Docket No. CR-15-102969
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
MOHAMED HAJ-SALEH
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE R. L. MARANGER
on September 18, 2019 at OTTAWA, Ontario
APPEARANCES:
C. Lem Counsel for the Crown
L. Russomanno Counsel for Mohamed Haj-Saleh
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
WITNESSES
Examination in-Chief
Cross- Examination
Re- Examination
N/A
E X H I B I T S
EXHIBIT NUMBER
ENTERED ON PAGE
N/A
Legend
[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) – Indicates preceding word has been spelled phonetically.
Transcript Ordered: September 19, 2019
Transcript Completed: October 1, 2019
Judicially Approved: October 16, 2019
Ordering Party Notified: October 18, 2109
WEDNESDAY, SEPTEMBER 18, 2019
R E A S O N S F O R J U D G M E N T
Mr. Haj-Saleh stood trial on two counts of Dangerous Driving:
That on or about the 8th of November, 2015 at the city of Ottawa he operated a motor vehicle on Meadowlands Drive in a manner dangerous to the public and thereby caused the death of Giai Ly and;
That he further thereby caused bodily harm to Lisa Ly contrary to section 249 of the Criminal Code of Canada.
It was a sunny and clear Sunday afternoon on the 8th of November 2015 at approximately 2 o’clock, when an unforeseen and horrible tragedy befell the Ly family.
Mr. Giai Ly and his daughter Lisa Ly were in an Acura CSX motor vehicle turning left unto Meadowland Drive from Viewmount Drive in the city of Ottawa, when they were struck on the driver’s side by a GMC tow truck being driven in an easterly direction by Mr. Haj-Saleh. Mr. Ly died instantly and Lisa, who was seated in the rear passenger side of the vehicle, sustained serious bodily injuries. Mr. Haj-Saleh was uninjured.
The two key factual issues that were disputed during the course of this trial were the rate of speed at which Mr. Haj-Saleh was travelling when proceeding down Meadowlands Drive, and whether he ran through a red light at the intersection of Meadowlands and Viewmount at the time he collided with the Ly vehicle.
The Law of Dangerous Driving:
Section 249(1)(a) of the Criminal Code provides that everyone commits an offence who operates:
“a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition, and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.”
The Supreme Court of Canada in the decisions of R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, R. v. Beatty, [2008] SCC 5 and R. v. Roy, [2012] SCC 26, developed the following governing principles for trial judges when deciding cases involving allegations of dangerous driving:
I. The conduct of the driver must amount to a marked departure from the standard of care that a reasonable person would observe in the same circumstances.
II. The trier of fact must distinguish between civil negligence and penal negligence by applying a modified objective test. The modified objective standard means that while the reasonable person is placed in the accused circumstances, evidence of the accused personal attributes (such as age, experience, and education) are irrelevant unless they go to the accused incapacity to appreciate or to avoid the risk.
III. The offence requires that the Crown prove both the actus reus and the mens rea beyond a reasonable doubt.
IV. The determination of the actus reus requires a meaningful inquiry into the driving. The question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus is on the risks created by the manner of driving, not the consequences.
V. The mens rea analysis is focused on whether the dangerous manner of driving was the result of a marked departure from the standard of care that a reasonable person would exercise in the same situation. Two questions can be asked: 1) In light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible; 2) if so, was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused circumstances.
VI. In conducting the inquiry, the trier of fact must keep in mind that driving is an inherently dangerous activity, but one that is both legal and of social value. Accidents caused by these risks materializing shouldn’t generally result in criminal convictions.
VII. The offence will only be made out if the care exhibited by the accused person constitutes a marked departure from the norm. A marked departure juxtaposed to a mere departure requires that the lack of care exhibited must be serious enough to merit criminal sanctions as compared to civil liability. It is a matter of degree.
VIII. Great care must be exercised by trial judges in determining dangerous driving offences so as not to criminalize every departure from the civil norm.
IX. A momentary lapse of attention, in the context of totally normal driving, is insufficient to establish the marked departure required for the offence of dangerous driving.
