R. v. Ibrahim, 2020 ONSC 5815

COURT FILE NO.: CR-19/7-506

DATE: 20200925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADIB IBRAHIM

Accused

Derek Ishak and Evan Akriotis, for the Crown

Peter Thorning and Alex Alton, for the Accused

HEARD: January 27-29, February 3-6, 11-13, March 2-6, July 21, September 25, 2020

A.J. O’MARRA j. (Delivered orally)

REASONS FOR JUDGMENT

INTRODUCTION

[1] Mr. Ibrahim is on trial for the offence of manslaughter in the death of Ralph Bissonnette on May 14, 2012. Mr. Ibrahim had been tried for the offence of second-degree murder in 2015 with the result that he had been found guilty of manslaughter. The Ontario Court of Appeal in R. v. Ibrahim, 2019 ONCA 631 in considering a deficiency in the jury instructions as to the assessment of the accused’s evidence in relation to the fault requirements for the unlawful act of dangerous driving as a basis for the offence of manslaughter, ordered a new trial.

[2] In this matter, on May 14, 2012 Mr. Bissonnette, 28 was riding his skateboard, known as a longboard, on King Street East between George Street and Jarvis Street westbound in the curb lane when Mr. Ibrahim, driving his taxi, while moving into the curb lane collided with Mr. Bissonnette and ran over him, killing him instantly. Mr. Bissonnette died as a result of crushing injuries to his head.

[3] It is the position of the Crown that Mr. Ibrahim in a fit of road rage committed either the unlawful act of assault with his taxi or knowing that Mr. Bissonnette was beside his vehicle intentionally veered into the curb lane hitting him and committed the unlawful act of dangerous driving causing his death.

[4] The Crown contends that the evidence in the case establishes a sequence of the offence as follows:

i) That Mr. Ibrahim and Mr. Bissonnette were together travelling on King Street just west of George Street Mr. Ibrahim in his taxi approached Mr. Bissonnette from behind.

ii) They travelled alongside each other briefly on King Street passed George Street and Mr. Bissonnette either propelling himself or while holding onto the taxi struck the passenger side view mirror with his hand dislodging it.

iii) Then he leaned over and said something through the open front window of the taxi and at that point Mr. Ibrahim veered into Mr. Bissonnette knocking him off the longboard, crushing it and running over him.

[5] The position of Mr. Ibrahim is that he did not see or hear Mr. Bissonnette before the longboard made contact with the front right wheel of his taxi. He was simply not aware of Mr. Bissonnette’s presence for the few seconds he was alongside his taxi. He collided with Mr. Bissonnette as a result of a momentary lapse of attention. He was not aware of Mr. Bissonnette until he saw him lying in the roadway after the collision.

[6] The taxi veered sharply into Mr. Bissonnette as a result of hitting and mounting the longboard causing the front wheels to “kick turn” or “bump steer”.

[7] He disputes that there is any evidence of a confrontation or interaction between him and Mr. Bissonnette before the collision. With respect to those witnesses who say they heard either loud voices, yelling or pounding on the vehicle, they are unreliable due to what he contends are significant inconsistencies in their testimony and should be accorded little or no weight in the assessment of whether Mr. Ibrahim committed the unlawful act of assault or dangerous driving leading to Mr. Bissonnette’s death.

[8] There is no dispute that Mr. Bissonnette was killed when he was knocked off the longboard by the taxi driven by Mr. Ibrahim.

[9] In addition to the passersby that day who witnessed the event, and evidence of Mr. Ibrahim, there is a surveillance camera video from a building on the north side of King St. E. past George St. that captured what happened between Mr. Bissonnette on his longboard and Mr. Ibrahim’s taxi to the point of impact, the details which shall be described below.

Overview of the Case

[10] The collision between Mr. Ibrahim’s taxi and Mr. Bissonnette on his longboard occurred at approximately 6:00 p.m. on May 14, 2012, a clear, dry, sunny spring day in the west bound curb lane in front of 160 King Street East, Toronto approximately 50 metres from the northwest corner of the George Street intersection. There were many people walking on both sides of King Street, going home after work, going to work in the area or to the nearby George Brown College.

[11] The Crown relies on the observation of a number of civilian witnesses and the video recording from a surveillance security camera mounted on the building at 170 Queen Street East and stills therefrom. The video that captured Mr. Bissonnette riding his longboard travelling westbound in the curb lane by the front right passenger side of Mr. Ibrahim’s taxi is approximately four to five seconds in length.

[12] The video shows Mr. Bissonnette riding his longboard parallel to the taxi and at one point he appears to make contact with his left lower arm and hand to the front right side of the taxi hood and up to the windshield and the area of the side passenger mirror of the taxi. Thereafter, he leans over toward the front passenger side of the taxi and again with his left arm and hand reaches out as the taxi veers abruptly to the right and he falls backward. At that instance, both Mr. Bissonnette and the taxi move outside of the range of the camera. Thereafter, what happened was blocked by foliage and the edge of the building fronting King St. East.

[13] Mr. Bissonnette was found with the right side of his head crushed lying against the curb, his body in a supine position, torso and legs extended into the curb lane. The taxi had been brought to a stop, close to and parallel to the curb just ahead of the fractured longboard which had been broken in two. The smaller front-end piece was near Mr. Bissonnette’s body and the remainder of the longboard on the curb at the rear of the taxicab.

[14] In addition to the video and video stills the Crown relies on the observations of several civilian witnesses who testified on the trial, and several whose transcribed evidence from the previous trial was tendered on consent of the parties.

The Law

[15] The Crown alleges that Mr. Ibrahim committed the unlawful act of either assault with a weapon, his taxi or by dangerous operation of a motor vehicle causing Mr. Bissonnette’s death.

[16] Section 222 of the Criminal Code indicates that a person commits a homicide when directly or indirectly by any means he causes the death of a human being. Section 222(5) indicates that a person commits culpable homicide when he causes the death of a human being (a) by means of an unlawful act.

[17] The actus reus of an unlawful act of manslaughter is satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused death. The fault element of unlawful act manslaughter is objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence.

[18] A person commits an assault who either intentionally applies force to another person or attempts or threatens by act or gesture to apply force to another person, if he has present ability to effect his purpose.

[19] With respect to the offence of dangerous operation of a motor vehicle the actus reus of the offence occurs when there is evidence of “driving in a manner that is dangerous to the public having regard to all of the circumstances, including the nature, condition and use of the place in 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”. As noted in R. v. Beatty, 2008 SCC 5 at para. 43 and R. v. Roy, 2012 SCC 26 at paras. 33 and 35, the focus of the inquiry is the manner of operation of the vehicle, not the consequences of the driving.

[20] In terms of the mens rea of the offence there must be a marked departure from the standard expected of a reasonable person in the circumstances. Evidence of the accused’s personal attributes is irrelevant unless it goes to the accused’s incapacity to appreciate or avoid the risk.

[21] In R. v. Roy at para. 36 Cromwell J. summarized the fault requirement as follows:

It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

[22] The offence of dangerous driving engages a modified objective standard of fault which requires consideration of the accused’s actual state of mind potentially relevant in making the assessment is whether the conduct amounted to a marked departure. In R. v. Beatty at para. 43 Charron J. stated in considering whether the conduct amounted to a marked departure:

It may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused’s manner of driving, evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea.

[23] In Beatty, Charron J. summarized the mens rea component of the offence of dangerous driving and how the evidence of the accused’s state of mind and explanations offered by the accused should be considered by a trier of fact:

The trier of fact must also be satisfied beyond a reasonable doubt that the accused objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.”

[24] Further, Charron J. stated at para. 47:

In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused’s actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or willful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant. For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a “marked departure” from the standard expected of a reasonably prudent driver.

[25] In the overall assessment of the evidence if the conduct does not amount to a marked departure from the standard expected of a reasonable prudent driver then there is no need to continue the analysis. However, if the trier of fact is convinced beyond the reasonable doubt that the objective of dangerous conduct constitutes a marked departure from the norm, the trier must consider evidence about the actual state of the accused’s mind 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 the conduct.

[26] In substance, as noted in R. v. Ibrahim at para. 34 the testimony of the accused may be relevant to the actus reus of dangerous driving, as well as to the two interrelated mens rea elements:

(i) whether the conduct in question constitutes a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances; and

(ii) whether a reasonable person in similar circumstances would have been aware of the risk of the danger involved in the conduct manifested by the accused.

[27] In this instance, the accused testified his actual state of mind was that he was totally unaware of Mr. Bissonnette’s presence until after the collision occurred.

