FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] Ivan Vavryshchuk, the respondent, was charged with dangerous driving causing death after his car travelled through a red light at the T-junction section of Lake Shore Boulevard and Colborne Lodge Drive in Toronto and killed a cyclist.

[2] At his preliminary inquiry, the presiding judge ruled that the Crown had failed to tender evidence supporting the mens rea component of the charge and the respondent was discharged.

[3] The Crown applies for orders of certiorari to quash the order of discharge and mandamus to direct the preliminary inquiry judge to commit the respondent for trial.

[4] For the following reason, these orders are granted.

Background Facts

[5] The Lakeshore Boulevard is a major roadway running east to west at the southern end of Toronto. The intersection of Lakeshore Boulevard and Colborne Lodge Drive meets in a T-section. Colborne Lodge Drive consists of two southbound and one northbound lane with bicycle lanes on each side of the road. Meanwhile, Lakeshore Boulevard has four eastbound and three westbound lanes with a speed limit of 60 kilometres per hour.

[6] At the intersection with Lakeshore Boulevard, cyclists on Colborne Lodge Drive are able to cross and proceed south. Traffic at the intersection is subject to controlling lights with dedicated signals for both pedestrians and cyclists.

[7] On 15 May 2018, the respondent was driving his Honda Civic eastbound on Lakeshore Boulevard. He was travelling in the second lane from the left and approached the intersection whilst his traffic light was red. A number of cars in the other eastbound lanes had stopped at the lights.

[8] The deceased, Jonas Mitchell, was cycling southbound on Colborne Lodge Drive crossing the intersection from the centre median with the traffic lights displaying green for southbound traffic.

[9] As Mr. Mitchell crossed the intersection, he was struck by the respondent’s Civic. Mr. Mitchell was wrapped around the front bumper, mounted the hood, and struck the windshield and roof line around the windshield before being thrown onto the asphalt roadway. He slid along the road coming to rest near the northeast corner of the eastbound lanes and Colborne Lodge Drive.

[10] Mr. Mitchell was taken to St. Michael’s Hospital with life-threatening head injuries and died just over three weeks later, on 10 June 2018, as a result of blunt force trauma to his head.\

[11] The Collision Reconstruction Report filed at the preliminary inquiry confirmed that the traffic lights at the intersection were functioning properly. When the lights facing the respondent changed from green they remained amber for five seconds before changing to red for all directions. The lights remained red for three seconds before turning green to southbound traffic.

[12] The evidence at the preliminary inquiry showed the southbound lights to have been green for one to two seconds prior to the collision. All cars - except that of the respondent - had stopped for the red light in the eastbound and westbound lanes of Lakeshore Boulevard.

The Preliminary Inquiry Judge’s Reasons

[13] After reviewing the evidence, the judge found the following inferences could be drawn from the evidence:

• The respondent’s vehicle was travelling at around 60 kilometres per hour

• Based on the sequence of traffic lights (amber for five seconds, red for three seconds and green light for southbound traffic for two seconds), approximately 9 to 10 seconds had elapsed between the eastbound light on Lakeshore Boulevard turning amber and the collision

• An inference could be drawn that the respondent had been inattentive from the time the light turned amber to the collision

• The respondent did not see the red light and entered the intersection on a red light as evidenced by the lack of braking

[14] The Crown also relied upon the evidence of Ashley Tabares, who was driving behind the respondent, and said that he was travelling at 65 kilometres per hour.

[15] The judge concluded that there was sufficient evidence of the actus reus of the offence.

[16] However, she found that there was no evidence of the mens rea required for dangerous driving causing death. Her reasons, found at paras. 31-35 of her judgment are reproduced as follows:

The issue in this case is the mens rea component. Carelessness, as emphasized by Justice Cromwell, is not enough. Criminalizing carelessness runs the risk of branding as criminal those who are not morally blameworthy. The mental fault element must be a marked departure from the standard of care expected of a reasonable driver.

Lakeshore Boulevard is a busy thoroughfare. The intersection was well marked with large green signs at the intersection. Traffic around Mr. Vavryshchuk had slowed to a stop. The Crown concedes, however, that there is no evidence that Mr. Vavryshchuk was speeding, tried to “beat the red”, or of any dangerous manoeuvres other than entering the intersection a mere second or two after the light changed to red. A blink of an eye.

Taking the Crown’s case at its highest, a jury could infer that Mr. Vavryshchuk had been inattentive for, at most, nine to ten seconds. Nine to ten seconds when it is discussed and repeated over days in a courtroom can sound like an eternity. In reality, it is mere seconds. 1/10th of a minute. Several blinks of the eye. Taking the Crown’s case at its’ highest, that is the length of time a jury could infer Mr. Vavryshchuk failed to register what was occurring around him. His driving may have amounted to carelessness – and I say “may”, as that is not the issue before me – but I find that a reasonable jury could not infer the mens rea required to find criminal liability.

