COURT FILE NO.: CR-20-30000096-0000
DATE: 20201105
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
vykunthan kanthavel, Defendant
Counsel: Joshua Levy, for the Crown Robert Tomovski, for the Defendant
HEARD at Toronto: October 26-30 and November 2, 2020
BEFORE: S.F. Dunphy J.
[1] Vykunthan Kanthavel (“VK”) was the driver of a motor vehicle that struck Mr. Sajeev Ramachandran (“Sajeev”) causing an open leg compound fracture to his left tibia and fibula. The incident occurred in the course of an altercation between the two in a parking lot shortly after midnight on October 6, 2018. In the course of that approximately 45 second altercation, VK directed the Mercedes sedan he was driving at Sajeev or his business associate on three occasions in forward gear and two occasions in reverse, four of those manoeuvres being characterized by sudden and rapid acceleration on his part while in close proximity to one or the other of the unarmed pedestrians in his path.
[2] The defence concedes that the vehicle very likely hit Sajeev on one of those occasions, the Crown contends that it hit him on one or two others as well. While not admitted, there can be no doubt whatsoever that the serious wounds suffered by Sajeev were the result of a collision with the Mercedes driven by the accused during the course of this brief altercation.
[3] VK is charged with attempted murder (s. 239(1) of the Criminal Code), aggravated assault (s.268(2) of the Criminal Code), possession of a weapon in the form of the motor vehicle (s. 88(1) of the Criminal Code) and dangerous operation of a motor vehicle all arising from this incident (s. 249(1)(a) of the Criminal Code).
[4] The principal question to be resolved is that of intent. The Crown alleges that VK employed the Mercedes as a weapon and used it to hit Sajeev deliberately and with intent to kill; the defence says that the single collision that it concedes occurred was the product of an accident and that VK only became aware of Sajeev’s injuries much later. The accused also says that he acted in self-defence.
[5] My task in this case is primarily to determine what facts have been proved by the Crown beyond a reasonable doubt. The advantage I have is that substantially all of the actions of the accused said to constitute the offences with which he is charged are recorded on reasonably good quality surveillance video, albeit at night, from a fixed vantage point, at a distance of perhaps fifteen or so yards and without sound. The disadvantage I must contend with is that each of the four eye-witnesses who testified was evasive at times and very likely deliberately dishonest at others.
[6] For the more detailed reasons that follow, I have concluded that the Crown has failed to prove beyond a reasonable doubt that VK had the necessary specific intent to kill required to enter a conviction for attempted murder. He is acquitted of that charge. However, I find that the Crown has proved the required elements of each of the other three charges beyond a reasonable doubt and that there is simply no air of reality to the claim that VK acted in self-defence.
[7] Viewed as a whole or in segments, VK was clearly operating the motor vehicle as a weapon throughout substantially all of the portion of the altercation recorded on tape, unmistakably targeting Sajeev with his vehicle in an aggressive fashion. I find that VK acted deliberately at all times and that his manner of driving represented a marked departure from that of a reasonable driver in the circumstances and posed a clear and obvious threat to the life and safety of one or both of the pedestrians who lay in his path on each of the five occasions that he directed the car at them. I find that VK struck Sajeev on at least one of three occasions where his manoeuvres appear to have resulted in a collision even if the exact extent of each collision cannot be determined with precision from the video record and I find that the prospect of serious bodily harm being suffered by Sajeev as a result of any of the manoeuvres he undertook was plain and obvious to him. There is simply no reasonable basis for VK to have perceived that Sajeev ever posed a threat to him or to any other person at any time - with the minor exception of a single incident where Sajeev threw a screwdriver at the windshield of the Mercedes while it was rushing at him or immediately thereafter. Sajeev was unarmed and unprotected – VK and his passengers were cocooned inside a heavy luxury sedan. The claim of self-defence simply has no air of reality to it.
Factual Background
[8] The incident giving rise to these charges arose from a verbal altercation between VK on the one hand and Sajeev and Sajeev’s business associate, Ms. Gayathri Sanmugalingam (“GS”) on the other. The incident occurred at or about 12:30 a.m. on October 6, 2018. Who started it and who bears what portion of the blame for it is of only peripheral relevance to the questions before me. The altercation such as it was remained a strictly verbal matter until VK got behind the wheel of his motor vehicle. The one minor exception to this was when GS was pushed or shoved by VK to get her out of the way so he could open the door to his car and get back in. No injuries resulted from this minor incident nor have any charges been laid as a result.
(a) Credibility findings
[9] Before reviewing the facts in greater depth, I wish to make some preliminary comments regarding the credibility of the four witnesses I heard from. Each of the eye witnesses before me had fairly obvious failings that significantly impaired my ability to rely upon them. I did not reject all of what any witness said any more than I accepted all. Their individual lack of reliability required me to be quite wary of them generally while at the same time being careful to remain fully aware at all times of the limitations of video evidence (a subject to which I shall return below).
[10] I shall summarize here in a general way the credibility challenges posed by each and the findings I made in consequence.
[11] There is one challenge that was applicable to all. Each of the four witnesses had an opportunity to review the surveillance video images that captured much (but not all) of the altercation. This has inevitably tainted their memories to some degree. It has been said that there are thousands of New Yorkers who now firmly believe that they were eye witnesses to the 9-11 attacks on the World Trade Centre so powerful was the impact of repeated viewings of the televised images of that incident. Whether that is true or not, there can be no doubt that the repeated viewing of video images of an incident will have an impact on the memory of witnesses to that incident. In the present case, each of the witnesses gave evidence to me of things that they almost certainly did not or could not see in real time, undoubtedly picking up on what they learned from viewing the video images. That is a danger that was ever-present, although mitigated to some degree in the case of GS and Sajeev who gave recorded statements before seeing those video images that they could be cross-examined upon.
[12] There were other challenges that were more unique to the individual witness.
[13] Sajeev was involved in a traumatic incident. He suffered a compound fracture to two major bones in his left leg. I have no doubt that the resulting pain was excruciating however much alcohol was coursing through his system at the time. And there was a lot of alcohol coursing through his system – a blood test conducted at the hospital about an hour after the incident produced a reading equivalent to 202 mg of alcohol in 100 ml of blood. I accept that he blacked out from the pain from time to time and that his memory of the specifics of the incident are largely a jumbled fog.
[14] He remembers leaving VK and going back to his garage only to return to the area after hearing GS cry out something about being pushed. He remembers jumping on to a car to avoid VK who was driving the Mercedes at him on one occasion. He remembers throwing a screwdriver that he had in his pocket back at the Mercedes on that occasion but didn’t know if he hit it. He remembers VK running over his leg on another occasion and he remembers hopping painfully on one leg to the hood of a nearby car to get away from VK who continued to threaten him with the car. Those are about the only statements he made that I was able to accept from him in relation to the incident itself and I am only able to place them in order with any confidence by reference to other evidence.
[15] I found Sajeev was occasionally insincere – whether deliberately so or as the result of the gradual congealing of exaggerated impressions of half-seen things nurtured over time by a deep sense of grievance against a man who undoubtedly harmed him, I cannot say. Shortly after the incident, Sajeev told police that VK threatened to shoot him but denied ever having seen a gun. By the time of trial, Sajeev was certain that he had in fact seen a gun. He did not. While I have no difficulty in finding that VK was at least as belligerent as Sajeev during the verbal portion of their altercation, I do not accept Sajeev’s selective exaggeration of equivocal “threats” taken out of context. I also found that Sajeev was inclined to understate his own intoxication and belligerency during the verbal portion of the altercation while overstating that of VK (I make no finding as to whether VK was intoxicated as Sajeev claimed and the issue is not directly relevant here at all events).
[16] GS also had a similar tendency to understate her own state of intoxication and belligerency during the verbal portion of the altercation and to overstate that of VK (she did not make any claim about VK being intoxicated). She was less than forthcoming on occasion, denying unflattering but utterly collateral facts such as an unrelated dispute with her ex-boyfriend that had earned her a police warning to stay away from the premises where the altercation took place. In common with others, she had some tendency to believe that she had “seen” things with her own eyes that in fact she had only seen on a monitor reviewing the video tape of the incident. However, GS did give an early statement to police about which she was cross-examined and there was little sign that she and Sajeev had coordinated their stories in any material way. Subject to the noted limitations, I found her to be generally credible as regards her account of the actual incident.
