COURT FILE NO.: CR-23-15 DATE: 20231127 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN :
His Majesty the King Patrick Quilty, for the Crown
- and -
Waheed Ahmed Jacob Roth, for Mr. Ahmed
HEARD: October 3 & 12, 2023
REASONS FOR JUDGMENT
BALTMAN J.
I. Introduction
[1] Not every tragedy involves a villain.
[2] On the evening of November 8, 2020, Mr. Ahmed was driving to a Purolator store to drop off packages for his boss. While he was making a right turn in a poorly lit construction zone, Nilda Barberan – a pedestrian – ran onto the street. She was well outside the crosswalk and wearing dark clothing. Just after Mr. Ahmed completed the right turn, his vehicle struck and ran over Ms. Barberan. Later that evening, she died from her injuries.
[3] Mr. Ahmed did not stop when his vehicle hit Ms. Barberan. He continued driving for about 85 metres, stopped, and called his boss, Mr. Khyyam Hussain. During this call, Mr. Ahmed reported that he thought something was wrong with his vehicle and that he had run over a “construction thingy”. Mr. Ahmed inspected the vehicle for damage and then drove to Purolator.
[4] The Crown asserts that Mr. Ahmed misled his boss. They argue that Mr. Ahmed knew or was reckless as to whether the accident resulted in the death of or serious bodily harm to a pedestrian. On that basis, the Crown prosecutes Mr. Ahmed for failing to stop after an accident resulting in death, contrary to s. 320.16(3) of the Criminal Code.
[5] The only issue at this trial was whether Mr. Ahmed had a guilty mind in the minutes after the accident. Specifically, did Mr. Ahmed know or was he reckless as to whether his vehicle struck a pedestrian?
[6] For the reasons that follow, I find the Crown has not proven beyond a reasonable doubt that Mr. Ahmed had either state of mind. Ms. Barberan’s death is indeed tragic, but Mr. Ahmed is not criminally liable.
II. Overview of the Evidence
[7] The facts of this case are largely contained in the Agreed Statement of Facts filed at the outset of trial, or derive, to a lesser extent, from the additional evidence at trial. That evidence includes the testimony of Mr. Hussain, video footage of the incident obtained from surveillance cameras on various buildings in the vicinity, and phone records of Mr. Ahmed and Mr. Hussain. Mr. Ahmed did not testify.
[8] The essential and undisputed facts are as follows:
a) Mr. Ahmed’s vehicle strikes an inconspicuous pedestrian.
[9] On December 8, 2020, at 7:38 p.m., Mr. Ahmed left his Mississauga workplace in a red Dodge Caravan. It was the end of the workday, and Mr. Ahmed was heading to a nearby Purolator store to drop off a parcel for his boss, Mr. Hussain. No one else was in the vehicle with Mr. Ahmed.
[10] That evening, Mr. Ahmed’s route took him to the intersection of Meyerside Drive and Tomken Road. That intersection was a low-lit construction zone, with several construction barriers and pylons on the road and sidewalk.
[11] At 7:40 p.m., Ms. Barberan was walking on the north sidewalk of Meyerside, approaching Tomken. The north sidewalk leading to the pedestrian crosswalk at the intersection was closed due to construction. Unable to access the crosswalk from the north sidewalk, Ms. Barberan ran onto Tomken from outside of and to the north of the crosswalk.
[12] Ms. Barberan was hard to see: it was dark out by then, she was wearing dark clothes, the area was poorly lit, and she was crossing outside of the crosswalk. In these circumstances, a driver making a right turn from Meyerside to go north on Tomken would not have expected to see anyone crossing there.
[13] As Ms. Barberan was running onto Tomken, Mr. Ahmed was turning right from the middle westbound lane on Meyerside to go northbound on Tomken. He was turning from the middle lane because the righthand turn lane was closed due to the construction. Just after he made the turn, the front corner on the vehicle’s passenger side struck Ms. Barberan. The vehicle ran over and dragged Ms. Barberan for approximately two seconds.
b) Mr. Ahmed believes something is wrong with his car.
[14] Seconds following the accident, Mr. Ahmed stopped the vehicle about 85 meters from the scene and turned on his four-way flashers.
[15] After stopping, Mr. Ahmed called Mr. Hussain to report that he was having car troubles. Mr. Ahmed seemed calm and his tone of voice was normal. Mr. Ahmed said [1]:
- He thought he hit “a construction thingy”
- Something was “stuck on” the back right wheel; and
- He heard “some sound” on the rear, right side of the truck
[16] Mr. Hussain recommended that Mr. Ahmed check the vehicle for damage. Mr. Ahmed followed his recommendation, exiting the vehicle and walking from the driver’s side to the back passenger side before re-entering.