Justice Cromwell emphasized that it is the driving, not the consequences, that must be examined. It appears in this case that it is the consequences which drove the charge, not the manner of driving. This was an horrific accident. A young man lost his life, a family is shattered, and there is nothing that can be done to reverse that fact. I am certain that everyone in the courtroom in the course of this preliminary hearing including, I suspect, Mr. Vavryshchuk, would do anything in their power to reverse those seconds. Sadly, that is the one thing that none of us can do.

[17] The Crown seeks certiorari on the basis that the judge misapplied the legal test for the mental element of dangerous driving causing death and failed to consider the whole of the evidence.

LEGAL PRINCIPLES

The Test for Committal

[18] The Criminal Code, R.S.C. 1985, c. C-46 provisions relating to committal can be found in s. 548(1), which reads as follows:

548 (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[19] In United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080, the Supreme Court of Canada instructed that sufficient evidence of criminal charges upon which a reasonable and properly instructed jury could convict, mandated committal of an accused to stand trial on those charges.

[20] A preliminary inquiry judge is not permitted to weigh the evidence or make credibility findings. If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29.

[21] The preliminary inquiry judge is permitted to engage in a “limited weighing” exercise when the Crown relies upon circumstantial evidence to justify committal. When it does, the judge cannot draw inferences from facts or assess credibility but may evaluate “the reasonableness of the inferences to be drawn” from the circumstantial evidence: Arcuri, at paras. 29-30. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Wilson, 2016 ONCA 235, at para. 24; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.

[22] If there is no evidence on an essential element of the charge, it is a jurisdictional error to commit an accused for trial: Skogman v. The Queen, [1984] 2. S.C.R. 93, at p. 104. It is also important to note that, on review, the preliminary inquiry judge’s determination of sufficiency of evidence is entitled to the greatest deference: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.

[23] If a judge discharges an accused of charges by erroneously concluding that the totality of evidence is insufficient to commit, there is generally no jurisdictional error even though the judge may later found to be wrong: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23.

[24] In Sazant, at para. 25, the Supreme Court of Canada identified three ways in which jurisdictional error might occur in the context of a preliminary inquiry:

(1) where the judge misunderstands the elements of the offence and fails to evaluate the Crown’s evidence against the correct position in law;

(2) where the judge prefers an inference favourable to the accused over an inference favourable to the Crown; and

(3) where the judge fails to consider the whole of the evidence.

[25] In this case, the Crown argues that the preliminary inquiry judge committed the first and third errors identified in Sazant.

Dangerous Driving

[26] The respondent was charged under the former s. 249 of the Criminal Code which was repealed in 2018 and read as follows:

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.

[27] In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, the Supreme Court of Canada, following R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, considered the essential elements of dangerous driving. Describing the actus reus of the offence, the Court held, at para. 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.

[28] Both parties agree, as they did at the preliminary inquiry, that there was sufficient evidence of the actus reus of the offence.

[29] The Court in Roy went on to discuss the mens rea of the offence, at para. 36:

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.

[30] “Marked departure” from the standard expected of a reasonable person is a modified objective standard. At para. 40, the Court clarified this by saying:

Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that 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: Beatty, at para. 37. [Emphasis added]

Did the Judge Commit Jurisdictional Error?

[31] The Crown argues that the judge committed jurisdictional error by misapprehending the mental element of the offence and failing to evaluate the evidence against the correct legal position. Further, it submits that in discharging the respondent, the judge failed to consider the whole of the evidence.

[32] The respondent, on the other hand, takes the position that the judge committed no jurisdictional error and that the applicant simply seeks to re-litigate the committal issues. Moreover, the respondent posits that even if the judge was wrong in concluding there was no evidence, such an error is not jurisdictional: in the certiorari context, a judge has the “right to be wrong”.

[33] For the following reasons I agree that the preliminary inquiry judge committed jurisdictional error in the manner identified by the Crown.

[34] First, the judge misapprehended the law on mens rea. In R. v. Chung, 2020 SCC 8, 444 D.L.R. (4th) 393, the appellant was charged with dangerous driving death causing death when he drove his car at excess speed and crashed into another vehicle at a major intersection. The trial judge acquitted on basis that Mr. Chung lacked the mental element required for conviction. The British Columbia Court of Appeal reversed and entered a conviction. On appeal, the Supreme Court of Canada affirmed this decision.

