Court File and Parties

COURT FILE NO.: CR-18-70000520 DATE: 20190620

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – KUGATHEESH RASARATNAM

Counsel: S. Doyle and M. Giovinazzo, for the Crown K. Bailey, for Mr. Rasaratnam

HEARD: May 21-23, 2019

Reasons for Judgment

SCHRECK J.:

[1] Driving is a complex activity requiring skill and attention by the driver. Given the size of automobiles and the speed at which they travel, it is an inherently dangerous activity. As this case illustrates, improper driving can have devastating consequences.

[2] Improper driving can lead to a variety of legal consequences. Where the rules set out in the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) are not followed, drivers are liable to be sentenced to pay large fines and, in some cases, to terms of imprisonment. Where the improper driving results in injury, death or damage to property, the driver may be civilly liable for damages. And in some cases, where the improper driving crosses the line from negligent to criminal, the driver can be convicted of a criminal offence.

[3] Locating the line between negligent improper driving and criminal conduct is what is at issue in this case. On July 8, 2017, Kugatheesh Rasaratnam made an improper and illegal U-turn from an on-ramp onto a busy urban road. As he did so, Konstantin Diamantopoulos and his sister-in-law, Svetlana Koretskaia, were riding their motorcycles around a nearby curve in the road. Mr. Diamantopoulos managed to take evasive action and avoid Mr. Rasaratnam’s car. Ms. Koretskaia was less fortunate. Her motorcycle collided with the car and she became trapped under it. She later died from her injuries.

[4] Mr. Rasaratnam is charged with dangerous driving causing death. There is no issue that his decision to make a U-turn was ill-advised and contrary to the HTA, nor is there any issue that Ms. Koretskaia’s death was caused by his manoeuvre. What is in issue is whether his driving was objectively dangerous, which is the actus reus of the offence of dangerous driving, and whether his conduct was a marked departure from the standard of care that a reasonably prudent driver would exercise in the circumstances, which is the mens rea of the offence. As with all criminal offences, the Crown bears the burden of proving both elements beyond a reasonable doubt.

[5] The following reasons explain why I am satisfied beyond a reasonable doubt that Mr. Rasaratnam’s driving was objectively dangerous, but not that his driving constituted a marked departure from the standard of care.

I. Evidence

A. The Location of the Collision

[6] Bayview Avenue is a major north-south route through the City of Toronto. At one point, it is more or less parallel with the Don Valley Parkway (“DVP”), a highway that joins the Gardiner Expressway at the southern end of the City with Highway 401 and Highway 404 at the northern end.

[7] The Bloor Street/Bayview Avenue exit from the DVP leads to a road that eventually connects to Bloor Street. There are two ramps leading to Bayview Avenue from the road, one leading to Bayview Avenue north and the other to Bayview Avenue south. The ramp leading to Bayview Avenue north is the first one that a vehicle exiting from the DVP would encounter. It curves and then merges with the northbound lanes of Bayview Avenue. There is a yield sign at the point where the roads merge.

[8] In the area of the ramp, Bayview Avenue has two northbound lanes and two southbound lanes. There is a solid double yellow line separating the northbound from the southbound lanes and broken white lines between the lanes. There are solid white lines at the outer edges of both the ramp and Bayview Avenue. At the point where the ramp merges with Bayview Avenue, the line on the western edge of the ramp meets the line on the eastern edge of Bayview Avenue, forming the shape of a “V”. This point is known as the “bull nose”. A broken white line proceeds north from the bull nose to separate the merge lane from the northbound lanes of Bayview Avenue.

[9] Measurements conducted by police officers at the scene show that the bull nose becomes visible in the northbound lane of Bayview Avenue when one is 84.4 metres south of it. Section 143 of the HTA provides that no driver shall make a U-turn on a curve where traffic cannot be seen by the driver in both directions within a distance of 150 metres.

[10] On November 24, 2017, after the collision giving rise to the charge, the City of Toronto erected a “no U-turn” sign at the base of the merge lane.

B. Before the Collision

(i) The Motorcycles

[11] Constantin Diamantopoulos, his wife and his wife’s sister, Svetlana Koretskaia, were avid motorcycle enthusiasts. All of them had been riding motorcycles for many years and they had taken several advanced courses in motorcycle riding, including some which taught defensive driving.

