to any conclusions beyond a reasonable doubt about the actual speeds of the vehicles in question. In other words, at this stage, the model of analysis has built within it reasonable doubt.
[56] Apart from this very significant technical failure, Cst. Mooney’s agreement that his analysis was focused on only a very small part of the route placed very serious limits on the utility of his evidence even if it were reliable. He had no way of knowing if the vehicles accelerated at some points, if they decelerated or stopped at other points on the route, or if their speeds varied at all. In such circumstances, even if his estimate of 118 km/ hour were held to be robust, it could only apply to a tiny fraction of the route that was analyzed.
[57] Against these concerns, I make the further observation that although in the video clips that were presented, there was a distinct variation in speed between the two Hondas and the other vehicles on the road, with the two Hondas going much faster than some of the other vehicles, the quality of the clips were such that it would be impossible to say how much faster the Hondas were travelling. I am hard-pressed to conclude that they were going 2 or 3 times as fast as the other vehicles. In addition, if the Hondas were driving as fast as Cst. Mooney’s estimates might suggest, they should have surpassed and overtaken Mr. Saud who thought he was going at about 50 km / hour. They never did that. This evidence only compounds the doubt over the speed that the two cars were travelling.
[58] That leaves the court with the following evidence:
- Shortly after 2:00 a.m., Mr. Botelho and Dhandari completed their shift at Faurecia.
- They got into their cars and headed out of the parking lot. Mr. Botelho was consistently ahead of Mr. Dhandari.
- Both guys were driving Hondas. The night was clear and dry.
- The traffic was very low, with the occasional truck or other car driving by.
- From all of the video clips, it is evident that Mr. Botelho remained in the lead at all times. Mr. Dhandari remained behind him.
- There is no video of the actual attempt by Mr. Dhandari to pass Mr. Botelho. There is however Mr. Saud’s evidence that he saw the grey car changing lanes as if he were preparing to pass Mr. Botelho. I accept Mr. Saud’s evidence that he saw this movement, just moments before the actual collision.
- The photos and other evidence reconstructing the accident clearly demonstrate that as Mr. Dhandari did not stay in the passing lane but moved back into the northbound lane. There was no evidence to explain why he made that change but it is evident, and I find, that he miscalculated the clearance he had to move back into the northbound lane and hit Mr. Botelho’s Honda, on the rear right quarter panel.
- Mr. Botelho did not lose control of his vehicle. The court heard that his car spun around and ended up in a driveway north of the point of collision.
- Tragically, Mr. Dhandari continued in a northeasterly direction, mounted the sidewalk and slammed into the utility pole. He died instantly from the impact.
[59] It is impossible to know what caused Mr. Dhandari to move in and out of his lane. What is certain is that there was no evidence or inference to be drawn that Mr. Botelho had any knowledge of Mr. Dhandari’s intentions or reasons for his moves. It was Mr. Dhandari who hit Mr. Botelho and not the other way around. There was also no evidence of any driving error or other interference to explain what happened.
[60] Insofar as speed is concerned, apart from the evidence that the two cars were driving faster than the other vehicles observed in the video clips, it is impossible to conclude that the speeding rose to the level of being dangerous. In this case, absent other evidence, speed alone cannot signify dangerous driving.
[61] Finally, there was no evidence that the vehicles revved their engines, made abrupt changes, changed positions or made dangerous moves.
[62] Turning then to the elements of the alleged offence, and on the basis of the findings, I come to the following conclusions:
1. Was Mr. Botelho operating a motor vehicle at the time of the incident?
[63] As already noted, that is not in dispute. Mr. Botelho was driving a white Honda Civic. Mr. Dhandari was driving the grey Honda Civic.
2. Was Mr. Botelho driving in a manner that was dangerous to the public?
[64] The only reliable evidence available to this Court suggests that Mr. Botelho was driving faster than the other vehicles observed in the video clips. Those clips record only brief timeframes in the course of a much longer route. Having regard for the time of the night, the limited traffic, the clear weather conditions, and the nature of the neighborhood, there was no reliable evidence to permit a finding that the speed was inappropriate or that Mr. Botelho engaged in any bad maneuvers.
