COURT FILE NO.: CR-20-422

DATE: 2022 10 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Karim, for the Crown

• and -

PAUL MANZON

Defendant

C. Bottomley, J. Belton, and A. Shields, for the Defendant

HEARD October 18, 19, 20, 21, 26, 27, 28, 2021

REASONS FOR JUDGMENT

Dennison J.

Overview

1On a beautiful summer evening in August 2018, a horrible tragedy took place where three people lost their lives and others were significantly injured in a motor vehicle collision.

2Paul Manzon drove his blue Corvette northbound on Highway 50 after attending a car show with Rhonda Gary. At the same time, Allison Jones drove her grey Kia SUV southbound on Highway 50 with her seven-year-old son, M.J., her twelve-year-old daughter, L.J., and L.J.’s twelve-year-old friend, J.R. They were heading home from a pool party.

3The driving conditions were optimal. The traffic was light. The road was straight and in good repair. It was still light outside. Visibility was good.

4Mr. Manzon passed two motorcycles while driving north on Highway 50. One of the motorcycles, driven by Daniel Gouveia, sped up after the Corvette. Data recovered from the Corvette indicates that Mr. Manzon was driving at 163 km/h, five seconds before the collision. One second before the collision, he was driving 140 km/h. The speed limit was 80 km/h. The light at the intersection at Nashville Road and Highway 50 was green for north and southbound traffic.

5Ms. Jones was in the southbound left-turning lane at the intersection. The Corvette struck her vehicle as she made her turn. The two vehicles collided in the northbound passenger lane. The Kia went airborne and struck a pole on an island at the corner of the intersection. The Corvette ended up in the southbound turning lane. The front of the Corvette was smashed. The Kia’s driver’s side was smashed in by the pole and the passenger side was smashed in from the collision.

6Tragically, Ms. Jones, M.J., and J.R. died as a result of the injuries they suffered from the collision. L.J. and Ms. Gary suffered significant injuries from the collision.

7Paul Manzon is charged under the Criminal Code, R.S.C. 1985, c. C-46, with three counts of dangerous driving causing death contrary to s. 249(4), two counts of dangerous driving causing bodily harm contrary to s. 249(3), three counts of criminal negligence causing death contrary to s. 220(b), and two counts of criminal negligence causing bodily harm contrary to s. 221.

8For the dangerous driving offences, the Crown must prove beyond a reasonable doubt that Mr. Manzon operated a motor vehicle in a dangerous manner that resulted in death and bodily harm. His actions must also be a “marked departure” from the standard of care a reasonable person would observe in all of the circumstances.

9For the offence of criminal negligence, the Crown must prove beyond a reasonable doubt that Mr. Manzon undertook an act that caused death and bodily harm. His actions must show a wanton or reckless disregard for the lives or safety of other persons.

Positions of the Parties

The Defence’s Position

10Counsel for Mr. Manzon submits that the events are tragic, but Mr. Manzon’s speeding over a brief period of time does not meet the high threshold for criminal culpability. The court must focus on the manner of driving and not the consequences of the driving.

11Defence counsel submits that Jaspreet Singh, a civilian witness, is wrong that she observed the Corvette turn off Highway 427 driving at a high rate of speed. Counsel submits the court should accept the evidence of Mr. Gouveia, the motorcyclist, that he first saw the Corvette at the intersection of Highway 7 and Highway 50.

12It is the position of the Defence that there is no evidence Mr. Manzon drove dangerously prior to the collision. There was no weaving, no pattern of speeding, and he did not cut anyone off. Ms. Gary, the passenger in the Corvette, asked him to slow down and he did. Counsel submits that Ms. Gary had no idea how fast Mr. Manzon was driving given her consumption of drugs and alcohol and she admittedly never looked at the speedometer.

13It is the position of Mr. Manzon that he was chased by a loud motorcycle for 10 to 20 seconds and sped up to get away. Even if Mr. Manzon made a wrong choice in speeding up, the Defence argues that the marked departure test for dangerous driving is not satisfied. Mr. Manzon had a green light. The Kia did not stop before turning and accelerated into its turn. In that context, Mr. Manzon’s driving cannot be considered a marked departure, particularly when all the civilian witnesses testified the Kia came out of nowhere.

14Defence counsel submits that, when all of the evidence is considered, the court should have a reasonable doubt that Mr. Manzon’s driving was a marked departure and acquit Mr. Manzon of all charges.

The Crown’s Position

15The Crown submits that Mr. Manzon’s driving was a marked departure from how a reasonable person would drive in all of the circumstances. There is overwhelming evidence that Mr. Manzon was driving well over the speed limit as he passed the motorcycles shortly before the intersection where the collision occurred.

16The Crown submits there was some sort of power struggle between the Corvette and motorcycle. There is no evidence that the driver of the motorcycle did anything that would make a reasonable person feel threatened or concerned to justify speeding as Mr. Manzon did. Moreover, Mr. Manzon was already speeding before the motorcycle started to chase him. Patrizia Mazza, a civilian witness, said it looked like they were racing, and Ms. Gary testified it was “just two people in fast cars who went at it for a few seconds.” In all of the circumstances, the Crown submits that Mr. Manzon’s driving was dangerous to the public and was a marked departure from the reasonable, prudent driver.

17The Crown submits that Mr. Manzon’s driving also amounts to a marked and substantial departure and, therefore, the Crown has proven the offences of criminal negligence causing death and bodily harm beyond a reasonable doubt. The Crown relies on the evidence that Ms. Gary asked Mr. Manzon to slow down twice before even seeing the motorcycles. Despite her previous requests, Mr. Manzon sped up and passed the motorcycles. She again asked him to slow down, but it was too late as the collision was unavoidable.

Factual Findings

18At trial, five civilian witnesses testified who had observed the Corvette and/or the collision. The Crown also called the lead investigator and an expert. The Defence called expert evidence. An agreed statement of facts was filed that set out the evidence of eight other civilians who were present and five police officers who were involved in the investigation, as well as numerous photographs of the collision scene.

19There are many facts that are not in issue. There is no dispute that Mr. Manzon drove the Corvette involved in the collision. There is no dispute the collision caused the death of Allison Jones, MJ., and J.R. There is no real dispute that L.J. and Ms. Gary suffered bodily harm as a result of the collision.

20I will first describe the location and driving conditions. I will then address the expert evidence regarding Mr. Manzon’s speed. Next, I will address Mr. Manzon’s driving as described by the civilian witnesses. I will then consider the legal principles applicable to the offence of dangerous driving and apply the law to the facts in this case. Finally, I will consider the legal principles of criminal negligence and apply the law to the facts.