[12] On July 8, 2017, Mr. Diamantopoulos and Ms. Koretskaia had dinner at a restaurant in downtown Toronto. Neither of them consumed any alcohol. After dinner, they went to a second restaurant at about 7:30 p.m. to get dessert. Upon arriving, they learned that the cookies which they wished to have for dessert were in the oven and would not be ready for an hour. They decided to wait for the cookies and to go for a motorcycle ride in the meantime.

[13] Mr. Diamantopoulos and Ms. Koretskaia each rode separate motorcycles. Both wore helmets and protective clothing. They rode through the downtown area and proceeded east on Rosedale Valley Road. From there, they turned north on Bayview Avenue. According to Mr. Diamantopoulos, when they first turned onto Bayview Avenue, there were initially three vehicles ahead of them, but all of them soon turned off.

(ii) The Car

[14] Shakithia Santan is Mr. Rasaratnam’s girlfriend. They have two children together. On July 8, 2017, they had plans to attend a birthday party at a restaurant in downtown Toronto which was to start at around 8:00 p.m. They left from Mr. Rasaratnam’s house in Bradford in Ms. Santan’s car. Mr. Rasaratnam, who had been a licensed driver since 1997, was driving. He had not consumed any alcohol or other intoxicants.

[15] Mr. Rasaratnam drove south on Highway 404 and then onto the DVP. According to Ms. Santan, he drove with the traffic and there was nothing unusual about his driving. Ms. Santan was looking at her phone for most of the drive and not paying attention to what was going on.

[16] Mr. Rasaratnam took the Bloor Street/Bayview Avenue exit from the DVP. From there, he took the ramp leading to Bayview Avenue north.

C. The Collision

(i) Mr. Diamantopoulos’s Evidence

[17] Mr. Diamantopoulos testified that he and Ms. Koretskaia were moving with the flow of traffic on Bayview Avenue and travelling at about 70 km/hr. However, he did not look at his speedometer. In a statement he gave to the police the following day, Mr. Diamantopoulos had estimated his speed to be between 75 and 85 km/hr. He testified that he had been in shock at the time he had given that statement and that his memory was now more accurate than it had been then. [1]

[18] According to Mr. Diamantopoulos, as he and Ms. Koretskaia went around a curve in the road just before an on-ramp, a car suddenly and unexpectedly appeared in front of them. He testified that the car “just appeared to us” and that it did so “at the last second”. When he saw the car, it was crossing the northbound lane of Bayview Avenue and was perpendicular to it.

[19] Mr. Diamantopoulos sounded his motorcycle’s horn and swerved to avoid the car. He managed to avoid it, although the front of the car scraped the side of his motorcycle, causing it to wobble. Mr. Diamantopoulos steadied the motorcycle and came a stop a short distance away. He then turned around and rode back to car. As he approached, he saw that Ms. Koretskaia had collided with the car and was trapped under it.

(ii) Ms. Santan’s Evidence

[20] Ms. Santan testified that Mr. Rasaratnam stopped the car at the base of the ramp where it merged with the northbound lane of Bayview Avenue. At this point, she looked up from her phone. Mr. Rasaratnam then turned the car slightly to the left and stopped again. He then turned his head and looked to his left, which was to the south, and then to the right, which was north. He then looked to the left and the right a second time. Ms. Santan followed him and also looked to the left and the right twice. She did not see any traffic coming from either direction.

[21] According to Ms. Santan, after looking both ways, Mr. Rasaratnam moved the car a little bit forward across the northbound lanes of Bayview Avenue and then stopped. At that point, two motorcycles appeared “all of a sudden” from the south. Ms. Santan testified that they were travelling “really fast” and although she could not estimate their speed, she believed it to be “close to 100 at least”.

[22] Ms. Santan saw one of the motorcycles go by the front of the car and then heard a big bang. The driver of the first motorcycle then returned to where the car was and said “Oh my god, I killed her.” Mr. Diamantopoulos could not recall whether he had said this.

D. After the Collision

[23] Anneliese Voigt and her husband were driving northbound on Bayview Avenue. She estimated their speed to be about 60 km/hr. As they came around the curve leading to the on-ramp, they saw a car in the road with a person under it. They quickly pulled over, stopping about three or four car lengths from the accident site. They called 911 but did not get out of the vehicle.

[24] Judah Mulalu was also driving northbound on Bayview Avenue at around 50 km/hr. when he encountered the accident site. He stopped his car about 50 yards away from the collision and got out to assist. He saw Ms. Koretskaia trapped under the car so he, Mr. Rasaratnam and two other people who had stopped lifted the car up and two women who had also stopped pulled Ms. Koretskaia out from under it.