[65] What the evidence does reveal is that Mr. Botelho was driving ahead of Mr. Dhandari at all times in the proper northbound lane. He was not the one to collide with Mr. Dhandari. It was Mr. Dhandari’s move from the northbound lane into the southbound lane and immediately back in to the northbound lane that set in motion the tragic collision. There is no evidence that Mr. Botelho did anything dangerous to contribute to or to cause the accident. There is also no evidence that Mr. Botelho did anything dangerous to cause Mr. Dhandari’s error in judgment.
[66] I disagree with the Crown’s contention that the video clip from Anti-Friction put together with Mr. Saud’s evidence is sufficient to prove beyond a reasonable doubt that Mr. Botelho engaged in dangerous driving. Mr. Saud was not concerned with the vehicles’ speeds. He gave estimates of the speeding in the range of 70-90km / hour but he was not particularly concerned about what he saw. More significantly, his evidence underscored and supported the conclusion that Mr. Botelho was not doing anything wrong and that if anything it was Mr. Dhandari who switched lanes, even if only for a moment. The video clip is far too short for this court to draw any conclusions. Moreover, without any expertise or other supporting evidence, it would be extremely dangerous for this court to proffer an opinion about how much faster than the other traffic Mr. Botelho was driving.
[67] The Court may have had further insights into what happened had there been a proper reconstruction of the accident, which included an analysis of the event data recorders from the air bags in the two cars. The failure to analyze the EDRs is a very material evidentiary gap that could not possibly be filled by any inferences from Cst. Mooney’s analysis or by merely viewing the video clips.
[68] Accordingly the Crown has failed to prove beyond a reasonable doubt that Mr. Botelho’s driving amounted to a marked departure from the standard of care of the reasonable person in the circumstances of that fateful night.
3. Was Mr. Botelho racing with Mr. Dhandari?
[69] Even if the drivers’ speed were held to be excessive, that would not automatically mean that they were racing. The evidence before the court is insufficient to allow for such a finding. The court acknowledges held that there was an initial stop and go when the two drivers first leave from Faurecia. The video clips also show them driving in close proximity, one directly behind the other. But the coverage on that clip is very limited. I disagree with the Crown’s contention that this conduct, combined with the high speed of the vehicles is sufficient to draw the inference that the two drivers were racing.
[70] Apart from the noted evidence, there was no evidence that the two drivers engaged in tandem or synchronized movements over a material distance. The stop and go was only at the very beginning of their departure from Faurecia. There could be any number of reasons why a driver might stop for a moment, speak to the other driver and then drive off. Such behaviour might have been more probative if it occurred at some later point on Summerlea Road but there was no evidence of any subsequent stop and goes. Mr. Saud, who would have been the only one to make any such observations, did not report any such conduct.
[71] There was also no evidence of any abrupt lane changes, any blocking, any bold maneuvers in and out of traffic, or any ill-advised actions that would allow for an inference that the drivers were racing. Although the reason for Mr. Dhandari’s movement in and out of Summerlea Road’s southbound lane will remain a mystery, that momentary decision to change lanes, as described by Mr. Saud, does not rise to the level of an abrupt lane change. The move is unexplained because of the lack of evidence. It is not unexplained by the circumstances of what was happening or by how the two drivers were driving.
[72] Given these findings, I am unable to find beyond a reasonable doubt that Mr. Botelho engaged in racing.
4. Did Mr. Botelho’s operation of his motor vehicle cause Mr. Dhandari’s death?
[73] There is nothing in the evidence to support the conclusion that but for Mr. Botelho’s operation of his vehicle the accident would not have occurred and Mr. Dhandari would not have died. What we have before the court is a failed attempt by Mr. Dhandari to pass Mr. Botelho. There is no evidence to support a finding that there was something in Mr. Botelho’s conduct that caused Mr. Dhandari to make an abrupt move in and out of his proper lane. There may be any number of explanations, including carelessness or an error in judgment by Mr. Dhandari. In the absence of any reliable evidence on this issue, I am left with reasonable doubt over the issue of causation.
CONCLUSION
[74] Given the totality of my findings, I find Mr. Botelho not guilty of operating a motor vehicle in a race that caused the death of Eric Dhandari. What happened to Mr. Dhandari is no less tragic. But I am unable to find beyond a reasonable doubt that Mr. Botelho drove dangerously in a race and caused Mr. Dhandari’s death. He is hereby acquitted of the charge against him.