The Location and Driving Conditions

21The collision occurred at the intersection of Highway 50 and Nashville Road in Peel Region. Highway 50 runs north and south. Countryside Road is to the west and Nashville Road is to the east. There are traffic lights in all directions at the intersection.

22There are two lanes heading north and two lanes heading south on Highway 50. There are also left-hand turn lanes north and southbound. The blue Corvette driven by Mr. Manzon collided with the Kia driven by Ms. Jones as the Corvette travelled northbound in the right-hand lane. There is a concrete median between the northbound and southbound turning lanes. After the collision, the Corvette stopped in the southbound left-hand turning lane. On the northwest corner of the intersection, there is a large island with a light post. That is where the Kia landed after the collision.

23There is an Esso gas station on the southwest corner of the intersection. The area is largely rural with fields on the other three corners of the intersection. There is a paving company located south of the intersection.

24There is no dispute that the time of the collision was approximately 9:00 p.m. and the roads were dry and in good condition. It was still light outside and visibility was good. The evening was described by many witnesses as a beautiful summer evening.

25Traffic was described by many witnesses as light. There were, however, several vehicles driven by civilians in the area at the time of the collision, some of whom testified including Ms. Mazza, Mr. Gouveia, and Francesco Occhigrosso, the other motorcyclist.

26The agreed statement of facts sets out the evidence of several other drivers who were near or at the intersection at the time of the collision.

27Michael Jones, Ms. Jones’ husband, had just driven through the intersection heading southbound in his vehicle and had planned on turning left at Rutherford Road. He saw the accident through his rear-view mirror and immediately turned around. There was also another vehicle driven by Marcella Cinelli travelling southbound on Highway 50 when the collision occurred.

28There were also two other vehicles, driven by Alon Chitiz and Lucas Ziegelbaur, travelling northbound on Highway 50. They both observed the Corvette and the motorcycles immediately prior to the collision.

29Just prior to the collision, two other vehicles were stopped at the red light facing west and east at the intersection.

The Speed of the Corvette and Kia

30Mr. Manzon’s Corvette had performance upgrades including an alcohol injection system. It is unknown when those upgrades were made and if they were functional at the time of the collision because the certified mechanic was unable to inspect the front portion of the Corvette due its severe damage.

31Both vehicles had Event Data Recorders (“EDR”). EDRs record various information depending on the vehicle, including the speed the vehicles traveled immediately prior to the collision.

32The EDR recorded the Corvette’s speed from 5 seconds to 1 second prior to the collision. It did not include the speed at point of impact. The Corvette’s speed prior to impact was as follows:

5 sec: 102 mph = 163.2 km/h

4 sec: 97 mph = 155.2 km/h

3 sec: 93 mph = 148.4 km/h

2 sec: 90 mph = 144 km/h

1 sec: 88 mph = 140.8 km/h

33Police Constable (PC) Misev, the Crown’s expert in motor vehicle collision reconstruction, calculated that from seconds 5 to 1 the Corvette travelled 166.66 metres (546.59 feet). His evidence was not challenged on this point.

34Mr. Miholjcic, the Defence’s expert in motor vehicle collision reconstruction explained that he used Crash PC, a data simulator, to calculate the Corvette’s speed at the point of impact. After running various simulations, he calculated that at 0.56 to 0.65 seconds prior to impact, Mr. Manzon applied his brakes twice and reduced his speed to 125 to 120 km/h at the point of impact. Mr. Manzon’s response time was slightly faster than a typical alert driver in responding to the hazard of the Kia. To arrive at this conclusion, Mr. Miholjcic imputed the information provided by the police, including the EDR data, where the vehicles stopped after the collision, and skid and gauge marks showing the point of collision.

35The Crown’s expert agreed in cross-examination that it was theoretically possible for the Corvette to drop its speed from 140.8 km/h to 125 or 120 km/h in one second.

36The Kia had more detailed information on its EDR. It included the vehicle’s speed for every half second up to and including the point of impact. The Kia’s speed in the five seconds prior to collision was as follows:

5 sec: 40 km/h

4 sec: 33 km/h

3 sec: 26 km/h

2 sec: 28 km/h

1 sec: 29 km/h

0 sec: 26 km/h

37PC Misev also conducted a velocity calculation using the video from the Esso station. He noted 10 frames elapsed from the time the Corvette passed between fixed object #1 and fixed object #2. He then had a police car travel 80 km/h past the Esso station. At that speed, 18 frames elapsed from the time the police cruiser passed between fixed object #1 and fixed object #2. From this information, PC Misev was able to calculate that prior to the collision the Corvette was traveling at an average speed of 144 km/h, which is consistent with the information from the EDR.

38PC Misev also testified that, if the Corvette had travelled at a constant speed below 130 km/h, the collision would have been avoided. Mr. Miholjcic testified that, if the Corvette had been traveling below 136 to 137 km/h in the moments leading to impact, the collision would have been avoided. This evidence is not of great assistance to the court because it presumes that the Corvette travelled at a consistent speed. The EDR demonstrates it did not.

Mr. Manzon’s Driving Preceding the Collision

Assessing the Witnesses’ Evidence

39The Crown and Defence disagree about the manner of Mr. Manzon’s driving. The Crown submits there is a pattern of dangerous driving. In contrast, the Defence submits that Mr. Manzon’s driving prior to the collision was a momentary lapse that does not meet the marked departure standard. Assessing the civilian witnesses’ observations of Mr. Manzon’s driving is, therefore, crucial in assessing if his driving was a marked departure from the reasonable, prudent person in all of the circumstances.

40In assessing any witness’s evidence, the court may accept some, none, or all of the witness’s evidence. The court considers the credibility and reliability of a witness’s evidence. There are many factors the trier of fact may consider in assessing the credibility and reliability of a witness. For example:

a) internal inconsistencies

b) previous inconsistent statements

c) inconsistencies with other witnesses and other exhibits at trial

d) a witness’s motivations or lack of motivation

e) gaps in a witness’s memory

f) a witness’s ability to make observations; and

g) the reasonableness of the witness’s evidence.

The Corvette’s Driving Prior to Highway 50

41The first factual issue to determine is whether Ms. Singh observed the Corvette driving at a fast rate of speed on Zenway Drive off Highway 427. Mr. Gouveia testified he observed the Corvette at the lights at Highway 7 waiting to turn left onto Highway 50. He testified it caught his attention because its colour and chrome rims made it an “eye-catcher.” Both witnesses could not have seen the Corvette where they claimed based on road locations.

