COURT FILE NO.: CR-20-0085
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Amy Mountjoy for the Crown
- and -
PRITPAL LEHL
Ayesha Abbasi for the Accused
HEARD: July 26, 27, 28, 29, 30; August 3, 4, 5, 9, 10
REASONS FOR JUDGMENT
D.E. HARRIS J.
Introduction
[1] On a quiet August 1, 2018, Brampton morning at just after 6:00 a.m., Paul De Pledge was pedaling his bicycle southbound on Summerlea Road to his workplace at number 89. He was within a stone’s throw of work when a small white cargo van towing an open air utility trailer appeared from the opposing northbound direction. As the van approached, the trailer suddenly came free and detached. The trailer flew across the road, perpendicular to the movement of traffic. Tragically, the tongue of the trailer speared the back wheel of Mr. De Pledge’s bicycle. The trailer mounted the curb and Mr. De Pledge was violently catapulted into the trailer which was dragged about 60 feet across the lawn of an industrial building, the trailer only stopping when it struck the building.
[2] About two hours later, when the owner of the business, James Appleby, was walking to the parking lot of his building at 90 Summerlea Road, he noticed the trailer up against the outside of the building. He could not see into it from where he was because there are metal sides to the trailer. When he came closer, he looked into it. He found Mr. De Pledge inside the trailer. He was dead.
[3] An autopsy concluded that Mr. De Pledge died from multiple blunt force trauma. There were numerous injuries. There were several skull fractures, including the base of the skull, with associated subdural and subarachnoid hemorrhages and diffuse vascular injury of the brain. There were also numerous long bone and spinal fractures. The heart showed hemorrhages characteristic of shock. The front right part of the trailer was soaked in blood.
[4] The prosecution alleges that the accused, Pritpal Lehl, was the driver of the van and that he had stolen the trailer a few minutes before the collision from a local U-Haul parking lot at 152 East Drive in Brampton, only 1.l kilometres from the site of the crash. He is charged with criminal negligence causing death for not properly attaching the trailer to the van, failing to remain at the scene of an accident in which death occurs, possession of the van knowing that it was stolen, and two failure to comply with bail counts.
[5] As a first step, the Crown must prove the accused was the driver of the van and the person who hooked the stolen trailer to the van. The main evidence comes from the testimony of his girlfriend at the time, Joyce Pasiecznik. It was her evidence that she was in the passenger seat of the white cargo van with the accused when he arrived at the U-Haul lot, hooked up the trailer and then drove away. There is video evidence of the trailer being stolen from the lot but its quality is poor.
[6] Crown and defence agree that Ms. Pasiecznik is a Vetrovec witness: Vetrovec v. R, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. In my view, because of the severe weaknesses in her credibility and reliability, the Crown could never prove that the accused was the driver of the white van based on her evidence alone. On the other hand, taking the circumstantial evidence by itself, there is clearly insufficient evidence to prove the accused’s involvement.
[7] This case, as a result, presents a classic Vetrovec problem. Does the circumstantial evidence “restore faith” in Ms. Pasiecznik to the level that the accused’s involvement has been proven by the Crown beyond a reasonable doubt? R v Khela, 2009 SCC 4, [2009] 1 SCR 104 at paras. 35-44; R v Kehler, 2004 SCC 11 at para. 12-17; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 69.
Ms. Pasiecznik’s Evidence
[8] It was Ms. Pasiecznik’s evidence that she and the accused were going out for about a year. At the time of the alleged offences, they were both drug addicts. Their general practice was to smoke heroin upon waking in the morning. She could not say specifically whether they had smoked heroin before the alleged offence on August 1, 2018. But they were generally high throughout the day. They also used crystal meth and crack cocaine frequently. She admitted abusing alcohol as well.
[9] Ms. Pasiecznik testified that the accused had been driving the white cargo van for about a week at the time of the collision. One morning, he drove over to the place of her U-Haul storage unit with her. Ms. Pasiecznik was shown the video from the U-Haul lot in which a white cargo van can be seen driving in, backing up towards the tongue of the trailer, and a person then seen getting out and hooking the trailer to the van. He then returns to the van, driving a few feet, gets out again, and goes back to the hitch for several seconds. The person then returned to the van and drives off with the trailer in tow. Ms. Pasiecznik said that she was in the passenger seat the entire time and that the driver and the person who hooked up the trailer was the accused.
