COURT FILE NO.: CR-21-40000281-0000 DATE: 20220902

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GURCHARAN SINGH Defendant

Counsel: Matthew Bloch, for the Crown Mitch Engel, for the Defendant

HEARD: May 9-19 and 27, 2022

P. CamPbell J.

REASONS FOR JUDGEMENT

A. BACKGROUND

[1] Gurcharan Singh is charged with dangerous driving causing death as a result of a collision on Avenue Road in Toronto shortly after 5:00 p.m. on November 1, 2018. Ines Puleio was a passenger in the right rear seat of a white Toyota Camry taxi driven by Mr. Singh. The car was observed to be moving erratically over a distance of approximately 300 metres. It finally came to a stop when it collided with the rear of a Toronto Transit Commission bus stopped on Avenue Road just north of Glengarry Avenue. This was moments after the Toyota had struck a Ford Explorer stopped behind the bus, a municipal garbage bin, a fire hydrant, and a wooden utility pole. The Camry’s airbags deployed during the collision. Mr. Singh sustained only minor physical injuries, likely as a result of the airbags’ forceful opening. It is an agreed fact that Ms. Puleio died due to multiple blunt force injuries to the right side of her torso sustained during the collisions. It is also agreed that the manner in which the taxi proceeded down Avenue Road and collided with the two vehicles and three fixed objects, leading to Ms. Puleio’s death, would make out the physical elements — the actus reus— of dangerous driving causing death.

[2] The only issue between the parties is the state of mind of Mr. Singh before and during this tragic event. He relies on civilian testimony and expert evidence to support the claim that he was experiencing a seizure which deprived him of awareness of his circumstances and the capacity to control his actions as the Camry headed toward the collisions. While the defence position was originally framed in terms of the defence of non-insane automatism, resting on the theory that Mr. Singh’s mind was not controlling his bodily movements, in closing argument the parties focused on whether the evidence in support of a seizure raised a reasonable doubt about the mental element of the offence charged and, if so, whether the choice by Mr. Singh to operate a vehicle, after indications that he was at risk of a seizure, in itself constituted a marked departure from the standard of a reasonable driver.

[3] There is little contest about the objective facts surrounding the movement of the taxi prior to the collisions. The Crown evidence included the testimony of an accident reconstruction expert who interpreted data from the Camry’s computerized Crash Data Retrieval system and witnesses who saw the vehicle on its southerly course along Avenue Road. The defence relied in support of its theory on four categories of evidence: the unexplained erratic driving; Mr. Singh’s behaviour and apparent state of mind in the aftermath of the collision; other possible seizure episodes he had experienced; and medical evidence including physicians’ notes and testimony, diagnostic test results, diagnoses and expert testimony interpreting them.

B. SUMMARY OF THE FACTS

(i) Erratic Driving near Woburn Avenue

[4] The first evidence of unusual motion by the Camry, with Mr. Singh behind the wheel, came from two witnesses, Natalie Paradis and Mayliinn Lopez, who were separately driving home from work along Avenue Road and saw the Camry about 300 metres north of the collision site. It was raining and the road was wet. Both women saw the car mount the west curb from the right-hand southbound lane, a short distance from a bus shelter, and then return to Avenue Road, now ahead of a vehicle it had previously been behind. Ms. Paradis estimated the right side of the Camry was two or three feet onto the curb and remained there for three to five seconds.

[5] Ms. Lopez testified that the car was moving toward the curb at an angle and would have hit her vehicle if she had not stopped. With its two right side wheels on the curb, the car looked as if it would hit the bus shelter, from which people had exited in fear. The Camry was moving slowly along the curb. She watched the car as it returned to Avenue Road, first moving very slowly from the right lane to the passing lane to a centre turning lane and then back again, speeding up and swerving back and forth in S-turns, “like a snake”. The traffic light at Woburn was red as the Camry went through it. This prompted Ms. Lopez to pull over and call 911. It appears that as she was on the phone to report the erratic driving, she heard the collisions at Glengarry and reported that as well to the 911 operator.

(ii) The Collisions at Glengarry Avenue

[6] Several witnesses testified about seeing or hearing the series of collisions and observing their immediate aftermath. With the expert evidence, the eyewitness testimony and the photographs and diagrams showing the final position of the Toyota, it is reasonably clear what happened.

[7] The Camry was travelling first in the centre turning lane and then in the right (curb) lane of Avenue Road, after angling across the three southbound lanes. The car mounted the curb about a bus-length north of Glengarry. Moments later, the front left of the Camry collided with the right rear and side of a stationary Ford Explorer, occupied by Luciano Cardamone. Though this was a heavy collision and caused substantial damage to the Explorer, the Camry continued southward, now mostly on the sidewalk. In quick succession, the Camry struck and destroyed a City of Toronto garbage bin, sheared a fire hydrant from its base, struck a wooden utility pole, and crashed into the right rear of a stationary TTC bus. It appears that the right side of the Toyota hit the utility pole. It may be that this was the impact that caused the injuries to Ms. Puleio, who was wearing a seatbelt. The car’s airbags deployed during the sequence of impacts. It came to rest against the bus in front of South Street Burger restaurant, which is at the southwest corner of Avenue Road and Glengarry. The car was facing south and slightly east, with its two right wheels on the sidewalk and its left ones on the pavement.

[8] Detective Constable Janice Woronchak was qualified on consent as an expert in accident reconstruction. She assisted the court with re-creating events before and during the collisions. She confirmed that Avenue Road was wet at the time of the accident and said the temperature was around six degrees. She also confirmed, relying on a mechanic’s examination, that there were no defects in the Camry which could account for its irregular movements and that it had been properly maintained.

[9] Detective Constable Woronchak was able to summarize findings from the scene through the Total Station surveying system, which calculates locations and measurements at geographical sites. The system generated diagrams that located and measured the relative positions of the vehicles and debris near the collision site. The officer confirmed what the visible damage to the vehicles suggested: the Toyota was moving at a high rate of speed when it went over the curb and struck the three fixed objects and two vehicles. There were no skid marks on the pavement.

[10] The Crash Data Retrieval (CDR) system was likened by Detective Constable Woronchak to the familiar “black box” used to re-create aviation accidents. It registers information from sensors on safety-related systems within the vehicle which determine when airbags will be deployed and when seatbelts will be locked into position. The CDR retains readings for a period of five seconds before a collision at a rate of one reading every half-second.

[11] Among the data collected by the CDR, the following were emphasized by counsel:

• In the seconds before the first collision, the Toyota’s steering wheel was at various positions which changed quickly. At 5 seconds before impact, it was 3 degrees to the left; at 4.5 seconds it was at 0 degrees (or the centre of its rotation), pointing the car straight ahead; at 3.5 seconds, it was 4.5 degrees to the right; at 3.0 seconds, it was 7.5 degrees to the right; at 2.0 seconds it was 18 degrees to the right. At 1.5 seconds before impact, it was 45 degrees to the right. By 1.0 seconds it had come back to 12 degrees to the right. Half a second before impact, it had moved to the left by 13.5 degrees, and at the point of impact it was at 1.5 degrees to the left. The Crown suggested that this pattern signified a conscious attempt by Mr. Singh to prevent the car from slamming into the South Street Burger restaurant by consciously steering to the left as the series of collisions occurred.

• The brake was not applied at any point prior to or during the collisions.

• The accelerator pedal was depressed to a significant degree throughout the five seconds in advance of impact. In the period from five seconds to 1.5 seconds before impact, it was between 36 and 44% depressed. In the three half-second readings before and at the point of impact, the accelerator was 89.5, 85.5 and 83.5 percent depressed. The Crown suggested that Mr. Singh had consciously tried to depress the brake to stop the car and had pushed on the accelerator by mistake.

• The car’s speed in this five second period, during which it would have travelled about 108 metres, continually increased, from 78 km/h five seconds before impact to 94 km/h at the point of impact.

[12] Because the car struck five objects in rapid succession, two from the side and three from the front, it is not entirely clear from which impact or “TRG” (trigger) the readings were taken. The likeliest inference is that they were triggered by the hitting of the garbage bin. I agree with counsel, however, that because of the very compressed time frame in which all the impacts occurred, the uncertainty on this matter does not undermine the value of the data. It is clear that the steering wheel was rotated to the left as the collisions occurred, that before they occurred the car’s speed increased, and that the accelerator was depressed, and the brake not engaged for the entire period.

[13] Still black and white security photographs of the interior of the taxi were placed in evidence by the Crown. These photos are taken, according to the security system’s settings, every second at the beginning and end of an “event” — such as the activation of the taxi’s meter or the door opening or closing — and then less rapidly (so as to preserve disc space) during most of a ride. Photos are, however, taken every second if the panic button, a “plunger” button, situated near the driver’s left knee, is activated at any point. As it happened, in the time when the 279 photos placed in evidence were taken, the panic button appears to have been activated and deactivated several times. The forensic identification officer who retrieved the images testified that the placement of the panic button meant that it could very easily be activated unintentionally by a driver.

[14] The 279 images in evidence were, according to the system’s timestamps, taken from 4:54:35 p.m. to 5:12:52 p.m. The clear and close images of Mr. Singh in this footage do not suggest anything out of the ordinary through most of the sequence. His eyes appear, at times, to move as if he were looking at objects and events of the sort to which a driver is usually attentive, inside and outside the car. He looked over his shoulder toward the right rear passenger seat. He seemed to check the interior rear-view mirror. He had his seatbelt fastened and a Toronto Blue Jays baseball cap on his head. He can be seen stroking his beard and reaching for his seatbelt. Later in these reasons I will examine the security photos in detail, concentrating on the last 15 to 20 seconds before the collisions which is probably the period during which the car moved erratically from the Woburn Avenue area south to Glengarry. The still photos were also addressed in questioning of a forensic psychiatrist and Mr. Singh’s wife, both called by the defence.

(iii) The Aftermath of the Collisions

[15] While fixed times were difficult to identify with certainty, despite many digital reference points, it appears that 10 or 11 minutes passed between the collisions and the arrival of first responders, the earliest of whom were firefighters. During that time, witnesses at the scene recounted seeing Mr. Singh emerging from the Camry, which he did with the assistance of John Harlow; his sitting for a time in the South Street Burger restaurant adjacent to the crash site; his examination of the damaged Camry; his retrieval of a baseball hat from the front seat; and the surprising discovery that Ms. Puleio was in the back seat, initially concealed behind the expanded airbags. Ms. Puleio was not conscious, and she was bent to her left side, with her torso across the seat and her seatbelt in place.

[16] These witnesses observed the demeanour and appearance of Mr. Singh after the collision.

[17] John Harlow was sitting near the front window of the South Street Burger restaurant, with his two children, when he heard and saw the series of collisions. He went outside and saw Mr. Singh in the passenger seat looking “stunned” with blood on his face from an injury that Mr. Harlow considered “minor”. He helped Mr. Singh get out and, with another man, assisted him into the restaurant where he took a seat and received some attention from the staff, including napkins for the bleeding. Mr. Harlow asked him a couple of times if there was anyone else in the car but received no answer.

[18] Mr. Harlow soon walked outside again, and Mr. Singh came out shortly afterward. Mr. Harlow watched as Mr. Singh walked slowly around the car then opened the driver’s door, pulled out his baseball cap and put it on. Another witness, Elise Levinson, who stayed in her vehicle after the crash, seems to have witnessed this as well. Mr. Singh can be seen wearing the hat in a post-accident photograph taken by Natalie Paradis.

[19] Mr. Harlow saw someone open the rear passenger door. At this point, he observed Ms. Puleio in the back seat for the first time. He regarded it as “odd” or “strange” that Mr. Singh had not spoken of his passenger. He was uncertain if Mr. Singh was in shock or intoxicated and regarded his lack of reaction as “mysterious”. Mr. Harlow had been in an accident himself and testified that Mr. Singh’s reactions were unlike his own. Mr. Harlow also acknowledged that “shaken”, “stunned” and “out of it” were other terms he had used to describe Mr. Singh after the accident and adopted them as accurate.

[20] Shamsudeen Ally was the driver of the TTC bus that the Toyota struck from behind. Mr. Ally spent much of his time after the accident on the phone to managers at the TTC, but he recalled that it was he who first noticed Ms. Puleio in the rear seat. He had originally told his dispatcher that no one was in the car. However, upon seeing Ms. Puleio in the seat, “folded in half”, unresponsive, and “twitching”, he changed his request of the dispatcher, saying that they needed first responders quickly.

[21] Mr. Ally did not interact directly with Mr. Singh, but noticed him in the area, wearing a green tracksuit. He appeared to be “very out of it, disoriented” and “not all there”. Bystanders were urging him to sit down but he did not. He was able to walk without assistance.

[22] Luciano Cardamone was the driver of the Ford Explorer which the Toyota slammed into at the rear right corner. The Camry hit the SUV so hard that it removed the rear wheel assembly from its chassis. Mr. Cardamone had been waiting for traffic to move with his foot on the brake when the collision occurred. He looked in the glove compartment for the paperwork drivers need after an accident and then got out. He registered the presence of Mr. Singh around the corner from the accident site, on the sidewalk of Glengarry near the burger restaurant.

[23] Mr. Cardamone took photos of the accident so that he could explain what had happened to his employer who had leased the Explorer. He then saw Mr. Singh approaching and recalled him make a sound while gesturing toward the Toyota. He had, to that point, been speechless, leaving Mr. Cardamone to wonder if he was “mentally there”. He described the sounds that came from Mr. Singh as a “groan, grunt or mumble”. He did not smell alcohol or see signs of drug use by Mr. Singh.

[24] When Mr. Cardamone looked in the rear seat, he saw Ms. Puleio “folded over” at her waist and leaning to her left. He alerted a nearby construction worker. He remained at the scene until first responders arrived and then went to Sunnybrook Hospital for personal medical attention.

[25] Joseph McNabb was another southbound motorist on Avenue Road. He was in the left turn lane hoping to enter Pusateri’s supermarket and looked to his right when he heard the “crunch” of the collisions. He saw three impacts — to the garbage can, the pole, and the bus. Mr. McNabb pulled his car to the right curb and parked just south of Glengarry Avenue. After failing to reach 911, he walked back to the scene of the collisions.

[26] Mr. McNabb noticed Mr. Singh sitting in the South Street Burger restaurant, facing forward, and “looking a little shocked” with a “blank look” or “blank stare” on his face.

[27] Jason Jensen was a supervisor of a water main repair project underway on Glengarry Ave., west of Avenue Road, which had closed Glengarry for the day. He and his colleague, Steve Gagliardi, were cleaning up at the end of their workday when the collision occurred. Mr. Jensen recalled that the white car, Mr. Singh’s Camry, was travelling at a high rate of speed.