42I find that Mr. Manzon turned left onto Zenway Drive off Highway 427 as testified to by Ms. Singh. I do not accept Mr. Gouveia’s evidence that he saw the Corvette on Highway 7 waiting to turn north onto Highway 50 for the following reasons.

43First, Ms. Singh’s evidence about observing the Corvette on Highway 427 is corroborated by Ms. Gary’s evidence. Ms. Gary was the passenger in the Corvette and was on a date with Mr. Manzon at the time of the collision. She recalled that she and Mr. Manzon, at some point, were driving north on Highway 427 after attending a car show in the Burnhamthorpe area. I recognize that Ms. Gary had consumed three to four lines of cocaine and two glasses of wine between 3 to 4 p.m. She also consumed a half litre of wine prior to driving back to Mr. Manzon’s house. I also realize that she is suing both the drivers in the collision. There were some details that Ms. Gary did not recall but overall, despite being impaired to some degree, I found her evidence to be both reliable and credible. She testified in a clear straight forward matter. She did not try to guess if she did not know the answer to a question. I found that she tried her best to answer the questions that were put to her and there were very few inconsistencies in her evidence. I accept Ms. Gary’s evidence that she did not recall what street they took off Highway 427 and that she was unfamiliar with the area. She did, however, specifically recall driving on Highway 427 because she recalled discussing an interesting white building they passed.

44Second, Mr. Gouveia, the motorcyclist who chased the Corvette, placed the Corvette driving towards Highway 427. Mr. Gouveia testified he saw the Corvette at the intersection of Highway 50 and Highway 7. Mr. Gouveia was travelling west and turning right onto Highway 50. He stated the Corvette was at the light waiting to turn left onto Highway 50. That would mean the Corvette was travelling eastbound and did not come from Highway 427, because Highway 427 is east of Highway 50.

45Third, Mr. Occhigrosso, the other motorcyclist, did not observe the Corvette until sometime later heading north on Highway 50, after he and Mr. Gouveia turned off Highway 7 onto Highway 50. His evidence is consistent with Ms. Singh’s and Ms. Gary’s evidence.

46Fourth, Ms. Singh described the Corvette as blue and loud. She testified she observed the Corvette on Zenway and then lost sight of it but could still hear it. There were no other cars traveling ahead of her westbound on Zenway aside from the Corvette. She did not see any other blue Corvettes. Mr. Occhigrosso also testified that, when the Corvette accelerated, it was loud.

47Fifth, Ms. Singh also testified that when she observed the blue Corvette waiting to turn left onto Zenway, she noticed the windows of the Corvette were down and loud music was playing. This is consistent with Ms. Gary’s evidence that she had the window down at points during the drive and played music the entire time.

48Ms. Singh also testified that, at 8:55 p.m., she got onto Highway 427 at Highway 407 and was at the collision site by 9:06 p.m. She confirmed this timeframe because she was on a cellphone call during that time.

49Given the Corvette’s distinctive colour of blue, the music playing with the windows down, the light traffic, and the distance between when Ms. Singh last saw the Corvette and the collision, it is reasonable to infer that it was the same Corvette.

50I do not find the fact that Ms. Singh did not testify about the Corvette’s licence plate, CNTDCIDE, which the Defence submitted was distinctive, renders this inference unreasonable, given the other factors I have outlined above.

51I accept Ms. Singh’s evidence that the Corvette was stopped at the light at Zenway Drive, and when the light turned green the Corvette made its turn and sped away. Ms. Singh realized how fast the Corvette was going because she looked down at her speedometer and saw that she was pushing 70 km/h in a 50 km/h zone

52Ms. Singh described the Corvette as “flying” and travelling in excess of 90 km/h on Zenway. Ms. Singh lost sight of the Corvette at New Huntington Drive. Zenway was under construction so there were concrete barriers. The roadway was curvy. She could hear the Corvette, because it was so loud but did not see it approach Highway 50, nor turn onto Highway 50. The next time she saw the Corvette was at the collision site minutes later.

53Contrary to the submission of Mr. Manzon’s counsel, Ms. Singh’s evidence is not inadmissible bad character evidence. Observations of Mr. Manzon’s driving less than ten minutes prior to the collision is part of the same driving transaction. This is not a situation where evidence of Mr. Manzon’s driving days prior to the incident was introduced.

54Ms. Singh’s evidence is relevant as it provides some evidence that Mr. Manzon’s speeding on Highway 50 was not a momentary lapse of poor judgment. I do not, however, give this evidence significant weight in determining whether Mr. Manzon drove in a dangerous manner on Highway 50 just prior to the collision. Ms. Singh observed Mr. Manzon speeding for a brief period of time, then lost sight of him. She testified he did not lose control or have difficulty navigating the curves.

Driving on Highway 50

55I find that the Corvette drove in excess of the speed limit on Highway 50 prior to passing the motorcycles.

56Mr. Gouveia and Mr. Occhigrosso were driving their motorcycles north on Highway 50. Mr. Gouveia drove a blue sports bike that was very loud, and Mr. Occhigrosso drove a black cruising bike.

57They both testified that, as they drove up Highway 50, they saw the lights of the Corvette behind them, before they actually saw the Corvette. The Corvette caught up to them. Mr. Gouveia testified they were driving approximately 90 km/h. To catch up to them the Corvette had to have been going faster.

58Mr. Occhigrosso testified that, at some point on Highway 50, he noticed lights in his rear-view mirror and, eventually as the lights got closer, he saw the Corvette. He described the Corvette as weaving between lanes because he saw the headlights, then did not see the headlights, and then saw them again. The headlights were very bright. In cross-examination, it was suggested that the weaving was lane changes. Mr. Occhigrosso agreed and stated there were multiple lane changes. Mr. Occhigrosso’s observations support an inference that the Corvette passed slower vehicles as it progressed up Highway 50.

59Ms. Gary described Mr. Manzon’s driving an aggressive at times, but not consistently aggressive. There were times when he wove in and out of traffic and drove a little faster than her liking, but it was in short spurts.

60She explained there were a couple of times she grabbed Mr. Manzon’s arm to tell him to slow down. After the first sprint, she told him to “take it easy because she was a mom”, and that they should “have a good time”. He listened to her concerns and slowed down when she asked.