[17] I found Ms. Subangi Selvamenan (“Subangi”) to be a most unreliable witness. I did not by any means reject the totality of her evidence. She did report having seen Sajeev limping away even if she quite implausibly denied ever being aware of him having been hit at any time during the altercation. She occasionally dropped her guard enough to admit that Sajeev was not the only one doing the shouting, implying (what was undoubtedly true) that VK gave as good as he got in the verbal abuse department at least. She also reported hearing Sajeev say to VK “no please don’t” , “no, no, no” and “what are you doing” during the incident, once again adding some confirmation to the obvious conclusion that she and VK were both perfectly well aware of the fact that a collision had occurred and that Sajeev had been seriously injured as a result (once again, despite her utterly unbelievable denial of this fact).
[18] Overall, I found that Subangi was ever-conscious of a need to closely conform her evidence to VK’s story, a story that she imperfectly understood while also not departing from the statement she had given a few days after the incident. Her story of their actions preceding the incident – a matter of no particular relevance to any of the charges – confirmed that of VK in its broad lines but was confused as to timing and overall confirmed my own view that VK was being utterly evasive on the subject. Despite the fact that Sajeev and VK were loudly arguing only a few steps away from where she was seated in a car with its window partly open, she could only remember the same one or two phrases that VK mentioned in his testimony and almost nothing else. She modified her account of Sajeev “running away” from the car to “fast limping” away and then placed him sitting at opposite ends of the same car on different occasions. I formed the clear view that her confusion on this was not the result of trying to clear up her actual memory so much as trying to remember a rehearsed script. Her evidence was to be approached with the greatest of caution.
[19] Similar comments apply to VK whose testimony was self-serving and, on the whole, quite implausible.
[20] As I mentioned at the outset, I was hampered in this case by having four witnesses prepared to be insincere at times. Insincerity is never a desirable feature in a witness. At the very least I came to have a sense of where and why Sajeev and GS were being insincere and to discount their testimony appropriately. They were both subject to having their testimony compared to prior statements made shortly after the incident in cross-examination, including statements made before they had seen the video evidence. That placed a natural limit on their flights of fancy. I was pretty comfortably able to sort the reliable from the exaggerated in their cases. I was far more selective and cautious when it came to the evidence of Subangi and VK where the dangerous signs of rehearsal appeared quite obvious to me.
(b) Preface to the altercation
[21] The altercation occurred in the parking area in front of “A-1 Fast Lube” located at 777 Warden Avenue. Until May 2018, VK, Sajeev and GS all worked together in that business, a business owned by Sajeev’s brother-in-law. By all accounts they appear to have gotten along fairly well together. They socialized together to some degree on a regular basis.
[22] Subangi was a regular customer of A-1 Fast Lube. Her cousins were friends with VK and she came to know and become friends with VK by that connection about seven years before the incident in question. She saw VK from time to time and also came to A-1 Fast Lube several times per year to have maintenance on family cars performed. Although she knew VK, she had not noticed or come to know Sajeev in the course of her regular visits to A-1 Fast Lube. I accept her description of her relatively slight prior connection with Sajeev and GS since the latter two both saw her in the passenger seat of the white Mercedes that night and neither of them appear to have recognized her.
[23] In May 2018, Sajeev and GS left A1-Fast Lube to open their own business next door at 773 Warden Avenue. While there is some dispute as to how much friction arose between VK on the one hand and GS and Sajeev on the other as a result of this new venture, there can be no doubt that this event caused a change in their relationship. From being on friendly terms with Sajeev beforehand and socializing occasionally, VK says that he never communicated with Sajeev at all from the time the latter opened his new business. Sajeev related a couple of minor incidents of communication between the two that indicated an apparent grudge held by VK related to Sajeev’s departure, incidents that VK denies occurred. Whatever the degree of chill that developed in the relationship between Sajeev and VK after Sajeev left A-1 Fast Lube, nothing can be pointed to as presaging the degree of conflict that erupted without warning on October 6, 2018.
[24] It is useful at this point to provide a short description of the two properties – 773 and 777 Warden Avenue. They each have a multi-unit, low-rise commercial/industrial building on them of the sort typical in the area, each with a number of garages located in them. The two buildings are separated by a chain link fence about four feet high. A-1 Fast Lube occupies one of three or four units in its building at 777 Warden Avenue at the east end of the building. The side door of 773 Warden directly faces the front door of A-1 Fast Lube, the two being separated by their respective driveways and the parking area in front of A-1 Fast Lube. The driveway at 777 Warden proceeds from the front of A-1 Fast Lube west to Warden Avenue but it also continues east and loops around the building eventually re-joining the main driveway and emptying on to Warden Avenue. From the photographs of the scene in evidence, I would estimate the distance between the front door of A-1 Fast Lube to the side door of Sajeev’s garage at about twenty yards estimating by car lengths (8-10). No more precise estimate is needed.
[25] October 5, 2018 was a Friday. Sajeev and GS had an automobile repair underway in their garage that they were particularly anxious to finish to satisfy an insurance company customer. They stayed late at work to do this, with Sajeev downing tools somewhere between 9:00 and 10:00 p.m. Sajeev had some friends scheduled to come over that evening and they intended to get together in the garage and play a board game they were fond of.
[26] Four friends arrived. The first of them arrived near 6:00 p.m. with three others arriving about two hours later. The friends did not arrive empty handed. They brought some beer and a bottle of liquor. The group began to drink and socialize.
[27] I shall not repeat what I have already noted about Sajeev’s alcohol consumption or his statements about that subject. He was drunk by the time of the incident at about 12:30 a.m. although I shall make no comment about how much his consumption “showed”.
[28] GS said that she stopped drinking after only two or three beers and left the others to take a nap at around 9:30 p.m., waking only upon hearing a commotion outside immediately prior to the altercation. GS was still sufficiently under the effects of alcohol at 2:00 a.m. when she gave a statement to police after the incident that the police constable who interviewed her at that time saw fit to note that she too had been drinking. There is no evidence as to her degree of intoxication at that time, but this agreed fact at least establishes that some effects of consumption were still noticeable at that hour. It seems unlikely that such an observation could have been made four hours after she consumed only two or three beers. I find that she was intoxicated to some extent at the time of the incident, but I cannot find that it was to a particularly excessive degree.
[29] At approximately 12:16 p.m. the Mercedes Benz sedan driven by VK was observed by the 777 Warden Avenue surveillance camera 14 entering the parking area of A-1 Fast Lube.
[30] VK’s account of his evening to this point was as follows. He owned a white Volvo sedan. Three or four days previous, his Volvo had been in an accident while being driven by a friend named “Sean” and he had been driving a borrowed Mercedes ever since while his Volvo was parked at A-1 Fast Lube awaiting repair. VK said that he had been trying for several days to arrange a time for Sean to come to the garage and inspect the damage and make arrangements to repair it and this night was the soonest he had been able to arrange to get together with Sean for this purpose.
[31] It seems that business was to be combined with pleasure to a degree. After picking up Sean – who lived a short ten minute drive away from the garage – VK drove 30-45 minutes in the opposite direction to Stouffville to pick up his friend Subangi (who did not know Sean) before making the return trip to Scarborough all to “grab a bite” from what appears to have been a fast food or take-out outlet from Subangi’s description of it.
[32] I shall not dive deeper into the description given by Subangi and VK of their activities that night and the conflicts in their time estimates. As with the genesis of the dispute between VK and Sajeev and GS, the activities of VK and his friends prior to arriving on the scene are of only peripheral importance. I record here only that I found the explanation of both Subangi and VK regarding their movements that night prior to arriving at 777 Warden Avenue to be implausible. In VK’s case, I found that he was being particularly evasive as regards the identity of “Sean”. There were enough other reasons to be concerned with the credibility of these two witnesses – and indeed all four witnesses – that there is no need to dwell further on this aspect of their testimony. For present purposes, it is sufficient to note that the three of them – VK, Subangi and Sean – arrived at 777 Warden and parked beside VK’s damaged Volvo shortly after 12:15 a.m. on October 6, 2018.
[33] Leaving Subangi in the front passenger seat, VK and Sean left the car to begin their inspection of the damage to the Volvo. Subangi estimated that the two inspected the car for perhaps ten minutes before the altercation began. She recalled that they had the time, for example, to lift the hood and inspect the engine area before Sajeev arrived.
