R. v. Shah, 2022 ONSC 591

OSHAWA COURT FILE NO.: 15073/19

DATE: 20220204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SARTHAK SHAH

Defendant

David Parke, for the Crown

Trevin David, for the Defendant

HEARD: December 7, 8, 9, 10, 14

Justice Verner

1Sarthak Shah was charged with dangerous driving causing death and causing bodily harm contrary to the now repealed s. 249 of the Criminal Code. He admittedly was driving and caused a collision, which caused the death of Shamalee Vijeyakumar and bodily harm to Sumathy Vijeyakumar. The only issue is whether his driving amounted to dangerous driving.

Overview:

2On November 27, 2017, Shah was driving eastbound on Taunton Road when, at 80 km/h, he drifted out of his lane, across a centre lane and into oncoming traffic.

3There is no question that Shah is responsible for the tragic collision that cost the life of 10-year-old Shamalee Vijeyakumar and devasted a family. Shah will have to live with that burden for the rest of his life whether or not he is found guilty of any criminal charges. There is also no question that Shah’s driving was a departure from the prudent driver. However, the issue before me is not whether his driving was simply a departure from the norm, the issue is whether his driving amounted to a criminal offence.

The Evidence:

The Crown’s Evidence:

4Most of the facts in this case are not in dispute. Just after 5:30 p.m. on Monday, November 27, 2017, Shah was driving his father’s white 2015 Hyundai Santa Fe on Taunton Road in Pickering. It was dark out at that point. On the relevant stretch of Taunton Road, there were two eastbound lanes, two westbound lanes, and a particularly wide centre lane. Shah was driving on the inside (or passing) eastbound lane.

5In addition to Sumathy Vijeyakumar, two other individuals who were driving on Taunton Road that day testified for the Crown, including Jason Apps, who was behind Shah at the time of the collision and Livingstone Maughan, who was travelling in the opposite direction behind the Vijeyakumar vehicle. Both Apps and Maughan testified that all of the cars were moving at around the same speed of 80 km/h, which was the speed limit at that section of Taunton Road, and they both noted that traffic was not particularly heavy at the time and area of the collision.

6One major block east of the collision, there was a substantial curve in Taunton Road. Apps could not say whether he was behind Shah at the time they travelled around the curve, but he most likely would have been in the same area. Apps did not notice anyone have difficulty negotiating the turn, nor did he notice any unusual or aggressive driving. Between the curve and the collision site there was a major intersection with traffic lights, where Church Street met Taunton Road. Again, Apps would have likely been in the same area as Shah and he did not notice any unusual or aggressive driving as they travelled through the intersection. Apps believed at the time of trial, but was not entirely sure, that the light at Church Street was green.

7After Apps travelled through the intersection, he noticed for the first time that he was directly behind Shah’s vehicle. According to Apps, approximately 260 metres after the intersection, Shah’s vehicle started veering to the left, into the centre lane. Shah did not signal; he did not break; he did not slow down. He in fact maintained his speed at 80 km/h. Shah continued to veer left through the centre lane and into the oncoming traffic lane.

8Maughan, who was travelling behind the Vijeyakumar vehicle going westbound, first noticed Shah’s Hyundai Santa Fe when Shah was in the centre lane. Maughan similarly testified that Shah drove without any jerking motion, at a constant speed towards the westbound traffic. He added that “the way the car moved suggested to [him] that if someone was asleep that would be the motion that would have occurred”, but clarified that he did not know if “the driver was actually asleep”.

9Apps estimated that Shah veered to the left for five to ten seconds, but closer to ten. He also estimated that Shah was veering left over a span of 320 metres at a speed of 80 km/h.

10Apps’ estimate of the speed was corroborated by Officer Cecil Bryson, an expert in Collision Reconstruction. He testified that according to the vehicle’s Event Data Recorder system, Shah maintained a speed of exactly 80 km/h in the five seconds leading to the collision and was still travelling at that speed at the point of impact. At that speed it would have taken fourteen seconds to travel the estimated 320 metres, rather than the five to ten seconds estimated by Apps. Apps admittedly had difficulty estimating the passage of time.

