COURT FILE NO.: CRIMJ(P) 1861/19

DATE: 20210218

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. G. Hendry, for the Crown

• and -

GOWSIHAN YOGESWARAN

Ms. C. Kerr, for the Accused

HEARD: October 21, 23, 26, 27, 28, 29, 30, 2020

REASONS FOR JUDGMENT

Stribopoulos J.

Introduction

[1] Early on the evening of Wednesday, September 5, 2018, in the City of Brampton, just after he entered an intersection, a vehicle driven by Mr. Yogeswaran struck another car as it attempted to make a left turn in front of him. The other vehicle was T-boned in the collision, spinning it around and propelling it from the roadway, injuring both that vehicle's driver and front passenger.

[2] Following an investigation, police eventually charged Mr. Yogeswaran with two counts of dangerous driving causing bodily harm contrary to s. 249(3) of the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”). Although Mr. Yogeswaran initially elected trial by judge and jury, he ultimately re-elected trial by judge alone and was tried before me.

[3] At the outset of his trial, Mr. Yogeswaran brought an application alleging various breaches of his Charter rights. On consent, the Charter voir dire and trial proceeded in a blended manner.

[4] Accordingly, these reasons proceed in two main parts. Part I will address the issues raised by Mr. Yogeswaran’s Charter application. In light of the ruling on that application, Part II provides the court’s judgment concerning the charges against Mr. Yogeswaran.

Part I - The Charter Application

[5] Mr. Yogeswaran claims violations of his ss. 7, 8, 10(a), 10(b), and 11(d) Charter rights. This part addresses the alleged constitutional violations chronologically in the sequence that they allegedly occurred during the police investigation.

A. Did the Police Violate Mr. Yogeswaran’s Sections 10(a) and 10(b) Charter Rights?

[6] Mr. Yogeswaran claims police violated his ss. 10(a) and 10(b) Charter rights. The Crown denies these claims.

i) The Positions of the Parties

[7] Defence counsel, Ms. Kerr, argues that police detained Mr. Yogeswaran for several hours after the accident. During that period, the police never informed Mr. Yogeswaran of the reasons for his detention or of his right to retain counsel. As a result, Ms. Kerr submits that police violated Mr. Yogeswaran’s ss. 10(a) and 10(b) Charter rights.

[8] For the Crown, Mr. Hendry disputes that police detained Mr. Yogeswaran. He argues that Mr. Yogeswaran voluntarily chose to remain at the scene of the accident in the hours following the collision. That decision, says Mr. Hendry, did not result from anything the police said or did. Therefore, there was no detention, argues Mr. Hendry, and, consequently, no corresponding obligation on the police under either s. 10(a) or s. 10(b) of the Charter.

ii) The Evidence

[9] The collision occurred at approximately 6:45 p.m. on Wednesday, September 5, 2018. Mr. Yogeswaran testified regarding the events after the accident until he left the scene at approximately 11:45 p.m. that evening.

[10] At the time, Mr. Yogeswaran was just 22 years old. The accident occurred not far from his home, where he was living with his parents. It took place while he was on his way home from work, a bank in downtown Toronto that employees him in its IT department. Mr. Yogeswaran does not have a criminal record.

[11] Immediately after the accident, Mr. Yogeswaran exited his vehicle and called 911. He then assisted a passerby in turning off the other vehicle’s engine, which was still running. He testified that first responders then began arriving at the scene, first a firetruck, then an ambulance, and finally the police. During this period, he was standing by his vehicle.

[12] At a certain point, his mother, who happened by on the bus, joined him. The two of them stood by his car for some time while the first responders were attending to the other vehicle's driver and passenger. At that early stage, Mr. Yogeswaran remembers having a brief conversation with a police officer but could not recall what was said. After that initial interaction, he remained with his mother; they were still standing by his car.

[13] Mr. Yogeswaran testified that Constable Chaudhry eventually approached him and asked him for his driver’s licence, vehicle registration, and proof of insurance. Mr. Yogeswaran produced all of these, except the vehicle registration, explaining it was still in his car. At about that time, the firefighters were having difficulty finding the battery in Mr. Yogeswaran’s vehicle. Constable Chaudhry asked him to assist the firefighters in locating it, which he did, before returning to speak with the officer.

[14] At that point, Mr. Yogeswaran testified that Constable Chaudhry asked him to stand back because police had begun taping off the area. He testified that the officer told him “to wait” and said, “we’ll let you know when you can leave.”

[15] Later on, Mr. Yogeswaran testified that Constable Chaudhry approached him again and asked him various questions, including where he was coming from, where he was heading, what light he had and his speed at the time of the collision.

[16] During a further interaction, after a police van arrived at the intersection (the Major Collision Bureau’s vehicle), Mr. Yogeswaran testified that Constable Chaudhry directed him and his mother to an area beyond the police tape. The officer accompanied them a short distance from the northeast corner of the intersection to a location where there were some benches; he and his mother then waited in that area.

[17] Mr. Yogeswaran testified that Constable Chaudhry intermittently returned to their location, occasionally posing further questions. For example, during one exchange, he recalled the officer asking, “are you sure the light was green?” He also remembered Constable Chaudhry returning later to ask him what happened to the memory card from his vehicle’s dashcam.

[18] At a certain point that evening, Mr. Yogeswaran’s sister arrived at the location. Eventually, his father and uncle also attended, at which point Mr. Yogeswaran recalled crossing the street. He relocated from the benches near the northeast corner of the intersection to a spot adjacent to a bus shelter on the southeast corner. Both locations were just beyond the police tape.

[19] Mr. Yogeswaran testified that he did not believe he could leave the scene of the accident because Constable Chaudhry told him he had to stay until police told him he could go. Mr. Yogeswaran acknowledged asking Constable Chaudhry, and later Detective Ball, about how the people from the other car were doing. However, he denied that obtaining that information was why he remained at the scene for so long.

[20] Eventually, Detective Ball, from the Major Collision Bureau, approached Mr. Yogeswaran while he and his family members were standing by the bus shelter. At that point, Detective Ball returned his licence, insurance card, and the plate portion of the registration for his vehicle. The officer explained that police were seizing his car for a mechanical inspection. After that, Mr. Yogeswaran testified that Detective Ball said he could go home, gave him his business card, and said he would be in touch.

[21] Mr. Yogeswaran testified that when he left the scene, he looked at his phone, and it was 11:45 p.m.

[22] Constable Chaudhry also testified. He arrived at the scene at 7:22 p.m. Once there, he testified that his primary responsibility was to secure the intersection and direct traffic. In his testimony, Constable Chaudhry recalled a similar chronology of events to that described by Mr. Yogeswaran. There were, however, some differences between their respective accounts.

[23] Constable Chaudhry testified that while he was directing traffic, Mr. Yogeswaran approached him and reported that he was involved in the accident. Constable Chaudhry then asked Mr. Yogeswaran for his licence, proof of insurance, and vehicle registration. He produced his licence and insurance in response, but the officer had to retrieve the registration from Mr. Yogeswaran’s vehicle.

[24] Constable Chaudhry denied ever telling Mr. Yogeswaran “to wait” or that “we’ll let you know when you can leave.” He acknowledged he might have told Mr. Yogeswaran that more senior police officers would be attending and would want to speak with him. That said, he could not recall the precise words he used. He thought it would have been something like: “officers are going to want to speak to you; just stay here until they come.” He insisted that he would not have said, “you cannot leave” or “I’ll let you know when you can go.” At one point, during cross-examination, Constable Chaudhry testified that Mr. Yogeswaran was present at the scene “for purposes of investigation.” Asked to explain what he meant by that during re-direct examination, he testified:

That in our discussion, it had been relayed that officers were coming to speak with him, that he had been involved in a collision, that it was in his best interests to speak with those officers; it would help him conclude his matter and know what was going on and what the investigators thought of the situation and where it would go from there.

[25] Constable Chaudhry acknowledged periodically checking in on Mr. Yogeswaran. He insisted that his primary focus was not investigative but ensuring Mr. Yogeswaran’s well-being. He described Mr. Yogeswaran as being nervous, upset, emotional, and in a “panic state.” He repeatedly asked the officer about how the people from the other car were doing. That said, he acknowledged questioning Mr. Yogeswaran about what happened and recording the gist of his responses in his notebook. He also remembered asking Mr. Yogeswaran about the missing memory card from the dashcam in his vehicle during cross-examination, something he failed to record in his notes. And he acknowledged the possibility that he may have asked Mr. Yogeswaran whether he was “sure the light was green?” That was also something about which Constable Chaudhry failed to make a notation.

[26] Constable Chaudhry testified that, from his perspective, he never detained Mr. Yogeswaran. If he had physically detained Mr. Yogeswaran, the officer said that he would have remained with him. The officer also testified that he did not think he psychologically detained Mr. Yogeswaran, noting that he left him alone on multiple occasions. Constable Chaudhry testified that throughout his dealings with Mr. Yogeswaran, he used a “reassuring tone” and was mainly trying to calm him down. Constable Chaudhry explained that he never provided Mr. Yogeswaran with the sort of information required by sections 10(a) or 10(b) of the Charter, given that, from his perspective, there was no detention.

[27] Finally, Constable Chaudhry conceded having difficulty remembering the precise details of all his interactions with Mr. Yogeswaran. He acknowledged having at least three or four separate conversations with Mr. Yogeswaran but could not recall the exact number or everything said. Constable Chaudhry recorded the gist of statements made by Mr. Yogeswaran in his notes. Ultimately, the officer’s notes concerning the 5 ½ hours he spent at the scene took up only two pages in his small police notebook.

[28] Detective Ball, with the Major Collision Bureau, also testified concerning his dealings with Mr. Yogeswaran that evening. Along with his partner, Detective Ball was dispatched to the scene at 8:30 p.m. Once there, he acknowledged knowing that Mr. Yogeswaran was still at the location but denied telling any other police officer to detain him.

[29] Detective Ball testified that the only direct contact he had with Mr. Yogeswaran was later in the evening when he returned his licence and other documents. He did not have a precise recollection of everything they discussed during what he described as a “short conversation.” Detective Ball acknowledged that, at some point, he asked Constable Chaudhry to ask Mr. Yogeswaran about the missing memory card from the dashcam in his vehicle. He recalled Constable Chaudhry reporting back regarding Mr. Yogeswaran’s explanation. During his testimony, Detective Ball referenced “releasing” Mr. Yogeswaran from the scene. Asked to elaborate on that answer during re-direct examination, he explained that, because he spoke with Mr. Yogeswaran and returned his licence, registration, and proof of insurance, “he could go.”

ii) The Law

[30] Section 10 of the Charter guarantees certain fundamental rights to everyone on “arrest or detention.” These include, under s. 10(a), the right “to be informed promptly of the reasons therefor.” And, under s. 10(b), the right “to retain and instruct counsel without delay and to be informed of that right.”

[31] The Supreme Court of Canada has interpreted “detention” purposively. It has recognized that the rights guaranteed on detention by sections 10(a) and 10(b) aim to redress “the imbalance of power between the state and the person under its control” to ensure that the individual “retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 22 (italics in original) [Grant 2009]; see also R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 886-87.

[32] To help achieve the purpose of these guarantees, the Supreme Court has defined “detention” generously as capturing those situations in which an individual has been “taken into the effective control of the state authorities”: Grant 2009, at para. 22. Circumstances in which a person is subject to “compulsory restraint” depriving them of their “choice to walk away”: Grant 2009, at paras. 25, 39. The Supreme Court’s jurisprudence recognizes that detention may arise through either physical or psychological compulsion.

[33] A detention results when the police physically take control of a person: R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 642; R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, at pp. 648-49; Grant 2009, at para. 25. For example, police detain if they take hold of a person, put them in handcuffs, or confine them in a police car. Beyond physical restraint, the cases also recognize that a detention can occur through two different kinds of psychological compulsion.

[34] First, a detention results when an individual complies with a police officer’s demand or direction while under a legal obligation to do so: Grant 2009, at para. 30; R. v. Le, 2019 SCC 34, at para. 25. The most common example is where a motorist stops their vehicle at a police officer’s direction as required by provincial traffic legislation: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 31.