[28] Mr. Jensen spoke after the accident to Mr. Singh who was wearing his baseball cap. He was walking well though his face was swollen. He described Mr. Singh as “not all there”, “kind of blank” and “out of it” during their conversation. He asked Mr. Singh why he had been driving in such a manner and received a blank stare in response. Mr. Jensen did not smell alcohol or marijuana on Mr. Singh. He recalled the TTC driver mentioning that someone was in the back of the car, though he did not go to look for himself.

[29] Steve Gagliardi was a construction worker and colleague of Jason Jensen on the Glengarry Avenue repair project. Around 5:00 p.m., as they were cleaning up the site, he saw the Camry coming at a high speed south on Avenue Road. It moved from the middle lane to the curb lane and hit the SUV then the garbage can, hydrant, pole, and bus. He stepped west on Glengarry to protect himself.

[30] Afterward, Mr. Gagliardi saw Mr. Singh get out of the car and look at the damage to it. He appeared confused, stunned, and shocked. When asked if he was okay, Mr. Singh did not answer. When asked if anyone else was in the car, he again did not respond. Bystanders urged him to sit on the curb by the car and he did so. Mr. Gagliardi heard someone say there was a person in the back seat, and he looked in the car to see Ms. Puleio hunched over and unresponsive. He could hear approaching sirens and tried to tell her that help was on the way. He estimated that six minutes went by between the collision and the discovery of Ms. Puleio in the car.

[31] Two paramedic crews came to the accident scene. The first attended to Ms. Puleio, who was taken to Sunnybrook Hospital. The second crew examined Mr. Singh and eventually took him to Sunnybrook as well. Both paramedics reported observations of his overall condition and vital signs.

[32] Lycia Pryce, who is trained in basic emergency life support, testified that she and her colleague, William Yang, arrived at the scene at 5:27 p.m. and located Mr. Singh a minute later, in the restaurant. Ms. Pryce described him as alert, with his eyes open, though he appeared confused, shaken, and frightened. She recorded various vital signs at 5:31 p.m. Mr. Singh’s blood pressure was high, but his pulse, respiration, oxygen saturation, and blood sugar were normal. On the 15-point Glasgow Coma Scale (GCS), a measure of “consciousness”, Mr. Singh was rated at 14, with a point deducted for his slowness in answering questions. His ability to open his eyes and control his movements was assessed as satisfactory. His pupils were of normal size and reacted “briskly” to light. He walked normally to the ambulance. Ms. Pryce agreed that Mr. Singh appeared to be confused when first observed and that his confusion and fear dissipated over time so that he was normal in these respects by the time staff at the hospital dealt with him. They arrived at the hospital at 5:57 p.m.

[33] William Yang, an advanced paramedic with 18 years of experience, observed Mr. Singh sitting in the restaurant. He was not in obvious distress but was indicating he had pain in his face and neck. When asked if he remembered anything about the collision, Mr. Singh said he did not and he could provide no details of what had happened. Later, when asked what had occurred and how fast he had been driving, he answered that he had been going no more than 60 km/h. Mr. Singh reported that he had high cholesterol and an allergy but no other medical complaints. There was no sign that he was under the influence of alcohol or drugs.

[34] Mr. Yang recorded Mr. Singh’s vital signs twice more during their time together. At 5:45 p.m., his blood pressure was still high but coming down from the initial reading. His pulse and respiration were full and regular, and his blood oxygen level was 100%. Other readings were also normal, including an electrocardiogram. His Glasgow Coma Scale rating was still 14 of 15 because he could not remember what had happened.

[35] Twelve minutes later, at 5:57 p.m. — the arrival time at Sunnybrook Hospital — the vital signs were still essentially the same, but the Glasgow Coma Scale reading was now at the maximum level of 15 because Mr. Singh was able to answer questions more appropriately. Mr. Yang agreed that Mr. Singh was confused when they first met him and that over time the confusion seemed to dissipate and then go away.

(iv) Evidence of the Defendant

[36] Mr. Singh is now 48 years old and is married with two children. He testified through a Punjabi interpreter. Before working as a taxi driver in 2017, he had been a general labourer. He testified that he did not use illegal drugs and drank alcohol only occasionally in small amounts; he had not been drinking on November 1, 2018. He said he had no history of seizures before 2017 and had never been diagnosed with a mental disorder.

[37] Mr. Singh testified that he had the first of the episodes which he called “blackouts” on August 23, 2017 while driving on Airport Road. There were two accidents that day which led to his receiving “tickets”. He was dealt with by the police after the second accident. He was charged with leaving the scene of the first accident four months later, in December, and testified that he had no recollection of that event at all. He also cannot say how the second August 23, 2017 accident occurred — he just knows that his car ended up squeezed between two vehicles.

[38] On December 19, 2017, Mr. Singh saw his family physician about this episode. He was prescribed medication for epilepsy, referred to a neurologist, and told not to drive. Mr. Singh testified that he largely followed the advice not to drive, using his car infrequently and not working as a taxi driver until about ten days before the November 1, 2018 accident. For Mr. Singh, the incident that confirmed the nature and severity of his seizure disorder took place the month after that accident and involved an episode in the middle of the night in which he urinated involuntarily and had to be taken to hospital by ambulance. This led to an adjustment in his medication and, he said, to the end of his seizures.

[39] Mr. Singh did not provide a detailed account of the events preceding the collisions at Avenue Road and Glengarry, claiming that he was in a blackout when they occurred and had no relevant memory. He said he began his taxi shift at 9:00 a.m. that day. He recounted being dispatched to pick up Ms. Puleio in the Jane Street and Finch Avenue area of Toronto to take her to Sunnybrook Hospital. He remembered that he drove east along Highway 401, which was jammed with traffic, and exited onto Avenue Road, following guidance from the taxi’s onboard GPS unit. He recounted what he called a “first-class conversation” with Ms. Puleio which included her explaining that she was going to the hospital for a weekly cancer treatment.

[40] As he went south on Avenue Road, he felt a blackout happening. This involved darkness in front of his eyes, like his brain was failing to work, so that his control of his actions was “gone”.

[41] The first thing Mr. Singh recalled after the blackout was people taking him from the car and offering him a chair to sit on. He realized that he was bleeding. Asked about specific features of the evidence, he said that he did not recall driving on the sidewalk close to the bus shelter at Woburn Avenue nor going fast as he approached Glengarry, nor speeding up as he smashed into the black SUV and the other objects in quick succession. Even when he saw the collision site, with the debris and the three damaged vehicles, he could not work out what had happened. He did notice that the Camry’s airbags had opened and wondered what had occurred. He remembered the arrival of the paramedics and the drive by ambulance to the hospital. It was only after he was admitted to hospital that he learned from the police that his passenger had died.

[42] Crown counsel pressed two themes in cross-examination — first, that Mr. Singh did not experience a seizure and was fabricating that to excuse his flagrantly dangerous driving and the death which resulted and, second, that if he did have a seizure, his own experience of the risk of such an event and information he had received from doctors made his operation of a vehicle that day a marked departure from reasonable conduct.

[43] On the first theme, Mr. Singh denied that he understood Ms. Puleio to be late for her medical appointment and thus drove recklessly to make up time. No evidence was led to suggest that, around 5:11 p.m., she was likely to be late for her treatment.

[44] Mr. Singh testified that, in his understanding of seizures, they come on suddenly. He said that to his knowledge — though he does not recall the actual experience of being in a seizure — he loses control of his arms, hands, legs and feet. Control over his limbs returns over the course of a few minutes after the event. He believes that he would be unable to move his feet from the accelerator to the brake pedal during such an episode. He said he was unaware of the panic button near the driver’s left knee in the taxi’s onboard security system and never intentionally activated or deactivated it. Crown counsel pointed out that in photos of him behind the bus, shortly after he emerged from the Camry, he appeared to be able to stand and walk without assistance and to examine the damage to the car.

[45] Mr. Singh was questioned closely on images of himself from the onboard camera in the period before the collision. It was pointed out that at 17:10:45 (49 seconds before the collisions) he touched his beard, an apparently volitional act. He denied that an image which shows his eyes directed upward and to the right was a conscious glance by him into the rear-view mirror, to look at Ms. Puleio, about half a minute after the collision.

[46] Crown counsel suggested to Mr. Singh that, after crossing Woburn Avenue, following the mounting of the sidewalk, Mr. Singh was in the centre (left-turning) lane travelling southbound on Avenue Road. As he neared Glengarry, he saw the vehicle of Joey McNabb stopped in the turning lane to go left. It was suggested that, to avoid hitting this car, he veered into the second lane and then, to avoid the stopped vehicle of Elise Levinson in that lane, he had veered further into the curb lane, crashing into the Explorer driven by Luciano Cardamone. The Crown suggested that these movements to the right (west) reflected conscious control of the steering wheel by Mr. Singh.

[47] Crown counsel put to Mr. Singh that after the first impacts, with the car now headed toward the restaurant, a conscious turn of the wheel to the left by Mr. Singh led to the final impact with the bus. It was suggested that the documented increase in pressure on the accelerator in the moments before impact resulted from an attempt by Mr. Singh to engage the brake pedal, which he simply failed to do. Mr. Singh denied all these suggestions and denied having any conscious control of the Camry throughout this period. He said that he had no memory of the entire time preceding the accident in which his car was moving in an irregular manner.

[48] Crown counsel put to Mr. Singh that his conduct after the accident demonstrated that he had been aware and in control of himself during it. He noted that Mr. Singh was apparently able to size up the damage to his car. He retrieved his baseball cap from the front seat area (presumably dislodged during the collision) because of the rain then falling. He avoided mention of Ms. Puleio’s presence in the back seat of the car. He was able to tell the paramedics his speed — 60 kilometres an hour — and he said nothing to them about having had a seizure.

[49] Mr. Singh also denied the substance of the Crown’s suggestions on these matters. He was not concerned about the extent of damage to the taxi, which he did not own, but was rather trying to figure out how the accident had happened. He took the hat from the car to put on his head but he, like the other bystanders, was unaware of Ms. Puleio’s presence in the back seat. He did not recall saying to the paramedics that he was driving 60 kilometres an hour, but he did say that he had always kept his car under control. He agreed that he did not tell the paramedics he had had a seizure, explaining that at that time his “brain was not working”.

[50] On the second theme — that operating the vehicle was in itself very dangerous, given his awareness of his blackouts — Crown counsel referred to medical records from Mr. Singh’s family physician, Dr. Yadvinder Dhaliwal, and a neurologist, Dr. Brian Best, who treated Mr. Singh over the 14 months between the two August 23, 2017 accidents and the November 1, 2018 accident from which this case arises.

[51] It is clear that Mr. Singh knew that he had experienced unusual events no later than December 19, 2017, when Dr. Dhaliwal’s progress notes report recent daytime seizures (described as “new”) along with a prescription for valproic acid, an anti-seizure medication, and a referral to a neurologist. On that date, Mr. Singh was advised not to drive until his condition was controlled and assessed. He was advised that notice of his condition was being forwarded by Dr. Dhaliwal to the Ministry of Transport through a standard form Medical Condition Report.

[52] Mr. Singh acknowledged his belief that there was a link between his medical condition and the accidents on August 23, 2017. He testified that he reduced his driving sharply, so that it was rare for him to be behind the wheel. He had also ceased working as a taxi driver. This lasted for about ten months.

[53] Mr. Singh testified that he understood from Dr. Best, whom he saw on May 18, 2018, that he could safely drive. Dr. Best wrote that Mr. Singh was “cautioned about driving any more in the future should he have a similar event” and Mr. Singh understood that in the absence of a return of his symptoms he could safely drive. Insofar as this contradicted the earlier advice of Dr. Dhaliwal, he felt that he could rely on the advice of the experienced specialist.

[54] Mr. Singh resumed work as a taxi driver in late October 2018. He did not believe he had a “big problem” neurologically. His condition only became clear to him following the seizure at his home in December of that year, which led to his hospitalization. Mr. Singh stressed that he would not have put himself and his family at risk by driving if he understood it was unsafe to do so.

[55] Crown counsel relied heavily in cross-examination on a passage from Dr. Dhaliwal’s progress note of September 17, 2018, about six weeks before the accident. He suggested to Mr. Singh on several occasions that he was advised at that attendance not to drive and that the Ministry of Transport (MOT) would be informed of this advice. Mr. Singh said he did not know of such advice from Dr. Dhaliwal on that date and recalled only that Dr. Best had told him he could drive if he had no further episodes and Dr. Dhaliwal had concurred.

[56] On a careful reading of Dr. Dhaliwal’s September 17, 2018 note, it appeared to me that the premise of this line of questioning was unfounded. The handwritten note, in my reading, indicates that Mr. Singh should only stop driving if further episodes occurred. The note says, “if recur not to drive & MOT to be informed”. There is a reference to Dr. Best beneath that entry. My interpretation of this somewhat elliptical record was that Dr. Dhaliwal, likely echoing Dr. Best, told Mr. Singh that if the episodes, or his symptoms, were to return, he should not drive, and the Ministry of Transport should be informed. Insofar as the advice was conditional on a return of the episodes, it appeared to reflect an endorsement of what Dr. Best communicated in May and to be consistent with Mr. Singh’s understanding of the advice he had received. Dr. Dhaliwal’s testimony for the prosecution, in reply evidence, was somewhat scattered on this point. Ultimately, however, I understood it to reflect my understanding of his note and of what he advised Mr. Singh.

(v) Evidence of Prabhjot Kaur Alang

[57] Ms. Alang, Mr. Singh’s wife, testified for the defence, chiefly about other episodes of abnormal behaviour on the part of her husband that she had witnessed.

[58] The first episode, the “tea incident”, occurred when she and Mr. Singh were at home together sitting on a loveseat. She had served him very hot tea, in a small cup. A significant amount of the tea spilled from the cup onto his shirt. He did not respond to the heat. When she looked at him, his eyes were still. He did not answer when she asked him what happened. He did not drop the tea cup and his body was still, not moving or shaking. She took the cup from his hand. During the episode she observed, his eyes were straight and staring with no movements of the sort visible in the taxi onboard security photos, such as touching his beard or his clothing and seatbelt. He remained unresponsive for a minute or two and then asked what had happened. She told him that he had spilled his tea. Ms. Alang placed this incident in October or November of 2017, after the August 23, 2017 accidents of which she was aware.

[59] The second incident Ms. Alang described also took place in the fall of 2017 when she and Mr. Singh were in their car, on a holiday, with Ms. Alang driving. She was asking him questions and he stopped answering. She noticed that he was motionless and staring straight ahead. She shook him and then pulled the car to the roadside. After one or two minutes, he asked what had happened; he did not know why the car was stopped. Ms. Alang agreed that in this incident there was also no movement by Mr. Singh, such as touching his beard or his body or his seatbelt. In Ms. Alang’s recollection, this incident also took place after the August 23, 2017 accident. It was these episodes that led Mr. Singh to see Dr. Dhaliwal in December 2017.