II. Analysis

A. The Actus Reus

(i) The Law

[25] Like all criminal offences, a conviction for dangerous driving requires proof of both the actus reus and the mens rea. The actus reus was explained by the Supreme Court of Canada in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 34-35, relying on the earlier decision of R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49:

In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving” (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. 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.

[26] The focus must be on the manner of driving and the risk of damage or injury that results from it. That risk of damage or injury is not restricted to the type of injury that actually occurred, that is, a death resulting from a collision. The court must consider danger to the public generally: R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 181, at paras. 72-73.

(ii) Findings

[27] While not conceding that the actus reus has been established in this case, counsel for Mr. Rasaratnam acknowledges that it is “close to the line”. In my view, attempting a U-turn in circumstances where one cannot see beyond 84 metres to the left creates the possibility another vehicle coming around the corner may cause a collision or, at the very least, may have to brake suddenly. When a vehicle brakes suddenly, this can cause injury to the occupants of the vehicle and also creates a risk of being rear ended by any vehicle that is behind it. In all the circumstances, I am satisfied that Mr. Rasaratnam’s driving was objectively dangerous. The actus reus has been established.

B. The Mens Rea

(i) The Law

[28] The Crown does not have to prove that Mr. Rasaratnam intended to drive dangerously. Proof of objective fault is sufficient to establish the mens rea for dangerous driving: R. v. Hundal, [1993] 1 S.C.R. 867, at pp. 883-889; Beatty, at paras. 29-32.

[29] While proof of objective fault is sufficient, it is important to keep in mind that dangerous driving is a criminal, not a regulatory offence. Not all instances of improper or negligent driving amount to criminal conduct. This was stressed by the Supreme Court of Canada in Roy, at paras. 30-32:

A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

From at least the 1940s, the Court has distinguished between, on the one hand, simple negligence that is required to establish civil liability or guilt of provincial careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving (American Automobile Insurance Co. v. Dickson, [1943] S.C.R. 143). This distinction took on added importance for constitutional purposes. It became the basis for differentiating, for division of powers purposes, between the permissible scope of provincial and federal legislative competence as well as meeting the minimum fault requirements for crimes under the Canadian Charter of Rights and Freedoms (O’Grady v. Sparling, [1960] S.C.R. 804; Mann v. The Queen, [1966] S.C.R. 238; Hundal). Thus, the “marked departure” standard underlines the seriousness of the criminal offence of dangerous driving, separates federal criminal law from provincial regulatory law and ensures that there is an appropriate fault requirement for Charter purposes.

Beatty consolidated and clarified this line of jurisprudence. The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment. As Charron J. put it on behalf of the majority, at paras. 34-35:

If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.

In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law. The extent of the driver’s liability depends not on the degree of negligence, but on the amount of damage done. Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages. In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment. [Emphasis added.]

[30] Simple carelessness does not make out the mens rea of the offence: Roy, at para. 37. Nor does a momentary error in judgment: Roy, at para. 55. Proof of the actus reus, without more, is also insufficient to establish the fault requirement: Roy, at para. 42; Beatty, at para. 49.

[31] In an annotation to Roy, Professor Janine Benedet wrote (2012, 2012 SCC 26, 93 C.R. (6th) 1, at pp. 2-3):

The Supreme Court makes clear that the actus reus of dangerous driving is not the same as the mens rea, and that the mens rea is not easy to prove. The actus reus of the offence is whether the driving is objectively dangerous in the circumstances. Pulling out into oncoming traffic, in a motorhome, in fog and snow, without enough time for oncoming traffic to stop, is objectively dangerous.

The temptation is to conclude that such driving must also be a marked departure from the actions of the reasonable person and thus that the mens rea is also proven. Justice Cromwell clearly rejects this and defines the marked departure more broadly by looking at the accused’s conduct leading up to the accident. It appears that if the whole trajectory of the driving is more or less normal, a momentary decision to do something dangerous, even if it results in tragic consequences, will be viewed as an error in judgment that will not attract criminal liability.

[32] As with the actus reus, the focus must be on the driving and not its consequences. This was explained in R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, at paras. 69-71:

…[T]he focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. There must be a meaningful inquiry into the manner of driving, not into the degree of departure from the norm that the consequence demonstrates.

In Beatty, Charron J. did, at para. 46, recognize a limited role that consequences can play in assessing dangerousness and, by inference, in assessing whether a departure is marked:

The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.