The evidence in this case:
The Crown called 20 witnesses, including civilian witnesses, who testified as to their observations on the day in question, several police officers, mechanics, an expert Reconstructionist, several photographs of the scene and the vehicles were also filed as were a series of admissions. The defense did not call any evidence as is their right.
The following uncontroverted findings of fact arose from the evidence:
a) On November 8, 2015, Mr. Haj-Saleh was driving a Black GMC tow truck in an easterly direction on Meadowlands drive; the posted speed limit was 40 kilometres an hour. At approximately 2 o’clock in the afternoon, his vehicle collided with Mr. Ly’s vehicle, an Acura CRX, at the intersection of Meadowlands Drive and View Mount Drive.
b) The distance between the intersection of Woodroffe Avenue and Meadowlands and Viewmount Avenue and Meadowlands is 772 metres or three-quarters of a kilometre.
c) There were functioning traffic lights at this specific intersection.
d) Visibility on the date in question was clear. It was a sunny November day.
e) The collision resulted in the death of Mr. Ly and serious bodily injury to Lisa Ly.
f) The estimated weight of the tow truck was 4,450 kilograms. The estimated weight of the Acura was 1,300 kilograms.
g) Skid marks were measured from the point that the tow truck would’ve braked to the point of impact. The total distance measured was 23.77 metres.
h) The Acura was totalled by the force of the impact.
Theory of the Crown’s case/Defense position:
The crux of the Crown’s case rests on the proposition that the accused was travelling at an excessive speed; as high as 110 kilometres and no lower than 95 kilometres an hour in a 40 kilometre zone. The rate of speed began at the intersection of Tallwood-Meadowlands and Woodroffe. Furthermore, while travelling at that rate of speed, the accused ran a red light at the intersection of Meadowlands and View Mount when he struck the driver’s side of Mr. Ly’s vehicle, a vehicle that was turning left on a green light.
That these two facts taken together with all of the other relevant circumstances including: the nature of the vehicle, the area/street being a residential neighborhood including a school zone, the posted speed limit of 40 kilometres an hour, and the distance travelled all allow this court to find that the accused committed the offence of dangerous driving on the date in question.
Counsel representing the accused submits that the rate of the speed being travelled has not been proven beyond a reasonable doubt, nor has it been proven beyond a reasonable doubt that the accused ran a red light at the intersection of Meadowlands and Viewmount. In any event, it was submitted that speeding for a short period of time and running a red in all the circumstances is arguably the lesser of the choices between a careless driving and dangerous driving.
Evidence with respect to speed travelled by the accused:
The Court heard evidence from the following civilian eyewitnesses regarding their observation of the accused’s driving as it might relate to the rate of speed travelled:
Leo Siurna and Lorna Siurna indicated that they were coming back from the Centrepointe Library on Sunday, November 8, 2015 between one and 2 o’clock in the afternoon. Leo was driving. Lorna was a passenger. They were heading home on Sullivan Street which intersects Meadowlands. They were stopped at a light at the intersection of Woodroffe and Tallwood drive which after Woodroffe becomes Meadowlands Drive. They noticed two tow trucks come behind them, side-by-side: one was black, one was red. The tow trucks pulled ahead. That the two tow trucks took off very quickly once the light turned green. That Mr. Siurna followed and as he turned left onto Sullivan they noticed an accident of some kind just ahead of them. He said that they took off very quickly and left him behind. He testified he was going 40 kilometres an hour because he was about to make his left-hand turn which is the first block after the intersection and that he was a very cautious driver. Both witnesses acknowledged that the area in question is often policed for speeding.