[34] According to Sajeev, things began when he stepped outside the side door of his shop to have a smoke shortly after midnight, leaving his friends inside. He could see two men across the way but did not initially recognize VK. VK then called him over and began shouting at him from a distance for reasons he could not at first understand. Sajeev decided to go over the fence to talk to VK and pursue the discussion. He described VK as being somewhat abusive, asking if Sajeev thought he was a “big guy” and why he had opened the shop. There was loud swearing in Tamil. In the course of the discussion, VK said that he would give Sajeev “a shot” making a pointing gesture with his hand. Sajeev understood him to mean that he would shoot him with a gun. He did not see a gun at this stage at least. He suggested that he also noticed that VK had been drinking, an observation that he had not made in earlier statements. After a time, Sajeev said that he decided on his own to go back to his garage.
[35] I make no finding either way on the question of whether VK was intoxicated at this time. Nothing alcohol-related is a necessary element to any offences with which he is charged. I shall not repeat the comments made by me earlier with respect to Sajeev’s allegation that he saw a gun at some point- VK is not charged with any firearms-related matters in any case.
[36] GS had been sleeping in the office area of 773 Warden. She said that she heard one of the friends who had come over that evening calling loudly for Sajeev. The commotion woke her up and she went outside to investigate. By that time, Sajeev was already on the other side of the fence near VK and engaged with him at some volume. She could hear shouting and swear words being exchanged in Tamil but could make out little more than this. She decided to jump the fence to join Sajeev and VK and find out why they were using this kind of tone. GS said that she heard a lot of swearing in Tamil from both and told Sajeev to go back to the garage and that he and VK could resume their discussion in the morning. Sajeev complied with her direction and left.
[37] After Sajeev left, GS said that she stayed to speak to VK. She told him that he was a backstabber – the reason why she had this opinion was neither relevant nor (thankfully) explored. VK told her that he was “going to give [her] a shot”, a phrase she took to mean a beating or a punch. He looked angry to her. She did not see him with a gun at any time that night nor did he mention one to her. She said that he pushed her twice while getting into his car although she also conceded that she was standing in front of the door and blocking his way. After the first push, she said that she started screaming “why are you pushing me” and “stop pushing”. He then pushed her again and got into the car.
[38] VK told a very different story. He said that he was inspecting the damage to his Volvo with Sean and did not notice Sajeev at all at first. He noticed Sajeev at the point where he was already jumping over the fence and approaching him. He described Sajeev as approaching “aggressively” and being obviously drunk. He said that Sajeev “disrespected” him but agreed that Sajeev did not threaten him in any way. VK told Sean to get back in the car and said that he then tried to tell Sajeev that he was drunk, he had his number and they could talk in the morning. As Sajeev was leaving, he noticed GS jumping the fence and walking towards them. She seemed to him to want to pick up where Sajeev had left off. As he put it, he had just seen one headache off and here was another coming. He said that he told GS to leave five or six times but she insisted on standing where she was, blocking the driver’s side car door. On VK’s telling, he was able to edge by her and open the door of the car to get inside, although he allowed that the door “might” have contacted GS as he opened it.
[39] Subangi told a story very similar to VK. She saw a man she did not then recognize approaching from beyond the fence. She described Sajeev’s approach as “aggressive” and said he looked angry. As he approached, she heard him call out “Yo VK” quite loudly. A couple of minutes later she saw a female approach from the same direction. She also noted some other people who were still beyond the fence. The female approached walking unsteadily. She said that Sajeev left after GS arrived. GS appeared to Subangi to be in VK’s face saying “I need to talk to you” and blocking VK’s path when he was trying to return to the car. She heard her say “what are you doing” when VK opened the car door and “she kind of got shoved out of the way” when VK got into the car.
[40] There is little point in my attempting to make any definitive determination of who said what to whom during this preliminary phase of the altercation. Did GS tell Sajeev to go back or was it VK? Nothing turns on the answer. It may have been both. Sajeev was clearly drunk and the advice would be good advice regardless of who gave it – they may both have done so. Did VK shove GS once or twice? Did he shove her with his hands or with the car door? The answer to that burning controversy will have to wait until the novel is written – it has no bearing on this case.
[41] The bottom line is that a verbal altercation did occur. Regardless of who “started it”, all three (Sajeev, VK and GS) participated in it. However, this phase of it at least ended with Sajeev having returned safely to his side of the fence and VK having succeeded in getting back into his car leaving GS standing by herself beside the car. Things might have ended there for the evening. Unfortunately, they did not. Having heard GS utter a cry of distress, Sajeev climbed the fence separating the two properties and returned to the scene. The point that he did so is discussed below.
[42] One thing all parties to the altercation agreed upon is that VK had no idea that Sajeev or GS would be in their shop at 773 after midnight on October 5-6, 2018 and neither Sajeev nor GS knew that VK would be coming to A-1 Fast Lube at that time either. This was not a planned altercation, but an accidental one.
(c) Events after VK returned behind the wheel of the Mercedes
(i) Video surveillance and photograph evidence
[43] None of the foregoing events – apart from the initial arrival of the Mercedes sedan at 12:15 a.m. – is captured on surveillance video. The following events were captured from a surveillance camera at the west end of the building at 777 Warden Avenue facing east. The premises of A-1 Fast Lube are located at the far end of the same building. The camera is located perhaps fifteen feet above ground and ten to fifteen yards away from where the incident occurred (roughly ten average parking spaces distant).
[44] I shall describe what is captured on the surveillance video – soundless and objective as far as it goes. I am quite aware of the limitations of this sort of evidence. Allowances must be made for the distance, the fixed perspective, the night lighting conditions, the image quality and the fact that real life does not occur in a frame-by-frame manner even if film can be viewed in that fashion. However, what is recorded is not subject to the filtering that strong emotions, trauma, the fog of alcohol, the power of suggestion or the passage of time can bring to human recollections of the same events. In a criminal case, matters of intent are often critical. Intent is in part a product of human perceptions of events, perceptions that are gleaned in real time and not in freeze-frame slow motion. I am acutely aware of all of these advantages and limitations as I examine the video evidence and the testimony of the four eye witnesses whose actions are, in part, depicted on the recorded images.
[45] The recorded images have a time-stamp on them. There is no evidence as to how accurate the time recorded is. From all of the evidence, it does not appear that the clock on the camera was off by more than a minute or two at most and nothing turns on that. I shall use the recorded times with that minor caveat. It should also be noted that the recorded clips are not continuous. It appears that the camera was motion activated. The bulk of the activities described below were recorded in a single, continuous clip (from 12:34:15 until 12:35:03 a.m.) identified as clip “805”. Thereafter, the clips are discontinuous for a further period of almost two minutes until the final departure of VK’s white Mercedes from view at 12:36:36 a.m. although the gaps are usually of only two or three seconds in between segments (with the exception of a 16 second gap after the Mercedes left the area and then returned).
[46] The immediate scene around the area where the altercation occurred was photographed by police photographers shortly after the incident. Police were on the scene and secured the area within a few minutes of the incident – the only automobile that left the immediate area prior to that time was the white Mercedes sedan driven by VK.
[47] Exhibit 4-H captures the area looking from the driveway area in front of A-1 Fast Lube (at 777 Warden) southwards across the parking lot towards 773 Warden Avenue where Sajeev’s garage was located. The fence separating the two properties is clearly visible. Cars are parked nose-to-nose (or nose-to-tail) tail four deep between the fence and the driveway area on the 777 Warden side of the fence (there is no parking lot on the 773 side of the fence in that area). The three rows of cars closest to the fence appear to have been almost fully occupied, at least in the area in front of A-1 Fast Lube. The Volvo belonging to VK was located in the third row with a vacant spot beside it to the east. The fourth parking row – the one giving on directly to the driveway passing in front of A1-Fast Lube – was only sparsely occupied. Immediately in front of the Volvo (and parked “nose-to-nose”) was a black BMW in the fourth row. There were two vacant spots to the east of the black BMW and a large number of vacant spots to the west (the fourth row being largely vacant to the west of the BMW). The Volvo and the black BMW were slightly to the west of the door to A-1 Fast Lube near the end of the building farthest from the camera.
