R. v. Sahota, 2026 ONSC 2458

R. v. Sahota, 2026 ONSC 2458

COURT FILE NO.: CR-24-10000625

DATE: 20260424

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ARJUN SAHOTA

Christopher Ponesse, for the Crown

Sam Goldstein and Angelo Veneziano, for the accused, Arjun Sahota

HEARD: November 10, 12, 13, 14 and 28, 2025, and January 12, 2026

REASONS FOR JUDGMENT

VERMETTE J.

1The accused, Arjun Sahota, is charged with the following three offences that are alleged to have been committed in Toronto on October 20, 2022:

a. Dangerous operation causing bodily harm: operated a conveyance in a manner that, having regard to all of the circumstances, was dangerous to the public, and as a result, caused bodily harm to Rahim Allani, contrary to subsection 320.13(2) of the Criminal Code;

b. Failure to stop after accident resulting in bodily harm: while operating a conveyance and knowing, or being reckless as to whether, the conveyance had been involved in an accident with a person that resulted in bodily harm to another person, did, without reasonable excuse, fail to stop the conveyance and give their name and address or offer assistance, contrary to subsection 320.16(2) of the Criminal Code; and

c. Operation while impaired causing bodily harm: while his ability to operate a conveyance was impaired by alcohol, operated a conveyance and thereby caused bodily harm to Rahim Allani, contrary to subsection 320.14(2) of the Criminal Code.

2On April 20, 2026, I found Mr. Sahota not guilty on all counts with written reasons to follow. These are my reasons.

I. FACTUAL BACKGROUND

3The charges arise out of a collision that occurred in Toronto at approximately 10:40 p.m. on October 20, 2022. Mr. Sahota drove his car the wrong way down Adelaide Street West and collided with a pedestrian as he was crossing the street at the intersection of Adelaide Street West and York Street. Immediately after his car hit the pedestrian, Mr. Sahota turned left and drove the wrong way down York Street, heading south.

4Earlier in the evening, Mr. Sahota had attended an event at the Liberty Grand with a friend, Kuljot Sohal. They had obtained tickets for this event through Mr. Sohal’s girlfriend, Serena Tamaya-Heer, who was working at the event. Mr. Sohal and Mr. Sahota consumed alcohol at the event, the quantity of which is in dispute. Mr. Sohal and Mr. Sahota parted ways sometime before 10 p.m.

5At approximately 10:47 p.m., Mr. Sahota parked his car at the corner of Mercer Street and Blue Jays Way. Sometime after 11 p.m., Mr. Sohal and Ms. Tamaya-Heer were able to locate Mr. Sahota with the help of his girlfriend, and they picked him up. They left the area at approximately 11:30 p.m. Ms. Tamaya-Heer dropped off Mr. Sahota at his girlfriend’s house in Brampton at approximately 12:30 a.m.

6At approximately 1:03 a.m., Mr. Sahota had a telephone conversation with Officer Lysander Nogoy. At approximately 1:11 a.m., Mr. Sahota had a telephone conversation with Detective Constable (“DC”) Kenneth Perino.

7It is not disputed that Mr. Sahota was the person driving the vehicle that hit the pedestrian at the intersection of Adelaide Street West and York Street on October 20, 2022. However, Mr. Sahota’s position is that he has a seizure disorder and he had a seizure that evening. He argues that he did not have the required mens rea because he was in a postictal (i.e., post-seizure) amnestic state at the time of the collision.

8The only issue between the parties is the state of mind of Mr. Sahota at the time of the collision.

II. EVIDENCE AT TRIAL

9The evidence before me included the following:

a. The viva voce evidence of the following witnesses: Serena Tamaya-Heer, Olivia Willard, Kuljot Sohal, Arjun Sahota, and two police officers with the Toronto Police Service (“TPS”): DC Kenneth Perino and Officer Lysander Nogoy.

b. Progress Notes made by Dr. Ming Yang Gao on April 10, 2023, which were admitted, in part, under the common law exception set out by the Supreme Court of Canada in Ares v. Venner, [1970] S.C.R. 608.

c. The report and the viva voce evidence of an expert witness, Dr. Peter L. Carlen, called by the defence. The Crown did not adduce any expert evidence.

d. An Agreed Statement of Facts.

e. A number of exhibits, including WhatsApp messages exchanged between Ms. Tamaya-Heer and Mr. Sahota’s girlfriend on October 20, 2022; a number of videos of the relevant areas of Adelaide Street West and York Street at the relevant time; a number of videos of the area near Mercer Street and Blue Jays Way at the relevant time; pictures of the BMW event at the Liberty Grand on October 20, 2022; pictures of Mr. Sahota’s car taken by the police; pictures of injuries to Mr. Sahota’s arms and eye; Google maps; and telephone conversations (recorded on body-worn cameras and transcribed) between TPS officers and Mr. Sahota.

10The following is a summary of the evidence.

1. Agreed Statement of Facts

11The following facts were agreed upon by the parties.

12On October 20, 2022, at approximately 10:40 p.m., the victim, Rahim Allani, was walking towards the southeast corner of the intersection at York and Adelaide Streets, in Toronto.

13At approximately the same time, Mr. Sahota was operating his motor vehicle westbound on Adelaide Street approaching the intersection at York and Adelaide Streets. Adelaide Street West is a one-way street for eastbound traffic only.

14As Mr. Allani continued north on a green light across Adelaide Street, he was struck by Mr. Sahota’s vehicle and ultimately knocked to the ground.

15After striking Mr. Allani, Mr. Sahota’s vehicle turned immediately south down York Street from Adelaide Street. At this location, York Street is a one-way street for northbound traffic only.

16Footage taken from surveillance cameras on the south side of Adelaide Street West and the east side of York Street shows Mr. Sahota operating his late model BMW against traffic on Adelaide Street West before colliding with Mr. Allani and turning south on York Street.

17Mr. Allani was assisted by bystanders. He was ultimately taken to hospital by ambulance where he underwent surgery.

18At approximately 10:47 p.m., Mr. Sahota parked his vehicle on the southeast corner of Mercer Street at Blue Jays Way. The evidence includes footage taken from surveillance cameras in the vicinity of Mercer Street and Blue Jays Way.

19Mr. Sahota turned himself in to TPS at the Traffic Services Division on November 8, 2022.

20Ultimately, Mr. Allani suffered a fractured L1 vertebrae and a fractured left tibia that, along with surgery, required 32 staples as well as a plate and screws to repair. Mr. Allani also sustained a concussion and continued to experience dizziness eight days later at the time he was released from hospital. It was understood that multiple follow-up medical appointments as well as rehabilitation and physiotherapy would be required. The parties agree that the foregoing injuries satisfy the definition of “bodily harm” in section 2 of the Criminal Code.

2. Background and event at the Liberty Grand

a. Evidence of Serena Tamaya-Heer

21On October 20, 2022, Ms. Tamaya-Heer was one of the event organizers for a BMW event that was taking place at the Liberty Grand in Toronto. She was an experiential marketing intern at BMW at the time. The event included a vehicle launch, test drive experience, and a number of activities and games.

22Ms. Tamaya-Heer invited her boyfriend, Kuljot Sohal, to the event. Mr. Sohal invited his friend, Mr. Sahota. Ms. Tamaya-Heer secured two entries for them. Ms. Tamaya-Heer had only met Mr. Sahota once before, a week or two prior to the event on October 20, 2022. She also met Mr. Sahota’s girlfriend at that time and she added her on Instagram.

23Ms. Tamaya-Heer was working at the event. She was at the venue all day preparing for the event. The event started at around 5:30 p.m. The event took place in two ballrooms. One of the ballrooms contained two bars. It was an open-bar event. They served beer, wine and two types of hard-alcohol cocktails. There were also servers walking around with wine and welcome drinks at the beginning of the night. Some food was also passed around, but it was not a sit-down event. There were more than 500 people in attendance at the event.

24Ms. Tamaya-Heer saw Mr. Sohal and Mr. Sahota briefly just after they entered the venue around 5 or 5:30 p.m. She remembers them having a welcome drink, which was white wine or prosecco. She spotted them from across the room infrequently during the event. She did not mingle with them and she was not paying attention to them as she was working. The last time that she saw them together was around 9:30 p.m., from across the room. Nothing stood out to her about their behaviour.

25Most guests left the event at around 9 or 9:30 p.m., after the unveiling of two vehicles at 8:30 p.m. Ms. Tamaya-Heer was on site until approximately 10 p.m.

26Ms. Tamaya-Heer was planning to drive back to her home in Brampton after the event, and to drop off Mr. Sohal at his home in Etobicoke on the way. Ms. Tamaya-Heer was not supposed to drive Mr. Sahota home.

27After she was done working, Ms. Tamaya-Heer headed outside of the venue to see where Mr. Sohal was. She assumed that Mr. Sohal and Mr. Sahota would be outside, waiting for her. Outside, she saw Mr. Sohal standing there, alone. Mr. Sohal told her that Mr. Sahota had left.

28Ms. Tamaya-Heer stated that she could tell that Mr. Sohal was “buzzed” and that he had had a few drinks, but he was not incoherent. He did not smell of alcohol.

b. Evidence of Kuljot Sohal

29Mr. Sohal met Mr. Sahota in university in 2016 or 2017. At that time, they were just acquaintances, but they got closer after the COVID-19 pandemic given their shared interests. At that point, Mr. Sohal considered Mr. Sahota to be a friend. He talked to him frequently throughout the week. Mr. Sohal has not spoken to Mr. Sahota since October 21, 2022.

30On October 20, 2022, Mr. Sohal went to an event organized by BMW Canada at the Liberty Grand with Mr. Sahota. He knew that Mr. Sahota had an interest in BMW and he decided to take him out there for his birthday. Mr. Sohal was able to get tickets from his girlfriend, Ms. Tamaya-Heer, who was working for BMW Canada at that time.

31Approximately ten days before the event, Mr. Sohal went to Mr. Sahota’s birthday party. There, he met Mr. Sahota’s girlfriend. Mr. Sohal believes that it was the first time that he met her.

32On the day of the event, Mr. Sohal went to work. At approximately 4:30 p.m., he left work and took the GO transit to go to the Liberty Grand. He met Mr. Sahota at around 5 p.m. Mr. Sahota picked him up at the Exhibition GO station. They drove around for a bit as they had some time to kill, and then they went to the Liberty Grand. They went inside at around 5:30 p.m. Mr. Sohal left his backpack – which contained his keys and his laptop – in the trunk of Mr. Sahota’s car. Mr. Sahota was aware that Mr. Sohal was leaving it there. Mr. Sohal was going to get it at the end of the night. The following day was a workday.