11At the point of collision, the cars were almost completely aligned. Shah hit the Vijeyakumar vehicle almost directly head on. The sound of the collision was deafening and momentary. There was a loud thud and then everything just stopped.

12Immediately after the collision, Apps pulled over into the centre lane and parked approximately two car lengths away. He got out of his car so quickly he forgot to grab his phone or shut his door. He ran towards the incident, saw the seriousness of the collision and ran back to his car to get his phone. Without pausing to collect his thoughts, he dialed 911 at 5:37 p.m. Although he estimated that there was a five minute gap between the collision and calling 911, he, as noted earlier, was admittedly not good at estimating times. If he was acting as quickly as he suggested, it should have taken no more than a minute to perform the actions he described.

13Both Apps and police officer Paul Tait, the first officer on scene, testified that Shah appeared to be confused, dazed and uneasy on his feet in the minutes after the collision. They described him as being in shock. Apps recalled Shah asking what had happened. Shah appeared to be genuinely unsure as to what had transpired. No one believed that Shah had consumed intoxicants. In fact, officer Tait looked for signs of impairment, but was firmly of the belief that Shah was not impaired by either alcohol or drugs.

14No one suggested that Shah complained about any pain.

15Shah was cooperative with police. He answered their questions. He provided identification and contact information. He did not appear to be hiding anything. Throughout his interaction with officer Tait, Shah expressed concern about the status of Shamalee Vijeyakumar.

The Cell Phone Evidence:

16After the collision, there was a phone located under Shah’s driver seat chair. Shah had made a 24 second phone call to “mom” at 5:34 p.m. Fraser Phillips, a forensic electronic analyst who testified for the Crown, could not say whether the call was made manually on the phone itself or orally through Bluetooth technology. Nor could Phillips say whether the call was answered.

17Phillips further testified that Shah was listening to music through his phone at the time of the collision. The evidence suggested Shah turned the music player on at 5:11 p.m. and did not adjust it thereafter. There was no other activity on the phone in the minutes before or after the collision, aside from two text messages that were sent to Shah’s phone after the collision. They were sent at 5:40 and 5:41 p.m. respectively. Neither of them were from his mother. Neither of them were read.

The Defence Evidence:

18Shah, who had no criminal record and no history of poor driving, was 22 years old on November 27, 2017. He testified that in the few days leading to the collision, he was feeling a bit under the weather. Although he felt well rested that day, he still had a mild cough and congestion. He described himself as feeling 85% himself. He had no concerns that his cough or congestion would impact his ability to stay alert to drive or work that day.

19He worked as security personnel out of Markham Stouffville Hospital, which was a 30 minute drive from his home. He had four or five shifts a month, in addition to being a fulltime student in Nursing Science at Ryerson University, which is located in Toronto. Most of his shifts for the security company were at the Markham Stouffville Hospital, and when he had a shift elsewhere, he checked in and out of work at this location. On November 27, 2017, he was working at the passport office in North York from 9:00 a.m. to 4:00 p.m.

20Shah left home that day at approximately 7:00 a.m. to go to the Markham Stouffville Hospital. He drove his father’s white Sante Fe, as it was the most convenient car to access in their driveway and they used each other’s vehicles interchangeably. Since he used his father’s vehicle regularly, his phone automatically connected to the Bluetooth technology in his father’s vehicle.

21Shah met other colleagues at the hospital who were going to work with him that day. They carpooled to the North York passport office from the hospital, arriving at their destination between 8:30 and 8:45 a.m. He worked his shift and then at 4:00 p.m., the same group carpooled back to the hospital. They arrived at the hospital at approximately 4:45 p.m. Shah had a short visit with some of his colleagues who were working at the hospital that day. He left the hospital at around 5:00 p.m.

22He still felt like he was at 85%. He also felt that his father’s Sante Fe was working fine.

