Court File and Parties

COURT FILE NO.: CR 19-1618 DATE: 2021 03 11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN David D’Iorio, for the Crown

– and –

AZAR SHEIKH Amadeus DiCarlo, for the Accused

HEARD: February 1, 2, 3, 4, 5, 8, 10, 12, 2021

Reasons for Judgment

J.M. WOOLLCOMBE J.

Overview

[1] At approximately 1:15 a.m. on September 14, 2017, Azar Sheikh drove his BMW sports car north on Mavis Road in Mississauga. At the same time, Diosdada Pascual was driving in his Toyota Highlander home from work, accompanied by his co-worker and friend, Rustico Gamat. Mr. Pascual went south on Mavis Road and turned left turn onto Bristol Road. In the intersection, the two cars collided with a significant amount of force. The front of Mr. Sheikh’s BMW was smashed in. The BMW spun around and came to rest on the sidewalk north east of the intersection. The passenger side of the Highlander was deeply impacted. The Highlander was flipped on its side. It too ended up north east of the intersection, in a grassy area north of the BMW. The scene photographs of the vehicles after the collision can fairly be described as chilling. Tragically, Mr. Gamat was killed. Mr. Pascual suffered serious injuries. Mr. Sheikh suffered much less significant injuries.

[2] Mr. Sheikh is charged with impaired driving causing death and causing bodily harm, drive over 80 causing death and causing bodily harm, dangerous driving causing death and causing bodily harm and criminal negligence causing death and causing bodily harm.

[3] This Crown’s case rests on inferences it submits ought to be drawn from the cumulative effect of the evidence. In reaching my legal conclusions, I have considered all of the evidence and made factual findings respecting the credibility and reliability of the eyewitnesses. I have considered what inferences can and should be logically drawn from their observations. I have also carefully reviewed and assessed the opinions of the witnesses who, on consent, offered expert opinion evidence.

[4] Having done so, I find Mr. Sheikh guilty of the impaired driving, dangerous driving and criminal negligence charges. I am not satisfied beyond a reasonable doubt of his guilt on the drive over 80 charges.

Positions of the Parties

[5] In support of its case, the Crown adduced evidence that:

a) Three witnesses observed a white BMW similar to Mr. Sheikh’s driving northbound on Mavis Road shortly before the crash. These individuals described the driver revving his engine in what appeared to be an invitation to other drivers to race, racing and driving at a very high rate of speed;

b) Mr. Sheikh showed signs of being under the influence of intoxicants immediately after the collision;

c) Mr. Sheikh’s breath and blood samples revealed the presence of alcohol and MDMH. According to the opinion of expert toxicologist Dr. Elliot, who documented the concentration of alcohol and MDMH in his body, Mr. Sheikh’s BAC at the time of the driving was between 84 and 104 mg of alcohol in 100 mL of blood. The readback of the BAC determined by Credit Valley Hospital was 90 to 110 mg/100 mL. The readback of the BAC from the breath sample was 65 to 10 mg/100 mL;

d) Dr. Elliot’s expert opinion that at these levels of blood alcohol concentration, Mr. Sheikh’s ability to drive was impaired by alcohol;

e) Expert reconstructionist Daniel Carrier was able to download the information recorded in the Event Data Recorder (“EDR”) of the Highlander at the time of the collision. It recorded the speed of the Highlander immediately before the collision and the lateral and longitudinal crash pulses. From this information and the location of the vehicles after the collision, he calculated the speed of the BMW at the time of impact as 112 kph, a number that increased to 113 kph if the relative weights of the occupants of the vehicles were considered and a change of 3° was allowed in the .

f) Using the speed of the BMW calculated by Mr. Carrier as 112 kph, and the information from the Highlander’s EDR, including its speed at the time of the collision, expert reconstructionist Constable Misev calculated that 4.4 seconds before the collision, the BMW was 136.99 metres from the intersection. He then calculated where the BMW would have been as the Highlander went through the intersection if the BMW had been travelling at various lower speeds than the 112 km/hour. It was his conclusion that had the BMW been travelling at any speed lower than 103 km/hour, it would not have collided with the Highlander.

[6] The defence has challenged various aspects of the Crown’s case through cross-examination of the Crown witnesses and in submissions. This includes disputing:

a) The evidence of the civilians that it was Mr. Sheikh’s BMW seen earlier on Mavis Road and that, if it was, that he was speeding or racing prior to the collision;

b) That the evidence of the observations of Mr. Sheikh after the collision suggested that he was impaired;

c) The evidence of the toxicologist that Mr. Sheikh was impaired at this level of BAC;

d) That the BAC evidence proves that Mr. Sheikh was driving with a BAC of over 80 mg/100 mL of blood;

e) The evidence of the accident reconstructionist respecting Mr. Sheikh’s speed at the time of impact;

f) Any suggestion that Mr. Sheikh caused the collision given the defence position that Mr. Pascual, by not signalling his intention to make a left turn, was the cause of the collision.

[7] The defence position is that the Crown has failed to prove each of the offences charged.

Factual Findings and Conclusions

[8] I will begin by setting out my factual and credibility findings.

The Highlander’s route before the collision and the collision itself

[9] The evidence respecting the Highlander before the collision came from three witnesses: its driver, Mr. Pascual, and two other drivers who were travelling south on Mavis Road behind Mr. Pascual: Muhammand Zaman and Natalia Marcellin. In addition, the Event Data Recorder (“EDR”) from the Highlander was removed and the information stored on it was downloaded. It provides the speed and braking patterns of the Highlander over the 4.4 seconds before the collision in one second increments.

[10] Diosdada Pascual testified that in the fall of 2017, he had worked at the same plant in Mississauga for almost nine years. His shift was 4:00 p.m. to 1:00 a.m. on Monday through Friday. Each day, he drove to and from work, taking along his friend Rustico Gamat, who lived near him. At the time of the collision, he was driving a 2008 Toyota Highlander that he had purchased five years earlier. Shortly after 1:00 a.m. on September 14, 2017 after ending their shift, they left work. Mr. Pascual took his usual route. They drove south on Mavis Road. Mr. Pascual planned to make a left turn off Mavis Road onto Bristol Road.

[11] Mr. Pascual testified that as he approached Bristol Road, the light was green. His evidence was that before he reaches the intersection, he always puts his signal on. He recalls signalling. He has no recollection of there being any car behind him. He saw no headlights approaching the intersection from the south. His last memory is of stopping at the intersection to be sure it was clear before making his left turn. Under cross-examination, he was certain that he had reduced his speed to 0 kph before turning. He recalls nothing before turning left other than that he stopped. His next memory is waking up in the hospital.

[12] There is no issue that Mr. Pascual suffered a number of injuries as a result of the collision. He had a laceration on the right side of his head, a broken shoulder and an injured rotator cuff with muscle tear. He had internal injuries to his liver, lungs, diaphragm, kidney and colon. He had three fractured ribs and five fractured vertebrae. He had difficulty walking. Through rehabilitation, he progressed from using a wheelchair to a walker. He still needs a cane. Despite two surgeries on his shoulder, he still cannot raise his right arm fully and testified to having almost constant pain. He has not worked since the collision.

[13] Mr. Zaman did not testify. On consent, his videotaped statement to police was admitted into evidence. He worked as an Uber driver, had dropped off a passenger and was heading home southbound on Mavis Road in the middle lane of the three lanes. He said that the speed limit was 70 kph but that he had been going 55 or 60 kph.

[14] As he approached the intersection at Bristol Road, the light was green. He saw an SUV (the Highlander) travelling south ahead of him. He was four to five car lengths behind it. He saw the SUV make the left turn. It slowed, but did not stop before making the left turn on the green light. Mr. Zaman said that the SUV did not signal before making the turn. Asked whether he had seen the BMW coming northbound prior to the collision, Mr. Zaman said that he had not, and did not see it until the collision. He said that “I think the opposite side of the road was completely empty, ‘cause from, from where I was driving I didn’t really see any cars coming…”. He elaborated that, “Everyone was going s-, normal speed, but I’m not sure where the BMW came from or what happened, but it was crazy”.

[15] Mr. Zaman saw and heard the collision. He said that the SUV flew over towards the side, hit a tree and was flipped. The BMW turned around 360°, or around in a circle, and went to the side. Mr. Zaman stopped his vehicle, made a 911 call and ran toward the SUV to see if its occupants were alright.

[16] Mississauga Transit driver Natilia Marcellin was driving on her bus route south on Mavis Road, approaching Bristol Road, at 1:15 a.m. She did not see the vehicles before hearing the collision. She testified that she heard a sound like a vehicle was braking really hard, and then a crash or big bang. A few seconds later she saw a vehicle roll over and stopped the bus.