33Mr. Sohal did not consume any alcohol prior to going to the event.

34Once inside, both Mr. Sohal and Mr. Sahota took one of the welcome drinks, which was champagne or wine. Mr. Sohal thinks that there were 100 or 150 people at the event. Mr. Sohal and Mr. Sahota talked, looked at the cars, and they did test drives outside. Mr. Sohal did not spend time with Ms. Tamaya-Heer as she was working. Mr. Sohal spent most of his time with Mr. Sahota.

35The event was an open-bar one. There were three or four bars. Hors-d’oeuvres were being served. Mr. Sohal had approximately five drinks that night, but he cannot give an exact number. He said that it was between four and seven. He drank a mixed assortment of drinks – cocktails, wine, and champagne. The drinks were spaced out during the evening. While he was experiencing the effects of the drinks, he felt fine and like he was in his senses. However, Mr. Sohal stated that he would not have driven that night.

36Mr. Sahota was also drinking that evening. Mr. Sahota took one of the welcome drinks. Mr. Sohal thinks that Mr. Sahota had approximately the same number of drinks as he did. When Mr. Sohal was going to the bar, Mr. Sahota was going to the bar with him and they were ordering two drinks, one for each of them. Mr. Sohal saw Mr. Sahota order drinks for himself. It was an assortment of drinks. He specifically recalls Mr. Sahota drinking the welcome drink and the blue signature cocktail. Mr. Sohal does not remember going to the bar without Mr. Sahota. Mr. Sohal said that there were times where glasses were discarded and then they got new glasses, but he does not remember the number of times they finished their drinks. On October 28, 2022, when he gave his statement to the police, Mr. Sohal said that he did not know how much alcohol Mr. Sahota had had during the evening in question. Mr. Sohal stated that he was nervous at the time he gave his police statement. Among other things, he was nervous that Mr. Sahota would try to pin this on him and say that Mr. Sohal was behind the wheel.

37Mr. Sohal did not pay too much attention to Mr. Sahota’s behaviour as the evening went on. Nothing was out of the ordinary, and they got along all evening.

38Mr. Sahota did not mention that he had any plans for later on that evening after the event.

39After the unveiling of two new cars, Mr. Sohal and Mr. Sahota spent some time looking at the cars. The event was dying down. Mr. Sohal asked Mr. Sahota to wait with him while Ms. Tamaya-Heer was finishing her work. That was at around 9:45 p.m. Mr. Sahota agreed.

40Mr. Sahota wanted to get some pictures with cars outside. Mr. Sahota and Mr. Sohal then went to the parking lot that was across the street. They got into Mr. Sahota’s car and went back to the Liberty Grand to take the pictures. The car ride from the parking lot to the Liberty Grand was about 15-30 seconds.

41Mr. Sohal said that he was not concerned about getting into the car with Mr. Sahota because they were only going a block over so he did not think much of it.

42They got out of Mr. Sahota’s car to take pictures. After the pictures were taken, they went back into the car. They went to a different spot close to the venue, about a block or two over, and they waited for Ms. Tamaya-Heer. At some point, Mr. Sohal needed to go relieve himself. He stepped out of the vehicle to do that. He did not go far, only 5 or 10 feet away from the vehicle. Mr. Sohal was gone for about 30-60 seconds. When he came back, he noticed that Mr. Sahota had left him there. Mr. Sohal was wondering why Mr. Sahota would do that, but he did not think much of it. He knew his ride was inside and he headed towards the Liberty Grand. Mr. Sohal had not noticed anything concerning or unusual about Mr. Sahota’s behaviour up until that point.

43Five or ten minutes later, Mr. Sohal met up with Ms. Tamaya-Heer.

c. Evidence of Arjun Sahota

44Arjun Sahota is 28 years old. He was born in 1997. He has been in a relationship with his girlfriend – who is now his common law partner – for 3.5 years. They have been living together since March 2024. Mr. Sahota currently lives with his father and his girlfriend.

45Mr. Sahota has a Bachelor of Commerce. He is pursuing a Master of Business Administration. He has been working for the Toronto Transit Commission for 3.5 years. He is now the Manager of Community and Stakeholder Relations within the CEO’s office. In 2022, he had a role that was junior to his current role within the CEO’s office. He was also Deputy Campaign Manager for a municipal election campaign in Vaughan.

46Mr. Sahota has been consuming alcohol since at least his university days. In the past, he has had experiences drinking to the point where he did not remember details for those episodes. Currently, Mr. Sahota drinks once or twice a month.

47Leading up to the incident on October 20, 2022, Mr. Sahota was typically waking up at 5:30 a.m. and going home around 10 p.m. He would go to sleep between 1:30 and 2 a.m. He had been doing this seven days a week since Labour Day, which is when he started working on the election campaign.

48On October 20, 2022, Mr. Sahota worked during the day. He came home at around 2 p.m. He had been invited to an event by his friend, Mr. Sohal, and Mr. Sahota was to pick him up at the Exhibition GO station at 5 p.m.

49Mr. Sahota picked up Mr. Sohal and they drove to the Liberty Grand. They arrived at the event between 5 and 5:15 p.m. When they entered the venue, they each took a welcome drink, which was a sparkling white wine. Mr. Sahota estimates that the glass contained four ounces.

50Mr. Sahota thinks that there were about 500 people at the event. There was a buffet-style reception in one of the rooms. In addition, there were servers walking around with hors-d’oeuvres and wine.

51Mr. Sahota spent 75% to 85% of his time at the event with Mr. Sohal. They got along during the course of the evening and they had a lot of fun. Mr. Sahota was happy to be there with Mr. Sohal. They participated in the test drive experience outside, as well as the virtual driving experience inside. They saw Ms. Tamaya-Heer a handful of times. She was working.

52Mr. Sahota testified that he had two alcoholic beverages during the evening: the welcome drink and a glass of white wine which he ordered at the bar at around 6:30 or 6:45 p.m. He went to the bar with Mr. Sohal. Mr. Sahota disagrees with Mr. Sohal’s evidence that he, Mr. Sahota, had between 4 and 7 drinks that night. Mr. Sahota did not keep track of Mr. Sohal’s alcohol consumption.

53After the unveiling of the new BMW vehicles, the lights turned on and people started leaving. Mr. Sohal had to wait for Ms. Tamaya-Heer to finish working. By 9:15 or 9:20 p.m., the room started to thin out. The last thing that Mr. Sahota remembers of the evening is asking Mr. Sohal to take a picture with him in front of a large mirror near the exit of the Liberty Grand. The picture was taken at 9:32 p.m.

3. Search for Mr. Sahota, collision and drive to Brampton

a. Evidence of Serena Tamaya-Heer

54After Ms. Tamaya-Heer met Mr. Sohal outside of the Liberty Grand, they walked to the car that Ms. Tamaya-Heer was using that day, which was her mother’s car. Once in the car, Mr. Sohal realized that he did not have his house keys and his work computer and that he had forgotten them in Mr. Sahota’s car. At around 10:15 or 10:20 p.m., Mr. Sohal started trying to contact Mr. Sahota to see where he was. Mr. Sahota was not answering his phone at first. After Mr. Sohal had made a number of unsuccessful calls, Ms. Tamaya-Heer sent a message to Mr. Sahota’s girlfriend on Instagram, and she also tried to call her.

55After trying to have Mr. Sahota pick up his phone for five or ten minutes, Mr. Sohal was able to get Mr. Sahota on the phone. Mr. Sahota’s speech was slurred, his voice sounded different, and he was not giving them an answer as to where he was. He was also repeatedly saying the F-word and sounded very aggressive. Ms. Tamaya-Heer said that Mr. Sahota sounded like he was drunk and she did not think that he should be driving. Each time they would get Mr. Sahota on the phone, he would be yelling or just hang up. The calls were very brief and Mr. Sahota did not give them any indication of where he was. The calls between Mr. Sohal and Mr. Sahota were on speakerphone. Mr. Sohal repeatedly called Mr. Sahota. Similarly, Ms. Tamaya-Heer repeatedly called Mr. Sahota’s girlfriend. There were a lot of calls.

56At some point, Ms. Tamaya-Heer got a hold of Mr. Sahota’s girlfriend. At 10:48 p.m., Mr. Sahota’s girlfriend sent to Ms. Tamaya-Heer a “location ping” for Mr. Sahota, which was around Blue Jays Way. It is only at that time, which was approximately 15 minutes after Ms. Tamaya-Heer and Mr. Sohal got into her car, that Ms. Tamaya-Heer started driving her car. She started heading towards Blue Jays Way. She was driving around slowly to see if they could locate Mr. Sahota. She kept doing that for a while. During that time, Mr. Sahota’s girlfriend sent a number of other location pings to Ms. Tamaya-Heer.

57Ms. Tamaya-Heer was part of a couple of three-way calls that included both Mr. Sahota and his girlfriend during which they tried to find out where Mr. Sahota was. Mr. Sahota’s girlfriend was very upset and frustrated with him. According to Ms. Tamaya-Heer, Mr. Sahota was not coherent or acknowledging anything that people were saying to him. The information he gave was unclear and most of his answers were irrelevant.

58Ms. Tamaya-Heer found the whole situation stressful and she was concerned that Mr. Sahota would be driving.

59At some point, during a call with Mr. Sahota, Ms. Tamaya-Heer heard him say: “Bisha” and “Get a table, get a table.” She said Mr. Sahota’s speech was very slurred when he said that. When Ms. Tamaya-Heer heard Mr. Sahota say “Bisha”, she drove to the Bisha Hotel, which is near Blue Jays Way. Mr. Sohal got out of the car to get Mr. Sahota, and Ms. Tamaya-Heer continued driving and parked further away near a stop sign.

60Approximately 10 or 15 minutes later, Mr. Sohal came back with Mr. Sahota. While she was waiting, Ms. Tamaya-Heer was on the phone with one of her friends. Mr. Sohal had his arms around Mr. Sahota and appeared to be dragging Mr. Sahota. There were then multiple attempts to get Mr. Sahota in the back of Ms. Tamaya-Heer’s car. Mr. Sahota did not want to get into the car and was fighting Mr. Sohal as Mr. Sohal was trying to get him into the car. Mr. Sahota could not stand up on his own and had to be shoved into the car. Once they finally got Mr. Sahota in the car on the backseat behind the driver’s seat, Mr. Sohal got back in the car in the front passenger seat. Mr. Sahota kept trying to get out of the car. He was yelling, taking off his seatbelt and fiddling with the locks. He did not want to be in the vehicle. Ms. Tamaya-Heer said that she smelled alcohol after Mr. Sahota got into the car. There was a strong smell of alcohol. Ms. Tamaya-Heer said that it smelt like alcohol and sweat. She did not smell urine or vomit or see urine or vomit on Mr. Sahota’s clothes.