Forensic Evidence

[28] Forensic evidence collected in this matter I considered significant to understanding the unfolding of events is as follows:

(a) The photographs at the scene show that the longboard, a fibre and glass structure (44” long and tapered at both ends, 9.5” wide and 5” in height) is fractured in two pieces, the smaller front-end piece with truck and wheels in the area where the deceased came to rest at the curb of King Street, with the remainder of the longboard lying west of him partially on the curb and roadway behind the taxicab.

(b) Photographs of the scene depict large gouges in the payment which curve across the curb lane toward the rear of the taxi;

(c) Photographs of the taxi taken at the scene after the collision which show that the front side window was half open.

(d) An external examination of the taxicab by officers of the Forensic Identification Service that revealed:

(i) Swipe marks made from skin rubs across the front right hood of the taxi from which swab samples were analyzed by the Centre of Forensic Sciences and found to contain DNA from Mr. Bissonnette could not be excluded.

(ii) Further skin rub swipe marks and left-hand finger impressions on the right side of the hood at the windshield and recessed windshield wipers, but which had insufficient ridge detail to obtain fingerprint impressions, and an apparent palm print and swipe marks on the housing of the right-side passenger side mirror.

(iii) The right-side passenger mirror dislodged within the housing.

(iv) Report on examination of the taxi by the Toronto Police Service mechanic that no mechanical or operational deficiencies were found.

(v) The taxicab had an in-car camera, referred to as the Verifeye Camera System, mounted in the area of the front windshield rear-view mirror that took photographs toward the rear of the taxi alternating between the driver side and passenger side. It took two photographs, “a dual image” taken almost simultaneously, labelled as camera one and camera two. As part of the description of its operation, when the taxi door is opened and/or the fare meter is used, a dual image begins to record once every five seconds for the first minute; and after the first minute, once every fifteen seconds for forty-five minutes; and after forty-five minutes once every five minutes.

There are a number of stills obtained, principally number 922 taken at 17:54:25 and 923 at 17:54:30 purportedly showing a person that the Crown says is Mr. Bissonnette earlier on King St. E behind Mr. Ibrahim’s taxi and the defence contends that it is not. The other stills for future reference and discussion below are number 969 at 17:59:36.8, 970 at 17:59.37.1 taken less than a second apart and number 971 at 17:59.52.4 and 972 at 17:59:52.17, purportedly taken moments after the collision, both taken fifteen seconds after 969 and 970.

(vi) Photographs taken by TPS FIS of Mr. Bissonnette’s clothing, backpack and contents:

(i) black track hoodie with a small white patch at the bottom right front, a white zipper up the front, and large multi-coloured emblem on the upper left chest area;

(ii) black shorts;

(iii) black headphones;

(iv) black one strap sling type backpack, and miscellaneous contents including pieces of chef clothing, a bottle of rum and shattered dinner plate.

(e) Post-mortem report by Dr. Toby Rose, Deputy Chief Forensic Pathologist which details the following summary and opinion:

(i) This 28-year old man was reportedly riding a skateboard in the curb lane when a taxi appeared to strike him and drive over him.

(ii) Post-mortem examination revealed crushing injuries to the head, with relatively minor blunt force injuries to the torso, external genitalia and extremities. The injuries included:

(a) fractures of facial bones and the skull, including comminuted fracture of the skull base;

(b) Atlanto-occipital dislocation, with crushing of the first cervical vertebrae;

(c) trans-section of the brain stem.

The injuries to the head would be expected to be immediately fatal.

Cause of death: crushing injuries to the head.

(f) Biology report prepared by Joanne Cox from the Centre of Forensic Science, Biology section that on examination of a swab from the swipe taken from the hood of the taxi found that Ralph Bissonnette could not be excluded as the source of the DNA profile produced. Further, the probability that a random selected individual unrelated to Ralph Bissonnette would coincidentally share the observed DNA profile is estimated to be 1 in 5 billion.

(g) Toxicological analysis of post-mortem blood revealed the presence of ethanol (126 milligrams per 100 ml) and tetrahydrocannabinol (THC).

Security Camera Surveillance Video

[29] The security camera video taken from the security camera mounted at 170 King Street East shows a section of the roadway in front of the building facing south. The video which shows Mr. Bissonnette and Mr. Ibrahim’s taxi commences at 18:01:33 and concludes that 18:01:37 when Mr. Bissonnette falls out of view and the taxi continues towards the curb in the curb lane of King Street East. There are a number of still framed pictures labelled 1-50 produced from the video. These still framed photographs have less clarity than the video however, they serve to identify the relative position of the taxi and Mr. Bissonnette on his longboard up to the collision:

i) Stills 1, 2 and 3: At 18:01:33 Mr. Bissonnette’s right shoulder then right side of his head and torso come into view as he proceeds westward on his longboard.

ii) Stills 4, 5 and 6: He is followed by the taxi, which comes into view. Mr. Bissonnette appears to be in the curb lane and Mr. Ibrahim’s vehicle in the passing lane. Mr. Bissonnette on his longboard riding parallel to the taxicab facing toward the front passenger side of the taxi.

iii) Stills 7-11: Mr. Bissonnette, with his left arm at his side, remains running parallel to the taxi. He appears to move slightly closer as he reaches out with his left arm toward the right front hood area of the taxi and leans in with his upper body toward it.

iv) Still 12-16: Mr. Bissonnette leans forward and reaches out with his left arm to the area of the taxi hood and windshield. His lower left arm continues to move toward the side mirror while a gap is maintained between his longboard and the vehicle, behind the front passenger tire.

v) Stills 16-23: At that point Mr. Bissonnette’s torso, left shoulder and arm appear to twist to the right, away from the side mirror.

vi) Stills 23-39: His left shoulder and arm drop toward his waist as he bends forward while still on his longboard running parallel to the taxi. The taxi moves closer and crosses the line between the passing lane into the curb lane. Mr. Bissonnette bends forward and down toward the passenger side of the vehicle. The longboard continues in a straight line as the cab continues to move toward the right. At Still 39, the entire front wheel of the cab can be seen and Mr. Bissonnette’s two feet on the longboard parallel to the cab with an observable gap between them.

vii) Still 40 shows that the front tire and right side of the cab is still visible, and there is a gap between the cab and longboard, with Mr. Bissonnette’s left foot on the back of the longboard, his lead right foot obscured by a bush in the frame of the picture.

viii) Stills 41-44 show the cab begin to turn sharply toward Mr. Bissonnette with him reaching out over the front of the cab toward the windshield with his left arm again.

ix) Stills 44-47 show the cab continuing into the curb lane on a sharp angle as Mr. Bissonnette reaches out toward the front windshield and right side of the front hood of the taxi. The front wheel and skateboard become obscured by the bush that is in the frame of the still photos.

x) Stills 48-50: the taxi continues on an angle toward the curb as Mr. Bissonnette falls back from the front of the cab and out of view in Still number 50.

xi) The cab disappears from the view between Stills 50-60 at 18:01:37.

The Witnesses

[30] Each witness to the incident saw and/or heard the incident from different vantage points on King St. E. proximate to the collision: a college administrator, a librarian, and bank service representative from the north/east corner of King St. E. and George St. intersection; a city manager who was walking on the north side sidewalk of King St. east of the incident; a security guard walking on the south side sidewalk of King St. E. opposite the collision; a TTC streetcar operator sitting in his operator’s station in his eastbound streetcar southwest of the incident at Jarvis St.; a homeopath who was at the northwest corner of the Jarvis and King Street intersection; an adjudicator/mediator sitting in the TTC bus shelter on the north side of King St. E. west of the collision, a mother with her daughter walking north at the intersection of King Street and George St., and Mr. Ibrahim from within his taxi.

Katrine Avrutov

[31] Ms. Avrutov age 54, an administrator at the George Brown College left her office at 210 King Street East at 6:00 p.m. on her way home. As she walked westbound, she stopped at the northeast corner of King Street East and George Street waiting for a green light to continue across the intersection. She noticed a young man, approximately 25 who looked fit, standing next to her on her left side holding a skateboard as she waited to cross George Street. She noticed him because he was not wearing a helmet. She observed that he was wearing ear buds. Just as the light changed to green, she observed him to throw the skateboard down onto the road and to move across the intersection within the pedestrian cross markings westbound. She only paid attention to him for a few seconds.