[60] Ms. Alang also described the more dramatic episode which took place on December 18, 2018, about seven weeks after the fatal accident of November 1. She and Mr. Singh were asleep around 3:00 or 4:00 a.m. when she noticed his body and limbs shaking, his fists and jaw clenched, his eyes rolled up, frothing at his mouth and involuntary urination. She could not wake him up. She called an ambulance which took him to the hospital on a stretcher since he could not walk on his own. At the hospital, Mr. Singh could not remember what had occurred.

[61] Ms. Alang agreed with Crown counsel that she was describing two completely different kinds of incidents. In none of the episodes she observed did Mr. Singh perform actions comparable to touching his beard or adjusting his clothing or seatbelt.

[62] Ms. Alang was questioned closely by Crown counsel on contrasts between Mr. Singh’s behaviour during the incidents she had witnessed, and his appearance as captured by the onboard taxi camera. She agreed that at many points in the sequence of images of his face, his eyes appeared normal and quite unlike what she had seen in the series of incidents she testified about. Mr. Singh moved his gaze to the corner of his eyes, closed his eyes, looked behind him by turning his head, reached for his seatbelt, touched his beard and seemed to check the rear-view mirror. She accepted that this was not the kind of behaviour she had witnessed in the tea incident and the incident in the car, or in the more dramatic seizure that had led to Mr. Singh’s hospitalization. In only one image on the taxi camera stills did she suggest that he looked like he had during the tea incident and the holiday incident.

(vi) Medical and Expert Evidence

[63] Several reports of physicians who examined or tested Mr. Singh from 2017 to 2019 were placed in evidence. These were considered by Dr. Gojer who clarified their meaning and was questioned on both of the main issues in the case. Most prominent among the physicians whose notes or reports were considered were Dr. Dhaliwal, the family doctor, who also gave reply evidence interpreting his notes, and Dr. Best, the neurologist who examined Mr. Singh on May 18, 2018, and advised him on the question of operating a vehicle.

[64] Dr. Gojer was called by the defence and, with the agreement of the Crown, qualified as an expert in forensic psychiatry, able to provide opinion evidence on seizures and related medical issues and their effect on the body. While not a specialist in seizure disorders, he has studied and written about neuropsychiatric issues including conditions — such as sleepwalking — that affect the ability of the brain to exert conscious control over physical actions.

[65] Dr. Gojer expressed a very high level of confidence, based on an examination of extensive evidence about Mr. Singh’s medical and personal history and the circumstances of the November 1, 2018 accident, that he suffers from a “seizure disorder”, which I take to be a broad term for repeated episodes of irregular electrical activity in the brain which can impair alertness, consciousness, and control over one’s movements.

[66] Dr Gojer expressed less confidence, but still considered it probable — meaning more likely than not — that Mr. Singh’s actions immediately before and during the accident were caused by a seizure, resulting from this disorder. Much of his testimony was an elaboration on the closing paragraphs of his April 28, 2022 report which say:

As a forensic psychiatrist, I am from time to time, asked to comment on behaviors that are associated with criminal offending, during which time, the accused reports no memory of the event. Sometimes this loss of memory is related to blackouts that could have a psychological explanation, or are substance use related, e.g. alcohol blackouts. On other occasions they may be medically related. This could be due to diabetic comas, head injuries, seizures, and other medical problems.

In Mr. Singh’s case, a seizure disorder was suspected a year prior to the accident. Investigations done were inconclusive. Two full-blown tonic clonic seizure (sic) emerged subsequent to the accident. There were behaviors described in the time leading up to the accident that were brief momentary episodes of loss of awareness/staring blankly and two motor vehicle accidents with loss of awareness. These brief episodes are sometimes known as “absences” or “complex partial seizures”. Sometimes all that the person has are these episodes. EEG findings are sometimes not confirmatory of the diagnosis. In this case, the emergence of tonic clonic seizure points to a very strong likelihood that the episodes of staring blankly or being unaware of his surroundings is related to a seizure disorder. Treatment with antiepileptic medication is indicated and has been started in the form of tegretol. It is more likely than not that the episodes in the past with brief loss of awareness part of a seizure disorder. MRI and EEG findings, though not conclusive, do raise strong concerns that there is some underlying pathology in the brain, likely on the left side, and in the parietal lobe. There is no other reasonable explanation for why Mr. Singh drove the way he did on the 1st of November 2018. That he was in a dazed state when taken out of his vehicle would support a seizure disorder.

It is more likely than not, that Mr. Singh’s actions at the time of the alleged offense on the 1st of November 2018 was seizure related and not under his voluntary control. Such involuntary acts with no conscious control have been understood by the courts as automatisms. It is likely that Mr. Singh was in a state of automatism at the time of his motor vehicle accident on the 1st of November 2018.

At this time, it appears that he is under treatment with any seizure medication and seems to have stabilized.

[67] Dr. Gojer discussed, in his testimony, the evidence he had reviewed in preparing his report and the salient features of the events he considered relevant to the legal issues in the case. He noted the August 23, 2017 accidents and the evidence of Ms. Alang about the tea-spilling incident, the incident in the car and a report she received from her young daughter of unusual conduct by Mr. Singh which are supportive of seizure activity and a disorder.[^1]

[68] Dr. Gojer also summarized the medical attention received by Mr. Singh after the August 23, 2017 collisions which began with a visit to Dr. Dhaliwal on December 19, 2017. Dr. Dhaliwal noted a diagnosis of epilepsy, prescribed anti-seizure medication (valproic acid) and referred him to Dr. Best. He also alerted the Ontario Ministry of Transport through a standard form Medical Condition Report indicating there had been “recent daytime seizures”, that he was thought to have had a seizure during the August 23, 2017 accident, and that he had been referred to a neurologist. Dr. Gojer was not asked by either counsel about a possible interpretation of this entry that would suggest there was a pre-existing epileptic condition, confined to nighttime seizures, for which valproic acid had previously been prescribed, nor about its implications for the diagnosis of a seizure disorder. These potentially significant questions remained largely unexplored throughout the trial, and I return to them below.

[69] In tracing the medical care from that point, Dr. Gojer stressed two matters from the records he had reviewed. First, there was no decisive test result and no firm medical opinion establishing a seizure disorder between the December 17, 2017 referral to Dr. Best and the November 1, 2018 accident. Second, if the medical evidence is examined retrospectively, in light of post-accident events, tests and diagnoses, there are some significant indications in the largely unremarkable findings of the testing ordered by Dr. Best in 2018, before the accident.

[70] A CT scan of Mr. Singh’s brain showed nothing likely to cause seizures. An MRI, more capable of capturing soft tissue irregularities, revealed “a few small foci of increased T2 and FLAIR signal in the deep white matter, primarily in the left parietal lobe.” They were very small and deemed by the radiologist at the time to be “of doubtful significance” as the cause of seizures since they could have other explanations.

[71] An electro-encephalogram (EEG) ordered by Dr. Best also had returned an ambiguous finding of “left-sided slowing” that could be indicative of a seizure disorder but had to be “interpreted in light of the clinical picture” which, according to Dr. Gojer, was not considered at the time to show seizure activity that would support a diagnosis. An x-ray of the spine suggested degenerative disc disease but nothing probative of a seizure disorder.

[72] The assessment of Mr. Singh’s condition, and the medical advice arising from it before the November 1, 2018 accident, were summed up by Dr. Best in his May 18, 2018 consultation report and appear to have remained unchanged by testing he ordered over the months that followed. On May 18, Dr. Best wrote:

The patient continues to drive. I imagine this is reasonable, given that he does not appear to be overtly somnolent, and the events in question, were of course by no means definite seizures. Furthermore the last of them occurred more than half a year ago. I will be happy to review his EEG and his MRI when they are completed. He is cautioned about driving any more in the future should he have a similar event. He should draw this matter to the attention of the Ministry, or if not, yourself, and if you want, I will review him again, largely for the purpose of submitting the warning appropriate for these situations. Again, this assumes that he is having seizures, and we do not know that for certain, by any means, as he is a chronically poor sleeper.

[73] Dr. Dhaliwal saw Mr. Singh in his office on September 17, 2018 and noted the same conditional recommendation ascribed to Dr. Best: if there was a recurrence of seizures, Mr. Singh was not to drive, and the Ministry of Transport was to be informed. This visit took place after the testing in the summer of 2018.

[74] Dr. Gojer noted as well the evidence of witnesses at the scene of the November 1, 2018 accident who said that Mr. Singh appeared to be in a “dazed state” after its occurrence, an observation supported by the testimony at trial.

[75] Dr. Gojer acknowledged that the testing and examinations at Sunnybrook Hospital in the hours after the November 1, 2018 accident did not demonstrate a seizure disorder, or any other explanation for Mr. Singh’s behaviour and his dazed state following the collisions. He observed, however, that there were no findings to suggest Mr. Singh had sustained a concussion, which might have accounted for his confusion. He also noted that the physician who saw Mr. Singh at Sunnybrook after the accident had suggested he be referred to a neurologist which was consistent with a suspicion that the accident was caused by seizure activity.

[76] In Dr. Gojer’s opinion, the evidence that cements the diagnosis of a seizure disorder, and lends greater meaning to the earlier ambiguous findings, came after the accident. The most dramatic sign was the December 18, 2018 seizure episode in the night where Mr. Singh’s jaws and fists were clenched, his body and limbs were shaking, his eyes were rolled up and his mouth was frothing. This “full-blown” seizure was highly indicative of a worsening seizure disorder and provided a strong clinical basis for making the diagnosis. It was followed on April 10, 2019 by a “sleep-deprived” EEG, ordered by Dr. Shaikh, Mr. Singh’s second neurologist, which provided the first test result strongly suggesting a seizure disorder. The EEG report concluded: “Abnormal EEG with characteristics of a central disturbance occurring in drowsiness and light sleep. This could represent any of multiple underlying etiologies including a postictal state.” This abnormal result, Dr. Gojer emphasized, was obtained even though Mr. Singh had been taking Tegretol, an anti-convulsant medication prescribed by Dr. Shaikh.

[77] In Dr. Gojer’s view, these powerful indications of a seizure disorder after the accident elevate the significance of the more ambiguous finding in the MRI and regular EEG in 2018 and the observations of Mr. Singh’s wife in late 2017. They suggest a progression from “complex partial seizures” to full tonic-clonic seizures over the year and a half of episodes, consultations and testing.

[78] This accumulation of evidence, according to Dr. Gojer, allows him to say “for sure” that Mr. Singh has a seizure disorder.

[79] The remaining question is whether a seizure resulting from that disorder accounts for the accident that took the life of Ms. Puleio on November 1, 2018 and the observations of Mr. Singh, by cameras and eyewitnesses, on that day. Dr. Gojer’s conclusion is that it probably does, a position he defended stoutly while accepting that he cannot be certain of it.

[80] Dr. Gojer stressed that it was necessary to examine the evidence in its totality to reach a conclusion on this question. His own inference rested on a combination of professional judgment and logic. He testified that he could see no other medical cause for the dangerous and erratic manner in which the car was operated while accepting that he could not rule out the possibility that it was simply reckless driving, perhaps to get Ms. Puleio to hospital sooner. While there is powerful evidence of a seizure disorder, there is no similar evidence for other psychiatric or neuropsychiatric conditions such as alcohol blackout, sleep disorders, schizophrenia or mood disorders. Mr. Singh’s apparent loss of memory and his confusion could be accounted for by a concussion but there was no finding of a concussion at Sunnybrook nor any apparent injury corresponding to it.

[81] He noted that there was suspicion of a medical cause for the accident on the part of the police and hospital staff who saw Mr. Singh on the day it occurred. Considering the evidence before, on and after the day of the accident, he believed that one can “connect the dots” to infer that the accident itself occurred during a seizure.

[82] Crown counsel questioned Dr. Gojer on the fairly detailed evidence available about the accident to support his suggestion that features of either Mr. Singh’s appearance and demeanour, or his conduct recorded by eyewitnesses and the taxi’s onboard camera, along with the Crash Data Retrieval system, were inconsistent with his experiencing a seizure behind the wheel. During this questioning, Dr. Gojer resisted the premise that any apparently purposive physical activity must mean that Mr. Singh had conscious control over his movements and was not in an automatistic state. He stressed that a complex partial seizure or “absence seizure”, of the sort Mr. Singh likely experienced during the incidents reported by his wife, can include partial awareness and some control over one’s limbs and other motor functions. These episodes can be for a few seconds in duration or last up to a minute or two. Thus, in Dr. Gojer’s view, manipulating the controls of a vehicle such as the brake, accelerator and steering wheel, is not inconsistent with the driver being in an effectively unconscious state, where he is not exerting voluntary control over his physical actions. Full-blown seizures and complex partial seizures are different manifestations of the same underlying problem.

[83] For this reason, Dr. Gojer also did not accept that comparisons between one episode and another, though a reasonable line of inquiry, could discredit a conclusion that the accident occurred due to a seizure. He compared the mental state of a person having a seizure to a person sleepwalking: “People, when they're in these seizure disorders, are no different from people who are in the state of sleepwalking. They have some idea of where they are, but they have really no control of their actions. And, that's exactly what happens if instead of pressing on the brake, you're pressing on the accelerator.”

[84] When questioned on the images of Mr. Singh’s face, from the taxi’s onboard security camera, Dr. Gojer agreed that, in some of the stills before the erratic driving, Mr. Singh appears to speak normally to Ms. Puleio, turning his head to do so, and to look toward the camera stationed near the interior rear-view mirror. He accepted that Mr. Singh appeared as well to blink in this period and to touch his seatbelt and his beard. However, he declined to draw, from this evidence, the conclusion that the conduct was “inconsistent” with a seizure episode, though he accepted it was unlike Ms. Alang’s account of the episodes she had seen which involved staring or eye-rolling and an apparent cessation of controlled movements. Dr. Gojer noted the limitations of intermittent still images as a means of determining Mr. Singh’s physical movements and other indicia of his level of consciousness. He observed that, based on his facial expression, Mr. Singh appeared to have no visible reaction to the dangerous and dramatic movements of his car, nor to the looming collision, even seconds before the high-speed impact.

[85] In cross-examination on the evidence from the Crash Data Retrieval system that Mr. Singh sped up in the five seconds before the impacts, pressing the accelerator and moving the steering wheel from left to right and back again, Dr. Gojer rejected the suggestion that the ability to manipulate the controls was inconsistent with a seizure and emphasized the lack of control manifest in accelerating toward a collision with a stationary vehicle. He regarded the evidence, taken as a whole, to indicate impaired consciousness on the part of Mr. Singh rather than an error in pressing the accelerator when he meant to press the brake. The lack of logic in the driving, from the S-turns to the acceleration toward the SUV, in his view, supported the inference that Mr. Singh was in the throes of a seizure. For Dr. Gojer, without this inference, “the whole episode has no meaning”.