61At 11:27 p.m., Mr. Sahota’s girlfriend sent her address to Ms. Tamaya-Heer. Ms. Tamaya-Heer believes that Mr. Sohal located Mr. Sahota around that time.

62Ms. Tamaya-Heer started driving. At some point, Mr. Sahota yelled: “That’s my car.” Ms. Tamaya-Heer then pulled up her car further ahead and parked because Mr. Sohal needed to get his house keys and his computer. Mr. Sohal got out of Ms. Tamaya-Heer’s car. Mr. Sahota did not want to stay in the car and was crying a little bit. He was trying to open the door, but was unable to do so because there was a child lock.

63Mr. Sohal came back after one or two minutes to get Mr. Sahota because he was not able to open the trunk of Mr. Sahota’s car. Mr. Sahota came back to Ms. Tamaya-Heer’s car one or two minutes before Mr. Sohal and he got into the car. He sat either in the middle of the backseat or directly behind the driver’s seat. After Mr. Sohal came back with his bag, Ms. Tamaya-Heer drove to Mr. Sohal’s home in Etobicoke. Her plan was to drop off Mr. Sahota after at his girlfriend’s house in Brampton. She had discussed this with Mr. Sahota’s girlfriend.

64The ride to Mr. Sohal’s home was approximately 30-40 minutes long. Ms. Tamaya-Heer stated that the ride from downtown towards the Gardiner was stressful and a bit chaotic. Mr. Sahota was very loud and very rowdy in the car. He did not want to stay in the car and was moving around a lot. At certain points, he cried and said that he missed his girlfriend, that he wanted to get out of the car and that he wanted to go to his girlfriend’s. Mr. Sahota was moving his arms and being very distracting for Ms. Tamaya-Heer. Both Ms. Tamaya-Heer and Mr. Sohal were telling Mr. Sahota to calm down, settle down and be less distracting. As she was getting on the Gardiner, Ms. Tamaya-Heer yelled at Mr. Sahota and told him that he had to sit properly and that she needed to concentrate on driving. Mr. Sahota then settled down. There were times when he was quietly crying, but he eventually passed out. He remained passed out during the remainder of the drive to Mr. Sohal’s house.

65At Mr. Sohal’s house, Ms. Tamaya-Heer called Mr. Sahota’s girlfriend to let her know that she was heading towards her place to drop off Mr. Sahota. The drive to her house was about 25 minutes. While he was passed out, Mr. Sahota did not have his seatbelt on and he was moving around everywhere in the back of the car. Ms. Tamaya-Heer could hear him falling over everywhere. She had a bag of plastic take-out containers on the floor of her car on the passenger side, and she could hear them cracking and breaking. When she got home, Ms. Tamaya-Heer saw that the containers were all smashed up and there were pieces everywhere.

66Mr. Sahota woke up approximately 10 or 15 minutes before arriving at his girlfriend’s house. He was crying a lot and trying to get out of the car again. He was playing with the door handle. He kept saying that he missed his girlfriend and that he wanted to go to her place. It was very slurred. Ms. Tamaya-Heer kept telling him that she was taking him to his girlfriend’s house. She was trying to get him to stay settled.

67Ms. Tamaya-Heer arrived at Mr. Sahota’s girlfriend’s home at around 12:30 a.m. She had called her earlier to let her know that she was 5 minutes away and she sent her a message once she got there. Ms. Tamaya-Heer saw Mr. Sahota’s girlfriend standing at the end of the driveway. Mr. Sahota’s girlfriend opened the door of the car on the right passenger side. Mr. Sahota started vomiting right away on the side of the car on the grass. Mr. Sahota was still sitting in the car when he vomited. He was bent over. Mr. Sahota’s girlfriend thanked Ms. Tamaya-Heer for dropping him off and she asked Ms. Tamaya-Heer to text her once she got home. Mr. Sahota’s girlfriend brought him inside through the side door. Mr. Sahota had his arm around her and she was supporting most of his weight as she was helping him to walk. Ms. Tamaya-Heer stayed in the vehicle. She waited until they went into the house in case Mr. Sahota’s girlfriend needed help to carry him in. Ms. Tamaya-Heer was stopped for no more than five minutes.

68Ms. Tamaya-Heer then went home. The drive home was 7-8 minutes. She said that the smell of alcohol lingered in her car after Mr. Sahota got out of the car. Ms. Tamaya-Heer was in bed by 1 a.m.

69Ms. Tamaya-Heer did not say in her police statement that Mr. Sahota smelled of alcohol on October 20, 2022. The first time she mentioned this was during her cross-examination at the preliminary inquiry on September 13, 2024. Ms. Tamaya-Heer stated that she had said multiple times that Mr. Sahota was “blackout drunk” and, to her, this encompasses smell, behaviour, slurred speech and a lot of different factors.

b. Evidence of Kuljot Sohal

70After Mr. Sohal met up with Ms. Tamaya-Heer outside of the Liberty Grand, they went to her car. At some point, Mr. Sohal recalled that he did not have his bag. He tried to reach out to Mr. Sahota, but he was not getting a response. When he did get a response, Mr. Sahota was just screaming “Fuck you” repeatedly in an aggressive way and hanging up the phone. That was approximately 15 to 20 minutes after Mr. Sohal and Mr. Sahota parted ways. Mr. Sohal was wondering what was happening and why Mr. Sahota was saying and doing that.

71Ms. Tamaya-Heer contacted Mr. Sahota’s girlfriend on Instagram. Mr. Sahota’s girlfriend had concerns about Mr. Sahota. She asked them to bring Mr. Sahota home and she sent them locations of Mr. Sahota. Based on the locations sent by Mr. Sahota’s girlfriend, Ms. Tamaya-Heer and Mr. Sohal then headed up downtown to look for Mr. Sahota and get Mr. Sohal’s bag.

72Mr. Sohal and Ms. Tamaya-Heer went around looking for Mr. Sahota. Mr. Sohal described this as a wild goose chase. They ultimately located Mr. Sahota at the intersection of Mercer Street and Blue Jays Way. Mr. Sohal was relieved to find Mr. Sahota. Mr. Sahota was sitting in his car in the driver’s seat and he had a stoic look or blank face. He was expressionless, his head was motionless, he had big eyes and he was staring forward. Mr. Sohal noticed the look on Mr. Sahota’s face while he was walking to his car. Mr. Sohal saw some damage to Mr. Sahota’s car: the front passenger side mirror was hanging off. He did not have any discussion with Mr. Sahota about that. Mr. Sohal did not notice anything else.

73Mr. Sohal tried to take Mr. Sahota out of his car to bring him to Ms. Tamaya-Heer’s car, but Mr. Sahota was resisting him and not being very responsive. Mr. Sohal concluded that Mr. Sahota had been drinking and that he was drunk. The interactions between Mr. Sohal and Mr. Sahota around the car, as well as some of their subsequent interactions, are captured on video.

74After Mr. Sohal got Mr. Sahota out of the car, Mr. Sohal tried to find the release for the trunk of Mr. Sahota’s car in order to get his bag, but he was not able to find it. At some point, Mr. Sahota ran away from Mr. Sohal. He went into the Bisha Hotel across the street. Mr. Sahota was acting in a belligerent manner. He went to the reception asking if he could get a room for the night. Mr. Sohal was wondering why Mr. Sahota was doing that. He thought that Mr. Sahota was not being rational. Mr. Sohal was trying to get him back outside to go to Ms. Tamaya-Heer’s car and go home. While in the entrance of the Bisha Hotel, they had a scuffle because Mr. Sahota was not listening to Mr. Sohal when Mr. Sohal was telling him to get to the car and go home. Mr. Sahota had started to get physical with Mr. Sohal. Mr. Sohal did not take kindly to that so he got physical with him. At that point, Mr. Sahota dropped to the floor. Mr. Sohal tried to pick him up, but Mr. Sahota was resisting and not listening. They pushed and hit each other. Mr. Sohal does not remember where he hit Mr. Sahota. Mr. Sahota’s overall attitude towards Mr. Sohal was that he wanted Mr. Sohal to leave him alone and he did not want to have anything to do with him. At some point, Mr. Sahota fell on the floor a second time after Mr. Sohal pushed him. Mr. Sahota and Mr. Sohal both headed out right after that.

75After they left the Bisha Hotel, Mr. Sahota was still resisting Mr. Sohal and Mr. Sohal was trying to reason with him. Eventually, Mr. Sohal was able to get Mr. Sahota to comply and to get him into Ms. Tamaya-Heer’s vehicle, in the back. It was difficult to get him into the car. Mr. Sohal then got into the front passenger seat of the car.

76At some point, Mr. Sohal realized that he still did not have his bag. They stopped close to Mr. Sahota’s car and Mr. Sohal got out of the car to make a second attempt to get his bag in the trunk of Mr. Sahota’s car. He was not able to open the trunk and went back to Ms. Tamaya-Heer’s car. Mr. Sahota then got out of Ms. Tamaya-Heer’s car to come and assist Mr. Sohal. Mr. Sahota was wobbly and, at first, he was not helping Mr. Sohal, but they eventually were successful in retrieving Mr. Sohal’s bag and they got back into Ms. Tamaya-Heer’s car. They then started making their way to the Gardiner to go home. In the car, Mr. Sohal went on his phone to catch up on the day. Mr. Sohal said that there may have been a ruckus in the back of the car, but he did not think too much of it as Mr. Sahota was finally in the car. Mr. Sahota said that he wanted his girlfriend. Eventually, Mr. Sahota calmed down and started dozing off. Ms. Tamaya-Heer dropped off Mr. Sohal at his home and he went to sleep.