[48] The first video clip (labelled “805”) has been broken down by me into eight segments for the purpose of analysis with titles I have devised to describe what takes place in each. Each of them is quite brief – some only a few seconds long. In doing this, I am perfectly aware of the fact that these events happened in real time and not in frame-by-frame slow motion. None of the witnesses would have been capable of breaking down what they witnessed from their own perspective in anything like the level of detail that I shall relate. As I do so, I am mindful that I must not lose sight of the forest for the trees. The objective evidence of what exactly happened is of course important, but the way in which those events were actually perceived by the participants, in particular by the accused whose intentions throughout are of critical importance, cannot be lost sight of as this is what they were reacting to. An appreciation of that latter question requires a view of the events as a whole and in real time as they were experienced by him, not in a frame by frame microscope.
(ii) The “first lunge” (12:34:15 to 12:34:20 a.m.)
[49] Video clip “805” begins at 12:34:15 a.m. The white Mercedes is already backing out from the parking area into the driveway from the far (east) side of the black BMW at a normal speed. It backs up for one further second but does not fully emerge into the driveway from the parking area. The back-up lights are then extinguished indicating that the car has shifted out of reverse. The car then accelerates quickly forward in a straight line before coming to a full stop part-way into the empty parking space beside the Volvo.
[50] I would emphasize here the speed of the Mercedes. It accelerated forward at a speed I would describe as a lunge, far faster than the speed at which it had just finished reversing. There was at least one pedestrian visible in the immediate area as it did this – GS. As the car begins to move forward, GS is seen darting into the vacant parking space parallel to the BMW and two spaces beyond. The car passes beside her without apparent reaction.
[51] I shall refer to this sequence as the “first lunge”. It ends at 12:34:20 a.m.
[52] I did not find VK’s narrative of this portion of the video to be very convincing or satisfying. I very quickly formed the view that I could believe little of what he told me. He said that GS was following him as he backed out, so he pulled forward. He said that he was “surprised at what was going on” at that point and was “not thinking”. That explanation makes no sense and I attach no weight to it at all. If, as he said, he was simply trying to leave the area, GS was in no way obstructing his departure. At the point where his car stopped reversing (12:34:16), GS is visible in front of the car and possibly somewhat to the side. If she was “following” him, she was doing so in a leisurely way, making no effort to keep up with his retreating car. She was not an obstacle to his departure in any way. Further, he did not simply “pull forward” after coming to a stop as he said: he accelerated forward in a sudden and abrupt manner and proceeded well past the point where GS was standing at the beginning of the clip. After coming to a stop from this forward lunge, GS is visible at the rear of the Mercedes. She then turned to retrace her steps and follow the car forward to where it had come to a stop partway into the next parking space.
[53] Something happened that caused him to change his mind about backing away and to dart quickly forward instead. That something had nothing to do with GS. I find that something was in fact VK spotting a returning Sajeev who was either already in or entering the area just vacated by the retreating Mercedes.
[54] To this point according to VK, Sajeev was not in the picture at all. VK said that he only remarked upon Sajeev after pulling forward as described and even then Sajeev was still back at the fence. Further, he said that he could see that Sajeev had something “sharp” in his hand – possibly a knife or a screwdriver. He said it was the sight of Sajeev running towards him with something in his hand that caused him to panic leading to the manoeuvre described in the next segment.
[55] Subangi did not have a clear memory of each movement of the car – I should have been surprised if she had. She did not remember the partial reversal and lunge forward I have described here and could shed no light upon it. On her recollection, Sajeev re-emerged on the fence and was climbing down over the cars abutting it before VK put the car in motion to back out of the parking spot, but she said that he did so in the manner described in the next segment. She also appeared to recall only a single instance of VK backing out of the parking space instead of the two that were recorded by the video camera. Here, among other places, I found Subangi was trying to be more faithful to a memorized story than her own memory.
[56] Sajeev’s memory of these events was far from clear and he has certainly telescoped his memory of some of these events to a degree. After hearing GS call out about being pushed, he returned to the scene, jumping the fence. He was not carrying anything in his hand although his work clothes always had a marker, a screwdriver, and a light in the pockets. He said that he returned to the area and asked VK why he was pushing a girl and that VK then threatened to “give him a shot”, a threat that was underscored when VK went to his car and produced a gun. At this point, he said VK got into the car and drove the car towards him. He jumped on to a car to avoid being hit. He did not know where GS was relative to him while this happened.
[57] I have already mentioned that I attach no credence to Sajeev’s claims to have been actually threatened with a gun. Sajeev also said that he returned before VK got into the car. It seems unlikely that this is the case. VK getting into the car was the trigger for GS crying out in the manner that caused Sajeev to return. Further, the change in the manner in which VK was driving the car in this first segment of the clip was marked: he went from backing out in a slow and careful manner to lurching forward in the parking area at considerable speed (having regard to the small distance covered). As I noted, something happened and it seems most logical for that something to be VK noticing the return of Sajeev. Subangi likely did see him climbing the fence before VK put the car in motion just as she said, even if she entirely forgot that VK backed out of the parking area twice and not once.
[58] Sajeev and GS said that the first lunge described in this segment resulted in GS having to duck to the side to avoid the Mercedes as it accelerated forward while Sajeev had to jump on to a neighbouring car to protect himself. This evidence is consistent with the video evidence and with common senses while VK’s evidence is as fantastic as was Sajeev’s evidence of seeing a gun.
[59] I find that VK spotted Sajeev heading towards him while backing his car away. As a result of seeing him, VK stopped reversing at a normal speed. He put the Mercedes into drive, directing the car in a forward lunge aimed at where Sajeev was standing. In response, Sajeev leaped on to a neighbouring car to avoid being hit and threw a screwdriver that he carried in his pocket at the car. It is highly likely that seeing his borrowed luxury sedan hit on the windshield and cracked by a screwdriver thrown by Sajeev did little to improve VK’s mood and partially explains the degree of aggression the subsequent manoeuvres executed by him with the car demonstrate.
(iii) The wrong-way reversal (12:34:20 to 12:34:25 a.m.)
[60] After coming to a full stop beside the Volvo, the Mercedes then shifted into reverse and backed into the driveway area again. This it did considerably faster than it had the first time. This confirms my view that VK’s state of agitation had changed.
[61] This time the car proceeded all the way out of the parking area and fully into the driveway. It did not back out in such a fashion as to permit it to exit the area by the shortest route (being the way it arrived). To do that, it would have had to back out to the left in order to face the video camera and drive off to the right (i.e. west). Instead, the Mercedes backed out towards the right, facing away from the exit and towards a closed gate leading to another property. The brake lights come on and off at 12:34:24.
[62] If, as he claimed, VK was looking only to leave the area at this time, this manoeuvre is difficult to reconcile with that intention. His claim to having been rattled by the sight of Sajeev into making a wrong turn is somewhat plausible. It should be recalled however that VK had been working at that location for many years, I infer from this that he was very well familiar with the immediate area and could find his way out in his sleep. The Crown’s suggestion that VK made a “wrong turn” in order to line the car up to charge at Sajeev is also plausible. I reach no conclusion on that point beyond letting subsequent events speak for themselves.
[63] As the car reverses and applies its brakes, GS and Sajeev can both be seen emerging from the parking area and converging on the Mercedes as it comes to a full stop near the far edge of the driveway area opposite the parking area.
[64] While I have cast some cold water on VK’s suggestion that he “panicked”, I have little faith in the explanation of either GS or Sajeev about why they emerged from the parking area despite claiming to be in fear for their lives either. Safety for both of them lay in the completely opposite direction. Their actions suggest more naturally that they were both rattled by what had just happened and more than a little angry about it as well. It also seems more likely that neither of them yet thought that VK was doing more than being recklessly threatening. Fear for their lives was not the uppermost thought in their minds at all events.
(iv) The “second lunge”: 12:34:25 to 12:34:28 a.m.
[65] After coming to a full stop, the Mercedes went quickly forward again with barely a pause to switch gears. As the Mercedes began to move forward, GS and Sajeev were both still walking towards it fairly close together. Both were clearly illuminated by its headlights as it began to move forward, indicating that they were directly in its path as it began its forward motion and they were only about half a car-length away. Both of them reacted to the change in direction of the car immediately. GS scattered in one direction (to her right – i.e. east) and Sajeev the other (to his left, i.e. west) to avoid being hit. While still a few feet away from the onrushing vehicle, Sajeev can be seen to raise his right arm as if to fend off the car. His extended arm appears to have been struck by the car – it is unclear whether any other part of him was hit as the car was coming to a stop at about the time contact appears to have been made. I infer that some degree of contact was made at this point because Sajeev can be seen to stagger backwards half a step as if he had just received a shove. If contact was made, it appears to have been relatively slight or glancing.
