COURT FILE NO.: CR-21-982-00 DATE: 2023 05 10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – WALID WAKEEL
Counsel: Carrie Vanden Broek, for the Crown Gregory LaFontaine, for the Accused
HEARD: July 25, 26, 27, 28, 29, August 2, 3, 5, September 12, 2022 and January 19, February 3, March 20, 23, 24, April 6, 21, 2023
REASONS FOR JUDGMENT André J.
Overview
[1] On October 22, 2018, members of the Peel Regional Police Services (“PRPS”) charged Mr. Walid Wakeel with the offences of dangerous driving causing death, dangerous driving causing bodily harm, and two counts of failing to stop his vehicle after an accident with intent to escape civil or criminal liability. Mr. Wakeel elected to proceed to trial before a Superior Court Judge without a jury.
[2] Following several days of testimony from a number of witnesses, including expert testimony called by the Crown and the defence, I must now consider whether the Crown has proven its case against Mr. Wakeel beyond a reasonable doubt.
Summary of the Evidence
[3] On October 21, 2018, a white Audi, driven by Mr. Wakeel, allegedly ran a red traffic light at the intersection of Highway 50 and Castlemore Road in the City of Brampton and collided with a grey Honda proceeding southbound on Highway 50, fatally injuring the Honda’s front passenger and severely injuring its driver. During the trial, multiple witnesses testified that the Audi proceeded eastbound through the intersection at a high rate of speed and struck the Honda. One witness testified that he saw a South Asian male exit the Audi through the front passenger window. The witness testified that he spoke to this male who told him not to call 911. The witness also testified that he saw this male speaking to someone on his cellphone and that a few minutes later, a vehicle arrived at the scene. The male then ran to the vehicle which then drove away from the scene.
[4] Detective Constable Jeff Davis was qualified, on consent, as an accident reconstructionist, who, based on his experience, training, and examination of the accident scene, was qualified to give opinion evidence about the speed at which the vehicles were travelling prior to the collision.
[5] Detective Davis opined that: (a) The Honda entered the intersection of Highway 50 and Castlemore Road at a speed of 79 km/h on a green light, (b) The Audi entered the intersection against a red light at a speed of 113 km/hour, (c) The posted speed limit in the area was 70 km/h.
[6] Mr. Raftery, the sole witness called by the defence, was similarly qualified, on consent, as an accident reconstructionist. Like Detective Davis, he also examined photographs of the accident scene which showed the final location where the vehicles came to rest following the accident. Mr. Raftery opined that Detective Davis used the wrong mathematical formula to determine the speed at which the vehicles were travelling before the fatal collision. He opined that: (a) The Audi was travelling at a speed significantly less than 113 km/h prior to the collision, (b) The Honda was travelling at a speed greater than the speed at which the Audi was travelling prior to the accident, and that (c) He could not say at what speed the Audi was travelling prior to the collision.
Analysis
(a) Has the Crown proven the charges of dangerous driving beyond a reasonable doubt? (b) Has the Crown proven the charges of failing to remain at the scene of the accident with intent to escape civil or criminal liability, beyond a reasonable doubt?
The Law
[7] In R. v. Roy, 2012 SCC 26, the Supreme Court of Canada held that the actus reus of the offence of dangerous driving is driving that is objectively dangerous in the circumstances, while the mens rea of the offence is a marked departure from the actions of a reasonable person in similar circumstances. The Court noted at para. 40:
[40] 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. [Citation omitted.]
[8] The Court also noted at paras. 37-38:
[37] Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.
[38] The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement.
See also R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; R. v. Alves, 2014 SKCA 82, 314 C.C.C. (3d) 313.
[9] Based on the decision in Roy, to find Mr. Wakeel guilty of the offences of dangerous driving causing death and bodily harm, I must find that the Crown has proven beyond a reasonable doubt the following essential elements of the offence: (a) Mr. Wakeel’s driving prior to the fatal accident, was objectively dangerous, and (b) The impugned driving was a marked departure from the acts of a reasonable person in similar circumstances.