[32] She testified that as she crossed with the light to the northwest corner, she heard yelling and a sound of wood crashing. As she continued west, she saw a taxicab “like northwest to the curb of King Street and the guy was lying underneath the taxi with his head on the curb . . . it (the taxi) was still moving a bit a couple of times over the -- not over the body, but a couple of times forward and back and then move once over the body of the guy, then stopped”. She said that the man’s head was on the curb of the street and his body was in the street. She saw the driver of the cab exit taking his coat and then he stopped at the front of the car by the curb. She said that he was standing very calmly at the front of the car. Prior to the yelling and crash she did not see or hear any confrontation.

[33] Counsel suggested her observations should be treated with caution because she observed Mr. Bissonnette wearing ear buds rather than the head phones found at the scene of the collision. It is a minor discrepancy that does not detract from the substance of her observations.

Danielle Rock

[34] Ms. Rock 42, a homeopath, was walking home going east on the north side of King Street toward Jarvis Street. When she was approximately 15-20 feet from the intersection, she saw a taxi coming west toward her in the curb lane make an abrupt turn toward the curb. She said it had been in the passing lane but not fully in the passing lane. Then in the curb lane but “out from the curb” when it made the abrupt turn. From her perspective she thought it was going to crash into the TTC shelter on the north side of King Street. She observed that there was no other westbound traffic at the time.

[35] She said, as the taxi made the turn, she heard someone yell loudly three times “OW, OW, OW”. Then she heard a crunch, like something being broken. She could not see who yelled but what she heard was loud enough for her to know that something had happened. She did not see the collision because the bus shelter was in the way.

[36] As she approached the scene, she saw the victim with his head on the curb. She described his leg as being folded, his knee bent at an awkward angle toward the curb and part of a skateboard was under him.

[37] She observed the taxi driver get out of the vehicle stopped at the curb and stand by the driver’s door. He went to the trunk, opened it, closed it and then went back. She testified there was “no observable emotional reaction from him”.

[38] She agreed in cross-examination that she did not hear any confrontation prior to hearing the yelling of “OW, OW OW”.

Ben Droury

[39] Mr. Droury age 42 is a self-employed adjudicator and mediator with a law degree and is licensed by the Law Society of Ontario, but who does not practice. At approximately 6:00 p.m. he was sitting in the TTC bus shelter on the north side of King Street, east of Jarvis Street with an unobstructed view eastward as he waited for a westbound streetcar to go home. He testified he saw a person on a longboard banging on a taxi and making faces, when the taxi turned into him.

[40] The taxi was in the center lane westbound travelling at approximately 40-50 kilometers per hour, which was standard for the road. He observed that the long boarder was hanging off the taxi on the passenger side. It was the banging sound on metal which drew his attention initially. The banging sounds were in quick succession. He described the three rapid fire sounds as “bang, bang, bang”. The taxi veered off in the direction of the person on the longboard and hit him.

[41] It was the rapping sounds and the faces being made by the long boarder that suggested to him the long boarder was trying to communicate with the driver when there was a significant change in direction of the taxi. From his point of view the taxi appeared to accelerate. The long boarder went down between the front and rear tires of the taxi.

[42] Initially, he had made a statement that the rapping by the skateboarder was on the taxi window however, he subsequently changed it to being on the hood or roof of the vehicle because in his view it could not have been the window as it had been the sound of banging on metal which had drawn his attention.

[43] Mr. Droury acknowledged in cross-examination that in having a legal background he had an interest in the proceedings and “perused” the Court of Appeal judgment in this matter that ordered a new trial. In addition, he had discussed his evidence with others and had reviewed the incident video when played in court previously and displayed by the media.

[44] He acknowledged that there were inconsistencies from his evidence at trial and his earlier testimony. As noted above, he had initially testified that the rapping was on the window however, after hearing a number of witnesses and seeing the video he realized that it did not make sense that it would have been the sound he heard because it was a metal sound:

I initially said he was rapping on the window and of course that doesn’t make any sense because the window doesn’t make a metal sound. After I had testified in the first case, so a number of witnesses came after me and, and that first case was being covered to some extent in the media, so I was able to observe a video back in 2015 after I had already testified and at this point I think, “okay, I’m off the hook, I’ve already testified, doesn’t matter if I see this now”. I was able to observe a video of the skateboarder rapping on the car and I can see, okay, the skateboarder’s rapping on the front hood of the car. From where I was when this happened, you wouldn’t necessarily be able to see that from that angle, but it clarified for me how it was that I saw the skateboarder rapping on the car with the metal sound and it discounted for me the possibility that it had been the window, but it didn’t change for me the fundamentals of what it was that I had seen.

[45] He accepted that he was not sure as to where the long boarder rapped the taxi, but he was sure that he rapped on the taxi, and that he had an ominous look on his face toward the driver and that the taxi veered toward him:

Question: Were you mistaken when you testified at the trial in 2015 when you did not describe there being two sets of rapping, one you heard and saw and one you heard only?

Answer: I’d be cautious against calling it a mistake. This gets to like when I met with the Crown a couple of weeks ago, we had a discussion on this point and I was saying that like the way I remember this happening is largely in the big picture, sort of like what happened, there was a skateboarder, he was rapping on the car, the car veered into him. I understand you’re doing your job and part of that is getting into the details. The details, specific details like that have always matter less to me than the broad strokes about what it was that you saw. The broad strokes of what I saw, I saw. Like they happened. Was it one rap, two raps, four raps? I don’t know the exact number and I’ve never actually – I don’t think I ever said that I knew conclusively how many raps there were. I think in almost any testimony I have given, I’ve hedged on it and said, “Well, I don’t know that specifically, but here’s what I think”. But I can say for a fact there was rapping on the car …

Where he did it – was it on the hood or the roof or the window? I mean it was for sure always on the hood or the roof and I think the evidence actually shows that, so it’s possible to – I’ve said this a few times already today, it’s possible the details are wrong, but in the big picture they’re not wrong. In the big picture, they are correct and the specific details – I don’t (know) the whole case. Specific details may matter more to you, but to me they were never at the heart of what I saw. What I saw was what I just described before. You have a skateboarder hanging on to the car, rapping on the – rapping on it, creating noise, making faces, sort of having this ominous look toward him, and the car veers into him in what I interpret as a response. That’s what I saw, that to me, what took place. How many raps were there? I couldn’t tell you for sure. I don’t know.

[46] While accepting the inconsistency he maintained the core of his observations remained the same – the sound of rapping on metal that drew his attention, there was a look on the skateboarder’s face that suggested he was trying to communicate with the driver and the taxi veered into him.

Michael Brown

[47] Michael Brown 54, a City of Toronto manager in the Economic Development and Culture Department testified that about 6:00 p.m. he was walking on the north side of King Street between Jarvis and George Streets. As he walked eastward, he saw a taxi and long boarder coming toward him close together. The taxi was in the center lane and the person on the skateboard was at the passenger side of the taxi.

[48] Initially, it was the sound of the skateboard wheels making a grinding sound on the roadway that made him glance toward the roadway.

[49] Then he heard a man’s voice yell loud enough that it got his attention, “it kind of startled me, so I turned around. I looked to the roadway in the direction where it came from. The taxi was still in the passing lane and the skateboarder was near the hood of the vehicle between sort of near the right passenger front tire and the windshield – very close together.”

[50] He described the person on the skateboard as being tall and slim, wearing black shorts, t-shirt, and he was on a “black sort of skateboard where he was carrying a black sort of satchel over his shoulder and under one arm with a strap across his chest.” The longboard was at the front passenger side of the taxi, very close together both westbound: “I recall like pushing off, but I can’t really recall 100 percent but I think he was keeping – he was – they came by at the same time, so they were keeping up the same pace with each other when they passed me . . .”

[51] He saw the skateboarder’s hand “come down onto the hood of the vehicle, like with a fist…like pound on it”. He testified that he saw the gesture but did not hear a sound. He saw the taxi make a sharp right turn and the skateboarder was in the vicinity of the right front tire. Then there was a loud snapping noise. The skateboard broke and the skateboarder fell backwards. He said he saw the skateboarder land on his back and his head hit the curb.

[52] Counsel suggested in cross-examination that the banging gesture he had viewed was simultaneous with Mr. Ibrahim’s taxi turning to the right, he viewed Mr. Bissonnette strike the taxi as he was falling, not before. Mr. Brown did not agree. He maintained that the events, the striking of the taxi and the taxi turning into Mr. Bissonnette were consecutive and not simultaneous, although close in time. He stated: “at the same time – the hand comes down; the car comes in – like – but seconds apart. Like it wasn’t – it wasn’t like it was immediate from the time the hand came down, the car came in, if that makes sense.”