[35] Second, a detention results when an individual complies with a police officer’s demand or direction, despite being under no legal obligation to do so, if a reasonable person in all of the same circumstances would conclude they were not free to go: Grant 2009, at paras. 30-31; Le, para. 25. The Supreme Court in Grant 2009, at para. 44, supplied a non-exhaustive list of factors for courts to consider when deciding if a person was subject to this second type of psychological detention, including:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[36] The analysis focuses on the state’s conduct, what the police did and said and how a reasonable person in the same circumstances would understand the effect of that conduct: Grant 2009, at para. 31; Le, at para. 27. The inquiry’s objective nature means that a police officer’s subjective intentions are not determinative: Grant 2009, at para. 32.

[37] It may sometimes prove difficult for police to assess the potentially coercive impact of their words and actions on a person with whom they are interacting. Given this, in Grant 2009, the Supreme Court noted that it is always open to the police “to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go”: Grant 2009, at para. 32.

[38] With the evidence and the law summarized, I turn next to assess Mr. Yogeswaran's claim that police violated his sections 10(a) and 10(b) rights.

iv) Analysis

[39] Having considered the evidence carefully, in light of the governing legal principles, I am satisfied that police detained Mr. Yogeswaran and, therefore, violated his sections 10(a) and 10(b) Charter rights by failing to inform him of the reasons for his detention or of his right to counsel. I have come to that conclusion for several reasons.

[40] First, there are the circumstances giving rise to the encounter as Mr. Yogeswaran would have perceived them. To be sure, when police first arrived at the scene and were endeavouring to get a handle on the situation, Mr. Yogeswaran was not detained. During that period, the focus of the police was on securing the location so that emergency personnel could safely attend to the injured. However, by the time Constable Chaudhry determined that Mr. Yogeswaran was involved in the accident, with the Major Collision Bureau on its way, the focus shifted. By that point, the police were investigating a serious motor vehicle accident that could result in criminal charges. To be sure, after he identified himself as one of the drivers and Constable Chaudhry obtained his documents and began questioning him about the accident, Mr. Yogeswaran would have understood that he was under investigation.

[41] Second, although I accept that Constable Chaudhry was polite and professional throughout, I do not doubt that his comments left Mr. Yogeswaran with the unmistakable impression that he was not free to leave. In that regard, as between the two of them, I prefer Mr. Yogeswaran’s account. Constable Chaudhry had an imperfect memory and relied heavily on his notes to refresh his recollection, which contained a less than complete description of his various interactions with Mr. Yogeswaran. Critically, the officer did not make any notes concerning his initial conversation with Mr. Yogeswaran. As a result, I accept Mr. Yogeswaran’s evidence that during their initial interaction, Constable Chaudhry told him to “wait” and that “we’ll let you know when you can leave.”

[42] Third, the duration of the encounter is strongly indicative of detention. Police did not merely ask Mr. Yogeswaran to wait while they recorded his information before returning his licence and other driving documents and sending him on his way. At least four hours elapsed between Constable Chaudhry taking his licence and proof of insurance, telling him to wait and that police would tell him when he could leave, and Detective Ball finally returning his documents and saying he would be in touch. The only reasonable explanation for why police did not return Mr. Yogeswaran’s licence and other documents earlier was because he was not free to go. Undoubtedly, that is how Mr. Yogeswaran would have understood the situation.

[43] Finally, I am mindful that, at the time, Mr. Yogeswaran was 22 years of age. He had a degree in IT and was working at a bank. He is not unintelligent. Nevertheless, Mr. Yogeswaran does not have a criminal record and lacked any legal sophistication. At the same time, Constable Chaudhry testified, and Mr. Yogeswaran agreed, that he was emotional. Any reasonable person finding themselves in the same situation would be. That, too, would have only contributed to him feeling that he was not free to leave.

[44] To be sure, I recognize that at least some of the circumstances point away from finding a detention. For example, Mr. Yogeswaran was not alone; members of his family were nearby during most of his interactions with the police. There were also long periods when Mr. Yogeswaran was not in the immediate presence of any police officers. Further, he could move about freely in the vicinity of the intersection. No doubt, all of that served to lessen the coerciveness of his experience.

[45] Nevertheless, I am satisfied that a reasonable person in the very same circumstances in which Mr. Yogeswaran found himself would conclude that he was not free to leave. After all, Mr. Yogeswaran was just involved in a very serious car accident. A police officer took his licence and other driving documents. After doing so, the officer told him to wait and advised him that police would let him know when he could go. On a few occasions over the hours that followed, that same officer returned to ask him pointed, investigatory questions. In my view, it would be entirely unreasonable for anyone, in these same circumstances, to conclude that they were at liberty to walk away. Let alone someone like Mr. Yogeswaran, who was relatively young, had no prior experience with the police, and was therefore entirely unaware of the limits on their authority.

[46] Accordingly, Mr. Yogeswaran has established that police violated his sections 10(a) and 10(b) Charter rights by detaining him without informing him of the reasons for his detention or of his right to counsel.

B. Did the Police Violate Mr. Yogeswaran’s Section 8 Charter Rights?

[47] Mr. Yogeswaran claims two distinct violations of his s. 8 Charter rights. The Crown contests one of the alleged violations but concedes the other. I will first address the contested claim before briefly considering the breach the Crown acknowledges.

I. Section 8 Claim Concerning the Air Bag Control Module in Mr. Yogeswaran’s Vehicle

i) The Positions of the Parties

[48] On behalf of Mr. Yogeswaran, Ms. Kerr argues that Mr. Yogeswaran enjoyed a reasonable expectation of privacy in both his vehicle and the data stored within its airbag control module (“ACM”). She submits that by entering his car, seizing the module, and then downloading the data contained within it, the police intruded on Mr. Yogeswaran’s reasonable expectation of privacy. Accordingly, the protections afforded by s. 8 of the Charter were engaged. By failing to obtain a warrant authorizing these intrusions, Ms. Kerr argues that police violated Mr. Yogeswaran’s s. 8 Charter right to be secure against unreasonable search or seizure.

[49] On behalf of the Crown, Mr. Hendry submits that the police lawfully seized Mr. Yogeswaran’s vehicle under s. 489(2)(b) of the Code. He argues that a seizure necessarily involves examining the thing taken, which entitled police to enter the vehicle and remove the ACM. He further contends that because an ACM only stores data about the vehicle’s operation in the five seconds immediately preceding a collision, it is not subject to a reasonable expectation of privacy. Therefore, the police did not intrude upon a privacy interest protected by s. 8 of the Charter by removing it from the vehicle and downloading the data stored within it. It follows, Mr. Hendry submits, that the police did not require a warrant and, therefore, they did not violate Mr. Yogeswaran’s s. 8 Charter right to be secure against unreasonable search or seizure.

ii) The Evidence

[50] The vehicle Mr. Yogeswaran was driving at the time of the collision belongs to him. Newer cars, like that owned by Mr. Yogeswaran, are equipped with an ACM.

[51] The module relies on various sensors to determine whether to deploy a vehicle’s safety mechanisms, such as the airbags and the seatbelt pre-tensioners. It also sometimes records data collected by these sensors. For example, when the airbags deploy or a specified rate of sudden acceleration or deceleration occurs, the ACM will retain data for the five seconds preceding such an event. The precise data recorded will vary between different vehicle manufacturers. It will usually include data concerning the vehicle’s speed, steering input, braking, and seatbelt engagement for the front seats. Depending on the module, it may also store data for as many as three events and catalogue these by reference to the vehicle’s ignition cycles. After three recordings, should there be any additional events, the module will overwrite the data from an earlier event.

[52] By the end of the evening on September 5, 2018, Detective Ball believed he was heading towards charging Mr. Yogeswaran with dangerous driving. By then, he was aware of the eyewitnesses’ accounts of the accident. He had also viewed dashcam video taken from the vehicle travelling directly behind Mr. Yogeswaran when the collision occurred.

[53] Detective Ball was familiar with the make and model of Mr. Yogeswaran’s vehicle. As a result, he knew it had an ACM, which would afford evidence concerning the offence he was investigating, including the vehicle’s speed, steering, and braking. He was especially interested in the speed that Mr. Yogeswaran’s vehicle was travelling before the accident, which would be relevant to a charge of dangerous driving.

[54] Given all of this, Detective Ball testified that he decided to seize the vehicle. He relied on s. 489(2) of the Code for his authority to do so. Detective Ball arranged to have Mr. Yogeswaran's vehicle towed to a secure facility. He completed the police tow slip, also checking a box on the form to requisition a mechanical inspection of the car to determine if it had any pre-collision defects.

[55] On September 13, 2018, Detective Ball attended the secure facility where Mr. Yogeswaran’s vehicle was stored. Without obtaining a warrant authorizing him to do so, he entered the passenger compartment of Mr. Yogeswaran’s car and removed its ACM. In Mr. Yogeswaran’s vehicle, the ACM was located in the centre channel, next to the gear shift and below the radio. Detective Ball used a wrench and ratchet to undo some screws in the centre channel; he undid some clips, removed some wires, and took the ACM.

[56] Detective Ball brought the ACM back to the Major Collision Bureau’s office. Once there, using hardware and software available to the police (the Crash Data Retrieval Kit), they downloaded data from the module. The software generated a 31-page report based on the data from the ACM.

[57] The report provides evidence of the precise speed that Mr. Yogeswaran’s vehicle was travelling in the five seconds immediately preceding the collision and details the percent of accelerator pedal depression, steering inputs, and braking. It also reveals a host of information concerning the vehicle’s various safety mechanisms and other operations. For example, it discloses whether anyone was seated in the front passenger seat, whether the driver and front passenger were wearing their seatbelts, whether the cruise control was on, and which of the vehicle’s various airbags deployed in the collision. Beyond that, the last 11 pages contain reams of letters and numbers that would appear meaningless to anyone other than a computer programmer.

iii) The Law

[58] Section 8 of the Charter guarantees everyone “the right to be secure against unreasonable search or seizure.” The Supreme Court’s jurisprudence interpreting s. 8 recognizes that the guarantee’s purpose is to safeguard the individual’s reasonable expectation of privacy: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 426.

[59] Therefore, the starting point for analyzing any claim under s. 8 of the Charter is to determine whether a state action intrudes upon a reasonable expectation of privacy: R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 533; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 8, per Binnie J. And, more specifically, the claimant’s privacy interests rather than those of some third party: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at pp. 140-44.

[60] The cases recognize that s. 8 protects various privacy interests, including (i) privacy in one’s person, (ii) territorial privacy, and (iii) informational privacy: see Dyment, at pp. 428-30; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 20-23; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 19. The cases also acknowledge that these privacy interests may sometimes overlap: Tessling, at para. 24; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 35.

[61] The Supreme Court has established a general framework for analyzing whether a particular investigative action or technique undertaken by police intrudes upon a reasonable expectation of privacy. It has directed that the “totality of circumstances” must be considered and has organized the relevant analytical factors into four groups, which include: (i) the subject matter of the alleged search; (ii) the claimant’s interest in the subject matter; (iii) the claimant’s subjective expectation of privacy in the subject matter; and (iv) whether this subjective expectation of privacy was objectively reasonable: see R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 28; Spencer, at paras. 17-18; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 26-27; Tessling, at paras. 31-32, Edwards, at pp. 145-46.

[62] However, the Supreme Court has also cautioned that the required analysis involves more than just a factual inquiry. As Cromwell J. reminded on behalf of the Court in Spencer, at para. 18:

The reasonable expectation of privacy standard is normative rather than simply descriptive: Tessling, at para. 42. Thus, while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: Patrick, at para. 14; see also R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, and Ward, at paras. 81-85.