61Ms. Gary testified she did not know how fast Mr. Manzon drove because she had never been in a Corvette. In examination in chief, she testified that on Highway 50 there were times when it felt like they were driving fast, and that it was well over the 80 km/h speed limit although she did not check the speedometer. In cross-examination, Ms. Gary agreed that the most she could say about Mr. Manzon’s speed on Highway 50 was that he was going over 80 km/h.

The Corvette Passes the Motorcycles

62Four witnesses testified about what happened when the Corvette passed the motorcycles: Ms. Mazza, Mr. Gouveia, Mr. Occhigrosso, and Ms. Gary.

63I found Ms. Mazza’s evidence particularly compelling for several reasons. First, she was not driving but was a passenger in a vehicle. Her attention was drawn to the motorcycles prior to the Corvette being on the scene because she wanted to own a motorcycle. Second, she was not impaired by drugs or alcohol. Third, she has no interest in the outcome of the trial or any civil litigation. Fourth, after the Corvette passed the motorcycles, there was nothing obstructing her view of the intersection.

64I also found Mr. Occhigrosso’s evidence to be credible and reliable. He too had no interest in how the events are perceived, as he did not speed up after the Corvette. I found his evidence to be measured and fair in both examination in chief and in cross-examination, and there were no major inconsistencies in his evidence.

65Ms. Mazza testified she noticed two motorcycles at Langstaffe on Highway 50. When she first noticed the motorcycles, they were in the left lane, a little in front of her vehicle. Her vehicle was driving in the right lane. She thought that her vehicle was travelling around 70 km/h. The motorcycles were going roughly the same speed.

66She described the blue motorcycle that was a sport style and a black one that was more of a cruising style. She did not lose sight of the motorcycles until Rutherford Road. The traffic at that point was a bit heavier. They were driving at a “nice pace.”

67She saw the motorcycles again between Rutherford Road and Coleraine. They were to her left. The blue motorcycle seemed “a bit antsy” in its driving pattern. It would slow down a little, then go a little faster, then slow down again. The black motorcycle maintained its speed. They were traveling approximately 70 km/h. In cross-examination, Ms. Mazza agreed that the blue motorcycle was driving more aggressively than the black motorcycle and that it seemed like the blue motorcycle wanted “to go” even before the Corvette was on the scene. Mr. Gouveia denied slowing down and speeding up as testified by Ms. Mazza. I prefer Ms. Mazza’s evidence on this point.

68The Corvette was travelling well in excess of the speed limit when it passed Ms. Mazza’s vehicle and the motorcycles. I accept Ms. Mazza’s evidence that, as her vehicle came closer to Nashville, the motorcycles were to her right, in the right-hand lane. Her vehicle was in the left lane ahead of the motorcycles. Ms. Mazza testified, “There was a flash of colour, and a vehicle [the Corvette] came out of nowhere.” The Corvette passed quickly to her right. The Corvette passed the motorcycles in the left lane and returned to the right lane to pass Ms. Mazza.

69Ms. Mazza testified her vehicle was travelling approximately 70 km/h. When asked how fast the Corvette was travelling, she said, “Maybe double.” When asked if the windows in the Corvette were up or down, she said, “It was going too fast for me to see that.” I find that Ms. Mazza is slightly underestimating the speed of her vehicle. I prefer the evidence of Mr. Gouveia and Mr. Occhigrosso that they were travelling 90 km/h. Ms. Mazza was travelling ahead of the motorcycles and it is more reasonable that Ms. Mazza was travelling faster as at the time the speed limit on Highway 50 was 80 km/h, not the 70 km/h it was changed to after the collision.

70Mr. Gouveia testified that, after the light at the prior intersection, the grey SUV (Ms. Mazza’s vehicle) was slightly ahead of the motorcycles in the left-hand lane. There was enough space between the grey SUV and the motorcycles that the Corvette went from behind the motorcycles in the right-hand lane, over to the left-hand lane to pass them, and then back to the right-hand lane in front of them to pass the SUV. He testified that when the Corvette passed them, they were driving approximately 90 to 94 km/h. Mr. Gouveia was already in the highest gear on his motorcycle before the Corvette passed them.

71I find that the Corvette made a fast pass into the left-hand lane and back into the right-hand lane. While the Corvette did not cut off the blue motorcycle, it was a close pass. The Corvette was already speeding at this point.

72Ms. Mazza testified she did not see the Corvette cut off the motorcycle.

73Mr. Occhigrosso described a similar pass made by the Corvette. He stated the Corvette made the pass fairly quickly, and while the Corvette did not cut off Mr. Gouveia, it seemed a little close. He described it as a “quick pass”. He testified that at the time they were travelling 90 km/h. He recalled a small grey SUV in the left lane when the Corvette was behind the motorcycles.

74Mr. Gouveia stated that, when the Corvette passed in front of him, it was about a foot from the front tire of his bike. Mr. Gouveia thought it was an obnoxious and dangerous move.

75I also find that after the Corvette passed the motorcycles it “heavily accelerated and sped away,” as testified to by Mr. Occhigrosso.

76After the Corvette sped away, Mr. Occhigrosso recalled being hit by some debris off the road that the tires from the Corvette kicked up. He explained that being hit by debris “goes with how fast the car accelerated.” He agreed in cross-examination that debris could be kicked up by a car even if it was not accelerating. Mr. Occhigrosso testified Mr. Gouveia sped up to follow the Corvette three to four seconds after they were hit by the debris. He did not recall where they were exactly on Highway 50 when this happened.

77Mr. Gouveia testified he chased after the Corvette because he believed someone had thrown coins from the Corvette that had hit him. This had happened to Mr. Gouveia before, and it irritated him. He wanted to yell at the driver. He did not know if the driver was male or female. Mr. Occhigrosso continued driving at the same rate of speed.

78I find that Mr. Gouveia took off after the Corvette after being hit by the debris as explained by Mr. Occhigrosso. I do not find that Mr. Gouveia was hit by change. Mr. Gouveia was driving in front of Mr. Occhigrosso in a staggered formation so Mr. Gouveia would have been hit first with the debris.

79Mr. Gouveia testified he sped after the Corvette but did not know how fast he travelled, aside from the fact that it was more than 94 km/h. The Corvette travelled faster. Mr. Gouveia testified he needed more time to catch up to the Corvette. He stated that when he got to the location of the paving company, he said, “F it” and gave up. He moved to the left to look for Mr. Occhigrosso to see if they were going to make a right at the intersection or continue north. Mr. Occhigrosso also testified Mr. Gouveia could not catch up to the Corvette and stopped chasing the Corvette.