77Mr. Sohal had gone drinking with Mr. Sahota previously and he had seen Mr. Sahota intoxicated before. Mr. Sohal testified that on those prior occasions, Mr. Sahota’s behaviour and movements were similar. However, there were some differences in that, on October 20, 2022, Mr. Sahota resisted him, he had a stoic look, and he was not making sense.

c. Evidence of Olivia Willard

78At approximately 10 p.m. on October 20, 2022, Olivia Willard was on the right side of Adelaide Street West walking towards York Street. There were no cars on Adelaide Street at that time. When she was about 50 metres from the crosswalk at York Street, she heard a loud racing sound. She turned around and saw a car speeding down Adelaide Street. She did not see the driver. The car briefly braked about 40 metres before the crosswalk. Ms. Willard heard the squealing of the brakes, and she saw the brake light come on. According to Ms. Willard, the car was going too fast to come to a complete stop. The car hit a pedestrian crossing the road at the crosswalk. The car then turned left on York Street on a red light and was weaving between cars. A fire truck and an ambulance subsequently came.

d. Evidence of DC Kenneth Perino

79DC Kenneth Perino has been an officer with TPS since August 2008. On October 20, 2022, he was assigned to Traffic Services.

80At 10:47 p.m., DC Perino responded to a call regarding a collision at the intersection of Adelaide Street West and York Street. He arrived at the scene at 10:56 p.m. Firefighters were already there and attending the injured pedestrian. DC Perino interviewed witnesses on scene. He departed the scene shortly after midnight.

81At 12:14 a.m., DC Perino arrived at the intersection of Mercer Street and Blue Jays Way. He had received information that the car involved in the collision was located at this intersection. The car had a damaged windshield on the driver’s side and a broken mirror on the driver’s side. DC Perino also noticed that a trail of dust had been disturbed on the hood of the car. Photos of Mr. Sahota’s car as found by TPS on Mercer Street were marked as exhibits.

82Two other police officers were there. They went into the car before DC Perino arrived on scene. DC Perino did not go into the vehicle and he did not search it. DC Perino received certain information from the officers who were present, including information regarding the registration of the licence plate and the registration of the vehicle identification number. The vehicle was registered to an address in North York, but the licence plate was registered to Mr. Sahota.

e. Evidence of Arjun Sahota

83After his memory of taking a picture at 9:32 p.m. at the Liberty Grand, Mr. Sahota has short memories which he described as blurs of time. He remembers waking up in his car, restrained with the seat belt. He had phlegm and fluid on his left chest area on his black sweater. He tried to get his seatbelt off, but it was like his hands were fat sausages in his brain. He was trying to figure out where he was, but he could not. He had no idea of what had happened and where he was. He was trying to get a hold of his senses. He heard the phone ringing and noises on his phone. He was trying to make out if it was a person and trying to respond. It was as though he was under water and he could not make out what was going on. It was a scary situation. This memory is for about 30-60 seconds.

84Mr. Sahota’s next memory is a foggy memory of walking outside. He could not make out exactly where he was and what was around him. It was still as though he was under water, but he could recognize that the scenery had changed. It went from tall buildings to residential homes. He was walking on the street. It felt like he had weights on his wrists and ankles. He was exceptionally thirsty. He was angry, frustrated and looking for water.

85Mr. Sahota said that he was not in Brampton that morning.

86Mr. Sahota had not taken any cannabis or drugs (prescription or otherwise) that day.

87Mr. Sahota has no memory of being on the phone with Mr. Sohal and Ms. Tamaya-Heer and saying “Fuck”. He has no memory of his interactions with Mr. Sohal in the area of Mercer Street and Blue Jays Way, including the physical altercation with Mr. Sohal in the Bisha Hotel.

88In relation to the videos showing Mr. Sahota on Mercer Street and at the Bisha Hotel, Mr. Sahota does not remember any of that. He stated that he looked quite unsteady and uncooperative. He said that he looked “quite not normal”.

89Mr. Sahota has no memory of being in the backseat of Ms. Tamaya-Heer’s vehicle. He has no memory of vomiting outside of Ms. Tamaya-Heer’s car.

4. Telephone conversations and other events on October 21, 2022

a. Evidence of Serena Tamaya-Heer

90Mr. Sahota’s girlfriend called Ms. Tamaya-Heer a couple of times after 1 a.m. on October 21, 2022. The first time, she wanted to know where Mr. Sahota’s car was located. Mr. Sahota’s girlfriend called Ms. Tamaya-Heer again 5 to 10 minutes later. During the second call, Mr. Sahota’s girlfriend told Ms. Tamaya-Heer that the police was looking for Mr. Sahota. A few minutes after the end of the second phone call, there was a third phone call during which Ms. Tamaya-Heer was able to hear a conversation in the background between Mr. Sahota and a police officer. The officer was saying that Mr. Sahota was being investigated for a hit-and-run and asking Mr. Sahota where he was located. Mr. Sahota kept repeating in a slurred speech: “Brampton Toronto”. The officer was asking Mr. Sahota whether he was in Brampton or in Toronto.

91At 2 a.m., Ms. Tamaya-Heer sent a message to Mr. Sahota’s girlfriend asking whether Mr. Sahota had gone to the police.

92Police officers came to Ms. Tamaya-Heer’s house at approximately 2:15 a.m. Ms. Tamaya-Heer told them what she knew and said that Mr. Sahota was “blackout drunk”.

93During her testimony at trial, Ms. Tamaya-Heer explained that she had concluded that Mr. Sahota was drunk immediately after hearing him speak on the phone at around 10:30 p.m. because she had heard him speak before. It was based on Mr. Sahota slurring, his tone and the fact that what Mr. Sahota was saying did not make any sense. Ms. Tamaya-Heer did not realize how bad it was until she saw Mr. Sahota in person. He smelled of alcohol when he got into her car, he slurred his speech, he could not stand up straight or walk properly, he was throwing up, he was passing in and out of consciousness in the car, and he was not making sense of anything.

94The following morning, Ms. Tamaya-Heer had a telephone conversation with Mr. Sahota and Mr. Sohal. She was on the phone with Mr. Sohal when Mr. Sahota called him, and she asked Mr. Sohal to “merge” her. Mr. Sahota asked what had happened the night before. He said that he thought that he had gotten beaten up because he was covered in bruises. Ms. Tamaya-Heer told him that the only thing that beat him up was the back of her car, and that he was rolling around in the back of her car with take-out containers. Mr. Sahota asked whether they knew where his car was. That was what he was concerned about. Mr. Sahota said “Shit happens” in response to finding out that the police was at Ms. Tamaya-Heer’s house and that he was involved in a hit-and-run. According to Ms. Tamaya-Heer, Mr. Sahota sounded coy and laughed the information off.

95Ms. Tamaya-Heer made a statement to the police at the police station approximately one week after the events, on October 28, 2022. She felt very nervous and anxious when she gave her statement.

b. Evidence of Kuljot Sohal

96On October 21, 2022, Mr. Sohal woke up to an array of text messages and calls about what had transpired the night before. He was shocked. Mr. Sohal called Mr. Sahota in the morning to figure out what had happened, and they had a conversation. Subsequent to that, there was a three-way call with Mr. Sahota and Ms. Tamaya-Heer. Mr. Sohal said that Mr. Sahota appeared to be on a fact-finding mission, and he did not really take accountability for what had happened. Mr. Sohal then came to the conclusion that he should not speak to Mr. Sahota. Mr. Sahota tried to contact him subsequently by phone and text messages and Mr. Sohal did not respond.

c. Evidence of Officer Lysander Nogoy

97Officer Lysander Nogoy has been an officer with TPS for 6 years. On October 20-21, 2022, he was assigned to Traffic Services. He was working from 5 p.m. to 4 a.m.

98During his shift, Officer Nogoy was asked to go to an address in Scarborough to do a door knock in connection with a hit-and-run accident in Toronto. Office Nogoy was told that this was the address of the registered owner of the vehicle that was involved in the accident, i.e., Arjun Sahota.

99Officer Nogoy and his partner, Police Constable Moros, arrived at the address in Scarborough at 12:56 a.m. on October 21, 2022. They knocked on the door. The person who opened the door identified himself as Mr. Sahota’s father. Officer Nogoy asked him whether Mr. Sahota was home. His father said that he was not. Officer Nogoy asked him if he could get Mr. Sahota’s phone number to get in contact with him. Mr. Sahota’s father provided a phone number to the officers.

100Officer Nogoy and his partner went back to their car and Officer Nogoy tried to call Mr. Sahota. There was no answer. They were in the car for approximately two minutes. Mr. Sahota’s father approached them and told them that he had Mr. Sahota on the phone.

101Officer Nogoy then spoke with Mr. Sahota on the phone. The conversation was recorded on Officer Nogoy’s body-worn camera. Officer Nogoy asked Mr. Sahota where he was and he said that they had a few questions for him. The conversation continued as follows:

MR. SAHOTA: Seriously, I haven’t driven all night. I literally [indiscernible] in Bradford for the whole night. I’ve – I’ve been sleeping. Is my dad okay to sleep in Toronto tonight?

OFFICER NOGOY: Is your dad okay to sleep in Toronto? Yeah, why – why wouldn’t he be?

MR. SAHOTA: Truthfully, I’m worried about my father tonight. I – I truthfully haven’t driven any car tonight for the last probably – probably eight hours tonight. I’m [indiscernible] in front of my – in front of my wife tonight.

OFFICER NOGOY: Okay. And where is that?

MR. SAHOTA: It’s in Bradford, Ontario. Bradford.

OFFICER NOGOY: Yeah, yeah. Bradford, Ontario. Yeah, what’s – but what’s the exact address?

MR. SAHOTA: Bradford, Ontario. I’m – I’m happy to text you the address if that’s okay.

OFFICER NOGOY: Yeah, can you text your father the address?

MR. SAHOTA: Yeah, I’ll [indiscernible] text my – my father the address.

102Officer Nogoy subsequently asked Mr. Sahota’s father to let them know if Mr. Sahota texted him the address. Officer Nogoy told Mr. Sahota’s father that they would be there for a few minutes. Mr. Sahota’s father said that he would let them know.

103Officer Nogoy and his partner remained at the address in Scarborough for about 15 minutes after speaking with Mr. Sahota, but no one provided them with the address where Mr. Sahota was.

104Officer Nogoy said that the plan was to find where Mr. Sahota was, have a conversation with him and ask him what happened with respect to the accident.

105After they left the address in Scarborough, Officer Nogoy and Police Constable Moros went to Ms. Tamaya-Heer’s address in Brampton. Officer Nogoy understood that it was the address of the registered owner of the vehicle who had picked up Mr. Sahota from downtown at the Bisha Hotel. There, Officer Nogoy spoke with Ms. Tamaya-Heer. She provided information to the officers. She gave them the address of Mr. Sahota’s girlfriend where she had dropped off Mr. Sahota.