[63] The normative nature of the standard requires courts, when assessing claims concerning the applicability of s. 8, to be careful to frame the issue presented in “broad and neutral terms”: R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at p. 50; see also Reeves, at para. 28; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 19. Ultimately, the “question is whether the personal privacy claim advanced in a particular case must, upon a review of the totality of the circumstances, be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society”: R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 87, adopted in Reeves, at para. 28; see also Wong, at p. 46. Consequently, the analysis turns on what law-abiding people in Canadian society would reasonably expect to remain private from the state in the same circumstances, without regard to any evidence of illegality that the police action happened to reveal in the particular case: see Reeves, at para. 28; Spencer, at para. 36; Patrick, at para. 32; Wong, at pp. 49-50.

[64] If a claimant establishes that the police intruded on their reasonable expectation of privacy, the resulting “search or seizure” must satisfy the s. 8 reasonableness requirements: see Edwards, at p. 140; Gomboc, at paras. 20-21. Under s. 8 of the Charter, a search or seizure by police conducted without a warrant is presumptively unreasonable: Hunter v. Southam, at p. 161. To rebut that presumption, the Crown must establish that: (i) the search or seizure was authorized by law; (ii) that law authorizing it was reasonable; and (iii) the search or seizure was carried out reasonably: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; Cole, at para. 37.

[65] The threshold question on this application is not a matter of first impression. The Supreme Court of Canada long recognized that when it comes to vehicles, the owner – or a driver with the owner’s permission – enjoys a reasonable expectation of privacy in the interior of a vehicle, albeit of a comparatively lesser nature than that enjoyed in a home or office: R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 242 [Grant 1993]; R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at p. 354; see also R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 (s. 8 violated where police unlawfully searched appellant’s car); see also R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.

[66] The nature of that expectation is territorial and necessarily less robust than in other private places because driving is highly regulated. The Supreme Court has recognized that, where traffic safety is amongst a police officer’s purposes for detaining a motorist, the officer can take various steps during a traffic stop that will not implicate s. 8 of the Charter. For example, a police officer standing outside the vehicle may look into the passenger compartment, including with the aid of a flashlight, require the driver to produce their licence, vehicle registration and proof of insurance, and inspect the vehicle to assess its mechanical fitness. Such measures do not implicate a motorist’s reasonable expectation of privacy because driving is subject to licensing requirements and extensive regulation in the interests of public safety: see R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621, at p. 638; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at pp. 623-25.

[67] The expectation of privacy is lower when it comes to commercial vehicles, which are subject to even more robust regulation in the interest of public safety. Nevertheless, even in that context, a constitutionally protected privacy interest persists: Nolet, at paras. 30-31, 43.

[68] Police entry into a vehicle to look for evidence or contraband exceeds the bounds of what the law permits, and motorists reasonably expect as part of routine roadside interactions between drivers and police, which are an inherent part of the highly regulated nature of motor vehicle travel. At the scene of a collision, police entry into a vehicle to attend to the injured and address safety concerns are no doubt reasonably expected. However, once police shift their focus from health and safety to investigating a potential offence, the minimum s. 8 Charter standards applicable when the state’s purpose is law enforcement unquestionably apply: Hunter v. Southam, at pp. 167-68; see also R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, at paras. 2, 84, 88-89 (explaining how s. 8 of the Charter’s “reasonableness” requirements become more exacting when the state’s purpose shifts from regulatory to investigatory).

[69] Despite well-established authority that someone like Mr. Yogeswaran enjoys a reasonable privacy expectation in his vehicle, there are conflicting decisions concerning whether police entry into a vehicle to access or remove an ACM and download its data intrudes upon a reasonable expectation of privacy. The Supreme Court of Canada has not yet addressed the issue. However, other judges of this court have, as has the British Columbia Court of Appeal. Unfortunately, there is a lack of consensus in the jurisprudence, which informs the parties’ conflicting positions on this application. As a result, a brief review of these decisions is necessary.

• R. v. Hamilton, 2014 ONSC 447, 65 M.V.R. (6th) 239

[70] In Hamilton, police entered the accused’s vehicle at the scene of a fatal collision, cut into the carpet beneath the driver’s seat, accessed the ACM, and downloaded its data. By doing so, the court held police intruded on a reasonable expectation of privacy and violated the accused’s s. 8 Charter right: at paras. 31-33.

[71] In coming to that conclusion, the court reasoned the entry into the vehicle constituted a trespass. Additionally, the data accessed was meaningful and private. The court did not think a witness’s ability to describe the driving altered the intrusiveness of police accessing it and obtaining a much more precise electronic account of the driving. While acknowledging that the data did not include details about the accused’s lifestyle or information of a biographical nature, the accused would have expected it to remain private, which was sufficient for a reasonable expectation of privacy to attach to it: at paras. 63-74, citing A.M., at paras. 67-68. per Binnie J., concurring.

[72] After rejecting various claims by the Crown that the police had lawful authority to access the vehicle and the ACM data without a warrant, the court concluded that police violated the accused’s s. 8 Charter right.

• R. v. Glenfield, 2015 ONSC 1304, 321 C.C.C. (3d) 483

[73] The facts were similar to Hamilton, with the police at the scene of a fatal collision entering a vehicle that the accused had been driving, forcing open a panel in the front console to access the ACM, and downloading its data. The vehicle belonged to the accused’s employer, but he habitually drove it: at paras. 8, 10-11.

[74] The court followed Hamilton. Additionally, the court expressed concern about the long-term privacy implications of concluding that s. 8 was not engaged. It noted that to hold otherwise would mean police could, at their discretion, enter any damaged vehicle at the scene of an accident, gain access to the ACM or its equivalent, and obtain detailed information concerning the vehicle’s movements before a collision.

[75] The court held that the accused had a reasonable expectation of privacy in the vehicle’s interior, with both territorial and informational dimensions. Therefore, by entering the vehicle and removing the console and downloading data from the ACM, the police carried out a warrantless search and seizure and violated s. 8 of the Charter.

• R. v. Fedan, 2016 BCCA 26, 89 M.V.R. (6th) 188, leave to appeal refused [2016] S.C.C.A. No. 178

[76] In Fedan, following a single-vehicle accident that killed two passengers in the accused’s pick-up truck, the police lawfully seized his vehicle under s. 489(2) of the Code. Police obtained a warrant to search the truck for blood, DNA, fingerprints, and documents, but not the ACM. On a separate occasion, another officer did just that, entering the truck, removing the ACM from beneath the driver’s seat, and downloading its data.

[77] Even though the accused did not know about the ACM, the court accepted that he had a subjective expectation of privacy in his vehicle, which extended to the ACM because it was an integral component of his truck not unlike an engine. Nevertheless, the court rejected that the accused’s subjective expectation translated into an objectively reasonable privacy expectation in all of the circumstances. (In doing so, it did not reference the Supreme Court of Canada’s decisions holding that a vehicle owner, or driver with the owner’s permission, enjoy a reasonable expectation of privacy in a vehicle). The court provided three principal reasons for rejecting that a reasonable expectation of privacy existed in the circumstances.

[78] First, it reasoned that the vehicle’s lawful seizure under s. 489(2) of the Code extinguished any limited territorial privacy interest the accused previously enjoyed in his truck or the ACM: at paras. 78-79. Further, the accused did not have any informational privacy interest in the ACM’s data because it “provided no personal identifiers” that could link him to it: at para. 78. Nor did the data reveal any “intimate details” relating to his “biographical core” that could connect the driving to him: at para. 81.

[79] Second, the court expressly disagreed with Hamilton’s reasoning, which relied on Binnie J.’s decision in A.M., suggesting that even where information is not intimate or biographical, it can attract a reasonable expectation of privacy if a person intends to keep it private. The court suggested that the circumstances in A.M., were distinguishable: at para. 83.

[80] Finally, the court reasoned that approaching the question through a more normative lens did not justify a different outcome. The court noted that driving on a public road is a highly regulated activity open to public view. Given this, any witness observing the driving would have the same information recorded by the ACM, albeit with less accuracy: at para. 84.

[81] As a result, Fedan holds that, once the police lawfully seized a vehicle under s. 489(2) of the Code, they are free to enter it, remove its ACM, and analyze its data without obtaining a warrant.

• R. v. Anstie, 2019 ONSC 976

[82] While driving a rental car, the accused was involved in a head-on collision that killed two people. After the accident, the police lawfully seized the rental vehicle under s. 489(2) of the Code and transported it to a secure police facility. Under the rental agreement, the accused forfeited his contractual right to use the vehicle if he drove it illegally or recklessly and consented to the rental company retrieving the ACM data and using it. After obtaining a key fob from the rental car company, a police officer entered the vehicle and downloaded the ACM’s data.

[83] The court concluded that the accused did not have a reasonable expectation of privacy in the vehicle. In coming to that conclusion, it emphasized that the accused did not own the car but rented it. Further, it reasoned that any privacy expectation he might have had in the vehicle would not be objectively reasonable following its lawful seizure under s. 489(2). As a result, the court’s analysis focused on whether the accused had a reasonable expectation of privacy in the information obtained from the ACM: at paras. 31-32.

[84] Given the terms of the car rental agreement, the court expressed skepticism that the accused enjoyed a subjective expectation of privacy in the data. Even if he did, the court was also not persuaded that such an expectation would be objectively reasonable: at paras. 39-41.

[85] Critically, the court did not accept that the data revealed any private information. It expressly disagreed with the holdings to that effect in Hamilton and Glenfield. In its view, there was nothing about the data to characterize it as personal or related to the concept of a biographical core of information giving rise to a privacy interest: at para. 24. Further, the data was not created by the accused with the expectation that it would be kept private, which might have otherwise given rise to a privacy interest even though it did not disclose core biographical information per A.M., at paras. 67-68.

[86] The court recognized that the standard form contract was a relevant consideration but far from decisive. Instead, its focus was on the nature of the data, which it saw as less invasive than the heat distribution patterns in Tessling or the electricity consumption records in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281. Therefore, it concluded that the data did not attract s. 8 protection: at paras. 45-46.

iv) Analysis

[87] In my view, by entering Mr. Yogeswaran’s vehicle and removing the ACM to download data from it, the police intruded upon his reasonable expectation of privacy. I have arrived at that conclusion through a somewhat different analysis than my colleagues in Hamilton and Glenfield. Additionally, neither of those cases involved the seizure of a vehicle under 489(2) of the Code. With respect, I must disagree with how Fedan and Anstie appear to interpret s. 489(2) of the Code and their shared conclusion that the seizure of a vehicle under that provision extinguishes constitutionally protected privacy interests. With that introduction, I turn to my analysis.

[88] To begin, I do not believe that this application raises a novel constitutional question. Simply put, there is nothing new about the police wanting to look inside a vehicle to locate evidence or contraband. Therefore, there is no need to engage with first principles on whether police intrude upon a reasonable expectation of privacy when they do so. The Supreme Court of Canada decided that threshold question under s. 8 of the Charter long ago. A vehicle owner – or a driver with the owner’s permission – enjoys a reasonable expectation of privacy in his or her vehicle: Grant 1993, at p. 242; Belnavis, at p. 354.

[89] Once a claimant establishes the required standing to assert a reasonable privacy expectation in a vehicle, the protections afforded by s. 8 of the Charter are engaged. Just like any location where an individual enjoys a reasonable expectation of privacy – be it the interior of their car, office, or home – any intrusion into such a place by police for criminal investigative purposes must meet the reasonableness requirements demanded by s. 8 of the Charter. After that, constitutional protection is not contingent on also demonstrating an informational privacy interest in the evidence or contraband police seized.

[90] For example, when police enter a person’s home or office to search for business records relevant to their investigation, compliance with s. 8 reasonableness standards does not also depend on establishing that the information contained in the documents seized was inherently private.

[91] It follows that when police entered Mr. Yogeswaran’s vehicle to remove the ACM and then download its data, a place in which he enjoyed a reasonable expectation of privacy, their actions were subject to the reasonableness requirements of s. 8 of the Charter.