[53] What is significant in Mr. Brown’s evidence is that as the taxicab and skateboarder passed by him westbound, he heard a man’s voice yell loud enough to startle him, he saw a hand gesture like a fist pound onto the hood of the taxi, he saw the taxi make a sharp right turn, heard a snapping noise and the skateboarder fall backwards.

Samuel Brooks

[54] The transcript of Mr. Brooks’ testimony from the first trial in 2015 was tendered on consent. Mr. Brooks, 34 a service representative at a Bank of Montreal branch testified he was going to culinary classes at George Brown College on King Street on May 14, 2012. He had just purchased a coffee at a Starbucks’ store on the southwest corner of King and George Street crossed over King Street to the northwest corner of the intersection and waited on the change of light to cross to the east of the intersection to go to the College. As he crossed on a green light a long boarder came toward him westbound who he said almost collided with him as he came very close to his briefcase.

[55] When he was on the east side of George Street intersection, he heard the sound of a collision, “it sounded like a car crash”. He testified that he did not recall hearing any yelling or arguing. He walked back toward the scene where he saw a person lying on the street, his feet facing south and neck on the curb. He talked to a man standing beside the cab near the driver’s door whom he believed was the driver. He said he was on his cell phone and gestured toward the victim stating, “look what happened” or “look, what I have done”. He seemed distraught and he tried to calm him by telling him not to look.

Lillian Chan

[56] The transcript of Ms. Chan’s testimony on the first trial in October 2015 was admitted on consent on this trial. Ms. Chan, a library technician at the George Brown College testified that at about 6:00 p.m. she had left work and when waiting at the northeast corner of King Street East and George St. on a red light, she saw a skateboarder proceed over George Street before everyone else and on to the curb lane of King Street. She testified “he was actually weaving from side to side, so at some point closer to the curb and at some points he was closer to the lane next to it”. He was moving in “like a wave pattern” . . . “like carving in snowboarding”.

[57] She was not sure if the light had changed to green before or after he passed her, but the intersection was clear and there was nothing on King Street.

[58] She testified as to what next happened:

I crossed the street. I remained looking downward and when I reached like the other side, but hadn’t stepped on to the curb yet, I heard a gasping in front of me, and I didn’t like – like, far in front of me and I didn’t look up. But then I heard a large – also a loud snap or a loud bang – or snap or something, and I looked up and then I saw someone’s legs coming – well I saw, like, a – a car going up a bit and then going down and then some legs coming out of the back of the car underneath.

[59] She testified that the car was moving westbound but at a slight angle because she could see the right profile of the car from where she looked up. It looked like the car was going over something to her, it went up and then there is a sudden rise and the legs popped out from the back of the vehicle sideways.

[60] In terms of the order of sounds she first heard a loud gasping of a number of voices followed by a cracking sound of wood, but no other sounds such as a confrontation.

[61] The substance of her evidence is (i) King Street was clear of vehicles when she noticed the person on the skateboard, and (ii) he proceeded west weaving in the curb lane, (iii) then, as she crossed the intersection with her head down, she heard a gasping from a bunch of people in front, “more than one voice”, (iv) then a loud bang, a snap, a loud crack, “it sounded like wood snapping”.

Kyungmin Hyun

[62] The transcript of Ms. Hyun’s testimony from the first trial in 2015 was tendered on consent. At the time of the incident she was an employee at the Modern Weave Carpet and Rug Store located at 160 King Street East, Toronto.

[63] She was exiting the store at 6:00 p.m., the closing time and just as she opened the front door, she saw a taxi run over a man’s body. When she saw the vehicle, it was in the curb lane moving west and then stopped. The man who had been run over was near the rear passenger tire of the taxi. He was lying face up with the right side of his face toward the road and his torso and legs were pointing southeast. She saw the driver exit the taxi driver seat and take a few steps toward the back of the car and take out his cell phone from his pants pocket. He looked to her to be in distress. She went into the store to make sure 911 was called. When she came out of the store, she saw him sitting on the ledge of the store window with his head buried in his hands.

[64] She had not heard or seen anything before she had opened the store door.

Abdelladif Mahamat-Zene

[65] Mr. Mahamat-Zene’s transcribed evidence from the first trial in 2015 was admitted on the consent of the parties. His first language is Arabic and at trial he did not use an interpreter.

[66] Mr. Mahamat-Zene, a security guard, although he had attended George Brown College earlier, testified that as he was walking eastbound on the south side of King Street between Jarvis and George Streets with his ex-girlfriend, he heard the voice of a young man, age 25-28 without an accent shout: “What are you doing?” It was quite loud, which caused him to look to his left, which would have been to the north side of King Street.

[67] When he heard the loud voice say, “What are you doing?” he looked left and “I saw the skateboarder was in front of the taxi . . . by the passenger hood side”. They were moving very slow in the curb lane.

[68] He testified that “I looked to my left. That gentleman was already down on the floor, and then at the same time the sound was cracking while the passenger wheels was going up on to him”. He heard the sound of breaking, “like it was the skateboard or bone breaking but the sound came after the man was down.”

[69] Defence counsel argued that his evidence should be given no weight because he had several directions incorrect and he gave confusing evidence as to where the tires of the taxi stopped. He testified he had observed the only tire that was on the gentleman at the time that the car came to a stop was the right front tire.

[70] It was obvious that Mr. Mahamat-Zene had some directional challenges in discerning north and south, as well as in describing certain road features such as the curb transcribed as a “curve”. He testified that the TTC shelter was on the south side of King Street where in actuality it is on the north side, however in describing his position when making his observations he testified that the shelter was opposite where he and his lady friend had been walking, as well as noted his position on a diagram of the area.

[71] I do not accept that his evidence should be given no weight or disregarded. Indeed, what was not inconsistent or indeed challenged in his testimony was that he heard a loud voice say, “what are you doing” and as he looked to his left on the south side of King Street he saw the skateboarder by the front passenger side of the taxi and the cracking sound after the man beside the taxi was down.

Benjamin Yau

[72] Benjamin Yau age 47, a TTC streetcar operator was running the Number 504 streetcar on King Street East eastbound at the time. He had come to a service stop at the intersection of Jarvis and King Street at approximately 6:00 p.m. As the operator he sat at the front of the streetcar in, a glassed enclosed area referred to by operators as the “fish bowl”, which provides an unobstructed view at the front of the street car ahead and to the sides. As he described, it provides a commanding view of the street.

[73] He testified that while holding at the intersection for the light to change, he saw a long boarder and taxi westbound past George Street on King Street. The taxi was in the curb lane hugging the dotted line with the long boarder beside the passenger side of the taxi.

[74] He had made his service stop and before proceeding on he checked his four-way mirrors, the blind spot and sounded the warning street car gong. As it was a clear, dry, sunny day the driver side window of his operator station was open. He heard two male voices ahead of him to the left, “as if two people were yelling or arguing at each other”. He saw the taxi driver with his elbow out of the window and then saw the driver “oversteer to the right and then oversteer to the left”.

[75] At the time the driver oversteered to the right the long boarder disappeared from his view. When the driver oversteered to the left, Mr. Yau thought the taxi would come into his lane. He engaged the forced braking system of the streetcar and activated a yellow alert to his dispatcher to ensure that a 911 call was made.

[76] He agreed in cross-examination he had not seen the long boarder place his hands on the taxi, only that he was between the taxi and the curb. After the taxi came to a stop, and as he moved the streetcar forward on the roadway, he observed the long boarder sitting at the roadway curb. He could see blood coming from his mouth.

[77] Defence counsel cross-examined Mr. Yau vigorously. He suggested that he was not only unreliable in his observation as to what he heard and saw, but also not credible as possibly being Islamophobic and biased against the accused as a result.

[78] The suggestion of bias made by counsel was based on an internet search of Mr. Yau in which he found Mr. Yau had made a comment on a posted YouTube video which mocked a niqab clad woman, who operated a niqab clad motor vehicle as it was driven out of a garage onto the street. Mr. Yau’s comment indicated he considered it humorous.

[79] While the video was offensive as it mocked the news that Muslim women would be given the right to drive in a country that had banned such activity, it did not suggest that Mr. Yau was Islamophobic or that such an attitude had a bearing on his testimony as submitted by counsel. More important, there was nothing in his testimony that reflected a cultural bias toward Mr. Ibrahim or that he was a dishonest witness in testifying as to his observations. I found Mr. Yau to have been forthright in responding to the suggestion he was prejudiced and testifying as to his observations without embellishment.