Sheila Bedard lives on Meadowlands Drive. She marked the location of her house on Exhibit 2, a photograph of the area. The house is three houses in off of Woodroffe Avenue onto Meadowlands Drive. She testified that it was midafternoon, between 1:30 and 2:30, on November 8, 2015. She was at the front of her house with her husband. Her husband was installing a mailbox. Their plan was then to drive to a certain area in order to walk their dog. As she was waiting for her husband, she said she heard engines revving and saw two tow trucks going by as though they were racing; accelerating it sounded like. They were going in an easterly direction. It was the sound that caught her attention. The distance between the two vehicles was less than a car length. A little later she got into the car to leave with the dog and she heard sirens going by the house. She went to go up that way but a fire truck was blocking the street. She was concerned because her parents lived near where the accident scene took place. They walked towards the area and saw a truck and a car and another truck across the street. She recognized those as the two tow trucks. She didn’t think it was the same color. In cross-examination, she acknowledged that and agreed in prior testimony that drivers had a hard time going the posted speed limit of 40 kilometres an hour on that road. That speeding was common.
Michel Bedard is Sheila’s husband. He was working outside on the date in question installing a mailbox and getting organized to walk the family dog. He saw two tow trucks drive down Meadowlands at what he thought was a high rate of speed. The sounds of the engines was very loud diesel engines. He's heard them before and he thought they were at least going 70 kilometres an hour. He estimated 30 feet between them, no more than two truck lengths. He said he couldn’t believe what he just saw and heard, how fast and how loud the engines were going. Afterwards, he went back about his business, that Sheila went to get the dog. Ten minutes later, they got into the vehicle and saw that there were traffic lights and emergency vehicles up the road, that he was concerned for his in-laws because they live close by. With respect to the collision, he remembers seeing the car involved in the accident and recalled a number of tow trucks in the area in the intersection. He said it was a 10-minute time interval between leaving the house and the tow trucks going by. It was a clear day. He acknowledged that residents in the area have difficulty keeping the speed limit.
Physical evidence relating to speed:
The photographs of the Acura post-collision show a vehicle that was severally damaged. Officers including the expert re-constructionist on the scene described the level of destruction of both the tow truck and the car as more consistent with a highway collision than with a 40 kilometre an hour residential street collision. In other words, a collision that would involve speeds that are more suitable for highway driving: 80 to 100 kilometres an hour. The photobook being Exhibit 3 and in particular pages 16 to 20 show the level of damage to the Acura.
The skid marks were photographed and measured from brake application to the point of collision. The distance was measured 23.77 metres.
The Reconstructionist evidence:
Detective Kevin Bradford of the Ottawa Police Service testified as a qualified level 4 Accident Reconstructionist. The highlights of his evidence in-chief can be summarized as follows:
He prepared a report. It was filed as Exhibit 25.
He attended the scene of the accident at approximately 15:44 hours. He did not talk to any civilian witnesses. He made general observations including the conditions of the road, the nature of the neighborhood, skid marks, extent of the damage to the vehicles, etc.
He detailed the damage to both vehicles and stated that the level thereof was more akin to a highway collision at a high speed than a 40 kilometre type of collision.
He then explained how he went about calculating the likely speed of the tow truck just prior to collision and at the point of collision.
That the calculations are predicated on Newton’s three laws of motion.
The calculations were based on slide to stop/speed loss and time/distance.
That frictional values for the slide to stop/speed loss analysis were derived from tests conducted on November 10, 2015 using a Vericom 4000 or an accelerometer.
That the vehicle used for the tests was a different but similar tow truck, a 2014 dodge tow truck; that they took the lowest frictional value of the three tests being .798.
The mathematical basis of the calculations included some assumptions and acceptances.
The collision analysis pointed out as known the following: that the truck entered the intersection on a red light, that the Acura was knocked off its path drastically, that the tow truck left a 23.77 metre skid mark before colliding, that one hundred percent braking capacity was assumed, that the tow truck left a 15.53 metre mark after collision to final rest which, when adding the wheelbase length, results in total distance of 19.68 metres post collision.
Using these ‘known’ variables and measurements, the calculations resulted in the following findings: the tow truck had a kinetic energy loss of 69 kilometres an hour prior to collision, a kinetic energy loss of 63 kilometres per hour post-collision, that the combined energy loss for both pre- and post-collision tire marks was equal to 93 kilometres per hour. A combined speed calculation revealed that the tow truck had a speed of 111 kilometres per hour.
He indicated that the event data recorder information corroborated his findings.