[10] Section 252(1) of the Criminal Code, R.S.C., 1985, c. C-46 (repealed on December 17, 2018), stated:
(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with (a) another person, (b) a vehicle, vessel or aircraft, or (c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.
[11] In R. v. T.(S.D.) (1985), 18 C.C.C. (3d) 125, the Nova Scotia Court of Appeal analyzed section 252(2) of the Criminal Code (then s. 233(3)) and indicated the following at para. 11:
The effect of s. 233(3) of the Code is that proof that the accused was in control of a vehicle involved in an accident and failed to either stop his vehicle or offer assistance to any injured person or give his name and address creates, absent any evidence to the contrary, the rebuttable presumption that his failure to perform any one of such duties was accompanied by an intent to thereby escape criminal and civil liability.
[12] The Court of Appeal also held that when s. 252(2) (then s. 233(3)) applies, “an evidential burden is placed on the accused by which he is required to adduce evidence sufficient to raise a reasonable doubt. Such evidence need not necessarily be given by defence witnesses. It may appear from the testimony of Crown witnesses”: at para. 20.
[13] In R. v. Johnston, 2002 ABCA 281, [2002] A.J. No. 1449, at paras. 3-4, the Alberta Court of Appeal noted that,
[3] Section 252 of the Criminal Code does not require proof that the appellant had knowledge that he struck a pedestrian. The actus reus is established by proof that he had control of the vehicle, that the vehicle was involved in an accident, that the accident involved another person who was injured or appeared to require assistance, and the appellant failed to stop and provide his name, or offer assistance.
[4] Upon proof of the actus reus, the mens rea of intent to escape liability is presumed, unless proven otherwise: R. v. Roche, [1983] 1 S.C.R. 491. No additional proof of intent or specific knowledge is required under s. 252(1), unlike s. 252(1.2) or (1.3). [Citation not in original.]
[14] Regarding the offences of dangerous driving causing death and dangerous driving causing bodily harm, I am required to determine whether a.) Mr. Wakeel’s driving was objectively dangerous, and b) whether it was a marked departure from the actions of a reasonable person in similar circumstances. To find Mr. Wakeel guilty, I must conclude that the Crown has proven those essential elements of the offence beyond a reasonable doubt.
Evidence of Mandeep Virpal
[15] Mr. Virpal was driving southbound on Highway 50 to his parents’ home on October 21, 2018, prior to the accident. His wife was seated in the front passenger seat. They had gotten married on October 12, 2018, and were scheduled to go on their honeymoon the day after the accident. The road was dry and clear. There was no snow on the road. They were at the intersection at about midnight. He was driving at a speed of 70 to 80 km/h maximum. He entered the intersection on a green light. Suddenly, they were hit very hard. He did not know where the car came from. He did not see any headlights. He started to scream. He found his phone and then turned on the light. He saw blood pouring from his wife’s head. His windshield was shattered. He saw people at the front of his car. They broke down the door to get to him. He remembered being at the Sunnybrook Hospital. He remained there for two months. His injuries included two broken legs, a fractured wrist, and an open fracture in his left leg. He had five operations at the hospital. He had to have physiotherapy for two years after the accident. He still suffers from back pain and cannot sit or stand for too long.
Evidence of Joshua Mackenzie
[16] Mr. Mackenzie was stopped at a red light, facing eastbound on Castlemore Road immediately prior to the accident. Another vehicle, heading eastbound, was also stopped facing the red light. Mr. Mackenzie was in the left turning lane on Castlemore Road. He recalled seeing vehicles travelling north and south on Highway 50.
[17] He saw a white Audi coming “pretty fast.” It moved to the south side of the other vehicle which had been stopped at the red light and entered the intersection on the red light. The Audi was travelling 80 km/h “or even faster.” The ensuing collision took both vehicles southeast of the intersection. The Audi ended further south on Highway 50.