[66] Sajeev ended up on the passenger side of the vehicle while GS was on the driver side.
[67] At the end of this segment, the reverse lights can be seen to come on at the rear of the Mercedes. Sajeev is standing on his left leg apparently in the process of attempting to kick the Mercedes with his right leg. He is still standing where he was when the car stopped – either in contact with the car or inches from its front passenger door with the front wheel of the car a foot or so to his right.
[68] I was unable to accept the accounts of any of the eye-witnesses about this segment. Sajeev steadfastly maintained that the image of him lifting his right foot in the air and appearing to kick the vehicle was in reality a reaction to something having been thrown from the car window by Subangi who was nearest to him. He said he did not know what was thrown but bizarrely suggested it may have been money or a shoe. I find he was angry and instinctively reacted to that anger and frustration by attempting to kick the car. GS claimed to have seen what was happening to Sajeev on the far side of the car but had to admit that in reality all she knew about this was what she had seen in the video. VK claimed to have seen Sajeev kick the car twice even though Sajeev was also on the opposite side of the car from him and the kick that the video shows being delivered was in the lower front panel region – certainly out of sight of the driver. Subangi claimed to have seen Sajeev’s leg get stuck “near the blind spot” as the car reversed and he was kicking at it. She could not possibly have seen such a thing from where she was sitting without craning her head to look, something I find it very unlikely she did. Subangi and VK also both said that Sajeev “stabbed” the window with something sharp at this point. The video evidence does not appear to bear this out. Sajeev’s left hand is visible throughout and does not go near the centre of the windshield where the damage was visible in later photographs. If his right hand did so – and the video evidence is inconclusive – it could only have done so while the car was still moving forward into Sajeev. No “stabbing” motion is visible. Subangi described Sajeev as appearing to her to be “attacking” the car whereas it was the car that was clearly attacking him at this point in the video clip. Sajeev was several feet away from the front of the car before the car started to move forward and it was only Sajeev’s evasive action that put him on the passenger side of the vehicle beside her. On viewing the video, she agreed that Sajeev appeared to be trying to get away from the car as it came towards him. Whether any or all of these were fabricating their evidence from whole cloth or were simply tainted by repeated viewings of the video, none of them were able to give convincing evidence of what happened at this stage.
[69] I find that Sajeev kicked out at the car with his right foot at the end of this segment after being struck a slight glancing blow by the advancing car. Whether that blow fell only on his arm or some other part of his body cannot be stated with confidence based on the video evidence and the oral evidence is not sufficiently reliable to enable further conclusions to be drawn.
(v) The “violent reversal”: 12:34:28 to 12:34:30
[70] This brief segment begins with Sajeev apparently still in the process of kicking the vehicle with his right leg while standing on his left leg. He would have been somewhat off balance as a result. The Mercedes had come to a full stop one second earlier and the reverse lights are now on as the car begins to move backwards.
[71] The Mercedes proceeded to execute a sudden and swift hard left turn in reverse in a whipsaw motion while accelerating rapidly. Sajeev was either in physical contact with the Mercedes as it began to move backwards or was inches away. The hard left turn resulted in the front of the car swinging rapidly to the right, knocking Sajeev to the ground and carrying him several feet backwards towards the wall with the momentum of the blow.
[72] At the end of the segment, GS is walking in Sajeev’s direction and beginning to bend over as if to help him to his feet – it cannot be seen if she actually reached him. The Mercedes having braked hard to avoid colliding with the building behind bounced slightly and had both Sajeev and GS illuminated in its headlights and was directly facing them.
[73] The defence suggests that this is the point that Sajeev was injured. It is certainly possible that the injury to Sajeev’s left tibia and fibula occurred in the course of this manoeuvre. The video evidence is consistent with Sajeev falling at a point where his foot may have been pinned under the wheel.
[74] I do not exclude the possibility that Sajeev was injured at this point. He certainly stumbled visibly and was tilting backwards on an awkward angle at the point where the front passenger wheel passed over (or beside) where his left foot stood, his right leg not yet having been able to get beneath him. As well, Sajeev did not get to his feet fully in this clip or in the one following which is the last time he can be seen – at least by more than a possibly fleeting glance – in the rest of the video evidence.
[75] While it is possible that the injury occurred in this segment, I think it more likely that it occurred in the next. I reach this conclusion for three reasons. First, GS had a direct and unobstructed view of Sajeev whom she was approaching with a view to helping him up. GS said that she saw him get hit and she could not have seen him hit while he was on the opposite side of the car from her. Second, in the time she was moving to help him get up, she saw no sign that he had already been severely injured. Finally, my review of the video evidence in the next segment appears to show Sajeev getting partway up and running at least two strides before he disappears from view, apparently putting weight on a left leg that does not yet appear to have been broken. As shall be discussed further below, there is no difference to be made in the analysis of VK’s culpability that can be drawn if it were determined that the injury happened definitely in this rather than the next segment.
[76] While I have concluded that it is likely – even quite likely – that Sajeev was hit and injured in the following segment, the only certain conclusion I can reach is that he was hit either in this segment or in the next one in a manner that can account for the two severe fractures he sustained in one or the other of these two segments. This segment and the one following are the only instances where, in my view, this appears to have been possible. For the reasons I shall expand upon, it makes no difference which.
(vi) The “third lunge”: 12:34:30 to 12:34:36
[77] At the beginning of this next segment, Sajeev is on the ground recovering from his stumble. He immediately moves to begin to try to get back to his feet while the Mercedes is beginning to surge forward again. Sajeev is directly in the path of the Mercedes as it begins to advance and if GS is not already in the path of the Mercedes, she is walking into it towards Sajeev as the Mercedes starts in motion.
[78] The Mercedes starts immediately after coming to a full stop in the previous segment, accelerating swiftly in a manner resembling a sudden lunge. There is no sign of hesitation or delay either in starting forward or in continuing forward. There is no sign of any sudden action being taken to avoid a collision, for example. The arc the car describes as it moves forward is a rather rounded “L” shape, heading almost all the way across the driveway to the level of the black BMW parked in the fourth row before straightening out and heading to the right - directly west towards the exit. In the last second of this segment, the brake lights come on as the Mercedes comes to a full stop a car length or so ahead (or west) of the black BMW.
[79] I described the car’s trajectory as a “rounded L” simply to note that it did not by any means take the shortest path needed to “correct” the “wrong” turn to the rear it had earlier taken. It overshot the middle of the driveway by a considerable margin, coming close to the front end of the BMW opposite before turning fairly sharply to the right instead of heading directly for the exit closer to the middle of the driveway.
[80] As the Mercedes begins its forward progress, Sajeev attempts to get up and run away and to his left out of the path of the car. He does not succeed in getting fully to his feet, but he does appear to take at least two running strides in a hunched down position before the turning car obscures him from the camera’s view.
[81] At the point where Sajeev disappears from view, he has advanced about half a car-length from the point where he started. The bulk of his body is clearly directly illuminated by the left front headlamp of the Mercedes from a very, very short distance. He appears to be in the process of stumbling – whether from contact having already been made by the car or for some other reason cannot be said with certainty given the limitations of image quality, distance and angle.
[82] GS disappeared from view behind the car very close to the point where Sajeev initially stumbled – a portion of her sweater and arm are clearly illuminated by the left front headlamp an instant before she is obscured from the camera’s view by the advancing car. This was about two or three strides distant from where Sajeev disappeared from view.
[83] Sajeev’s evidence of these events was particularly confused and understandably so. Sajeev is simply unable to say precisely where and when in the sequence his injuries occurred with confidence. While there is no doubt that VK struck him with the car and that he suffered the grievous injuries he suffered in consequence – Sajeev can shed no useful light on precisely when this occurred by reference to the video evidence.
[84] VK said that he saw Sajeev get up and run across the driveway to the side of the BMW at this point. That evidence is utterly unbelievable. On VK’s telling, Sajeev ran safely away from him at this point, displaying no evident signs of injury, and yet was never near his car again because he ran to the far end of the parked BMW where he sat and abused him thereafter without displaying any signs of pain all the while bleeding on to the hood and grill of the BMW. VK’s evidence on this point is fabrication at worst or fantasy and wishful thinking at best. It is not, however, factual.
[85] I do accept Subangi’s evidence in part. I accept that she saw Sajeev running and that she blurted out something to VK in alarm along the lines of “Oh my God!” or “He’s right there”. I reject the balance of Subangi’s evidence about Sajeev’s movements along with that of VK as being patently untrue.