[10] Ms. Pasiecznik testified that the accused did not say why they were going to the U-Haul lot that day. She was tired and lay in the passenger seat; she was just along for the ride. Ms. Pasiecznik testified that she knew that something was attached to the back of the van when they left the lot. She could see it in the mirrors and at some point became aware that it was swaying. After a period of time, Ms. Pasiecznik noticed that she could no longer see it and told the accused this. He paused the vehicle and then continued to drive saying he would leave it. At no time did she see the trailer hit Mr. De Pledge or go across the industrial park lawn. The accused drove to 13 Jennifer Square where they were residing. He asked her to clean the van with him which she did, inside and out. The dashboard and steering wheel were cleaned and other areas as well. The accused said he wanted to get rid of it; Ms. Pasiecznik said he was in a hurry, unusual for him.
[11] Ms. Pasiecznik said that the van was abandoned on a residential street not too far from Jennifer Square where they were living. She was shown a neighbourhood video of a motorcycle turning on to a residential street, followed by a white cargo van, identified by witnesses as a street called Jasper Crescent. Ms. Pasiecznik testified that this was the accused on the motorcycle, a motorcycle registered under her name. It was Ms. Pasiecznik’s evidence that although they purchased it together, only he drove it. She testified that, at the accused’s request, she drove the van following him on the motorcycle. She was nervous because she was disqualified at the time. The accused removed the hitch or the licence plate from the van, she was not sure. The van was left on the street and the two left the scene on the motorcycle, with the accused driving. The police later seized the van from where it was abandoned on Jasper Crescent.
[12] Ms. Pasiecznik testified that the accused drove the motorcycle to Professor’s Lake with her on the back. The accused wrapped a shirt around the hitch used to attach the trailer to the van and threw it into a garbage can.
The Weaknesses in Ms. Pasiecznik’s Evidence
[13] As argued by Ms. Abbasi, Ms. Pasiecznik’s evidence was riddled with problems. The summary below is not intended to be exhaustive.
[14] Ms. Pasiecznik did not attend the trial in response to her subpoena and a material witness warrant was issued for her arrest. She arrived at court of her own accord several days later. Her explanation was that she was in the hospital, was on pain medication and could not walk well. She admitted in cross-examination that she was discharged from hospital on the Friday before the Monday commencement of the trial. She also testified that she overslept and was nervous about attending court late. These reasons did not, in my view, fully explain her non-attendance.
[15] Ms. Pasiecznik was originally charged with accessory after the fact to criminal negligence causing death, accessory after the fact to fail to remain causing death, possession of stolen property (x2), and driving while disqualified. In her statement given upon arrest on September 28, 2018, according to Ms. Pasiecznik, she protected the accused. She had lied for him in the past. On the stand at this trial, Ms. Pasiecznik claimed that this case was different, it affected many people, a man had died. Ms. Pasiecznik agreed that in the 2018 statement, she lied repeatedly. The officer continually put words in her mouth and suggested things to her including that she had not been present on August 1, 2018, at the U-Haul lot with the accused. She just went along with what he was saying; it was easy to agree with him. She has a history of being intimidated by the police. In fairness to the officer, I would note parenthetically that, at the time, Ms. Pasiecznik was an accused person, not a witness. Different investigative objectives may well have led to a different interviewing approach.
[16] Ms. Pasiecznik is a drug addict but said that she had not used recently. She did not appear under the influence of drugs while on the witness stand although she tired noticeably during cross-examination. Her memory had deteriorated from drug and substance abuse. She testified that she had lied to the police before and agreed with defence counsel that she was a “great liar.” She had lied under oath before two judges and lied even after a KGB statement warning. She had lied repeatedly during the preliminary hearing in this case. It was only during cross-examination at the accused’s preliminary hearing in January 2020 that she finally admitted being present in the white cargo van on August 1, 2018 when the accused allegedly stole the trailer from the U-Haul lot.
[17] In the wake of her change in position, the Crown determined on the first day of her multiday preliminary hearing on February 10, 2020 that there was no reasonable prospect of conviction. On the after-the-fact charges at least, this judgment call is certainly open to question and may be indicative of favourable treatment. She pled guilty to driving under suspension under the Highway Traffic Act and her Criminal Code charges were all withdrawn. On another occasion, she was found in possession of a small amount of heroin but she was not charged. This may add to the impression that the police were being kind to her as they wanted to recruit her as a compliant witness for this prosecution.
[18] Ms. Pasiecznik’s evidence made it clear that her memory was poor in some areas, whether because of the passage of time, drug use or for other reasons. Further, she was in the position of an accomplice and was, according to her own evidence, involved in abandoning the van on Jasper Crescent. There was vagueness and implausibility in her evidence. The hitch which was attached to the van, for example. Ms. Pasiecznik was not clear about where it was stowed when the accused drove the motorcycle with her on the back to Professor’s Lake and disposed of it in a garbage can. She also was somewhat unclear when it was taken off the van.