[80] In terms of the inconsistencies in his evidence, counsel noted that Mr. Yau had observed the taxi to be in the curb lane close to the center line dividing it with the passing lane contrary to what is in the video.

[81] In addition, he had not said in his initial statement to police that he had heard two voices yelling or mentioned having seen oversteering by the taxi driver.

[82] Mr. Yau’s initial statement to the police was given on May 17, 2012, three days after the incident in which he had mentioned two voices or oversteering. However, he testified that as he was leaving the interview, the officer said to him to contact him if anything else came to mind. Within an hour of giving his statement, while on route home, he sent an email to the officer to clarify that while he had not heard what the parties were saying he heard yelling and that he saw the cab operator oversteer the steering wheel just prior to the crack sound he heard.

[83] Counsel also suggested that he was not credible because his observation was that the victim, the long boarder was seen to be seated or upright when he saw him afterwards.

[84] Mr. Yau was also cross-examined as to whether he saw or heard or read any media reports. He acknowledged it was a possibility, but he could not recall anything specifically. There was nothing in articles referenced by counsel reflected in his evidence.

[85] In my assessment, none of these suggestions detract from the significant aspects of his testimony. I accept Mr. Yau had a clear view from the front of the streetcar from the driver’s station “fish bowl”. It was his practice to pay attention to taxis because of his experience of the unpredictability of taxi drivers to switch lanes or make U-turns to pick up fares. Mr. Yau recalled the defendant’s elbow being out of the window, which was open, as corroborated by the defendant in his evidence.

[86] Mr. Yau saw the defendant turn the steering wheel to the right after the yelling he heard, which was corroborated by other witnesses in terms of the sequence of events. Mr. Brown heard a loud yell, saw the action of a fist pounding the taxi, then the taxi makes a sharp right turn. Mr. Mahamat-Zene heard a young male say in a quite loud voice, “What are you doing”, and then after the man was down, the cracking sound. Ms. Rock testified she heard someone yell loudly, “OW, OW, OW”, and then heard a crunch sound, like something being broken.

Caroline Zhou

[87] Ms. Zhou testified through a Mandarin speaking interpreter. She testified in a fashion that suggested that she was quite guarded and concerned that her integrity was being challenged when asked questions as to differences between her evidence on the trial and earlier testimony, one of which was quite significant

[88] In her examination-in-chief Ms. Zhou said that she and her 12-year old daughter were walking north at the intersection of King Street and George Street in order to catch a bus home. At that time, she saw a taxi and a young guy on his skateboard, and as she described, it seemed to her that “the two were having some talk”. The young man hit the vehicle at the front three times:

“I seen (sic) the young man on the skateboard and the taxi driver, the two of them were talking. Maybe there was some argument between the two of them, it was not like an ordinary conversation. Because everybody was walking on the street, for the two of them to be there talking was weird”.

[89] Ms. Zhou had given testimony previously at the preliminary inquiry and on the first trial without having mentioned that she heard any talking by the skateboarder and taxi driver. At the earlier hearing she testified that she heard a bang which was the first thing that had caught her attention. She acknowledged that her memory of details was not good because she experienced some difficulties due to illness. She could not explain the differences other than stating she could not remember all the details.

[90] Her evidence was quite confusing at times and it is difficult to understand how there was such a significant omission about her hearing talking between the young man and the taxi driver in her earlier statement or testimony.

[91] The Crown submitted that even though she was not forthcoming in her testimony and testified as an obviously reluctant witness with an unusual demeanor at this trial, her testimony was corroborated in part by other witnesses. Other witnesses, such as Brown, Mahamat-Zene, Yau and Rock heard voices which drew their attention to what was occurring. On the surveillance video there is observable contact made by Mr. Bissonnette to the front area of the taxi, windshield and right-side mirror as well as him leaning over toward the taxi windshield and passenger side window moments before being hit as seen in the video.

[92] I agree that it would be dangerous to rely on Ms. Zhou’s evidence standing alone given the glaring omission of her claimed observation of some communication having occurred between Mr. Bissonnette, the skateboarder and the taxi driver in the moments leading up to the collision. However, where there is independent corroboration it shall be accorded some weight and consideration in the overall assessment of the evidence.

Krystal Koo

[93] Krystal Koo age 36 is a real estate developer had been at a media launch in the Distillery District on the afternoon of May 14, with colleagues from work. Unlike the other witnesses did not see anything related to the collision. She made observations of a person on a long board as she travelled from the Distillery District up Parliament St. at approximately 6:00 p.m.

[94] She left with several of her colleagues in her black Range Rover to return to their office downtown. She drove across Mill Street and turned north on Parliament, where she immediately noticed a skateboarder, a young white male, mid 20s to early 30s wearing a hoodie and ear phones on his head. She described him as being pretty tall and that his head was near the roof of her Range Rover. She noticed that the skate board was longer than usual, kind of curved with a narrow point. He was northbound on Parliament Street in the right lane while she was in the left lane driving north to avoid park cars. She passed the skate boarder and proceeded north on Parliament. She heard honking by cars behind her and looked into her rear-view mirror where she saw the skateboarder “weaving in and out between the stopped cars”.

[95] She drove north toward King Street where she observed a car making a left turn, so she moved her vehicle into the right lane in order to avoid being stuck behind it. However, there were cars ahead of her turning right onto King Street and she had to stop behind before continuing northbound. The car in the right lane had almost made its turn and the car making the left turn had moved half way through the intersection so she pulled a little to the left in order to head north past them when she noticed in checking her blind spot the skateboarder again, this time on the driver side of the vehicle toward the trunk. He travelled between the lanes northbound very close to her car causing her to “hit the brakes” as the skateboarder proceeded straight past her through the intersection and then turned westward onto King Street East.

Adib Ibrahim

[96] Mr. Ibrahim was born in Ethiopia in 1968 and he came to Canada with his family at the age of 17 or 18 due to the war with Eritrea. He is a Canadian citizen, he is married, and he has three children. He had been a taxi driver since 1994, initially for six or seven years driving rented taxis. In 2000 he became an owner/operator of an Ambassador taxi in the City of Toronto. The taxi he owned was a hybrid Toyota Camry which operated on battery power below 40-50 km per hour as well as gasoline powered when accelerating in speeds thereafter. He was an experienced driver and had been trained in advanced courses to avoid road hazards, such as couriers, bikes and cyclists and pedestrians. He would usually work a 12-hour shift and the day of the collision was like any other day. His vehicle had been washed and cleaned that morning and it had been inspected to ensure safe and operational as is required under his taxi license a few weeks previously.

[97] It was a Monday, so the day was slow concerning fares. His last fare of the day before the collision was picked up at the Sheraton Centre and driven to the Distillery District in the southeast area of Toronto beyond the downtown district. After he dropped his fare off it was after 5:30 p.m. and he intended to attend prayers at a mosque, either at Shuter and Parliament or another mosque he usually attended in the area of Brock Street and Queen Street while on route home in the west end of Toronto.

[98] He drove across Mill Street and north up Parliament and decided to turn on King Street East where, if there was a fare, he would take it and attend prayers later. If he did not pick up a fare on King Street, he would then turn north at Jarvis St. and go to the mosque at Parliament and Shuter Streets.

[99] He testified that as he approached the intersection of King Street East and George Street driving in the curb lane there was a white car ahead of him that slowed to either stop or make a turn at George Street. He did not want to wait behind it, so he changed lanes quickly to the passing lane travelling at approximately 40-50 km per hour passing through the intersection westbound on King Street East.

[100] He said he was driving with the driver’s window open resting his elbow on the window frame with his right hand on the steering wheel. All of the other windows were closed. Once past the intersection he wanted to be in the curb lane to be able to take a fare if someone flagged him: “always, if you’re empty, you want to be on the right side of the road when you are driving a taxi. You don’t want to be on the left side of the road to go to the right side. If another taxi is there, he’s not going to let you take the fare, he’s going to grab it. So that’s why always you are going to be on the right side.”

[101] After moving into the left lane at George Street and proceeding west the next thing he remembered was “the steering wheel was like shaking, like it shook my arm and broke. I heard . . . it’s like – it like the wheel is going by itself when . . . when I was on top of the longboard. Whatever it is, I don’t know but the car jumped, then I tried to grab it, and I couldn’t steer the car. And after I find out, I stopped, like my own body was frozen. I brought my left hand to grab the wheel, so I can steer it, and I tried to put brake, but I couldn’t lift my leg and then I stopped. I couldn’t even see, I didn’t know what was even happening, what’s happening with the car, I came out and I saw him, and then I called 911.”