[17] Mr. Ahmed told Mr. Hussain that the vehicle seemed fine and proceeded to the Purolator store, arriving just before closing at 8:00 p.m.
c) The next morning, Mr. Hussain calls Mr. Ahmed after hearing about the accident on the news.
[18] About two hours after the accident, major news outlets started reporting on the fatal “hit and run” at Tomken and Meyerside.
[19] On his way to work the next morning, Mr. Hussain heard about the accident on the radio. He then read about it on CP24.
[20] Remembering the call he had with Mr. Ahmed the night before, Mr. Hussain worried “it was possible” Mr. Ahmed might have inadvertently caused the accident that made the news. He therefore called Mr. Ahmed to convey his concern. Mr. Hussain asked Mr. Ahmed to look up the incident to ensure he wasn’t the responsible driver.
[21] After reviewing Mr. Ahmed’s phone records, Mr. Hussain believed that this call was at 9:10:06 a.m. He based this belief on his memory that he called Mr. Ahmed, and the 9:10:06 a.m. entry was the only incoming call from a number associated with Mr. Hussain in the records.
(d) Right after the call with Mr. Hussain, Mr. Ahmed spends just over two minutes looking up the accident on the internet.
[22] After the 9:10:06 a.m. call, Mr. Ahmed searched the following on the internet:
| Time | Search |
|---|---|
| 9:14:15 a.m. | mssisauga wanted |
| 9:14:15 a.m. | wanted missisauga man |
| 9:14:53 a.m. | mssissuaga wanted |
| 9:16:43 a.m. | mississauga ac |
| 9:16:43 a.m. | mississauga accident |
| 9:16:50 a.m. | cp24 |
| 9:16:51 a.m. | cp24 |
[23] The next item in Mr. Ahmed’s search history that day was at 2:48:28 p.m., when he searched “cp24”, “cp24 stolen car”, and Mississauga news.
III. Legal Framework
a. Knowledge or Recklessness: The Subjective Mental Element of 320.16(3)
[24] Mr. Ahmed is charged under s. 320.16(3) of the Code. The relevant portions of s. 320.16 are as follows:
(1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.
(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of committing the offence, knows that, or is reckless as to whether , the accident resulted in the death of another person or in bodily harm to another person whose death ensues .
[Emphasis added]
[25] Thus, a conviction under s. 320.16(3) requires the Crown to prove that an accused person knew or was reckless as to whether (a) they were involved in an accident with another person or vehicle; and (b) the accident resulted in death or serious bodily harm to that other person: R. v. Dionne, 2022 BCSC 959, at para. 28.
[26] Here, the first prong would prove the second. If Mr. Ahmed knew or was reckless as to whether his vehicle struck a pedestrian, he would have also known or been reckless as to whether the accident caused serious bodily harm or death.
[27] The Crown may prove knowledge by “either actual knowledge or imputed knowledge based on wilful blindness”: Dionne, at para. 29.
[28] A person is wilfully blind if they are deliberately ignorant – i.e., they “shut their eyes” because they know or strongly suspect looking would fix them with knowledge. Thus, it is close to actual knowledge: R. v. Briscoe, 2010 SCC 13, at paras 21-23.
[29] Like willful blindness, recklessness “must have an element of the subjective” because it involves appreciating some level of risk and deciding to take that risk: R. v. Sansregret, [1985] 1 S.C.R. 570, at para. 16. Recklessness arises “in the attitude of one who, aware that there is a danger that [their] conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and takes the chance”: Sansregret, at para. 16.
[30] This subjective standard differs from negligence, which entails “the failure to take reasonable care”. Unlike recklessness, negligence “is tested by the objective standard of the reasonable [person]”: Sansregret, at para. 16.
[31] In its closing written submissions, the Crown misstated the law on this element of the offence. The Crown wrote that because Mr. Ahmed’s “suspicion was aroused” and he “knew he hit something”, he should have returned to the scene or at least looked back. In other words, Mr. Ahmed was wilfully blind or reckless because he failed to identify himself or offer assistance at the scene.
[32] But wilful blindness or recklessness in the context of s. 320.16(3) requires more than knowing “something” is wrong. One must know or be reckless as to whether (a) they were involved in an accident with another person; and (b) the accident resulted in the death of or bodily harm to that other person. If Mr. Ahmed believed that he struck a pylon, for example, he would have had no duty to make further inquiries. Similarly, if a driver believes they ran over construction materials when in fact they ran over a pedestrian, they do not have to stop because they have no subjective awareness of the prohibited circumstances.