[92] Given the readily apparent territorial privacy implications of police searching Mr. Yogeswaran’s car to seize the ACM, as a practical matter, little turns on whether he also enjoys a reasonable expectation of privacy in the downloaded data. It is no coincidence that the Supreme Court of Canada’s decisions dealing with informational privacy claims all involve situations in which the police gained access to information without also physically entering a place where a suspect enjoyed a reasonable expectation of privacy. For example, the electricity consumption records in Plant, the banking records in Schreiber v. Canada (A.G.), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841, the heat emanations in Tessling, the digital recording ammeter installed on a power line in Gomboc, or the Internet subscriber information in Spencer. Had the police accessed the ACM data through a database maintained by the vehicle manufacturer, which might just become possible in future, the factors that govern informational privacy claims would undoubtedly be controlling in deciding whether or not s. 8 of the Charter was engaged.

[93] However, due to the ACM’s location within Mr. Yogeswaran’s vehicle, where he undoubtedly enjoyed a reasonable expectation of privacy, he necessarily also had a reasonable expectation of privacy in the ACM and the data stored within it. That expectation does not depend on the nature and quality of the ACM’s data, which, as an aside, I believe is far from “meaningless” (Tessling, at paras. 36 and 58) given its potential to implicate him in a criminal driving offence (A.M., at para. 38) and given that this is the very reason police wanted it. Rather, the expectation flows much more directly from the location of the ACM, concealed, as it was, within Mr. Yogeswaran’s vehicle – a place in which he enjoyed a well-established reasonable expectation of privacy.

[94] Given that Detective Ball intruded upon Mr. Yogeswaran’s reasonable expectation of privacy by entering his vehicle, taking the ACM, and downloading its data, all without the authority of a warrant or Mr. Yogeswaran’s consent, these actions presumptively violated his s. 8 Charter right to be secure against unreasonable search or seizure. To rebut that presumption, the Crown must establish that the search and seizure was authorized by law, that the law was reasonable, and it was carried out reasonably. In my view, in this case, the Crown cannot establish the first essential precondition.

[95] Mr. Yogeswaran concedes that police lawfully seized his vehicle under s. 489(2) of the Code. That section provides:

489(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[Emphasis added]

[96] Based on its plain wording, s. 489(2) empowers a police officer, when “lawfully present in a place”, to “seize” anything the officer “believes on reasonable grounds” to have been obtained by crime, used to commit a crime, or that will furnish evidence of a crime. It makes no mention of a “search” power. Given this, the Court of Appeal for Ontario and the Manitoba Court of Appeal have held that the provision means what it says. In short, s. 489(2) empowers police to seize, but “[i]t does not provide them with a right to search for further evidence”: R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 73; see also R. v. Fawthrop (2002), 2002 CanLII 45004 (ON CA), 166 C.C.C. (3d) 97 (Ont. C.A.), at para. 27; R. v. Frieburg (T.L.), 2013 MBCA 40, 294 Man. R. (2d) 1, at para. 68.

[97] With respect, I am unable to agree with the holdings in Fedan and Anstie that the lawful seizure of a vehicle under s. 489(2) of the Code extinguishes the objective reasonableness of a privacy expectation that one might otherwise enjoy in that vehicle. That cannot be correct for two reasons. First, it overlooks the Supreme Court of Canada's prior holding that the lawful seizure of property, where there is no reason to believe its owner abandoned it, does not entirely extinguish the owner's reasonable expectation of privacy in the item: R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at paras. 17-20. Second, it effectively reads a search power into s. 489(2), where none exists. To interpret the provision as having that effect would circumvent the vital privacy protection afforded by s. 8 of the Charter's presumptive warrant requirement. As such, it would be at odds with the presumption that Parliament intends to enact legislation that conforms with the Charter: see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at §16.9.

[98] If a police officer at the scene of an accident has reasonable grounds to believe that a vehicle was used in the commission of an offence, s. 489(2) empowers the officer to seize it. Should a police officer then wish to search that vehicle for evidence or contraband, absent exigent circumstances, well-established jurisprudence from the Supreme Court of Canada dictates that they can only do so lawfully and constitutionally under the authority of a warrant: Grant 1993, at pp. 241-43; see also Code, s. 487.11 (supplying police with the power to search without a warrant when they have the requisite grounds to obtain a warrant but it would be impractical to do so because of exigent circumstances).

[99] In this case, there is no basis to suggest that when he entered Mr. Yogeswaran’s vehicle to remove the ACM, Detective Ball acted in exigent circumstances. By no measure did he face a situation in which there was an imminent danger of the loss, removal, destruction, or disappearance of the evidence if he delayed the search to obtain a warrant: Grant 1993, at p. 242; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 36-37.

[100] As a result, by entering Mr. Yogeswaran’s car on September 13, 2018 to remove the ACM so that they could then download the data stored within it, police violated his s. 8 Charter right to be secure against unreasonable search or seizure.

II. Section 8 Claim Concerning the Failure to File a Report to a Justice under s. 489.1(1) of the Code

[101] Section 489.1(1) of the Code requires a police officer who “has seized anything” either “under a warrant” or “otherwise in the execution of duties” to do certain things “as soon as is practicable”. First, unless required for further investigation or court proceedings, to return the thing seized to whoever is lawfully entitled to the item: s. 489.1(1)(a). Second, if the police need to detain the item, they must either bring it before a justice or report to a justice concerning the seizure: s. 489.1(1)(b).

[102] The reporting requirement in s. 489.1(1)(b)(ii) serves an essential purpose, providing the gateway to the regime found in s. 490 of the Code by which police seizures are subject to judicial oversight: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 55. Accordingly, completing and filing these reports is by no means “a meaningless exercise in paperwork”: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 45.

[103] The Court of Appeal for Ontario has held that the detention of property by police without complying with s. 489.1(1) is unlawful: R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at para. 115. It has also held that a police officer’s failure to comply with the provision’s requirements renders the continued detention of a seized item unreasonable and a violation of the property owner’s s. 8 Charter right: Garcia-Machado, at paras. 44-45.

[104] On September 17, 2018, Detective Ball drafted a Report to a Justice concerning his seizure of the ACM (but not Mr. Yogeswaran’s vehicle). After preparing it, he saved it on his computer. At around that time, he became busy with another investigation and did not have an opportunity to file it. He was then off work for five days. After that, he simply forgot that he had not submitted the report.

[105] It was only in the middle of October 2019, when he was working on disclosure for this case that Detective Ball realized that he never filed the report. To date, he has still not done so. He explained this during cross-examination by noting that he could no longer satisfy the “as soon as practicable” requirement when he finally discovered his oversight. He further explained that when the police file these reports late, they “get a hard time from the justice.”

[106] The Crown concedes that by failing to file the report required by s. 489.1(1)(b)(ii), police violated Mr. Yogeswaran’s s. 8 Charter right. Given the law and the evidence, that was a sensible concession for the Crown to make.

C. Did the Failure to Preserve the Other Vehicle Involved in the Collision Violate Mr. Yogeswaran’s Sections 7 and 11(d) Charter Rights?

[107] Mr. Yogeswaran claims violations of his sections 7 and 11(d) Charter rights; the Crown disputes these claims.

i) Positions of the Parties

[108] On behalf of Mr. Yogeswaran, Ms. Kerr submits that the other car involved in the collision could have afforded relevant evidence. As such, the police had a duty to preserve it. Their failure to do so, argues Ms. Kerr, resulted from unacceptable negligence and breached Mr. Yogeswaran's right to disclosure, violating his s. 7 Charter right. An examination of that car could have revealed mechanical deficiencies affecting the other driver’s ability to avoid the collision. As a result, Ms. Kerr submits that the car’s destruction has irreparably prejudiced Mr. Yogeswaran’s ability to raise a reasonable doubt concerning the causation element of the offences charged. That it has effectively undermined his right to make full answer and defence and his ability to receive a fair trial, violating his ss. 7 and 11(d) Charter rights. In terms of the appropriate remedy, Ms. Kerr argues the court should stay the two charges’ causation element and limit Mr. Yogeswaran’s potential jeopardy to two counts of dangerous driving.

[109] For the Crown, Mr. Hendry submits that the police were not obligated to retain the other vehicle involved in the collision because it did not have any apparent relevance. Given this, police had a legal obligation to return it to the owner under s. 489.1(1)(a) of the Code. Mr. Hendry submits that the car’s unavailability for examination by a mechanic retained by the defence in no way impacts Mr. Yogeswaran’s ability to defend against the charges. He argues that any potential deficiency with that car that such an examination might have revealed would not be relevant to any of the material issues in this case, including causation. Accordingly, Mr. Hendry submits there is no basis for the court to grant a stay concerning the causation element of the two charges.

ii) The Evidence

[110] On the evening of September 5, 2018, Detective Ball seized both Mr. Yogeswaran’s vehicle and the other vehicle involved in the collision, a 2003 Honda Civic. In completing seizure slips for both cars, he requisitioned that they each undergo a mechanical inspection by a mechanic employed by the Peel Regional Police Service so that he could determine if either vehicle had any pre-collision defects.

[111] As a result, both vehicles were initially transported to the police garage. Once there, a mechanic employed by the Peel Regional Police Service inspected both cars. That mechanic found no mechanical issues with Mr. Yogeswaran’s 2018 Dodge Charger. However, there were significant safety concerns with the Honda. The police mechanic concluded that the Honda would not meet minimum standards to pass a provincial safety inspection. He came to that conclusion after identifying several problems with the vehicle.

[112] First, there was a considerable amount of rust on the brake rotors, which would result in insufficient contact between the brake pads and the rotors. That would negatively impact the vehicle’s braking efficiency. Second, the rear brake lines suffered from heavy corrosion. That could cause the brake fluid to leak and the hydraulic braking system to fail, leaving the vehicle with no braking capacity. Third, the tires on the Honda suffered from dry rot. That meant that they had been on the car for too long. As a result, the tires were susceptible to a blowout. That condition could also affect braking efficiency, meaning it could take a greater distance to come to a stop. Fourth, there was significant rust corrosion present on the Honda, including some holes in its frame. That damage could undermine the vehicle’s structural integrity in a collision or risk CO2 entering the passenger compartment. Finally, the Honda’s headlights exhibited considerable hazing, compromising their effectiveness and undermining the driver’s ability to see properly during nighttime driving.

[113] For all of these reasons, the vehicle was unsafe in the mechanic’s opinion and should not have been on the road. The deficiencies were substantial enough that they would not have been worth repairing.

[114] The police mechanic acknowledged that he only conducted a cursory safety inspection. He explained that in doing so, he focused on completing a pre-printed Peel Regional Police Service vehicle inspection report form. That form used to be longer and allowed for the recording of more information. However, it underwent a reduction because the inspections were taking too long to complete. The police mechanic testified that he does not ordinarily examine vehicles to determine the role that potential deficiencies might have played in causing an accident.

[115] The police mechanic conceded that there were additional steps he could have undertaken when inspecting the Honda. For example, determining whether the rear brake lights were working, testing the brake fluid’s efficiency, and conducting a compression check to measure how efficiently the engine was working. He did not do any of these things because of the vehicle’s condition and because completing the pre-printed inspection form did not require them.

[116] After the inspections were complete, both vehicles were returned to the secure facility maintained by a private company under contract with the police. Detective Ball authorized both vehicles for release to their registered owners after being advised the safety inspections were complete.

[117] Detective Ball explained his decision to release the Honda, noting that he did not see it as having any potential relevance and believing that he was therefore required to return it to its owner. He testified that he did not think it possible to determine its pre-collision performance because of the extent of its damage. At the time, he did not believe the car would have any potential relevance to either the Crown or the defence. During cross-examination, he acknowledged that the defence could retain a mechanic or an engineer to examine the Honda to assess its condition. He admitted that, at the time, that possibility did not cross his mind.

[118] On October 4, 2018, the police sent a letter to the Honda’s owner, advising him that he had until November 3, 2018 to pick-up the car. He never did.

[119] On December 18, 2018, Detective Ball contacted Mr. Yogeswaran to let him know he would be arrested and charged. The next day, he spoke with defence counsel, Ms. Kerr, to arrange Mr. Yogeswaran’s surrender and the terms of his release. There was no discussion between them concerning the vehicles involved in the collision.