(vii) Evidence of an October 19, 2018 Motor Vehicle Accident

[86] In reply to the defence case on mens rea and the appellant’s seizure disorder, the Crown called only Dr. Dhaliwal, who provided little more than clarification of his notes, and Detective Constable Karissa Mollin-Amedro, who provided some information about the aftermath of an October 19, 2018 motor vehicle accident in Brampton apparently involving Mr. Singh, which she investigated as a rookie constable.

[87] The prosecution led this evidence over defence objection and defined its relevance as relating to the opportunity it afforded Mr. Singh, two weeks before the accident of November 1, to reflect on whether, in light of his recent history of blackouts and accidents, he should be operating a motor vehicle. I ruled that the evidence would be admitted for that limited purpose since its probative value, however slight, would outweigh its negligible prejudicial effect.

[88] Upon arriving at the accident scene in response to a dispatch, the officer observed two slightly damaged vehicles in the eastbound lanes of the Williams Parkway near the intersection of Pertosa Drive. Both of these cars were facing east. Her sketch of the scene recorded more extensive damage to Mr. Singh’s vehicle, apparently involving the third car. It was parked off the roadway by the eastbound lanes, but was fully turned around, facing westward. Detective Constable Mollin-Amedro issued a Provincial Offences Act notice for careless driving to Mr. Singh.

[89] No evidence was led from the officer or anyone else about the nature of the driving leading to the accident and the charge nor about the apparent mental state of Mr. Singh. Nearly four years later, there has been no disposition of the charge.

[90] The key evidence about Mr. Singh’s experience of possible seizure episodes, and the medical attention that resulted, can be summarized as follows:

• On August 23, 2017, Mr. Singh was involved in two car accidents that led to criminal charges, one of which he claimed not to remember.

• In the fall of 2017, two minor incidents occurred that caused Mr. Singh to see Mr. Dhaliwal in December of 2017: first, the “tea incident”, and second, Mr. Singh’s period of unresponsiveness while in the car with Ms. Alang on holiday.

• On December 19, 2017, Mr. Singh was cautioned by Dr. Dhaliwal against driving until his condition had been controlled and assessed. He ceased work as a taxi driver and reduced the amount of time that he spent driving. A report was made to the Ontario Ministry of Transport, but Mr. Singh received no follow up from the ministry.

• On May 18, 2018, Mr. Singh was cautioned by Dr. Best against driving in the future should he have another similar event. There was no definitive medical opinion or test result over the months that followed confirming that Mr. Singh had a seizure disorder.

• On May 28, 2018, Mr. Singh was involved in a motor vehicle accident. There was no evidence led about any connection between this accident and his mental state.

• On September 17, 2018, Dr. Dhaliwal’s report and advice to Mr. Singh appeared to echo Dr. Best’s instructions that he could keep driving.

• In October of 2018, Mr. Singh began working as a taxi driver again. On October 19, 2018, he was involved in a motor vehicle accident. At trial, there was no evidence led about his apparent mental state at the time of the accident or the manner in which he was driving.

• On November 1, 2018, the fatal accident that resulted in the death of Ines Puleio occurred.

• On December 18, 2018, Mr. Singh experienced a seizure at night that resulted in his hospitalization. Diagnostic testing after this episode in April of 2019 strongly suggested that Mr. Singh has a seizure disorder.

[91] In addition to the events mentioned above, it appears that Mr. Singh may have been experiencing more minor nighttime seizures over at least eight years. I discuss the significance of these potential seizures in more detail below.

C. LEGAL PRINCIPLES

The Elements of Dangerous Driving Causing Death

[92] Section 249(1) (a) of the Criminal Code, which has since the date of these events been replaced with the simplified but substantively equivalent section 320.13, said:

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…

[93] The elements of this offence have been refined over a series of judgments from the Supreme Court of Canada culminating in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 at paras. 33-35 where Cromwell J. confirmed that the actus reus of the offence is captured in the language creating the offence and requires no more than proof of 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’”. He added a caution derived from R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49: “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.’”

[94] The actus reus, then, demands a tight focus on the manner of driving and the circumstances in which it occurred so as to evaluate the risks created by the driving and determine whether they amounted to a danger to the public. That an accident, even a fatal one, resulted from the driving cannot resolve the actus reus inquiry.

[95] The mens rea or fault analysis looks at the manner in which the accused drove and measures it against a standard of reasonableness. Roy introduced into the factual inquiry a two-part inquiry intended to clarify the approach of the trier of fact to the fault requirement. Cromwell J. said at para. 36:

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.

[96] This approach to dangerous driving cases was recently affirmed by the Supreme Court in R. v. Chung, 2020 SCC 8, [2020] 444 D.L.R. (4th) 393 at paras. 20-21.

[97] This form of analysis encourages the fact-finder not to leap from a conclusion that the driver exercised inadequate care to a conclusion of guilt. Rather, it suggests that the alleged lapse in reasonableness first be identified — what specific risk a reasonable person would have foreseen and what they would have done about it — and then evaluated: Was the lapse a marked departure from the care expected of the reasonable driver in the circumstances shown by the evidence? Cromwell J. went on to stress that a finding of objective dangerousness in the driving does not resolve the question of a marked departure from the standard of reasonableness (paras. 40-42) though it is of obvious relevance to the issue.

[98] Cromwell J. also referred in Roy to a discussion by the Court in Beatty of a debate about how much of the personal characteristics and history of the accused should be imported into the reasonable driver standard under s. 249. In so doing, at para. 38, he referred in passing to a principle that lies at the heart of this case:

The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86). [Emphasis added]

[99] The emphasized words are a synopsis of what the Court had first said in R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867. Charron J. summarized the effect of Hundal and the proper approach to the fault requirement for dangerous driving at paras. 37-38 of Beatty:

The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. However, there will be circumstances where this underlying premise cannot be sustained because a reasonable person in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger. Of course, it is not open to the driver to simply say that he or she gave no thought to the manner of driving because the fault lies in the failure to bring to the dangerous activity the expected degree of thought and attention that it required. As Cory J. explained (at p. 885 of Hundal):

It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident.

However, because the accused’s mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. On these occasions, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted. Cory J., in Hundal, gave some useful examples (at p. 887):

Take for example a driver who, without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina. 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.

We can readily appreciate the injustice of branding the driver in each of these examples as a criminal. [Emphasis added]

[100] Importantly for this case, the Court in Hundal located the relevance of sudden medical crises, including epileptic seizures, squarely within the analysis of mens rea and the assessment of fault. McLachlin J., with Lamer C.J. concurring, would have taken a fundamentally different approach to these cases. She said, at page 875 (para. 9) of Hundal:

The better analysis, in my view, is that the onset of a "disease or disability" makes the act of losing control of the motor vehicle involuntary, with the result that there is no actus reus. Thus we do not reach the question of what a reasonable person would have been thinking or adverting to as the car goes off the road, much less what the accused was in fact thinking or not thinking. [Emphasis added]

[101] This proposed approach to cases where a driver is deprived of physical control of bodily movements draws from the law on automatism which ascribes a mental element to the understanding of the actus reus of an offence: If an accused is not voluntarily directing their physical movements with their conscious mind, then they cannot be said to perform the acts which constitute the actus reus. This is an analysis anterior to a discussion of fault, including the knowledge and intention with which an act was performed. It treats the bodily movements as not being the actions of the person whose body has moved and hence not culpable at the most basic level. Reasoning of this nature has featured recently in the Supreme Court of Canada’s judgment in R. v. Brown, 2022 SCC 18, [2022] SCJ No 18 at paras. 46-48 (per Kasirer J.). It may be that the Court, without dealing directly with the matter, has again placed cases where the accused cannot control their movements, including cases involving seizures, into the analysis of actus reus, where McLachlin J. would have placed them in Hundal in 1993.

[102] This might be little more than an academic question of legal doctrine since there will be few criminal cases where an accused’s mind was so disrupted by some illness or intoxicant, or internal condition, that they lacked the conscious capacity to control their physical movements but could still form the mental state (usually knowledge or intention) which constitutes the mens rea for a crime. However, the basis for exculpation may be of decisive importance, despite the potentially blurred boundaries between an effect on the culpable mental state and an effect on the voluntariness of physical movements, because of the judgment of the Supreme Court in R. v. Stone 1999 688 (SCC), [1999] 2 S.C.R. 290. In Stone, the majority held — over a pointed dissent — that in cases where an accused relies on automatism as an answer to a charge, the defence bears the burden of establishing that defence on the balance of probabilities. That is so whether the involuntariness of the conduct results from a mental disorder, addressed by section 16 of the Criminal Code, or from some phenomenon not properly classified as a mental disorder: Stone at paras. 173-192. Stone also places on the defence the obligation to call expert evidence on the issue of involuntariness (para. 187).

[103] Thus, the burden of proof in this case would differ depending on whether the effect of Mr. Singh’s seizure is considered in respect of a defence of automatism, under the actus reus analysis, or is considered in the mens rea analysis instead. If the effect of a sudden seizure is conceived to be on the actus reus of the offence, rendering the conduct of the accused involuntary or automatistic, and in law not his own action, then the burden of making out that defence is on the defence and it must satisfy that burden on a balance of probabilities. In such a case, a person can be convicted of a crime even if there exists a reasonable doubt that they performed the act charged in law. On the other hand, if the effect of the sudden seizure is understood to be on mens rea or the state of mind of the accused — on the ability to perceive the circumstances that call for the exercise of reasonable care — then the issue does not involve automatism and Stone’s shifting of the burden of proof to the defence does not apply. The burden would lie, as it does ordinarily, on the Crown to prove the mens rea of the offence, and the fault of the accused, beyond a reasonable doubt.

[104] I note this possible anomaly in the law but do not attempt to resolve it here for three reasons.

[105] First, in the context of other criminal driving cases, the Supreme Court has firmly placed the sudden onset of medical conditions that deprive an accused of the ability to appreciate and cope with the risks of operating a vehicle within a mens rea framework. In Hundal, they did this when the issue of whether such cases should be examined through the lens of mens rea or actus reus was explicitly highlighted by McLachlin J.’s concurring opinion. This approach has been affirmed as recently as 2012 by the Supreme Court in Roy and applied in trial courts: R. v. Taylor, [2008] O.J. No. 946 (Ont. Sup. Ct.); R. v. Grewal, 2021 BCSC 751, [2021] 174 W.C.B. (2d) 302.

[106] Second, as I have noted, there is no insuperable logical barrier to treating an event like epileptic seizures under either head of analysis. Indeed, Dr. Gojer’s evidence strongly suggests that a seizure may affect both awareness of one’s circumstances (with an impact on mens rea) and the physical capacity to respond to them with controlled bodily movements (which could go to the voluntariness component of the actus reus). In my view, the court should avoid an analytical approach in which the same phenomenon — a sudden seizure — is examined under two different legal categories, with the prosecution bearing the burden of negating one and the defence the burden of establishing the other. With that approach, there would be little or no way of distinguishing, moment by moment, whether the accused had some awareness—though badly impaired — of the surrounding circumstances, or none at all, and was instead unable to exercise conscious control of his physical movements. It is possible, on Dr. Gojer’s evidence, that at some points during a seizure, a person is in one state (with impaired awareness) and, seconds later, in the other (with loss of conscious motor control). In my view, a jury charge resting on this approach, with the burden of proof shifting back and forth across an ill-defined boundary, would be impractical and almost incomprehensible.

[107] Third, Crown counsel, who provided detailed and helpful written and oral submissions, citing the Supreme Court of Canada’s authorities and other cases applying them, indicated he was prepared to assume the burden of proving mens rea beyond a reasonable doubt in accordance with Hundal, Beatty, and Roy, recognizing that it could be negated by evidence of a condition such as a seizure which created “reasonable doubt about whether the reasonable person would have appreciated the risks or could and would have done something to avoid creating the danger” (Beatty, para. 37). This stands in contrast to the prosecution’s position in Grewal, where the Crown urged Watchuk J. to segregate the effect of a seizure preceding a car accident into its impact on the accused’s mens rea and its impact on her conscious control of her actions, reallocating the burden of proof as she did so. Justice Watchuk’s detailed analysis of these issues parallels my own and I am indebted to her judgment on the matter: Grewal, paras. 44-60, 175-186.

[108] As I indicated above, Crown counsel took two points about the defence theory that Mr. Singh drove as he did because of a seizure: first, that the theory was false, and that Mr. Singh was consciously driving in a dangerous manner; and, second, that if he was having a seizure, he had possessed enough information about the risk of his operating a motor vehicle that taking the wheel on November 1, 2018 was, in itself, a marked departure from a reasonable standard of care. He accepted the burden of proof beyond a reasonable doubt on both of these alternative submissions, an approach supported by the Supreme Court of Canada authorities I have referred to on dangerous driving. As Crown counsel’s written submissions aptly put it:

At this point of the analysis, if Mr. Singh was found to have had a seizure that explained his dangerous driving for which it was not reasonably foreseeable to take steps to avoid driving, he would be acquitted. Conversely, if the opposite was proven beyond a reasonable doubt, Mr. Singh would be convicted of dangerous driving causing death.

The Crown submits that replicating the above analysis through the lens of automatism adds nothing to the inquiry. This is especially so in that automatism requires Mr. Singh to prove that he had a seizure on a balance of probabilities whereas the approach proposed by the Crown would permit the accused the much lower air of reality evidentiary standard.

[109] In the end, then, I believe it is faithful to the authorities and to principle to address the case as the Crown presents it and to rule on two questions:

• Has the Crown proven beyond a reasonable doubt that Mr. Singh was not experiencing the effects of a seizure which left him unaware of the risks in his manner of driving, as he operated his car before and during the collision at Avenue Road and Glengarry Avenue?

• If the Crown has not proven the absence of seizures affecting his driving at the time of the accident, has it proven beyond a reasonable doubt that Mr. Singh’s decision to drive on that occasion was a marked departure from the standard of care expected of a reasonable motorist, in view of information available to him about the risk that he would have a seizure while operating a vehicle?

[110] There is no dispute between the parties that these are the decisive questions. The movements of the Camry along the sidewalk north of Woburn Avenue, its course south on Avenue Road, its veering across three lanes, as well as its high-speed approach to, and collision with, the Explorer, the three fixed objects, and the TTC bus, plainly represented a danger to the public. It is an agreed fact that the resulting collision caused the death of Ines Puleio. If the Crown proves either of the two propositions it seeks to establish, Mr. Singh must be found guilty of the charge against him.

(ii) The Burden and Standard of Proof

[111] The burden of proof on these matters is squarely on the Crown with Mr. Singh presumed to be innocent until his guilt is shown beyond a reasonable doubt. That standard of proof, while falling short of the demonstration of guilt to an absolute certainty, is much closer to that level than it is to proof on a balance of probabilities — where guilt is merely more likely than not. A reasonable doubt is not, however, a frivolous or imaginary doubt. Reasonable doubt must be based on the evidence. It may arise from the quality of the evidence, conflict in the evidence, or the absence of evidence. To distil these most basic of principles, I must find Mr. Singh guilty of the charge if, based on the evidence, I am sure that each of its elements has been made out. If I am not sure, I will find him not guilty.