[86] Her claim that VK actually stopped the car for a “split second” to allow Sajeev to get out of the way of the car after her warning is utterly false. Needless to say, there is no trace of any such pause reflected in the video evidence. I do not accept that she saw Sajeev get out of the way and keep running the length of the BMW – I doubt that an Olympic athlete could have outrun the Mercedes chasing him given the distance and small initial separation between them. This miraculous feat was rendered still less plausible by Subangi’s admission that Sajeev was not running so much as “fast limping” at this point.
[87] Neither Subangi nor VK saw Sajeev running or “fast limping” across the driveway to the far end of the BMW while he was directly in front of a rushing Mercedes because Sajeev was already beginning to stumble as he disappeared from the view of the camera well in front of the BMW and just as the Mercedes began to turn to avoid colliding with it. Sajeev did not make his way towards the hood of the BMW for several seconds more and he did so only by hopping on one leg and supporting himself with his hand on the side of the BMW. VK knew full well that Sajeev had been both hit and seriously injured before leaving the premises less than a minute later.
[88] GS was on the same side of the Mercedes as Sajeev at this point. She was in a position to see a collision occur between Sajeev and the Mercedes and I accept her evidence that she did so. I cannot exclude an injury to his leg (or foot) of some kind having occurred in the previous segment but it is clear that a collision did occur in this segment and it is more probable that the compound fracture that Sajeev suffered happened at this time. To every appearance, the Mercedes was running Sajeev down and struck him in mid-stride. The point of impact cannot be seen by reason of the camera angle, but the inevitability of it can. Whether it was the wheel or the car itself that struck him cannot be determined from the video images. Sajeev is not visible in any of the subsequent video images with the exception of a brief glimpse of what may have been him that I shall comment on in the next segment.
[89] No forensic evidence of a collision was found on the Mercedes when it was finally examined by police. No blood stains were found. However the car was not turned in for more than two weeks after the incident and the lack of any visible forensic evidence after such a delay adds little of evidentiary value to the analysis.
[90] At the end of this segment, the Mercedes has come to a full stop a car length or more beyond (and to the west of) the black BMW. GS has moved swiftly back towards the parking area and in the general direction of where Sajeev was last visible to the camera while the car is advancing and beginning to make its right turn to face westbound. She has just disappeared from view behind the Mercedes at the end of this segment.
(vii) The “third reversal”: 12:34:36 to 12:34:40
[91] At the beginning of this segment, the Mercedes is facing directly down the driveway due west towards the Warden Avenue exit from which it had originally come. It has come to a full stop. Sajeev is not visible to the camera nor is GS. The Mercedes shifts into reverse and begins immediately to back up eastbound down the driveway, its front swerving right and left slightly as it does so, passing a few feet in front of the parked black BMW in the fourth row of parked cars in front of A-1 Fast Lube.
[92] GS passes out of the path of the reversing Mercedes almost as soon as it begins to move in reverse. She is seen moving towards the parked black BMW immediately beside the Mercedes, passing across the BMW and then moving down its far side (relative to her starting point), walking several feet backwards with her face towards the retreating Mercedes. At this point, she is demonstrating wariness if not outright fear of the Mercedes.
[93] The path the Mercedes is following took it directly over the last place Sajeev was seen before he was struck by the Mercedes in the preceding segment and directly over the place GS was seen standing as the car began moving backwards. They would both have been in the path of the Mercedes when it started to move.
[94] At the end of this segment, GS is hunching down beside the black BMW on its western side (facing Warden Avenue). Sajeev is not visible. The Mercedes has stopped backing up and its brake lights have gone out. It is facing directly west down the driveway towards the exit.
[95] Was Sajeev hit a second time while the Mercedes backed up on this occasion?
[96] The video evidence confirms that GS was behind the Mercedes when VK began backing-up. She would have been hit had she not moved out of the way. Unlike previous manouevres, he did not rapidly accelerate this time. GS had the time to get away. VK said that he could see that she was out of the way and walking up the driver side of the car. He also said that he was able to see Sajeev already seated on the hood of the black BMW near his own Volvo at this time, evidence that I have rejected.
[97] The fact of the matter is that Sajeev disappeared from the camera’s view at 12:34:32 according to the camera’s clock. He was never seen by the camera again. I find that his leg was certainly severely injured by this point whether from the violent reversal segment or the third lunge segment. His leg may have been further injured in the seconds that followed or he may have managed to crawl away before being struck. Only four seconds elapsed from the time Sajeev disappeared from view and the time the Mercedes began to reverse towards the place where he disappeared from view. In that time, a close frame-by-frame viewing of the evidence reveals fleeting images of GS passing to the back of the Mercedes and over to the side of the parked BMW beside it. No trace of a “limping” (per Subangi) or “running” (per VK) Sajeev is visible on the camera. There is no sign of movement visible between the Mercedes and the BMW beside it that is not accounted for by GS. GS gave emotional testimony about trying to help Sajeev but being forced to retreat to save her own life. That evidence could refer to the violent reversal or this third reversal even if GS seemed confident in identifying her memory of trying to help Sajeev with this segment.
[98] I do not find it necessary to resolve this question for this reason. I have identified two collisions in the prior two segments. Either of them is capable of accounting for Sajeev’s injuries even if I have found the later one the more likely source. Sajeev was injured and he was injured by the Mercedes driven by VK. Either Sajeev’s compound fractures had already been inflicted upon him or this injury was inflicted on him in this last close confrontation between himself and the Mercedes. There is no other possibility. If Sajeev managed to crawl out of the path of the approaching Mercedes as it backed towards him, then he had already received the compound fractures. If he had not yet received the injury that broke his leg, then he did not crawl away and the final injury was inflicted here.
[99] The evidence does not permit me to get to “beyond a reasonable doubt certainty” as to which of the three incidents caused the compound fracture although it does permit me to get to that level of certainty that it was one of them.
(viii) Crawling past the BMW: 12:34:40 to 12:34:48
[100] In this segment, the Mercedes one again moves forward. This time it moves at a more normal, slow speed. However, instead of pointing straight west towards Warden Avenue and the exit, it turns somewhat to the left, bringing its front end slightly into the parking space on the west side of the black BMW where GS was standing. As the Mercedes does this, GS who had been coming forward can be seen to quickly reverse and retreat in the opposite direction, towards the rear of the BMW and away from the advancing Mercedes. As this is happening, a brief glimpse of movement behind the Mercedes is visible at 12:34:43. It is possible that this was Sajeev crawling and then hopping towards the back of the black BMW. It is not necessary for me to make a finding in that regard.
(ix) Surveying the scene: 12:34:48 to 12:35:03
[101] In this segment, the Mercedes can be seen to reverse again, once again in a fairly abrupt fashion, coming to a stop for several seconds facing the parking space to the east of the black BMW, whereupon it crawls slowly forward before coming to a complete stop on the west side of the black BMW. The driver side window of the Mercedes would be directly facing GS at that point, GS then being at the far end of the BMW near the front end of the Volvo behind it. During this segment, GS’s movements appear furtive and clearly designed to steer clear of the Mercedes at first.
[102] At this point and in the previous segment, GS said that she heard Sajeev crying out in pain and asking her to call police and then an ambulance. Her movements towards the rear of the BMW (but its front end based on the way it was parked) are consistent with this being the case. In cross-examination, defence counsel sought to make a point of GS mentioning that she had a screen shot on her phone showing the time of her call to police at 12:36 or 12:37 a.m. I found the attempt to impeach her credibility to be without merit. Firstly, there is no evidence that the time clock on the surveillance camera was synchronized to the minute with whatever clock was used by her cell phone provider. Second, she clearly did not have the screen shot before her and was only reciting the time from memory. I fully accept that GS was phoning police when said she did during this or the preceding segment.
[103] Subangi admitted that she heard Sajeev saying “please don’t” , “no, no, no” and “what are you doing” to VK. She also said that VK and Sajeev were both yelling at each other.
(x) Remaining segments
[104] There is little in the remaining segments that is material to the questions I must decide. The Mercedes is depicted as leaving the area at 12:35:44 and then returning only a few seconds later at 12:35:56. It parked beside the Volvo for about twenty seconds, backed up and left the area. The first police car is seen to arrive at 12:43:58.