106Officer Nogoy and Police Constable Moros subsequently attended that location. They arrived there at 2:33 a.m. They spoke with Mr. Sahota’s girlfriend. They asked her if Mr. Sahota was there and she said that he was not there. Officer Nogoy left a business card and he asked her to tell Mr. Sahota to contact the police.

d. Evidence of DC Kenneth Perino

107DC Perino was able to find Mr. Sahota’s phone number in TPS’s system. DC Perino called the number connected to Mr. Sahota. He began calling the number between 12:16 and 12:45 a.m. He made multiple phone calls to Mr. Sahota during that period, but he did not speak to him. The calls would go to voicemail and DC Perino would hang up and then try to call back shortly thereafter. DC Perino does not think that he left a voicemail message.

108After several attempts, at approximately 1:11 a.m., DC Perino was able to speak to a person on the line who identified himself as “Arjun”. That conversation was recorded on DC Perino’s body-worn camera. DC Perino advised Mr. Sahota that he was investigating a matter about a person who had been violently struck by a vehicle, and that he had reasonable grounds to believe that Mr. Sahota was involved in the collision. DC Perino repeatedly asked Mr. Sahota where he was. At first, Mr. Sahota said that he was in downtown Toronto and he asked DC Perino whether it was possible to send him his location by text. DC Perino told Mr. Sahota that he would not be able to receive a text from him. Despite this, Mr. Sahota repeatedly said that he would text his location to DC Perino and DC Perino reiterated a number of times that he could not do so. DC Perino asked Mr. Sahota again where he was, and Mr. Sahota then answered that he was in “Brampton Toronto”. He repeated this a few times. DC Perino pointed out that Brampton and Toronto were two different cities, but Mr. Sahota repeated that he was in Brampton Toronto. DC Perino stated a few times that the situation that Mr. Sahota was facing was grave and serious. At different times, DC Perino said that he needed to get a hold of Mr. Sahota and that Mr. Sahota needed to get a hold of him. He asked Mr. Sahota on what street he was. Mr. Sahota gave him an address, but DC Perino was unable to locate such an address.

109The call was disconnected twice and, each time, DC Perino called back. Ultimately, DC Perino asked Mr. Sahota whether he could come back downtown Toronto to meet with him. Mr. Sahota responded that he could do so. DC Perino gave an address to Mr. Sahota and asked him how he would come. Mr. Sahota said that he would take an Uber and would be there in about 25 minutes. Mr. Sahota also mentioned that he was a “very good friend” of Traffic Services and of a particular police officer.

110Before the end of the telephone conversation, DC Perino said that he would call Mr. Sahota back in five minutes to ensure that he was on his way. When DC Perino called back five minutes later, no contact was made with Mr. Sahota. DC Perino continued to try to contact Mr. Sahota during a 90-minute period, but was unsuccessful in doing so.

111DC Perino did not tell Mr. Sahota that he was under arrest. He was relying on the Highway Traffic Act, R.S.O. 1990, c. H.8 when he made his inquiries of Mr. Sahota, but he did not expressly refer to this statute during his conversation with Mr. Sahota.

e. Evidence of Arjun Sahota

112Mr. Sahota has no recollection of and no explanation for his conversations with DC Perino and Officer Nogoy. Mr. Sahota said that his tone of voice during these conversations was not his typical or regular tone of voice, and that he was not speaking coherently. Mr. Sahota stated that he could not speak to his motives as he did not remember the situation and the phone conversations. Mr. Sahota has no memory of where he was during the conversations, and he has no recollection of being with his girlfriend.

113Mr. Sahota has no memory of speaking to his father.

114Mr. Sahota’s first “full” memory was the next morning, on October 21, 2022. He woke up at approximately 6:50 a.m. at his friend’s place. It felt to him like every single muscle in his body was hurt. He could not even move a wrist or an ankle without feeling excruciating pain. After getting up, Mr. Sahota saw that he had a black eye, two scabs in his left eyebrow, bruises on his right inner arm below his biceps and closer to the shoulder, and similar bruises on the left side. In addition, the white of his left eye was red, as though a vein had popped. Pictures of Mr. Sahota’s arms and eye taken on October 21, 2022 at approximately 7 a.m. were marked as exhibits. I note that while Mr. Sahota testified about injuries to his left eye, the pictures appear to show injuries to his right eye. Mr. Sahota has no idea where the injuries on his inner arms came from.

115At around 7 a.m., Mr. Sahota spoke to Mr. Sohal. He does not remember if he called Mr. Sohal or if Mr. Sohal called him. He asked Mr. Sohal what had happened. Everything hurt, he was at a friend’s house and he did not know how he had made it there. He asked Mr. Sohal if he had any information. Mr. Sohal told him that they had separated at the Liberty Grand, that they reconnected later in the night for his backpack, and that Mr. Sahota was super drunk at that time. Mr. Sohal said that because Mr. Sahota was so drunk, Mr. Sohal had to handle him and rough him up a bit. Mr. Sahota told Mr. Sohal that he did not remember any of it. Mr. Sahota asked Mr. Sohal where his car was. Mr. Sohal said it was somewhere on Blue Jays Way.

116After this call, Mr. Sahota spoke with his father. His father told him that the police were looking for him the night before. Mr. Sahota asked his father if he had the contact information, and he does not believe that his father did.

117Mr. Sahota was trying to catch up with a series of text messages and missed calls on his phone. This was an exceptionally scary situation for him. His girlfriend had texted him to tell him that the police had gone to her house looking for him. She said that he had to get in touch with DC Perino. Mr. Sahota was provided with an e-mail address for DC Perino. After he was told that the police were looking for him, Mr. Sahota got in touch with a lawyer. Mr. Sahota subsequently sent an e-mail to DC Perino that morning at around 8 or 9 a.m. Afterwards, Mr. Sahota continued on with his day. He went about to find his car and his wallet, and he went to work. He had responsibilities with an election one week away. He did not go to the hospital. Mr. Sahota said that he did not know that he could go to the hospital without a health card or an i.d. and it was not an emergency to him. He said that he felt better after 4-5 days. He did not know what had happened. He said that in his family, they do not go to the hospital.

5. Mr. Sahota’s health issues and meetings with doctors

a. Evidence of Mr. Sahota

118Mr. Sahota’s first interaction with a medical professional regarding health issues after the incident was on November 12, 2022. Mr. Sahota’s girlfriend told him that on that day, in the midst of his sleep, he urinated and began to seize. The episode was 1.5 to 2 minutes in length. When he woke up, Mr. Sahota was very confused and he did not know where he was. He was agitated and irritated about that. It took him an hour or two to get his bearings back.

119On that day, Mr. Sahota went to the emergency room at Toronto Western Hospital. The doctor told Mr. Sahota that what he had experienced the prior night was likely a seizure. The doctor asked him to surrender his driver’s licence at that time, which Mr. Sahota did. Mr. Sahota was referred to the Toronto Western Neurology Clinic. At that time, there was a 6-month waiting period. Mr. Sahota followed up with the Neurology Clinic multiple times.

120On January 27, 2023, Mr. Sahota was having a conversation with his father. Mr. Sahota’s father told Mr. Sahota that, mid-conversation, Mr. Sahota stopped responding. Mr. Sahota was on his side on the couch, with open eyes, and his father noticed stiffness. Mr. Sahota was unresponsive. When his father grabbed him, Mr. Sahota pushed him and was frightened about who was touching him. This episode lasted about 45 minutes to an hour.

121On March 25, 2023, after working an overtime shift at the Toronto Transit Commission, Mr. Sahota came home. While his girlfriend was cooking, he fell on a table in the living room. Given that he had fallen on a hard surface, they went to the Vaughan Cortellucci Hospital. Mr. Sahota was seen by an emergency room doctor and a CT Scan was taken. Mr. Sahota was subsequently referred to the neurology clinic.

122On April 10, 2023, Mr. Sahota met with Dr. Ming Yang Gao at the neurology clinic in the afternoon. The meeting lasted about one hour. They went over Mr. Sahota’s full medical history. At that point, Mr. Sahota had not seen a family doctor for about 10 years. Dr. Gao asked for a chronology of the incidents and she did a physical exam that lasted about 10-15 minutes. Dr. Gao recommended to Mr. Sahota that he start taking medication known as Keppra. Mr. Sahota then started taking this medication. He takes two tablets (of 500 mg each) a day, one in the morning and one in the evening.

123Dr. Gao prepared “Progress Notes” regarding her neurology consultation with Mr. Sahota. She gave a copy of these notes to Mr. Sahota on April 10, 2023 before he left the hospital.

124Dr. Gao’s Progress Notes show the following, among other things:

a. Mr. Sahota told Dr. Gao that in October 2022, “he was driving, blacked out 30-40 seconds, threw up, vomited afterwards and and [sic] apparently had urinary incontinence”.

b. Exam was normal.

c. CT head imaging was normal.

d. The section of the notes entitled “Assessment and Plan” includes the following:

I discussed with him that we can either wait to get EEG/MRI first, or have a therapeutic trial with AED given the recurrent episodes. He elected to go with latter – I have started him on Keppra 500mg BID. Side effects including neuropsych and sedation discussed. He’s been reported to MOT and seizure safety precaution also discussed.

I will get MRI brain, routine and SD EEG to further evalaute [sic].

Follow up in 3-4 months

125Mr. Sahota underwent both an EEG (electroencephalogram) and a MRI (magnetic resonance imaging) in the following months.

126Mr. Sahota met with Dr. Julian Gojer on a number of occasions, twice in person and a number of times virtually. Dr. Gojer subsequently prepared a report dated February 6, 2024. His report refers to a number of letters. Dr. Gojer obtained these letters himself, after Mr. Sahota gave him the contact information of the persons who wrote the letters. Dr. Gojer told Mr. Sahota that he needed information from a number of people, particularly people who had interacted with Mr. Sahota during the evening of October 20, 2022 and people who had seen any of the episodes that had been reported to Mr. Sahota. Mr. Sahota read the letters that were provided to Dr. Gojer. According to Mr. Sahota, Dr. Gojer also asked him to speak to these people. Mr. Sahota and Dr. Gojer then came together with the intent to figure out what had happened that evening.