Simply put, when asking whether the manner of driving has been dangerous, or represents a “marked departure”, a consequence that has occurred can verify the nature of the risks that existed, but that consequence should not be used in determining whether the manner of driving was dangerous or in marked departure from the norm. Judging whether driving was dangerous by exploring whether the accused is at fault for an accident that occurred obscures the proper focus on the manner of driving, and duplicates causation considerations that arise when, as in this case, an aggravated form of dangerous driving is charged.

(ii) Facts Not in Dispute

[33] In order to assess whether Mr. Rasaratnam’s driving constituted a marked departure from the standard of car of a reasonably prudent driver, I must first determine how he drove. Some of the evidence on this issue is not in dispute. Mr. Rasaratnam was on his way to a birthday party at a restaurant in downtown Toronto. He had not consumed any alcohol or drugs. His girlfriend, Ms. Santan, was in the passenger seat. They had travelled southbound on Highway 404 and the DVP and had taken the Bloor Street/Bayview Avenue exit off the DVP. From there, Mr. Rasaratnam had turned onto the ramp leading towards Bayview Avenue North. At around the point where the ramp merged with Bayview Avenue, he began to execute a U-turn into the southbound lane, at which point the collision occurred. Prior to this point, there is no evidence that Mr. Rasaratnam’s driving had been in any way unusual, imprudent or dangerous.

[34] What is not clear is whether Mr. Rasaratnam stopped his vehicle before commencing the U-turn, what position he stopped in and whether he looked before commencing the U-turn.

(iii) Evidence of Speed

(a) The Crown’s Theory

[35] It is the Crown’s primary position that Mr. Rasaratnam either did not stop before commencing the U-turn or that he stopped only briefly and without sufficient time to check for oncoming traffic. The Crown relies on evidence that the two motorcycles were travelling at around 70 km/hr. Had they been going at that speed, Mr. Rasaratnam would have seen them prior to commencing the turn had he stopped and checked for traffic. Since Mr. Rasaratnam’s vehicle pulled out in front of the motorcycles in circumstances where they did not have an opportunity to avoid a collision (or, in the case of Mr. Diamantopoulos, barely avoid one), it follows, the Crown argues, that he did not check for traffic before turning.

[36] There are two sources of evidence with respect to the speed of the motorcycles: the expert reconstructionist, D.C. Dawn Mutis, and Mr. Diamantopoulos. Ultimately, Crown counsel did not rely on D.C. Mutis’s evidence with respect to the speed issue. He had good reason not to.

(b) The Collision Reconstructionist

[37] D.C. Mutis, a member of the Toronto Police Service (“TPS”), was qualified to give expert opinion evidence as a collision reconstructionist. D.C. Mutis has been a police officer for 32 years. She is apparently a “Level 4” reconstructionist, which is the highest level of reconstructionist within the TPS, and has been so designated since 2004. She has taken a number of courses and seminars in the area of collision reconstruction since 2000. I note that almost all of these courses and seminars were provided by police departments in Canada and the United States.

[38] As an expert witness, D.C. Mutis had an obligation to provide opinion evidence that is fair, objective, independent and non-partisan: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] S.C.R. 182, at paras. 26-32. It would appear that she is either unaware of this duty or chose to ignore it.

[39] It is clear that the speed of the motorcycles is of some significance in this case. In her Collision Reconstruction Report, under the heading “Conclusions”, D.C. Mutis stated:

Ms. Koretskaia and Mr. Diamantopoulos were riding their motorcycles northbound in the curb lane of Bayview Avenue, at approximately 74 km./hr.

D.C. Mutis arrived at that figure by calculating the motorcycle’s speed in relation to how many revolutions per minute (“rpm”) the engine was turning. The motorcycle would have been travelling at 37 km/hr at 1000 rpm, 74 km/hr at 2000 rpm, 111 km/hr at 3000 rpm and 148 km/hr at 4000 rpm. D.C. Mutis testified that she knew that the motorcycle had not been travelling at 111 or 148 km/hr because if it had been going that fast, the “debris field” (the amount of debris on the road) and the damage to Mr. Rasaratnam’s car would have been more extensive. She knew this based on her experience of having viewed many accident scenes. While D.C. Mutis had read Mr. Diamantopoulos’s witness statement, she clearly stated that she did not base her conclusion as to the speed of the motorcycle on his statement but, rather, on “the physical evidence at the scene.”