(d) Evidence of subsequent conduct
[105] There was some evidence of subsequent conduct of VK that the Crown suggested could be of some probative value. VK said that he did not go home that night or at all until he surrendered to police approximately two weeks later. He offered no explanation as to why he did not go home that night and he did not suggest that he had any information that police were looking for him that night. He also maintained throughout that he never knew that Sajeev had been injured during the incident itself.
[106] The fact that VK did not turn himself in for two weeks after he learned that police were looking to arrest him is of no particular relevance to anything. It does not suggest a guilty mind. His failure to return home that night could potentially have some relevance to his state of mind upon leaving the scene and in particular to contradict his claim not to have been aware of the injury to Sajeev that night, but the circumstance was not sufficiently explored in cross-examination to permit me to make any conclusions at all based upon it. In the end, I found this evidence to be of no value and disregarded it. The same applies to all of the speculative questioning of VK and Subangi regarding telephone calls or text messages to GS’s telephone made by someone later that night. None of those facts were proved properly and none were traced to either witness. I disregarded that evidence entirely as being of no value.
Issues to be decided
[107] I shall review each of the charges in the indictment in the following order (the time and place of each named offence being Toronto on or about the 6th of October, 2018):
a. Has the Crown proved the accused guilty of the crime of dangerous operation of a motor vehicle contrary to s. 249(1)(a) of the Criminal Code beyond a reasonable doubt?
b. Has the Crown proved the accused guilty of possessing a weapon, namely a motor vehicle, for the purpose of committing an offence contrary to s. 88(1) of the Criminal Code beyond a reasonable doubt?
c. Has the Crown proved the accused guilty of committing an aggravated assault upon Sajeev contrary to s. 268(2) of the Criminal Code beyond a reasonable doubt? and
d. Has the Crown proved the accused guilty of attempting to murder Sajeev contrary to s. 239(1) of the Criminal Code beyond a reasonable doubt?
Analysis and discussion
(a) Count Four: dangerous operation of a motor vehicle (s. 249(1)(a) Criminal Code)
[108] There is of no issue regarding the first aspect of the actus reus of this offence. VK was the operator of the motor vehicle at all material times. This is admitted in paragraph 1 of the Agreed Statement of Facts. The second aspect of the actus reus of this offence is the manner in which VK was driving the motor vehicle. The manner in which he was driving, viewed objectively, must be in a manner “dangerous to the public, having regard to the circumstances”. The circumstances include the nature, condition and use of the place the motor vehicle is operated.
[109] The Supreme Court of Canada in R. v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5 highlighted the importance of avoiding ex post facto reasoning. It is not the results of the driving that satisfies this condition – it is the manner of driving considered entirely apart from the results that actually obtained: Beatty, para. 46.
[110] Has the Crown proved beyond a reasonable doubt that the manner in which VK drove the Mercedes during the time was dangerous to the public having regard to all the circumstances? In my view the Crown has done so.
[111] The evidence clearly shows that the accused drove his motor vehicle in an enclosed area in the close presence of two pedestrians and in a manner that repeatedly placed one or both of them at risk of a serious collision to the point that repeated evasive action was required on their part. In the case of the first lunge, the second lunge, the violent reversal and the third lunge, VK caused the car to accelerate rapidly to a high rate of speed having regard to the circumstances (a confined area, the known presence of pedestrians in the vicinity). I shall not repeat here the observations and findings of fact made earlier. On five distinct occasions, the manoeuvres were undertaken where one or two pedestrians were known to be present in or very near the path on which he directed the motor vehicle. There is no basis to consider the possibility of accident in this case looking at each segment separately or cumulatively. The manner of driving was obviously deliberate, particularly in view of the repeated manner in which the vehicle was driven towards rather than away from the two pedestrians.
[112] Has the Crown proved beyond a reasonable doubt that the conditions requisite to the defence of self-defence are absent here? In my view it has.
[113] Section 34 of the Criminal Code codifies the law of self-defence. The three well-known elements of this defence are (i) that the accused must believe on reasonable grounds that force is being used or threatened against him or another person; (ii) that that actions taken in self-defence were for the purpose of defending himself against the threat; and (iii) that the actions taken in consequence were “reasonable in the circumstances”. The Court of Appeal in R. v. Khill, 2020 ONCA 151 described these three elements (at para. 42) as the trigger, the motive and the response.
[114] There is simply no air of reality to any of the three required elements. At all material times the accused and the two passengers in his charge were ensconced in a sturdy automobile surrounded by two tons of aluminum, steel and glass. There is no evidence that GS or Sajeev posed anything more than a minor annoyance to any of them at any time. When the “first lunge” was carried out, GS was simply walking beside and to the front of the car that was placidly backing out of the parking area into the driveway. There was nothing in the rearward path of this vehicle nor anything blocking his exit from the area. VK did not even allege any specific threat underlying this first threatening manoeuvre on his part.
[115] The suggestion that either pedestrian ever posed a threat to VK in the car is absurd. The only evidence of “threatening” behaviour was the allegation that Sajeev “stabbed” the vehicle during what I have described as the “second lunge”. I have rejected that evidence but more importantly any contact between Sajeev’s hand and the windshield of the vehicle that occurred on that occasion was clearly self-defence on his part: the car had lunged forward directly at him and he had to step aside and put his hands out to protect himself. A kick to the side panel of the car that followed this constitutes no material threat to any person and the actions taken thereafter allegedly to ward off the non-existent threat were grossly disproportionate at all events.
[116] The mens rea element of this offence was described by the Supreme Court in Beatty as requiring proof beyond a reasonable doubt that, having regard to the evidence of the accused’s actual state of mind and all of the evidence, the conduct of the accused “amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”: Beatty para. 43. Once again, I find that the Crown has discharged its onus.
[117] The mens rea standard described by the Supreme Court amounts to a modified objective test. The “marked departure” standard is an objective one, but it is measured having regard to the actual circumstances of the accused. The “marked departure” element is intended to exclude mere civil negligence and to recognize the somewhat automatic and reflexive nature of driving. Reflexive or automatic responses are not intended to be the basis of criminal liability.
[118] Dangerous driving cases often involve consideration of events that happened in a relative blink of an eye. This is not such a case. The accused drove the Mercedes sedan in a calculated and deliberate fashion over a period of forty-five seconds, repeatedly using the vehicle to take aim at and drive aggressively towards one or both of the pedestrians whom he knew to be around him. The deliberate nature of his driving – the sudden, swift and abrupt manoeuvres in particular – leaves no room for doubt as to the intentional nature of the actions taken. The pedestrians, and in particular Sajeev, were targeted over and over again. This conduct was self-evidently a marked departure from that of a reasonably prudent driver. It objectively placed the life and safety of both pedestrians in jeopardy and its intentional and repeated nature leaves no doubt that this was the intended purpose.
[119] I found the evidence of the accused that he was “confused” or “panicked” to be self-serving and of little value. Panic and confusion are not to be mistaken for rage and anger. VK’s conduct did not suggest confusion, panic or anything of the sort to me when viewing the video surveillance evidence as a whole or in segments. To the contrary, he drove aggressively and remorselessly, targeting the pedestrians time and time again. He then prowled back and forth, pointing his car now in the direction of where Sajeev had taken shelter, now in the direction of where GS had taken shelter before finally leaving the area.
[120] I have not sought to untangle the conflicting evidence of what led to the confrontation. VK’s culpability is not impacted by whether he felt provoked to anger, whether Sajeev or GS were supposed to be where they were, or whether they were drunk or verbally abusive. Verbal abuse alone does not justify an armed response and the manner in which VK drove this automobile on this occasion was in fact and in law an armed response. There was never any form of physical threat posed by Sajeev or GS, still less one that could have justified that potentially lethal level of response.
[121] I find that the Crown has proved VK guilty of the crime of dangerous driving as charged in Count Four of the indictment beyond a reasonable doubt. In so doing, the Crown has also proved beyond a reasonable doubt that the conditions required to establish self-defence were not present. There will be a conviction entered for Court Four of the indictment.
(b) Count Three: possession of a weapon (s. 88(1) Criminal Code)
[122] The essential elements of this offence required to be proved beyond a reasonable doubt are (i) that VK possessed a weapon at the relevant time and place; (ii) that he possessed the weapon for the purpose of committing an offence.