Cross examination: Counsel representing Mr. Haj-Saleh conducted a very thorough cross-examination of Detective Bradford. Much of the focus was on factors that could undermine the reliability of his report and conclusions. I would summarize the highlights as follows:
The vehicle’s fitness and its possible effect on the calculations was the focus.
The brakes and whether they were 100 percent operational was brought out. It seems likely that based on other evidence that they were not (the mechanics MTO report). This caused the expert to perform calculations based on as low as 70 percent brake functionality. In that case, the speed calculation would have been 95 kilometres per hour. It seems that the expert’s acceptance that the brakes were 100 percent operational was somewhat compromised by other evidence.
There was evidence of cracking on brake pads suggesting overheating and possibly affecting brake reliability.
He assumed the vehicle passed a safety it did not.
The vehicle tires were not light-duty truck tires but passenger tires.
The pressure on the tires was low.
It was suggested that the tire size and pressure could possibly affect braking and the reliability of the report. The expert maintained it would only have a negligible impact less than 5 percent.
The lack of a proper independent peer review of his report and findings in that other police officers reviewed the work, not an outside independent Reconstructionist was brought out.
The skid testing or frictional value testing used a different vehicle with different tires.
He changed his answers on certain issues from chief to cross.
The methodology used to determine the amount of time for lights to change, i.e. an officer with a stop watch was less than precise.
By way of commentary, it is fair to say that the Reconstructionist's evidence was weakened to some degree by the various issues that surfaced in cross-examination, particularly as regards the vehicles fitness and what impact that it could have on the overall calculations.
The event data recorder:
The tow truck was equipped with air bags and consequently an air bag control module or an event data recorder.
In this case, Detective Fong of the Ottawa Police Service downloaded the data from the event data recorder using a Bosch crash data retrieval software.
Detective Fong is also a Reconstructionist who received training on downloading the data. He has done so 100s of times.
He explained that vehicles with air bags are equipped with EDRs. The EDR will record the speed shown on a vehicles speedometer seconds before a crash event.
The data downloaded from the tow truck stipulated that the speedometer at 1.5 seconds before the crash in question showed a speed of 66 miles per hour or 106 kilometres per hour.
Reliability of EDR:
In the cross-examination of both Detective Fong and Detective Bradford, several issues were brought out as a means of undermining the reliability of the EDR evidence of speed.
Initially, the effect of potentially modifying the gear axle ratio (meaning the number of revolutions the output shaft or driveshaft needs in order to spin the axle) and its impact on the speedometer readings was raised but was removed from consideration when the previously missing tow truck was retrieved and the gear axle ratio was determined to be that of the manufacturer's specifications and therefore of no consequence.
However, other matters such as: the effect of tire pressure and tire size, potential spinning of tires, wheel lock up or ABS brakes failing all could have arguably impacted the speedometer readings just prior to the crash.
Furthermore, it was brought out that there are known inherent limitations to the overall reliability of the data retrieved. In fact, the CDR print out contains disclaimer at page 9 thereof.
Conclusion respecting speed:
Skillful defense counsel as in this case can weaken and cast some doubt on individual items of evidence called by the prosecution to establish a fact in issue.
Mr. Russomanno performed that task admirably.
That said, it wasn’t one item of evidence that allowed me to conclude beyond a reasonable doubt what the range of speed travelled by the accused was that day. It was the cumulative impact of the eye witnesses, the physical evidence, especially the amount of damage to the vehicles, the Reconstructionist's conclusions, and the information retrieved from the EDR.
All of this evidence acting in concert allowed me to confidently conclude that Mr. Haj-Saleh was travelling at a speed of between a low of 95 kilometres an hour and a high of 110 kilometres an hour on the date and time in question. A minimum of 55 kilometres over the posted speed limit.
Did the accused run a light red?
The evidence called concerning the issue of whether the accused entered the intersection on a red light came from three eyewitnesses: Lesley Buness, Sheena Troop and Derek Best.