[112] Because Mr. Singh testified, supporting both the claim that he had a seizure on November 1, 2018 and the defence position that it was not unreasonable for him to operate a vehicle, and because important parts of his defence were supported by other evidence, including the testimony of Dr. Gojer and Ms. Alang, along with portions of the prosecution case, I must consider the potentially exculpatory evidence in the manner set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742. If I believe the exculpatory evidence, I will, of course, acquit Mr. Singh. If I do not affirmatively believe this evidence, but it leaves me with a reasonable doubt on an element of the offence, I will also acquit him. If I wholly reject the evidence that favours his position, but I am still left in a state of doubt about his guilt based on all the evidence, I will also acquit Mr. Singh. Only if the evidence as a whole, assessed in this manner, proves Mr. Singh’s guilt beyond a reasonable doubt will I enter a conviction against him.

[113] Crown counsel in submissions made a point that I consider correct in principle. On the second key issue — whether Mr. Singh should have been driving at all — the fact-finding role is essentially evaluative, measuring Mr. Singh’s decision-making objectively against a standard of care expected of a reasonable driver. It is, therefore, possible to accept everything he and other witnesses say about the information he possessed and his own view of it and still conclude that his election to drive was a marked departure from the care expected of a reasonable driver. I approach that aspect of the case with this proviso in mind.

D. WAS MR. SINGH UNDERGOING A SEIZURE DURING THE ACCIDENT?

(i) The Existence of a Seizure Disorder

[114] My understanding of the nature and effects of a neurological seizure is necessarily shaped by the evidence of Dr. Gojer. His qualifications to assist the court are impressive. While he is not a neurologist, he has a good deal of experience and even some scholarship relevant to the impact of seizures on cognition and bodily control. He has significant expertise in the area of sleepwalking which raises closely related legal issues. His qualifications to give expert evidence on the issues in this case were unchallenged.

[115] The Crown also led no expert evidence, despite having the opportunity to do so after he testified.

[116] Dr. Gojer gave his evidence in a measured manner, admitting areas of uncertainty and acknowledging alternative possibilities. He appeared to have a command of the factual context for the opinions he expressed insofar as they drew upon the evidence of civilian witnesses, Mr. Singh’s medical history and the observations of health care professionals on the date of the accident.

[117] This means, in my view, that his evidence, including his opinions, is broadly credible and capable of being accepted or raising a reasonable doubt. However, significant aspects of his analysis do not require specialized knowledge to assess and are capable of meaningful scrutiny by a fact-finder, a process I consider important to undertake in this case to gauge the reliance, if any, to be placed on his most basic opinions — that Mr. Singh had a seizure disorder before November 1, 2018, and that he probably was in the throes of a seizure at the time of the fatal collision.

[118] The first of these points I do not consider to be seriously challenged by the Crown. Mr. Singh had two car accidents on August 23, 2017, the latter of which he could not remember. His wife witnessed two incidents of possible seizures about which she gave credible, uncontradicted evidence. He was referred to a neurologist. He had a major seizure of the tonic-clonic type just weeks after November 1 which led to his going to hospital by ambulance. The Crown’s position on the second major legal issue is that the indications of a seizure disorder were so compelling that Mr. Singh was seriously negligent in operating a car after they became apparent. The conclusion that Mr. Singh was suffering from a seizure disorder in 2018 is a straightforward one which I reach without hesitation.

(ii) The Parties’ Positions on Mr. Singh’s Condition at the Time of the Accident

[119] Defence counsel relied on several lines of analysis in support of the submission that Mr. Singh was undergoing a seizure during the relevant period, which I believe would encompass approximately 15-18 seconds of southbound travel by the Camry. He cites:

• The fact that Mr. Singh has a seizure disorder, a medical condition likely to cause periods of sudden mental disengagement with loss of conscious control and sensory awareness.

• The manner of driving as verified by eyewitnesses and the Crash Data Retrieval record, which suggests no rational purpose in the vehicle’s movements and hence no conscious control or awareness of the circumstances by Mr. Singh.

• The observations of witnesses of Mr. Singh’s demeanour and level of engagement in the immediate aftermath of the collisions at Glengarry Avenue, which also support a disordered mental state.

• The lack of logic or purpose in his immediate post-collision behaviour, including his failure to mention the presence of Ms. Puleio in the car.

• The evidence of Mr. Singh, which was credible, capable of belief, and refuted the theory that he was driving recklessly with full awareness of the circumstances and the attendant danger.

• The expert opinion of Dr. Gojer that the manner of driving can best be explained by Mr. Singh’s having experienced a partial complex seizure.

[120] Crown counsel contests the inferences sought by the defence in each of these areas. He argues:

• The driving of the car, visible to the eyewitnesses and captured by the CDR system, shows acts of conscious control by Mr. Singh, inconsistent with the claim that he could not control his movements or register his surroundings. The evidence suggests a man driving dangerously, probably in a rush to reach his destination, but with command of his movements and senses.

• The taxi’s onboard camera images of Mr. Singh in the period before the accident show conscious activity and awareness by him and present a portrait inconsistent with the episodes of apparent seizure witnessed by his wife, Ms. Alang.

• The observations of the people who saw and assisted Mr. Singh after the accident, including the two paramedics, are consistent with a concussion sustained in the accident, or some other short-lived consequence of it.

• Dr. Gojer’s evidence ultimately depends, on this issue, on inferences that a lay fact-finder can evaluate independently. His opinions do not demonstrate that a seizure was underway or raise a reasonable doubt about it.

[121] I am satisfied that the Crown has not demonstrated beyond a reasonable doubt that Mr. Singh was not in the midst of a seizure episode during the period of erratic, irregular driving while travelling southbound on Avenue Road from slightly north of Woburn Avenue to slightly north of Glengarry Avenue. This is, however, a matter of significant contention and requires more detailed analysis.

(iii) The Manner of Driving

[122] Several witnesses noticed the movement of the Camry, from its slow mounting of the curb near Woburn Avenue to its collision with two vehicles and three fixed objects near Glengarry. It was viewed as irregular and alarming. It is broadly consistent with the driving of someone whose mental faculties were impaired. Looked at in total, from the departure from the roadway to a near-collision with a bus shelter and the running of a red light, through swerving S-turns, to a sharp veering across three lanes into an SUV, a garbage bin, a hydrant, a utility pole, and a bus, it has an irrational quality that could reasonably suggest deeply impaired mental function in the absence of any sign of intoxication.

[123] The Crown argues that this is how a conscious, aware, but reckless driver would drive, and that a person with a seizure disorder can as easily drive recklessly as a person without such a disorder. The Crown posits that after an uneventful drive from picking up Ms. Puleio near Jane and Finch and exiting from Highway 401 southbound on Avenue Road, Mr. Singh became suddenly aware of a need to go faster, suggesting that Ms. Puleio may have been late for her hospital appointment. Motivated to get to their destination more quickly, he decided to pass traffic on the sidewalk, pick up speed, and move back and forth between lanes.

[124] On close examination, I do not find this construction of the event convincing or even plausible. It certainly does not assist in removing reasonable doubt about whether a seizure played a role in the collisions.

[125] First, the argument posits a sense of sudden urgency on the part of Mr. Singh or Ms. Puleio for which there is no evidence. A seizure comes on suddenly and could explain a sudden, drastic shift in the manner of driving. The need to gain speed to make a hospital appointment is usually recognized gradually. If Ms. Puleio had an appointment at the hospital scheduled for a time which would have required Mr. Singh to go much faster, that would, I expect, be a fact capable of proof. No such proof was offered. I do not know the time of Ms. Puleio’s appointment at Sunnybrook Hospital.

[126] Granting the possibility that Mr. Singh could have made a rational decision to speed up for some purpose, what he did makes very little sense and is further evidence of an impairment of mental function. No reasoning person could suppose that a pattern of motoring that involved driving along a sidewalk at rush hour, scattering pedestrians, running stoplights and weaving from lane to lane would allow him to reach Sunnybrook Hospital appreciably faster in 5 p.m. workday traffic. Such driving would, however, inevitably attract public attention (as it quickly did) and very likely police attention, threatening the livelihood of a taxi driver and ending any chance of getting to the hospital on time.

[127] As Mr. Singh crossed Woburn Avenue, he would, if aware of his surroundings, have seen in front of him traffic backed up from Lawrence Avenue to Glengarry Avenue. To a rational driver, these three lanes of traffic would appear impenetrable. There would be no point in accelerating or maintaining a speed of 78 to 86 km/h, while moving toward that barrier. Yet that is what the Crash Data Retrieval record shows the Camry to have done.

[128] There would also, in my reckoning, have been no advantage in the S-turns south of Woburn Avenue reported by Mayliinn Lopez. This is much more indicative of disordered driving than of a lucid motorist trying to gain ground in virtually impassable traffic.

[129] More telling is the absence of any effort to slow down as the Camry approached what was, in effect, a wall of metal. Crown counsel suggests that Mr. Singh moved from the centre turning lane, which was backed up with vehicles wanting to turn left, and crossed the second lane to the right curb lane in a reckless but irrational attempt to keep moving. That move, however, would have placed him behind a bus coming to a stop and a heavy SUV with no path forward. For a reasoning motorist, this would be pointless.

[130] The Crown submits that the ability to get the car from the centre lane to the right lane without striking another vehicle suggests control on Mr. Singh’s part. I disagree. There is no evidence of any kind of avoidant maneuver to prevent a collision with traffic in the first and second lanes. Sheer chance will allow most reckless or random lane changes to occur without a collision over a relatively short time and distance. In addition, the crossing of the lanes led directly to a collision with an SUV. It is hard to credit the notion that the crossing of lanes bespeaks awareness and control when it ended disastrously and, to anyone surveying the phalanx of cars in front of him, inevitably.

[131] The evidence is that the Camry did not slow down but rather, as it approached the SUV with the bus in front of it, sped up over the last second or second and a half, with the accelerator going from 44% depressed to more than 80% depressed. This, on its face, is powerful evidence of unawareness of a looming collision and impaired cognitive function. It could support a straightforward inference of loss of motor control characteristic of some seizures. The Crown suggests, however, that it actually reflects a mistake by a conscious, goal-oriented but reckless driver — Mr. Singh pressed the gas pedal harder when attempting to press the brake pedal.

[132] That could happen, but there is no evidence that it did happen — a challenge for a party required to prove that the facially irrational was actually rational.

[133] On further reflection, however, I conclude that the possibility of an unintended acceleration through an effort to brake is not consistent with the portrait of an engaged and aware driver even if it is examined on its own terms. The CDR data shows the accelerator to have been 44% depressed at 1.5 seconds before the earliest collision for which we have data (TRG7 — probably the impact with the garbage bin or hydrant). That is roughly the degree to which it had been depressed during the preceding 3.5 seconds, the period for which there is retrievable data. The Crown’s hypothesis is that the change from 44% to 89.5% depressed resulted from a sudden attempt at braking that, by mistake, led to further depression of the accelerator — an ordinary error by a rational but reckless driver attempting to get ahead but realizing suddenly that he had to stop. This hypothesis, however, has Mr. Singh moving toward the SUV at about 87 km/h — above the speed limit on most Ontario highways — and first engaging the brake one second to one and a half seconds before a collision with an immovable metal barrier. That, in my view, is not consistent with a rational, aware, but reckless driver. Travelling at 87 km/h, the Camry would be moving at approximately 25 metres each second, on a slick roadway. If Mr. Singh made a sudden move to brake one second before the impending collision, he would be just 25 metres from the point of impact. If he did it just under 1.5 seconds before the collision, he would be about 37.5 metres from the impact. Moving at 87 km/h, he would have had little chance of stopping the Camry before impact even if he successfully engaged the brake. In other words, I believe that if Mr. Singh had been aware of the traffic and conscious of what lay in front of him, while trying to move as fast as possible, he would have had the brake depressed sooner than 1 or 1.5 seconds before reaching the stopped vehicles. The contention that Mr. Singh was reckless but rational, and simply made an ordinary human error while consciously attempting to avoid a collision, is not a tenable construction of the CDR record.

[134] The evidence, stripped of suggestion and surmise, is that the Camry ran straight at the back of the SUV, on a path to the sidewalk, and accelerated over the final second to second and a half. That is behaviour facially indicative of disordered driving — or suicidal driving, a suggestion not advanced by either party and for which I believe there is no evidence.

[135] The Crown also argues that movements of the steering wheel demonstrated Mr. Singh’s conscious control of the car and himself. Three main instances are cited for this proposition.

[136] The first is the movement of the car off the sidewalk and back onto the roadway at Woburn after it mounted the curb. However, we know very little about this event. Simply by chance, random and undirected movement could lead a car that has gone right to go left again, with unconscious, unaware rotation of the steering wheel. It is also possible, as Dr. Gojer testified, that a person in a seizure state will retain some limited awareness and capacity to react. Dr. Gojer provided the only reliable evidence the court has on the symptoms and manifestations of a seizure, and he resisted attempts by the Crown to suggest they were “all or none” events. A person can have some awareness during a seizure and some measure of responsiveness even while being effectively unable to grasp what is going on and to control his physical responses to it.

[137] The same is true of the crossing from the third lane to the first lane, moving southward on Avenue Road. It makes little sense as a tactical maneuver, given the wall of traffic lying ahead. It also ended in a fatal collision. Inferring that veering over three lanes to this terrible, entirely obvious outcome reflected awareness and control by Mr. Singh would be difficult if not plainly unreasonable.

[138] Crown counsel notes that the Camry went into the centre lane but not into oncoming northbound traffic and then angled back to the right, which, he argues, indicates awareness and responsiveness. But the larger picture makes clear that this choice — if it was a choice — would have been as quickly disastrous as drifting further to the left, into oncoming traffic, would have been. If the Camry had crossed into northbound traffic, those drivers would at least have been able to take evasive measures. Continuing southward toward Glengarry, at high speed, prevented even that possibility. There was no chance for Mr. Cardamone, sitting in his SUV behind the bus, to take any evasive action.

[139] The Crown also asks me to infer conscious control from a rotation of the Camry’s steering wheel in the slivers of time from the impact with the SUV until it came to rest, pointing southeast, against the rear of the bus. The argument is that, as the car careened off the SUV, along the sidewalk, striking the bin, the hydrant, and the pole, Mr. Singh rapidly turned the steering wheel to the left to avoid running into the South Street Burger restaurant. In other words, having recklessly created this dangerous situation, he was consciously, frantically, attempting to steer the car to minimize the damage.