[18] Following the collision, Mr. Mackenzie parked his truck and went to the Honda. He called 911. There were two people in the vehicle. The male driver said that he could not feel his legs. Mr. Mackenzie saw a woman in the passenger’s seat. She was unconscious. She had serious injuries to her head.
[19] The light governing eastbound traffic turned green five to ten seconds after the accident. The collision occurred within minutes of Mr. Mackenzie’s 911 call at 12:25 a.m.
[20] Under cross-examination, Mr. Mackenzie reiterated that the Audi was going 80km/h, “maybe faster.” He also stated that he never saw an orange light north or south of Highway 50.
Evidence of Georgina Cocco
[21] Ms. Cocco was a passenger in a Yukon XL truck heading northbound on Highway 50, just before 1:00 a.m. Her husband was driving the vehicle. She saw a white vehicle travelling east on Castlemore Road. It went through the intersection and struck another vehicle. The Audi stopped in front of her vehicle.
[22] They approached the Audi and asked if anyone was hurt. A male answered and said that he was the only occupant.
[23] He got out of the passenger side window.
[24] The male kept saying, “please don’t call 911.” Ms. Cocco went to the other vehicle. There were other persons there. Her husband remained behind at the Audi.
[25] At the other vehicle, the driver was screaming that he could not feel his legs. The driver kept yelling, “please call 911.” He then started to shout: “I can see her brains.” Ms. Cocco called 911 two to three minutes after the accident. She did not see the collision. Her vehicle was about 100 meters away from the collision. The light for northbound traffic turned green when she was 200-300 meters from the intersection.
[26] Ms. Cocco conceded that she told the police that the driver of the Audi was shaking and in a state of shock. The driver asked her, “What happened?”
Evidence of David Avila
[27] He was the driver of the Yukon XL truck when the accident occurred at “roughly 1:00 a.m.” As he approached the intersection, he saw light and smoke and saw an Audi coming towards his truck. He stepped out of his truck after the Audi stopped. He told his wife to call 911.
[28] He saw a male exit the Audi through the front passenger window.
[29] The male came out and asked, “What happened, what happened?”
[30] He told the male that the cops were coming. The male repeatedly stated: “Don’t call the cops. I have got to call Abdul.” The male said that he had to call Abdul three times.
[31] Mr. Avila was face to face with the male who appeared to be nervous. The male wore a hoodie and kept bringing it over his mouth. Mr. Avila testified, “I could smell alcohol from his mouth.” Someone pulled up in a Honda Pilot. The male went to the Pilot which then drove off. The male was a brown man.
[32] Under cross-examination, Mr. Avila stated that the male appeared to be disoriented, nervous, scared, and in shock. Mr. Avila stayed at the accident scene for 20 minutes. He left once the police arrived at the scene.
Evidence of Gurdeep Kaur Neru
[33] Ms. Neru was an occupant in her son’s car as it approached the intersection of Castlemore Road and Highway 50. The car was in the second (or middle) lane next to the left turning lane of Castlemore Road. One car was ahead of her car. The light turned red as they approached the intersection. Their vehicle stopped. A car then approached from behind and struck another car in the intersection. The car passed their car and entered the intersection on a red light. Following the collision, many persons called 911. The white car passed her car in the right lane where there were no cars. They were stopped two to three seconds at the red light when the white car passed their car.
[34] “It was fast,” Ms. Neru testified in reference to the speed of the white car. However, she could not estimate the speed with which it had been travelling. She testified that the accident occurred around 12:30 a.m., or so.
Evidence of Mariam Ayoub
[35] Ms. Ayoub was driving a car heading eastbound on Castlemore Road approaching Highway 50. She was in the right turning lane as she approached the intersection. She heard a car going by quickly.
[36] “It grabbed my attention,” Ms. Ayoub testified. The car ran a red light and struck a car on Highway 50. She believed that the car on Highway 50 was going southbound. At the time of the accident, the traffic light facing her was red. Her vehicle was 10-20 seconds away when the traffic light for eastbound traffic turned red. The car on Highway 50 was going “around the speed limit,” Ms. Ayoub testified.