[17] The EDR from the Highlander provides accurate and objective evidence about the speed at which it travelled prior to the collision. It indicates the following:

• 4.4 seconds before the collision, the Highlander was travelling at 42 kph;
• 3.4 seconds before the collision, the Highlander was travelling at 38 kph;
• 2.4 seconds before the collision, the Highlander was travelling at 32 kph;
• 1.4 seconds before the collision, the Highlander was travelling at 28 kph;
• 0.4 seconds before the collision, the Highlander was travelling at 32 kph;
• At the time of the collision, the Highlander was travelling at 44 kph.

[18] There is no question that Mr. Pascual is incorrect about having stopped completely before making the turn. The EDR indicates that he slowed down and then sped up again as he turned. His speed was never below 28 kph. His evidence that he stopped is clearly inaccurate.

[19] The evidence as to whether Mr. Pascual signalled before making the left turn is inconsistent. He says he did. The defence position is that he is not being truthful. In my view, his evidence about what happened immediately before the collision is unreliable, as demonstrated by the fact that he was mistaken in believing that he came to a full stop before turning. While I accept that in the normal course he used his indicator before turning, given Mr. Zaman’s evidence, I am not able to conclude that Mr. Pascual used his indicator on this occasion. He may have. He may not have.

The driving conditions and speed limit

[20] Peel Regional Police Constable Kenneth Yule was dispatched to the intersection of Mavis Road and Bristol Road at 1:15 a.m., arriving at 1:18 a.m. He described the road as dry and in good repair. The lights in the intersection were functioning properly.

[21] According to Constable Yule, the posted speed limit was 60 kph. According to another officer, expert accident reconstructionist Constable Misev, the posted speed was 70 kph. There are photographs in Exhibit 2 depicting a posted speed limit of 70 kph for drivers going north on Mavis Road after the intersection with Bristol Road.

[22] Counsel agree that the evidence as to the speed limit was inconsistent. The defence suggests that it was 70 kph. Mr. D’Iorio agrees that it would be reasonable for me to conclude from the evidence that the speed limit on Mavis Road was 70 kph at the point of the intersection, going both north and south. I will proceed on the basis that the speed limit going in both directions toward the intersection was 70 kph.

Observations of a white BMW northbound on Mavis Road before the collision

[23] Three witnesses testified about their observations of a white BMW driving northbound on Mavis Road shortly before the collision. The Crown position is that these witnesses described the vehicle driven by Mr. Sheikh. The Crown submits that Mr. Sheikh was showing off the power, speed and volume of his sports car to other drivers, that he was trying to engage other drivers in racing and that he was driving at excessive speeds. The defence submits that the Crown has not proven that these witnesses saw Mr. Sheikh’s BMW and that even if it was him, he was not trying to engage others in racing.

[24] The first two witnesses, Ahmad El Nasser and Mohamed Dahcheh, made their observations from Mr. El Nasser’s Tesla after it turned to go north on Mavis Road around Burnamthorpe.

[25] Mr. El Nasser said that as soon as they turned onto Mavis Road, at around 1:00 a.m., he saw a car in his rear-view mirror travelling in the same direction that they were, catching up to them because it was travelling at a high rate of speed. He said that the car was a white, two-door BMW Model M3 E92, a vehicle with which he was familiar because he had owned the same model of car. Mr. El Nasser was very knowledgeable about this model of vehicle. He described it as having come out in late 2007 or 2008 and said that they continued to be manufactured until about 2013. It had a V8 engine. He testified that he recognized the car he saw as the same as his because he had an unobstructed view of it and could hear what he described as its distinctive engine sound.

[26] Mr. El Nasser agreed under cross-examination that while he had owned a 2008 model, he did not know the year the BMW he saw was made, and that it might have been a later model.

[27] Mr. El Nasser testified that as soon as the BMW caught up with him, it “matched” his speed and pace. He looked over and said that the driver was looking back at them with a longer than usual stare. Rather than accelerating at a constant speed, he described the driver of the BMW as jerking the car forward, by which he meant that he would accelerate forward, making the distinctive full throttle sound, and would then drop back and match their speed. He said that the BMW driver jerked the car forward and then dropped back two to three times. He perceived it as a clear indication that the person wanted to race or to challenge them to a race. He had experienced this before when driving his Tesla as he said that people know the Tesla to have a high ability to accelerate.

[28] Under cross-examination, Mr. El Nasser agreed that if the BMW was a 6-speed manual transmission, switching gears could cause it to jerk forward and back. However, he described gear shifting as a “subtle jerk” that does not push the car forward much. He accepted that he did not know what gear the car had been in.

[29] Mr. El Nasser said his windows were open. He could not recall if the BMW windows were open. He said that he could see that the driver was a male. He did not react in any way to the invitation to race from the BMW. He and his passenger, Mr. Dahcheh talked about the fact that the driver wanted them to race.

[30] Mr. El Nasser said that they then watched the driver of the BMW doing the same thing he had done with them with at least two other vehicles. At this point, Mr. El Nasser was in the right lane, the BMW was in the middle lane and the other vehicles were in the left lane. He saw the BMW make the same jerking movements and matching speeds. It stood out because the other vehicles were all driving at a constant speed and the BMW would slow, match their speeds, and then he would hear the noise of a very high throttle response, like an abrupt acceleration as the BMW changed speed and momentum. Mr. El Nasser did not see the other cars respond to this challenge. He agreed that the BMW driver had not been putting anyone in imminent danger doing this.

[31] Mr. El Nasser was asked about the license plate of the BMW. He said it was not one of the newer Ontario blue plates. He described it as a personalized plate that did not have the usual crown separating the initial letters and later numbers. He said that there were letters at the beginning and that there might have been numbers. The license plate began with the letter “S”.

[32] Mr. El Nasser also described the white BMW as having black rims on the tires, something he found unusual.

[33] Mr. Dahcheh testified that as they went north on Mavis Road, Mr. El Nasser brought to his attention that there was someone trying to race with them. He had been on his phone, but testified that he could hear the revving sound and saw a white sports car that he recognised as a BMW when he looked at the emblem. He thought it was two-door.

[34] Mr. Dahcheh explained that the BMW pulled up next to them and that the driver was staring at them. He said that the driver’s windows were tinted, but that he could see the silhouette of the driver looking at them. He described the driver revving his engine really loud in what he thought was an effort to get their attention. He could both hear the engine revving and see the BMW “rolling back and forth” in the lane to the left of them, keeping pace with them as they moved forward. He saw the BMW driver jerk the car forward, or rev the engine, three or four times. He and Mr. El Nasser spoke about the other driver being an idiot and trying to race them. They did not respond.

[35] Mr. El Nasser and Mr. Dahcheh turned off Mavis Road to go west on Highway 403.

[36] Mr. El Nasser said that he had been able to watch the BMW until he turned off. His final observation of the BMW was as he was in the right lane for the ramp and watched the BMW accelerating at near or full throttle. He both saw the car accelerate at a high rate of sped, quickly pulling away from the other vehicles, and heard the audible engine sound. Again, he agreed that the BMW had not been doing anything dangerous. Mr. El Nasser was cross-examined extensively about how he was able to see the BMW as he got onto the ramp and was firm that he had been capable of doing so.

[37] Mr. Dahcheh’s last observation of the BMW was as they were turning right to go onto the ramp to take Highway 403 west. He said that the BMW was “flooring it” and that he heard the loud exhaust noise.

[38] After stopping at Mr. Dahcheh’s home, the two men went to the area of the collision so that Mr. El Nasser could use the bank machine at Mavis Road and Bristol Road. As they drove north on Mavis Road approaching Bristol Road, they saw police lights and were curious about what had happened. Mr. Dahcheh thought this had been 15 minutes after they had seen the BMW from the ramp onto Highway 403.

[39] As the approached, Mr. El Nasser said that he saw both the vehicle on the north east side of the intersection (the Highlander) and a white BMW. His immediate thought was that it was the same BMW he had seen earlier, which he thought had been about 15 minutes before. His reasons for this opinion were that he had seen the same model of white E92 M3 BMW 15 minutes earlier, that he noted the black rims and that he could see a similar personalized license plate, with no crown, that began with “S”. They spoke to the police and Mr. El Nasser made a statement at 1:47 a.m.

[40] I found Mr. El Nasser’s evidence measured, thoughtful and persuasive. He did not embellish. He was clearly not adverse to or judgmental of Mr. Sheikh. I observe, for example, that when defence counsel suggested that he had seen the BMW driver “taunting” other drivers, he specifically rejected the use of that term, making clear that he would not characterize the driver’s actions in that way. Further, when asked his impression about how safely the driver of the BMW was driving, he testified that there was very light traffic and that the roads were dry, so he did not think there was any imminent danger, including while the driver was jerking his car beside him. He candidly and fairly testified that whether the speeding away was dangerous was not for him to say.