[102] Mr. Ibrahim testified that he never saw the person on the longboard in the curb lane. He had never seen him earlier while on route to King Street East or on King Street East until he stopped the car after the collision. He did not hear anyone yelling. He did not hear or see anyone hit his car before the collision.

[103] There are some inconsistencies in Mr. Ibrahim’s evidence to consider.

[104] Mr. Ibrahim testified that prior to the collision he had only the driver’s window opened, and all other windows closed. Photographs taken by the police afterwards at the scene show the right front passenger window half open. Mr. Ibrahim testified his explanation for the windows being opened after the collision was because it was his habit when turning off the motor vehicle to open the windows.

[105] He testified that after he got out of the car to see what had happened, he went to the rear of the vehicle, opened the trunk and obtained his jacket. He then returned to the car to get his cell phone to call 911, at which time he believes he turned off the vehicle and opened the windows, “whether by accident, whether habit that I do, I open the window.”

[106] Yet, not all windows were opened. While the police photographs show the front passenger window half opened, the rear passenger window was closed at the time the FIS photographs were taken at the scene.

[107] Mr. Droury, one of the civilian witnesses testified that within 15 seconds of the collision he saw the front passenger window partly opened.

[108] Counsel submitted that regardless of whether the front window was open or closed, Mr. Ibrahim did not hear anything.

[109] Mr. Ibrahim testified that after he passed the intersection at George Street in the left passing lane, he had been driving straight ahead but believed he had drifted into the curb lane which he determined as a result of having watched the video. However, at the first trial he stated that he had been moving his vehicle slowly into the curb lane.

[110] In his evidence in-chief Mr. Ibrahim referred for the first time to his steering wheel as being “tilted”. In cross-examination he acknowledged that he had said nothing about the steering wheel being titled at the earlier trial and that he had heard about the theory of “bump steering” only two weeks before he testified in this trial. In re-examination counsel took him to a location where he had uttered the words “a little bit tilted” however, it was clear that the context was not in relationship to his steering wheel, but rather the taxi’s orientation to the lanes of the roadway.

[111] He appeared to be shaping his evidence to fit with the new theory advanced by the defence in the course of the trial.

[112] Mr. Ibrahim altered his testimony as to how he was holding the steering wheel at the time of the incident. At the previous trial in 2015 he said he may have had both hands on the wheel. He could not remember. He testified on this trial that only his right hand was on the steering wheel prior to the collision and he needed to use his left hand to control the wheel after the wheel pulled to the right.

James Hooey

[113] Mr. James Hooey was called by the defence, a former instructor at Centennial College who taught for 30 years transportation technologies to mechanic apprentices preparing for certification. Specifically, he taught the steering, suspension and brake specialist program.

[114] Professor Hooey was qualified as an expert in the area of mechanical operation and inspections of motor vehicles. He was called to testify and opine on the inspection performed by the Toronto Police Service’s mechanic of Mr. Ibrahim’s taxi, the subject of rack and pinion steering, and how “bump steering” can affect steering control and direction of the vehicle.

[115] With respect to the subject of rack and pinion steering he spoke of steering ratios and mechanical advantage in which a mechanical ratio, such as 26 to 1 makes it easier for the operator of a vehicle to turn the front wheels. In this instance, the vehicle operated by Mr. Ibrahim had a steering ratio of 10 to 1 which as Mr. Hooey stated: “means it’s much quicker and when you steer – when you move the steering wheel it’s . . . a lot of people referred to it as “quick ratio”, in other words you don’t have to turn the wheel as much to get movement out of the wheels, in other words, you don’t have to turn the wheels as much to get movement out of the wheels, and it’s a little firmer steering . . .”.

Bump Steering

[116] He defined the concept of “bump steering” as simply a tenancy of the wheels to turn and steer in an unintended direction as a result of encountering an obstacle on the road – such as a pot hole, a curb, or in this instance the skateboard. He opined that as a result of Mr. Ibrahim’s vehicle encountering the longboard with its high truck that as the wheel mounted the skateboard and broke it the impact caused the wheels to turn, in this instance sharply to the right.

[117] He testified that bump steering can be more severe depending on the obstacle encountered. With respect to the mechanical ratio, in this instance 10 to 1 for Mr. Ibrahim’s vehicle, the lower the ratio the greater likelihood of bump steering having occurred.

[118] In terms of his comments concerning the mechanical examination of the vehicle his critique was largely with respect to the adequacy of the checklist form that reported the results of the examination by the TPS mechanic. However, he failed to have considered the testimony of the mechanic given on the previous trial, who detailed his observations and examination.

[119] Further, he only reviewed a limited number of photographs, some of which involved the longboard and ten of the taxi, only one of which was of the taxi undercarriage. When confronted in cross-examination with not having reviewed available photographs of the actual mechanical components of the vehicle he stated that they would have been of little assistance to him.

[120] Mr. Hooey was quite prepared to venture into speculation. In reviewing some of those photographs he stated that with respect to one, it looked like a bushing was “gone” on part of the lower control arm mount to the front steering mechanism and “that would definitely contribute to bump steer”. None of which was contained in his report to suggest that there was any mechanical deficiency with the taxi in question.

[121] Mr. Hooey was quite prepared to infer that the taxi was in poor condition, drawing on anecdotal experience rather than any specific contributing deficiency. Under the heading of his report “what is bump steer?” he implied that because in his view taxis are poorly maintained that this cab was also poorly maintained: “Taxis are notorious for being in poor condition. Time is money, a vehicle in the shop makes no money. This 2010 Toyota Camry, VIN No. 4T1BB3EK7AU112900 had 164,345 km registered on the odometer.”

[122] It appeared to have been of no moment to Mr. Hooey that Mr. Ibrahim’s taxi had recently been through a mandatory taxi licensing vehicle inspection. Indeed, he stated when so advised “cabs are driven very long distances and sometimes 24 hours a day, they can be mechanically in poor condition even though the legislation is in place to make sure that they’re not”. There was no evidence that such was the case with Mr. Ibrahim’s taxi.

[123] Mr. Hooey confirmed he had never spoken to Mr. Ibrahim as to the state of repair of his taxi or the frequency of its maintenance. Mr. Ibrahim testified that there were no operational repairs after the collision, when released to him and it became a family use vehicle.

[124] Mr. Hooey’s evidence did not support any finding that there was any mechanical deficiency that contributed to the collision.

[125] I found Mr. Hooey to have been quite a partisan advocate rather than a neutral expert in the presentation of his evidence. Indeed, at one point he referred to counsel for Mr. Ibrahim as “my lawyer” and then corrected himself.

[126] I found that Mr. Hooey was prepared to go beyond his expertise to advocate and speculate extemporaneously in support of his view. He went so far as to offer his own belief when shown the video in the area of Still 41 that he could see something come up, “a white mark”, which he opined was the longboard after being struck by the taxi.

[127] Contrary to his belief, the white mark he referred to was a gap or space between Mr. Bissonnette’s torso and left arm as he began to reach out toward the taxi as he was knocked off the longboard. Further, in the stills leading up to Still number 41 there is a clear gap between Mr. Bissonnette’s longboard as it was ridden parallel to Mr. Ibrahim’s taxi and its front wheel. Mr. Hooey was quite willing to go beyond his expertise to try to support his view that bump steer played the determinative role in this matter.

[128] Contrary to Mr. Hooey’s view in argument counsel submitted that in Still number 42 there is a dark spot by the front tire that is the longboard as it is hit, underscoring the irrelevance of Mr. Hooey’s observation. However, with respect to counsel’s observation, I note there is no dark spot in the video played at normal speed or when the video is stop framed. It is the front tire.

In-Car Camera Stills

[129] There are two stills that were produced from the in-car cameras of the taxi which show a person apparently in the roadway behind Mr. Ibrahim’s taxi - still number 922 at 17:54:25.2 taken by the driver’s side camera one and number 923 at 17:54:30.1, five seconds later taken from the passenger side camera two. In number 922 the person can be seen through the rear window of Mr. Ibrahim’s taxi from below the waist to just above the elbows. The person is wearing a black top that has a white zipper and a small white patch in the lower right corner. The person’s forearms and hand are exposed. The colour of the garment below the black top is a grey colour. In number 923 five seconds later, a person can be seen with a black top, small white patch to the lower right corner, the right forearm exposed, the left forearm also exposed which appears to be held across the front of the person’s torso, and above the left forearm there is a whitish area near the left shoulder.