[37] The white car was going “significantly faster” as it approached the red light. She heard the white car revving before it “whisks by.” It went right passed her car on the left side. It was going between 75 to 90 km/h.
[38] Ms. Ayoub stated that after the accident, someone got out of the white car from the driver’s side and ran to the gas station. He did not stop to speak to anyone before running. He did so “very quickly” after the white car stopped. The person was Middle Eastern or South Asian. He had on a dark sweater with a hoodie. He was 5’6”-5’8” tall and between 160-170 pounds. Her partner, who was a passenger in her car, called 911. Ms. Ayoub reiterated that she saw a red light “up to 30 secs” before the white car entered the intersection. “The other car had a green light,” Ms. Ayoub further stated.
[39] When asked about the speed of the white vehicle in cross-examination, Ms. Ayoub replied: “I can say it was going much faster than the speed limit. It went by very quickly.” It “grabbed my attention.”
Evidence of Matthew Borean
[40] Mr. Borean was a passenger in Ms. Ayoub’s car when the fatal accident occurred. They were about to enter the right turning lane when he heard a car passing his vehicle. He turned in the direction of the car. It accelerated through the light. It struck a vehicle, deflected, and rolled south on Highway 50.
[41] He did not know what speed the white car was travelling. The light for eastbound traffic was still red when the vehicle accelerated. He did not see the colour of the traffic light after the collision. He saw a person exit the white vehicle from the passenger side.
[42] There were a few eastbound cars on Castlemore Road waiting for the light to turn from red to green. The road was normal, not wet. The visibility was clear.
[43] Under cross-examination, Mr. Borean reiterated that the eastbound traffic light was red before the accident. He saw someone leave the passenger side of the white vehicle and head north on Highway 50. “It seemed like running,” Mr. Borean testified. He did not see anyone speak to the person who left the white vehicle. The noise he heard sounded like the vehicle accelerated as it went through the intersection.
Evidence of Raajan Neru
[44] Mr. Neru testified that on October 21, 2018, he was stopped at a red light on Castlemore Road. A car passed him, and T-boned another car proceeding southbound. He was stopped at the red light five to six seconds before the white Audi drove past him. He was not sure on which side the car passed. He estimated that it was travelling at a speed between 110 and 120 km/h.
[45] Under cross-examination, Mr. Neru repeated that he heard the vehicle before he saw it.
Expert Evidence of Detective Davis and Mr. Barry Raftery
[46] Detective Davis was qualified, on consent, as an expert in vehicle collision analysis. He described the accident as a “T-bone style” collision.
[47] He did not observe any tire marks before gouge marks in the road. He estimated that the white Audi travelled 90.6 meters from the point of impact (“POI”). He opined that the vehicles collided at the 90-degree angle.
[48] He estimated that the Audi was travelling at 113 km/h immediately prior to the collision while the Honda was travelling at 79 km/h just before the collision.
[49] Under cross-examination, the officer testified that if the exit speed of the Audi was 62.54 km/h, the incoming speed of the Audi would have been 104 km/h. He agreed that the weight of the vehicles mattered in his calculations regarding the speed at which the vehicles were travelling.
[50] Detective Davis testified that if the Honda was 63 kilograms lighter than the estimates he relied on to calculate the speed of the two vehicles, the pre-collision speed of the Audi would have been 111 km/h.
[51] Engineer Barry Raftery was similarly qualified on consent as an accident reconstructionist. He opined that given the locations where the two vehicles came to rest, and the fact that the Honda was much lighter than the Audi, the Honda was travelling at a greater speed than the Audi at the time of the collision. He could not envision the vehicles coming to rest at their locations had the Audi been travelling at a speed greater than the Honda. He opined that Detective Davis applied the wrong formula in gauging the speed of the Audi before the collision. Mr. Raftery conceded in cross examination that the Honda’s path of travel changed drastically following the collision.