[120] On December 26, 2018, the storage facility, presumably acting under the Repair and Storage Liens Act, R.S.O., c. R.25, sold the Honda to a vehicle disposal company. They scrapped the car at some point after that.

[121] In the summer of 2019, the Crown disclosed the mechanical inspection report for the Honda prepared by the police mechanic and some photographs he took of the vehicle.

[122] Detective Ball testified that he first learnt that the defence was interested in seeing the Honda in the middle of October 2019. (The preliminary inquiry in this case took place that month). He spoke with Ms. Kerr, who asked him where the vehicle was and if he could locate it for her. In response, Detective Ball made inquiries to track down the Honda. It was only then that he learnt the owner never retrieved the Honda and that the storage facility had sold it for scrap on December 26, 2018.

[123] A mechanic hired by Mr. Yogeswaran also testified. He reviewed the police mechanic’s report and photographs of the Honda he took during his safety inspection. Based on that review, he agreed that the Honda was unsafe to be on the road. Additionally, the defence mechanic identified various shortcomings in the report prepared by the police mechanic. In his opinion, some essential vehicle systems and components went uninspected, including the suspension, steering, acceleration, engine compression and efficiency, the brake fluid, and the brake lights. In his affidavit, the defence mechanic deposed that if he could have inspected the Honda, he could have determined whether its mechanical condition caused the collision. In his affidavit, he deposes:

Its mechanical state could have caused the collision in three ways. First, its acceleration system was faulty thus causing delay prior to the turn and an inability to engage quickly enough to avoid the Dodge. Second, the turn was commenced but the brakes were applied to avoid the oncoming Dodge Charger. However, the state of the tires, rotors, brake pads and calibers [sic] were such that the Honda continued into the path of the Dodge. Third, the brakes could have been applied but their condition was such that they could not have overcome the acceleration.

[124] A mechanical engineer retained by Mr. Yogeswaran also testified. He described various tests he would have been able to undertake if the Honda was still available. These would have enabled him to measure the accelerator’s responsiveness and the engine’s efficiency and compared these to how the vehicle should have performed at that stage in its lifespan. He could have done the same with the braking system. The results might have shown how the outcome might have been different if these systems worked optimally, allowing the Honda’s driver to either brake or accelerate to avoid the collision.

iii) The Law

[125] An accused has a constitutional right to receive disclosure of all relevant information either in the Crown’s possession or under its control: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. The right to disclosure is an essential component of the right to make full answer and defence, which is, in turn, a principle of fundamental justice guaranteed by s. 7 of the Charter: R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, at para. 37; R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at para. 23.

[126] Since Stinchcombe, the Supreme Court of Canada has recognized that the relevance threshold for triggering the Crown’s disclosure obligation is relatively low. It reaches “material which may have only marginal value to the ultimate issues at trial”: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 23. So long as there is “a reasonable possibility of the information being useful to the accused in making full answer and defence,” then it must be disclosed: Dixon, at para. 21; see also R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, at pp. 466-67. Accordingly, “[l]ittle information will be exempt from the duty that is imposed on the prosecution to disclose evidence”: R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 60.

[127] The Supreme Court of Canada has recognized that the Crown’s disclosure duty gives rise to a corresponding obligation on the police and the Crown to preserve relevant evidence: La, at paras. 16-17. In La, the Supreme Court of Canada established an analytical framework for addressing those situations where evidence that would have been subject to disclosure has been lost or destroyed. First, the Crown must explain why the evidence is no longer available. Should the Crown’s explanation satisfy the trial judge that the evidence has not been lost or destroyed because of unacceptable negligence, it will not have breached its disclosure duty: La, at para. 20. However, if the Crown cannot satisfy the judge that there was no unacceptable negligence, then there will be a breach of the accused’s right to disclosure guaranteed by s. 7 of the Charter: La, at para. 20.

[128] In deciding whether the loss or destruction of evidence resulted from unacceptable negligence, the Supreme Court in La provided the following guidance, at para. 21:

In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.

[129] The Supreme Court recognized in La that, in some cases, the loss or destruction of relevant evidence, beyond violating the s. 7 right to disclosure, might also amount to an abuse of process: La, at para. 20. That will be the case where the state’s conduct resulting in the unavailability of relevant evidence offends the community’s sense of decency and fair play: La, at para. 22. By way of example, the Court referenced state actors deliberately destroying evidence to defeat the Crown’s disclosure obligation: La, at para. 22. However, it also noted that an improper motive is not essential for establishing an abuse of process, indicating that “serious departures” from the duty to preserve evidence may suffice if they reveal “an unacceptable degree of negligent conduct”: La, at para. 22.

[130] Violations of s. 7 of the Charter resulting from either a breach of the duty to disclose or an abuse of process will not necessarily result in a stay of proceedings. That remedy is only available in those rare cases that also meet the exacting criteria for granting a stay, the “clearest of cases” standard: La, at para. 66; see also R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-47 for a summary of the controlling criteria.

[131] Finally, the Supreme Court in La noted that even where the Crown has disclosed all relevant evidence and demonstrated a lack of unacceptable negligence in the loss of evidence, the accused s. 7 Charter right to make full answer and defence is not exhausted. In “extraordinary circumstances,” it recognized, the loss of evidence (through no fault of the Crown) may be so prejudicial to the accused’s right to make full answer and defence that it also irreparably prejudices their right to a fair trial and thereby warrants a stay of proceedings: La, at paras. 24-25; see e.g., R. v. MacDonnell (1995), 1995 CanLII 4496 (NS SC), 141 N.S.R. (2d) 266 (S.C.), reversed (1996), 1996 NSCA 57, 148 N.S.R. (2d) 289 (C.A.), reversed 1997 CanLII 369 (SCC), [1997] 1 S.C.R. 305.

[132] In two separate cases, the Court of Appeal for Ontario has recognized that the Crown’s duty to preserve evidence can extend to an item of evidence as substantial as a motor vehicle. In both Bero and Knox, cases in which the driver of a motor vehicle’s identity was the critical issue at trial, the Court of Appeal found the Crown violated its disclosure obligation by failing to preserve cars so that they could be subject to forensic testing by the defence: see R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.); R. v. Knox (2006), 2006 CanLII 16479 (ON CA), 80 O.R. (3d) 515 (C.A.). Neither case did not result in a stay of proceedings, given that the Court of Appeal was satisfied that measures short of that could effectively lessen the impact of the unavailable evidence on the ability of each accused to make full answer and defence to the charges.

iv) Analysis

[133] The Supreme Court of Canada's decision in La establishes that the police must preserve relevant evidence so that the Crown can fulfill its disclosure obligations. The starting point for analyzing a claim that police breached that duty requires assessing the unavailable evidence’s apparent relevance. The police and the Crown are not obligated to preserve irrelevant evidence.

[134] Given the relatively low bar for relevance, I am satisfied that the Honda constituted relevant evidence that engaged the state’s preservation obligation. In short, if it were still available, I would not hesitate to order the Crown to facilitate the Honda’s inspection by the defence. Nevertheless, I am not prepared to conclude that the failure to preserve the Honda resulted from “unacceptable negligence,” as defined in La. In my view, the Honda’s relevance was, at most, marginal. Both Bero and Knox are cases in which the driver’s identity was obviously at issue. In each case, the potential significance of testing the vehicles for forensic evidence should have been readily apparent to the police. The situation here was quite different.

[135] I accept Detective Ball’s evidence that he turned his mind to preserving the Honda but did not think it necessary because he did not appreciate how the Honda might be relevant. In the circumstances, given the vehicle’s marginal relevance, I can understand why he came to that conclusion. In that regard, I note that defence counsel only began inquiring about the Honda’s availability some ten months after Mr. Yogeswaran was arrested and charged and several months after she received disclosure concerning the Honda’s inspection by a police mechanic. By that point, the preliminary inquiry had begun. Given how long it took defence counsel to inquire about the Honda, it is difficult to fault Detective Ball for not recognizing it as relevant evidence that he needed to preserve. It follows that I am not satisfied that the Crown breached its disclosure obligation in this case.

[136] Even where the Crown has not breached its disclosure obligation, an accused is not without recourse where vital evidence is no longer available. It is open to an accused to demonstrate that the loss of evidence has so completely undermined his ability to make full answer and defence that his right to a fair trial has been irreparably prejudiced, thereby necessitating a stay of the proceedings: La, at paras. 24-25.

[137] Although Ms. Kerr prefaced her argument on a breach of the Crown’s disclosure duty, her submissions concerning the appropriate remedy, if accepted, could justify a stay based solely on the Honda’s destruction. Ms. Kerr submits the loss of the Honda irreparably prejudiced Mr. Yogeswaran’s ability to make full answer and defence. Further examination of the Honda could have revealed that its braking and acceleration capacities were compromised. Further, had these systems been operating as they should have, expert evidence might have shown that the Honda’s driver could have averted the collision. For example, by either stopping her vehicle before it crossed the path of Mr. Yogeswaran’s car or by accelerating out of the intersection in time to avoid being struck. As such, Ms. Kerr argues that it could have furnished proof of an “intervening act”, severing the causal link between Mr. Yogeswaran’s driving and the “bodily harm” suffered by the driver and passenger in the Honda due to the collision.

[138] With respect, this argument finds no support in existing criminal law principles. To be sure, the collision was the culmination of countless variables. That is true of every car accident, as it is with any other unfortunate event. Change just one crucial precipitating variable in an endless chain of “but for” causes, and there would be a different outcome. Causation in Canadian criminal law begins with factual causation, which leaves no room for considering an endless array of alternative “what if” scenarios.

[139] Factual causation focuses on the accused’s act and asks, “but for” his conduct would the prescribed outcome – for example, death, bodily harm, etc. – have occurred: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at paras. 15, 21. Only if the accused’s conduct was one of the “but for” causes does legal causation emerge for consideration: see Morris Manning & Peter Sankoff, Criminal Law, 5th ed. (Toronto: LexisNexis, 2015) at ¶3.79-¶3.81.

[140] Legal causation evaluates the accused's role in bringing about the outcome. It serves as “a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility”: Maybin, at para. 16. It assesses whether it would be fair to blame the accused for the consequence and hold him responsible for the result: Nette, at para, 45; see also Manning and Sankoff, at ¶3.87. The test for legal causation focuses on the accused’s act and asks whether it was a significant contributing cause of the death: Nette, at para. 71; Maybin, at para. 5. As a practical matter, the legal test subsumes factual causation: Nette, at paras. 45-46. In short, if the accused’s act isn’t one of the “but for” causes (one of the links in the causal chain), then it would be impossible to conclude that it was a significant contributing cause.

[141] The test for legal causation accounts for the possibility of intervening acts. They involve an event independent of the accused’s conduct, the general (rather than specific) nature of which is objectively unforeseeable, that severs the causal link between the accused's act and the prohibited outcome. The accused may have set the scene so that his conduct is part of the history of events preceding the result. However, the intervening act overtakes the accused's “but for” role to such an extent that it would be unfair to conclude that the accused’s conduct was a significant contributing cause: Maybin, at paras. 23, 34, 38, 49.

[142] As this summary makes apparent, the law of causation focuses on what occurred rather than what might have happened. Accordingly, whether the Honda’s driver could have avoided the collision if her vehicle was operating in more optimal condition is not relevant to the court’s adjudication of the charges against Mr. Yogeswaran. Such “what if” scenarios undoubtedly consume the thoughts of many affected by a tragic event, but they have no bearing on factual or legal causation. Accordingly, I am far from convinced that the Honda’s unavailability for inspection by the defence affects Mr. Yogeswaran’s ability to make full answer and defence to the charges. It follows that I am not satisfied that there has been a violation of Mr. Yogeswaran’s rights under sections 7 and 11(d) of the Charter.