[40] In cross-examination, D.C. Mutis agreed that the motorcycle was in third gear when it was examined by the police mechanic and that the usual operating range of the motorcycle while in third gear would be 2000 to 3000 rpm. This would mean that 74 km/hr would the lowest speed it could have been going. She eventually agreed that her 74 km/hr conclusion was subject to a margin of error of 10 to 15 km/hr either way. In other words, the motorcycle could have been travelling at a speed of anywhere between 59 and 89 km/hr. However, given D.C. Mutis’s evidence that it was unlikely that the motorcycle engine was turning at less than 2000 rpm in third gear, any speed below 74 km/hr (the speed which corresponds to 2000 rpm) was unlikely. By the end of D.C. Mutis’s cross-examination, it became apparent that the likely speed of the motorcycle was anywhere between 74 and 89 km/hr.

[41] In my view, for D.C. Mutis to state in the “Conclusions” part of her report that the motorcycle was travelling “at approximately 74 km/hr” when in fact 74 was at the very low end of a 15 km/hr range was misleading. This is not the first time that D.C. Mutis has been criticized for failing to specify a margin of error: R. v. Fekre, 2017 ONSC 7799, at para. 55.

[42] There was another troubling aspect to D.C. Mutis’s evidence. As noted earlier, she testified that one of the reasons she concluded that the motorcycle was not travelling faster than 74 km/hr (or, as she later acknowledged, possibly up to 89 km/hr) was that a faster speed would have caused a more extensive debris field. In cross-examination, she was confronted with her testimony at the preliminary inquiry where she had stated that she was not able to draw any conclusions from the debris field in this case. She was asked whether she agreed with what she had said at that time. After an inordinately long pause, she replied in the affirmative. She offered no explanation for why she had stated under oath that she had relied on the debris field when in fact she had not.

[43] The Ontario Court of Appeal has held that there is a “heightened concern” with respect to the impartiality of police expert witnesses: R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 67. This case illustrates why that heightened concern exists. While I do not fault defence counsel for consenting to the admission of the expert evidence, this case illustrates the importance of a court’s gatekeeper function of ensuring that only sufficiently reliable expert evidence is admitted: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 49-55, 112-116.

[44] Based on the foregoing, I have unfortunately concluded that D.C. Mutis is not a reliable or impartial expert and I am unable to rely on her expert opinion. As noted earlier, Crown counsel did not suggest otherwise. I am able to rely on the non-expert aspects of her evidence, such as evidence about measurements.

(c) Mr. Diamantopoulos’s Evidence

[45] Mr. Diamantopoulos testified that he believed that both motorcycles were travelling at about 70 km/hr just prior to the collision. In a statement he gave to the police the day after the collision, he had stated that he believed the speed to have been between 75 and 85 km/hr. He explained that he had been in shock at the time he gave that statement and that his memory of the events had since improved. He agreed, however, that he had not looked at his speedometer.

[46] I have no doubt that Mr. Diamantopoulos is an honest witness who was doing his best to give truthful testimony. However, I have concerns about the reliability of his evidence. As he acknowledged, he had not looked at the speedometer. Some of what he remembered happening immediately after the collision was inconsistent with the evidence of some of the other disinterested witnesses. I am in no way faulting Mr. Diamantopoulos. He underwent an unspeakably traumatic experience and it would be most surprising if this did not have some effect on his memory. However, this is a criminal trial and I must base my conclusions only on evidence which I am confident is reliable.

[47] In the result, there is no reliable evidence with respect to the speed of the motorcycles and I am unable to make any factual findings in this regard. I am therefore unable to find, based on the speed of the motorcycles, that Mr. Rasaratnam began to make a U-turn without stopping and without looking. In this regard, I note that Ms. Voigt and her husband and Mr. Mulalu came around the same bend and were able to stop without difficulty when confronted with the unexpected accident scene.

(iv) Ms. Santan’s Evidence

[48] The other evidence that relates to Mr. Rasaratnam’s driving immediately before the U-turn is the testimony of Ms. Santan. She testified that Mr. Rasaratnam stopped and looked both ways at least twice before attempting to make the turn.

[49] Crown counsel submits that I should reject Ms. Santan’s evidence because she testified that when she looked to the left, she looked through the driver’s side front window and based on where she drew the position of the car on an aerial map, she would only have been able to look through the driver’s side rear window. I do not find this to be a reason to reject her evidence. One cannot reasonably expect her positioning of the car on a map almost two years after the event to be more than an approximation, and it may be that she does not precisely recall which window she looked through. However, her evidence was clear that she and Mr. Rasaratnam looked to the left at least twice and saw no traffic.