[130] Mr. Ibrahim vigorously challenged any suggestion that the person in 922 and 923 was Mr. Bissonnette on the basis that the garment below the person’s waist in number 922 were a lighter colour than the black top and it did not match the black shorts of Mr. Bissonnette which were shown in the police post-autopsy photographs. Further, in number 922 the large white patch or emblem on the upper left chest area of the hoodie worn by Mr. Bissonnette cannot be seen.

[131] I am satisfied that there is sufficient consistency between the garment worn by Mr. Bissonnette, his hoodie that it is Mr. Bissonnette in the roadway behind Mr. Ibrahim’s taxi on King St. East due to the following:

1. The black top has a small white patch at the bottom right side and a white zipper. The sleeves of the garment are pushed up to the elbows which are consistent with the still image taken from the police in-car camera of Mr. Bissonnette being removed by the paramedics by stretcher and shows his sleeve pushed up beyond his right elbow.

2. The upper left chest area cannot be seen in number 922 where the multi-coloured, although largely white emblem was located on Mr. Bissonnette’s hoodie. However, in number 923 there is a large white area consistent with a large emblem or crest in the upper left chest area of Mr. Bissonnette’s hoodie.

3. While Mr. Bissonnette’s shorts as photographed by FIS are black and the lower garment worn by the person in number 922 appears to be a greyish colour I note that in the black and white video from the surveillance camera at 170 King Street East and the stills from it show Mr. Bissonnette’s shorts to be a lighter grey colour to the dark hoodie worn on his upper body. There is no dispute the person depicted in the video is Mr. Bissonnette even though the colour of his shorts in the video is not dark black as in the police colour photos of his clothing.

[132] The significance of the images showing Mr. Bissonnette behind Mr. Ibrahim’s taxi in the area of King Street East indicates that at some point Mr. Bissonnette passed Mr. Ibrahim’s taxi as Mr. Bissonnette was seen to wait at the King Street and George Street intersection on a red light, whereas Mr. Ibrahim after passing a white car at the intersection travelled in the left lane directly through the intersection on a green light. Further, the video from the surveillance camera shows that Mr. Bissonnette appears ahead of Mr. Ibrahim’s taxi as it is driven up beside Mr. Bissonnette from behind.

[133] The other stills which counsel submitted were of relevance are 969 at 17:59:36.8 and 970 at 17:59:37.1 taken one second later. Counsel submits that in 969 taken from the passenger side camera two shows two individuals facing eastward on King Street apparently paying no attention to any events west of them. Number 970 shows a partial profile of Mr. Ibrahim from the driver’s side camera one which shows him looking straight ahead. Counsel suggests it shows an expressionless Mr. Ibrahim. He submitted that the combination of the two stills establishes that if there had been a loud confrontation or a banging sound had occurred at the time the people on the sidewalk in 969 would have been paying attention and looking westward, which they were not.

[134] The next set of stills are number 971 at 17:59:52.4 and 972 at 17:59:52.7. These stills were taken fifteen seconds later from which it can be discerned that by that time Mr. Ibrahim’s taxi is in the curb lane and at or just after the taxi has come to a stop. Counsel submits that camera one on the driver side shows Mr. Ibrahim with a sad expression.

[135] I find that the stills in 969 and 972 do not assist in evaluating the suggestion that there was no yelling or raised voices before the collision because the images captured occurred at least 15 seconds before the collision. Mr. Ibrahim’s taxi, travelling at an approximated speed of 40 or 50 km per hour, even 11-12 seconds before the collision it would have been east of George Street intersection not west of the intersection on King Street where the interaction between Mr. Ibrahim and Mr. Bissonnette occurred as seen on the video.

Sequence of Events

[136] Defence counsel submits that the witnesses’ evidence should be assessed just as identification evidence which is inherently fallible as subject to human error. As noted in R. v. Miaponoose, 1996 1268 (ON CA) witnesses fill in necessary but missing data in describing events. They do so in good faith and honestly but may do so without realizing the extent to which their cognitive interpretative process has been distorted. Unconsciously they may fill in the gaps.

[137] While there are some inconsistencies in the witnesses’ evidence, and some, such as Mr. Droury who tried to rationalize what he heard and by others to fill gaps of memory, I bear in mind that each is an independent witness without any vested interest in the event or outcome of this matter, and all of whom made their observations from different vantage points. Moreover, in my view, where there is consistency in their respective observations which permit reasonable inferences to be made as to the sequence of events, and what was happening as captured on the video, leading up to the fatal moment.

1. Mr. Bissonnette passed Mr. Ibrahim on King St. E. and after George St. Mr. Ibrahim drove his taxi up from behind Mr. Bissonnette.

[138] Based on the circumstances, I find it reasonable to infer that the person on the skateboard observed by Ms. Koo around 6:00 p.m. for whom she had to brake hard to avoid at the intersection of Parliament and King St. E. was Mr. Bissonnette.

[139] Further, he was quite noticeable as he propelled himself from the area of the Distillery District. He was tall and he was seen by Ms. Koo to weave around parked vehicles, travel up Parliament St. and later when she saw him turned onto King St. E.

[140] Mr. Bissonnette travelled on King St. E. and at one point he was in the cub lane behind Mr. Ibrahim’s taxi, as depicted in the In-Car camera stills 922 and 923 discussed above.

[141] Mr. Bissonnette was seen by Ms. Avrutov at the George St. and King St. E. intersection stopped at a red light holding his skateboard and then to proceed westbound on the green light. Similarly, Ms. Chan saw him at the intersection beside her and then skate west through the intersection and in the curb lane.

[142] Based on Mr. Ibrahim’s testimony and the in-car stills he had been in the curb lane prior to George Street. As a result of a white car that slowed in front of him as if to stop or turn, he moved into the passing lane and continued westbound on King Street on a green light. He did not stop for a red light. He drove through the intersection after Mr. Bissonnette who had stopped to wait for the light to change. Further, the video confirms that the taxi came up to Mr. Bissonnette from behind him.

[143] I accept that it was Mr. Bissonnette in Stills 922 and 923. Mr. Bissonnette had been behind Mr. Ibrahim’s taxi on King St. E. At some point he passed Mr. Ibrahim’s taxi before George St. because he stopped and waited on a red light at the intersection before proceeding as seen by Ms. Avrutov and Ms. Chan. After the George St. intersection, Mr. Ibrahim came from behind Mr. Bissonnette as can be seen in the video. Mr. Bissonnette proceeded into the curb lane and he was followed by Mr. Ibrahim in the passing lane.

2. Yelling, banging, abrupt turn, and crunching sound.

[144] In assessing Mr. Droury’s evidence, notwithstanding his personal interest and having read the Court of Appeal decision he acknowledged that aspects of his evidence were inconsistent with what is displayed on the video, specifically whether there was rapping on a window as opposed to rapping on the hood of the car. However, what is consistent in his evidence is that he heard, i) a rapping noise as if banging on metal; ii) he saw the long boarder making faces, as he described, with a menacing or ominous look toward the driver; and iii) the taxi then veered into the long boarder and ran over him. His observations were made from a stationery point of view approximately 15 metres away from the area of collision.

[145] His observations are consistent with the video of Mr. Bissonnette making contact with the taxi hood and mirror, and of him bending over toward the passenger window, as if protesting the encroachment of the taxi into his path of travel.

[146] Similarly, Mr. Brown while walking on the north side sidewalk of King St. heard a man’s voice loud enough to startle him. He saw the long boarder make a gesture like he was pounding on the taxi. He saw the taxi make a sharp right turn, then he heard the snapping noise.

[147] Mr. Mahamat-Zene testified he heard a young male in a quite loud voice say, “What are you doing?” After the man was down, he heard the cracking sound.

[148] I accept that Mr. Mahamat-Zene was able to hear what could be characterized as words of protest that came from the other side of King Street, an observation unchallenged in cross-examination; and he heard the “cracking” sound after the man was down.

[149] Ms. Rock testified she heard someone yell loudly “OW, OW, OW”, and then a crunching sound, like something being broken. Ms. Rock’s evidence is of significance because she heard the sound of a skateboard crunching after seeing the abrupt turn of the taxicab in the curb lane.

[150] Mr. Yau heard the yelling first and then saw the defendant turn the steering wheel to the right after the yelling.

[151] Ms. Zhou, as collaborated by other witnesses’ observations of hearing a loud voice or voices, heard some talking that drew her attention before the collision.