[143] Nevertheless, should I be wrong in any of my conclusions concerning Mr. Yogeswaran’s sections 7 and 11(d) Charter claims, I am far from satisfied that the appropriate remedy would be to stay the causation element of the two charges. That would have the effect of Mr. Yogeswaran only facing charges for two counts of dangerous driving. In my view, even assuming breaches of sections 7 and 11(d) of the Charter, Mr. Yogeswaran cannot meet the “clearest of cases” threshold for granting a stay because the potential prejudice here to his right to make full answer and defence is not irreparable.

[144] Section 24(1) of the Charter empowers judges to fashion remedies that are “appropriate and just in the circumstances.” As McIntyre J. observed in Mills, “[i]t is difficult to imagine language which could give the court a wider and less fettered discretion”: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 965. In cases where a stay is not warranted, the section has “put into judges’ hands a scalpel instead of an axe”: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at p. 461. If the court were to use that scalpel in this case to fashion an appropriate and just remedy, it would assume as proven facts that the Honda’s braking and acceleration capacities were far from optimum and that, but for these mechanical deficiencies, the Honda’s driver could have avoided the collision. However, for the reasons already provided, even if the court assumed these facts, they could have no impact on the court’s assessment of causation in this case.

D. Should the Court Exclude the Information from the ACM under s. 24(2) of the Charter?

[145] Mr. Yogeswaran seeks the exclusion from evidence of the report generated based on the data downloaded from the ACM. The Crown opposes its exclusion. The Crown does not seek to rely on any of the statements Mr. Yogeswaran made to Constable Chaudhry. Nevertheless, Mr. Yogeswaran litigated the breaches of his sections 10(a) and 10(b) Charter rights because he claims they reflect a larger pattern of constitutional violations relevant to the court’s analysis under s. 24(2).

[146] The violation of Mr. Yogeswaran’s s. 8 Charter right resulting from Detective Ball’s failure to obtain a warrant had a direct causal connection to the police acquiring the ACM and the information extracted from it. That evidence also has a strong contextual relationship to the s. 8 breach occasioned by Detective Ball’s failure to file a report with a justice. Accordingly, the evidence was obtained in a manner that violated Mr. Yogeswaran’s Charter rights: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-1006. It follows that the evidence is eligible for exclusion under s. 24(2) of the Charter.

[147] The decision to exclude unconstitutionally obtained evidence under s. 24(2) of the Charter requires a consideration of all the circumstances of the case. Under Grant 2009, it is necessary to assess and balance the effect of admitting or excluding the evidence on the integrity of, and public confidence in, the justice system. In doing so, the court must consider: i) the seriousness of the Charter-infringing state conduct; ii) the impact of the breaches on Mr. Yogeswaran’s Charter protected interests; and iii) society’s interest in an adjudication of the case on its merits: Grant 2009, at paras. 71, 85-86.

i) The seriousness of Charter-infringing state conduct

[148] The first line of inquiry requires the court to assess the state conduct that led to the Charter violations and situate it along a “continuum of misconduct”: R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 23. As the majority in Grant 2009 explained, at para. 74:

At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[149] The Charter breaches involved in this case fall at the more serious end of the spectrum for a few reasons.

[150] First, by the time Detective Ball searched Mr. Yogeswaran’s car for the ACM and seized it, Hamilton and Glenfield had decided that police required a warrant to enter a vehicle and access the data from an ACM. Before entering Mr. Yogeswaran’s vehicle to remove the ACM, Detective Ball acknowledged knowing about these two cases and that each had decided that a warrant was required.

[151] Detective Ball also knew about the British Columbia Court of Appeal’s decision in Fedan. By the time he searched Mr. Yogeswaran’s vehicle, he had reviewed a PowerPoint, apparently prepared by a lawyer with the Crown Law Office at the Ministry of the Attorney General and distributed to the police. The PowerPoint referenced both Hamilton and Glenfield and made clear that each held that a warrant was required. However, the PowerPoint also detailed the British Columbia Court of Appeal’s decision in Fedan, devoting much greater attention to it and signalling the author’s preference for that decision. Given this, not surprisingly, Detective Ball testified that he too preferred the decision in Fedan. The PowerPoint closed by instructing readers that “Fedan is NOT binding in Ontario.” On that same page, it told readers that: “Only the Ontario Court of Appeal and the Supreme Court of Canada can bind Superior Court judges in Ontario.” It emphasized that Hamilton and Glenfield are “only Ontario test cases and they are NON-binding.”

[152] The message conveyed by PowerPoint is troubling and an aggravating consideration when assessing the gravity of the Charter-infringing state conduct in this case. Whether or not the decisions of judges of the Ontario Superior Court of Justice or the Ontario Court of Justice are binding on other courts, until overturned by a higher court, they provide the best indication of the law in Ontario. When these courts weigh in on a subject, their opinions should be respected and followed by the police in Ontario unless a higher court suggests otherwise.

[153] When Detective Ball entered Mr. Yogeswaran’s vehicle to remove the ACM, the law in Ontario was clear: a warrant was necessary. Even if the PowerPoint’s author somehow thought that the British Columbia Court of Appeal’s decision was a relevant consideration for police officers in Ontario, the message to them should have been unequivocally cautionary. As the Supreme Court of Canada warned in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 94:

Of course, the police cannot choose the least onerous path whenever there is a gray area in the law. In general, faced with real uncertainty, the police should err on the side of caution by choosing a course of action that is more respectful of the accused’s potential privacy rights.

See also R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 132, per LeBel J., dissenting (“when the law is in flux, the police should err on the side of caution”).

[154] Given the decisions in Hamilton and Glenfield, Detective Ball should have obtained a warrant before entering Mr. Yogeswaran’s vehicle to search for and seize the ACM. Proceeding as he did, with the Crown’s tacit encouragement, while knowing that two decisions in Ontario had held that a warrant was required, renders the resulting s. 8 breach extremely serious.

[155] Second, the circumstances surrounding the failure to file the report required by s. 489.1(1)(b)(ii) of the Code are extremely concerning. To be sure, if that failure were only the result of inadvertence, the breach would fall on the less serious end of the spectrum. However, Detective Ball made a deliberate choice not to file the report even after he realized his oversight. To date, he has still not filed the report. His explanation for failing to do so reveals an unacceptably cavalier attitude towards this legal and constitutional obligation.

[156] Finally, also aggravating are the number of Charter violations in this case. The cumulative effect of four Charter breaches betrays a troubling pattern of police disregarding Mr. Yogeswaran’s constitutional rights during their investigation. That also serves to place the constitutional misconduct in this case at the more serious end of the spectrum: see R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 80; R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415, at para. 7.

[157] These conclusions, especially when taken together, weigh heavily in favour of exclusion. As the Supreme Court explained in Grant 2009, the more “severe or deliberate” the state conduct that resulted in a Charter violation, “the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct” so as “to preserve public confidence in and ensure state adherence to the rule of law”: Grant 2009, at para. 72; see also Le, at para. 143.

ii) Impact of the breaches on Mr. Yogeswaran’s constitutionally protected interests

[158] Under this line of inquiry, the court must measure the extent to which a Charter breach “actually undermined the interests protected by the right infringed”: Grant 2009, at para. 76. The impact may vary, from being fleeting (transient) or technical to profoundly intrusive. The more impactful on the interest protected, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant 2009, at para, 76.

[159] I begin with the impact of police entering Mr. Yogeswaran’s car to search for and seize the ACM and download its data. To be sure, the expectation of privacy in a vehicle is considerably less than that enjoyed in one’s home or office. Nevertheless, as car searches go, this was more invasive than most. Detective Ball did not just look inside Mr. Yogeswaran’s car; he removed one of its components. Further, the ACM recorded details concerning Mr. Yogeswaran’s driving, information the police hoped to use to build the Crown’s case against him. As a result, the search and seizure meaningfully impacted Mr. Yogeswaran’s constitutionally protected privacy interests.

[160] The fact that the police had the required grounds to obtain a warrant to search Mr. Yogeswaran’s car and seize the ACM serves to lessen the impact on his privacy interests somewhat. Nevertheless, by proceeding without judicial authorization when they had grounds to obtain a warrant, the police undermined the very purpose of s. 8 of the Charter. That is, to prevent unreasonable intrusions on privacy before they occur rather than sort them out after the fact: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 84.

[161] I next address the failure to file a report with a justice. The resulting Charter violation did not meaningfully impact Mr. Yogeswaran’s privacy interests. After all, had Detective Ball filed the report, the justice who received it would undoubtedly have authorized the continued detention of the ACM and the data extracted from it: see Code, ss. 490(1)(b), 490(2)(b), 490(3)(b). In short, Mr. Yogeswaran would be in no different position had the officer complied with the section’s requirements.

[162] Nevertheless, this is not merely a case of delayed compliance but a situation involving complete non-compliance: Garcia-Machado, at para. 6. To date, Constable Ball has still not filed a report and fulfilled the requirements of s. 489.1(1)(b)(ii) of the Code. Although there has been no practical impact on Mr. Yogeswaran’s privacy interests, the officer’s conduct has wholly subverted the judicial supervision of police seizures that are the very purpose of these provisions.

iii) Society’s interest in an adjudication on the merits

[163] Finally, the court must consider society’s interest in having this case adjudicated on its merits. In that regard, the court must determine if it would better serve truth-seeking to admit or exclude the evidence: Grant 2009, at para. 79.

[164] The ACM and its data are reliable evidence, the admission of which would surely advance the trial’s truth-seeking function: Grant 2009, at para. 81. Nevertheless, this is not a situation where exclusion will deliver a fatal blow to the Crown’s case: Grant 2009, at para. 83. The Crown has other evidence available to it, including evidence concerning the speed that Mr. Yogeswaran’s vehicle was travelling before the collision.

iv) Conclusion Regarding s. 24(2) Analysis

[165] After considering the three lines of inquiry identified in Grant 2009, which encapsulate “all the circumstances” of the case, the court must decide whether, on balance, the admission of the evidence obtained in violation of the Charter would bring the administration of justice into disrepute: Grant 2009, at paras. 85-86. This balancing exercise invariably requires a qualitative assessment that does not lend itself to “mathematical precision”: Grant 2009, at para. 140.

[166] In this case, the gravity of the state misconduct occasioning the various Charter breaches very strongly favours exclusion. In contrast, some of the circumstances attenuate the impact of these breaches on Mr. Yogeswaran’s constitutionally protected interests and, therefore, favour admission. Finally, although exclusion would not advance truth-seeking, it would also not entirely undermine it in the circumstances of this case.

[167] The first two lines of inquiry need not both strongly favour exclusion for such an order to be necessary. Serious breaches, even when there is only a weak impact on Charter protected interests, will sometimes, on their own, support a finding that the admission of the evidence would bring the administration of justice into disrepute – “[i]t is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion”: Le, at para. 141.

[168] In all of the circumstances of this case, on balance, an order excluding the evidence is necessary. The repute of the administration of justice would be more negatively affected by the court admitting the evidence and failing to dissociate itself from what are rather serious Charter violations.

Part II - The Charges Against Mr. Yogeswaran

[169] This part addresses whether the Crown has proven the charges against Mr. Yogeswaran – two counts of dangerous driving causing bodily harm – beyond a reasonable doubt.

[170] By way of an Agreed Statement of Facts, Mr. Yogeswaran admitted: i) that he was the person driving the Dodge Charger involved in the collision; ii) that the collision caused the injuries suffered by the driver of the Honda and the front passenger in that vehicle; and iii) that their injuries meet the Code’s definition of “bodily harm”. The Agreed Statement of Facts also attaches various aerial maps of the location and photographs police took during their investigation.

[171] At trial, the Crown called the driver of the other vehicle involved in the collision and four other motorists who witnessed the accident. The vehicle of one of the motorists (Mr. Prewal), travelling directly behind Mr. Yogeswaran right before the crash, was equipped with a dashcam. The video recording from that camera became an exhibit at trial. It is of high quality and provides the best evidence concerning Mr. Yogeswaran’s driving at the time of the alleged offences. It effectively makes the court an eyewitness to the events at issue.