[41] I accept the descriptions of the manner in which the BMW was driven as described by Mr. El Nasser and Mr. Dahcheh. I am satisfied that the actions of the driver of the BMW were such that the driver was trying to entice other vehicles to race with him. I say this because he was revving his engine, matching their speed, staring into their vehicle and repeatedly racing ahead and then dropping back. I also accept the evidence that they observed the driver of the BMW doing this same action with two other drivers in the lanes to their left when the BMW was in the centre lane. It was clear to Mr. El Nasser and Mr. Dahcheh that the driver of the BMW was attempting to engage others in a race. I agree. I reject any suggestion that this was normal gear shifting or driving on the part of the BMW driver.

[42] Finally, I accept their evidence that the BMW took off north on Mavis Road at a high rate of speed when they exited Mavis Road to take Highway 403. They both described the BMW leaving in a similar fashion, making clear that each viewed it as having driven away extremely quickly. I accept that they were able to see this.

[43] I am also satisfied that the white BMW seen by Mr. El Nasser and Mr. Dahcheh was Mr. Sheikh’s vehicle. First, Mr. El Nasser able to describe the make and model of the white BMW he saw as an E92 M3, the exact model driven by Mr. Sheikh. Second, Mr. El Nasser observed the black rims on the vehicle he saw on Mavis Road, a feature that was also present on Mr. Sheikh’s BMW. Third, Mr. El Nasser described the BMW he saw on Mavis Road as having a personalized license plate, that did not have a crown between letters and number, and which began with the letter “S”. Mr. Sheikh’s license plate was “SHNBKE”, exhibiting all the features described by Mr. El Nasser. Fourth, I accept that there were not many cars on the road at this time in the early morning, making the likelihood that there were two, virtually identical white BMWs of the same model, with the unique license plate, on this small stretch of road at the same time highly unlikely. Finally, it is significant that the BMW was seen by Mr. El Nasser and Mr Dahcheh speeding towards the scene of the collision approximately 15 minutes before Mr. Sheikh was involved in a high-speed collision. In all these circumstances, I have no hesitation in concluding that the BMW they observed was Mr. Sheikh’s.

[44] The third witness to a white BMW before the collision was Bader Malik. He testified that after finishing work on September 14, 2017, he drove northbound on Mavis Road towards home. At about 1:10 a.m., he was stopped at a red light in the left lane on Mavis Road at the intersection of Eglinton Avenue. There were two empty lanes to his right. He said that all of a sudden, his attention was drawn to a loud revving sound from his right. Two cars were stopped, one in each lane. Furthest to his right was a white, four-door BMW that he described as having a trunk. He was not sure the make of the other vehicle, but thought it was a Volkswagon. His windows were closed.

[45] Mr. Malik described the vehicles as both revving their engines and said it looked like they intended to race. They were at the red light for about 30 seconds. When the light turned green, he started to drive at a normal speed of 40 to 50 kph. He described the two white cars as accelerating very fast, at the same speed, such that they were parallel. He said that they made a revving sound like they were high throttle or full throttle. He estimated that they had been going over 100 kph. From their speeds and the fact that they had been revving their engines at the red light, he believed that they were racing. They disappeared a few seconds later, when he was between Eglinton and Winterton Way on Mavis Road.

[46] Mr. Malik testified that when he arrived at the intersection of Mavis Road and Bristol Road, he saw that there had been a collision between a white BMW and an SUV. He believed it was the same BMW that he had seen racing because there were no other cars on the road at the time and because he arrived at the collision a minute or two after seeing the BMW racing. He believed that the BMW had been a four-door vehicle and that the BMW he saw at the scene of the collision was also four-door. He agreed that he could not positively identify that the BMW was the same one he had seen.

[47] I found Mr. Malik to be a very credible witness. He described the observations he had made in a dispassionate and logical way. He did not exaggerate. He made reasonable concessions under cross-examination, including that he could not be certain whether the BMW he saw on Mavis Road was the same one involved in the collision. He was clear, consistent and unequivocal about what he had seen, even though it was for quite a short duration.

[48] I accept Mr. Malik’s evidence as to what he saw and heard the driver of the BMW doing at Mavis Road and Eglinton and as it went north. He heard the revving engine or engines, saw the two white cars speed off and believed that they were racing. While the defence suggests that he does not know if the two vehicles he saw were racing, I disagree. He fairly described what he had seen and heard and his characterization, or impression that what he observed, as racing was entirely reasonable, logical and made sense.

[49] I also accept that the BMW Mr. Malik saw was Mr. Sheikh’s. I reach that view despite the fact that Mr. Mailk believed the white BMW he had seen was four-door and the fact that Mr. Sheikh’s BMW was two-door. I do not find this error that significant given the short time for which Mr. Malik saw the BMW and the fact that it was two lanes over from where he was, with the other white car in between them. What is significant, in my opinion, is that there was a relatively short distance from where Mr. Malik lost sight of the BMW speeding up Mavis Road, before Winterton Way, to the scene of the collision. There were, according to Mr. Malik, relatively few cars on the road at 1:15 a.m. Mr Malik arrived at the scene of the collision involving a white BMW only a minute or two after he had seen a white BMW speed off. Taken together, this evidence leaves me with no doubt that the BMW he saw was Mr. Sheikh’s.

[50] In summary, I conclude that in the period of time he drove up Mavis Road from between Burnamthorpe and Highway 403, and again between Eglinton to north of Winterton Way, in the minutes before the crash, Mr. Sheikh drove at excessive speeds, well over the 70 kph limit. Furthermore, I find that he actively tried to engage other cars in racing with him, intent on showing off the power of his car and that he did race with the other car that was stopped at the light beside him at the intersection of Mavis Road and Eglinton Avenue.

Observations of Mr. Sheikh after the collision

[51] There were a number of witnesses who saw or spoke with Mr. Sheikh at the scene of the collision.

[52] As I have indicated, Mr. Zaman witnessed the collision itself. While he was calling 911, he said that Mr. Sheikh came out of the BMW and sat down, appearing to be in shock. Mr. Zaman turned his attention to the occupants of the Highlander.

[53] After hearing the screeching brakes and crash of the collision, Ms. Marcellin stopped her bus, called Control and took two photos, Exhibits 3A and 3B. She saw Mr. Sheikh get out of the driver’s seat and sit down on the ground, looking disoriented. The photos depict him sitting on the ground beside the BMW. She explained that he was moving his head around and put his hand on his forehead and his face on the palm of his hand.

[54] Others who lived nearby also attended the scene and saw Mr. Sheikh.

[55] The first neighbours to see Mr. Sheikh were Kamaljeet and Mohanjit Panasar. They lived on the northwest corner of the intersection, just west of Mavis Road, about 30 metres from the intersection of Mavis Road and Bristol Road. They heard the big bang that sounded like a crash and decided to go and see what had happened. Mr. Panesar testified that collisions were common in this area. Ms. Panesar thought this crash was louder than usual.

[56] As they crossed Mavis Road to the east side, Mr. Panesar saw Mr. Sheikh get out of the white BMW and sit on the ground. When they reached him, Mr. Panesar asked if he needed help. Mr. Sheikh shook his head indicating “no”. When asked a second time, he responded, “no”. Asked how he appeared, Mr. Panesar said that he looked like he was in shock. He reached this view because the man refused help, got up, walked around in a circle and them came back.

[57] Ms. Panesar saw the damaged white BMW and watched Mr. Sheikh get out of the driver’s side. She did not speak to him but heard her husband ask if needed help and saw him shake his head to indicate that he did not. She thought his facial expression was one of shock.

[58] The other two neighbours who made observations at the scene were Incia Palmieri and her mother Nargis Zaffir. They had been at Ms. Zaffir’s home on Bristol Road, just west of Mavis Road. After hearing a loud crash, they immediately went to see what had happened. Ms. Palmieri called 911. She saw the person she believed had been the driver of the BMW seated by the car on the road.

[59] Ms. Palmieri described Mr. Sheikh as appearing pretty shaken up. He was seated by the car and she thought he was processing what had happened in what had clearly been a high impact collision. When they arrived, he was seated by the car on the road. She saw him stand up, walk around the car and sit back down.

[60] Her mother, Nargis Zaffir, recalled seeing the van on its side. She saw a man standing next to the BMW and shouted out to ask him if he was okay. She said he did not reply. Her attention was then taken to the Highlander where a crowd of people were gathering.

[61] She then returned to the man sitting by the BMW and asked if he needed anything. She said that he got up and went to the vehicle and then sat down and took out a coconut water, which he began drinking. Asked how he appeared, she described him as very calm, but also said that he seemed “zoomed out”, in that he did not respond to her, and that he was obviously shaken up.