Summary of Observations from the Surveillance Video:

1. Mr. Bissonnette is ahead of Mr. Ibrahim’s taxi on King St. E. as he comes into view in the video. Mr. Ibrahim’s taxi comes into view from behind Mr. Bissonnette on his longboard to the right of the taxi. Mr. Bissonnette is in the curb lane and the taxi in the passing lane close to the line separating the curb lane, (Stills 1 - 11).

2. Mr. Bissonnette is on the longboard in the curb lane with his body facing south running parallel to the taxi with an observable and continuous gap between the longboard and the taxi, (Stills 1 - 42).

3. Mr. Bissonnette makes contact with the taxi with his outreached left arm in the area of the right front hood sweeping toward the windshield then continuing in a sweeping motion to the side mirror with his outreached left arm and hand, (Stills 11 -18).

4. As Mr. Bissonnette’s left arm moves away from the side mirror area, his torso and left shoulder and left arm twist forward toward the right (Stills 18 - 25).

5. Mr. Bissonnette bends over from the waist toward the side passenger window of the taxi, (Stills 23 - 40).

6. The taxi front right wheel/tire is ahead of the longboard, (Stills 20 - 43).

7. The taxi starts to move more to the right into the curb lane and into the path of the longboard (from Still 36) and begins to turn sharply to the right at Still 41 into the path of Mr. Bissonnette.

[152] I accept, based on my viewing of the video and the forensic evidence, Mr. Bissonnette made contact with the taxi initially at the front hood with his left hand and arm, while still on his longboard riding parallel to it, and with a sweeping motion of his arm toward the windshield he tried to grab ahold with his left hand leaving finger marks on the back edge of the hood, then in an attempt to grab the passenger side mirror he knocked it askew in its housing.

[153] Based on the evidence of the witnesses, I accept that the sequence of events was that there was a loud yell by Mr. Bissonnette, (Arutov, Brown, Chan, Mahamat-Zene, Yau, Zhou), he made contact with the taxi by banging on the taxi, (Droury, Brown), he bent down to communicate with the driver as the taxi moved more into the curb lane, (Droury), then the taxi made a sharp right turn into the curb lane toward the long boarder, (Brown, Droury) he fell backwards and then there was a loud cracking or breaking noise after the long boarder was down, (Brown, Mahamat-Zene).

[154] In my view, if a bump steer occurred causing the taxi to rise up as seen by Ms. Rock and veer more sharply to the right, it only played a role after Mr. Ibrahim turned toward Mr. Bissonnette into his path of travel and mounted his longboard. Based on the relationship between Mr. Bissonnette’s longboard and the front right wheel of Mr. Ibrahim’s taxi, the gap between them with Mr. Bissonnette’s longboard continuing in a straight line in the video, Mr. Ibrahim’s front wheel could only have made contact with the longboard by the front wheel being turned in its direction and crossing over Mr. Bissonnette’s path of travel and onto his long board – not Mr. Bissonnette moving ahead of the taxi and into the path of front tire.

[155] Mr. Ibrahim may or may not have seen Mr. Bissonnette earlier in his journey up Parliament St. and across King St. E., but he could not have missed Mr. Bissonnette as he came up from behind and then beside him within a few feet after the George St. intersection. There were no other vehicles westbound on King St. E. and Mr. Bissonnette was a large singular presence on the roadway in the curb lane.

[156] Mr. Bissonnette was a tall man and he carried a large backpack. He was 6’4” riding a longboard at least 5” in height. Others had no difficulty seeing him. Ms. Koo saw him coming from behind and as he passed her vehicle, as he made a left turn onto King St. E. Ms. Avrutov, Ms. Chan, and Mr. Brooks saw him at the George St. intersection. Mr. Mahamat-Zene heard a loud voice declare, “What are you doing?” and saw him from the southside of King St. beside the taxi. Mr. Yau saw him from his streetcar operator’s compartment at the Jarvis St. intersection. Mr. Droury saw him from the TTC bus shelter. Mr. Brown heard the longboard wheels on the roadway and saw him coming toward him beside the taxi, then heard a yell that startled him, which caused him to turn around and see him again before he was knocked off the longboard by the taxi.

[157] Mr. Ibrahim said he wanted to make a right turn at Jarvis St. to go to a mosque. To do so, he had to enter the curb lane. He said he was also looking for a fare and it would be best to be in the curb lane to be readily able to stop and not be beaten out by another cab in the curb lane. His focus had to have been not only ahead but also to the right in order to move safely into the curb lane.

[158] Counsel argued that Mr. Ibrahim’s emotional demeanor after the collision as observed by Ms. Hyun and dialing 911 is some evidence of his state of mind. I find it was a reaction one would expect of anyone involved in a tragic event.

[159] However, the focus of the assessment is what Mr. Ibrahim knew leading up to the collision. He could not have been unaware of Mr. Bissonnette’s presence in the curb lane. He wanted to be in the curb lane. He came up the left lane from behind Mr. Bissonnette. There was no other traffic ahead or in the curb lane. Mr. Bissonnette was in the curb lane beside the front passenger side of the taxi. He banged on the hood of the vehicle. He grabbed at the hood by the windshield and knocked the mirror askew. Then he yelled at the driver. Mr. Ibrahim was sitting in the driver’s seat within a few feet of this activity. Mr. Ibrahim could not have been ignorant of his presence, not while others at much greater distances heard and saw him. It defies credulity in the circumstances.

[160] I do not accept Mr. Ibrahim’s testimony as to his actual state of mind at the time that he knew nothing about Mr. Bissonnette travelling on King St. E. or his presence relative to his taxi until he saw him lying dead at the curb of the roadway.

[161] Considering all of the evidence I do accept in terms of the sequence of events discerned from the independent witnesses’ evidence and the video, I reject his evidence that he collided with Mr. Bissonnette as a result of a momentary lapse of attention as he changed lanes. I have no doubt he was aware of Mr. Bissonnette’s presence when he proceeded to change lanes.

[162] The evidence I accept as to the sequence of events leads me to conclude that Mr. Ibrahim turned his taxi into the curb lane knowing that Mr. Bissonnette was riding the longboard beside him and he did so intentionally after Mr. Bissonnette hit his taxi and yelled at him. This was a situation where he purposely drove into the path of Mr. Bissonnette, perhaps in a fit of pique because Mr. Bissonnette had struck his taxi, but he did so knowing Mr. Bissonnette was in the curb lane beside him. He used his taxi to interfere with him.

[163] As noted by Charron J. in Beatty, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[164] Even though the encounter between Mr. Ibrahim and Mr. Bissonnette occurred over a brief period of time, Mr. Ibrahim’s conduct, intentionally steering his taxi into the curb lane knowing of Mr. Bissonnette’s presence and into his path of travel, constitutes a marked departure from the standard of care a reasonable person would have observed in the circumstances. Any reasonable person in similar circumstances would have foreseen the danger and risk of causing serious injury or death by driving a motor vehicle into the path of a person on a long board knowing he was beside the vehicle at the time of the maneuver.

[165] Notwithstanding Mr. Bissonnette being reckless in occupying the center of the curb lane on a longboard, he was vulnerable, and as such he was to be avoided as any other motor vehicle, cyclist or pedestrian on the roadway. Any reasonably prudent driver would have done so in the circumstances as I have found Mr. Ibrahim knew them to be. There were clear alternatives for a reasonably prudent driver to avoid him. The roadway ahead in the left lane was clear to continue past Mr. Bissonnette, or to have slowed the vehicle to permit him to continue forward, then enter the curb lane, or to have “hit the brakes” as Ms. Koo did when she encountered Mr. Bissonnette on Parliament St. at the King St. E. intersection.

[166] A reasonable person would have foreseen the risk and taken steps to avoid it if possible. Here, Mr. Ibrahim’s failure to foresee the risk and take steps to avoid it, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

[167] I find that Mr. Ibrahim caused the death of Mr. Bissonnette by the unlawful acts of assault, when he used his taxi to interfere with him and dangerous driving, when he turned into the curb lane knowing Mr. Bissonnette was beside the vehicle. A reasonable person in similar circumstances would have been aware of the risk of the danger to Mr. Bissonnette involved in the conduct manifested by the accused. It was a marked departure from the standard of care a reasonable person would have observed in the accused’s circumstances.

[168] In the result I find Adib Ibrahim guilty of manslaughter.

Released: September 25, 2020

COURT FILE NO.: CR-19/7-506

DATE: 20200925

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ADIB IBRAHIM

Accused

REASONS FOR judgment

A.J. O’MARRA J.

Released: September 25, 2020