[50] The second reason Crown counsel submits that I should reject Ms. Santan’s evidence is that she testified that when Mr. Rasaratnam stopped the car at the base of the ramp, she did not realize what he was doing and did not ask him why he had stopped there. Crown counsel submits that Ms. Santan must have realized that the situation was dangerous and her evidence that she did not ask Mr. Rasaratnam what he was doing is not credible. I do not agree. Ms. Santan’s evidence was that she had not been paying attention to where the car was going and when she looked up, she merely followed Mr. Rasaratnam’s gaze as he looked both ways. In my view, this is entirely plausible.

[51] In cross-examination, Crown counsel put to Ms. Santan the following portion of a transcript of a telephone conversation she had with a police officer on an unspecified date in July in which she was asked about the collision and gave the following answer:

I was going for dinner and – umm – I was coming from my boyfriend’s house. … And that’s about – that’s the only thing that I know and I don’t know what happened. Umm – I honestly feel so uncomfortable to talk about it – umm – can you please just talk to my lawyer regarding this.

I do not view this as an inconsistency. Rather, it is clear that Ms. Santan was simply reluctant to speak to the officer on the advice of her counsel.

[52] Having considered all of the evidence, I accept Ms. Santan’s evidence that Mr. Rasaratnam stopped, looked both ways before proceeding and did not see any traffic coming from either direction at the time he decided to proceed.

(v) The Crown’s Alternate Theory

That does not, however, end the matter. The Crown submits that even if Mr. Rasaratnam stopped and looked both ways, he is nonetheless guilty of dangerous driving because executing a U-turn in these circumstances, where the ability to see northbound traffic from the left is limited by the curve and the tall grass, constitutes a marked departure from the standard of care.

[53] The evidence shows that when Mr. Rasaratnam looked to the left, he would not have been able to see more than 84 metres down the road, substantially less than the 150 metres which s. 143 of the HTA requires for a U-turn to be legal. I have no doubt that this constituted a departure from the standard of car of a prudent driver. That, however, is not the test.

[54] As in Roy, at para. 54, there was no evidence that the driving leading up to the decision to make a U-turn was other than normal and prudent, so the focus must be on the momentary decision to execute a U-turn when it was not safe to do so. The facts of this case are not unlike the facts in Roy, where the accused pulled into an intersection in foggy conditions where he was unable to see the oncoming traffic he collided with. In my view, as in Roy, this was a “single and momentary error in judgment with tragic consequences” (at para. 55). See also R. v. Robertson, 2013 BCCA 268, 45 M.V.R. (6th) 205, at para. 17. While Mr. Rasaratnam’s driving was a departure from the applicable standard of care, I am not satisfied beyond a reasonable doubt it was markedly so.

[55] Crown counsel made much in his submissions of the fact that Mr. Rasaratnam stopped and deliberated before attempting to execute the U-turn and suggested that this was somehow indicative of not only the requisite objective mens rea, but even of a subjective mens rea. I have some difficulty understanding this submission. Surely, if Mr. Rasaratnam had attempted to execute a U-turn at the bottom of the ramp without stopping and looking first, this would have constituted a greater departure from the standard of care. Furthermore, there is no evidence that the time it took for Mr. Rasaratnam to stop and look both ways twice was more than a few seconds, which is not consistent with a deliberate decision to engage in driving he subjectively knew to be dangerous. On this record, I cannot conclude that Mr. Rasaratnam was aware of the risk and deliberately chose to run that risk: Roy, at para. 51.

C. Concluding Comments

[56] I realize that some of the people who have been affected by this tragedy may find this decision to be disappointing and difficult to understand. To be clear, I have not concluded that Ms. Koretskaia’s death was anything other than tragic, senseless and avoidable. Nor have I found that Mr. Rasaratnam does not bear some responsibility for it. My task, however, was a narrow one. I had to determine only whether the Crown had proven beyond a reasonable doubt that Mr. Rasaratnam’s driving constituted a marked departure from the standard of care. Having carefully considered all of the evidence, I have concluded that the Crown has not done so.

III. Disposition

[57] For the foregoing reasons, Mr. Rasaratnam is found not guilty.

Justice P.A. Schreck

Released: June 20, 2019.

COURT FILE NO.: CR-18-70000520 DATE: 20190620 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – KUGATHEESH RASARATNAM REASONS FOR JUDGMENT P.A. Schreck J. Released: June 20, 2019.

[1] A police collision reconstructionist also gave evidence respecting the speed of the motorcycles as well as calculations respecting the amount of time it would have taken them to stop at various speeds. As will be explained later in these reasons, the Crown is not relying on her evidence.