[33] Thus, ultimately, even if Mr. Ahmed should have made more inquiries, the test is not what a reasonable person would have done. It is whether Mr. Ahmed knew there was at least a risk that his vehicle hit a pedestrian.
b. Guilt must be the Only Plausible Inference: Assessing Circumstantial Evidence in Criminal Trials
[34] The Crown relies on circumstantial evidence to argue that Mr. Ahmed knew or was reckless as to whether he was involved in an accident that caused the death of or serious bodily harm to a pedestrian. Where proof of an offence depends on circumstantial evidence, a trier of fact may convict if guilt is the only reasonable inference available. If the Crown cannot disprove reasonable possibilities or “other plausible theories” that conflict with guilt, the trier of fact must acquit: R. v. Villaroman, 2016 SCC 33, at paras. 30, 36, and 37.
IV. Analysis
[35] For the following reasons [2], I find that the Crown has not established that Mr. Ahmed knew or was reckless as to whether his vehicle struck a pedestrian.
a. The Crown has not proven that Mr. Ahmed believed he hit a pedestrian.
[36] The Crown asserts that Mr. Ahmed “must have been aware that there was a risk he hit a pedestrian given that the collision occurred while he was making a turn in an intersection”. That reasoning is faulty, for several reasons.
[37] First, Ms. Barberan was inconspicuous. The ASF provides that “a driver making a right turn from the middle lane westbound on Meyerside Dr. to go northbound on Tomken Rd. would not have expected to see a pedestrian crossing where Ms. Barberan was” [my emphasis]. That is because (a) Ms. Barberan was wearing dark clothing; (b) it was a low-lit environment; and (c) construction signs and concrete jersey barriers at the corner of Meyerside and Tomken would have further obscured her.
[38] The Crown responds by referring to the evidence of Harjeet Brar, a civilian truck driver who saw Ms. Barberan on the road and tried to help her after the accident. Mr. Brar testified that he saw Ms. Barberan lying on the road. According to the Crown, Mr. Brar’s evidence proves that Ms. Barberan was “clear to see on the road after the collision”.
[39] But Mr. Brar came at the scene from a different perspective. When he first saw Ms. Barberan she was already lying on the road, and this was after another civilian stopped their vehicle – with its lights on – in front of Ms. Barberan. Unlike Mr. Brar, Mr. Ahmed was not approaching a civilian lying on the road. Ms. Barberan came from the side, out of the blue. And within a millisecond of his vehicle striking Ms. Barberan, she would have been behind him.
[40] Second, there was no reason for Mr. Ahmed to suspect he hit a pedestrian. The initial impact was on the lower passenger side of his vehicle, opposite to where he was. There was no reason for him to expect that someone might run into the road. The sidewalk appeared to be empty and there was no other foot traffic on that side of the street. If he wasn’t expecting to see someone run into the road and he may have been unable to see that person, the risk that he hit a pedestrian may have never occurred to him.
[41] All in all, therefore, the evidence fails to prove that Mr. Ahmed believed his vehicle might have hit a pedestrian.
b. When Mr. Ahmed stopped just after the accident, his focus was on the backside of the vehicle.
[42] Mr. Ahmed could only have seen his vehicle striking Ms. Barberan if she were in front of him. However, when he stopped his vehicle to check for damage, his focus was on the back passenger side. The surveillance video shows him exiting the driver’s side door, walking to the back passenger side, stopping at the back passenger side tire, and then returning to the driver’s side door where he re-enters the vehicle. He never approached, much less examined, the front of the vehicle.
[43] Consequently, he would not have seen or realized that there was an impact with someone near the front of the vehicle.
c) The Court can reasonably infer that Mr. Ahmed thought he struck a pylon, sign, jersey barrier, or some combination thereof.
[44] At 7:41:42 p.m. on December 8 (about one minute after the accident), Mr. Ahmed called Mr. Hussain to report that “something happened with [his] car”.
[45] It is undisputed there was then a discussion between the two men regarding the possibility of Mr. Ahmed having struck a “construction thingy”. What is in dispute is who raised the subject first. In direct examination at trial, Mr. Hussain testified that he raised the possibility. But in February 2021 – only a few months after the accident – Mr. Hussain told the police that Mr. Ahmed was the first to mention the “construction thingy”. As Mr. Hussain explained in his police interview:
He called me…he said Kam something happened with my car. I said what happened. And he said I think I roll off some kind of that construction thingy.
[emphasis added]
[46] At trial, Mr. Hussain agreed that he said this to the police and that his testimony contradicted this prior statement. However, he did not adopt his prior statement. Therefore, it cannot be used for its truth, i.e. to prove that Mr. Ahmed initiated the discussion about the “construction thingy”: R. v. Ranger, 2011 ONCA 311, at paras. 100-103.