[140] This seems unlikely to me, and I cannot accept it as evidence that Mr. Singh was not experiencing a seizure during the crash. He drove headlong into the right rear of the SUV. It was a violent collision, severing the rear wheel assembly from the SUV. Within fractions of a second before and after this, Mr. Singh’s car struck and went over the curb at around 90 km/h. It hit the bin and fire hydrant. These were all undoubtedly powerful jolts to the left and right of the Camry. They inevitably created powerful forces on Mr. Singh and his body, including his torso, shoulders and arms. The jolts may have created forces on the front wheels of the Camry as well, with an impact on the position of the steering wheel. With all these significant forces combining in such a rapid, chaotic sequence, I am not willing to draw, from the rotations of the steering wheel from somewhat rightward to slightly leftward, an inference of conscious control by Mr. Singh. I think it is much more likely that the movements of the wheel were the result of forces operating on Mr. Singh and on the car than it was of volitional actions by him.

[141] Summarizing my conclusions on this aspect of the argument, I note that there is evidence of perhaps 15 to 18 seconds of erratic driving, from the mounting of the curb north of Woburn to the collision at Glengarry. At least one driver, Ms. Lopez, took evasive action. Others may have as well. There is nothing extraordinary about a car unguided by a conscious driver going for 15 to 18 seconds before it crashes, even in busy traffic. When the crash occurred, it was one that an aware and conscious driver would easily have avoided. The possibility of minimal awareness could explain the movement of the car from the sidewalk back to the road at Woburn and from the third lane to the first as it approached Glengarry. So could chance. The overall picture is of a car operating out of control for a short time and coming to a sudden stop, with tragic consequences, that an engaged and aware driver, even if reckless, would probably have avoided.

[142] On balance, in my view, the pattern of driving is consistent with, and supports, the inference that Mr. Singh was under the influence of a seizure. That inference is, of course, strengthened by the fact that he had a medical condition that would make him susceptible to just such a collapse of awareness and control.

(iv) The Observations of Witnesses After the Collision

[143] The witnesses who observed Mr. Singh at the accident scene without exception noted his abnormal behaviour and unusual demeanour. This included observations that he was “very [or completely] out of it”, “disoriented”, “not all there”, “in shock”, “stunned”, and having a “blank look [or stare]”.

[144] Mr. Singh did not speak in any meaningful way to those who watched or tried to help. He gestured and made an unintelligible sound to Luciano Cardamone who wondered whether he was “mentally there”. He did not respond to questioning from John Harlow, who helped him out of the Camry, as to whether anyone else was in the car. Witnesses were struck by the fact that he had not mentioned the presence of a passenger in the rear seat of the taxi after Ms. Puleio was noticed several minutes after the collision.

[145] There was nothing significant in most of Mr. Singh’s vital signs, reported by the two paramedics who took him to Sunnybrook Hospital. Both of them, however, fixed him at 14 out of 15 on the Glasgow Coma Scale because of his state of confusion and lack of memory when first examined by them. Their contact with Mr. Singh began approximately 15 minutes after the collisions. His confusion began to abate during the transport to hospital and he was at 15 on the GCS by the end of their contact with him.

[146] Dr. Gojer testified that a concussion resulting from the accident could not be eliminated as a cause of this behaviour but did not think this was the best explanation. He put it this way in testimony:

Was he, was he noted to be confused when he’s taken from the car? Yes, by the passer-bys. You can explain it by a concussion, but what's the likelihood of it being a concussion as opposed to a seizure disorder when he usually comes out of it? Again, as I said, more likely than not a seizure disorder. And, the classic history of complex partial seizures are they last for a few seconds to a couple of minutes, and the person remains a little confused after that for up to 15 minutes. (Emphasis added)

[147] This “classic history” is very much like the presentation of Mr. Singh in the aftermath of the accident.

[148] On balance, I regard the post-collision observations of Mr. Singh as significant evidence that he was experiencing a seizure when the accident occurred. I do not consider it plausible that Mr. Singh was “malingering” at this stage — pretending to be confused or dissociated to support a later claim that he had experienced a seizure — and the Crown accepted he was not. Mr. Singh had received no clear diagnosis of a seizure disorder by the date of the accident. He did not remember the small episodes a year earlier witnessed by his wife. There is no sign he was ever told of the classic pattern of complex partial seizures, including confusion after a seizure which dissolves over time. I am certain he did not conduct his own research into that pattern of behaviour. Mr. Singh can be said with confidence to have had a seizure disorder making him prone to this kind of episode. This makes a seizure more likely than any other condition to have been the cause of the confusion, blankness and dissociation seen by the witnesses.

[149] The most striking feature of Mr. Singh’s post-accident behaviour was his failure to refer to the presence of Ms. Puleio in the back of his car. This suggests some drastic departure from normal conduct. It would be strong evidence of a seizure, impairing his memory, if he was genuinely unaware that he had a passenger in his taxi. It would be a profound moral failing if he knowingly left her in the car, flat on the rear seat, without mentioning it to anyone who might have helped her, because it was in his legal interest to do so, since injuries to her would elevate his own culpability. The Crown argues that this is what happened: “[I]t was simply inconvenient to tell anyone about her” because to do so would “invite fault”.

[150] The Crown rests this imputation of callous calculation by Mr. Singh largely on one of the interior taxi photos, still 232, taken at 17:12:03 when, it is suggested, Mr. Singh can be seen looking directly at the interior rear-view mirror. The argument is that if he had, for some neurological reason, failed to remember the presence of Ms. Puleio in the car, at this moment he would have seen her with his own eyes and it is not plausible that after this deliberate effort to check for her, he was unable to recall her presence a minute or two later when he interacted with bystanders.

[151] I have considerable doubt about the premise of this argument. The interior camera was recording images at regular intervals, with no regard to their potential significance. It could not capture whether the image was truly “still” or was one point in a continuing motion. That was a concern flagged by Dr. Gojer and it seems to me to be a sound one.

[152] If, however, the Crown’s argument is taken on its own terms, I think it tends to support the opposite inference. If it is hypothesized that moments after the collision, Mr. Singh was actively looking for information in his car, and checked the rear-view mirror for whatever it could tell him, then I believe that he would have seen in the mirror nothing to indicate he had a passenger.

[153] It is common ground that the redactions superimposed on the still images directly after the collisions (from slide 208 at 17:11:38) reflect the position of Ms. Puleio, wearing a seatbelt but with her upper body lying across the rear seat. There appears to be approximately 15 to 18 inches of the seat’s back still visible above the redacted zone which blocks the camera’s view of Ms. Puleio. We have no evidence about the particular features of the Camry’s rear-view mirror, but in most cars, the interior mirror does not provide the driver with a view of the lower half of the rear seatback. Instead, it is trained squarely on the rear window to provide a view of traffic behind the car. Therefore, if Mr. Singh did look into the rear-view mirror for information, he would have seen nothing that suggested the presence of a passenger, including the head of a passenger which is often visible through an interior rear-view mirror. The photo of Mr. Singh’s eyes trained toward the general area of the rear-view mirror, if that is where he was looking, suggests he would have concluded that he did not have a passenger, not that his passenger was lying across the rear seat unconscious.

[154] I should add that this analysis is, in my view, all quite speculative because I am not confident that Mr. Singh was looking in the mirror at all, or drawing inferences from what he might have seen. I offer the analysis only to suggest that, if he was doing that, as the Crown proposes, then the inferences he could draw would not support the contention that he omitted to mention the presence of Ms. Puleio because it was “convenient”.

[155] Nor, if conscious calculation is ascribed to Mr. Singh, does the Crown’s theory of passive concealment make sense. A person whose reasoning was not substantially impaired would recognize that bystanders and the police were inevitably going to find Ms. Puleio in the car and know that she had been his passenger. Even the most basic capacity to reason would have told Mr. Singh that concealing her presence by not mentioning it would be futile. Some other witnesses at the scene found Mr. Singh’s lack of reference to the passenger to be puzzling and to suggest some kind of mental impairment. I agree with that reasoning. I do not think he was hiding her presence but, rather, that he forgot it and did not register it even if he did check his mirror.

(v) The Still Photo Images of Mr. Singh

[156] Crown counsel submits that the security camera images of Mr. Singh in the driver’s seat of the Camry, the earliest ones 15 seconds apart and the ones closer to the accident just one second apart, reveal alertness, engagement with his surroundings, and a focus on his driving, all of which are incompatible with a seizure state. He argues that the claim of impaired consciousness does not stand up to a comparison between the still images and either the description by Ms. Alang of earlier seizure episodes or the description of typical seizures by Dr. Gojer.

[157] I am not persuaded by this submission.

[158] I believe it is important to be very cautious in treating still images as evidence about a phenomenon as unfamiliar and variable as impaired consciousness in a person performing what may appear to be purposive activities, with his eyes open, for a period measured in seconds, with no corresponding audio record and almost no record of what he was seeing and reacting to (or not reacting to) over that time frame.

[159] Dr. Gojer was alive to that question and did not regard any of the images, either altogether or separately, as demonstrating that Mr. Singh was conscious and meaningfully aware of his circumstances during the critical period before the collisions. The images are easily amenable to evaluation by another expert, and the Crown, bearing the burden of proof on these matters, called no expert to challenge Dr. Gojer’s assessment of the photos.

[160] Ms. Alang was shown some of the still images and said, on all but one, that they did not reflect the appearance of her husband as she remembered it from the two incidents she saw in late 2017. That was evidence of some import, carefully elicited by Crown counsel. It rests, however, on a premise about the nature of seizures that is not established to my satisfaction.

[161] Seizures of this nature are not a uniform, regular or predictable phenomenon. I am not prepared to find that they will manifest themselves identically on each occasion they arise or that all of their potential manifestations were contained in, and limited by, the two incidents to which Ms. Alang testified. Dr. Gojer was clear that a seizure is not “all or none” and that its effects from one episode to another will depend on “the degree to which the electrical activity manifests itself”. He pointed out that seizures can last for variable lengths of time. He emphasized that the seizure in which Mr. Singh retained partial physical control of the teacup was “part of the same process” as the other incidents, including the full-blown nighttime seizure of December 18, 2018, during which he seems to have had no control at all. On the evidence before me, I am not prepared to compare one putative seizure episode to another and find one of them to be suspect because it differs in some of its features from the other. Though I would have welcomed more definitive evidence on this point, I do not believe that what I have heard allows me to make more conclusive determinations about the genuineness of the alleged seizure in this case than Dr. Gojer was prepared to make himself, looking at the same photos.

[162] I have viewed the slides from the security camera with care, during and since the hearing of evidence. The Crown has emphasized that they record Mr. Singh touching his beard and his seatbelt during the couple of minutes before the accident as well as moving his head and varying the direction of his gaze. Ms. Alang accepted that this was not how he had appeared to her during the two incidents thought to be seizure episodes in late 2017.

[163] An important shortcoming of this argument, however, is the uncertainty about when Mr. Singh’s seizure, if it occurred at all, likely commenced. I know of no reason, for example, that the seizure posited by the defence must be understood to have occurred during the period when Mr. Singh can be seen touching his beard and his seatbelt. Ms. Alang’s estimate at trial that the prior episodes lasted one or two minutes is all but meaningless for this purpose, since it was a retrospective estimate long after the events with no reason to presume its accuracy. And the premise that the duration of one seizure would define the likely duration of another one is not supported by the evidence before me.

[164] If there was a seizure in progress during the November 1 accident, the best marker of its starting point is likely to be the first indication of strikingly irregular motion by the Camry. I doubt that the car could have been moving as erratically — indeed chaotically — as it was from Woburn to Glengarry for a prolonged time without the danger it represented being observed by witnesses or causing a collision. For this reason, I do not regard apparently purposive and conscious conduct by Mr. Singh, such as touching his beard and seatbelt or turning his head and his gaze, while the car was well north of Woburn, to assist in determining whether he was undergoing a seizure during the passage from Woburn to Glengarry.

[165] The images of Mr. Singh during that passage, however, are of potential value in assessing his level of engagement and thus consciousness. There are two credible means, neither of them precise, for identifying where in the sequence of still images the alarming driving just north of Woburn Avenue commenced.

[166] The first approach involves working back from the time of the collision at Glengarry which, because of the blurred images and airbag deployment, can be fixed at 17:11:34 (slide 204). The speed of the Camry is known for the five seconds before that impact — it was in the range of 75-80 km/h. This is above a typical or acceptable speed at that time of day on that stretch of road. The speed need not be determined precisely for the entire period. If 75 km/h is assumed to be the average speed during the car’s passage from the Woburn curb-mounting to the first collision, and if the distance traversed is about 300 metres, as Detective Constable Woronchak testified, then a reasonable time estimate from one event to the other can be calculated. There are 3600 seconds in an hour. At the rate of 75,000 metres an hour, a vehicle moves at about 20 metres each second. Covering 300 metres at that speed takes just under 15 seconds.

[167] I do not want to be unduly precise about this. We know the car was going slowly north of Woburn and that its southward travel included snaking S-turns. Broadly, however, covering the distance from the commencement of the Camry’s known erratic movements to its collision should have taken about 15 to 18 seconds.

[168] The second potential marker of the commencement of the erratic driving is one I discussed with counsel during their submissions. At slide 190, at 17:11:19, there are two indications of the Camry undergoing a significant jolt. One is that the photographic image becomes blurred; the only other instance of this blurring is at 17:11:34 (15 seconds later) when the vehicle is known to have sustained an enormous jolt from the collision at Glengarry. The second sign of a jolt in slide 190 is the apparent movement of the strap of a purse resting on the right rear seat, which I assume to have belonged to Ms. Puleio and to have been sitting to her left. In slide 189, and the preceding slides, the purse strap is vertical and in a uniform, unchanging position. In slide 190, the strap is in a noticeably different position, slightly further to the right in the image (and therefore further to the left of Ms. Puleio). The movement of the purse strap in the same photograph that features a blurred image leads me to infer with high confidence that the car sustained a significant jolt at that point.

[169] We do not have a complete account of the Camry’s southward path to Woburn Avenue so it is not possible to be certain what caused the jolt — I cannot say with certainty that it was not a pothole or drain cover or the like. However, its timing, 15 seconds before the first collision, aligns very closely with the likely time of the Camry’s mounting of the curb, travel on the sidewalk, and return to the road near Woburn Avenue, calculated above using known speed and distance. Linking these independent data points together, I conclude that the slides just before that possible jolt and those that follow, up to the collision, merit close scrutiny for what they might reveal, if anything, about Mr. Singh’s level of consciousness and cognitive function. There is an appreciable chance the jolt was from the car mounting the sidewalk or returning to the roadway.

[170] What is being tested in this process are two sharply conflicting hypotheses about Mr. Singh’s mental state over a period of approximately 15-18 seconds. On the defence view, he was in the midst of a seizure, with little or no awareness of his surroundings and the danger he and his passenger were in, and little or no volitional control over the movements of his car. On the prosecution view, he was driving recklessly but with full consciousness, able to detect the danger of continuing in lane 3, choosing to cross the two lanes to his right swiftly, while avoiding traffic in those two lanes, and then able to decide to engage the brake as he neared the SUV. On this view, his only failure was in pressing the accelerator further instead of moving his foot to the brake; this reflected ordinary human error in high-speed motoring, not a lapse of consciousness or awareness.