[172] Given the dashcam video recording and the admitted facts, there are only three live issues in this case. First, the speed that Mr. Yogeswaran was driving before the collision. Second, whether Mr. Yogeswaran’s driving meets the definition of dangerous driving. Finally, if it does, whether it was a significant contributing cause of the bodily harm that the Honda’s occupants suffered in the collision.

[173] This part will begin by providing a brief description of the location and the driving conditions at the time of the accident. It will next address the evidence concerning Mr. Yogeswaran’s speed. After that, this part provides a detailed description of Mr. Yogeswaran’s driving as captured by the dashcam video. Finally, based on the evidence and the law, this part closes by assessing whether the Crown has proven the actus reus and mens rea of the offences charged beyond a reasonable doubt.

A. The Location and The Driving Conditions

[174] The collision occurred at the intersection of Airport Road and Braydon Boulevard in the City of Brampton. Airport Road runs north and south, while Braydon Boulevard runs east and west. There are traffic lights in all directions at the intersection – the cars collided in the northbound curb lane on Airport Road as it intersects with Braydon Boulevard.

[175] Heading north towards Braydon Boulevard, from the preceding intersection 570 metres to the south where it crosses Humberwest Parkway, Airport Road has three northbound lanes. These are separated from the southbound lanes by a wide concrete median. It is a major arterial road that cuts between residential neighbourhoods to the east and west. There are sidewalks a few feet from Airport Road on each side of the street.

[176] The posted speed limit on Airport Road between Humberwest Parkway and Braydon Boulevard is 70 km per hour.

[177] The three northbound lanes on Airport Road change configuration as the roadway approaches Braydon Boulevard. The curb lane transforms into a right turn lane, and a left turn lane emerges a short distance before the intersection. As a result, the centre lane becomes the curb lane once it passes through the intersection. The passing lane also continues through the intersection. In short, Airport Road northbound narrows from three to two lanes just after Braydon Boulevard.

[178] There is a commercial plaza on the southeast corner of the intersection of Airport Road and Braydon Boulevard. The plaza has numerous stores. At the time of the accident, many of the plaza’s stores were still open and its parking lot was relatively busy. The plaza has a driveway on its west side that feeds into the right turn lane on Airport Road just south of Braydon Boulevard and a second driveway on its northside that accesses Braydon Boulevard.

[179] There is a bus stop with an enclosed shelter just south of the intersection on the southeast corner. The bus shelter is only a couple of metres away from the right turn lane, separated from it by the sidewalk.

[180] There is a dedicated left-turn lane for motorists travelling southbound on Airport Road who want to turn left onto Braydon Boulevard.

[181] At the time of the collision, 6:45 p.m. on Wednesday, September 5, 2018, it was still daylight, with the sun just beginning to set in the west. It was just nearing the end of the rush hour, and traffic was moderate to heavy, with other vehicles using the intersection in all directions.

B. The Speed of Mr. Yogeswaran’s Vehicle Before the Collision

[182] Before the collision, Mr. Yogeswaran was travelling northbound on Airport Road towards the intersection at Braydon Boulevard. A pizza store in the plaza at the southeast corner of Airport Road and Braydon Boulevard had a video surveillance camera that pointed west towards Airport Road. The police retrieved footage from that camera from the date of the collision.

[183] A building on the western edge of the plaza obstructed the surveillance camera’s view of Airport Road. However, the camera was far enough back from the road so that on the left of the screen, the camera captured traffic passing by on Airport Road near the plaza’s western exit. And, to the right, it took in the intersection at Airport Road and Braydon Boulevard.

[184] On a subsequent date, police drove a van in the northbound curb lane on Airport Road past the plaza at a fixed speed. They then retrieved the footage from the pizza store’s surveillance camera from that day.

[185] Constable Misev then analyzed the two video recordings. Comparing them, he determined that the camera was in a fixed position and recorded the same number of frames per second on both dates. He identified the same two fixed points in both recordings. The first was a light post at the south end of the plaza, and the second was a brick pillar at its north end. Vehicles travelling northbound on Airport Road would cross both fixed points as they drove past the plaza and towards the intersection. Constable Misev identified the police van as it crossed the two fixed points. He was able to do the same for Mr. Yogeswaran’s vehicle on the recording from the date of the accident. Using all of this and applying the standard velocity equation, Constable Misev calculated an estimated average speed for Mr. Yogeswaran’s vehicle as it drove by the plaza just before entering the intersection. He estimated that Mr. Yogeswaran’s car was travelling at an average speed of 112 km per hour.

[186] During cross-examination, Ms. Kerr challenged the reliability of Constable Misev’s identification of Mr. Yogeswaran’s car on the surveillance video. She rightly pointed out that, given the distance, it is difficult to discern either the colour or model of the vehicle that Constable Misev identified as Mr. Yogeswaran’s car. However, the surveillance video also captures other larger vehicles travelling in the southbound lanes, including a tractor-trailer and another large truck. These same vehicles are also visible on the dashcam video. After viewing the two recordings together, I am satisfied that Constable Misev was using the surveillance footage from the moments immediately preceding the collision. And that he accurately identified Mr. Yogeswaran’s vehicle as the car whose average speed he was estimating.

[187] Finally, Constable Misev’s estimate of the average speed Mr. Yogeswaran’s vehicle was travelling is contingent on him traversing the same distance as the police van did when it crossed the same two fixed points. The police van travelled straight in the curb lane past the plaza. If Mr. Yogeswaran’s car travelled a further distance, which would be the case if he was also changing lanes while passing by the two fixed points, his average speed would be higher. For example, if he travelled three metres more than the police van, the estimate of his average speed would be 117 km per hour. If he travelled ten metres more, the estimation of his average speed increases to 127 km per hour.

C. Mr. Yogeswaran’s Driving Preceding the Collision

[188] For the most part, Mr. Yogeswaran’s driving, which is the focus of the charges he faces, was captured on the dashcam video from Mr. Prewal’s vehicle. Only two witnesses described his driving just before that, Mr. Prewal and Mr. Hryb. As between them, I prefer the evidence of Mr. Hryb. Mr. Prewal’s apparent hostility towards Mr. Yogeswaran and the trial process coloured the objectivity of his account.

[189] Mr. Hryb was driving northbound on Airport Road. He stopped in the centre lane at the intersection of Airport Road and Humberwest Parkway for a red light. To his left, in the passing lane, he noticed Mr. Yogeswaran’s vehicle. Their respective vehicles were first in line as they waited at the red light. When the light turned green, he described Mr. Yogeswaran’s vehicle accelerating quickly away from the intersection, northbound on Airport Road. Mr. Yogeswaran was travelling fast enough to leave behind Mr. Hryb’s vehicle and the other cars that had been waiting on the light with them. Mr. Hryb testified that he could see Mr. Yogeswaran’s vehicle catching up to the traffic at the next intersection. He believed Mr. Yogeswaran’s car changed lanes a couple of times and that he signalled his lane changes.

[190] Mr. Prewal’s vehicle was travelling ahead of Mr. Yogeswaran’s vehicle northbound on Airport Road. Mr. Prewal had made a right turn onto Airport Road from Humberwest Parkway. He began travelling north on Airport Road while Mr. Yogeswaran and Mr. Hryb were still waiting on the red light at that intersection. After turning onto Airport Road, Mr. Prewal’s vehicle gradually moved from the curb lane to the centre lane. Mr. Prewal’s vehicle was travelling in the centre lane, which would become the curb lane just past Braydon Boulevard.

[191] When Mr. Prewal’s vehicle was a couple of hundred metres south of Braydon Boulevard, the light at that intersection turned green for northbound traffic. The dashcam video shows traffic at the intersection in the distance moving forward, with one exception. There is a vehicle stopped in the passing lane just before the intersection. Ms. Brar was the driver of that vehicle, a silver Toyota Corolla. The Crown called her as a witness. Based on her account, it is clear that something distracted her attention away from the road while she was waiting at the intersection. Even though the light had turned green, permitting her to proceed through the intersection, she did not move forward.

[192] Constable Misev was able to calculate the speed of Mr. Prewal’s vehicle as he approached the intersection. He did so by using the dashcam video, the frames per second it recorded, two light poles he passed by (just south of the intersection) and the distance between them. Applying the constant velocity equation, he determined that Mr. Prewal’s vehicle was travelling 86 km per hour.

[193] About 150 to 175 metres south of the intersection, Mr. Yogeswaran’s vehicle becomes visible in the dashcam video as it quickly overtakes Mr. Prewal’s vehicle on its left. Mr. Yogeswaran’s car is in the passing lane, and Mr. Prewal’s vehicle is in the centre lane.

[194] The passing lane ahead of Mr. Yogeswaran’s vehicle is blocked just before the intersection by Ms. Brar’s Toyota, which is still not moving forward. As it passes by Mr. Prewal’s vehicle, Mr. Yogeswaran’s car begins moving from the passing lane to the centre lane in front of Mr. Prewal’s vehicle. Mr. Yogeswaran signals this lane change.

[195] Just before the intersection, as he moves from the passing lane to the centre lane, Mr. Yogeswaran’s vehicle just barely misses the rear of Ms. Brar’s car, which had still not begun moving through the intersection. Mr. Yogeswaran only completed his lane change just as he entered the intersection.

[196] As Mr. Yogeswaran’s vehicle was moving towards the intersection at Braydon Boulevard, in the southbound lanes at the intersection, the green Honda, driven by Ms. Lidhar, was positioned in the left turn lane.

[197] As Mr. Yogeswaran’s vehicle starts to emerge from behind Ms. Brar’s Toyota in the northbound centre lane, Ms. Lidhar starts to execute a left turn onto Braydon Boulevard. Just as Mr. Yogeswaran’s vehicle completes its abrupt lane change and begins entering the intersection, Ms. Lidhar’s vehicle reaches the point in her turn when her car is directly in the path of his vehicle.

[198] The rear brake lights on Mr. Yogeswaran’s vehicle become visible for a split second as his car passes the threshold of the intersection. The front of Mr. Yogeswaran’s vehicle then strikes the front passenger door of Ms. Lidhar’s car.

[199] The force of the impact spun the Honda around and propelled it off the road. It travelled over the curb and across the sidewalk at the intersection’s northeast corner before coming to rest in some bushes. The airbags deployed in Mr. Yogeswaran’s car on impact, and it sustained significant damage to its entire front end.

D. Has the Crown Proven the Offences Charged Beyond a Reasonable Doubt?

[200] Mr. Yogeswaran faces two charges of dangerous driving causing bodily harm in relation to both Ms. Lidhar and her daughter. Ms. Lidhar’s daughter was in the front passenger seat of the vehicle when the collision occurred. As noted, it is an agreed fact that both suffered “bodily harm” in the collision with Mr. Yogeswaran’s vehicle.

[201] At the time of the collision,[^1] the relevant portions of s. 249 of the Code provided:

249(1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[202] In recent years, the Supreme Court of Canada has addressed dangerous driving and its elements: see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v Chung, 2020 SCC 8. In Beatty, it summarized both the prohibited conduct (actus reus) and fault requirement (mens rea) of dangerous driving, at para. 43:

(a) The Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”.

(b) The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. 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.

[203] Additionally, as explained above at paragraphs 139 to 141, where an accused faces a charge for a predicate offence that causes a prescribed outcome, like dangerous driving causing bodily harm, the Crown must also prove that the accused’s criminal conduct constituted a significant contributing cause of the consequence. As a result, causation forms a part of the actus reus of the offence of dangerous driving causing bodily harm: see R. v. Romano, 2017 ONCA 837, 17 M.V.R. (7th) 181, at para. 19; R. v. O'Leary, 2017 ONCA 71, 7 M.V.R. (7th) 1, at para. 31.

[204] These reasons next consider whether the Crown has established each of these essential elements beyond a reasonable doubt.

i) Has the Crown Proven the Actus Reus of Dangerous Driving Beyond a Reasonable Doubt?

[205] The Crown must establish beyond a reasonable doubt that Mr. Yogeswaran’s driving at the time of the alleged offences was dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the roadway and the amount of traffic at the time. The focus is on the manner of the accused’s driving in the circumstances, not on its consequences: Beatty, at para. 46; Roy, at para. 34.