Lesley Buness testified that she was travelling westbound on Meadowlands heading towards Woodroffe on November 8, 2015. Her mother was a passenger in front and her partner was a rear passenger on the passenger side. It was 2 o’clock in the afternoon.
She testified that they were approaching lights at the intersection of Meadowlands and Viewmount and could see that the light was red and, as a consequence, she started slowing down and within a couple/five seconds she said this tow truck came out “like a punch” and it was in her line of sight that there was a tremendous explosion, a cloud of dust, black. Her mother’s head went up and they gave a collective sigh.
She testified that there were no vehicles in front of her, that she was stunned by what happened. She turned back and instructed her partner Sheena to call 911 and they pulled over to do so. They proceeded a little further; the light was still red. They were stunned as it all happened fast.
She then testified that the tow truck came off of Viewmount on a green. She was confident that this was the case. The witness was clearly mistaken about where the tow truck was coming from just prior to the collision.
She testified that she first saw the tow truck at the southeast corner of her view and that her line of vision was from Viewmount. She said that the time she noticed the tow truck was one second.
She also testified that the moment she saw the red light to the time of collision was less than five seconds. Two seconds after the collision she said that the light was still red, just before she placed the 911 call. That they pulled over to do so. She gave a statement to the police.
In cross-examination, several prior statements were put to her where she indicated that the tow truck, from her point of view, was turning westbound onto Meadowlands, that it was accelerating from a stop just a second before the collision. She indicated that she read an article in the Ottawa Sun indicating that the silver car was coming from Viewmount and that the tow truck was eastbound on Meadowlands and that this confused her that she was 100 percent certain of the tow truck coming out into view being perpendicular and that presumably the silver car, that the Acura would have been travelling down Meadowlands.
The police tried to explain that she was mistaken, she said, because she saw the side of the truck at the time of collision that it likely caused her perception of where the vehicle was coming from to be mistaken.
Inconsistencies from her evidence in-chief and at the preliminary inquiry concerning where she was situated in her vehicle at the time she saw the light turn red were put to her. One explanation offered was that the preliminary inquiry map seemed to have more details.
The witness was unclear about the precise location of her vehicle when she saw the red light. She then indicated that years later she sees it in her mind that what she saw was a red light to a collision within five seconds. like a movie “I can see for the rest of my life.” That the collision was shocking. It was put to her that even if she thinks it she was seeing a movie that she could be inaccurate. She disagreed.
Sheena Troop testified that she was a passenger in Lesley Buness’ car on November 8, 2015 in the back seat. She said that they were approaching the intersection of Meadowlands and Viewmount when they saw an accident. It was midafternoon; Leslie’s mom was in the front passenger seat.
She indicated that they were coming to a red light about 200 yards away and their vehicle was slowing. When they were 100 to 150 yards from the intersection, she saw a collision. She saw it from her left side. From her line of vision, she saw the tow truck as coming from Viewmount. She didn’t look at the light following the collision.
The witness was then shown Exhibit 4, a photograph of the area in question, and marked three points, being: when she first noticed the light turning red; when the collision occurred; and where their vehicle came to a stop.
In cross-examination, it was brought out that she gave prior statements and testimony at the primary inquiry. She made the same observation that the tow truck was going from Viewmount onto Meadowlands and that she couldn’t see where the car was coming from. She also testified that from 200 yards she saw the red light but did not see it turn red. She testified that she didn’t have discussions with others concerning what they saw.
Derek Best testified that on November 8, 2015 between 1:30 and 2 o’clock in the afternoon, he was coming back from his in-laws after lunch and driving to his sisters in Nepean. He was alone in his SUV vehicle. He arrived at the intersection of Viewmount and Meadowlands with the intention of turning left.
When he arrived at the intersection, the light was red and a silver Acura was the vehicle ahead of him.
The silver Acura proceeded into the intersection and was broadsided by a black tow truck that was proceeding east on Meadowlands. He was the second in line when the light changed. Upon impact, he looked up and the light was green.
He testified that he believed the Acura was waiting for the light to turn green when he arrived at the intersection.