[171] There are nineteen slides in the 20 seconds before the final collision: slide 185 at 17:11:14 to slide 203 at 17:11:33. Significant force has occurred by slide 204, at 17:11:34, because the purse has shifted noticeably to the right in the image (and thus to Ms. Puleio’s left). In the slide that follows, 205 at 17:11:36, I infer from the redaction that Ms. Puleio’s upper body was lying on the rear seat.

[172] Examining these nineteen slides in the 20-second span, I note that in none of them can Mr. Singh be seen to shift his head, especially to the right, as he would have to do to maneuver through traffic while angling from lane 3 to lane 1 (or from the road to the sidewalk and back again at Woburn). His physical position is largely unchanging and in most of the slides the right edge of the camera lens captures the outside edge of his right eye somewhat, but no more of his face. His right eye is, however, visible, partly or entirely, in four of these 19 images (194, 201, 202 and 203). In none of them is the eye turned to the left or right as if surveying traffic in order to navigate through it. In each image (the last three each one second apart), the right eye is generally forward and unchanging, though the head (and therefore the eyes) is angled slightly downward in slide 202 as compared to 201 and 203.

[173] Mr. Singh’s facial expressions are partly visible in this 20-second sequence — enough, in my view, to draw cautious inferences from them. As far as the sequence of photos allows me to determine, I see no change at all in his expression, which is generally blank and inscrutable. That is of little significance for most of the slides, but in the last three he must have been, on any view of the evidence, travelling at 75 to 85 km/h directly at stopped or barely moving vehicles with no way through them. The speed of his travel meant that a collision could well be fatal. Yet there is no sign of any awareness of this imminent peril on his face or in his movements. Nothing in his expression corresponds to what must have been a terribly urgent situation for anyone who could register what was happening.

[174] I appreciate the limitations of this analysis, given the vagaries of human demeanour and the shortcomings of still images of dynamic events. I note it mainly as another reason that, in my view, the still images contribute little to the Crown’s task of proving Mr. Singh’s awareness of his circumstances and control of his actions. If anything, they point in the other direction.

[175] Finally, in this area, I observe that immediately after slides 204 to 207 (17:11:34 to 17:11:37), which seemed to record the sequence of impacts to the Camry from the SUV, bin, hydrant, pole and bus, the camera is not trained at all on Mr. Singh’s face until slide 223 (17:11:54), almost 20 seconds after the initial collision. His eyes have become more active, his face more expressive and his movements somewhat more purposeful, as far as I can tell, in this later period. This may reflect the beginning of the post-ictal (or post-seizure) period, which may entail confusion but also a gradual return of awareness and control. That would be consistent with the observations of the bystanders who watched and assisted Mr. Singh.

(vi) Mr. Singh’s Actions After the Collisions

[176] Crown counsel pointed out that Mr. Singh was seen to enter the Camry after the collision and emerge from it with the Blue Jays baseball cap he had been wearing while at the wheel. The Crown suggested that this showed Mr. Singh to have a memory that he had been wearing the cap during the drive. The implication is that if he could recall such an insignificant item after the accident, he would very likely have recalled the presence of a passenger as well. On this view, his memory for the cap belies his claim of amnesia about the presence of Ms. Puleio.

[177] I do not think it is likely that, walking around the outside of the Camry after he first emerged, and after he was taken into the South Street Burger restaurant, Mr. Singh remembered his cap was in the car. That is, of course, possible but I consider it much more likely that in looking at the car and trying to make sense of the chaotic scene, with his car at the centre of it, he simply noticed the cap. Perhaps because he liked it, perhaps because it was raining, he picked it up and put it on. This would imply nothing about an awareness on his part of Ms. Puleio’s presence in the rear seat or an intention to keep it concealed. Moreover, to pursue the logic of the Crown’s argument, entering the car to pick up an item as trivial as a baseball cap would be a most unlikely choice for someone trying to feign ignorance of a badly injured person in the rear of a car he had just crashed.

[178] The Crown also observes that Mr. Singh did not tell the ambulance or hospital personnel that he had suffered a seizure and argued that this told against the credibility of his claim today. In my view, however, it is impossible to draw a meaningful inference from that omission. We do not have a record of his getting any kind of account of the accident. He was in a confused state for a significant time. He had little vocabulary to express even everyday concepts in English. I do not know if he could understand, much less explain, a seizure disorder or a seizure itself. It is important to remember that, by November 1, 2018, he had not been told that he had a seizure disorder or even had it medically confirmed that he had experienced daytime seizures in 2017. Almost a year earlier, Dr. Dhaliwal had given preliminary advice which he had partially followed, but Dr. Best did not tell him he had a seizure disorder, or that he had had seizures in the past and he did not discourage driving. The best indications in the evidence are that Mr. Singh had little or no subjective awareness of his seizures as they occurred and little recall of them afterward. They were likely less real and recognizable to him than to someone who had watched them. There is no reason to expect that Mr. Singh would have formulated and communicated a self-diagnosis during the time he spent with medical professionals after the accident.

[179] Crown counsel also placed in evidence a document, exhibit 17, titled Application for Ontario Driver’s Licence. It was signed by Mr. Singh on November 30, 2018, a month after the accident in this case. A box that asks if the applicant suffers from, or has been advised by a physician that he suffers from, a long list of medical conditions, including epilepsy and “seizure disorder”, is checked “no”.

[180] I have almost no context for weighing the significance of this document. I do not know why Mr. Singh would be making this application. He said his licence was revoked after November 1, but no evidence was led as to the process, his understanding of it, or his entitlement to have it reinstated. A fresh driver’s licence application so soon after the licence was revoked appears so plainly impractical as to suggest some kind of misapprehension of what had happened or its legal effect. I do not know if Mr. Singh understood the long sentence, with long words, which posed the question to which he answered “no” and I have no reason to conclude that he either knew or had been told by Dr. Dhaliwal, at least with any certainty and clarity, that he had epilepsy or a seizure disorder. By November 30, 2018, he had had two accidents that, taken together, must have raised questions about his fitness to drive. However, on the evidence at this trial, he had certainly not been told by Dr. Best on May 18, 2018 that he had a seizure disorder or epilepsy. To the extent that he had been advised of the results of tests conducted over the summer of 2018, he would understand them to have been essentially negative for a seizure disorder. He knew on November 30, 2018 that on December 19, 2017 Dr. Dhaliwal had sent a notice to the Ministry of Transport raising the question of his fitness to drive. However, he would have also, I believe, been aware — to the extent he paid attention at all — that the ministry had done nothing about that for close to a year.

[181] Read literally, the application claims that Mr. Singh does not have a seizure disorder or epilepsy. By that date, he could well have believed that to be true since his condition was still a matter of medical uncertainty. It also, read literally, says that he had not been advised he had a seizure disorder or epilepsy. If that is not literally true (given the note of Dr. Dhaliwal on December 18, 2018 after his consultation with Mr. Singh) he could well believe it to be the upshot of the medical information he had received by the time he filled out the form about a year later. On the evidence, it was the major seizure of December 18, 2018 which, for Mr. Singh and others, brought the nature of his illness into focus.

[182] Therefore, while exhibit 17 is something of a mystery, and was not well-explained by the defence, in my view there is not nearly enough evidence about it to support any inculpatory inferences or any inference undermining Mr. Singh’s credibility.

(vii) The Defence Evidence

[183] Mr. Singh was described by Dr. Gojer as very unsophisticated and a notably poor historian, qualities he also demonstrated in his testimony. He could give no clear sequence of events surrounding the unusual episodes which led to suspicion of a seizure disorder nor a clear account of testing he had undergone and advice he had received on this issue. He even mistook a question from his own counsel about strokes for a question about seizures. I do not think he has more than a superficial grasp of his condition even today. However, the fact that he knew with the greatest certainty was correct — the expert on seizures, Dr. Best, had told him that he could drive and had never said otherwise.

[184] Mr. Singh’s account of November 1, 2018 was uncomplicated and not significantly shaken. His description of picking up and speaking with Ms. Puleio did not seem to me to be self-serving or in any way implausible. His description of a gathering “blackout”, in which darkness came in front of his eyes and “all your consciousness is gone” is credible as is his description of the post-seizure phase. He professed complete amnesia for the seconds of erratic driving and first recalled people pulling him from the car and offering him a chair, which is consistent with other evidence.

[185] I did not take any line of cross-examination to call into question Mr. Singh’s essential honesty and commitment to telling the truth. He was credible in reporting his contact with Ms. Puleio, his lack of memory of the period immediately before the accident, his confusion after it, the absence of any reason to rush Ms. Puleio to her hospital appointment, and the slow, gradual return of mental capacity at the scene.

[186] I accept Mr. Singh’s artless denial that he knew anything about the panic button in the Camry — which he drove but did not own — and that he voluntarily activated it during his drive on November 1. I similarly believe his denial of the Crown’s suggestion that he saw Ms. Puleio in the rear-view mirror after the accident and “knew exactly what happened”.

[187] I also found credible Mr. Singh’s insistence that he was told by Dr. Best that he could drive after being told by Dr. Dhaliwal that he could not. This was reinforced by his reaction to the misconceived questioning about his September 24, 2018 consultation with Dr. Dhaliwal, which Crown counsel suggested in cross-examination included a warning not to drive. Mr. Singh plainly had no idea what this questioning was about but maintained his position that he had relied on what Dr. Best, the specialist, had told him. I have found that the premise that Dr. Dhaliwal delivered a warning at this appointment was wrong. Instead, he effectively repeated and ratified what Dr. Best had earlier communicated.

[188] There were some weaknesses in Mr. Singh’s testimony, including his explanation for the November 30, 2018 licence application and his limited account of his May and October 2018 car accidents. However, I find the thrust of his testimony to be credible and to be supported by other evidence. On matters where his evidence assists his defence, I certainly cannot reject it.

[189] I also find the evidence of Ms. Alang to be credible and convincing. I did not perceive Crown counsel to suggest that any significant aspect of her testimony was false or unreliable. Indeed, in certain respects, he attempted to enlist her evidence in support of the prosecution case.

(viii) Conclusion on Mr. Singh’s Mental State

[190] I have already assessed the evidence of Dr. Gojer, which I consider to be sufficiently credible to support a finding in Mr. Singh’s favour that he was not in conscious physical control of his movements and not aware of surrounding events and circumstances at the time of the accident because he was experiencing a seizure. Considering the evidence of Dr. Gojer, Mr. Singh, and Ms. Alang, along with the circumstantial evidence that broadly supports the theory of the defence, I find that the Crown has not proven that Mr. Singh was able to register what was happening at the time of the accident and to control the car to prevent it.

[191] For these reasons, I find that there is a reasonable doubt that a reasonable person in the position of Mr. Singh, in the grip of a seizure as he travelled south on Avenue Road in traffic, “would have appreciated the risk or could and would have done something to avoid creating the danger”: Beatty, para. 37.

E. THE DECISION TO DRIVE AFTER PREVIOUS INCIDENTS AND ADVICE

[192] Crown counsel helpfully characterizes the issue that follows from this finding as a question of Mr. Singh’s “residual mens rea”. He argues that the evidence proves beyond a reasonable doubt 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”: Beatty, para. 43. In other words, with the experience, information and advice about the risk of a seizure available to Mr. Singh, a reasonable person would not have been driving on November 1, 2018 and he should not have been either.

[193] I am not persuaded that the evidence supports this conclusion.

[194] The authorities on this area are relatively few but they have in common an emphasis on the information and advice available to an accused who has elected to drive despite an awareness of facts which signal the possibility of losing awareness or control while at the wheel. The Crown relied primarily on R. v. Grant, [1991] B.C.J. No. 3988, aff’d 1993 CarswellBC 498 (B.C. C.A.) and R. v. Church, [2007] O.J. No. 3255 (Ont. C.J.), while the defence provided me with R. v. Taylor, [2008] O.J. No. 946, and R. v. Grewal, 2021 BCSC 751. Cases that apply legal principles to particular facts have limited value as formal precedent, but they collectively can inform a judge’s understanding of the bounds of reasonableness and, in a case of this kind, whether a departure from those bounds can be characterized as “marked” — the standard which justifies the imposition of criminal sanctions.

[195] I stress that there is a range of conduct that can fall within the ambit of reasonableness, from ideal or optimal actions and choices at the top of that range to the marginally or barely reasonable at the bottom. The law requires that conduct of an accused be markedly below the bottom of the range of reasonableness before it can be characterized as dangerous driving and punished as criminal. Less significant departures from the lower bound of reasonableness fall within the purview of the civil law. Authority and guidance on this approach to issues of negligence may be found in Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at para. 73; Lindsay v. Freeman, [1995] O.J. No. 541 (Ont. C.J.) at para. 21; Pittiman Estate v. Bain, [1994] O.J. No. 463 (Ont. C.J.) at para. 271; R. v. Mills, 2021 ONSC 6492, 2021 CarswellOnt 13705 at paras. 397-401; R. v Bateman, (1927), 19 Cr. App. R. 8 at p. 15.

[196] In this case, I consider the conduct of Mr. Singh in choosing to operate a motor vehicle on November 1, 2018 to fall below an ideal standard, but above the lower boundary of reasonableness and in no sense to be a marked departure from the range of reasonableness.

[197] I note here that subjective qualities of Mr. Singh can play only a very limited role in the assessment of a departure from reasonableness. He sought and held a license to drive which carries with it a societal expectation that basic safety standards will be adhered to by the motorist. Mr. Singh was said by Dr. Gojer to be unsophisticated as a general matter, and I have indicated my agreement with this assessment. But he had all the abilities necessary to comprehend facts related to himself and advice provided by physicians. While sophistication — including education, verbal fluency, and worldly experience — makes the passage through life easier in many respects, there is nothing about Mr. Singh’s history that would call for any lowering of the broad standard of reasonableness for him, based on subjective personal qualities. The authorities are to the contrary: Roy, para. 38; Beatty, para. 40.

[198] I will address separately the two sources of information broadly available to Mr. Singh and how he responded to them against the standard of reasonableness. A reasonable person in his position would have regard to what he had experienced and been told by other people about possible periods of unconsciousness or unawareness and what diagnoses and advice he had been given by medical professionals with respect to his condition and the wisdom of driving a car.

(i) Mr. Singh’s Experience of Possible Seizures

[199] In Church, relied on by the Crown, the accused had a series of episodes of “blanking”, which were reported to her by a variety of acquaintances, in different settings, over a long period. This unambiguous information, combined with words of caution from her physician (who had not yet diagnosed her seizure disorder) led to her convictions for criminal negligence causing death.

[200] Mr. Singh’s history is a sharp contrast. He knew from his wife that he had two episodes in late 2017 which were concerning enough to prompt his visit to Dr. Dhaliwal on December 19, 2017. He also knew that he had been charged with involvement in a second car accident on August 23, 2017 of which he had no recollection. This body of information, taken together, fell well short of the pattern of troubling episodes seen in Church (and also in Grant).