127In relation to the facts reported in Dr. Gojer’s report, Mr. Sahota stated that Dr. Gojer asked him what he knew on October 21, 2022 and what he knew the day on which they met. Mr. Sahota described the process as putting pieces of the puzzle together to establish a medical rationale. For instance, Mr. Sahota told Dr. Gojer that he was on Wellington Street when he woke up in his vehicle because Dr. Gojer allowed him to rely on police disclosure. Mr. Sahota also said that he reported to Dr. Gojer that he was locked out of his girlfriend’s house in her garage because that is what he was told. However, he agreed that no one was with him in the garage of his girlfriend’s house. He said that he put together the puzzle pieces based on information provided by his girlfriend to Dr. Gojer to the effect that the door had not opened. According to Mr. Sahota, he told Dr. Gojer that he “ought to have knocked on the door inside the garage” of his girlfriend’s house, based on what his girlfriend told him at the time of the report writing.

128With respect to the statement in Dr. Gojer’s report that the bruising on Mr. Sahota’s inner forearms “was due to the rubbing of inner forearms on the steering wheel during what he believes to be a possible seizure or because of a motor vehicle accident”, Mr. Sahota testified that it was his belief based on his conversations with medical professionals, and that he was just forwarding information that he had been told by an emergency room doctor. Mr. Sahota stated that he shared this information with Dr. Gojer based on his discussions with his medical professionals. Mr. Sahota agreed that the use of the word “forearms” was a mistake as the bruises were on his inner arms, not his inner forearms.

129According to Mr. Sahota, Dr. Gojer never asked him what he remembered. The question was: What do we think we know? Mr. Sahota said that he was responsible for sharing what he remembered, but he was not necessarily responsible for what Dr. Gojer recorded. Mr. Sahota stated that the intent of the report was to put the puzzle pieces together.

130Mr. Sahota met with Dr. Carlen once in October or November 2024. Contrary to Dr. Gojer, Dr. Carlen wanted to know what Mr. Sahota knew and remembered, irrespective of the police disclosure. Dr. Carlen asked Mr. Sahota what he remembered and only what he remembered. Mr. Sahota explained that some of the information included in Dr. Gojer’s report is not included in Dr. Carlen’s report because he did not have a direct memory of it. This is the same reason why this information was not mentioned during his testimony in court. Mr. Sahota said that he provided the truth to both Dr. Gojer and Dr. Carlen, and he told them everything he knew about what was going on

131Dr. Carlen asked Mr. Sahota to describe the incident in his words, and to describe the sensations that he perceived that evening and the episodes of memory that he still had. Mr. Sahota told Dr. Carlen about the memories that he had after the event at the Liberty Grand, which he also described during his testimony in court. Mr. Sahota also told Dr. Carlen about the bruising on both of his inner arms, the bruise on his left eye, and the fact that the white on his left eye was red.

132Mr. Sahota referred to a number of incidents that occurred prior to the October 20, 2022 incident. In 2017 or 2018, Mr. Sahota was a student at Ryerson University. Mr. Sahota was participating in a case competition with three other students. The four of them were working on their presentation in a lecture hall in the evening. Mr. Sahota was told that in the midst of a brainstorming session, his head had fallen back and he was unresponsive for about one minute. Mr. Sahota came back to reality about two minutes later. At that time, his friends asked him if he was okay. Mr. Sahota said that he was tired and had fallen asleep. He shared this incident with Dr. Gao, Dr. Gojer and Dr. Carlen.

6. Evidence of Dr. Peter L. Carlen

133Dr. Carlen was qualified as an expert in neurology, with a specialty in epilepsy and the effects of alcohol on seizure disorders and brain function.

134Dr. Carlen is an active neurological clinician at the University Health Network (Toronto Western Hospital).

135Dr. Carlen interviewed Mr. Sahota at the Toronto Western Hospital on November 5, 2024. Dr. Carlen stated that their meeting lasted probably an hour or an hour and a half. During the meeting, Dr. Carlen obtained Mr. Sahota’s history from him and he conducted a physical examination. The physical examination did not reveal anything abnormal.

136The section of the report entitled “History and Physical” contains the following with respect to the information provided by Mr. Sahota to Dr. Carlen regarding the events of October 20 and 21, 2022:

[…] He told me that on October 20th, 2022, at about 10:30 in the evening, he was driving south on Yonge Street, just north of Adelaide, and lost memory for later events. He was alone in the car. His next memory was sitting in his car (seat-belted) and he thought he had fallen asleep. He noted phlegm on his left anterior chest on a black sweater, and was feeling scared and confused. He did not know where he was. He then remembers a few phone calls and has vague memories around this time. When he answered one cell phone call, he listened and heard someone speaking, but could not identify who that was, and still does not remember who that was. He remembers repeatedly saying that he was in his car in downtown Toronto. He has no memory over the next few hours. He then remembers vaguely walking in the middle of a road with sidewalks on either side, quite confused as to where he was and in which direction he was going. In retrospect, this was on a road in Brampton, in a residential neighborhood, around 1 o’clock in the morning on October 21st, 2022. He was walking down the street and had left his car downtown, but he had no memory of this. He still has no memory of the accident. His next memory was awakening at about 6:30 in the morning on October 21st, 2022, in the living room of a friend’s house in Scarborough at Morningside and Finch. This was near where he lives in a house, approximately five minutes away by car. In retrospect, this friend had picked him up from an intersection in Brampton and took him to his friend’s house. At 6.30 a.m. when he awoke, he also woke up his friend and asked him why he was there. He was told that this friend had phoned Arjun, when Arjun was in Brampton and was not making sense. Arjun has no memory of this call. Then his friend, after 6.30 am, drove him to work […]. When he woke up, he noted bruises over his inner forearms and a black and red left eye with a headache on the left side of his head. This was a pulsating pain which lasted 5-6 hours, associated with photophobia. He was severely exhausted for two days. He had impaired ability to think or concentrate or perform intellectual tasks for the next 4 to 5 days.

On the morning of October 21, at about 7.30 a.m., while being driven to work, he called a friend with whom he had been interacting prior to this motor vehicle accident to retrieve his car. He had forgotten that he was alone in the vehicle. He was told by his friend that he had left an event alone in his car and another friend had left a backpack in his car. This friend had phoned him to retrieve his backpack and Arjun had responded being very confused, frustrated and angry. His friend picked him up at the corner of Mercer Street and Blue Jays Way, where he found Arjun sitting in the driver’s seat of a car. His friend noted that there was no external damage to the car and decided to leave the car there, street parked and drove Arjun to Brampton where his girlfriend lives. Arjun only has memory of walking down the street in Brampton. […]

137The report then refers to information provided by Mr. Sahota regarding an “episode” in 2017 or 2018 at Ryerson University, as well as three incidents after the accident – including two generalized seizures – that took place on November 12, 2022, January 27, 2023 and March 25, 2023. The report notes that after seeing Dr. Gao on April 10, 2023, Mr. Sahota started taking the medication Keppra. The report states that since starting Keppra, Mr. Sahota has had no generalized seizures, but a few episodes that occurred between July 2023 and October 2024 are described, based on information provided by Mr. Sahota.

138This section of the report concludes as follows:

This patient had a prolonged loss of memory associated with quite confused behavior and aberrant driving which caused a significant accident hitting a pedestrian on October 20, 2022. He has the history quite compatible with epilepsy and this could have been an epileptic event. He also might have been intoxicated with alcohol although he did not admit to heavy drinking prior to this event during this interview. He could have had a seizure with prolonged postictal confusion, which may have been triggered by alcohol withdrawal, or he could have had an episode of transient global amnesia which may or may not have been triggered by alcohol intoxication.

139In the next section of his report, Dr. Carlen reviews the documentation that he received, which is the police synopsis and the report of Dr. Julian A.C. Gojer, psychiatrist, dated February 6, 2024. Dr. Carlen did not receive any other medical documentation or reports. He also did not see any videos of Mr. Sahota from the evening in question. Dr. Carlen said that he just dealt with what he was sent.

140The last section of Dr. Carlen’s report is entitled “Conclusion and Opinion”. It reads as follows:

I conclude that Mr. Sahota has a seizure disorder which preceded his abnormal behavioural event on the night of Oct. 10, 2021 [sic] by a few years, although this seizure disorder was only diagnosed later in 2023. I think that he suffered a seizure on the night of Oct. 10, 2021 [sic], because when he woke up the next morning following the events of Oct. 10, 2021 [sic], for which he is mainly amnesic, he noted bruises over his inner forearms and a black and red left eye with a headache on the left side of his head. He was severely exhausted for two days. He had impaired ability to think or concentrate or perform intellectual tasks for the next 4 to 5 days. This evidence of trauma resulted from a convulsive seizure in my opinion, which I think could have preceded his bizarre behavior, although another possibility is that he suffered a concussion with post-traumatic amnesia. However, the bruises over both of his inner forearms suggest that this could have resulted from convulsive activity. Although excessive alcohol use could have played a role, there is not strong supporting evidence for significant intoxication, but if so, alcohol withdrawal could have precipitated a seizure state, but usually withdrawal seizures occur several hours after the cessation of alcohol intake, which is not the case here. On the other hand, alcohol intoxication can precipitate a prolonged amnestic state associated with sometimes pathological behavior, termed pathological alcohol intoxication.

There are several publications supporting a diagnosis of a prolonged postictal amnestic state associated with behavioural abnormalities: […].

In conclusion, on the night in question, he certainly had a prolonged confused and mainly amnestic state, associated with bizarre and pathological behavior, which, from my point of view, was triggered by a seizure. In my opinion, his seizure was related to his underlying seizure disorder. I agree, as an epileptologist, with the conclusion of Dr. Gojer, that he would not have had the actus reus for the offence.

141During his testimony, Dr. Carlen repeated his conclusion. He stated that his opinion was that Mr. Sahota had had a convulsive seizure followed by an unusual and prolonged postictal period with mainly amnesia, and some memory which was confused. Dr. Carlen noted that for 12 or 15 hours, Mr. Sahota “wasn’t all there” and “he didn’t remember stuff very well”.

142Dr. Carlen said that the information provided to him suggested that Mr. Sahota had had a convulsive seizure, as opposed to a non-convulsive seizure. In reaching this conclusion, he relied on the fact that Mr. Sahota had bruised himself, he had phlegm on his sweater on his left interior chest, he felt scared and confused, he did not know where he was, and he had a black and red left eye and a headache on the left side of his head. Dr. Carlen was not provided with pictures of the bruises or Mr. Sahota’s eye, and he acknowledged that he did not know what the injury to the eye was. Dr. Carlen stated that he had assumed that the physical injury sustained was most likely due to a seizure, but he had no proof. He further stated that Mr. Shaota had told him that his bruises were on his inner forearms, so he had presumed that Mr. Sahota was jerking inward. Dr. Carlen agreed that during a convulsive seizure, a person loses motor control. He said that if a person was driving while having a convulsive seizure, the person would crash the car.