23Shah testified he made a phone call to his mother on his way home to let her know that he would be home in approximately 10 minutes. Since his phone was connected to the vehicle’s Bluetooth technology, he could make phone calls using buttons on the steering wheel, without touching his phone. In order to make a call to someone in his phone directory, such as his “mom”, he had to press a button on the steering wheel and orally instruct the phone to call that individual. He testified that he used the Bluetooth technology to call his mother on November 27, 2017.

24According to Shah’s testimony, he had a specific memory of making that call near the intersection of Brock Road and Taunton Road, which was one major intersection before Church Street and Taunton Road. Although he had a distinct memory of making the call at that intersection, his memory as to whether the light was green or red at that corner was unclear. He testified at trial that he was pretty sure the light was green. However, when he was interviewed by police approximately five hours after the collision, he initially said the light was red and then, seconds later, suggested that he believed it was green.

25After Brock Road, there was a curve in Taunton Road, which Shah had no difficulty navigating. Shah “vaguely remembers passing Taunton and Brock and then passing Church”. When asked the colour of the traffic light at Church, Shah responded “to the best of my recollection, I passed through that intersection so it would have been green”. He testified that he had no memory whatsoever of what happened after he went through that intersection.

26His next memory was of hearing people yelling “gas” and pulling him out of his vehicle. He was not fully conscious of his surroundings at that time. He did not understand that he had just been in a collision. He remembered walking around the area and noticing that his car and another car were damaged.

27He remembered speaking to a police officer at the scene, being transported to the hospital and speaking to another police officer at the hospital. He learned at the hospital that he had fractured both of his ankles. Prior to hearing this information, he did not seem to have realized that he had been injured or harmed in any way.

Analysis of Shah’s testimony:

28There were no significant inconsistencies in Shah’s testimony or version of events. Crown counsel took the position that Shah should not be believed because he was evasive during cross-examination, especially with respect to whether he phoned his mother when he was at the corner of Brock and Taunton.

29On the other hand, Crown counsel conceded during oral submissions that two areas of Shah’s testimony do make sense and should be accepted. They include (1) Shah’s testimony that he has no memory of the thirty seconds or so leading to the collision and (2) his testimony that his first memory after the collision was of people yelling “gas” and trying to pull him out of his vehicle.

30I find that Shah came across as extremely cautious in his testimony, choosing each word he said carefully, to the point that his evidence did not come across as genuine. He also seemed to be focused on how each answer implicated him criminally, rather than focused on the truth of his answers. The following exchange from his cross-examination, highlights these issues:

Q: 14.2 seconds. Sitting here in the courtroom today sir, that’s an extremely long time for a driver to not be looking out their windshields. You’ll agree with me?

A: Sorry, are we talking generally or on the day of? What are we talking about here?

Q: 14 seconds is a very, very long time for a driver not to look out their windshield, right?

A: Again sir, respectfully, generally? What are we talking about, like?

Q: Sir this is not a complicated question. You’ll agree with me that for any driver in any circumstance, anywhere, going 80 km an hour in traffic for [14.2 seconds] is an extremely long time, right?

A: For any driver, for not paying attention for 14 seconds – yes.

31It is also relevant that Shah was in shock after the collision, which may very well have impacted his memory of the drive leading to the collision. It is apparent from a passage I was taken to from Shah’s statement to police that evening, that Shah’s memory of the entire drive home that day was unclear at best. In light of the issues with his testimony, I do not find his evidence to be particularly reliable.

32However, I also note that I have no reason to believe he intentionally lied and in fact, in his testimony he offered information that hurt his position. For example, he did not provide any direct support for the defence theory, which is that he fell asleep. Nor did he assist the court with why he may have fallen asleep. He admittedly had no explanation for the collision. Moreover, his evidence does not negate the Crown theory that he was awake but inattentive for the 14 seconds leading to the collision. I find that his evidence, although not entirely reliable, was for the most part credible.