[123] The thing alleged to be a weapon in this case is the car driven by VK. He was in admitted control of the car as its driver at all material times. The evidence clearly establishes that his control of the car was deliberate and conscious and in no way the product of accident. A weapon is defined by s. 2 of the Criminal Code to be any thing used in causing death or injury to any person or for the purpose of threatening or intimidating any person. In the circumstances of this case, the evidence that the car was used as a weapon from the moment VK caused it to lunge forward one second into the video surveillance images until he drove the car away is overwhelming. Regardless of which particular manoeuvre resulted in the injury to Sajeev, the car was consistently driven in a manner to threaten and inflict (in the case of Sajeev) harm and to intimidate both Sajeev and GS for the following forty-five seconds. In the hands of VK at that time, the Mercedes was a weapon.
[124] The mens rea of this offence requires an analysis of the purpose for which the weapon, i.e. the car, was possessed by VK at the relevant time. For the reasons already expressed, I find that the purpose was not self-defence.
[125] What was VK’s intention in causing the vehicle he was driving to carry out the eight manoeuvres I have described? I am unable to conclude beyond a reasonable doubt that his initial intent – the intention that motivated the “first lunge” went beyond threatening or intimidating Sajeev. While it appears that the first manoeuvre in particular was likely aimed primarily at threatening or intimidating Sajeev, the subsequent manouevres appear increasingly aimed at inflicting actual injury as opposed to merely threatening to do so in a reckless manner. Whether threatening or attempting to injure, the real prospect of injury to Sajeev or GS was present throughout and VK’s actions demonstrate indifference to that prospect that amounts to recklessness as to the outcome.
[126] I find that the Crown has proved the essential elements of Count Three beyond a reasonable doubt and that a conviction must be entered in respect of this count. A verdict of Guilty shall be entered for Count Three of the indictment.
(c) Count Two: aggravated assault (s. 268(2) Criminal Code)
[127] Proof of the crime of aggravated assault requires proof of an assault that “wounds, maims, disfigures or endangers the life of the complainant”: s. 268(1). It is admitted that Sajeev suffered a compound fracture to his left tibia and fibula. These injuries clearly satisfy the criterion of “wounds, mains disfigures” in s. 268 of the Criminal Code if caused by an assault. The questions to be answered in relation to this charge are therefore:
a. Did VK assault Sajeev;
b. Was bodily harm as a result a reasonably foreseeable consequence of the assault; and
c. Did the assault in fact cause the wounds suffered by Sajeev?
[128] To prove an assault, the Crown must prove (i) an application of force by VK to Sajeev; (ii) that such application of force was intentional; and (iii) that Sajeev did not consent to such application of force. Neither consent nor the knowledge of the accused of its absence is a live question here. Sajeev did not consent.
[129] Viewed as a whole, the evidence establishes beyond a reasonable doubt that VK applied force to Sajeev indirectly through the means of the car he controlled. VK drove the car repeatedly at Sajeev both in reverse and in forward gear. The evidence that the car struck Sajeev during those manoeuvres is also overwhelming. I have found that it did so during the second lunge, during the violent reversal and during the third lunge and may have done so during the third reversal as well.
[130] I find the Crown has proved beyond a reasonable doubt that the car driven by VK struck Sajeev. While there were clearly multiple instances of the involuntary application of force by VK to Sajeev by means of the Mercedes directed by VK. I exclude from further consideration the one instance where it is clear that no bodily harm resulted (the second lunge).
[131] Was the application of force to Sajeev by VK intentional? The defence urges me to find that the incident occurred during what I described as the “violent reversal” sequence and further urges me to find that the contact between Sajeev and the car at that point was the product of an unintentional accident.
[132] The thesis of accident cannot be supported as regards the violent reversal. I was urged to find that VK acted “reflexively” to the violent stabbing of the windshield. That did not happen. If there was contact between Sajeev’s hand and the windshield, it was a reflexive and defensive measure by Sajeev to ward off the car that was hurtling towards him (in the second lunge). The purpose of the violent reversal is amply demonstrated by the manouevre that followed. VK was in effect “re-loading”: backing his car up in order to be able to take another lunge at Sajeev.
[133] There are three instances during the sequences I have described where contact between Sajeev and the car may have produced the injuries that were caused: the “violent reversal”, the “third lunge” and the “third reversal”. There can be no doubt on the evidence here that at least one of these produced the injuries suffered by VK. I have carefully reviewed each and am satisfied that the necessary general intent for assault was present in each case. Proof that an application of force was intentional does not require proof that a particular injury or degree of harm was intended. Each of these manouevres was undertaken deliberately and with full knowledge of the presence and location of the pedestrians who were in the path of the car VK was directing.
[134] The defence urged me to find self-defence is an available defence on these facts. For the reasons already given, I reject that contention. There was no threat to any person extant at that point nor can the reaction alleged to arise from the non-existent threat be considered remotely proportional. The defence simply has no conceivable application on these facts.
[135] There is no question that each of the three manoeuvres described constituted an intentional act by VK and they were in no way the result of reflex or self-defence. I find that the Crown has proved beyond a reasonable doubt that VK assaulted Sajeev.
[136] Was the risk of bodily harm foreseeable by VK when he assaulted Sajeev? In my view, the Crown has proved beyond a reasonable doubt that it was. VK was directing a large, heavy automobile directly at an unprotected pedestrian in such a way as to make contact with the pedestrian while accelerating towards him (in the case of the first two sequences) or while backing up deliberately (in the case of the third reversal). It is plain and obvious that these manoeuvres risked producing serious bodily harm and that Sajeev knew this to be so regardless of which of the three manoeuvres actually produced the harm.
[137] Finally, I find the Crown has proved beyond reasonable doubt that Sajeev’s injuries resulted from the assault committed by VK, which injuries were of a grievous nature. A verdict of Guilty for Count Three (aggravated assault) shall be entered.
(d) Count One: attempted murder (s. 239(1) Criminal Code)
[138] The charge of attempted murder is a specific intent crime. The Crown is required to prove that VK had the specific intent to kill Sajeev and to do so beyond a reasonable doubt.
[139] The Crown asks me to find that VK’s repeated and deliberate efforts to direct his car towards Sajeev, and in particular the third reversal where the Crown asks me to find that VK ran over Sajeev a second time, supply sufficient evidence to permit me to infer the necessary intention to kill. While I am fully satisfied that VK did in fact deliberately direct the car repeatedly at Sajeev on five occasions, I am simply not satisfied that the evidence as a whole meets the standard required to find an actual intent to kill.
[140] First, while motive need not be proven, its absence may potentially be the basis for a reasonable doubt, particularly in combination with other evidence. There is nothing in the conflicting accounts of the events that night that preceded the video segment nor in the history of the parties more generally to suggest a motive to kill. There may have been a chilling of a previously cordial relationship, but there is no suggestion of anything more heated than that in the days and weeks that preceded the events.
[141] Second, I find that I cannot safely rely on Sajeev’s evidence of a gun or an actual threat to kill him being made contemporary with these events. His recent evidence of actually seeing a gun is contradicted by his earlier statements on the subject. Both Sajeev and GS said that VK threatened to “give them a shot”, but GS interpreted this to reference a physical beating rather than a gun. Sajeev’s subjective interpretation – not shared by GS – of what was meant by an equivocal statement of the accused is simply too open to doubt to be a useful building block in building an inference of actual intent to kill.
[142] Third, while the totality of the evidence strongly points towards VK being in the grips of the sort of fury that is often described as “road rage”, I cannot view his actions as reflecting an actual intent to kill. He did not, for example turn the car to the left to follow Sajeev’s path as he tried to run away during the third lunge. He did not exit the car to finish the job when he saw Sajeev on the hood of the BMW shortly before leaving the scene. He clearly wanted to hurt Sajeev or wanted to threaten and intimidate him without caring if he hurt him. I cannot find that he was aiming to kill him.
[143] Absent proof beyond a reasonable doubt of the specific intent to kill, I must acquit. A verdict of Not Guilty shall therefore be entered for Count One (Attempted murder).
Disposition
[144] A verdict of NOT GUILTY shall be entered on Count One (attempted murder).
[145] A verdict of GUILTY shall be entered on Count Two (aggravated assault), Count Three (weapons dangerous) and Count Four (dangerous operation of a motor vehicle).
[146] A date shall now be set for sentencing.
___________________________ S.F. Dunphy J.
Released: November 5, 2020
COURT FILE NO.: CR-20-30000096-0000
DATE: 20201105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
vykunthan kanthavel
Defendant
REASONS FOR JUDGMENT
S.F. Dunphy J.
Released: November 5, 2020