143Dr. Carlen stated that if the diagnosis of postictal – which means post-seizure – amnestic state was correct, then Mr. Sahota would not remember anything because he was in the process of either having a seizure or being postictal, and his brain would not have been functioning right. Dr. Carlen acknowledged that this case involved an unusually prolonged postictal state with amnesia and various activities, which was not very common. He agreed that, sometimes, a person in a postictal state can look like they are intoxicated.

144Dr. Carlen gave the following evidence:

Q. So if your brain, when you say brain wasn’t functioning right, would your brain not be able to function in the sense of you being aware of what you’re doing but yet be operating your motor skills?

A. Yeah, that – that – that is the – the curious but well documented thing that there are cases, and I have cases in my practice where patients after seizure go and do complicated things, kind of in a trance, and they don’t remember what they did. And they probably are not aware of what they were doing when they were doing it, but they were still able to walk and talk and do stuff but not fully with it.

Q. So…

A. I mean – I mean if I’m right, he went up a one-way street the wrong way, that was clear it was not the correct decision to make at the time, so his brain was not functioning fully.

Q. But just going into the motor skills, what a person can be able to do when [they’re] in this ictal, or postictal state. Could someone be driving for about 3 kilometres in the city – downtown in the City of Toronto and not be aware of what they’re doing?

A. Yes.

Q. And could…

A. They – they’d be aware enough normally not to get into accidents but they – they still may not remember anything. So how much they were – they were aware at the time, it’s – it’s – we don’t know. But my impression is with other clinical things that I’ve seen, they can drive and look like – you wouldn’t know superficially they were in the midst of the seizure but they can have what’s called a non-convulsive seizure, where you don’t see jerking and shaking but their – their brain is still in a partial seizure state and is not functioning fully.

Q. Okay. And just in terms of the – the motor skills that a person can do in this state, you had said they can drive for 3 kilometers. How about having conversations with people, for example over the phone, would a person be able to do that?

A. Yeah.

Q. Okay. And would a person be able to get into almost like a fight with someone and be pushed down on the ground and would that be covered by the motor skills?

A. Maybe. We – we – we never really know because we’re not recording from the brain. And most of the time we’re not – physicians aren’t interviewing the patient when they’re in this state.

Q. Okay.

A. So it’s – it’s – it’s – it’s a bit of a grey area, but I do believe, based on clinical experience and what’s in the literature, that this is quite plausible.

145Dr. Carlen also gave the following evidence as to whether Mr. Sahota’s behaviour could be explained by intoxication:

Q. Yeah, okay. Fair enough. Still on the topic of – of intoxication, in this case why is it that you believe that it wasn’t so much that he was intoxicated, the behaviour could be explained by intoxication but rather by the epileptic seizure or post-epileptic seizure, you call it an ictal state or postictal state?

A. Well he had those bruises on his inner arms. He had – he was able to do complex maneuvers like driving a car, even though it went the wrong way. And that – what – if you’re severely intoxicated, it’s a lot harder to do that, your car may weave a bit. I can’t separate them out completely accurately but I think that’s – I think he was more in a confused brain state from a seizure as opposed to being intoxicated. The – the information he told me and then Dr. Gojer’s report, indicate he didn’t drink a huge amount but I gather his friends thought that he drank a lot – a lot of alcohol so I can’t – I don’t know what’s true. And no one measured blood alcohol level so we don’t have a – I don’t know what to say although in – with withdrawal seizures, by the time the patient’s going into withdrawal and have seizures usually their blood alcohol level is zero or very low.

Q. […] why do you think it was – the behaviour could be ascribed as a result of the ictal or postictal seizure rather than alcohol induced?

A. Because he had evidence of bruises, he was doing complex behaviour without any memory and that’s less likely to be due to severe intoxication. Although I mentioned another differential in the diagnosis of pathological alcohol intoxication which is a rare disorder where people drink and then they forget what’s going on for another 12 hours or more and they do some things that are quite bad for themselves or for others. That’s less likely his case because this man has a definite history of seizures.

Q. So the bruising, the fact he did complex behaviour, and the history of seizures.

A. Yeah.

Q. Anything else?

A. Well, there’s no question he has epilepsy from the history, there’s – I – I don’t think he has an alcohol problem in general; I don’t think he’s an alcoholic from the history that I obtained. And the bizarre behaviour after what probably was a seizure fits in with the most likely diagnosis of a postictal prolonged amnestic state.

146During his cross-examination, Dr. Carlen agreed that many of the symptoms reported by Mr. Sahota – such as confusion, amnesia, exhaustion and impaired ability to concentrate in the following days – can be associated with a heavy night of drinking, as well as with a head injury or a seizure. He also agreed that his opinion was only as good as the veracity of the information that had been provided to him. He described this as: “garbage in, garbage out”.

147Dr. Carlen gave the following evidence regarding what a person in a postictal state can do:

Q. If a person is driving and they’re in a postictal state, are they going to be able to react to changing stimuli?

A. It depends, different strokes for different folks.

Q. Are they going to be able to adapt to a – a changing situation?

A. Up to a point, yes.

Q. What do you mean?

A. The situation can change and they can adapt, I meant there’s – there’s varying degrees of responsiveness to the environment. And again, we don’t have good scientific evidence of what’s going on because you don’t normally have EEGs or someone observing them during these type [sic] of states. But they’re described in literature quite a bit and I had patients who described these type [sic] of states to me.

Q. M’hm. Now someone who’s in a postictal state, are they going to be relatively – well, would they be able to carry – carry on a conversation and be responsive in that conversation?

A. I would assume it may be slightly – it may be impaired or not. It depends on the conversation. So I, you know, I – I can’t really answer that specifically. So it’s not impossible, put it that way.

Q. Okay. But how about the ability to deceive? Do you think someone in a postictal state would have the ability to deceive another person?

A. Possibly, I don’t – I can’t really answer that.

Q. Okay. Fair enough.

A. I would think, could be.

148Dr. Carlen testified that patients who try to “fake” an epileptic seizure are “too close to the book” when they describe their symptoms. Dr. Carlen did not have the impression that Mr. Sahota was trying to “fake it” when he spoke to him.

III. POSITIONS OF THE PARTIES

1. Position of Mr. Sahota

149The defence’s position is that Mr. Sahota should be found not guilty. The defence does not dispute the actus reus of the offences and accepts the evidence with respect to Mr. Sahota’s driving and the bodily harm. The sole issue is the mens rea.

150With respect to the offence of operation while impaired, the defence submits that the Crown has not proved its case beyond a reasonable doubt regarding the issue of impairment. The defence states that there is a lack of evidence of impairment and that the evidence of a seizure raises a reasonable doubt on the issue of impairment. With respect to the other offences, the defence argues that Mr. Sahota’s evidence raises a reasonable doubt as to whether he had the necessary mens rea.

151The defence submits that both Mr. Sahota and Dr. Carlen were credible and that their evidence should be accepted. The defence points out that Dr. Carlen’s evidence is uncontradicted. The defence argues that something must have happened after Mr. Sahota left the Liberty Grand because, based on Mr. Sohal’s evidence, Mr. Sahota’s behaviour was different at the Liberty Grand than it was on Mercer Street. The defence also notes that Mr. Sohal described Mr. Sahota as having a blank stare on Mercer Street.

152The defence argues that Mr. Sohal’s evidence regarding how much alcohol Mr. Sahota consumed should not be accepted. The defence notes that Mr. Sohal said in his statement to the police that he did not know how many drinks Mr. Sahota had. The defence also states that Mr. Sohal’s evidence on this point is based on assumptions.

153The defence submits that Ms. Tamaya-Heer’s evidence should not be accepted with respect to Mr. Sahota smelling of alcohol and the telephone conversation with Mr. Sahota and Mr. Sohal in the morning of October 21, 2022. The defence points out that: (a) Ms. Tamaya-Heer mentioned the smell of alcohol for the first time during her cross-examination at the preliminary inquiry, and she added new details at trial; and (b) Ms. Tamaya-Heer told the police that she did not remember the details of the conversation on October 21, 2022. The defence argues that Ms. Tamaya-Heer constantly exaggerated during her testimony.

154The defence states that the only credible evidence of alcohol consumption is the evidence of Mr. Sahota that he only drank two glasses of wine early in the evening. There is no blood alcohol level reading in this case. According to the defence, the Crown has not proved its case beyond a reasonable doubt regarding impairment.

155With respect to the other charges, the defence submits that it does not have to prove that Mr. Sahota had an epileptic seizure. Rather, the defence argues that there is a reasonable doubt that Mr. Sahota had a seizure at the relevant time which was followed by an amnestic state.

156Regarding the discrepancies between Mr. Sahota’s self-reporting in Dr. Carlen’s report and his self-reporting in Dr. Gojer’s report, the defence states that Mr. Sahota explained the differences in the methodologies adopted by the two doctors. The defence also points out that Dr. Carlen is an expert in seizures and Dr. Gojer is not, and Dr. Gojer’s report is not in evidence for the truth of its contents. The defence argues that the Court should believe what Mr. Sahota told Dr. Carlen and accept Dr. Carlen’s uncontradicted evidence.

2. Position of the Crown

157The Crown’s position is that there is not a sufficient basis in this case to find on a balance of probabilities that Mr. Sahota has epilepsy and that he suffered a seizure on October 20, 2022. The Crown’s position is that Mr. Sahota had the requisite mens rea for the offences charged and that he is guilty of the offences before the Court.

158The Crown submits that Mr. Sahota was impaired by alcohol on October 20, 2022, at least to a degree. Even if the Court has a reasonable doubt as to whether Mr. Sahota was impaired, the Crown’s position is that Mr. Sahota is guilty of the other two offences before the Court.

159The Crown states that while there were some inconsistencies in the evidence of Ms. Tamaya-Heer, her evidence was truthful and credible, and she provided innocent explanations for the discrepancies. The Crown submits that based on Ms. Tamaya-Heer’s evidence, Mr. Sahota displayed indicia of someone impaired by alcohol.

160The Crown argues that Mr. Sohal’s evidence regarding Mr. Sahota’s consumption of alcohol should be accepted, as well as Mr. Sohal’s judgment that Mr. Sahota was drunk when he saw him on Mercer Street. The Crown refers to the fight between Mr. Sohal and Mr. Sahota and states that the bruises on Mr. Sahota’s arms were caused by Mr. Sohal. The Crown also points out that Mr. Sahota hit the left side of his face when he left the Bisha Hotel.