Relevant Legal Principles:

33Shah has been charged with dangerous driving under the now repealed s. 249 of the Criminal Code which read:

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;

34As noted in the outset of my reasons, the issue before me is not whether Shah’s driving amounted to a simple departure from the norm, it is whether his driving amounted to criminal conduct. In R. v. Roy, 2012 SCC 26, Cromwell J. emphasized the high threshold involved in labelling driving as criminal:

30 A fundamental point in Beatty [2008 SCC 5] is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

31 From at least the 1940s, the Court has distinguished between, on the one hand, simple negligence that is required to establish civil liability or guilt of provincial careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving (American Automobile Insurance Co. v. Dickson, 1943 34 (SCC), [1943] S.C.R. 143 (S.C.C.)). This distinction took on added importance for constitutional purposes. It became the basis for differentiating, for division of powers purposes, between the permissible scope of provincial and federal legislative competence as well as meeting the minimum fault requirements for crimes under the Canadian Charter of Rights and Freedoms (O'Grady v. Sparling, 1960 70 (SCC), [1960] S.C.R. 804 (S.C.C.); R. v. Mann, 1966 5 (SCC), [1966] S.C.R. 238 (S.C.C.); Hundal [1993 120 (SCC), [1993] 1 S.C.R. 867]). Thus, the “marked departure” standard underlines the seriousness of the criminal offence of dangerous driving, separates federal criminal law from provincial regulatory law and ensures that there is an appropriate fault requirement for Charter purposes. [Emphasis was in the original.]

35With that high threshold in mind, Cromwell J. defined the actus reus as “whether the driving, viewed objectively, was dangerous to the public in all of the circumstances”; and articulated the test for the mens rea as:

Whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.

Roy, supra, at para. 34, 41.

36Cromwell J. recommended in Roy that triers approach the fault requirement in two steps:

It is helpful to approach the issue by asking two questions. The first is whether, in light of all of 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 markeddeparture from the standard of care expected of a reasonable person in the accused’s circumstances. [Emphasis was in the original.]

37Although Cromwell J. italicized the term “marked departure” in this passage, he went on to emphasize the importance of considering the accused’s circumstances in assessing whether it was a marked departure sufficient to amount to a criminal offence. He said:

Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. 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: Beatty, at para. 37. [Emphasis was in the original.]

38In the recent case of R. v. Stennett, 2021 ONCA 258 Watt J.A. added that although the fault element may be inferred from a finding that the accused’s driving constituted a marked departure from the norm, it is not a presumption (see para. 92). He thereby also emphasized that the court must consider the circumstances the accused found himself in, in order to assess whether the fault element has been established.

39In the earlier case of R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867, Cory J. gave examples of personal circumstances which not only should be considered in assessing whether the driving was a marked departure from the standard of care of the reasonable person, but which might prove to be a complete defence:

Although an objective test must be applied to the offence of dangerous driving it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct. The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.

There will be occasions when the manner of driving viewed objectively will clearly be dangerous yet the accused should not be convicted. Take for example a driver who, without prior warning, suffers 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. These examples, and there may well be others, serve to illustrate the aim and purpose of the modified objective test. It is to enable a court to take into account the sudden and unexpected onset of disease and similar human frailties as well as the objective demonstration of dangerous driving.

40Driving while asleep has been added to that list of possible complete defences (R. v. Jiang, 2007 BCCA 270; R. v. St Hilaire, 2018 ONSC 6224; R. v. Morin, 2019 SKPC 39; R. v. Jones, 2016 BCPC 256; and R. v. Recine, 2021 ONSC 7614).

41Where the accused relies on a personal circumstance as a complete defence, such as having a heart attack or driving while asleep, the accused need not prove the defence. As Cory J. said in Hundal, supra, the accused only needs to raise a reasonable doubt with respect to the defence.

42Such a doubt may be raised by demonstrating that there is a reasonable possibility of the relevant personal circumstance raised in the evidence or lack of evidence. As Cromwell J. noted in R. v. Villaroman, 2016 SCC 33, if there is a reasonable possibility of a fact scenario that is consistent with innocence, then the court must consider that possibility in assessing whether the Crown has proven the case beyond a reasonable doubt. He said at para. 37:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 14 (ON CA), [1938] O.R. 200 (Ont. C.A.) , at pp. 205 and 211, per Middleton J.A., aff’d 1938 7 (SCC), [1938] S.C.R. 396 (S.C.C.) ; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C. C.A.) , at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw (1971), 1971 13 (SCC), [1972] S.C.R. 2 (S.C.C.) , at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Emphasis was in the original.]

