COURT FILE NO.: CR-20-331

DATE: 20210820

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AMARJIT LAMBA

Mr. N. Powell & Ms. E. Norman, for the Crown

Mr. L. Sandhu & Mr. R. Singh for the Accused

HEARD: May 26, 27, 28, 31 and June 2, 2021

REASONS FOR JUDGMENT

STRIBOPOULOS J.

Introduction

[1] Late on December 25, 2019, Balvinder Bains, alone and very drunk, entered Amarjit Lamba's taxicab, a minivan, in the City of Brampton. After a short drive, the cab pulled to the side of the road on a residential street and stopped. A house at that location had a surveillance camera pointed towards the street. It captured what happened next, effectively serving as an eyewitness to the tragic events that were the focus of this trial.

[2] The recording shows Mr. Bains and Mr. Lamba interacting at the roadside for almost seven minutes. During that time, Mr. Bains exits the minivan, later re-enters it and eventually steps out again. After that, Mr. Lamba's minivan backs into a car parked on the street. It then turns sharply right and drives forward. Its front right tire rolls onto Mr. Bains’s right foot, pushing him to the pavement, before continuing to travel over his right leg, torso, and head. The minivan momentarily stops before backing up, with its front right tire again travelling over Mr. Bains’s body. The minivan then drives away. The weight of the vehicle crushed Mr. Bains to death.

[3] Mr. Lamba faces a charge that he, "on or about the 25th day of December 2019, at the City Brampton, in the Central West Region, did commit second degree murder on the person of Balvinder Bains, contrary to section 235(1) of the Criminal Code of Canada." With the consent of Mr. Lamba and the Attorney General, the trial proceeded before me without a jury.

[4] The Crown submits that the evidence establishes beyond a reasonable doubt that the killing was no accident and that Mr. Lamba intentionally drove his vehicle at, and then over, Mr. Bains. In doing so, the Crown maintains Mr. Lamba lashed out in anger with his minivan at a drunken passenger who had tried his patience. The Crown submits that the evidence further establishes, beyond a reasonable doubt, that Mr. Lamba either meant to kill Mr. Bains or meant to cause him bodily harm that he knew was likely to cause his death. Accordingly, the Crown submits that the court should find Mr. Lamba guilty of second degree murder.

[5] The defence admits Mr. Lamba drove over Mr. Bains with his taxicab and caused his death. However, it submits he did so accidentally. Mr. Lamba testified and denied intentionally driving his minivan at Mr. Bains. When he backed up into the parked car and then drove forward and to his right, he testified he was concerned about oncoming traffic and was looking behind him and to his left throughout that time. Although he realized he drove over something, Mr. Lamba testified he thought it was the curb and a snowbank, not a person. After that, he never looked to his right before driving off and, therefore, never saw Mr. Bains’s body on the road. Accordingly, the defence submits Mr. Lamba accidentally killed Mr. Bains and is not criminally culpable for causing his death.

[6] These reasons will proceed in three main parts. The first part summarizes the evidence at trial, which includes Mr. Bains’s activities before entering Mr. Lamba's taxicab that evening, a detailed account of what the video recording that captured the fatal incident shows, Mr. Lamba's evidence explaining the events from his perspective, and his activities afterwards. The second part briefly summarizes what the Crown must establish to prove that Mr. Lamba is guilty of murder or the lesser included offence of manslaughter. Finally, these reasons close with an analysis of the evidence to determine whether the Crown has proven beyond a reasonable doubt that Mr. Lamba is criminally culpable for causing the death of Mr. Bains.

I. The Evidence

[7] This summary of the evidence draws on the viva voce testimony and two agreed statements of fact filed by the parties, along with the exhibits, which included still images and video recordings from surveillance cameras.

a) Mr. Bains’s activities before entering Mr. Lamba’s taxicab

[8] According to his wife, Mr. Bains left home on the morning of December 25, 2019, to go to work with a friend. The friend, Mr. Mann, testified he spent the day with Mr. Bains. According to Mr. Mann, Mr. Bains essentially tagged along with him as he went about his various work assignments that day.

[9] After spending the day together, Mr. Mann eventually drove Mr. Bains to Brampton Civic Hospital. Mr. Mann testified he offered to drive Mr. Bains home, but Mr. Bains insisted on being dropped off at the hospital, and he did not tell Mr. Mann why. According to Mr. Mann, he did not see Mr. Bains consume any alcohol that day. That said, he also testified Mr. Bains would sometimes drink without him knowing, which, given some of the other evidence, must have occurred that day.

[10] Video surveillance from various cameras located at Brampton Civic Hospital became a trial exhibit. The recordings show Mr. Mann dropping Mr. Bains off at the hospital at 5:43 p.m. After exiting Mr. Mann's vehicle, Mr. Bains slowly makes his way over to the hospital's Emergency Department entrance. Once inside, he takes a seat in a waiting area.

[11] Although Mr. Bains spent nearly five hours in the waiting area of the Emergency Department, it does not appear that he sought medical attention while there. Instead, he exited the hospital at 10:40 p.m. and then walked over to a cab stand where Mr. Lamba waited for potential customers.

[12] From the surveillance recordings, which capture Mr. Bains’s arrival and departure from the hospital, it is readily apparent that he was having a great deal of difficulty walking that evening. He walked slowly and deliberately and appeared very unsteady on his feet. More so on his arrival, but still noticeably when he exited the hospital nearly five hours later.

[13] Analysis of Mr. Bains’s blood taken during the post-mortem examination revealed that he had a blood alcohol concentration of 280 milligrams of alcohol in 100 millilitres of blood at the time of his death, three and a half times the legal limit for driving.

[14] Based on the video surveillance evidence from the hospital and Mr. Bains’s blood alcohol concentration, it is apparent that he was very drunk on the night in question. In addition, Mr. Bains’s wife testified that she hated alcohol, and they did not keep any in their home. According to her evidence, if Mr. Bains drank alcohol, he had to do so outside their residence. Given all of this, it appears that Mr. Bains went to the waiting area of the hospital's Emergency Department to sober up before going home.

[15] Mr. Bains entered Mr. Lamba's taxicab at 10:43 p.m. Surveillance video from the hospital recorded the taxi as it drove away from the hospital that night.

b) A short taxicab ride to Sunny Meadow Boulevard

[16] Mr. Lamba's taxicab had a surveillance camera system. There were two cameras in the vehicle, with one photographing the occupants of the back seat and the other photographing the driver and anyone seated in the front passenger seat.

[17] The photographs from the in-car surveillance system became an exhibit at trial. The cameras take pictures, with some, one to two seconds apart, and others as many as ten seconds apart. When viewed, the photographs play one after another and appear like a very choppy video recording. However, the images are not a video recording - they are a series of still pictures.

[18] The in-car surveillance system took photographs of Mr. Bains and Mr. Lamba while the two men were in the taxicab together. The photos include Mr. Bains entering Mr. Lamba's cab at the hospital and sitting in the front passenger seat during the short drive to Sunny Meadow Boulevard.

[19] Based on the timestamps on the photographs from the in-car surveillance system, which capture Mr. Bains entering the vehicle and initially exiting it at the end of the drive, it appears that the cab ride from Brampton Civic Hospital to Sunny Meadow Boulevard took less than five minutes.

c) Events at 141 Sunny Meadow Boulevard

[20] The taxicab stopped on the road immediately in front of 141 Sunny Meadow Boulevard, just a short distance from the curb. That residence had a surveillance camera pointed towards the road. The recording from the camera is of high quality. It effectively serves as an unflinching, supremely reliable eyewitness of the events that unfolded on the street that evening.

[21] After the taxicab comes to a stop, its interior lights come on. Six seconds later, Mr. Bains slowly opens the front passenger door and gradually steps out of the minivan. (Photographs from the in-car surveillance camera also capture Mr. Bains exiting the vehicle.)

[22] Once outside, Mr. Bains holds the front passenger door open and faces Mr. Lamba, who remains in the driver's seat. He appears to speak with Mr. Lamba for approximately fifteen seconds before shutting the door, which he seems to have difficulty doing.

[23] After closing the front passenger door, Mr. Bains turns and slowly walks towards the back of the minivan. He looks to his left, towards 141 Sunny Meadow Boulevard, and then turns back around and returns to the front passenger window. The interior lights are still on in the minivan. At that point, Mr. Bains is looking into the minivan, directly towards Mr. Lamba. They appear to be conversing through the open front passenger window. Mr. Lamba gestures with his right hand towards the homes behind Mr. Bains, who responds by looking over his shoulder in that same direction.

[24] Mr. Bains then turns and faces away from the minivan and towards the residences. After looking towards the homes for about twenty seconds, he turns back around and faces Mr. Lamba in the vehicle. Once again, they seem to be communicating through the open front passenger window for another twenty seconds.

[25] At that point, Mr. Bains turns and begins walking towards the back of the minivan, still on its right side, and then past it, where he remains on the roadway. He walks slowly and deliberately. Mr. Bains looks around as if he is surveying the area. He appears confused.

[26] While Mr. Bains is on the road and looking towards the residences, Mr. Lamba slowly backs up the minivan to position his vehicle next to Mr. Bains. The interior lights are still on. Mr. Bains turns towards Mr. Lamba, and the two men appear to continue communicating through the open front passenger window. Mr. Lamba again gestures with his right hand towards the homes. Mr. Bains responds by looking to where Mr. Lamba is pointing before turning back towards the vehicle, opening the front passenger door, slowly re-entering the minivan, and then closing the door. (Photos from the in-car surveillance system show Mr. Bains re-entering and sitting in the vehicle at that point.)

[27] The two men sit in the vehicle, which remains stopped on the street in front of 141 Sunny Meadow Boulevard. The interior lights stay on, providing a view of Mr. Lamba and Mr. Bains inside the minivan.

[28] Twenty seconds later, Mr. Bains opens the front passenger door, which remains open for about ten seconds before he again shuts it. Photos from the in-car surveillance system capture Mr. Bains opening the door at this point. After he opens the door, additional photos show Mr. Lamba holding Mr. Bains by his coat collar as he sits in the front passenger seat. From the timestamps on these photos, it appears that Mr. Lamba holds on to Mr. Bains's coat collar for at least ten seconds. He does so until after Mr. Bains closes the front passenger door.

[29] For the next two minutes, the two men appear to be speaking. At points, Mr. Bains's hands are visible inside the vehicle, as though he is gesturing as he speaks. Then, Mr. Bains opens the door again without exiting, before shutting it again twenty seconds later. The two men remain in the vehicle together for another thirty seconds before Mr. Bains opens the door yet again.

[30] Six minutes into the recording, Mr. Bains finally steps out of the minivan. After doing so, he holds the front passenger door open while facing into the vehicle. The interior lights are still on, allowing a view of Mr. Lamba, who remains in the driver's seat. Mr. Bains is leaning into the front cabin of the minivan while standing in the open front passenger door.

[31] Approximately six minutes and twenty-six seconds into the surveillance recording, Mr. Lamba can be seen making a sudden thrusting gesture towards Mr. Bains with his right arm. Although it is visible on the surveillance recording, the intermittent photos from the in-car surveillance system did not capture it.

[32] Immediately after that, the minivan begins moving forward, even though Mr. Bains is standing at the open front passenger door and still has his right hand on the open door. As the vehicle pulls away from him, Mr. Bains manages to close the front passenger door. Mr. Bains then takes a couple of steps forward in an apparent effort to communicate again with Mr. Lamba through the open front passenger window. However, as Mr. Bains approaches the open window, the minivan reverses, travelling backwards approximately two to three meters.

[33] The minivan's rear bumper strikes the front bumper of a vehicle parked on the street. By then, because the minivan reversed, Mr. Bains is just steps to the side and front of it. The front right tire of the minivan then turns sharply to the right. Mr. Bains appears to respond to the minivan colliding with the parked car; he steps towards that vehicle while looking towards it and pointing at it with his right hand. However, just as he steps forward, the minivan also moves forward and towards him.

[34] The front right tire of the minivan drives onto Mr. Bains’s right foot, continuing forward, pushing him forcefully to the pavement. Mr. Bains’s turban rolls off his head as he falls backwards. The vehicle continues forward, with its front right tire travelling over Mr. Bains’s right leg, torso, and, finally, his head. The minivan moves over Mr. Bains’s body at a relatively slow speed. It then stops and backs up, with its front right tire again travelling over Mr. Bains’s body. The minivan then turns its wheels to the left and drives straight down the street away from 141 Sunny Meadow Boulevard.

[35] At that point, Mr. Bains’s motionless body was on the street, just at the end of the driveway to 141 Sunny Meadow Boulevard. A resident of that home, responding to a noise he described as the "bumpers of two vehicles crunching together," went to an upstairs window to investigate. Looking outside, he saw a minivan in the distance driving away down the street. He also saw what he thought was debris on the ground in front of the house. However, when he went outside to investigate further, he realized that what he initially thought was debris was Mr. Bains’s body, so he called 911.

d) Mr. Lamba’s evidence

[36] Mr. Lamba, who is 55 years of age, testified. He immigrated to Canada from India in 1995 and has remained gainfully employed ever since. He is married, with two children. The family lives in a home that they own in Mississauga.

[37] Mr. Lamba obtained his driver's license in 1998 and his taxicab license in 2015. Soon after obtaining his taxicab license, he purchased a taxi with a partner. Then, in 2016, Mr. Lamba struck out on his own, acquiring the minivan that he was driving on the evening of December 25, 2019.

[38] Mr. Lamba would operate his taxicab at night. His usual routine would be to attend his Sikh temple in the evening before starting work. He followed that routine on December 25, 2019, attending the temple before logging in to take fares sometime between 8:30 p.m. and 9:00 p.m.

[39] Mr. Lamba testified he was with his taxicab at the Brampton Civic Hospital when Mr. Bains approached him and asked if he was free. Mr. Lamba indicated he was, and Mr. Bains asked to sit in the front seat; Mr. Lamba told him to go ahead.

[40] Mr. Lamba testified he knew Mr. Bains was drunk when he approached his vehicle at the cab stand because of the way he was walking. Mr. Lamba testified he was "walking like a drunk man."

[41] When asked where he wanted to go, Mr. Lamba testified Mr. Bains responded "141 Sunny Meadow Boulevard." Mr. Lamba testified he usually asks for payment upfront before setting off on a fare at night. However, he did not do so that night because Mr. Bains was wearing a turban; Mr. Lamba also wears a turban.

[42] After Mr. Bains told him the address, Mr. Lamba testified to turning on the meter and putting the address into his GPS; they then headed off. Mr. Lamba described the driving conditions, testifying that it was windy, with a "little bit" of snow, and that the roads were “somewhat wet.” (This description is consistent with the surveillance recordings from that evening.)

[43] Mr. Lamba testified there was no conversation between him and Mr. Bains during the drive to 141 Sunny Meadow Boulevard.

[44] Once they arrived at the address, Mr. Lamba testified he pulled to the side of the road just a little past the residence and told Mr. Bains that "141 is right there." He testified Mr. Bains then exited the vehicle.

[45] Mr. Lamba testified he could see that Mr. Bains was swaying and unsteady. He thought that maybe Mr. Bains could not see the house, so he decided to back up and position his vehicle next to him. After doing so, he pointed to the house and said to Mr. Bains, "Here is 141."

[46] At that point, Mr. Lamba testified Mr. Bains got back into his taxicab. After doing so, he said to Mr. Lamba, "This is not the home. I want to go somewhere else."

[47] Mr. Lamba testified he responded to that request by asking Mr. Bains to pay the initial fare because he still had not done so. The fare was eight dollars. According to Mr. Lamba, it was not a lot of money, and he was initially fine with just letting it go. However, he asked for payment when Mr. Bains said it was not the correct address and wanted Mr. Lamba to take him somewhere else. He testified Mr. Bains responded to the request for payment by going silent.

[48] Mr. Lamba testified that, at that point, he took hold of Mr. Bains by the collar "a little bit" and said to him, "Give me my money first." He testified to only doing this to get Mr. Bains’s attention, not because he was angry or even annoyed. When asked why he did not just tap Mr. Bains’s shoulder to get his attention, Mr. Lamba responded that he is not permitted to touch a customer. After taking hold of Mr. Bains’s collar, Mr. Lamba testified Mr. Bains reached into his pocket and paid him six dollars and some change. At that point, Mr. Lamba testified to telling Mr. Bains he had another fare (which was not true), that he would not take him any further, and that he had to get out of the vehicle. During cross-examination, he testified to also telling Mr. Bains that he would need to take another taxi.

[49] In response, Mr. Lamba testified Mr. Bains opened the door but would not fully exit the vehicle, even though he asked him to do so. To get him out, Mr. Lamba testified he waved his right hand at Mr. Bains in a shooing gesture to communicate that he needed to exit the vehicle. Mr. Lamba denied making physical contact with Mr. Bains when making that gesture. During cross-examination, after the Crown played for him the portion of the surveillance video that recorded him moving his right arm towards Mr. Bains, Mr. Lamba insisted he did not hit Mr. Bains. Mr. Lamba testified that, after making the shooing motion, Mr. Bains finally got entirely out of the vehicle and closed the door.

[50] Mr. Lamba conceded during cross-examination that he began to drive off while the front passenger door was still open. However, he testified that "he did not drive that much, a little bit," "very slow," and while doing so he told Mr. Bains, “Close the door I have to go." When asked why he did not wait for Mr. Bains to shut the door before beginning to drive off, Mr. Lamba responded, "I don't know." Mr. Lamba denied being angry or even a bit annoyed with Mr. Bains at that point.

[51] After Mr. Bains exited his vehicle that last time, Mr. Lamba testified in his direct evidence that he never saw him again and that "he must have gone home." However, during cross-examination, he conceded Mr. Bains told him he was at the wrong house. When asked where he would possibly have gone, Mr. Lamba responded, "I don't know" and "I thought he must have gone, wherever he went."

[52] Mr. Lamba testified he backed up so that he could pull into the driveway at 141 Sunny Meadow Boulevard to turn around and head back to Brampton Civic Hospital. He struck the car parked behind his vehicle while backing up. He explained that he reversed into the car because his attention was focused behind him and to his left, as he was concerned about oncoming traffic.

[53] Mr. Lamba testified to knowing he struck the parked car. However, he decided not to remain at the scene out of a concern that it could increase his insurance premiums. Mr. Lamba acknowledged he was wrong to do so and admitted he was guilty of that.

[54] Mr. Lamba testified that after striking the parked car he drove forward and to his right to pull into the driveway of 141 Sunny Meadow Boulevard, still intending to turn around by backing into the road after pulling into the driveway. However, while attempting to pull into the driveway, he testified he struck the curb and a snowbank. Mr. Lamba testified that, although he turned his vehicle's wheels to the right and was driving in that direction, he was looking to his left and behind him while doing so, as he was still concerned about oncoming traffic. He testified he never looked to his right while turning or moving to the right to pull into the driveway.

[55] During cross-examination, the Crown played the corresponding surveillance video. After viewing it, Mr. Lamba conceded that, at the time, no cars were coming along the road. However, he testified that vehicles had driven past earlier, and he remained concerned there might be more.

[56] After striking what he thought to be the curb and a snowbank, Mr. Lamba says he became nervous and decided to drive straight down the road, rather than turn around. He headed to Bramalea, where there was another cab stand, instead of returning to the hospital. When asked during cross-examination why he did not go towards Bramalea in the first place, Mr. Lamba testified that when he decided to drive straight, his computer was telling him there were fares in Bramalea.

[57] When asked if, after striking what he thought was the curb and a snowbank, he ever looked to the right to see what he hit, Mr. Lamba maintained that he never did. Asked why he did not, he answered, "I was thinking I should leave and go and take fares."

[58] When asked during cross-examination why he did not just make a U-turn if he wanted to turn around, Mr. Lamba testified there was too much traffic to do so. Later, he testified the idea of making a U-turn did not occur to him. Finally, when asked why he chose to turn into the driveway at 141 Sunny Meadow Boulevard, rather than the driveway of some other house, he testified he must turn around in the driveway of the person who hired him. Otherwise, he testified, he risks a homeowner becoming angry with him and calling him racial epithets, an experience he has endured in the past.

[59] Mr. Lamba denied that, at any point, he was angry or even annoyed with Mr. Bains. He denied intentionally driving his vehicle at Mr. Bains.

[60] Mr. Lamba testified he never once looked to his right, from the time he began backing up before striking the parked car, to when he went to the right to pull into the driveway before hitting the curb and snowbank, to when he drove off down the road. Instead, he testified that while making those various driving maneuvers, his attention throughout was to his left and behind him, given his concern about oncoming traffic.

[61] Mr. Lamba testified he picked up another fare at the cab stand in Bramalea, located next to the Brampton Bus Terminal. After that fare, Mr. Lamba testified he picked up additional customers that evening. He provided details of where he picked them up and took them, as far as he could recall. He continued taking fares until 1:00 a.m.

[62] Mr. Lamba testified he eventually made his way back to the Sikh temple for early morning prayers. After parking at the temple, he testified he looked around his vehicle for possible damage from having struck the parked car, the curb, and the snowbank. However, everything looked fine.

[63] Inside the temple, Mr. Lamba testified he saw a few other worshippers, one of whom testified and confirmed seeing him at the temple that morning.

[64] Mr. Lamba testified to leaving the temple at 3:00 a.m. After that, he continued to take more fares before quitting work a bit early because business was slow. Ultimately, he went home and fell asleep.

[65] The next day, Boxing Day, Mr. Lamba testified he woke up around 10:00 a.m. with plans to take his children shopping. After getting ready, the family got into their vehicle to head to Square One Mall. That is when a plainclothes police officer approached him and told him to turn off his vehicle. The police officer told him he was under arrest for second degree murder. Mr. Lamba testified he had no idea what that meant.

[66] Throughout his evidence, Mr. Lamba testified he never saw Mr. Bains again after he finally exited his vehicle. He testified he only realized that he struck Mr. Bains when police showed him the surveillance video following his arrest.

d) After the fact conduct – agreed facts

[67] The parties agree that Mr. Lamba continued taking fares after the incident involving Mr. Bains. Additionally, through their investigation, the police determined that Mr. Lamba did not wash his taxicab after the incident or before his arrest on December 26, 2019.

II. The Law

[68] Mr. Lamba faces a charge of second degree murder, contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46. The relevant provisions of the Criminal Code, which define the elements of that offence, provide:

222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

234 Culpable homicide that is not murder or infanticide is manslaughter.

[69] Given the evidence at trial and the agreed facts, there is no issue that Mr. Lamba caused Mr. Bains’s death. Mr. Bains died because the vehicle that Mr. Lamba was operating drove over him and crushed him to death. Given this, Mr. Lamba's actions unquestionably played a significant role in causing Mr. Bains’s death: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71. Accordingly, causation is not a live issue in this case.

[70] For Mr. Lamba to be guilty of manslaughter, a lesser and included offence to murder, and an essential building block for proving murder, the Crown would need to establish beyond a reasonable doubt that he caused Mr. Bains’s death by means of an unlawful act: Criminal Code, s. 222(5)(a).

[71] If Mr. Lamba intentionally drove his vehicle at Mr. Bains, then he would be guilty of causing Mr. Bains’s death by means of an unlawful act – assault with a weapon – the vehicle being the "weapon" in these circumstances: Criminal Code, ss. 265(1), 267(a) and 2. If that were proven, beyond a reasonable doubt, the resulting homicide would be culpable and, at minimum, amount to manslaughter: Criminal Code, s. 234.

[72] To prove that Mr. Lamba is guilty of murder, the Crown would also need to prove that he possessed the mens rea for that offence when committing the unlawful act (assault with a weapon) that caused Mr. Bains’s death. That requires the Crown to prove beyond a reasonable doubt that in causing Mr. Bains’s death by driving his vehicle at and over him, Mr. Lamba either meant to cause his death (Criminal Code, s. 229(a)(i)), or meant to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensued (Criminal Code, s. 229(a)(ii)).

[73] The difference between the mens rea for murder under sections 229(a)(i) and 229(a)(ii) is "slight": R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 645. Under section 229(a)(i), "means to cause" death requires that an accused "have actual subjective foresight of the likelihood of causing the death coupled with the intention to cause that death": Vaillancourt, at p. 645; see also R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at p. 1088. Section 229(a)(ii) only “modestly expands the 'pure' definition of murder set out in s. 229(a)(i)": R. v. Watkins (2003), 2003 CanLII 3874 (ON CA), 181 C.C.C. (3d) 78 (Ont. C.A.), at para. 58. It has two aspects. First, there must be "subjective intent to cause bodily harm" and, second, "subjective knowledge that the bodily harm is of such a nature that it is likely to result in death": R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 155-56. Therefore, under either provision, to be guilty of murder an accused "must have actual subjective foresight of the likelihood of death": Vaillancourt, at p. 645.

[74] Having summarized what the Crown must prove to establish that Mr. Lamba is guilty either of manslaughter or murder, these reasons turn next to consider the evidence to decide whether Mr. Lamba is criminally culpable for his role in causing Mr. Bains’s death.

III. Analysis and Findings

[75] A sensible starting point for the court's analysis of the evidence at trial begins with Mr. Lamba's testimony.

[76] Mr. Lamba testified and denied intentionally driving his vehicle at Mr. Bains. On his account, while he executed the various driving maneuvers that culminated in his vehicle driving over and killing Mr. Bains, his attention was to his left and behind him. Although he realized he drove over something, he thought it was the curb and a snowbank, not Mr. Bains. Mr. Lamba testified he only realized what happened the next day when police showed him the surveillance video from 141 Sunny Meadow Boulevard. Based on his testimony, Mr. Lamba is, at the very most, guilty of failing to report an accident for not immediately contacting police after striking the parked car, and careless driving causing death for operating his vehicle without due care and attention resulting in another person’s death: see Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 199(1), 130(3). On his account, he is not guilty of murder or manslaughter.

[77] Recognizing the importance of never shifting the burden of proof to an accused person, and since Mr. Lamba testified in his defence, I will follow the analytical framework suggested by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-58. Accordingly, if I believe Mr. Lamba’s evidence, he is entitled to be found not guilty. Alternatively, even if after carefully considering his testimony I do not believe him, I must still consider whether his evidence leaves me with a reasonable doubt. If it does, then I must of course find him not guilty. Finally, even if I do not believe him and his evidence does not leave me with a reasonable doubt, I must still consider the balance of the evidence that I do accept in deciding whether the Crown has proven Mr. Lamba guilty beyond a reasonable doubt.

[78] After carefully considering Mr. Lamba's testimony, I do not believe his evidence that he accidentally drove at and over Mr. Bains. Nor does his evidence leave me with a reasonable doubt in that regard. Ultimately, there are two principal reasons why I disbelieve Mr. Lamba and why his evidence does not leave me with a reasonable doubt.

[79] First, I cannot reconcile Mr. Lamba's account of the events with the surveillance recording from 141 Sunny Meadow Boulevard and the still images from the in-car surveillance camera. As noted, the surveillance recording is of extremely high quality. It captures the relevant events in their entirety, serving as "a constant, unbiased witness with instant and total recall of all that it observed": R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, at para. 21. There are irreconcilable and material differences between Mr. Lamba's account, and the events captured by the surveillance evidence in this case.

[80] Second, there are internal and logical inconsistencies in Mr. Lamba's evidence that undermine the credibility of his testimony.

[81] According to Mr. Lamba, he was not annoyed, let alone angry, with Mr. Bains, a drunken passenger who did not fully pay his fare and then insisted on being taken elsewhere. I find this aspect of Mr. Lamba's evidence impossible to credit because it is illogical and, even more importantly, inconsistent with what is evident from the surveillance photos and recording.

[82] Any reasonable person in Mr. Lamba's position would have at least been annoyed when Mr. Bains directed him to an address and then did not have the funds to pay the fare. Especially, one would think, after that same customer then insisted on being taken somewhere else.

[83] Moreover, the in-car surveillance system photos reveal that Mr. Lamba held Mr. Bains by the coat collar for at least ten seconds after asking him for payment. Mr. Lamba's evidence that he only did so to get Mr. Bains’s attention, and because he is not permitted to touch his customers, strains credulity.

[84] Mr. Lamba further testified he made a shooing gesture towards Mr. Bains with his right hand that finally led Mr. Bains to exit the vehicle. However, having watched and re-watched the surveillance video, particularly at the six-minute and twenty-six-second mark, it is apparent that Mr. Lamba was not just shooing Mr. Bains out of his vehicle. Instead, given the speed and way in which he extended his right arm, it is apparent that Mr. Lamba attempted to strike Mr. Bains. (From watching the recording, it is not possible to discern whether he succeeded in doing so.)

[85] Finally, once Mr. Bains exited the taxicab for the last time, Mr. Lamba started driving forward even though the front passenger door was still open, and Mr. Bains was standing in the doorway of the vehicle.

[86] This combination of evidence is consistent with only one logical conclusion: contrary to Mr. Lamba's evidence, he was very angry with Mr. Bains, a drunken passenger who had tried his patience past his breaking point.

[87] Mr. Lamba testified that after Mr. Bains exited his vehicle he never again looked to his right. On his account, while he reversed, then drove to the right and forward, struck the curb and a snowbank, then backed up and drove off (which in total took approximately 15 seconds), he never once looked to his right. Mr. Lamba explained this protracted course of inattentive driving by testifying that, throughout that time, he was looking behind him and to his left out of a concern for oncoming traffic. There are several reasons why I do not believe this aspect of Mr. Lamba’s evidence.

[88] First, Mr. Lamba testified that, after Mr. Bains exited the minivan for the last time, he never looked to his right for Mr. Bains because he assumed that he went into the house or "wherever he went." However, Mr. Bains informed Mr. Lamba that they were at the wrong address. He said he wanted to go somewhere else. Mr. Lamba even told him that he would need to take another taxi. As a result, this aspect of Mr. Lamba's explanation for never again looking in Mr. Bains’s direction, because he just assumed he went away somewhere, is not at all credible.

[89] Second, Mr. Lamba insisted that he was looking behind him and to his left throughout these various maneuvers because he was concerned about oncoming traffic. However, during the relevant period, there was no oncoming traffic. That is readily apparent in the surveillance recording from 141 Sunny Meadow Boulevard.

[90] Third, if Mr. Lamba was looking behind him, as he claimed, it is rather unlikely that he would have failed to see the car parked there and backed into it. His reversal into the car is far more consistent with his attention at the time being to the front of him and towards Mr. Bains, who was the focus of his anger.

[91] Fourth, Mr. Lamba steadfastly maintained that he never looked to his right after he began reversing and before he drove off. However, he also insisted that he thought he drove over the curb and a snowbank. One is hard-pressed to understand how Mr. Lamba could be so sure he struck the curb and a snowbank if he never looked in that direction.

[92] Finally, it is inconceivable that, after obviously striking something sizeable, Mr. Lamba would refrain from looking towards what he had hit. On the contrary, his most basic instincts would immediately compel him to look in that direction.

[93] Given all of this, I am unable to accept Mr. Lamba's evidence that he accidentally drove his vehicle at and over Mr. Bains. Nor does his testimony, when considered along with the other evidence in this case, leave me with a reasonable doubt.

[94] I turn then to the remainder of the evidence, especially the surveillance evidence. I have watched and re-watched the surveillance recording from 141 Sunny Meadow Boulevard. Having done so, I am satisfied beyond a reasonable doubt that Mr. Lamba, having lost his temper with Mr. Bains, intentionally drove his vehicle at him in anger. There is no other reasonable, alternative explanation for the events captured by the surveillance evidence.

[95] First, Mr. Lamba held Mr. Bains by the coat collar for at least ten seconds. Then, he tried to hit him with his right hand. Finally, he started driving forward even though Mr. Bains was standing at the open front passenger door of his vehicle. Given all this evidence, it is apparent that Mr. Lamba was very angry with Mr. Bains just moments before he drove his vehicle at and over him. That anger provided Mr. Lamba with a motive to harm Mr. Bains.

[96] Additionally, the driving maneuvers that Mr. Lamba executed before he drove over Mr. Bains are inconsistent with him doing so accidentally. Given the position of his minivan relative to the driveway of 141 Sunny Meadow Boulevard, pulling into the driveway of that residence was not at all feasible even after reversing and turning his wheels sharply to the right. The only reason for Mr. Lamba to back up, turn his wheels, and drive forward, was to position his vehicle so that he could strike Mr. Bains with it, which is precisely what he did.

[97] Based on all the evidence, I am satisfied beyond a reasonable doubt that Mr. Lamba intentionally drove his vehicle at Mr. Bains to strike him with it. Accordingly, it follows that Mr. Lamba is guilty of manslaughter because his unlawful act (assault with a weapon) caused Mr. Bains’s death.

[98] The next issue to be determined is whether the Crown has established the mens rea for murder beyond a reasonable doubt. In other words, am I sure that when he drove his vehicle at Mr. Bains, Mr. Lamba either intended to kill him or intended to cause him bodily harm of such a nature that he knew it was likely to cause his death?

[99] Based on all the evidence, I am satisfied beyond a reasonable doubt that Mr. Lamba possessed the mens rea for murder. After his vehicle initially struck Mr. Bains, there is no question that Mr. Lamba would have seen him fall forcefully to the pavement. After all, Mr. Bains was in Mr. Lamba's line of sight as he drove directly at him and struck him, causing him to fall backwards. Yet despite this, Mr. Lamba continued driving forward and over him. In these circumstances, common sense furnishes a somewhat irresistible inference that Mr. Lamba either intended to kill Mr. Bains or intended to cause him serious bodily harm that he knew was likely to cause his death: see R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at para. 19; R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369 (Ont. C.A.), at p. 387. Moreover, the fact that, after driving over Mr. Bains, Mr. Lamba then reversed his vehicle back over him, only fortifies my belief that he knew that Mr. Bains's death would be substantially likely.

[100] Ultimately, I am satisfied beyond a reasonable doubt that Mr. Lamba is guilty of murder. Even though he continued taking fares after killing Mr. Bains, attended his Sikh temple, and did not wash his taxicab, that evidence, either alone or in conjunction with the other evidence, does not leave me with a reasonable doubt.

[101] In that regard, it is noteworthy that only the front right tire of Mr. Lamba’s vehicle appears to have made any contact with Mr. Bains’s body. As Mr. Lamba drove his taxicab after the killing, the tire moving over the wet roadway would undoubtedly have eliminated any visible evidence of the crime. Therefore, when Mr. Lamba inspected his minivan for damage in the parking lot of the Sikh temple, he was unlikely to observe any evidence that needed washing away. Accordingly, his failure to wash his vehicle after running over Mr. Bains does not leave me with a reasonable doubt.

[102] Given the findings detailed above, I have concluded that Mr. Lamba went about his usual routine after killing Mr. Bains because he was relatively unphased by what he did, wanted to continue earning money that evening, and maintain the appearance of an ordinary night at work.

Conclusion

[103] Accordingly, for these reasons, the court finds Mr. Lamba guilty of second degree murder.

Signed: J. Stribopoulos

Released: August 20, 2021

DATE: 20210820

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

AMARJIT LAMBA

REASONS FOR JUDGEMENT

Stribopoulos J.

Released: August 20, 2021