[19] At this trial, Ms. Pasiecznik said that she was aware of the trailer disengaging from the van but at the preliminary hearing, she had said that she was unaware of it until they reached their Jennifer Square address. That was a very significant discrepancy, in my view, striking close to the heart of the Crown’s allegations.
[20] In sum, Ms. Pasiecznik exhibited many of the symptoms and characteristics of an archetypic Vetrovec witness. She was an accomplice in the sense of potentially being the perpetrator of the offence or being a party to it, including after-the-fact. She admitted to perjuring herself in the past.
[21] There was a potential bias against the accused. She had testified against him in a trial in which he was charged with aggravated assault and other offences against the person committed against her. He was acquitted in December, 2020.
[22] She had a past relationship with him and it is unclear to me what feelings remained between them. There is a realistic possibility that there was some strong, bad feeling although I must say I did not detect any tangible sign of this during her evidence. Of course, this is not necessarily difficult to hide so it is hard to say what her view of him is currently. But the circumstances were enough to raise an alert on this question.
[23] There were significant inconsistencies in her evidence. She has a criminal history and a very serious drug addiction. There was an allegation that the police had favoured her in the past by not charging her with drug possession and by withdrawing her charges with respect to the matter before the court.
[24] For these reasons, a strong Vetrovec self-direction is required. Only if Ms. Pasiecznik’s evidence is substantially confirmed can the Crown prove that the accused was the driver of the van and the man who put the trailer on the van.
Is there Confirmation for Ms. Pasiecznik’s Evidence?
[25] These are the facts capable of being confirmatory of Ms. Pasiecznik’s evidence that the accused drove the van while towing the open air trailer which collided with Mr. De Pledge on August 1, 2018. One central thread extending through the key events is the presence of the Nissan NV 2500 cargo van.
[26] On the night of July 31, 2018, the night before the tragedy, Ms. Pasiecznik and the accused attended the Woodbine Casino arriving at about 9 p.m. Video footage shows that the accused drove the white Nissan van. Ms. Pasiecznik rode in the front passenger seat. There are also videos from inside the casino of the couple about to go up an escalator. They drove away in the van at just after 11:00 p.m.
[27] In addition, by chance, the stolen van had been observed by a surveillance police officer a few hours previously, at about 5:30 p.m. that same day, July 31, 2018, in the driveway at 13 Jennifer Square. Ms. Pasiecznik lived there and the accused often stayed there. Several neighbours believed he lived there because he was there so frequently. The van had a Quebec licence plate on the back. The officer took a picture of the van which was entered into evidence.
[28] It was about seven hours after driving from the casino that the same van is visible in a video from just before 6 a.m. in the U-Haul lot from which it was stolen with the driver hooking up the trailer to it. The video is of quite poor quality. The van backs up to the tongue of the trailer. The driver leaves the van, goes to the back and after about 30 seconds returns to the van and drives a few feet with the trailer being towed behind it. The driver stops the van, gets out, and then goes back to the trailer for another 20 seconds or so. The person then gets back in the van and drives off. The total time the van is visible at the lot is about two and a half minutes.
[29] Although the quality of the video is poor, there is some detail visible. The driver is male. He is wearing shorts to about the knee. His hair is black. The shorts are the same length and a similar style to the shorts the accused was wearing in the casino escalator video of a few hours before on the night of July 31, 2018.
[30] The second segment of Ms. Pasiecznik’s evidence involves the abandonment of the van. If her evidence about this event is correct, it links the accused by after-the-fact conduct to the van and therefore to the central factual issue of whether the accused stole the trailer from the U-Haul lot by hooking it up to the van.
[31] There is corroboration for this part of Ms. Pasiecznik’s evidence as well. At about 6:35 a.m. on August 1, 2018, about 35 minutes after the collision, a video taken by a home video camera at 63 Jasper Crescent shows a motorcycle and the white cargo van arriving and parking on Jasper. This location is not far from 13 Jennifer Square. During the video, a person removes the licence plate from the back of the van. The motorcycle drives away and the van is left abandoned. Eventually, some of the neighbours saw the report of Mr. De Pledge’s death. They believed that the van matched the description on TV and phoned the police. The police arrived and seized the van, taking pictures of it. The licence plate was missing from the back of the van but was found inside the cargo compartment.
[32] There is good evidence that the accused drove the motorcycle as Ms. Pasiecznik testified. Miroslaw Magziak and his wife Doroata lived on Jasper Crescent and saw the motorcycle as it was driving from the area. Both said that a man was driving with a woman on the back. The man was white, which Mr. Lehl is not. He was wearing a helmet so it may have been difficult to see the driver fully. In any case, this type of discrepancy is not unusual in the realm of eyewitness identification evidence. What is important for these purposes is that a male was driving, not his description. The description, given the poor opportunity to observe, does not undermine the observation that a male was driving the motorcycle.