[35] The critical issue in Chung was the trial judge’s decision to focus on the brevity of Mr. Chung’s speeding which led the judge to conclude that the mens rea requirement had not been satisfied. In Chung, the dangerous driving occurred in a one block span where Mr. Chung accelerated to three times the speed limit. The judge found that the short time span of Mr. Chung’s conduct meant that he did not have the necessary mens rea. The Supreme Court of Canada found that by fixating on the “momentariness” of the speeding the judge committed an error of law.

[36] As the Court observed, at para. 19:

Clearly, momentary excessive speeding on its own can establish the mens rea for dangerous driving where, having regard to all 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 (Roy, at para. 41).

Although the trial judge recognized that momentary conduct could be a marked departure, the trial judge stated that his analysis turned “critically” on the fact that Mr. Chung’s speed was categorically momentary (para. 117). That the trial judge was relying on a legal principle, rather than making a determination of fact, is supported by his citation to Willock and the fact that he distinguished other cases where excessive speeding and acceleration occurred over a longer period of time or in conjunction with additional dangerous conduct (paras. 103-7 and 118). Read as a whole, his reasons indicate that he believed that, when excessive speed was momentary, it was unable on its own to establish the mens rea for dangerous driving.

[37] The Court found that the judge committed error by focusing on the momentary nature of Mr. Chung’s action rather than analysing whether a reasonable person would foresee the dangers arising from the momentary conduct.

[38] I find the same thing happened in this case. In fairness to the judge, she did not have the benefit of Chung, which was released in the time period between counsel’s submissions and her judgment.

[39] However, notwithstanding the able submissions of counsel for the respondent, it is clear that in determining this issue, the preliminary inquiry judge focussed solely on the momentariness of the respondent’s inattention. Her comment that the respondent’s “inattentiveness” lasted only nine to ten seconds and “several blinks of an eye” was tied directly to the conclusion that the required mens rea was lacking.

[40] The preliminary inquiry judge made no reference to any comparison of the respondent’s actions and what a reasonable person would have foreseen and done in all the circumstances. In Chung, the Court held that failure to do so goes to the legal definition of the mens rea for dangerous driving.

[41] Nine to ten seconds may be a short period of time in normal life. However, this time must be evaluated in the context of a reasonable person driving a car. A correct application of the law would lead to an inference that a reasonable driver would appreciate the risk of a lengthy period of inattention in the driving context: see e.g., R. v. Patel, 2017 ONSC 4048.

[42] Accordingly, I find that, as per Sazant, the preliminary inquiry misunderstood the elements of the offence and failed to evaluate the evidence against the correct position in law. This was jurisdictional error which requires the quashing of her order to discharge the respondent.

[43] Second, my finding that the preliminary inquiry judge decided the issue of committal solely on the brevity of time that the respondent was speeding also engages the third description set out in Sazant: the preliminary inquiry judge failed to consider the whole of the evidence.

[44] In deciding the issue of committal, the judge had to consider all the circumstances: the busy thoroughfare, the cars stopped at the lights, the respondent approaching an intersection controlled by lights, and the presence of bicycle lanes. All of these factors were relevant - along with the length of time the lights were amber and red - when deciding if there was some evidence of a marked departure from the standard of a reasonable driver. Despite referring to some of this evidence in her overview, there was no reference to it in her deciding analysis, which concentrated solely on the respondent’s speed and the short time frame of events.

[45] When considering the whole of the evidence, there is clearly some evidence of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. In other words, there was sufficient evidence of mens rea upon which a reasonable and properly instructed jury could convict In finding there to be no evidence, the preliminary inquiry judge exceeded her jurisdiction: R. v. Bryce, 2015 ONSC 7004, at para. 32, aff’d R. v. Bryce, 2016 ONCA 513.

[46] For these reasons, the Crown’s application is granted. The order of discharge is quashed. I also conclude that if the preliminary inquiry judge had properly applied the law and considered all the evidence, a committal order was inevitable. For these reasons, I also issue an order of mandamus, and direct the preliminary inquiry judge to commit the respondent for trial to the Superior Court of Justice.

[47] The respondent is remanded to appear in Courtroom 407 at the Scarborough Ontario Court of Justice courthouse on 22 April 2021 at 10 a.m.

S.A.Q. Akhtar J.

Released: 24 March 2021

COURT FILE NO.: CR-20-0000076-00MO

DATE: 20210324

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

IVAN VAVRYSHCHUK

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Vavryshchuk, 2021 ONSC 2252

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Introduction

Background Facts

The Preliminary Inquiry Judge’s Reasons

LEGAL PRINCIPLES

The Test for Committal

Dangerous Driving

Did the Judge Commit Jurisdictional Error?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 2