He testified that just prior to the collision he heard the roar of the engine of the tow truck. He believed he heard this just before impact. He said he was a minute or so at the light but wasn’t particularly paying attention until impact and upon impact he immediately looked up at the light. He said it was a half second and he saw that it was green. He reacted this way because he wondered if the Acura had jumped the light.
He further testified that he saw the tow truck driver on his cell phone afterwards. He seemed agitated pacing back and forth. He remained there for about 45 minutes. He wanted to give a statement to the police.
In cross-examination, he acknowledged giving a statement to the police and to testifying at the preliminary inquiry.
He was cross-examined on the amount of time it would have taken him to look up and see the green light, whether it could have been a second or two seconds in lieu of half a second. In a very measured and compelling manner, he expressed it as, “Boom. I looked up.” That it was a fluid reaction, that it was very quick, and that the light was green.
With respect to the noise before the truck hit, it was put to him that it could’ve been that the truck was gearing down. He indicated his interpretation was that it was gearing up. A higher roaring engine was his explanation.
Conclusion respecting the color of the light:
The cumulative effect of the testimony of the three witnesses convinced me beyond a reasonable doubt that the light at that intersection was red at Meadowlands and green at Viewmount when the tow truck driven by the accused proceeded through the intersection and collided with the Acura.
The testimony of Lesley Buness, standing alone, would have been problematic, particularly given the clear error about the direction that the tow truck travelled; however, that erroneous perception was mirrored by Sheena Troop. She believed she saw the same thing. This lends credence to the notion that the collision itself likely created this directional misperception.
The two witnesses, while less than perfect in terms of detail, were both adamant that their vehicle slowed down because the light at the intersection was red at Meadowlands moments before the collision and Ms. Buness was adamant that it remained red moments after the collision.
Their evidence was buttressed by the testimony of Derek Best. His explanation that at the point of impact he immediately looked up and saw a green light at that corner intersection was unshaken in cross-examination. It, together with the testimony of the other two witnesses, closed the door on any doubt in my mind as to the color of that light, on that date, at that intersection.
Conclusion/analysis respecting dangerous driving:
Thus, the factual findings I make as to the driving by this accused on that date are these: he was driving tow truck in a 40 kilometre zone (albeit in an area where that speed limit is not regularly followed) at between 95-110 kilometres an hour. At that speed, he ran a red light and collided with the silver Acura being driven by Mr. Ly. Near that intersection there is a school zone; however, it was a Sunday afternoon. The area is a residential neighborhood. Traffic lights would have been clearly visible. The distance travelled leading up to that speed would have been over 750 metres in a straight line.
After considering all of these facts, I asked myself the question: was this manner of driving a marked departure from what a reasonable person would expect in the circumstances? I had little difficulty in answering that question in the affirmative. The actus reus was made out.
The fault element/mens rea:
This was not a case of a momentary lapse in judgment. Speeding down a residential street to an intersection requires a deliberately thought out act for more than a mere moment in time.
In deciding the fault element, I considered the following questions while focusing on the manner of driving: would a reasonable person have foreseen the risk and taken steps to avoid it, if possible; and if so, was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused circumstances. In both cases, the answer to those questions was yes. In my view, the offence of dangerous driving has been made out.
The accused was driving a tow truck at a minimum of 95 kilometres per hour in a 40-kilometre zone, a residential area of the city, approaching an intersection and a red light. The risks involved should have been clear. The accused didn’t slow down when he could have and should have, especially when approaching the intersection of the collision. His failure to foresee the risks and avoid them were a marked departure from the standard of care expected of a reasonable person in these circumstances.
Therefore, I find the accused guilty on both counts.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Cassandra Colbert, certify that this document is a true and accurate transcription of the recording of R. v. Mohamed Haj-Saleh in the Superior Court of Justice held September 18, 2019, at 161 Elgin Street, Ottawa, Ontario taken from Recording(s) No.0411_CR30_20190918_083604__10_MARANGRO.dcr, courtroom 30, which has been certified in Form 1 by J. Vucica.
(Date) Cassandra D. Colbert
*This certification does not apply to the Reasons for Sentence, which was judicially edited.