43In the recent case of Stennett, supra, Watt J.A. applied the Villaroman approach to circumstantial evidence in a dangerous driving context. He used it to assess whether innocent explanations for the collision in that case raised a reasonable doubt as to whether Mr. Stennett committed the criminal offence of dangerous driving. He said:

75 In order to conclude that the only reason that the appellant lost control of the vehicle was because of the grossly excessive speed at which he was driving, the trial judge was required to consider whether all other plausible theories or reasonable possibilities inconsistent with culpability could account for the collision. These non-culpable inferences could arise from the evidence or the absence of evidence. However, to be availing, those inferences must be reasonable, given the evidence and the absence of evidence, assessed logically and in light of human experience and common sense. Circumstantial evidence does not have to exclude merely conceivable or possible inferences, only those that are reasonable and not speculative.

76 It remains fundamentally for the trier of fact to determine whether any proposed alternative way of looking at the case is reasonable enough to raise a doubt. In other words, it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it is unreasonable. Here, it was reasonable for the trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt.

44Thus, where the accused raises the possibility that he fell asleep while driving, the court must first assess whether the driving, viewed objectively, was dangerous and whether it amounts to a marked departure from the norm. If so, then the court must consider whether there is a reasonable possibility raised in the evidence, or lack of evidence, that the accused fell asleep while driving, and whether that possibility was negated by the Crown.

45In cases where there is a reasonable possibility the accused fell asleep, the court must go further to consider whether “a reasonable person would have foreseen the risk and taken steps to avoid it, if possible”. And if so, 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” (Roy, at para. 36).

Positions of the Parties:

46Both parties agree that the evidence shows that Shah did not look out his front windshield from the time he started to veer left to the point of collision, and they agree that that period was close to 14 seconds. They further agree that the driving, objectively viewed, was dangerous. Thus, the actus reus has been established. The only issue is whether there was a marked departure from the standard of care that a reasonable person in the circumstances the accused found himself in would have exhibited.

Defence Position:

47The Defence essentially admits the Crown’s case but submits that Shah should be acquitted since there is a reasonable possibility that he fell asleep. In fact, according to the Defence the most compelling explanation for the collision is that Shah fell asleep. The Defence further submits that prior to the collision, there was no reason for him to be concerned that he might fall asleep while driving. There is therefore, on the Defence theory, a reasonable possibility that is inconsistent with guilt and Shah should be found not guilty.

48Shah’s guilt therefore turns on a finding of whether there is a reasonable possibility he fell asleep, and if he did, whether that would amount to a complete defence.

49The theory that Shah fell asleep just prior to the collision is grounded in a combination of the following:

• Shah had not been feeling well in the days leading up to November 27, 2017. And on the day in question, he felt he was at 85%;
• He was a full time University Nursing Science student at Ryerson, which was located in Toronto, and was taking shifts as security personnel, including the shift on November 27, 2017, on top of his full time student schedule;
• On November 27, 2017, Shah worked a full day and had a long commute both ways. He woke up early and left his home at approximately 7:00 a.m. He was driving or in transit until 8:30 to 8:45 a.m. He worked from 9:00 a.m. until 4:00 p.m., in a position where he was forced to remain alert. He was essentially still on his way home at the time of the collision, 5:37 p.m.;
• The manner of the driving before he started veering out of his lane was proper and safe;
• The manner of driving after he started veering left was consistent with him being asleep. There was a gradual drift of the vehicle to the left. There was no jerking motion, no redirecting of the vehicle, no signaling and no slowing down, over a period of 14 seconds. Even in the moment before impact, when the lights from the Vijeyakumar vehicle would have been shining bright through his windshield in the dark evening, Shah did not show any evasive action. There was no change in speed or in input on the steering wheel even at the point of impact.
• Shah’s conduct post collision was also consistent with him being asleep. Immediately after the collision, he was dazed, confused and genuinely unsure of what had just happened. The extent of his confusion is exemplified by the fact that he did not know he had been injured in any way, when in fact both his ankles had been fractured;
• The gap in Shah’s memory could be explained by a finding that he fell asleep; and,
• There is no other plausible explanation as to how this may have happened:
  • Shah was not intoxicated;
  • Shah did not intentionally drive into oncoming traffic;
  • There was nothing on or beside the road to distract him;
  • There was no evidence of anything in the car that could distract Shah for that period of time – aside from possibly making a phone call to his “mom”, but it is implausible that he was making that call during the pivotal 14 seconds because:
    • According to his testimony, he made the call to his mother a couple of minutes earlier;
    • The timing of the call, 5:34 p.m., supports an inference that Shah was not on the phone at the time of the collision, given that Apps’ testimony supports a finding the collision was within a minute of 5:37 p.m.;
    • Shah had Bluetooth technology in the Santa Fe, so it would not have made sense for him to look away from the windshield when he made a call;
    • Shah’s mother’s phone number was programmed into his phone under “mom”, so even if he did not use the Bluetooth technology, he would not have needed to look at his phone for 14 seconds to call her; and,
    • Since the call was 24 seconds, it is reasonable to infer that he in fact spoke to his mother (and not just left her a message); and if Shah had been on the phone with his mother at the time of the collision and she got disconnected, she – after hearing the collision - would have likely called Shah back or sent him a text, either before or after calling 911. She did neither.

50Therefore, the Defence submits there is a reasonable possibility Shah fell asleep. The Defence further submits that in the circumstances of this case, that possibility amounts to a complete defence, since there is no evidence to support a finding that Shah embarked on driving or that he continued to drive in the face of a real risk of falling asleep. There were reasons to support a finding that he would have been tired and there were reasons that in retrospect, support a finding that he fell asleep. However, those reasons – that he was feeling a little under the weather and that he worked a long shift in addition to being a full time University student – would not have alerted the reasonable person to the risk of falling asleep while driving. Alternatively, if the risk of falling asleep was reasonably foreseeable, it was not such that driving despite that risk amounted to a marked departure from the standard of care of the reasonable person.

51Thus, according to the Defence, there is a reasonable possibility Shah fell asleep, and that possibility is inconsistent with guilt.

Crown’s Position

52In response, the Crown relies on the following to support its position that either there was no reasonable possibility that Shah was asleep, or if there was such a possibility, the Crown negated it:

• Based on Shah’s description of the circumstances, it was implausible that he would have fallen asleep. He admittedly had slept well the night before and was confident he could stay sufficiently alert to drive in rush hour traffic;
• Shah himself never suggested in his testimony that he fell asleep or that he was feeling tired as he was driving. He had no explanation for the collision;
• In the moments before Shah started to veer out of his lane, he called his mother, and he negotiated the large curve on Taunton Road. According to the Crown, common sense dictates that both of those actions reflect an alertness inconsistent with him falling asleep moments later;
• According to the Crown, Shah’s ability to remember that the light at Church Street was green seconds prior to the point he started to veer left, again reflects an alertness inconsistent with him falling asleep moments later; and,
• If Shah was asleep, according to the Crown theory, he would have woken up at the point of collision. However, he did not wake up at the point of collision. Instead, Shah’s first memory is of people yelling “gas”.

53With respect to the lack of alternative explanations, the Crown submits that the accused may have been making the phone call to his “mom” at the time he started veering out of his lane. In contrast to the Defence position, the Crown submits that Apps’ testimony regarding the time of the collision supports a finding that Shah was on his phone at the time he started veering away. I find that the evidence of timing is far from compelling evidence that Shah was on the phone at the time of the collision. The Crown did not point to any other evidence that would support a finding Shah was on the phone and did not respond to the other issues with that theory that were raised by the Defence (aside from saying that Shah’s testimony as to when he made the phone call should be disbelieved).