Evidence on Voir Dire
[52] During the trial, I held a voir dire to determine the admissibility of a statement from Khalid Wakeel, the brother of the accused. Mr. Khalid Wakeel told the police that he received a call from his brother that he had gotten into an accident and was hurt. Walid told him that he was away from the scene of the accident. His brother told him that the accident happened at Castlemore and Highway 50. Mr. Khalid Wakeel had then driven to the intersection when he saw “burning lights and police cars.” He then told an officer about what his brother had said to him.
[53] The officer in charge made numerous efforts to have Mr. Khalid Wakeel attend the trial. All were unsuccessful. He contacted family members who were all uncooperative. The officer eventually received information prior to the trial that Khalid Wakeel had left Canada prior to the trial.
[54] Based on this information, I ruled that the statement of Khalid Wakeel was admissible for the truth of its contents, under the principled exception to the hearsay rule.
Application of the Law to the Facts
[55] The statement of Khalid Wakeel constitutes cogent evidence that Mr. Wakeel was the driver of the white Audi which collided with the Honda. The information in the statement is confirmed by Mr. Avila who testified that the driver kept asking for “Abdul,” the first name of Mr. Wakeel’s father and registered owner of the Audi.
[56] Second, Mr. Wakeel told his brother about the location of the accident which turned out to be true. Furthermore, Walid Wakeel’s business cards were found in the Audi.
[57] Virtually all the witnesses who were in vehicles headed eastbound on Castlemore Road, and which were stopped on a red light, testified that the Audi entered the intersection on a red light. There is no evidence of any collusion among these witnesses.
[58] The testimony of the witnesses differed about how long they were stopped at the red light. But they were not shaken in cross-examination that the white Audi ran a red light and struck the Honda.
[59] Third, at least one witness testified that before proceeding through the intersection, the driver of the Audi switched to the clear lane. Mr. Joshua Mackenzie, who was stopped in the left turning lane on Castlemore Road, testified that the Audi moved to the south side of the other stopped vehicle and entered the intersection on the red light. Gurdeep Kaur Neru testified that the white Audi passed her car in the right lane where there were no cars, before entering the intersection on a red light.
[60] Neither of these witnesses were shaken in cross-examination about their testimony that the white Audi travelled eastbound in the only traffic lane in which there was no vehicle stopped at the intersection.
[61] Fourth, all the witnesses who were in vehicles which had stopped at Castlemore Road on a red light testified that the white Audi entered the intersection at a high rate of speed. Joshua Mackenzie testified that the Audi was travelling 80 km/h “or even faster.” Gurdeep Kaur Neru testified that the Audi “was fast” although she could not estimate the speed at which it was travelling. Mariam Ayoub heard the Audi before she saw it. She testified that it “was going around the speed limit.” However, she testified it was going “significantly faster” as it approached the red light. She heard it “revving” as it “whisks by.” It was going between 75 km/h and 90 km/h. Under cross-examination, Ms. Ayoub stated that: “I can say it was going much faster than the speed limit. It went very quickly.” Matthew Borean also testified that the Audi “accelerated” through the light when it was still red. He repeated under cross-examination that the noise he heard sounded like the vehicle accelerated when it went through the intersection. Finally, Raajan Neru testified that the vehicle was travelling between 110 and 120 km/h when it went through the intersection. He also testified that he heard the Audi before he saw it.
[62] Detective Davis initially estimated that the Audi was traveling at 113 km/h prior to the collision. But he later conceded that if the Honda was about 63 kilograms lighter than he estimated it to have been, the Audi would have been traveling at approximately 104 km/h.
[63] Mr. Barry Raftery, who was qualified on consent as an expert in the field of collision reconstruction, opined that Detective Davis applied the wrong test in estimating the pre-collision speed of both vehicles. He testified that the Audi was much heavier than the Honda and that given the final positions of the two vehicles after the collision, the Honda had to have been travelling much faster than the Audi. He opined that the Audi was travelling at a speed “substantially less” than the Honda although he could not calculate the speed of either vehicle before the collision.
[64] For the following reasons, I do not accept Mr. Raftery’s conclusion that prior to the collision the Honda was travelling faster than the Audi.