[201] Between late 2017 and the tragic accident on November 1, 2018, he had no further definitive incidents like these ones. Ms. Alang, who obviously was concerned about him, could recount only the two possible daytime seizures to the court in 2022, to Dr. Dhaliwal in 2017 and Dr. Best in 2018, and to Dr. Gojer when they met for his professional assessment.

[202] I consider it to be of some importance as well that the victim of a partial complex seizure of the sort Mr. Singh probably experienced in late 2017 frequently has no personal memory of it. These medical episodes are unusual and occur outside the awareness, and later recollection, of the person suffering from them who must react to the observations and impressions of others rather than to a vivid subjective experience. When the episodes are transient, with no lasting effects, and are not easily understood by laypersons, their impact on the decision-making of a reasonable person is likely to be diminished.

[203] In addition to Mr. Singh’s possible daytime seizures, I consider it likely from Dr. Dhaliwal’s notes and testimony, as well as his report to the Ministry of Transport, despite their uncertainty and incompleteness, that Mr. Singh had a longer history, over at least eight years, of nighttime seizures and the use of anti-convulsive medication to control them. I also infer — though I would certainly have wished for clearer evidence — that his report on September 12, 2018 of a seizure three months earlier was likely referring to one of these nocturnal episodes rather than a new, more concerning, daytime seizure. I say this with the understanding that seizure activity at night is both much more common (explaining the use of sleep-deprived EEGs as a way to detect abnormalities) and much less alarming than waking seizures which can create peril for the victim and others.

[204] Insofar as the record on Mr. Singh’s history, and the import of some of Dr. Dhaliwal’s notes, is unsatisfactory, the uncertainty tells primarily against the prosecution, which has the burden of proof on the “residual” mens rea. If a history of nighttime seizures before the 2017 daytime seizures should have affected the extent to which Mr. Singh relied on the advice of Dr. Dhaliwal and Dr. Best about driving, the basis for reaching that conclusion was not put to any of the witnesses, was not argued before me, and is not immediately apparent. Absent any evidence on this point, and accepting that the seizure referenced by Dr. Dhaliwal’s September 12, 2018 note was likely a nighttime seizure of the kind that Mr. Singh had been experiencing for several years, this seizure would have no significant impact on the reasonableness of Mr. Singh’s decision to drive on November 1, 2018.

[205] To fortify its position on the rather sparse evidence of reasons for concern in Mr. Singh’s past, the Crown laid emphasis on evidence that he was in motor vehicle accidents on May 28 and October 19 of 2018. There is no evidence that either of these incidents was anything beyond a routine traffic accident involving a fully alert and aware driver. There is no evidence that these incidents were connected to Mr. Singh’s medical condition. To infer more, I would have to speculate. I know very little about what happened on May 28, but there is evidence that, on October 19, police officers attended, saw the aftermath of the collision, and met with Mr. Singh, charging him with careless driving for reasons that are not in evidence. One of the officers testified at trial. There was no evidence, or even an inquiry by the Crown, that suggested any unusual or concerning behaviour by Mr. Singh of the kind witnessed by every witness involved in the accident of November 1.

[206] Lacking such evidence, the Crown suggests that Mr. Singh should have viewed the two accidents, considered in light of his recent history, as occasions to reflect on whether he should still be driving. However, if he undertook that self-assessment, there is nothing in what I have heard that would have impelled him to give up his entitlement to drive, which is important to many people and, in October 2018, was essential to Mr. Singh’s employment. The Crown has not even demonstrated fault, much less the occurrence of seizures, in either of these incidents. Given that this evidence has established neither a connection to Mr. Singh’s medical condition, nor any other basis on which to question his ability to drive safely, these accidents can play no meaningful role in proving a marked departure by Mr. Singh from the standard of reasonableness when he took the wheel on November 1.

[207] A driver operating at the upper, optimal level within the range of reasonableness might have been more cautious than Mr. Singh in abstaining from driving based on what he knew of his history of transitory periods of unawareness. Such a driver might have taken an initiative in seeking to understand the significance of the episodes and their effect on the decision to drive. However, I believe that most people would react much as Mr. Singh did, reporting the episodes to his doctor, discussing them with his wife, participating in diagnostic testing, and awaiting more definitive information. I note that Ms. Alang, a concerned and attentive spouse, did not report seeing further seizures and did not appear to have objected to Mr. Singh’s infrequent driving after the episodes she saw firsthand.

(ii) Medical Information and Advice

[208] In Grant, the finding that the accused had driven in “total defiance” of advice not to from three physicians was accepted by the British Columbia Court of Appeal as a sound basis for convicting him of three counts of criminal negligence causing bodily harm (pp. 4-5). In Church, the accused had had a series of alarming episodes about which she had not been candid with her doctor who nonetheless had advised her that if subsequent episodes occurred, she should not drive — advice she ignored. The facts in this case are very different.

[209] It is true that on December 19, 2017 Dr. Dhaliwal told Mr. Singh not to drive until his condition had been controlled and assessed, a process he set in motion with a referral to a neurologist. He also advised the Ministry of Transport of recent daytime seizures which had been “usually on nighttime” previously. Dr. Dhaliwal told Mr. Singh of the report. I infer, however, that he did not impress this on Mr. Singh as a matter of urgency, requiring strict compliance. He testified that in the absence of a diagnosed seizure disorder he was not “overly concerned” by the information he had and was reporting it to the MOT as a matter of duty. Though Dr. Dhaliwal saw or spoke to Mr. Singh with some regularity after this advice and before Dr. Best’s neurological assessment in May, he did not mention again the issue of driving or even, it appears, ask Mr. Singh about his compliance with his previous advice.

[210] That compliance was incomplete. Mr. Singh reduced his time behind the wheel after December 19, 2017, but he did not stop driving entirely. It was estimated that he drove about twenty percent as much as he had previously, with his wife estimating that it happened once or twice a month. He obviously thought he could reach his own accommodation between his personal interests and public safety. If he had had an accident in the course of a seizure during those months, he would have been at significant risk of a finding that his decision to drive was a marked departure from a standard of reasonableness.

[211] One important fact telling against such a conclusion, however, is the observation of Dr. Best after examining Mr. Singh on May 18, 2018: “The patient continues to drive. I imagine this is reasonable, given that he does not appear to be overtly somnolent, and the events in question, were of course by no means definite seizures. Furthermore, the last of them occurred more than half a year ago.”

[212] Dr. Best was aware of the salient features of the case when he wrote those words. They pose some challenge to a contention that Mr. Singh’s choice to drive despite Dr. Dhaliwal’s advice was a marked departure from reasonableness in the months from December to May. The views of a neurologist to whom both Mr. Singh and Dr. Dhaliwal testified they would defer was that this driving was probably reasonable.

[213] I do not need to reach a conclusion on the hypothetical question of whether Mr. Singh would have been criminally liable for a seizure-related accident after seeing Dr. Dhaliwal and before seeing Dr. Best. He testified, and I accept, that he regarded Dr. Best, the specialist in seizure disorders, as the final medical authority on his fitness to drive. By that time, Dr. Dhaliwal’s two initial criteria for a return to driving had been met — the seizures, if that is what they were, appeared to be under control and his condition had been assessed.

[214] Dr. Best recorded his May 18, 2018 advice to Mr. Singh which was contingent on there being a further episode of the kind that had brought him to his office:

I will be happy to review his EEG and his MRI when they are completed. He is cautioned about driving any more in the future should he have a similar event. He should draw this matter to the attention of the Ministry, or if not, yourself, and if you want, I will review him again, largely for the purpose of submitting the warning appropriate for these situations. Again, this assumes that he is having seizures, and we do not know that for certain, by any means, as he is a chronically poor sleeper. [Emphasis added]

[215] This note reflects the inconclusive state of the evidence at that time and the inevitable balancing between risks and benefits in deciding whether drivers with medical problems should be allowed on the road. It is not the practice, or the law, that every otherwise qualified driver who is at some heightened risk of a disabling seizure must refrain from driving. It is a matter for professional judgment in which the opinions of neurologists such as Dr. Best are critical, if not decisive. His judgment was closely focused on the occurrence of similar events in the future with a recognition that the status quo — Mr. Singh still driving — was acceptable.

[216] I do not find Mr. Singh’s driving after this — even as a taxi driver — to be a departure from the range of reasonable choices open to him. The most cautious and prudent of drivers might have refrained from driving even with this advice but that standard does not define the boundary of reasonable choices.

[217] The medical history between May 18, 2018 and November 1, 2018 largely reflects the ambiguity of the clinical evidence preceding Dr. Best’s consultation. Three diagnostic tests — a CT scan, an MRI and an EEG — yielded nothing conclusive and, in Dr. Gojer’s judgment, produced only hints of the seizure disorder which later became apparent in April 2019. For practical purposes, they were negative results. Insofar as they were communicated to Mr. Singh by Dr. Best or Dr. Dhaliwal, they can only have reinforced his belief that he was qualified to drive.

[218] Mr. Singh saw Dr. Dhaliwal after this sequence of testing on September 12, 17 and 24, 2018. On September 12, the doctor’s note records “last stroke 3 m ago.” Dr. Dhaliwal testified that this meant Mr. Singh reported having a seizure three months earlier, which would have been in June 2018. He confirmed the continued prescription for valproic acid and the earlier epilepsy diagnosis. The Crown suggested this acknowledgement of a seizure, likely after seeing Dr. Best, was significant in assessing the reasonableness of Mr. Singh’s continued driving but did not explain exactly what should be made of it. Clearly, it did not lead to a direction by Dr. Dhaliwal to cease driving and a further report to the Ministry of Transport which is what should have followed from an admission that a “similar event” (to use Dr. Best’s term) had occurred after those in late 2017.

[219] The evidence in this area was not adequately developed at trial in questioning of Mr. Singh, Ms. Alang and Dr. Dhaliwal. The confusion was increased by questioning of Mr. Singh, through much of his cross-examination, on the note made by Dr. Dhaliwal on September 17, 2018. This note says: “no further episodes since summer”. It concludes with the advice: “if recur, not to drive & MOT to be informed” followed by a reference to “Dr. Best neurologist”.

[220] It was clarified in exchanges between the court and counsel and later, with some effort, in the testimony of Dr. Dhaliwal, that the import of the note is to the opposite effect. Dr. Dhaliwal actually told Mr. Singh that he could continue to drive if there was no recurrence of the seizures which had led to the original Medical Condition Report and the neurological referral.

[221] I draw two inferences from this. First, as I discussed above, despite the vague evidence about the “seizure” three months before September 12, I believe this was probably not a report of the kind of daytime episodes which had been recognized as “new” on December 19, 2017 and which obviously give rise to concern for public safety when the victim of such an episode drives a car. It seems likely to me, though I am by no means certain, that Mr. Singh was reporting on September 12 a nighttime seizure of the kind which had led to his long-standing epilepsy diagnosis and his 8-year prescription for valproic acid, though it is unfortunate that this has to be a tentative, rather than a firm, inference.

[222] Second, and most importantly, the September 17, 2018 advice to Mr. Singh from Dr. Dhaliwal amounts to an endorsement and repetition, just six weeks before the accident, of Dr. Best’s conclusion on May 18, 2018: Mr. Singh could drive in the absence of a similar event. I can only conclude that on September 17 Dr. Dhaliwal, who had the best overview of Mr. Singh’s history and condition, did not view whatever he reported on September 12 to be a “similar event” to the daytime episodes which gave rise to the initial concern. If he had, his advice would certainly have been to the opposite effect — he would have told Mr. Singh on September 17 to stop driving and reported the new seizure to the Ministry of Transport as he had done in December 2017.

[223] This repetition of the medical clearance to continue driving came from Mr. Singh’s personal physician who was, as I view the evidence, acquainted with every piece of information required to make an informed judgment. He knew the history that led to the prescription for valproic acid; he knew of the August 23, 2017 accident and the reports of Ms. Alang about the brief episodes she had witnessed; he knew of Dr. Best’s advice, including the permission he gave on May 18, 2018 for Mr. Singh to drive; he knew that Mr. Singh had been driving in the months since December; he knew what the June “seizure” consisted of and what it signified; and he knew the results of the diagnostic tests ordered by Dr. Best in the summer. Dr. Dhaliwal was in a good position to give advice to Mr. Singh about driving, and he did so.

[224] Moreover, Mr. Singh knew the extent of Dr. Dhaliwal’s knowledge. Dr. Dhaliwal had been his most consistent source of information and advice and as far as the record shows, Mr. Singh had been candid with him, as he had been with Dr. Best. I am unable to ascribe negligence to Mr. Singh in driving after his September 17 consultation with Dr. Dhaliwal, even if there was, as is often the case, room for him to have exercised greater care and been more cautious than his doctor advised.

[225] I will touch on two further points. First, I do not discount the significance of the apparent inaction by the Ministry of Transport to the assessment of the reasonableness of Mr. Singh’s decision. That may reflect nothing more than bureaucratic inertia and if the medical advice had been clear and consistent that he should not drive, the inaction of the ministry would be an unreasonable basis on which to decide to continue driving. To that extent, I agree with the observations of Hogarth J. in Grant, at paras. 40-42. Where, however, Mr. Singh heard from his doctors that he could drive, while hearing nothing from the ministry, which was informed of the facts, to suggest he must not drive, the apparent alignment of these two authorities could certainly reinforce a reasonable person’s confidence that driving was not unwise or unreasonable.

[226] Second, the Crown suggests that “basic common sense” should have dictated that Mr. Singh not drive after the episodes he had experienced, whatever the views of his doctors or the MOT. For this, he cited the judgment in Church at para. 67. While I agree that common sense plays a role in the judgment of the reasonable person, it is at best an imperfect gauge for how to react to a phenomenon as mysterious to laypersons as brain seizures. Insofar as common sense is a synonym for reasonableness, I think its demands were satisfied by Mr. Singh’s asking two doctors for advice, reporting his own experiences honestly, and submitting to their questioning and testing. Common sense did not demand the cessation of an important activity simply because there were questions about his condition and any possible risk had not been eliminated. Sensible judgments in this area do not present themselves in such starkly black and white terms.

[227] For these reasons, I find that Mr. Singh’s decision to drive on November 1, 2018, despite its dreadful consequences, was not a marked departure from the standard of care expected of a reasonable motorist.

[228] Because the Crown has not proven that Mr. Singh’s actions fell short of the modified objective standard for the determination of fault in cases of dangerous driving, I find him not guilty of the offence charged.

Justice P. Campbell

Released: September 2, 2022

COURT FILE NO.: CR-21-40000281-0000 DATE: 20220902

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GURCHARAN SINGH Defendant

REASONS FOR JUDGMENT

P. Campbell J.

Released: September 2, 2022

[^1]: The last of these incidents is before the court only through hearsay. I have assigned it no significance and it was accorded little attention by counsel in their submissions.