[33] Confirmation for this account is provided by evidence of the accused driving the motorcycle at other times. A police officer doing surveillance on August 2, 2018, observed a motorcycle on Williams Parkway and followed it to 13 Jennifer Square where the couple often stayed. A male was driving it and a female rode on the back. On August 2, 2018, surveillance officers observed the accused driving the motorcycle in the area of 13 Jennifer. The accused drove it to a gas station and to the Woodbine Hotel. There are screen captures of him in those places. In addition, the motorcycle was observed and photographed by the police on September 15, 2018 outside of 13 Jennifer Square. The motorcycle is also featured on the accused’s Facebook pages.
[34] The motorcycle’s plate was 4J8A6. Ms. Pasiecznik is the registered owner. It is admitted as fact that the accused often drove the motorcycle. One neighbour saw him driving it at least a dozen times and two others observed him driving it a couple of times. None of these three neighbours saw Ms. Pasiecznik ever drive it. It was her evidence that she only drove it once, well after the pertinent events in early August. Otherwise, it was always the accused who drove it.
[35] Of significance, the white Nissan van is a unifying theme throughout its appearance at the casino, the theft of the trailer from the U-Haul lot and its abandonment on Jasper Crescent. It is a relatively generic vehicle. However, there were partial logos on the sides, back and front of the van which make its external appearance unique. The logos had been damaged over time. The partial logos are clearly visible in the casino parking lot videos. The U-Haul video was not nearly of the same quality but, nonetheless, the shape and size of the logos are apparent. Of course, the police photographs of the van abandoned on Jasper Crescent and in police custody later on clearly showed the markings. The conclusion is inescapable that it was the same van in each instance.
[36] I draw these conclusions. As Ms. Pasiecznik testified and is admitted as fact, the accused drove the van the night before the crash. As Ms. Abassi points out, that does not mean on its own that only he could have been driving the next morning. But this must be coupled with the evidence that the driver as shown in the U-Haul video was male, was wearing shorts resembling those the accused was wearing at the casino and his hair was also similar to his hair as shown on the casino video. This confirms Ms. Pasiecznik’s primary, direct evidence that the driver was the accused.
[37] Ms. Abassi suggested in cross-examination and submissions that other South Asian males lived at the Jennifer Street address and had access and use of the van. She also suggested that Ms. Pasiecznik was the driver and hooked up the trailer. These submissions must be carefully considered. In my view, given the association of the accused and Ms. Pasiecznik with the van, the use by any other person besides Ms. Pasiecznik and the accused is speculative. The universe of people who could have been driving is restricted to two: Ms. Pasiecznik and the accused.
[38] The trailer had a crank to turn which would raise the trailer up in order to assist with connecting it to a hitch from a towing vehicle. Mr. Chi Ho Chui from the U-Haul company used the trailer to haul heavy machinery – scissor lifts – to different U-Haul locations. The trailer was inspected every year and he had used it with no incident about a week before. Mr. Chui said he used the jack because it was difficult physically lifting the trailer because it was heavy. It is apparent from the video that the person who hitched the trailer to the van on August 1, 2018 did not use the crank. This slightly favours the accused being the person hitching the trailer, not Ms. Pasiecznik, who was clearly not as strong as he is.
[39] Ms. Pasiecznik said that the van was cleaned at the direction of the accused and then she was told to follow Mr. Lehl on the motorcycle. The van was abandoned on Jasper. The evidence of the cleaning of the van was not directly corroborated but the abandonment of the van was indisputable. Again, the person taking the plate off the van appears to be male, wearing shorts to the knee and with black hair. Ms. Pasiecznik said that the accused drove the motorcycle. This is supported by the evidence that when observed, it was always him driving the motorcycle, not her.