54During oral submissions, the Crown did not forcefully argue the theory that Shah was on his phone. Instead, he emphasized that there was no requirement for the Crown to explain why the collision occurred; the Crown need not prove motive. As pointed out by the Crown, there could be a multitude of reasons as to why it happened; he gave an example (which he recognized was outrageous) that Shah possibly pulled out a newspaper and started to read while behind the wheel. The Crown emphasized that if the court must speculate in order to determine why the collision occurred, (such that none of the possibilities amount to a “reasonable possibility” as defined in Villaroman) then the court should not consider why the collision occurred at all, in assessing guilt.

55The Crown further submits that the cases of R. v. Burger, 2017 ONCA 101; R. v. Patel, 2017 ONSC 4048; and R. v. He, 2021 ONSC 7253 are not factually distinguishable and since the possibility of falling asleep was not considered as a reasonable possibility in those cases, it cannot be considered as such in the case at bar.

Analysis:

56I accept that the actus reus has been established and that this case turns on whether there is a reasonable possibility that Shah fell asleep behind the wheel, and if so, whether that amounts to a complete defence.

57The Defence has advanced significant and compelling support for a finding that there is a reasonable possibility that Shah fell asleep. The Defence was able to point to a number of pieces of evidence that could support that possibility, including the driving itself as indicative of being asleep. Maughan noted the movement of the car was consistent with the driver being asleep. I note that in R. v. Morin, 2019 SKPC 39, the court relied on the manner of driving alone – without any evidence from the Defence – to find there was a reasonable possibility that the accused fell asleep and caused the collision in that case.

58The Defence in the case at bar also relied on the lack of evidence of an alternative explanation for the collision. I recognize that the Crown is not required to negate all conceivable theories. Nor is the Crown required to prove motive. However, while the Crown does not need to prove motive, the absence of evidence of motive is a relevant factor for the trier to consider (R. v. White (1996), 1996 3013 (ON CA), 29 O.R. (3d) 577 (Ont.C.A.), aff’d 1998 789 (SCC), [1998] 2 S.C.R. 72 (S.C.C.), at para. 59). Equally, the lack of evidence of alternative explanations is relevant to whether Shah possibly fell asleep.

59The question then becomes whether there was evidence of an explanation other than Shah falling asleep; or in other words, was it reasonably possible Shah was on his telephone. When I consider (1) Apps’ evidence as to the timing of the collision as compared to the time of the call (5:34 p.m.); (2) the fact Shah would have likely used Bluetooth technology to make the call; (3) the fact that Shah had his mother’s number programmed into his phone; and (4) the fact the call itself was 24 seconds in length (which means that if he was making the call at the relevant time, Shah either finished dialing before veering out of his lane or his mother heard the entire collision and never tried to call him back); I find that it is implausible that Shah was looking at his phone to call his mother for the pivotal 14 seconds. There is therefore no reasonable explanation for the manner of driving other than Shah being asleep, and I take this into consideration as one factor in assessing whether he was in fact possibly asleep.

60Overall, I find there is compelling evidence to support the possibility that Shah was asleep when he started to veer out of his lane and there is a significant gap in the evidence to provide an alternative explanation.

61On the other hand, the Crown has advanced a number of reasons why I should not find there is a reasonable possibility that Shah fell asleep. I agree with the Crown that people do not typically fall asleep while driving at 80 km/h after working a long day, even if they are not feeling well and even if they have a full University workload in addition to their employment. However, I can not take judicial notice that it is impossible for someone in those circumstances to fall asleep. This is particularly true when I know so little about Shah’s sleeping habits and since his description of the seriousness of his unhealthiness was very subjective.

62I also accept the Crown’s position that if Shah had fallen asleep, he would have likely felt tired in the moments before he fell asleep. However, I do not put much weight on Shah’s failure to remember being tired in the moments before the collision. As I already mentioned, I find that his memory of the entire drive that evening to be unclear at best, likely due to the shock he suffered.

63I do not agree with the Crown’s position that Shah’s ability to make a 24 second phone call at 5:34 p.m., or his ability to negotiate a curve in the road, is evidence he could not have fallen asleep moments later. He could have done those simple actions while he was quite tired. And arguably, the haziness of his memory of passing through the intersection at Church Street supports the theory that he was very tired at that point.