[206] Mr. Yogeswaran was travelling well above the speed limit on Airport Road as he approached the intersection at Braydon Boulevard. The dashcam recording, the surveillance video, and Constable Misev’s evidence, when considered together, support a finding that Mr. Yogeswaran was travelling approximately 117 km per hour just before he entered the intersection. (This follows because his car travelled at least a few metres farther than the police van due to his lane change.) The posted speed limit at that location was 70 km per hour. In other words, Mr. Yogeswaran was travelling nearly 50 km per hour above the speed limit just before entering the intersection and colliding with Ms. Lidhar’s vehicle.

[207] As he approached the intersection, Mr. Yogeswaran faced a light that had only recently turned green. However, the lane he was travelling in was not open ahead. Ms. Brar’s vehicle was blocking it at the intersection and not moving forward. Instead of slowing, Mr. Yogeswaran continued accelerating past Mr. Prewal’s car in the centre lane before abruptly moving into that lane.

[208] Although Mr. Yogeswaran signalled his lane change, given his speed and Ms. Brar’s vehicle not moving forward, the space available for him to change lanes was fast diminishing. Mr. Yogeswaran’s car only just avoided striking the rear of Ms. Brar’s vehicle before he managed to complete the lane change. As a result, Mr. Yogeswaran emerged from behind Ms. Brar’s car and passed it on the right, in an intersection, at a very high rate of speed.

[209] The question is whether this driving by Mr. Yogeswaran, when viewed objectively, was dangerous to the public in all of the circumstances. Therefore, the court must also consider the location and traffic conditions at the time. The intersection was next to a busy plaza. There were pedestrian sidewalks and a bus stop very close to the road. At the time, traffic was still relatively heavy, and other vehicles were using the intersection in all directions.

[210] I am satisfied beyond a reasonable doubt that Mr. Yogeswaran’s driving was dangerous to the public, having regard to all of the circumstances, including the nature, condition, and use of the roadway and the amount of traffic at the time. The combination of Mr. Yogeswaran’s excessive speed, the precise driving manoeuvres he executed, the location, and the traffic conditions establish the actus reus of dangerous driving.

ii) Has the Crown Proven the Mens Rea of Dangerous Driving Beyond a Reasonable Doubt?

[211] The Crown must establish beyond a reasonable doubt that Mr. Yogeswaran exhibited a lack of care in his driving that represented a marked departure from the standard of care that a reasonably prudent driver would observe in the same circumstances. As the Supreme Court noted in Roy, at para. 36, it is helpful to approach this element of the offence 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.

[212] Turning to the first question, in my view, a reasonably prudent driver would readily foresee the danger of accelerating towards an intersection, in moderate to heavy traffic, on a city street, at highway speeds, before changing lanes to pass a stopped vehicle on the right and in the intersection. Mr. Yogeswaran’s driving gave rise to an objectively foreseeable risk of causing harm to anyone using the intersection, or in its immediate vicinity, at the time.

[213] Instead of driving as Mr. Yogeswaran did, a reasonably prudent driver would have proceeded much more cautiously. For example, by slowing down and passing through the intersection behind Ms. Brar’s vehicle after she started moving forward. Alternatively, if Ms. Brar’s car remained stationary, a reasonably prudent driver would have slowed down and waited until after Mr. Prewal’s vehicle passed through the intersection before changing lanes and continuing through the intersection.

[214] The second question is whether Mr. Yogeswaran’s conduct represented a marked departure from the standard of care expected of a reasonably prudent driver in the same circumstances. Anyone who drives in the Greater Toronto Area knows that careless driving of all kinds is, unfortunately, commonplace. Dangerous driving is a criminal offence; it marks the boundary between the type of carelessness that constitutes an offence under provincial traffic laws or civil negligence and criminally culpable driving. Although a mere departure from the standard expected of a reasonably prudent motorist may support a conviction for careless driving under provincial traffic legislation or a finding of civil negligence in tort, criminal responsibility requires more; a marked departure from that standard: Roy, at para. 30.

[215] Although the driving at issue took place over a very short period, a matter of just seconds, it involved more than the kind of momentary mistake even reasonably prudent drivers sometimes make, like the mistimed turn on to a highway in Roy, the momentary loss of awareness in Beatty, or the momentary loss of control in R. v. Willock (2006), 2006 CanLII 20679 (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.).

[216] Mr. Yogeswaran’s driving resembled what one might expect from a stock car driver on a racetrack, not a reasonably prudent driver on a public roadway. Despite a vehicle stopped ahead of him in his lane, Mr. Yogeswaran accelerated towards it and a busy city intersection. He reached a speed nearly 50 km an hour above the posted limit. He narrowly avoided striking the stopped vehicle before completing his lane change. He emerged to the right of that vehicle to pass it in the curb lane, in an intersection and at high speed. In short, Mr. Yogeswaran’s driving was deliberate and extraordinarily aggressive.

[217] Accordingly, I am satisfied beyond a reasonable doubt that Mr. Yogeswaran’s driving represented a marked departure from the standard of care that a reasonably prudent driver would observe in the same circumstances.

iii) Has the Crown Proven beyond a reasonable doubt that Mr. Yogeswaran’s dangerous driving was a significant contributing cause of the bodily harm?

[218] Mr. Yogeswaran admits that the collision caused the injuries to Kiranjit and Khushi Lidhar. Given that he was driving the car that struck their vehicle, Mr. Yogeswaran’s “but for” role in causing their injuries is self-evident. The question the court must decide is whether the Crown has proven beyond a reasonable doubt that Mr. Yogeswaran’s dangerous driving was a significant contributing cause of the bodily harm suffered by the Lidhars.

[219] The accident and resulting injuries had a myriad of “but for” causes beyond Mr. Yogeswaran’s driving. That includes Ms. Lidhar’s decision to turn left when she did. That is, at a point in time when Ms. Brar’s car was on the cusp of entering the intersection, with the vehicles of Mr. Prewal and Mr. Yogeswaran also closing in, all of whom had the right of way. To be sure, Ms. Lidhar’s failure to yield to oncoming traffic and make a left turn when she did, played a significant role in causing the collision.

[220] Although Ms. Lidhar testified, she had no memory of the accident. It is apparent from watching the dashcam video that Ms. Lidhar must have thought she could make her turn before Ms. Brar’s vehicle began moving through the intersection. She either did not see Mr. Yogeswaran’s fast approaching vehicle or expected it to slow down behind Ms. Brar’s vehicle, permitting her to proceed safely with her left turn. No doubt, Ms. Lidhar did not anticipate that Mr. Yogeswaran’s vehicle would emerge from behind Ms. Brar’s car and enter the intersection at high speed in the northbound curb lane just as she was executing her left turn.

[221] Unlike causation in civil law, criminal law does not recognize contributory negligence. As the Supreme Court of Canada has noted, the criminal law does not “have any mechanism to apportion responsibility for the harm occasioned by criminal conduct, except as part of sentencing after sufficient causation has been found”: Nette, at para. 49. In criminal law, causation focuses on the accused’s act and asks whether his unlawful conduct was a significant contributing cause of the resulting harm: Nette, at para. 71; Maybin, at paras. 5, 28, 60.

[222] On behalf of Mr. Yogeswaran, Ms. Kerr argues that Ms. Lidhar’s improper and unsafe left turn breaks the chain of causation between Mr. Yogeswaran’s driving and the resulting bodily harm. In other words, that Ms. Lidhar’s left turn constitutes an “intervening act” that severs the causal link. Ms. Kerr argues that Mr. Yogeswaran may have played a role in setting the scene but that Ms. Lidhar’s left turn overtook any contribution made by his driving. Consequently, it would be unfair to hold Mr. Yogeswaran responsible for the consequences of Ms. Lidhar’s ill-advised decision to turn left when she did.

[223] In advancing that argument, Ms. Kerr relies on the British Columbia Court of Appeal’s decision in R. v. Wilkins, 2007 BCCA 335, 47 M.V.R. (5th) 188. In Wilkins, the trial judge found the accused guilty of dangerous driving causing bodily harm. The accused was travelling twice the speed limit on a rural road when another driver turned left in front of him, resulting in a collision that caused bodily harm to the left-turning driver.

[224] The British Columbia Court of Appeal overturned the conviction and ordered a new trial because the trial judge failed to address causation. It noted that beyond the accused’s responsibility to drive safely, “there was also a responsibility on the part of the left-turning driver to stay in her lane of travel and not to leave it until it was safe to do so”: Wilkins, at para. 14. The court noted, at para. 15, that:

The involvement of the second vehicle in these circumstances raises, in a more than perfunctory way, the issue of causation: was the element of the appellant’s driving that made it dangerous (his speed in all the circumstances) a significant contributing cause of the accident?

[225] In Wilkins, the Crown encouraged the court to affirm the conviction because it claimed there was more than a sufficient basis for the trial judge to find causation. The court declined to do so, with Saunders J.A. explaining: “While I cannot say what view the trier of fact would take of the evidence on this point, on my review of the record, there is a body of evidence upon which the trier of fact could find causation was established”: Wilkins, at para. 21 (underlining in original). Instead, the court allowed the appeal and ordered a new trial.

[226] Ultimately, Wilkins reinforces that causation is an essential element of dangerous driving causing bodily harm. It does not hold that where an accused faces a criminal driving charge, a left-turning driver’s role in causing a collision in which they were injured or killed necessarily severs the causal link between the accused’s driving and the consequence. Causation does not lend itself to any hard and fast rules. It ultimately turns on a careful application of the law to the particular facts of a given case.

[227] In Maybin, the Supreme Court of Canada recognized that when it comes to questions of causation involving intervening acts, foreseeability supplies a useful analytical tool: Maybin, at paras. 28-29, 60. For the Court, Karakatsanis J. explained its potential utility, writing at para. 38:

… I conclude that it is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct. Nor does it assist in addressing moral culpability to require merely that the risk of some non-trivial bodily harm is reasonably foreseeable. Rather, the intervening acts and the ensuing non-trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the [accused]. If so, then the accused’s actions may remain a significant contributing cause of death.

[228] In this case, it is helpful to ask whether it was reasonably foreseeable that, because of Mr. Yogeswaran’s dangerous driving, another motorist might enter the intersection when unsafe to do so, resulting in a serious collision causing bodily harm? In my view, it was. By driving as he did, accelerating towards a busy city intersection at a speed well above the limit, making an aggressive lane change just before the intersection, and passing a stopped vehicle on the right and in the intersection, Mr. Yogeswaran’s driving gave rise to a reasonably foreseeable risk that another motorist might fail to see his car or misjudge his speed or intentions and enter the intersection when it was unsafe to do so, resulting in a serious collision. In other words, the outcome was a reasonably foreseeable consequence of the type of dangerous driving engaged in by Mr. Yogeswaran.

[229] Although Ms. Lidhar’s left turn played an instrumental role in causing the collision, it did not displace the significant contribution made by Mr. Yogeswaran’s dangerous driving. As a result, Ms. Lidhar’s ill-advised left turn does not qualify as an intervening act that severed the causal link between Mr. Yogeswaran’s dangerous driving and the resulting bodily harm. In other words, there is nothing unjust about holding Mr. Yogeswaran responsible for the entirely predictable consequences of his deliberately dangerous driving.

[230] In all of the circumstances, I am satisfied beyond a reasonable doubt that Mr. Yogeswaran’s dangerous driving was a significant contributing cause of the bodily harm suffered by Kiranjit Lidhar and Khushi Lidhar in the collision.

Conclusion

[231] The Crown has established beyond a reasonable doubt each of the essential elements of the two offences charged. Therefore, the court finds Mr. Yogeswaran guilty of both counts of dangerous driving causing bodily harm contrary to s. 249(3) of the Criminal Code.

Signed: Stribopoulos J.

Released: February 18, 2021

[^1]: Parliament repealed section 249 in 2018: see An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, s. 14, and replaced that section with what is now s. 320.13 of the Criminal Code. The amendments came into effect on December 17, 2018.