[40] In summary, the main evidence confirmatory of Ms. Pasiecznik’s evidence that the accused drove the van and hooked up the trailer is:
The accused was driving the van the night before the alleged offence and it was parked where he often stayed at 13 Jennifer Square;
The person who can be seen on the U-Haul video stealing the trailer is male and wearing shorts similar to those worn by the accused the night before at the casino;
Just about 35 minutes after the trailer became detached from the cargo van and hit Mr. De Pledge, the same cargo van that was towing the trailer was abandoned near both the scene of the collision and 13 Jennifer Square. Ms. Pasiecznik’s evidence that it was the accused who drove the motorcycle while she was asked to drive the van when it was abandoned is confirmed by the evidence that a male was seen driving it by the Magziaks. Plus, the accused often drove this motorcycle. Ms. Pasiecznik was never seen driving it. It can be inferred from this that Ms. Pasiecznik was telling the truth when she said that the accused asked her to drive the van and they left the scene on the motorcycle together with him driving;
The abandonment of the van and the removal of its plate attested to by the witnesses and caught on video is confirmatory of Ms. Pasiecznik’s evidence that the accused was the person who did these things. The person in the video appears to be male and with shorts and dark hair. This confirmation in turn helps to confirm her evidence with respect to the accused being the person who attached the trailer in the U-Haul parking lot. Furthermore, the evidence that it was the accused who abandoned the van, in view of his motivation to distance himself from the collision – of which I find he was aware (see the discussion below) – is circumstantial evidence demonstrating that he was the driver of the van at the time of Mr. De Pledge’s death: R. v. Calnen, 2019 SCC 6.
[41] Confirmatory evidence need not implicate the accused directly. It is sufficient if it is independent evidence and confirms a relevant part of the witnesses’ evidence: Kehler at paras. 12, 16; R v Roks, 2011 ONCA 526 (Ont. C.A.) at paras. 62-64. However, much of the confirmatory evidence in this case goes substantially further. It corroborates the material parts of Ms. Pasiecznik’s evidence, namely the evidence that the accused was the driver of the van, the person who hitched up the trailer and the person who orchestrated the abandonment of the van and the removal of its licence plate on Jasper Crescent. This is sufficiently powerful that it satisfies the higher test for corroboration enunciated in the hearsay case of R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 (S.C.C.) at para 45: (“… corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement (see Couture, at paras. 83-84; Blackman, at para. 57)” [Emphasis in Original].
[42] In summary, Ms. Pasiecznik’s evidence is corroborated by the casino video, the U-Haul video, the video of the motorcycle and van arriving at Jasper Crescent and the police discovery of the van with the plate removed in the aftermath. The abandonment of the van further corroborates the key evidence that it was the accused who stole the U-Haul trailer and was driving the van at the time of the collision. All of this evidence, in context, goes directly to buttress Ms. Pasiecznik’s evidence about who attached the trailer to the van and then drove the van.
[43] Based on the foregoing, in my view, Ms. Pasiecznik’s evidence that the accused was the driver and the person who hooked up the trailer in the U-Haul lot is confirmed by independent evidence. Taking all the evidence together, I am convinced that Ms. Pasiecznik’s evidence that it was the accused depicted in the U-Haul video is true beyond a reasonable doubt and is the only reasonable inference available.
HAS THE CROWN PROVED THE ALLEGATIONS IN THE INDICTMENT?
CRIMINAL NEGLIGENCE CAUSING DEATH
[44] Driving a motor vehicle is an inherently dangerous activity. The weight of motor vehicles and the velocity at which they travel are a frightening prospect and, if not done with care, are a serious hazard to life and limb. This risk is only increased when the vehicle is towing something behind it. In this case, the trailer increased the regular risk of driving several-fold. I would estimate the trailer as between 10 and 15 feet in length and about six feet in width. It was not flimsy. There are steel sides of about a foot and a half around the periphery. The metal ramps at the back which were used to load and unload the machine which was driven around to several U-Haul sites are at least four feet long and are made of metal as well. There was no admissible evidence of the weight of the trailer but I can infer that it was significant, several hundred pounds at the least.
[45] After it became detached, the trailer travelled 60 feet over a curb and a sidewalk and across a lawn until it hit the building at 90 Summerlea Road. The damage to the siding of the building as shown in the photographs was not insubstantial. The tongue of the trailer was badly bent as a result of the collision with the building. When the trailer hit, it must still have been moving with some speed.
[46] Even a small trailer detaching from a moving vehicle would constitute a serious danger to people and property in the immediate vicinity. The risks are obvious. A person hooking up a trailer to a vehicle would or should realize this. However, perhaps because he was stealing the trailer from the lot, the accused was hasty in attaching the trailer. While the evidence from several of the witnesses was that it took five minutes to do it properly, the total time spent by the accused was less than one minute. It is true that the accused had already attached his ball hitch to the van. But the very brief time to attach the trailer is a relevant factor.
[47] Cst. Sibley of the Peel Regional Police testified. He examined the hitch, the trailer, the safety hooks and the mount bolted to the van to receive the hitch. All were in good working order. He did a dry run attaching the trailer to a police vehicle and towing it for a short distance and no problems were observed.