[62] The first police officer on the scene was Constable Sutton, now known as Constable Eritsos.

[63] She received a call at 1:14 a.m. and arrived on the scene at 1:18 a.m. She first dealt with those in the Highlander. After fire and paramedics arrived, she spoke to Mr. Sheikh, who was sitting on the grass alone. He identified himself as the driver of the BMW.

[64] Constable Eritsos said that Mr. Sheikh kept trying to stand up but that he was unsteady and so she told him to sit down because she was concerned about his injuries. She thought he had tried to stand up more than once and said that each time, he started to sway and was stumbling and trying unsuccessfully to catch his balance. She saw scratches on both his arms and wanted to ensure that he did not have severe injuries.

[65] Constable Eritsos used her flashlight because it was dark. She testified that Mr. Sheikh’s eyes were bloodshot, his pupils were dilated and his speech was slow when he spoke with her. It was not clear to me what she understood by pupils being dilated, as she seemed to testify that to her this meant that they were smaller. She was unsure initially whether the slurred speech and unsteadiness were as a result of injuries. As she got closer to his face to speak with him, she noted an odour of alcoholic beverage on his breath. Under cross-examination, she said that the odour had been strong. She concluded that he was an impaired driver. The factors she considered in reaching this view included his initial unsteadiness, his bloodshot and dilated eyes, his slurred speech and the smell of alcoholic beverage on his breath. At 1:28 a.m., she arrested him for impaired driving causing death and causing bodily harm. After his arrest, she had him assessed by paramedics.

[66] Paramedics Sean Mason and Jill Ferris arrived on scene at 1:27 a.m. They were directed to the north east corner of the intersection where Mr. Sheikh was sitting on the curb near his BMW. There, they assessed him.

[67] Mr. Mason spoke with Mr. Sheikh and was responsible for obtaining the history and looking for injuries. Mr. Sheikh told him that he had been driving 80 kph, was t-boned and had been able to get out of his vehicle on his own. He denied having any injuries to his head, back or neck or having any dizziness. As a precaution, he was placed on a back board with a cervical collar to mobilize him. Mr. Mason described him as slow to respond to questions, but said that he answered appropriately.

[68] Ms. Ferris said that while they were in the ambulance and she was attaching the cardiac monitor leads on Mr. Sheikh, she noticed the odour of alcohol on his breath. They left the scene to take Mr. Sheikh to the hospital at 1:41 a.m., arriving at 1:48 a.m.

[69] At the hospital Mr. Sheikh told Mr. Mason that he had consumed two alcoholic drinks. He denied any drug use. Mr. Mason was able to smell the odour of alcohol on his breath. He was not looking for signs of impairment as his responsibility was to look for injuries or medical problems.

[70] In summary, the observations of those who saw Mr. Sheikh immediately after the collision reveal that while he was able to get out of the BMW and to walk around a little, he appeared shaken up and in a state of shock. Given the force of the impact, it is hardly surprising that when he got out of the car, he sat down and needed to process what had just happened. None of those who watched from a distance characterized what they saw as indicative of impairment. Instead, they thought he seemed shocked.

[71] However, those who were in closer proximity to Mr. Sheikh, including Constable Eritsos, and the paramedics, all smelled the odour of alcohol on his breath. I accept the evidence of Constable Eritsos that he appeared unsteady on his feet, which can be indicative of impairment, but may not have been. I also accept that she noted his speech was slurred and slow. Again, these may or may not be indicative of impairment. Finally, she observed that his eyes were bloodshot and his pupils were dilated. Bloodshot eyes may be an indication of impairment. Given her understanding of dilated pupils seemed to be that they were smaller, and not larger, I do not rely on that observation. But the rest of her evidence was believable and generally consistent with the evidence of the other witnesses, including Constable Caplan who saw the bloodshot eyes and observed the odour of alcohol on Mr. Sheikh’s breath later at the hospital. I accept Constable Eritsos’ evidence. I accept that there were a number of factors that, cumulatively, led to her to have an objectively reasonable basis to conclude that Mr. Sheikh was impaired by alcohol. No issue was been taken that on the basis of her observations and the circumstances, she had grounds for the arrest.

Evidence of the toxicologist about impairment

[72] At Credit Valley Hospital, blood was drawn from Mr. Sheikh at 2:12 a.m. One of the vials drawn was later seized pursuant to a search warrant and taken to the Centre of Forensic Sciences for analysis. A second sample was analysed in the Hospital’s lab. While there was an issue at trial respecting whether the Crown had proven that the blood analysed was Mr. Sheikh’s, the defence ultimately conceded that it was.

[73] At the Hospital, using an Intoxilyzer 8000 C, qualified breath technician Constable Caplan took two breath samples from Mr. Sheikh: the first, at 3:47 a.m. which generated a blood alcohol concentration (“BAC”) reading of 64 mg of alcohol in 100 mL of blood; the second, at 4:09 a.m. which generated a BAC reading of 65 mg alcohol in 100 mL of blood.

[74] Constable Caplan also testified that in the hospital room, he detected an odour of alcoholic beverage from Mr. Sheikh’s breath, that his face was normal coloured and not flushed, that his eyes were watery and bloodshot and that his pupils were normal. He described Mr. Sheikh as cooperative and quiet, making clear that when he did speak, his speech was good.

[75] Dr. Marie Elliot was permitted, on consent, to offer expert opinion evidence on: the absorption, distribution and elimination of alcohol, drugs and poisons in the human body; the effects of alcohol, drugs and poisons on the human body; the analysis of alcohol, drugs and poisons in biological samples; and the theory and operation of the Intoxilyzer 8000 C.

[76] Dr. Elliot adopted her Toxicology Report, dated January 3, 2018, and her Affidavit, sworn February 22, 2019, attached to which is a “Toxicology Letter of Opinion” and her Statement of Qualifications. The Affidavit and Toxicology Report were, on consent, entered into Evidence as Exhibits 4 and 5.

[77] Dr. Elliot explained that she analyzed the serum portion of a blood sample taken from Mr. Sheikh at Credit Valley Hospital at approximately 2:15 a.m. She said that the sample was too small for her to do a complete toxicology analysis, but that it was sufficient for alcohol testing.

[78] The serum alcohol concentration she obtained was 97 mg of alcohol in 100 mL of serum. Using a conservative blood to serum conversion ratio, she calculated that the blood alcohol concentration (“BAC”) was 84 to 104 mg of alcohol in 100 mL of blood.

[79] It is an agreed fact that, using a serum sample, Sadaf Kahn did an alcohol screening test in the Credit Valley Hospital lab using gas chromatography, the same methodology used by Dr. Elliot. As is set out in Exhibit 9, this revealed Mr. Sheikh to have 22.6 millimoles of alcohol in 1 L of serum. Dr. Elliot converted this to 104 mg of alcohol in 100 mL of serum, which she then converted to 90 to 110 mg of alcohol in 100 mL of blood.

[80] Given her range of Mr. Sheikh’s BAC was 84 to 104 mg/100 mL and the Hospital’s was 90 to 110 mg/100 mL, Dr. Elliot’s opinion was that they were in agreement.

[81] Dr. Elliot then did a “read back” to reflect Mr. Sheikh’s BAC at the time of the collision. Using the collision time of 1:13 to 1:15 a.m., the sample collection time of 2:15 a.m., and a typical elimination rate of 10 to 20 mg /100 mL an hour, she projected from her sample that Mr. Sheikh’s BAC at the time of the collision was between 84 and 104 mg/100 mL of blood. Based on the Hospital’s sample, she projected his BAC to have been between 90 and 110 mg /100 mL of blood at the time of the collision. This result has an analytic variability because of scientific instrumentality of ±3 mg/100 mL of blood. She said that these are conservative numbers, intended to underestimate BAC.

[82] Dr. Elliot also provided a projected readback of Mr. Sheikh’s BAC based on the breath samples obtained by Constable Caplan and the readings of 65 to 110 mg of alcohol in 100 mL of blood. She explained that breath samples are subject to greater variability than serum samples. Her evidence was that the nature of breath testing and analysis is such that it usually underestimates BAC, both because of the variability in converting breath to blood and because of how samples are provided. She observed that the results she obtained all overlap and that it was not surprising that the breath samples projected lower BAC than did the serum samples.

[83] Asked under cross-examination whether Mr. Sheikh’s BAC could have been lower than 80 and said it could have. Dr. Elliot explained that converting the serum sample to BAC, her ratio, which tends to underestimate, produced a result of 84. Using the most conservative conversion formula for serum to BAC, the BAC would be 81. She explained that in addition to the variability from the serum to BAC conversion, there is also an analytical variability in the instrumentation used, which could result in a ± 3 mg /100mL in BAC. Thus, it is possible that Mr. Sheikh’s BAC could have been as low as 78.