[65] First, it is contrary to the evidence of all the witnesses who saw the accident. Second, following the collision, the Honda ended up some 35 meters east of the point of impact of the vehicles, suggesting that the Honda was pushed in the direction in which the Audi was travelling. Third, Mr. Raftery did not think that the collision was a “T-bone style” collision, as described by Detective Davis, yet at least one witness testified that it was such a collision. Fourth, the damage to the Honda indicated that there was a secondary collision impact that neither Detective Davis nor Mr. Raftery considered in their analysis of the speed at which the vehicles were travelling. Detective Davis opined that this would raise his estimate of the speed at which the Audi was travelling. Mr. Raftery stated that this second collision was insignificant. I disagree with Mr. Raftery’s testimony given that this secondary collision appeared to have damaged the driver’s door of the Audi and likely impacted the deceased passenger of the Honda given that her blood was found on the door of the Audi. For these reasons, I do not accept Mr. Raftery’s evidence that the Audi was driving considerably slower than Detective Davis’ estimation.
[66] Based on the totality of the evidence I accept, I find as a fact that the Audi accelerated before entering the intersection and travelled at a speed of at least 100 km/h when it struck the Honda. That estimate is more than the estimate given by Mariam Ayoub, but less than that of Raajan Neru and of Detective Davis. Such a finding is consistent with the incontrovertible evidence that rather than decrease its speed and stop prior to the intersection, the driver accelerated as his vehicle approached the intersection. I find that Mr. Wakeel did so intentionally to avoid bringing his vehicle to a stop at the red light.
[67] Based on these factors, was Mr. Wakeel’s driving prior to the accident objectively dangerous? In my view, it was. There were at least three cars on Castlemore Road which were stopped at the intersection. Rather than slowing down his vehicle, Mr. Wakeel accelerated his vehicle before entering the intersection on a red light. He entered the intersection at a speed well in excess of the speed limit. He also entered the intersection in the one lane which had no stopped vehicles. These factors collectively support a conclusion that Mr. Wakeel’s driving was objectively dangerous. It simply cannot be described as a momentary lapse in driving or driving without due care and attention.
[68] Could the driving be described as a marked departure from the actions of a reasonable person in a similar circumstance? In my view, it can. The impugned driving occurred after midnight in a commercial area on a much-travelled highway, although the traffic was light. A reasonable person would have exercised caution as he or she approached this intersection at night, more so given that three vehicles ahead were stopped at the intersection. Such a person would have been mindful of the risk of speeding through a red light at what can only be described as a major intersection—rather than an isolated one in some rural setting.
[69] For the above reasons, I find Mr. Wakeel guilty of dangerous driving causing death and dangerous driving causing bodily harm.
[70] Has the Crown proved Mr. Wakeel guilty beyond a reasonable doubt of failing to remain at the scene of the accident with intent to avoid civil or criminal liability?
[71] The Crown relies on circumstantial evidence to prove beyond a reasonable doubt that Mr. Wakeel fled the scene with intent to escape civil or criminal liability. To that extent, it must prove that Mr. Wakeel’s guilt is the only reasonable inference to be drawn from the evidence.
[72] Mr. Wakeel’s counsel submits that the evidence falls far short of the requisite standard of proof for the following reasons. First, David Avila and his spouse testified that following the accident, Mr. Wakeel appeared to be in shock and very nervous. Second, there is evidence that Mr. Wakeel ran towards the Honda following the accident thereby suggesting that he intended to offer its occupants assistance. Third, the court should not place any weight on David Avila’s evidence that he spoke to Mr. Wakeel, given that two other witnesses testified that they did not see anyone talking to Mr. Wakeel. Fourth, Mr. Wakeel surrendered to the police the day after the accident.
[73] Georgina Cocco testified that she saw one male exit the Audi through the passenger side window. He kept saying, “please don’t call 911.” He appeared to be in a state of shock. He asked her “what happened?”