80I find that Mr. Gouveia was close to the rear of Corvette when he chased after it. Ms. Mazza testified that the Corvette and blue motorcycle were in the same lane. She described the motorcycle as right behind the Corvette, but closer to the right. She agreed that the motorcycle was riding on the Corvette’s tail. She did not explain how close that actually was.

81Mr. Gouveia testified he was about a car length and a half behind the Corvette.

82Mr. Occhigrosso agreed that he could not see how close Mr. Gouveia was to the Corvette.

83I do not accept Ms. Gary’s evidence that the motorcycle was beside the Corvette during the chase in light of the other witnesses’ observation. I accept Ms. Gary’s evidence that she saw the driver of the motorcycle, but I find that she likely saw this as the Corvette passed the motorcycles and not after.

84I prefer the evidence of Ms. Mazza that the motorcycle and the Corvette were speeding closer to the intersection than Mr. Gouveia suggested. Mr. Gouveia testified he chased the Corvette for less than 20 seconds before giving up, and Mr. Occhigrosso testified that it was roughly 20 seconds from the time the Corvette took off until he arrived at the intersection. In addition, it is logical that the Corvette was speeding close to the intersection given its calculated speed just prior to the collision.

85Evidence in the agreed statement of facts from Lucas Ziegelbaur, a civilian witness, states he was travelling northbound on Highway 50 with his family. He noticed the two motorcycles. One was unrealistically loud. The motorcyclists were minding their own business until a Corvette came out and started revving his engine behind them closely. The Corvette cut off the motorcycle in front of Mr. Ziegelbaur and, just after Colerain Drive, one motorcycle raced the Corvette at an extreme speed. I rely on Mr. Ziegelbaur’s evidence to the extent that it is consistent with the other witnesses in this trial, including that one of the motorcycles was unrealistically loud and that one motorcycle sped up after the Corvette.

86Ms. Mazza testified that when she saw the blue motorcycle speed up, she thought it and the Corvette were racing. She started to make a comment to her partner about how silly it was, but before she could finish her sentence the collision happened.

87Ms. Gary also testified that there was a bit of a race or power struggle between Mr. Manzon and the motorcycle. She did not see any signals given between the drivers to race. She did not see either of them egg each other on. She squeezed Mr. Manzon’s arm, and “it just subsided”. It stopped on its own but not soon enough.

The Collision

88There is no dispute that, at the time of the collision, Mr. Manzon had a green light northbound at the intersection.

89Ms. Mazza testified the blue motorcycle, and the Corvette were proceeding towards the intersection. She saw a grey silver SUV making a turn at the intersection. She lost sight of the blue motorcycle. She testified it went towards the right somewhere. All she could focus on was the SUV and the blue Corvette. The SUV started to make a left-hand turn and the Corvette hit it. She saw the SUV leave the ground and hit the pole. She did not recall seeing the Corvette brake prior to the collision. I prefer the evidence of Mr. Miholjcic, the Defence’s expert, that Mr. Manzon hit his brakes twice which accounted for the reduction in the Corvette’s speed. This is also consistent with Mr. Gouveia’s evidence that he saw the Corvette brake twice.

90Ms. Mazza testified her vehicle was maybe 20 metres from the intersection and there was nothing blocking her view when the collision occurred. She saw a white vehicle in the distance turn around and stop to help. Ms. Mazza’s partner did not want to stop and help because they had a little child in the car and Ms. Mazza was pregnant. She called 911.

91Mr. Occhigrosso testified that, after Mr. Gouveia “left off,” it seemed that within seconds the Kia made the left-hand turn. Mr. Occhigrosso did not notice the Kia at first. As he testified, “One second it wasn’t there, the next second it was.” Mr. Occhigrosso reached the intersection and stopped to help.

92Mr. Gouveia also saw the collision. He drove his motorcycle through the intersection and stopped to help.

93Ms. Gary also did not see the Kia until it was in the intersection turning left.

94Ms. Singh did not see the collision, she arrived shortly after and stopped to provide assistance as well.

Analysis

The Presumption of Innocence and the Burden of Proof

95Mr. Manzon is presumed innocent of all the charges he faces. The Crown must prove beyond a reasonable doubt all of the essential elements of the offences.

96The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Proof beyond a reasonable doubt falls much closer to absolute certainty than proof on the balance of probabilities. I may only find Mr. Manzon guilty if I am sure he committed the offences charged.

97In considering whether the Crown has proven the charges against Mr. Manzon beyond a reasonable doubt, I must assess the evidence without prejudice, sympathy, or bias. The fact that the collision had tragic results, which evoke strong feelings of sympathy towards the victims and their families, has no place in my assessment of the evidence or whether I am satisfied the Crown has proven the charges beyond a reasonable doubt.

98Mr. Manzon was under no obligation to testify at this trial. I draw no inference from his decision not to testify.

99After carefully considering the credibility and reliability of the evidence heard during the trial, I am satisfied beyond a reasonable doubt that Mr. Manzon is guilty of three counts of dangerous driving causing death and two counts of dangerous driving causing bodily harm.

100I am not satisfied beyond a reasonable doubt that his driving was a marked and substantial departure from the reasonable, prudent person in all of the circumstances. He is, therefore, acquitted of the three more serious offences of criminal negligence causing death and two offences of criminal negligence causing bodily harm.

The Crown Has Proven Beyond a Reasonable Doubt that Mr. Manzon Committed the Offences of Dangerous Driving Causing Death and Bodily Harm

101The actus reus or prohibited conduct of the offence of dangerous driving causing death requires the Crown to prove that the accused operated a motor vehicle in a dangerous manner that resulted in death.

102The mens rea or fault requirement requires the Crown to prove beyond a reasonable doubt that the accused’s actions were a marked departure from the standard of care that a reasonable person would observe in all of the circumstances.

103Cromwell J. explained the actus reus in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 33-34, as follows:

Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)(a) of the Code, that is, driving “in a manner that was ‘dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place’” (para. 43).

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

104The focus on the actus reus is the manner in which the vehicle was driven. The trier of fact cannot simply leap from the consequences of the driving to a conclusion that the driving was dangerous. The court must engage in a meaningful inquiry into the manner of driving: Roy, at para. 35; see also R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 46.

105Excessive speed, in and of itself, may constitute dangerous driving depending on the context in which it occurs: R. v. Richards (2003), 2003 CanLII 48437 (ON CA), 174 C.C.C. (3d) 154, 35 M.V.R. (4th) 25 (Ont. C.A.), at para. 11; R. v. M. (M. K.) (1998), 1998 CanLII 1324 (ON CA), 35 M.V.R. (3d) 319 (Ont. C.A.), at p. 319.

106In R. v. Chung, 2020 SCC 8, 54 M.V.R. (7th) 1, the Supreme Court of Canada considered whether speed, in and of itself, could amount to dangerous driving. In that case, the accused, over a one block span, passed a car on the right and accelerated to 140 km/h in a 50 km/h zone while approaching an urban intersection. He was aware there were two cars at the intersection. The Supreme Court of Canada upheld the Court of Appeal’s decision, overturning the trial judge’s acquittal of the accused. In doing so, the Supreme Court, at paras. 28-29, held:

A reasonable person understands that driving is an inherently risky activity. It is made all the more risky the faster we drive, the harder we accelerate, and the more aggressively we navigate traffic. Although even careful driving can result in tragic consequences, some conduct is so dangerous that it deserves criminal sanctions.

On the facts as found by the trial judge, over a one block span, Mr. Chung moved into the curb lane, passed at least one car on the right, and accelerated to 140 km/h in a 50 km/h zone while approaching a major urban intersection and being aware of at least two other cars in the intersection. There is no evidence that the accused lost control of his vehicle.

107Counsel for the accused submits Mr. Manzon’s driving was not dangerous to the public having regard to all of the circumstances. Traffic was light in a non-residential area. Mr. Manzon was also being chased by a motorcycle when the Kia appeared out of nowhere. The speeding occurred over a short period of time. In all of the circumstances, counsel submits that Mr. Manzon’s driving was not dangerous to the public.

108Each case turns on its facts and I agree with counsel for the accused that the court is required to consider all of the circumstances. Nonetheless, I am satisfied beyond a reasonable doubt that Mr. Manzon drove in a manner that was dangerous to the public.

109There is no dispute that Mr. Manzon was driving in a more rural area. It was not a residential area and there were no pedestrians present. There was, however, a gas station on the corner. The roads were clear, and visibility was good.

110Mr. Manzon was driving on a highway that had numerous intersections, many of which were marked with lights as testified to by various witnesses. An intersection is a hazard because there is a realistic possibility that a person may turn at the intersection or not obey the traffic signals. Indeed, in this case, there were several other vehicles at or near the Nashville intersection where the collision occurred.

111Mr. Manzon was speeding before he drove on Highway 50, but even without this evidence, I would still be satisfied beyond a reasonable doubt that Mr. Manzon is guilty of dangerous driving causing death and bodily harm.

112Mr. Manzon travelled at speeds well in excess of the posted speed limit as he passed the motorcycles as testified to by Ms. Mazza. In addition, Mr. Manzon was speeding at 163 km/h within five seconds of reaching the intersection, less than 600 feet away. This was more than twice the 80km/h speed limit. Mr. Manzon was not speeding on a 400-series highway where there are controlled access points. He was travelling on a highway with numerous intersections. Viewed objectively, his driving was dangerous to the public regardless of whether he was being chased by another vehicle or not.

113Turning now to the mens rea. The test for mens rea as set out in para. 36 of Roy was recently affirmed in Chung, at para. 14:

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

114Momentary speeding, on its own, can establish the mens rea for dangerous driving, as explained by the majority of the Supreme Court of Canada in Chung, at para. 22:

Although this Court in Roy and Beatty determined that momentary lapses in attention and judgment would usually not raise criminal liability, this was because momentary lapses often result from the “automatic and reflexive nature of driving” (Beatty, at para. 34) or “[s]imple carelessness, to which even the most prudent drivers may occasionally succumb” (Roy, at para. 37). These are examples of conduct that, when assessed in totality against the reasonable person standard, only represent a mere departure from the norm. Momentary conduct is not assessed differently from other dangerous conduct. Conduct that occurs over a brief period of time that creates foreseeable and immediate risks of serious consequences can still be a marked departure from the norm (Beatty, at para. 48). A reasonable person would have foreseen that rapidly accelerating towards a major intersection at a high speed creates a very real risk of a collision occurring within seconds. This is what actually occurred in Mr. Chung’s case. Risky conduct at excessive speeds foreseeably can result in immediate consequences. Therefore, the fact that foreseeable consequences occur within a short period of time after someone engages in highly dangerous behaviour cannot preclude a finding of mens rea for dangerous driving.

115Although the driving at issue took place over a period of less than 20 seconds, it involved more than the kind of momentary mistake seen in the mistimed turn in Roy or the momentary lapse of awareness in Beatty.

116Counsel for Mr. Manzon submits that the court must consider that Mr. Manzon was being chased by a loud motorcycle. While he maybe should not have sped away, this choice is not a marked departure.

117I agree that Mr. Manzon’s interaction with the motorcycle is a relevant factor in determining if Mr. Manzon’s driving was a marked departure. However, I find that Mr. Manzon was already speeding excessively before the motorcycle chased him. As Ms. Mazza testified, she saw “a flash of colour, and a vehicle [the Corvette] came out of nowhere in the right lane” when the Corvette passed the motorcycles. She estimated that when the Corvette passed her it was travelling double the speed she was travelling, which she stated was approximately 70 km/h. She could not even tell if the windows were up or down in the Corvette because it drove past her with such speed. As I previously indicated, I find that she was travelling at faster than 70 km/h and, therefore, the Corvette was travelling even faster.

118Mr. Occhigrosso testified he was driving his motorcycle at 90 km/h when the Corvette passed. He described that, as the Corvette passed them, the Corvette “heavily accelerated and sped away from them.” Once it had passed, Mr. Gouveia sped after it. While I recognize this would have all occurred in a matter of seconds, the point is that Mr. Manzon had already accelerated before Mr. Gouveia started to speed after the Corvette.

119There is no direct evidence that Mr. Manzon felt threatened or felt the compelled to speed away from the motorcycle. I recognize that Mr. Manzon has no obligation to testify, and the burden of proof remains with the Crown. There is however no evidence that Mr. Gouveia threatened Mr. Manzon in any way. There were no hand gestures, words exchanged, or honking of horns. Mr. Manzon passed the motorcycle and it speed up after him. There is no evidence to suggest that Mr. Manzon, or any reasonable driver in the circumstances, would feel threatened and feel the need to speed away from the loud motorcycle at the speeds that Mr. Manzon drove.

120Ms. Mazza’s observations, regarding what happened when Mr. Gouveia sped after the Corvette, are apt. She believed they were racing. She started to comment about it to her partner but was not able to finish her sentence before the collision happened.

121Ms. Gary made a similar observation. She described it “as just two people in fast cars who went at it for a few seconds.” She testified that she thought there was a little bit of a power struggle between Mr. Manzon and the motorcyclist. Ms. Gary squeezed Mr. Manzon’s arm again and “it subsided,” but it was too late.

122Whether what took place is described as a race, a chase, or Mr. Manzon just showing off, he passed the motorcycles at a high rate of speed and accelerated up to speeds of 163 km/h. This occurred on a highway within 600 feet of an intersection with visible traffic lights. This is a marked departure from what a reasonable person would do in all of the circumstances.

123A reasonable person would have anticipated that a vehicle proceeding south may turn left at the intersection. There was even a designated lane for such a purpose. While traffic was not heavy, there was still traffic in the area. There were two cars stopped at the intersection and other vehicles driving north and south on the highway. Moreover, while the witnesses testified that the Kia came out of nowhere, the Kia was not speeding when it made its turn.

124A reasonable person would also have foreseen that another motorist might misjudge the speed of the vehicle given the posted speed limit of 80 km/h and enter the intersection to turn left when in fact it was unsafe to do so.

125I am satisfied beyond a reasonable doubt that Mr. Manzon’s decision to drive at speeds of 163 km/h less than 600 feet from a lighted intersection is a marked departure from the standard of care that a reasonable, prudent driver would observe in the same circumstances.

126Defence counsel did not challenge that Mr. Manzon’s driving contributed to the collision. Indeed, Mr. Miholjcic testified that Mr. Manzon’s driving was a factor in the collision. I agree that Mr. Manzon’s driving contributed to the collision and the turning of the Kia did not sever the causal connection.

127I am also satisfied that the injuries suffered by L.J., including her broken collarbone, constitute bodily harm. Ms. Gary testified she suffered broken bones in her foot, seatbelt burn, and was off work for several months. I find these injuries also constitute bodily harm.

128I am satisfied beyond a reasonable doubt that Mr. Manzon is guilty of three counts of dangerous driving cause death and two counts of dangerous driving cause bodily harm, as set out in counts 1 to 5 of the indictment.

The Crown has Not Proven the Offences of Criminal Negligence Causing Death and Bodily Harm Beyond a Reasonable Doubt

129The actus reus of criminal negligence requires that the accused undertook an act that caused someone’s death: R. v. Javanmardi, 2019 SCC 54, 439 D.L.R. (4th) 579, at para. 19.

130The mens rea or fault requirement requires the Crown to prove beyond a reasonable doubt that the accused’s act or omission “shows wanton or reckless disregard for the lives or safety of other persons” which is described as a marked and substantial departure from that of a reasonable person in the circumstances: Javanmardi, at paras. 20-21.

131Criminal negligence and dangerous driving both require the trier of fact to determine whether “a reasonable person would have foreseen the risk taken and taken steps to avoid it if possible”: Javanmardi, at para. 22. However, the legal tests are different. Dangerous driving requires proof of a marked departure from the standard of care of a reasonable person. Criminal negligence requires a marked and substantial departure from what a reasonable, prudent person would do in the same circumstances: Javanmardi, at paras. 19-22.

132There is no clear formula to determine when the line is crossed from a marked departure to a marked and substantial departure. But the fault requirement for criminal negligence is a higher standard. The distinction between the two standards has been described as a matter of degree. As explained by Healy J.A. in R. v. Fountain, 2017 QCCA 1730, 41 C.R. (7th) 330, at para. 27:

These differences of degree cannot be measured by a ruler, a thermometer or any other instrument of calibrated scale. The words “marked and substantial” departure are adjectives used to paraphrase or interpret “wanton or reckless disregard” in section 219 of the Code but they do not, and cannot, indicate any objective and fixed order of magnitude that would have prescriptive value from one case to another. As with the assessment of conduct in cases of criminal negligence, the assessment of fault by the trier of fact is entirely contextual.

133Weiler J.A. explained the fault requirement for criminal negligence in In R. v. L. (J.) (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324, 27 M.V.R. (5th) 1 (Ont. C.A.). The Court of Appeal overturned the appellant’s conviction for criminal negligence causing death. In that case, the appellant drove his van while a friend was on the hood of the vehicle. The friend tragically fell and died. In determining whether the appellant’s conduct was “wanton or reckless,” Weiler J.A. explained, at para. 18:

The trial judge appears to have concluded that because the appellant realized there was a risk of injury to his friend by driving with him on the hood, he was “wanton” or “reckless.” The fact that a reasonable person would realize that there is a risk of injury would also support a finding of dangerous driving. To establish that conduct is wanton or reckless the consequences must be more obvious. The greater the risk of harm the more likely it is that the consequences are the natural result of the conduct creating the risk. It is from this conduct that the conclusion that the accused had a wanton or reckless disregard for the lives or safety of others is drawn: Anderson, supra, at 486-487. [Emphasis added.]

134The higher fault requirement for criminal negligence, as compared to dangerous driving, was also considered by Hill J. in R. v. Menezes (2002), 2002 CanLII 49654 (ON SC), 50 C.R. (5th) 343, 23 M.V.R. (4th) 185 (Ont. S.C.). Hill J. compared the term “wanton” to the words heedlessly, ungoverned, undisciplined, and an “unrestrained disregard for the consequences.” Similarly, he associated “reckless” with “heedless of the consequences, headlong, irresponsible.”

135In that case, the accused engaged in a street race. Two vehicles drove at speeds of 100 km/h to 120 km/h in a 60 km/h zone. The vehicles engaged in lane changes at excessive speeds. They wove in and out of traffic. The road was dry and well illuminated, visibility was good, and there was little vehicle traffic. No other motorists were cut off. The accused slowed down half a mile before the other driver crashed. In those circumstances, Hill J. held that the accused’s conduct amounted to dangerous driving, but it did not amount to a wanton and reckless disregard for the lives and safety of others. The accused was convicted of dangerous driving and acquitted of criminal negligence.

136The similarities between Menezes and the present case help explain why I have a reasonable doubt on the criminal negligence offences. The road conditions and traffic are similar in both cases. Whether Mr. Manzon’s driving is described as racing, being chased, or showing off, he drove at a very high rate of speed, as did Mr. Menezes. I realize that in Menezes the accused was not involved in the collision, but in both cases the involvement with the other vehicle ended before the collision occurred.

137Other cases also demonstrate that the presence of other bad driving behaviours aside from speeding may take the driving from a marked departure to a marked and substantial departure.

138For example, in R. v. Mowlai, 2017 ONSC 4815, 15 M.V.R. (7th) 38, Molloy J. convicted the accused of criminal negligence causing death and bodily harm and dangerous driving. She held that it was not the speeding alone that made out the offence of criminal negligence, but the fact that Mr. Mowlai accelerated to try and beat the light at the intersection: at para. 29. Mr. Mowlai drove down Yonge Street in Toronto at approximately 4:15 p.m. He saw the traffic light turn yellow. He saw a car ahead of him brake for the light. Mr. Mowlai accelerated trying to beat the light. A car turned in front of him and he tried to stop. In trying to avoid the vehicle, he hit a pedestrian. Five seconds prior to the accident he was driving 71 km/h. At four seconds, he reached 107 km/h in a 50 km/h zone. In finding Mr. Mowlai guilty of criminal negligence, Molloy J. held, at para. 28:

I am satisfied beyond a reasonable doubt that the manner of driving in this case went beyond a mere “marked” departure from what a reasonable person would do. It is a marked and substantial departure from that norm. It is not a matter of speed alone. It is a deliberate decision to try and beat a light. Instead of immediately slowing down which is what a reasonable person would do, Mr. Mowlai did the exact opposite. He went as fast as he could possibly go – down Yonge Street on a weekday afternoon, towards an intersection where he actually knew the light was about to change. That is a substantial departure from the standard of care. [Emphasis added.]

139Unlike Mowlai, Mr. Manzon did not accelerate as he entered the intersection, Mr. Manzon made some efforts to slow down prior to entering the intersection, albeit too late. Mr. Manzon’s conduct leaves me with a reasonable doubt that he had a wanton and reckless disregard for others, but his driving was certainly a marked departure from how a reasonable, prudent driver would have driven on a highway while approaching an intersection in all of the circumstances.

140Mr. Manzon’s dangerous driving was not of a long duration, nor did he have a near miss prior to the collision. These elements would have assisted in finding that his conduct was a marked and substantial departure.

141For example, in R. v. Laine, 2015 ONCA 519, 80 M.V.R. (6th) 181, the Court of Appeal upheld the appellant’s conviction for criminal negligence causing death and bodily harm. The appellant accelerated on a hilly road so his passengers could get the rush feeling one gets on a roller coaster. The appellant nearly had an accident on the first curve. He reached speeds of approximately 140 km/h. One passenger egged him on, while the other urged him to slow down. As the appellant entered the third curve, he lost control of his vehicle. He ran off the road and his vehicle flipped, ultimately crashing into a hydro pole.

142The appellant argued on appeal that his convictions were unreasonable. The Court of Appeal upheld the conviction finding, at paras. 68-70:

The trial judge’s finding of criminal negligence was based on the appellant’s entire course of conduct while driving on Baseline Road. He began to speed and drove recklessly as soon as he got onto Baseline Road. He knew the road well: he had travelled on it many times throughout his life, albeit as a passenger on visits to his family cottage. The road was signed, and he had personally driven it several times over the course of this visit.

The trial judge considered the appellant’s youthfulness and the fact that he was egged on by his front-seat passenger who was recording the event on video. However, the appellant had also been asked to slow down at least once and he knew that at least one of his passengers was uncomfortable with his speeding. Even the appellant concedes that his conduct was “stupid.”

This is not a case of an inexperienced driver who made a bad turn while going slightly over the speed limit. His speed was grossly excessive, 140 km/h at the time Ms. Sheppard observed the speedometer, on a narrow two-lane highway. Even after the near-miss at Curve 1, the appellant continued his wanton conduct without regard for the lives of those passengers in his vehicle or indeed others using the road. He was not chastened by the near miss; instead, he increased his speed. [Emphasis added.]

143The Crown submits that Ms. Gary told Mr. Manzon to slow down two times prior to the speeding near the intersection and that this demonstrates Mr. Manzon’s wanton and reckless disregard for the safety of the public. Ms. Gary’s evidence cuts both ways. Ms. Gary testified that twice she told Mr. Manzon to slow down, and he did, which also demonstrates he was not being wanton and reckless. On the other hand, Mr. Manzon, even after being told to slow down twice before, still chose to drive at excessive speed past the motorcycles and accelerate even faster. He did, however, slow down when Ms. Gary squeezed his arm, but it was too late. Ms. Gary’s evidence does not assist in proving beyond a reasonable doubt that Mr. Manzon’s conduct was wanton and reckless.

144The other difficulty with Ms. Gary’s evidence is that she admittedly had no idea how fast Mr. Manzon was travelling when she asked him to slow down the two times before the collision. The most she could say was that he drove over 80 km/h.

145There is also no evidence that Mr. Manzon was under the influence of any drugs or alcohol, which may elevate the moral culpability from dangerous driving to criminal negligence. In R. v. Sheikh, 2021 ONSC 1847, Woollcombe J. found the accused guilty of dangerous driving and criminal negligence. In that case, the accused was not only speeding but had consumed MDMA and alcohol. He also tried to engage others in racing minutes before the collision. These factors considered cumulatively were sufficient to find that his driving was a marked and substantial departure from a reasonable, prudent driver.

146I recognize that each case turns on its facts. The court must consider the totality of the circumstances. In finding that I have a reasonable doubt that Mr. Manzon’s driving was a marked and substantial departure from the reasonable, prudent driver, I have considered the road conditions, the traffic, and the fact that Mr. Manzon was not under the influence of any drugs or alcohol. I have also considered the fact that Mr. Manzon started to slow down prior to the collision as he neared the intersection. His interaction with the motorcycle ended on its own before the collision. The speeding was for a 20 second period of time, as opposed to ongoing, and there was nothing in his prior driving to chastise him as in Laine. I have also considered that Mr. Manzon had a green light and, therefore, the right of way. Witnesses testified the Kia came out of nowhere, so this is not a situation where it is reasonable to infer that Mr. Manzon saw the Kia making the turn well in advance and did nothing to try and avoid the collision, as compared to Mowlai, where the driver saw another vehicle try to break for the light and instead sped up.

147I have no difficulty finding Mr. Manzon’s driving was a marked departure. No reasonable person would drive 163 km/h on a four-lane highway near an intersection where cars were present, regardless if another vehicle sped up after them. I am, however, left with a reasonable doubt that Mr. Manzon’s driving meets the high standard of being a marked and substantial departure from a reasonable, prudent driver when all of the circumstances are considered.

148Mr. Manzon is, therefore, acquitted of counts 6 to 10 on the indictment.

Dennison J.