[47] That said, once the inconsistency was exposed at trial, Mr. Hussain agreed that he was no longer sure that he initiated it: “I don’t know if he told me or I said that”, Mr. Hussain testified. At the least, that evidence leaves both scenarios open. Moreover, the version Mr. Hussain gave to the police – that Mr. Ahmed responded to Mr. Hussain’s question about what happened by saying “I think I roll off some kind of that construction thingy” – aligns with what Mr. Ahmed would have seen when he was turning from Meyerside onto Tomken, as demonstrated by the photographic evidence entered at trial.
[48] I acknowledge there were no pylons, signs, or jersey barriers exactly where the vehicle struck Ms. Barberan. Those objects were positioned in the area approaching the turn. But that distinction may not have been obvious to Mr. Ahmed. The turn happened quickly, and, as Mr. Hussain testified, it was common for pylons to blow onto the road. Given that Mr. Ahmed was familiar with the area, he may have thought that he hit a stray pylon.
[49] Ultimately, the evidence supports an inference that Mr. Ahmed thought his vehicle hit something related to the construction.
d) Mr. Ahmed’s conduct right after the accident contrasted with someone trying to avoid liability.
[50] Mr. Ahmed’s conduct immediately after the accident does not resemble someone trying to avoid detection, in several aspects.
[51] First, he stopped about 85 meters away from the collision, on the same street, where any witnesses to the accident could have followed Mr. Ahmed and noted his license plate.
[52] Second, he drew attention to himself by turning on his four-way flashers when he stopped.
[53] Third, Mr. Ahmed called his boss (Mr. Hussain) and reported that he thought he had hit something related to the construction. He accurately reported his location to Mr. Hussain. Mr. Hussain testified that he recommended to Mr. Ahmed to “check around the car”. Mr. Ahmed then checked for damage and reported back “everything is fine”. Mr. Ahmed’s post-collision inspection of just the vehicle’s backside corroborates the account he conveyed to Mr. Hussain, i.e. that something was stuck on the back right wheel, and he heard some sound on the rear, right side of the truck.
[54] That conduct, in my view, does not resemble someone trying to avoid detection.
[55] The Crown asserts that “had he looked back to the collision scene, he would have seen Mr. Brar’s truck and other vehicles stopped to check on Ms. Barberan. He would have seen that she was injured and needed assistance.” But the test is not what he should have done or what someone else would have done, but rather whether he subjectively perceived a risk that he hit someone and chose to ignore it. Thus if Mr. Ahmed never thought that he might have hit a pedestrian, he had no obligation to inquire further.
[56] In any case, that Crown has not proven that Mr. Ahmed failed to look back. A careful examination of the video evidence reveals that by the time any vehicle behind him stopped at the accident scene, Mr. Ahmed had already stopped, examined the back of his vehicle and was heading back inside it, meaning that even if he had looked back, there was nothing at the collision scene to suggest that he might have hit someone.
e) The after-the-fact internet searches are not probative of guilt
[57] Between 9:14:15 a.m. and 9:16:51 a.m. the next morning, Mr. Ahmed ran various internet searches about the accident. The Crown does not suggest those searches are post-offence conduct from which the court can infer a guilty mind. It concedes that Mr. Ahmed can only be criminally liable if his knowledge of the accident was contemporaneous with him leaving the scene. The morning-after call with Mr. Hussain is not probative of Mr. Ahmed’s mental state during the accident.
[58] Moreover, from the timing of the searches it appears they were prompted by Mr. Hussain’s call notifying him of the accident, rather than from any concerns Mr. Hussain had immediately after the accident. It is telling that Mr. Ahmed did not search for anything related to the accident on the night-of, despite his internet history ending at 10:12:44 p.m.— just under three hours after the accident. Between 9:59:38 p.m. and 10:12:44 p.m., Mr. Ahmed searched “December global holidays”, “esource”, “compatible iphone”, and “Icd compatible iphone”. These searches support the inference that Mr. Ahmed’s interest in the accident derived from what he learned the next morning, rather than from information he had in the minutes after the accident.
V. Conclusion
[59] Although Mr. Ahmed’s vehicle struck Ms. Barberan and caused her death, the evidence does not prove that he knew he might have hit a pedestrian. Mr. Ahmed is therefore acquitted.
Baltman J.
Released: November 27, 2023
[1] The Crown elicited Mr. Ahmed’s statement to Mr. Hussain during the examination-in-chief of Mr. Hussain. While maintaining that Mr. Ahmed’s statement contains both inculpatory and exculpatory parts, the Crown conceded that the entire statement – which is essentially a spontaneous utterance made contemporaneously with the incident - is admissible for its truth, and the accused is entitled to rely on the exculpatory portions to try and raise a reasonable doubt.
[2] Certain portions of these reasons are taken directly from Defence counsel’s written arguments.