[48] Cst. Sibley is a commercial vehicle inspector with extensive experience inspecting vehicles. His evidence was attacked by the defence on the basis that neither the van nor the trailer were heavy enough to constitute commercial vehicles. That, in my view, is of no consequence. Cst. Sibley had the experience to know a good deal about hitches and trailers. He was knowledgeable not only about commercial vehicles but ordinary vehicles too. He has the power to inspect ordinary vehicles and find them not sufficiently safe to travel on the road. That he was overqualified for what he was asked to testify to about in this case is not a valid criticism of his evidence.
[49] There was no accident reconstructionist called at this trial to give expert opinion evidence. Cst. Sibley was a fact witness only. In my view, no expert opinion evidence was required. In addition, Ms. Abassi argued forcefully that Cst. Sibley dishonestly slipped in an inadmissible opinion that, once attached, there was no way for the hooks to come off. I do not believe that this was deliberate. It was an error on his part but an understandable one. I have, of course, disregarded the opinion.
[50] Given the good working order of the receiving end of the hitch bolted to the van and the trailer hitch as well, there must have been some fault in attaching the trailer to the ball hitch which the accused must have brought with him. Some degree of negligence must have been involved. In this case, that serves as an important contextual circumstance. However, the Crown particularized the criminal negligence count, charging that the accused “failed to secure a trailer by secondary means,” thereby causing the death of Mr. De Pledge. The witnesses in this trial who had towing experience – Cst. Sibley, Mr. Appleby, Mr. Chi Ho Chui, and the owner of the van, Mr. Cormier – all testified that it is standard procedure when towing a trailer to have two safety hooks on the trailer which must, as a precaution, be secured to the frame of the tailer hitch. This is the secondary means referred to in the count. If the ball hitch fails for some reason, these hooks secure the trailer to the van and ensure that it does not detach and go off on its own.
[51] In this case, as the photographs show, the safety hooks were dangling uselessly from the trailer when it was found by the police after the collision. They look perfectly intact with no damage to them. That was the evidence of Cst. Sibley as well. If they had been clipped to the mount on the van, they could not have come off, particularly both of them at once. In my view, the only possible explanation is that the accused did not hook either of them up initially. This failure is at the nucleus of the criminal negligence count.
[52] Criminal negligence is defined in Section 219(1)(a) of the Criminal Code:
Criminal negligence
219 (1) Every one is criminally negligent who
(a) in doing anything …
shows wanton or reckless disregard for the lives or safety of other persons.
[53] Criminal negligence causing death in Section 220 of the Code adds a causation element. Justice Abella in R. v. Javanmardi, 2019 SCC 54 (S.C.C.) summarized the elements of criminal negligence causing death this way:
A conviction for criminal negligence causing death therefore requires the Crown to prove that the accused undertook an act … and that the act caused the death of another person (the actus reus). Based on J.F., the Crown must also establish that the accused's conduct constituted a marked and substantial departure from the conduct of a reasonable person in the accused's circumstances (the fault element).
[54] The fault element must be further elaborated upon. The first aspect involves a question of whether the accused’s actions created a risk to others and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible. The second aspect fixes the degree of departure from the reasonable person standard required to satisfy the offence. It must be a “marked and substantial” departure from the actions of a reasonable person: Javanmardi at paras. 21-23.
[55] The hypothetical reasonable person must be evaluated on the basis of a modified objective test; that is, the reasonable person in all of the circumstances of the case. Some activities require a higher standard based on the nature of the activity: Javanmardi at para. 38; R. v. Creighton 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 42-43. The test here is the reasonable prudent driver and, more particularly, the reasonable prudent driver attaching and then towing a trailer behind their vehicle: see R v Gallata, 2020 ONCA 60 (Ont. C.A) at paras. 7-10. The offence of criminal negligence is “higher on the continuum of negligent driving” than is dangerous driving: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 (S.C.C.) at para. 48.
[56] In this case, the analysis begins with Section 80(1) of the Highway Traffic Act R.S.O. 1990, c. H.8. This provision relates to motor vehicles drawing a trailer or other object and requires that “there [be] two separate means of attachment so constructed and attached that the failure of one such means will not permit the motor vehicle, trailer, object or device being drawn to become detached…” The accused did not attach the trailer’s safety hooks to the mount on the van. I am convinced of this beyond a reasonable doubt. This violated Section 80. Needless to say, not everyone who violates this provision is guilty of criminal negligence. The penalties provided in Section 80(2) are fines only. It is not in itself even a criminal offence. One can easily imagine a low degree of negligence being committed by the failure to have two means of securing a trailer. For example, if the trailer was being towed at very slow speed on a quiet country road for only a short distance, a Criminal Code driving or negligence offence would clearly not be made out. But the usefulness of the provision in this proceeding is that it fixes a normative expectation upon drivers towing trailers. It gives some instruction, if any was needed, about the importance for safety purposes of two means of attachment to the motor vehicle towing it.
[57] There was nothing compelling the accused to attach the trailer. He stole it from the lot. It was not spontaneous; it was planned. The van drove right up to the trailer with no hesitation. The accused must have brought a ball hitch to attach to the receiving mount on the van and then attached the trailer to the ball. Ms. Pasiecznik testified that the accused had one at home. The attachment of the trailer was hasty likely because of the accused’s apprehension that, despite the early hour, he might be observed in the act. He then drove the van at significant speed on city streets as shown in the video clips. The van had only travelled for several minutes and a short distance before the trailer detached.
[58] There can be no question that the failure to secure the safety hooks had a causal relationship with Mr. De Pledge’s death. If they had been applied, the trailer would not have detached completely from the van as it did. The causation requirement, part of the act element of the offence, is satisfied beyond a reasonable doubt in this instance.
[59] The fault or mental element requires the Crown to prove that the failure to attach the hooks was a marked and substantial departure from the reasonable person in the circumstances. The marked and substantial departure included towing the trailer while travelling at substantial speed. Vehicles, people, and bicycles populate city streets. The specifics of the trailer have some importance as well. This was a very substantial trailer. It was heavy. If it did detach, it posed a high risk of danger to life and limb. The horrific collision with Mr. De Pledge was not an “accident” in the true sense. Serious bodily harm to someone on the road or close to it, on a sidewalk for example, was predictable and objectively foreseeable from not securing the safety hooks. If it had not been this catastrophe, it may well have been another one. A heavy object hurtling untrammeled at the speed limit or close to it along a roadway is an unguided missile threatening all people in the vicinity.
[60] The reasonable prudent driver and person attaching a trailer would know this and, for this reason, take great care to secure the trailer properly. A person like the accused who undertakes to attach a trailer to his vehicle must have the requisite skill to do so safely. In this case, there was a total failure to take the rudimentary safety measures. It is not as though the hooks were not properly connected. They were not connected at all and clearly no effort was made to connect them.
[61] What happened in this case must be differentiated from a person simply making a mistake in forgetting to attach the safety hooks, always serious no matter what the situation. Not every failure to attach safety hooks constitutes criminal negligence. But the accused was stealing the trailer. He appeared to be in a hurry. Attaching a hitch properly requires a level of care and competence. The accused, because he owned some hitches, obviously had some experience with towing. He failed to properly connect the trailer to the ball hitch, and, as charged in the indictment, did not use the safety hooks at all.
[62] In all the circumstances, I conclude that the Crown has proven a marked and substantial departure from a prudent person towing a trailer. In addition, the mental element of the causation requirement is also satisfied: R. v. Menezes, 2002 CanLII 49654 (ON SC), [2002] O.J. No. 551 (S.C.J.) at para. 75. I find that the Crown has proved beyond a reasonable doubt and that it is the only reasonable inference that the accused is guilty of criminal negligence causing death as alleged in count 2 of the indictment against him.
FAILURE TO REMAIN AT THE SCENE OF AN ACCIDENT
[63] The Criminal Code charging provisions for this count have now been changed. At the time of the alleged offence, they read,
252 (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with
(a) another person,
(b) a vehicle, vessel or aircraft, …
and with intent to escape civil or criminal liability fails to stop the vehicle … give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.
(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if
(a) the person knows that another person involved in the accident is dead; or
(b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results.
[64] In this trial, because of the circumstances, the sole fact necessary to prove the key elements of the offence was the accused’s personal knowledge that the trailer hit Mr. De Pledge and his bicycle. I am convinced beyond a reasonable doubt and find that it is the only reasonable inference that the accused knew of the collision.
[65] First, when the trailer detached, it is a reasonable inference that the driver, the accused, must have felt it. Second, I conclude he saw the trailer traverse the road. While the laws of physics could suggest that the collision might have occurred somewhat behind the van, the video evidence suggests that if so, it was only a short distance behind. The travel of Mr. De Pledge, the van and the detached trailer were caught on the security video filmed from 100 Summerlea Road, the location of a business called Gardena Canada Ltd. The video shows Mr. De Pledge peddling his bike on Summerlea Road southbound. The cargo van going the opposite direction comes into view at about the same time that the trailer can be seen flying free of the van, traversing the lawn of 90 Summerlea. Mr. De Pledge cannot be seen but the photos taken in the aftermath leave no doubt that his bike was struck by the trailer after it detached.
[66] The trailer and the van are reasonably close together at this point. The driver of the van was in a perfect position to see the trailer hit Mr. De Pledge as he rode next to the west curb of Summerlea. Summerlea is one lane each way at this location. There could not have been much distance between Mr. Pledge and the van at the time of the collision.