[74] David Avila also saw a male exit the Audi through the front passenger window. The male twice asked, “What happened, what happened?” He repeatedly stated, “Don’t call the cops. I have got to call Abdul.” Mr. Avila was face to face with the driver who wore a hoodie and kept bringing it over his mouth. “I could smell alcohol from his mouth,” Mr. Avila testified. Mr. Avila also testified that the male appeared to be disoriented, nervous, scared, and in shock. A Honda Pilot pulled up at the scene. The male got into the vehicle which then drove away from the scene.
[75] Defence counsel submits that Mr. Avila’s testimony should be accorded little weight given the conflicting testimony from Ms. Ayoub and Mr. Borean that neither saw the driver of the Audi speak to anyone before running away from the scene. However, both Ms. Ayoub and Mr. Borean were much further from the Audi where it came to a stop on Highway 50 than Ms. Cocco and Mr. Avila. Furthermore, Ms. Ayoub testified that the driver of the Audi exited the driver’s side of the car; whereas, according to Mr. Avila, Ms. Cocco and even Mr. Borean, the driver exited through the front passenger window. Additionally, Mr. Avila testified that he came face to face with the driver, unlike Ms. Ayoub and Mr. Borean. For these reasons, I find as a fact that Mr. Wakeel spoke to David Avila after he exited the Audi following the accident.
[76] The words attributed to Mr. Wakeel by Mr. Avila and Ms. Cocco also suggest that, despite evidence that he was in shock and fear following the accident, Mr. Wakeel did not want the police to investigate the accident.
[77] For example, Mr. Avila testified that the driver repeatedly told him, “Don’t call the cops.” Ms. Cocco similarly testified that the male kept saying “Please don’t call 911.” There is no evidence before me to suggest that these two witnesses colluded together to testify about what Mr. Wakeel said to them. I therefore find as a fact that although Mr. Wakeel appeared to be nervous and in shock following the accident, he made it clear that he did not wish for the police to be involved.
[78] Mr. Wakeel’s counsel submits that I should disbelieve Mr. Avila’s evidence that he saw Mr. Wakeel speaking to someone on his cellphone because the phone records tendered by the Crown in this trial do not show any such telephone call from Mr. Wakeel’s cellphone. While the records do not show evidence of this call, the witness from the service provider testified that the calls made from the phone may not have “pinged” on the nearest cell tower in the vicinity of the intersection. More importantly, following the call seen by Mr. Avila, a Honda Pilot appeared at the scene and Mr. Wakeel got into the back seat before the vehicle drove away. In my view, this sequence of events constitutes undeniable proof that Mr. Wakeel contacted someone to extricate himself from the scene of the accident.
[79] Additionally, defence counsel submits that the evidence that Mr. Wakeel walked towards the Honda presumably to offer assistance rebuts the rebuttable presumption in s. 252(2) of the Criminal Code that he fled the scene to escape civil or criminal liability. The evidence I accept undermines this argument. If Mr. Wakeel had any intention of rendering assistance to the persons in the Honda, he would not have called someone to the scene nor left it in the Honda Pilot.
[80] Finally, defence counsel submits that Mr. Wakeel’s surrender to the police the day after the accident is evidence that he lacked the requisite intent to flee the scene to escape civil or criminal liability.
[81] Significantly however, Mr. Wakeel did not call 911 after the accident. On the contrary, he tried to discourage two persons from doing so. Additionally, he wanted until the next day to turn himself in to the police. The timing of the action may well have been related to the smell of alcohol which Mr. Avila detected on his breath.
[82] Finally, according to the trial evidence, Mr. Wakeel turned himself in after the police had called him on his cellphone. With that call, he would have known that the police had information of his involvement in the accident. His decision to go to a police station was likely the result of a realization that the police authorities had found out about his possible involvement in the accident.
Conclusion
[83] For all these reasons, I find that the Crown has proven the two counts of failing to remain beyond a reasonable doubt.
[84] To that extent, I also find him guilty of these charges.
André J. Released: May 10, 2023