161Relying on the video evidence of the collision and the evidence of Ms. Willard, the Crown submits that Mr. Sahota had conscious control of his vehicle and was responsive to stimuli, but he was driving too fast. The Crown points out that Mr. Sahota had no difficulty stopping and driving around another car on Adelaide Street West prior to the collision, he actively slowed down just before the collision, and he had no difficulty turning left just after the collision. The Crown also points out that Mr. Sahota was able to drive from the location of the collision to the corner of Mercer Street and Blue Jays Way without sustaining any other damage to his vehicle, despite that he had to go through a few major intersections on the way.

162The Crown argues that Dr. Carlen’s opinion that Mr. Sahota had epilepsy and that he had a seizure on the night in question should not be accepted. The Crown states that the assumptions underpinning Dr. Carlen’s diagnosis are based on inconsistent information, and that the information provided regarding Mr. Sahota’s amnestic state is incorrect. The Crown further states that the information regarding trauma suffered by Mr. Sahota – including the bruises on Mr. Sahota’s arms – is also inconsistent or incorrect. The Crown notes that a lot of the symptoms reported by Dr. Carlen are only based on Mr. Sahota’s self-reporting – in a single meeting – and that the video evidence did not factor into Dr. Carlen’s diagnosis because this evidence was not provided to him.

163The Crown points out that Dr. Carlen concluded that Mr. Sahota had a convulsive seizure because of the bruises on his arm, but Dr. Carlen was not provided with information that could have explained the bruises on Mr. Sahota's arms and other symptoms, such as his headache and the injury to his left eye.

164With respect to Dr. Carlen’s evidence that an epileptic seizure would explain Mr. Sahota’s lack of memory, the Crown argues that there is no memory lacking and that Mr. Sahota remembers much more than he is saying. The Crown submits that Mr. Sahota provided a very different story to Dr. Gojer than to Dr. Carlen. The Crown points out that some of the information in Dr. Gojer’s report could only have been provided by Mr. Sahota, and that Mr. Sahota’s evidence regarding the methodology allegedly adopted by Dr. Gojer is nonsensical. The Crown also points out that Dr. Carlen’s report refers to a memory of Mr. Sahota at 10:30 p.m. while driving on Yonge Street, which is contrary to Mr. Sahota’s evidence at trial that he lost memory at the Liberty Grand at approximately 9:30 p.m.

165The Crown submits that the evidence provided by Mr. Sahota regarding epilepsy was all hearsay evidence. The Crown points out that this was all information that he was told, and that the people who witnessed the alleged epileptic seizures were not called as witnesses. The Crown also points out that the only incident that pre-dates the collision about which Mr. Sahota gave evidence occurred in 2017, and it appears to be someone falling asleep. All the other incidents postdate October 20, 2022.

166The Crown argues that there is overlap between the symptoms of intoxication and the symptoms of epilepsy, and that many of the things reported by Mr. Sahota are consistent with a night of drinking. This was recognized by Dr. Carlen.

167The Crown notes that Dr. Carlen stated that the postictal state and the memory loss were unusually long in this case. The Crown argues that the symptoms of a postictal state are not present in the telephone conversations between Mr. Sahota and the two TPS officers, and that there was no confusion, disorientation or decreased responsiveness. According to the Crown, there was an attempt to provide false information.

168The Crown submits that Mr. Sahota’s evidence should be disbelieved because it was tailored to fit with the story and it evolved as time passed by.

169The Crown states that Mr. Sahota’s evidence, at best, was inconsistent. His inconsistent evidence should be seen as incredible. The Crown points out that Mr. Sahota tried to blame others for the inconsistencies in his evidence, and that he withheld information from Dr. Gojer and Dr. Carlen. The Crown submits that Mr. Sahota’s evidence in examination-in-chief was rehearsed, and his evidence in cross-examination was evasive. Further, his alleged blanket loss of memory allowed him not to answer any difficult question.

170The Crown states that Mr. Sahota’s conversations with the two TPS officers are evidence of consciousness of guilt. The Crown argues that Mr. Sahota lied, attempted to fabricate an alibi, intended to deceive the police and did not want to be located. The Crown points out that Mr. Sahota told Officer Nogoy that he had not driven all night before anyone mentioned anything about his vehicle or an accident.

171The Crown argues that Mr. Sahota’s behaviour the day after the collision is not consistent with someone who had a major medical incident or who is concerned. According to the Crown, Mr. Sahota’s conduct was not the conduct of an undiagnosed epileptic person.

IV. DISCUSSION

1. General principles

172Mr. Sahota is presumed to be innocent, unless and until the Crown has proved his guilt beyond a reasonable doubt. To prove Mr. Sahota’s guilt of the offences with which he was charged, the Crown must prove each and every essential element of the offences beyond a reasonable doubt. A reasonable doubt is a doubt based on reason and common sense, a doubt that logically arises from the evidence or the absence of evidence.

173Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. It would not be safe to convict a person of a criminal offence with only that degree of confidence. In order to find Mr. Sahota guilty of an offence, I have to be sure, based on all the evidence before the Court, that he committed the offence. See R. v. Nyznik, 2017 ONSC 4392 at paras. 6-7.

174In this case, the Court’s assessment of the evidence is to be guided by the following principles:

a. If the Court believes the evidence presented by the defence, the Court must acquit.

b. If the Court does not believe the evidence presented by the defence but is left in reasonable doubt by it, the Court must acquit.

c. If the Court does not know who to believe, the Court must acquit.

d. Even if the Court is not left in doubt by the evidence presented by the defence, the Court must ask itself whether, on the basis of the evidence which the Court accepts, the Court is convinced beyond a reasonable doubt by that evidence of the guilt of Mr. Sahota.

See R. v. W.(D.), [1991] 1 S.C.R. 742 at 758 (“W.(D.)”) and R. v. Kruk, 2024 SCC 7 at para. 62.

175The paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused. A verdict of guilt must not be based on a choice between the defence evidence and the Crown’s evidence. See R. v. C.L.Y., 2008 SCC 2 at paras. 6, 8 and R. v. Vuradin, 2013 SCC 38 at para. 21.

176The credibility and reliability of the witnesses are in issue in this case. Credibility and reliability are different. Credibility has to do with a witness’ veracity, truthfulness, sincerity and honesty. Reliability has to do with the accuracy of the witness’ testimony, i.e., the witness’ ability to observe, recall and recount events accurately. While a witness who is not credible on an issue cannot give reliable evidence on the same point, a credible witness may give unreliable evidence. See R. v. G.F., 2021 SCC 20 at para. 82 and R. v. H.C., 2009 ONCA 56 at para. 41.

2. Offences

a. Dangerous operation causing bodily harm

177Pursuant to subsection 320.13(2) of the Criminal Code, everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

178The actus reus of this offence is operating a conveyance in a manner dangerous to the public resulting in bodily harm to another person. In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all the circumstances, including the nature, condition and use of the place at which the conveyance is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which the accused was involved. See R. v. Roy, 2012 SCC 26 at paras. 2, 33-34 (“Roy”). In this case, it is not disputed that the actus reus has been established beyond a reasonable doubt.

179The mens rea is a marked departure from the standard of care that a reasonable person would have exercised in the same circumstances. This issue should be approached by asking two questions: (1) 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; and (2) 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. This is a modified objective standard. The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk. See Roy at paras. 1, 36, 38.

180Generally, 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. See Roy at para. 40.

181A modified objective standard was adopted by the Supreme Court of Canada so as to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk in the accused’s conduct or could and would have done something to avoid creating the danger. See R. v. Beatty, 2008 SCC 5 at para. 37 (“Beatty”) and R. v. Hundal, [1993] 1 S.C.R. 867 at 886 (“Hundal”). The following example given in Hundal at 887 was repeated in Beatty at para. 37:

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 a totally unexpected heart attack, epileptic seizure or detached retina. As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving. Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established. 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.

182Thus, if an explanation is offered by the accused – such as a sudden and unexpected onset of illness – the trier of fact, in order to convict, must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. See Hundal at 889. This was explained as follows in Beatty at para. 40:

[…] Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age, experience and education are not relevant. The standard against which the conduct must be measured is always the same – it is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the accused found himself in when the events occurred in order to assess the reasonableness of the conduct. To reiterate the example used above, the reasonable person becomes the one who “without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina” or becomes the one who “in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly” causes him to drive in a manner that is dangerous to the public. By so placing the reasonable person, the test is not personalized and the standard remains that of a reasonably prudent driver, but it is appropriately contextualized. [Emphasis in the original.]

183I note that in separate concurring reasons in Hundal, McLachlin J. (as she then was), with Lamer C.J. concurring, criticized the modified objective test adopted by the majority with respect to the mens rea and expressed the view that the onset of a “disease or disability” makes the act of losing control of the motor vehicle involuntary, with the result that there is no actus reus. See Hundal at 875-876.

b. Failure to stop after accident resulting in bodily harm

184Pursuant to subsections 320.16(1) and 320.16(2) of the Criminal Code, 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 that resulted in bodily harm to another person, and who fails, without reasonable excuse, to stop the conveyance, give their name and address and offer assistance.

185It is not disputed that Mr. Sahota operated a conveyance and that the conveyance was involved in an accident with a person that resulted in bodily harm. It is also not disputed that Mr. Sahota failed to stop the conveyance, give his name and address and offer assistance.

186The mental elements of this offence are that: (a) the accused knew or was reckless as to whether the conveyance was involved in an accident with a person that resulted in bodily harm to another person; and (b) the accused intended to drive away and fail to meet any of the three requirements to stop, give their name and address, and offer assistance. See R. v. Coates, 2022 ONSC 6218 at paras. 298-299 (“Coates”) and R. v. Janzen, 2018 ONSC 2914 at paras. 99-100.

c. Operation while impaired causing bodily harm

187Pursuant to subsections 320.14(1)(a) and 320.14(2) of the Criminal Code, everyone commits an offence who operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol and, while operating the conveyance, causes bodily harm to another person.

188To establish Mr. Sahota’s guilt of this offence, the Crown must prove each of the following essential elements beyond a reasonable doubt:

a. Mr. Sahota operated a conveyance.

b. Mr. Sahota intended to operate a conveyance after consuming alcohol.

c. Mr. Sahota’s ability to operate a conveyance was impaired by alcohol; and

d. Mr. Sahota caused bodily harm while operating the conveyance.

See R. v. Di Luciano, 2023 ONSC 6555 at para. 14 and R. v. