COURT FILE NO.: CR-19-30000369-0000

DATE: 20211103

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

YU-LAN HE

Patrick Woods, for the Crown

Robert Warren, Q.C., for the Defence

HEARD: October 27, 28, & 29, 2021

Judgment: November 3, 2021

R.F. GOLDSTEIN J.

1This is a tragic case. On January 24, 2018 Yu-Lan He was driving a Ford Escape southbound on Warden Avenue in Toronto just south of Bamburgh Circle when she struck and killed Marwan Chabou. Mr. Chabou was crossing Warden Avenue at a crosswalk. The light was red. Ms. Le drove through the red light. She did not stop. Mr. Chabou died from blunt force injury to the head and torso.

2The police charged Ms. Le with one count of dangerous driving causing death. She says that she is not guilty. She says that she was in a momentary “dream-like” state when she struck Mr. Chabou. The Crown says that in fact she was simply inattentive, and it was not momentary.

ISSUES AND ANALYSIS

3On January 24, 2018 sections 249(1)(a) and 249(4) of the Criminal Code stated:

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;

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

4As an aside, those sections were replaced by sections 320.13(3) and s. 320.21 of the Criminal Code on June 12, 2018. Parliament changed the wording of the offence section and increased the maximum penalty to life imprisonment.

5The Crown must prove each of the two elements of the offence beyond a reasonable doubt:

• First, that viewed objectively, the accused was driving in a manner that was dangerous to the public (the actus reus); and,

• Second, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the circumstances; where the accused offers an explanation, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and the danger involved (the mens rea).

6See: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 at para. 43.

7In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 Cromwell J. for the Court summarized the Beatty test at para. 28:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused's was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48)

8The actus reus of the offence is set out in the Criminal Code. It is measured objectively. “The question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances”: R. v. Roy at para. 34. The consequences of the driving, no matter how tragic, are not material. Much criminally dangerous driving obviously happens without consequences. Some merely negligent driving has horrible consequences.

9These are the issues to be determined:

• First, did Ms. He drive in a manner that was dangerous to the public having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time?

• Second, did Ms. He’s driving amount to a marked departure from the standard of care that a reasonable person would observe in the circumstances?

• Third, does Ms. He’s explanation of her state of mind raise a reasonable doubt about whether a reasonable person in her position would have been aware of the risk created by this conduct?

(a) Did Ms. He drive in a manner that was dangerous to the public having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time?

10The answer to this question is undoubtedly “yes”. Mr. Warren, Ms. He’s counsel, did not suggest otherwise. Ms. He turned left onto Warden Avenue southbound from Bamburgh Circle. She changed lanes. She then continued to drive down Warden Avenue toward the crosswalk. The light was red. Northbound cars were stopped. Pedestrians were clearly visibly in the crosswalk. Ms. He drove right through the crosswalk without stopping. She struck Mr. Chabou, who clearly would have been directly in her field of vision. Mr. Chabou died at the scene. Ms. He’s car, a Ford Escape, was in good working order. The road was bare and dry. The day was sunny and bright. There were no obstructions on the road or even much traffic around her. Viewed objectively, Ms. He’s driving was clearly dangerous.

(b) Did Ms. He’s driving amount to a marked departure from the standard of care that a reasonable person would observe in the circumstances?

11Mr. Warren argues that a momentary lapse of attention cannot establish the fault element in dangerous driving. At its highest, Ms. He simply failed to recognize the red light and see Mr. Chabou in the crosswalk. It was a momentary act of negligence that may attract civil liability but cannot establish criminal liability.

12With respect, I do not agree. Ms. He’s driving did constitute a marked departure from the standard of care a reasonable person would observe.

13I certainly agree with Mr. Warren that a momentary lapse of attention is not sufficient for a trier of fact to be satisfied beyond a reasonable doubt that it was a marked departure from the standard of care. As Doherty J.A. put it in R. v. Willcock (2006), 2006 20679 (ON CA), 210 C.C.C. (3d) 60 (C.A.) at paras. 30-31:

… the conduct said to constitute the act of criminal negligence occurred entirely within a two to three second timeframe. There was nothing in the appellant's conduct or his manner of driving before that brief timeframe that offered any support for the Crown's case. To the contrary, the appellant's driving prior to those fateful seconds was entirely proper.

There can be no doubt that conduct occurring in a two to three second interval can amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others. However, conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum…

14The Supreme Court has emphasized that an act of dangerous driving must not be judged solely by its consequences. A trier of fact must not to over-reach in a case where the accused’s behaviour is not sufficiently blameworthy to attract criminal consequences, as Cromwell J. put it in R. v. Roy at para. 2, in quoting R. v. Beatty:

Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put in R. v. Beatty at para. 34, "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy." Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless.

15A careful review of the evidence indicates that Ms. He’s driving was not merely a departure from the standard of care; it was a marked departure.

16On January 24, 2019 Ms. He attended a meeting of the Toronto Chinese Christian Parenting Association. The meeting was held at the Good Shepherd Community Church at 390 Bamburgh Circle in Scarborough. Bamburgh Circle is, as the name suggests, a circle. The Church is at the northeast corner of Bamburgh Circle and Warden Avenue Road.

17To orient oneself, imagine a car pulling out of the parking lot of the Church. If that car turned right, and stay on the road, the car would be on Bamburgh Circle and approach Warden Avenue moving east to west. If the car stayed on Bamburgh Circle, it would swiftly cross Warden Avenue, where there are traffic lights. When a car is driving in that direction on Bamburgh Circle, it curves continuously to the left. The car would gradually turn in a southbound direction, and as it kept curving, in an eastbound direction. The car would then cross Warden Avenue from west to east, where there are also traffic lights. If the car stayed on Bamburgh Circle it would continue to curve to the left, go northbound, then westbound, and then find itself back at the Church. There is thus a northern intersection at Warden Avenue and Bamburgh, and a southern intersection at Warden Avenue and Bamburgh. Cars travelling southbound on Warden Avenue from north of Bamburgh Circle would come upon first the northern intersection, then a marked pedestrian crosswalk with traffic lights, and then a southern intersection with traffic lights. There is a slight downhill gradient and a slight bend in the road to the east between the northbound intersection of Warden Avenue and Bamburgh Circle and the pedestrian crosswalk. There are no obstructions, such as a bridge or streetcar tracks.

18Shortly before noon on January 24, 2019 Ms. He was driving her Ford Escape. She pulled out of the church parking lot and turned right on Bamburgh Circle. She was therefore travelling westbound. When she reached the intersection of Warden Avenue and Bamburgh Circle, she turned left. By turning left, she started travelling southbound. According to Ms. He’s evidence, she immediately changed lanes and moved into the curb lane of Warden Avenue. The pedestrian crosswalk is about 200 meters south of the intersection of Bamburgh Circle and Warden Avenue. At about the time she did this, Mr. Chabou was walking near to the crosswalk.

19There are residential buildings on the west side of Warden Avenue at the crosswalk. There is a plaza on the east side of Warden Avenue at the crosswalk. A surveillance camera facing east at the pedestrian crosswalk captured much of what happened:

TIME

EVENT

11:55:09

Mr. Chabou appears in camera frame, walking towards the crosswalk. He is on the western side of Warden Avenue, facing the plaza on the east side.

11:55:23

Mr. Chabou pushes the pedestrian call button, then waits as traffic moves on Warden Avenue.

11:55:48

Mr. Chabou presses the pedestrian call button again.

11:56:17

Mr. Chabou begins to cross the intersection moving from west to east. A pedestrian behind him begins crossing as well. A pedestrian begins to cross from the opposite side, moving from east to west. A car approaching the pedestrian crosswalk from the south begins to slow down.

11:56:21

The car approaching from the south stops.

11:56:23

A second and then a third car approaching from the south appear in the picture frame.

At the same time, Tian-Yu Liu, who testified for the Crown, appears in the camera frame on the west side of Warden Avenue, moving towards the pedestrian crosswalk. He starts running towards the pedestrian crosswalk just before Ms. He’s car strikes Mr. Chabou.

11:56:27

Ms. He’s car appears in the camera frame just north of the pedestrian crosswalk, travelling southbound.

11:56:28

Ms. He’s Ford Escape strikes Mr. Chabou.

11:56:29

Mr. Liu starts running towards the injured Mr. Chabou. He pulls his phone out. He testified that he called 911 at that point.

11:56:42

Ms. He gets out of her vehicle; walks toward Mr. Chabou.

20The surveillance video reveals that there was no southbound traffic crossing the pedestrian crosswalk during the time that Mr. Chabou stood on the east side and then walked. In other words, Ms. he had the southbound roadway to herself.

21On January 24, 2018 DC Chin and his partner, DC Putman, were Toronto Police officers assigned to Traffic Services. DC Chin is an accident reconstruction officer. They went to the scene shortly after the collision. The two officers and a Scenes of Crime, or SOCO officer, observed and photographed the collision damage and the scene. DC Chin and DC Putman examined the Ford Escape. There is no doubt that the front grille and hood of the Ford Escape show the damage caused when Ms. He struck Mr. Chabou. DC Putman and DC Chin did a road test of the Ford Escape. It was in good working order. Braking and controls were normal. The tires were properly inflated and had sufficient tread depth.

22DC Chin and DC Putman used electronic equipment to measure what is called the D factor or drag coefficient. The officers literally drove the car at around 50 km/h and then slammed on the brakes. They did that four times. Their speeds ranged from 51.5 km/h with a stopping distance of 12.8 meters to 54.1 km/h with a stopping distance of 13.3 meters.

23As DC Chin put it, the Ford Escape had no anomalies that would have caused the collision.

24DC Chin and DC Putman also examined the scene. The pedestrian crosswalk is clearly marked on the surface by alternating black and white stripes on the asphalt. There is a traffic signal and a pedestrian call button. There is a stopline about ten meters from the traffic stop to the crosswalk. The northbound cars visible in the surveillance video stopped at this stopline on the south side of the pedestrian crosswalk.

25DC Chin testified that the pedestrian crosswalk works this way: when the traffic lights turn red, the walk signal for pedestrians to cross is visible for 7 seconds. The walk signal then changes to a flashing hand for 13 seconds and counts down. At the end of the cumulative total of 20 seconds, the traffic lights turn green. DC Chin did not time how long the traffic light is amber before it turns to red. He observed that the traffic signal was in good working order. DC Chin observed tire marks but not skid marks. He saw no signs of an attempt to brake.

26DC Chin and DC Putman also tried to obtain information from the airbag control module. The airbag control module is sometimes called the “black box”, the equivalent of a flight data recorder in an airplane. DC Chin testified that if the airbags do not deploy – as they did not in this case – no data is recorded. He was unable to say the speed that the Escape was travelling when the collision occurred. He did testify that to him the collision was not about speed. He was satisfied that the Escape was travelling within the speed limit.

27About a year after the collision, DC Swaine, another Toronto Police officer assigned to Traffic Services, recorded a video using the in-car camera system. He estimated that the distance from Bamburgh circle to the pedestrian crosswalk was about 200m. He moved at a speed of about 45km/h travelling that distance. It took him 17 seconds to travel that distance. At 50 km/h a car travels at 13.89 meters per second. It takes a car travelling at 50 km/h about 14 seconds to travel 200 meters.

28I find as a fact that Mr. Chabou and the other pedestrians started walking when the walk signal flashed. That was at 11:56:17. Ms. He struck Mr. Chabou 11 seconds later. That means that the traffic light was red for at least 11 seconds before Ms. He’s car struck Mr. Chabou. The light would have been amber for some time prior to that. I cannot say based on the evidence where Ms. He was when the light at the pedestrian crosswalk turned from green to amber. I do find as a fact that Ms. He was already travelling southbound on Warden Avenue when the light turned from amber to red. I also find as a fact that it would have taken Ms. He about 14 seconds to drive from the intersection of Warden Avenue and Bamburgh Circle to the pedestrian crosswalk. That means the change from amber to red would have been in her vision when it occurred. That is confirmed by viewing the in-car camera video recorded by DC Swaine. It is possible that Ms. He saw an amber light for additional seconds, although I accept that it is possible that the change from amber to red may have occurred when she was changing lanes. I therefore find as a fact that Ms. He would have been looking south through her windshield at a red light for at least 11 seconds before striking Mr. Chabou. There were warning signs in addition to the red light. Mr. Chabou, a big man at 6’2” and over 200 lbs., was in the crosswalk. So were two other pedestrians. At least three cars were in view on the northbound side of the street, properly stopped at the stopline and waiting for the pedestrians to finish crossing.

29What happened, therefore, was more than a momentary lapse of judgment or a momentary lack of attention. It was a period of prolonged inattention, with no attempt to brake, even at the last moment, when Mr. Chabou would have been directly in her field of vision for some time. Based on the totality of the evidence, I find that Ms. He’s driving was a marked departure from the standard of care expected of a reasonable driver.

30In my view, this case is similar to R. v. Patel, 2017 ONSC 4048, relied upon by the Crown. Mr. Patel was driving with his girlfriend. They had personal issues at the time. As he drove he looked back and forth between the road and his girlfriend, clearly distracted. The last thing he recalled as he approached an intersection was that the light was green. Tragically, he struck a 7-year old girl on a bicycle and killed her. The intersection had a traffic light. The duration of the traffic light cycle was 4.5 seconds for an amber to turn red, and 2.5 seconds for a red light in all directions. Sutherland J. found that 9-10 seconds elapsed from the time Mr. Patel saw the green light until the time his vehicle struck the young girl. He found that his inattention was prolonged and substantial. It was more than a momentary act of negligence and more than a mere failure to recognize a red light and a girl riding her bicycle across the intersection.

31Cory J. in R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867 at para. 39 reminded us that a court must consider the “sudden and unexpected onset of disease and human frailties” when evaluating fault. He stated:

As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving. Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established.

32None of these “human frailties” applies to Ms. He. She did not take a prescribed medication or have a heart attack. Obviously, the list is not limited. There could well be psychiatric or psychological issues that could fall into the category of disease or human frailty. With respect, this is not one of them.

(c) Does Ms. He’s explanation of her state of mind raise a reasonable doubt about whether a reasonable person in her position would have been aware of the risk created by this conduct?

33Ms. He testified that she was in a “dreamlike state” when she was driving home from the parenting association meeting at the church. She was thinking of her friend, who had just died and tragically left a child behind. She does not recall anything after changing lanes until her car struck Mr. Chabou.

34Mr. Warren argues that her explanation should leave me with a reasonable doubt. There can be no other explanation for her actions. Ms. He had never had so much as a speeding ticket. She was not speeding when this collision happened. She had kept her vehicle in good working order. She was driving properly and within the speed limit.

35With respect, I cannot agree. I find that Ms. He’s “dreamlike state” was simply a prolonged period of distraction and inattention. There is no medical evidence of a disassociated state. We can all be momentarily distracted by a painful thought or memory, but I simply do not believe Mr. He on this point and her evidence does not leave me with a reasonable doubt.

36Cory J. stated in R. v. Hundal at para. 33 how an explanation is to be weighed:

Next, if an explanation is offered by the accused, such as a sudden and unexpected onset of illness, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

37Charron J. repeated the test in R. v. Beatty at para. 43.

38Ms. He is 58 years old. She was born in the People’s Republic of China. She moved to Canada in 2004 along with her husband and two sons. She was granted Canadian citizenship in 2008. She is a homemaker. Ms. He is also a devout Christian. She regularly attends the Grace Chinese Gospel Church in North York, near her home. She attends 2-3 times per week, although obviously she was limited to online attendance during the Covid outbreak. She also teaches Sunday school.

39Ms. He testified that in 2013 she met another woman at her church named Chen Wai Zhen, who went by the English name Annie. They became very close friends. They prayed together and spent time with each other at their homes. Annie had a son with significant mental health issues. Her son had what appears to have been involuntary admissions at both North York General Hospital and Ontario Shores Centre For Mental Health Sciences. Ms. He sometimes drove Annie to the hospital so she could visit her son. In August 2016 Annie was diagnosed with stomach cancer. She later went to China to stay with her mother, who was also sick and dying. Annie returned to Canada in December 2017. She was very ill at that point. She died on January 8, 2018. Ms. He visited Annie in a hospice and was with her when she died. The funeral was held on January 16, 2018.

40Ms. He testified that when she went to her parenting meeting on January 24, 2018 she had thoughts of Annie and Annie’s son. She was very sad for him because he was all alone with no mother and significant mental health issues. As she drove, she was troubled with thoughts of Annie, her close friend, and Annie’s troubled son, now left alone in the world.

41I accept that Ms. He probably was troubled and sad and that it affected her. I do not, however, accept Ms. He’s explanation that she went into a “dreamlike state”. I have some difficulties with her evidence. She kept repeating the same answers when Crown counsel tried to ask her questions. She became annoyed with the Crown. It appeared she was annoyed that he did not accept her answers. Some of this push-back was, no doubt, due to language as Ms. He was speaking through an interpreter. As well, she did improve slightly after I admonished her for refusing to answer questions. Overall, however, I found her to be a difficult witness. Ms. He claimed that Mr. Woods was yelling at her in a loud voice, which caused her to refuse to answer questions. I do not accept that. Mr. Woods was doing nothing improper and he was certainly not yelling at her. With respect, her refusal to answer the Crown’s questions seemed to me to be either an attempt to deflect or dislike of the questions and what those questions implied.

42I also found Ms. He’s evidence to be problematic because she claimed to remember details about an entirely routine and unremarkable event. Up until the moment of the collision, nothing about the drive from the church on Bamburgh Circle was out of the ordinary. And yet, Ms. He claimed to remember with precise detail where she changed lanes, the checking of her blind spot, her precise speed, and the locations where her “dreamlike state” began and ended. I find it troubling that she would have remembered details about her lane change, speed, and checking of blind spot. I accept that she may have driven that route several times but her refusal in cross-examination to answer detailed questions did not help her credibility.

43Ultimately, I find that Ms. He’s explanation was an ex post facto justification for inattentiveness and letting her mind wander for a very significant period rather than focussing on driving. She may have convinced herself that a “dreamlike state” is what happened, but I do not her explanation and I am not left with a reasonable doubt by it. A reasonable person would have appreciated the risk and danger involved in prolonged inattention. A reasonable person would have done something to mitigate the risk.

DISPOSITION

44I find Ms. He guilty of one count of dangerous driving causing death.

R.F. Goldstein J.