[84] Dr. Elliot testified that she also identified in Mr. Sheikh’s serum 0.10 mg/L of methylenedioxymethamphetamine. This drug is also known as MDMA, ecstasy or Molly.

[85] Dr. Elliot provided expert evidence respecting how alcohol impairs the ability to drive. She described driving as a complex operation in which drivers must constantly process information about their surroundings, based on what they see and hear. Multiple tasks have to be performed at the same time with the driver dividing attention between what she called the internal environment (leg position, direction, speed) and the external environment (stop signs, pedestrians, other cars), all while making decisions and reacting to emerging situations. Driving thus requires both sensory and cognitive faculties.

[86] Alcohol is a depressant that slows the central nervous system and the process at which a person can process information. It thus slows reaction times. Studies have shown that alcohol affects a driver’s ability for “divided attention” such that drivers are only able to focus on one or two tasks at a time, to the detriment of other tasks. Alcohol also affects “choice reaction time”, or the time taken by drivers to react to a situation when a number of possible choices are possible. So, for example, were an animal to appear suddenly in front of a driver, therefore offering to the driver the choice to break, swerve right, swerve left or do nothing, alcohol would increase the time taken to make a decision, and thus would delay the reaction of the driver.

[87] Dr. Elliot said that the studies have also shown that:

• with BAC of 20 or higher, “divided attention” and “choice reaction time” are impaired and as BAC increases, they become more impaired;
• with BAC of 50 or higher, a driver’s ability to judge speed and distance is impaired;
• with BAC in the 50 to 100 range, “risk assessment” is affected such that drivers tend to underestimate risk and are more likely to do risky maneuvers. This could be because of an impaired ability to judge distance or because drivers overestimate their driving ability because alcohol increases their self-confidence;
• with BAC in the range of 80 and upwards, vigilance, or the ability to maintain alertness is affected;
• with BAC as low as 15, peripheral vision is affected in that a person reduces the extent to which the external environment is monitored as a result of divided attention impairment or lack of awareness.

[88] Dr. Elliot’s opinion, based on the scientific literature, was that impairment with respect to driving becomes significant at a BAC of 50 mg of alcohol in 100 mL blood, and that as BAC increases, so does the degree of impairment. At a BAC of 50 mg/100 mL, the vast majority of people have some impairment. The more complex the driving situation, and the more unpredictable, the greater the need for a rapid and appropriate response and therefore the more likely that a person demonstrates their impairment. It was her view that at all of the levels of BAC obtained in this case, Mr. Sheikh’s ability to drive would have been impaired.

[89] Dr. Elliot said that it was difficult to provide accurate evidence about the effects that MDMA may have had on Mr. Sheikh. An illicit drug, MDMA is a central nervous system stimulant and has hallucinogenic properties. She said that it is a mild stimulant that produces euphoria. It is impossible to tell the effects of MDMA on a person based on a blood concentration. She could not say how much MDMA Mr. Sheikh had, or when it had been administered. People react differently to it, and its effects depend on how long before it was taken and whether the individual is at peak effects or on the downside. She also said that because there is no “quality assurance” with MDMA, individuals are not be able predict exactly how and when it will affect them.

[90] I will leave my conclusions from Dr. Elliot’s evidence to the discussion of the specific charges.

Evidence of the accident reconstructionist respecting Mr. Sheikh’s speed before the collision

[91] On consent, retired Peel Regional Police officer Daniel Carrier was qualified to provide expert opinion evidence as an accident scene reconstructionist. He provided an opinion that at the time of the collision, Mr. Sheikh was travelling at a speed of 112 kph.

[92] Mr. Carrier used Total Station data that had been obtained by another officer (Constable Steve Daly) at the scene of the collision to create a scaled diagram of the collision scene, with the BMW and Highlander’s resting locations. This is Exhibit 1.

[93] Mr. Carrier used a Total Station Device to obtain measurements of the damage to the Highlander in the area of collision, from which he was able to use computer software to generate a damage or “crush” of the vehicle.

[94] Mr. Carrier also downloaded the information from the Highlander EDR. He looked at a number of items. First, he noted that while there were two collisions recorded on the EDR, they occurred within 2 milliseconds. From this, he concluded that it was one crash, but that the EDR recorded a lateral crash pulse first and then a longitudinal crash pulse. Second, he noted that at the time of the collision, the passenger side of the Highlander was hit first, and that the data showed that the driver and passenger were both wearing seatbelts. Third, he noted the speeds of the Highlander before the crash, as set out above at paragraph 17. His opinion was that that this data was consistent with the Highlander slowing down to make a left turn on a green light, reaching the intersection and accelerating from the turn as it went onto the other road.

[95] Mr. Carrier explained that to calculate the speed of the BMW at the time of the collision, he needed to first obtain the change in velocity of the Highlander at the time of the collision. He referred to this v. Change in velocity has both a magnitude and a direction and can be obtained by looking at the lateral and longitudinal crash pulse at that time of the collision. He explained that the Highlander had three sensors along the side that recorded the crash pulse. He looked for the maximum force applied and found it had been captured by the sensor in the B-pillar, between the front and rear doors. The maximum change in velocity was 65.4 kph. He did the same thing for the longitudinal crash pulse and found that the maximum change in velocity was 22.8 kph from the front to the back of the Highlander. Taking these two crash pulses as two sides of a triangle, with a 90° angle between them, he was able to calculate that the v vector as 69.2 kph.

[96] He then needed to calculate the magnitude of the Principal Direction of Force (PDOF), or direction from which the crash pulse was applied to the Highlander during the collision, measured in degrees. Knowing that there is a 90° angle between the longitudinal and lateral axis, or the third angle of the triangle could be calculated. He determined it to be 19°. This meant that PDOF was 71°. His methodology is set out below.

[97] Mr. Carrier testified that in order to assess the accuracy of the PDOF angle he had calculated, he decided to verify it with a completely different methodology, using the crush profiles of the two vehicles. Using the Total Station data for the two vehicles, he independently obtained a PDOF of 7° on the BMW and 72° on the Highlander. Given that the PDOF of the Highlander using the EDR download had been 71°, he was confident that he had obtained a reliable estimate of the PDOF on the Highlander. Moreover, he was satisfied that because the crush measurements had provided an accurate result of the PDOF of the Highlander, he could also be confident that the PDOF of the BMW was 7°.

[98] Mr. Carrier next sought to determine the change in velocity or v for the BMW. He obtained the masses of the two vehicles in published data as 1647 kg for the BMW and 1956 kg for the Highlander. Thus, knowing that the magnitude of force on the two vehicles was the same, that force is a product of mass times acceleration, and that acceleration is velocity divided by time, he was able to calculate that the change in velocity of the BMW was 82.2 kph as follows, using the previously determined change in velocity of the Highlander as 69.2 kph.

m 1 ∆ 𝑉 1 = m 2 ∆ 𝑉 2

∆ 𝑉 1 = m 2 ∆ 𝑉 2 m 1

∆ 𝑉 2 = ∆ 𝑉 2 = 82.2 kph

[99] Once he had identified the PDOF values as 71° for the Highlander and 7° for the BMW, Mr. Carrier calculated the relative approach angle of the vehicles at the moment of the collision. This was obtained by subtracting from 180° the two PDOFs, and resulted in a relative approach angle of 102°. This can be depicted in the diagram below and, in his view, was consistent with the Highlander having turned from going south and then increased its speed as it went towards Bristol Road. As the diagram indicates, the Highlander had not finished making its turn prior to impact.

[100] Mr. Carrier next obtained the speed estimate of the BMW at impact. To do so, he needed to determine its change in direction, or , as a result of the collision. He oriented the Highlander at 102° as this was its angle at the point of impact. He was able to identify where the BMW had been at the point of collision using both the Total Station and from the photographs, (such as slide 27 of Exhibit 2, which shows the darkest skids at the point of collision and slide 44 which shows the point of impact at the markers 1, 2 and 3). By plotting where the BMW ended up, he determined that there had been an 18° change in direction to the BMW from the collision, as depicted below. He testified that he was very confident about where the impact had been.

[101] Then, knowing that the v of the BMW was 82.2 kph and that its PDOF was 7° and that the , or change in direction was 18°, he was able to determine that the other angle in the triangle, or , was 155°. Using the laws of sines and cosines, he determined the BMW’s velocity on impact was 112 kph.

[102] Mr. Carrier was unable to say anything about the speed of the BMW in the seconds before impact. He said that it could have been travelling at 112 kph for some period, or could have braked at the time of impact and slowed from what it had been going. He did say, however that despite the absence of skid marks, he thought that there was some evidence of braking. He based this on the fact that the Highlander had flipped to its side. He explained that the BMW likely rode under the Highlander causing it to flip and that in order for the BMW to ride under, it would have been pitching forward, something that occurs when a vehicle brakes.

[103] Mr. Carrier characterized the change in velocity on the Highlander as high and said that the passenger would have taken most of the force. He said that there was also a high change in velocity on the BMW. However, most of the force on the BMW was front to back, where the vehicle is better able to absorb it, and he noted that the airbag had deployed. Slide 42 of Exhibit 2 shows that the entire structure of the BMW was compressed, something he had never seen before and which shows considerable and unusual force.

[104] During his examination in chief, Mr. Carrier explained that before testifying, he had considered whether and how, if any of the numbers he had used had been inaccurate, that would or could have affected his view as to the BMW’s speed. He said he was very confident with the PDOF results he obtained because he had independently verified the EDR data with the crush date.

[105] However, he realized that he had not accounted for the weights of the people in the two vehicles. Given that the weights of Mr. Sheikh and one of the occupants of the Highlander offset each other, he re-calculated the speed of the BMW with the Highlander weighing an extra 100 kg to account for it having an extra person. While he did not know the exact weights of any of the occupants of the vehicles, he said that minor variations in these weights would be insignificant. With an extra 100 kg added to the Highlander, he calculated that the speed of the BMW was 118 kph on impact.

[106] Mr. Carrier also re-calculated the speed of the BMW using different figures for its change in direction or While he was confident using 18° in his analysis, he recalculated adding and subtracting 5° to the angle to see how that would change the speed of the BMW. With 100 kg added to the Highlander’s mass and a of 13°, the resulting speed for the BMW was 131 kph. Adding 100 kg to the Highlander’s mass and with a of 23°, the resulting speed of the BMW was 110 kph. He thought the most realistic change was to add 100 kg to the Highlander’s mass and to add 3° to the and said that this changed the BMW speed to 113 kph.

[107] Under cross-examination, Mr. Carrier said that his lowest possible calculation, with the “extreme” end of the and the lowest possible mass for the Highlander (without adding in the 100 kg) resulted in a speed of 105 kph. Mr. Carrier acknowledged not having checked either vehicle for whether they had content that would have changed the mass of the vehicle but testified that custom or after market modifications really would not change the mass to any significant degree. Moreover, the more mass that the Highlander had, the greater the speed of the BMW. He thought the Highlander was more likely to have more contents, given its larger size.

[108] It is the defence position that the fact that Mr. Carrier was re-calculating his speed estimates the night before testifying should cause concern about his reliability as there are things even he realized that he had not considered and so needed to change. I disagree. Mr. Carrier’s opinion that the BMW was likely travelling at a speed of at least 112 kph at the point of impact remains his opinion. He explained why he is confident in his calculations of the PDOFs and confident in his determination as to the point of impact. What he allowed for are two items that could change that. First, accounting for the weights of the drivers would mean that with the 18° change in direction, the BMW would have been travelling faster, at 118 kph. Second, he allowed that the most reasonable area in which there could be error was to allow for a 3° difference in the change of direction, and that with the passengers accounted for, such a change would only change the speed of the BMW to 113 kph.

[109] In my view, there was no effective challenge to any of Mr. Carrier’s methodology or calculations. While counsel suggests that Mr. Carrier is not certain about the point of impact or about the speeds, and that if he is wrong about the BMW’s change of direction his speed calculation would be off too, I find Mr. Carrier’s evidence to be balanced, fair and compelling. I accept it.

[110] I cannot know the precise speed Mr. Sheikh was travelling prior to the collision or at the moment of the collision. On the evidence, however, I conclude that at the time of the collision, he was travelling at least 112 kph. This speed takes into account the weights of the drivers and also accounts for the possibility that Mr. Carrier’s change of direction was 3° off, and so allows for a change in direction of 21°, rather than 18°. Moreover, I find that prior to the collision, he was travelling at a speed higher than 112 kph.

[111] I reach the view that the pre-collision speed was higher because I accept and rely on the evidence of Ms. Marcellin about having heard loud braking before the crash. While the defence says that it is not clear which vehicle she heard braking, the EDR of the Highlander suggests that its fairly gentle braking would not have caused the loud braking sound she heard. It only makes sense that she heard the BMW braking. I find that she did.

[112] While Mr. Carrier testified that if there was braking, the BMW would have pitched downward, and that this could explain the Highlander flipping, he could not say whether this happened or not. He agreed, as well, that other possibilities, such as the curb, could have caused the Highlander to flip. As a result, I do not rely on his evidence to support my conclusion that Mr. Sheikh braked prior to the collision, although I accept that the Highlander flipping could have resulted from braking.

Evidence of Constable Misev respecting speeds at which a collision could have been avoided

[113] Constable Misev was permitted, on consent, to provide expert opinion evidence as an accident reconstructionist. He was asked to provide and “Time Distance Analysis” based on information he received about the speed of the BMW at the time of impact, information in the EDR about the Highlander’s speed and the length of the Highlander.

[114] Constable Misev knew that the Highlander was travelling at 44 kph at the time of the collision and that there was data for the Highlander for the 4.4 seconds before impact. He was told that the speed of the BMW at impact was 112 kph. He assumed that it had a constant speed for the 4.4 seconds. That speed is 31.11 metres per second. This meant that in 4.4 seconds, the vehicle went 136.99 metres, if it travelled at a constant speed. He was able to then plot, in a diagram, where the Highlander and BMW were located 4.4 seconds before the collision as follows:

[115] At the same time, he was able to calculate where the BMW would have been had it been travelling at the posted speed limit of 70 kph and testified that it would have been 51.35 metres south of the intersection at the time of the collision, again assuming a constant speed of 112 kph. In the additional 2.64 seconds it would have taken the BMW to reach the intersection, the Highlander would have gone 32.26 further and been well through the intersection on Bristol Road.

[116] Constable Misev prepared a chart indicating that given the Highlander’s speed, had the BMW been going any speed over 103 kph, the Highlander would not have cleared the intersection and a collision would have occurred. At any speed below 102 kph, he said that a collision would have been avoidable.

Analysis

The presumption of innocence and burden of proof

[117] The accused, Mr. Sheikh is presumed innocent of all charges he faces. It is for the Crown to prove beyond a reasonable doubt that Mr. Sheikh is guilty. There is no onus on the accused to prove anything.

[118] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. I may find Mr. Sheikh guilty only if I am sure that he committed the offences alleged.

[119] Mr. Sheikh did not testify in this trial. He was under no obligation to do so. I draw no inference from his decision not to testify.

Impaired driving causing death and causing bodily harm

[120] In order to prove impaired driving causing death and bodily harm, the Crown must prove that Mr. Sheikh’s ability to drive was impaired and that his impaired operation of the BMW caused Mr. Gamat’s death and Mr. Pascual’s bodily harm.

[121] The test for the degree of impairment that must be established is found in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd , [1994] 2 S.C.R. 478 (S.C.C.). As Labrosse J.A. held at para. 14: "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out." Thus, the Crown must prove beyond a reasonable doubt that alcohol was a contributing factor in the impairment of the accused’s ability to drive.

[122] I am satisfied beyond a reasonable doubt that Mr. Sheikh was impaired when he drove his BMW north on Mavis Road.

[123] In reaching this conclusion, I have considered the manner in which Mr. Sheikh was driving prior to the collision, the observations made of him after the collision, the results of the blood analysis and the expert evidence of Dr. Elliot about the effect of Mr. Sheikh’s BAC on his ability to drive.

[124] To start with, I rely on Mr. Sheikh’s manner of driving in the time leading up to the collision and at the time of the collision.

[125] On the basis of the three witnesses who observed Mr. Sheikh’s driving north on Mavis Road, I have found that in the minutes before the collision, he was trying to engage other drivers in racing. I have also found that he was driving at an excessive rate of speed. These are both manifestations of the risk-taking behaviour that Dr. Elliot described those impaired by alcohol exhibiting.

[126] Immediately before the collision, where I am satisfied that the speed limit was 70 kph, I have found that Mr. Sheikh was driving in excess of 112 kph, based on the fact that he braked and the fact that the collision speed was at least 112 kph.

[127] I am not able to draw any conclusions about impairment from the civilian witnesses who saw Mr. Sheikh immediately after the collision. They all perceived him to be in a state of shock. I do, however, rely on the observations made by Constable Eristos, Constable Caplan and the ambulance attendants. They included that he was stumbling and unsteady on his feet, that eyes were bloodshot, his speech was slow and slurred and that he had a strong odour of alcohol on his breath.

[128] In addition, I rely on Dr. Elliot’s analysis and evidence respecting Mr. Sheikh’s blood samples. Her blood analysis led to a projected BAC readback at the time of the collision of between 84 and 104 mg/100 mL of blood with a ± error of 3 mg/100 mL of blood and, using the most conservative conversion factor, a possible reading as low as 78 mg/100 mL of blood. The Hospital analysis provided a projected BAC readback at the time of the collision of 90 to 110 mg of alcohol /100 mL of blood. The much more conservative and less accurate breath analysis produced a projected BAC readback at the time of driving of 65 to 110 mg of alcohol /100 mL of blood.

[129] For the purpose of analyzing Mr. Sheikh’s impairment, I am satisfied that at the time of his driving his BAC was at least in the high 70s mg of alcohol in 100 mL of blood.

[130] Finally, I rely on the evidence of Dr. Elliot, supported by the academic studies upon which she relied, respecting the effects of alcohol on drivers. There can be no dispute that Mr. Sheikh’s BAC was in excess of 50 mg/100 mL of blood. Dr. Elliot was unchallenged that at this BAC, there would have been impairment of his divided attention ability, his choice reaction time and that his ability to judge speed and distance would have been impaired. He would have been likely to underestimate risk and more likely to engage in risky maneuvers.

[131] I find, based on the evidence, that at the time of the collision, Mr. Sheikh’s ability to operate a motor vehicle was impaired by alcohol.

[132] The next issue is whether Mr. Sheikh’s impaired operation of the BMW caused the death of Mr. Gamat and the bodily harm of Mr Pascual.

[133] The Crown and defence disagree about the issue of causation. The defence position is that the Crown has not proven that Mr. Sheikh caused the collision because the evidence suggests that Mr. Pascual made no indicator signal before turning left from Mavis Road onto Bristol Road in front of the northbound traffic. The defence position is that it was Mr. Pascual’s driving that caused the collision and not Mr. Sheikh’s.

[134] There is no issue that the collision caused the death and bodily harm. The issue is about the cause of the collision. The Crown does not suggest that Mr. Sheikh was the sole cause of the collision. However the Crown’s position is that proof of causation requires it to prove that Mr. Sheikh’s driving contributed in a significant way to the collision and thus to the death and bodily harm.

[135] Unlike in civil cases, where liability is apportioned or attributed among those found to be responsible for damages, criminal law neither recognizes contributory negligence nor has a mechanism to apportion the responsibility for harm occasioned by criminal conduct: R. v. Nette, 2001 SCC 78; R. v. Trakas, 2008 ONCA 410 at para. 52. Contributory negligence of another party, such as Mr. Pascual, cannot excuse Mr. Sheikh’s conduct as long as he was a cause, beyond de minimis, of the consequences: R. v. L.(J.), [2006] O.J. No. 131 (C.A.) at para. 20; R. v. Karafa, 2014 ONSC 2901 at paras. 111-112; R. v. Martin, 2012 ONCJ 789 at para. 48.

[136] I am satisfied beyond a reasonable doubt that Mr. Shaikh’s impairment was a contributing cause, well beyond the de minimis range of him colliding with the Highlander, killing Mr. Gamut and injuring Mr. Pascual. The weather was clear and the road was dry. The posted speed limit was 70 kph. Mr. Sheikh’s driving northbound on Mavis Road showed a lack of prudence, foolish risk-taking and a desire to race and travel at excessive speeds, all choices influenced by his impairment. The intersection at Mavis Road and Bristol Road was well lit. Even if Mr. Sheikh did not expect the Highlander to turn, and did not see an indicator (an assertion for which there is no evidence), the Highlander was travelling at a slow speed and, on the analysis of Constable Misev, Mr. Sheikh was more than 100 metres back from the intersection 4.4 seconds before the collision. Indeed, if Mr. Sheikh braked, as I find he did, he was travelling even faster before the collision and would have been even further back from it when the Highlander began its turn. As he approached the intersection, it is my finding that he was traveling at a speed in excess of 112 kph. Due to his alcohol consumption, his faculties for divided attention, choice reaction time and judgment of speed and distance were impaired. His impairment by alcohol was a significant cause of him crashing into the Highlander, killing Mr. Gamat and injuring Mr. Pascual.

[137] Mr. Sheikh will be found guilty of impaired driving causing death and bodily harm, counts 1 and 2.

Over 80 causing death and causing bodily harm

[138] Based on the readback projections of the BAC from the two serum samples, Mr. Sheikh’s BAC at the time of the collision was either 84 to 104 mg/100 mL of blood, based on Dr. Elliot’s analysis, or 90 to 110 mg/100 mL of blood, based on the analysis conducted by the Hospital.

[139] However, the readback projection of the BAC from the breath samples has Mr. Sheikh’s BAC at the time of the collision between 65 and 110 mg/1000 mL of blood.

[140] The Crown’s position is that it has proven beyond a reasonable doubt that Mr. Sheikh’s BAC was over 80 mg/100 mL. The defence position is that the evidence leaves a reasonable doubt.

[141] I accept the Crown’s position that the testing conducted by the Hospital’s lab is accurate and reliable. Similarly, I accept that Dr. Elliot’s analysis of Mr. Sheikh’s serum sample and her conversion to BAC at the time of his driving is highly reliable. The difficulty is that Dr. Elliot agreed that using the most conservative conversion formula for serum to BAC, the BAC could be 81 mg / 100 mL of blood. Given the further analytical variability from the instrumentation, there is a possibility of the result she obtained having a ± 3 mg /100 mL of blood, which could make the BAC as low as 78 mg /100 mL of blood.

[142] The Crown acknowledges that “straddle evidence” can give rise to a reasonable doubt: R. v. Gibson, 2008 SCC 16. The Crown submits that the “straddle evidence” in this case should not raise a reasonable doubt because while there is a mathematical possibility that Dr. Elliot’s readback would have the accused’s BAC below the legal limit, the range she reached is overwhelmingly above the legal limit. Moreover, the Hospital lab analysis does not straddle the legal limit and places Mr. Sheikh’s BAC over the legal limit. While the wide range of BAC obtained from the breath sample provides a much larger straddle range, the Crown submits that it is less reliable and does not raise a reasonable doubt about Mr. Sheikh’s BAC at the time of the driving: R. v. Roberts, 2018 ONCA 411.

[143] I accept the Crown’s position that it is highly likely that Mr. Sheikh’s BAC was over 80 at the time of the collision. However, given both the significant range of the BAC obtained by the breath sample, and Dr. Elliot’s concession that were she to use the most conservative ratio of serum to blood alcohol conversion and account for the variability of ± 3 mg/100 mL blood accuracy, the reading would be at 78 mg/100 mL, I am not satisfied beyond a reasonable doubt that the Crown has proven that Mr. Sheikh was driving with over 80 mg/100 mL of blood.

[144] On this basis, he will be acquitted of counts 3 and 4.

Dangerous driving causing death and causing bodily harm

[145] The offence of dangerous driving causing death requires the Crown to prove the following essential elements:

a. The prohibited conduct, which is that the accused operated a motor vehicle in a dangerous manner that resulted in death; and

b. The required degree of fault, which is a marked departure from the standard of care that a reasonable person would observe in all of the circumstances.

[146] I shall address, firstly, whether the Crown has proven the prohibited conduct. When considering the prohibited conduct, Cromwell J. explained in R. v. Roy, 2012 SCC 26 at paras. 33-35 that:

33 Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)(a) of the Code, that is, 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" (para. 43).

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

35 To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving.

[147] The Crown relies, in part, on the speed at which Mr. Sheikh was driving to establish that he was doing so in a dangerous manner. There is no question that excessive speed, in itself, may constitute the offence of dangerous driving: R. v. Richards (2003), 174 C.C.C. (3d) 154 (Ont.C.A.), at paras. 9-11, though it is always necessary to take into account all of the circumstances.

[148] As Trotter J. (as he then was) observed in R. v. Karafa at para. 123, it is important to distinguish between the constituent elements of impaired driving and dangerous driving, an analysis undertaken by Doherty J.A. in R. v. Ramage, 2010 ONCA 488 at para. 64:

An impaired driving charge focuses on an accused's ability to operate a motor vehicle or, more specifically, on whether that ability was impaired by the consumption of alcohol or some other drug. A dangerous driving charge focuses on the manner in which the accused drove and, in particular, whether it presented a danger to the public having regard to the relevant circumstances identified in s. 249 of the Criminal Code. The driver's impairment may explain why he or she drove the vehicle in a dangerous manner, but impairment is not an element of the offence. Both impaired driving and dangerous driving address road safety, a pressing societal concern. They do so, however, by focussing on different dangers posed to road safety. Impaired driving looks to the driver's ability to operate the vehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle.

[149] In this case, Mr. Sheikh drove north on Mavis Road in a posted 70 kph zone. The road was clear and dry. There was light traffic, but were certainly other cars on the road. The area was mixed residential. Prior to the collision, Mr. Sheikh sought to race with other cars and drove his own car at a high rate of speed. I cannot determine with precision the speed at which Mr. Sheikh was travelling as he approached the intersection, but I have no hesitation in concluding that it was well over the speed limit. Indeed, in the seconds before the collision, I find that he was travelling in excess of 112 kph, more than 40 kph over the speed limit. As I have indicated, I reach this conclusion because I have found that as he was braking by the point of impact. This is an intersection at which he could reasonably have expected that there would be other drivers turning from Mavis Road south onto Bristol Road.

[150] It is the manner of Mr. Sheikh’s driving that is important, not its consequences. I find that Mr. Sheikh’s manner of driving north on Mavis Road, and excessive speed, in these circumstances, created a real risk of damage or injury to others on the road, both pedestrians and other drivers. It was objectively dangerous.

[151] I turn now to the issue of whether the Crown has proven the requisite mens rea. The test for the mens rea of dangerous driving causing death, as set out at para. 36 of R. v. Roy, and recently affirmed in R. v. Chung, 2020 SCC 8 at para. 14 is:

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances. [Emphasis in original.]

[152] Momentary speeding, on its own, “can establish the mens rea for dangerous driving where, having regard to all of the circumstances, it supports an inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited”: R. v. Chung at para. 19.

[153] Mr. Sheikh chose to drive his BMW, a sports car with a powerful engine, at speeds greatly exceeding the posted limit, at a time when there were other drivers on the road. He was showing off and wanting to race. As he drove towards the intersection, where a reasonable person would have anticipated those proceeding south might turn to go east on Bristol Road, I find that he continued to drive at greatly excessive speeds. A reasonable person would not have driven at this rate of speed and would have foreseen the risk to the lives and safety of others that was created by this driving. On the basis of the way in which he proceeded north on Mavis Road and approached the intersection, Mr. Sheikh showed a marked departure from the standard of care that a reasonable person would have exercised going north on Mavis Road at 1:15 a.m.

[154] The parties disagree about whether the consumption of alcohol by a driver is a relevant factor to be considered on a charge of dangerous driving. On the basis of R. v. Churchill, 2002 BCCA 694 and R. v. McLennan, 2016 ONCA 732, the defence submits that it is an error to consider alcohol consumption in deciding dangerous driving cases.

[155] The Crown responds that R. v. McLennan supports its position that consumption of alcohol is relevant to mens rea, and that the law in British Columbia has since evolved such that courts are no longer precluded from relying on an accused’s consumption of alcohol for the purpose of determining whether objectively dangerous driving constituted a marked departure from the standard of a reasonably prudent driver: R. v. Settle, 2010 BCCA 426.

[156] Importantly, the discussion in many of the cases relied on by the defence relates to whether the consumption of alcohol short of the point of impairment can be considered. Those, of course, are not the facts here. In this case, I have concluded that Mr. Sheikh was impaired by alcohol.

[157] In any event, I understand the law to be clear that the consumption of alcohol is relevant to an assessment of the accused’s state of mind. As explained at para. 25 of R. v. McLennan:

When dealing with a dangerous driving charge, it is not inappropriate in considering whether a driver’s conduct is a marked departure from that of a reasonable driver in similar circumstances, to consider whether or not that person has consumed alcohol and if so to what degree before operating the motor vehicle – as I have said it goes to mindset and a willingness to assume risk.

[158] This is a case in which I have uncontroverted evidence that Mr. Sheikh consumed both MDMA and alcohol. While his BAC was not proven to be over the legal limit at the point of the collision, it was very close to that level. I find it beyond dispute that his driving ability was impaired by his consumption of alcohol.

[159] I find that Mr. Sheikh’s choice to drive at the speeds that he did, while impaired by alcohol, further reinforces that that his driving was a marked departure from what is expected of a reasonably prudent driver in the circumstances: R. v. Karafa at para. 126; R. v. Poisson, 2019 ONSC 1642 at paras. 156-162.

[160] I have addressed already the issue of causation at paragraphs 132-136. The same analysis applies. The choices of Mr. Sheikh to drive in a manner that was objectively dangerous to the public, having consumed alcohol to the point of impairment, were both causes of the collision, beyond de minimis.

[161] Mr. Sheikh will be found guilty on counts 5 and 6, the dangerous operation of a motor vehicle causing death and bodily harm counts.

Criminal negligence causing death and causing bodily harm

[162] In order to prove the most serious offences of criminal negligence causing death and causing bodily harm, the Crown must prove that Mr. Sheikh, through conduct or by omission, showed a wanton or reckless disregard for the lives or safety of others, and that his conduct caused the death and bodily harm. It is different from dangerous driving in that while dangerous driving requires proof of a marked departure from the standard of care of a reasonable person, criminal negligence requires proof of a “marked and substantial departure” from what a reasonably prudent person would do in the same circumstances: R. v. Javanmardi, 2019 SCC 54 at paras. 19-22

[163] The Court of Appeal succinctly differentiated between the offences of dangerous driving and criminal negligence in driving in R v. Galetta, 2020 ONCA 60 at paras. 7-8 in these terms:

7 Criminal negligence and dangerous driving are penal negligence offences. They each address objectively dangerous conduct but because they do so by imposing criminal consequences, the requisite level of negligence is elevated from simple negligence to penal negligence: in the case of dangerous driving, to a marked departure from the standard of the norm, and in the case of criminal negligence, to a marked and substantial departure from the standard of the norm: R. v. Hundal, [1993] 1 S.C.R. 867 (S.C.C.), at p. 888; R. v. Javanmardi, 2019 SCC 54 at para. 21. Compliance with those standards in driving cases is assessed by asking whether "a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity": R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 (S.C.C.), at para. 37.

8 In answering these questions, a "modified objective test" is applied. More specifically, the assessments just described are to be made in the circumstances the accused was in at the time of the alleged offence. However, the modification of the objective test has limits. Since such offences are meant to establish appropriate levels of objective care, the personal attributes of the offender are not to be considered: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 (S.C.C.), at para. 38; Beatty, at paras. 39-40.

[164] There are a number of factors that lead me to conclude that the Crown has proven that Mr. Sheikh’s conduct demonstrated a “marked and substantial departure” from what a reasonably prudent person would have done in the circumstances.

[165] First, I consider the fact that before he got into his car and drove north on Mavis Road, Mr. Sheikh had chosen to consume both MDMA and alcohol. While there is no evidence about when and how much MDMA he had consumed, there is no dispute that there was evidence of it in his blood. Much more importantly, he had consumed a significant amount of alcohol, such that his BAC at the time he was driving was very close the legal limit. As I have indicated, I am satisfied that his ability to drive was impaired by alcohol in the manners described by Dr. Elliot.

[166] Second, I consider Mr. Sheikh’s driving as he proceeded north on Mavis Road in the minutes before the collision. As the evidence of three witnesses makes clear, Mr. Sheikh chose to rev his engine, to show off the power of his car, and to try to engage others in racing. This continued as the evidence proves that he drove north at very high speeds, well over the speed limit. His driving was described by Mr. El Nasser and Mr. Dahcheh as being at full throttle or as Mr. Malik described it “pedal to the metal”. Moreover, he did appear to race the white Volkswagon when the light at Eglinton turned green, and took off heading north at a very high rate of speed.

[167] Viewed cumulatively, this evidence demonstrates that Mr. Sheikh’s speeding into the intersection of Mavis Road and Bristol Road was not isolated or momentary. It was part of a pattern of Mr. Sheikh using speeds greatly exceeding the posted 70 kph limit. From this pattern of driving prior to the collision, I infer that Mr. Sheikh was either oblivious to the risk that his high speeds caused to the safety of others, or gave no thought to this.

[168] Third, I consider the speed at which Mr. Sheikh was travelling immediately before he collided with the Highlander, a speed that I have concluded was more than the 112 kph he was travelling at the point of the collision.

[169] In my view, it is the cumulative effect of choosing to consume alcohol such that he was impaired, engaging in a pattern of attempting to race with others, driving at excessive speeds north on Mavis Road and then driving towards the intersection at a speed that was at least 40 kph over the posted limit that made Mr. Sheikh’s conduct well outside the norm of what is to be expected of a reasonably prudent person. It was, in my view, a pattern that was a marked departure from how a reasonable person would drive at 1:15 a.m. in a mixed residential area of Mississauga.

[170] I find Mr. Sheikh guilty of criminal negligence causing death and causing bodily harm, as charged in counts 7 and 8.

Conclusion

[171] I find Mr. Sheikh guilty on counts 1, 2, 5, 6, 7 and 8 in the indictment. He is acquitted on counts 3 and 4. Before convictions are entered, I will hear submissions from counsel as to which, if any counts should be conditionally stayed pursuant to the principles in Kienapple.

J.W. Woollcombe J. Released: March 11, 2021