64The final piece of evidence that the Crown relies on is Shah’s testimony that his first memory after the collision is hearing people yelling “gas” and pulling him out of his vehicle. The Crown submits that if he was asleep his first memory should have been of the collision itself, as that would have woken him up. Therefore, according to the Crown theory, the fact that Shah’s first memory is of someone yelling “gas” is inconsistent with the theory he was asleep. However, I find that there is no inconsistency. Shah was confused, dazed and in shock in the moments around the collision, and has a memory gap. It would not be surprising, whether or not Shah was asleep prior to the collision, that Shah has no memory of the collision itself, nor would it be surprising if his memory of the collision was clouded by his state of confusion. I furthermore cannot rule out the possibility that he was asleep prior to the collision and was knocked momentarily unconscious by the collision.

65I turn to the issue of whether Burger, Patel and He are factually distinguishable from the case at bar. I start out by noting that the accused in all three of those cases testified to having distinct memories of what lead to the collision. In Burger, the accused was backing up out of a parking spot for the five seconds that she was driving dangerously. The driver input on the gas and the steering varied in the seconds leading to the collision. Thus, although the trial judge rejected Ms. Burger’s evidence that her foot was caught under the pedal, it would have been absurd for the trial judge to reject her evidence that she was awake as she was backing up out of a parking spot. There was no need to consider the possibility she was asleep.

66In Patel, the trial judge accepted the accused’s evidence that the accused was distracted by a conversation he was having with his girlfriend in the seconds leading up to the collision. There was no need to consider the possibility of Patel being asleep.

67Finally, in He, the trial judge’s findings of fact suggest that although he rejected the accused’s evidence that she was in a dissociated state at the time of the collision, he accepted her evidence that she was awake. He found that “Ms. He would have been looking south through her windshield at a red light for at least 11 seconds before striking Chabou” (para. 28); and found that “Ms. He’s ‘dream-like state’ was simply a prolonged period of distraction and inattention” (para. 35). All three cases provided by the Crown, are distinguishable in a material way.

68In light of the compelling reasons to support the possibility that Shah was asleep when he started veering out of his lane, I do not find that the Crown’s arguments sufficient to negate that possibility. In other words, when I apply “logic and experience” to all of the evidence, I find the possibility that Shah fell asleep neither “fanciful” nor “irrational”. In stead, I find it to be quite plausible and reasonable.

69Having found that there is a reasonable possibility that Shah was asleep, I must go on to consider whether a reasonable person in Shah’s circumstances would have foreseen the risk of falling asleep. There is simply no evidence to support a finding that Shah should have recognized before getting behind the wheel that day, the possibility that he could fall asleep. Although I find that he likely felt tired prior to veering off the road, I cannot find that he was sufficiently fatigued to the point he should have known he might fall asleep. There is a complete lack of evidence to support that position.

70There is therefore at least a reasonable possibility that Shah got into his car, tired but without any reason to fear he might fall asleep, and yet fell asleep behind the wheel. Such actions would not amount to a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited. There is accordingly a reasonable possibility that is inconsistent with guilt, and Shah has a complete defence.

Conclusion:

71The collision in this case is tragic to the point words cannot express. Shamalee’s parents, who attended court daily throughout the trial, clearly and understandably are devasted by their loss. Sarthak Shah is indisputably responsible for the collision and will have to carry the weight of Shamalee’s death on his shoulders for his lifetime. However, being responsible for her death does not assist in determining whether his driving was criminal. Driving is inherently dangerous and tragically, death is often caused even when no one has committed an offence.

72In order to be criminal, I must find that the driving is “markedly” beyond the level of carelessness. Having considered all the factors, I find there was at least a reasonable possibility that Shah was asleep from the point he started to veer into the centre lane. Given the evidence, there was no reason for him to be aware of a risk that he could fall asleep. In these circumstances, I find that although he is responsible for the loss of Shamalee’s life, he was not driving to the criminal standard of dangerous at the time. I find him not guilty on both counts.