[67] The reaction of the van demonstrates that the accused, who I have found was driving, was watching the travel of the trailer across the road, hitting Mr. De Pledge, mounting the curb and travelling across the lawn. The cargo van almost comes to a stop as the trailer travels perpendicular to the road towards its ultimate resting place against the building at 90 Summerlea Road. It then quickly accelerates and leaves the scene.
[68] I have considered that Ms. Pasiecznik in her evidence said that the accused did not remark in any way on the trailer detaching and hitting Mr. De Pledge. Nonetheless, I find he must have and did know. The physical sensation of the detaching of a substantial trailer from the van, the very close proximity of the collision to the accused in his position in the driver’s seat of the van and the relatively sudden acceleration of the van from almost a full stop after the trailer goes out of view are powerful evidence. Furthermore, the abandonment of the van and the removal of its plate, constitute consciousness of guilt evidence. In total, I am convinced beyond a reasonable doubt that the accused saw the collision.
[69] The accused is guilty of the simpliciter offence in sub. 1. He knew of the “accident,” he did not stop and complete his statutory duties under the subsection, and I find that the only reasonable inference is that his failure to stop was for the purpose of escaping civil or criminal liability: R v Siepp, 2018 SCC 1, [2018] 1 S.C.R. 3 (S.C.C.). With respect to the higher culpability 1.3 offence, under subsection a, the Crown cannot prove beyond a reasonable doubt that the accused knew Mr. De Pledge had died as a result of the collision. The issue is sub. b. To be guilty under this subsection, the accused must be shown beyond a reasonable doubt to know that bodily harm had been caused and to have been reckless whether the death of the other person results from that bodily harm.
[70] In my opinion, having found that he was aware of the collision, the knowledge that bodily harm was caused follows inescapably. Given the weight and the velocity of the trailer, no other conclusion is possible. Once the tongue of the trailer impaled the bicycle Mr. De Pledge was riding, a horrific event that the accused witnessed, the nature of the collision was such that bodily harm was inevitable.
[71] The issue is what is meant by the word “reckless” in this context. Although in the murder definition provision of Section 229(a)(ii), “recklessness” requires the higher level of awareness that death is likely to be caused by the bodily harm, the general concept of recklessness does not include this qualification. Rather, the Supreme Court said in R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570 at p. 582:
[Recklessness] is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk.
[72] Also see R v Briscoe, 2010 SCC 13 (S.C.C.) at paras. 22-24.
[73] In this case, the recklessness element requires the accused to know of the bodily harm caused and be “reckless” as to whether death will result. In my opinion, for the reasons already stated, when the trailer hit the bicycle, bodily harm was inevitable. The collision must have been nothing less than nightmarish to any observer. From this, the accused would know that there was a danger, indeed a likelihood, that death would result. The vulnerability of Mr. De Pledge on his bicycle in the face of the runaway trailer bearing down on him leaves no doubt. Seeing that the bicycle was hit in these circumstances imports both the knowledge of bodily harm and recklessness in respect of death. I conclude that the only reasonable inference is that the accused was well aware that death could result from the bodily harm. The elements of the higher 1.3 offence are proven beyond a reasonable doubt.
THE OTHER COUNTS IN THE INDICTMENT
[74] Count #3 charges the accused with possession of the stolen van. The owner, Mr. Cormier, testified that it had been stolen a little less than a month before the collision. Ms. Pasiecznik testified that the accused had been using it for about a week. He got it from some friends. The Crown must prove beyond a reasonable doubt that the accused knew it was stolen. Although I believe the accused probably knew it was stolen, the Crown cannot prove this beyond a reasonable doubt. The Crown cannot claim the benefit of the doctrine of recent possession. One month for a relatively common type of van, in these circumstances, is too distant in time from the theft: R. v. Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 S.C.R. 59 (S.C.C.). There is no other method to prove knowledge that the van was stolen. The accused is found not guilty of this count.
[75] Count #4 alleges breach of the condition on the accused’s bail that he not be out of his residence between 9:00 p.m. and 6:00 a.m. unless with a surety or for an emergency. The offence is charged as occurring on August 1, 2018. As the video shows the van driven into the U-Haul lot at just before 6:00 a.m., he is therefore guilty of this count. Count #5 is a breach of the bail condition that he not be with Ms. Pasiecznik or communicate with her. I find him guilty of this count as well.
[76] In summary, the accused Pritpal Lehl is found guilty of counts 1, 2, 4, and 5 and not guilty of count 3. I will endorse the indictment accordingly.
D.E HARRIS J.
Released: October 28, 2021
COURT FILE NO.: CR-20-0085
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Pritpal Lehl
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: October 28, 2021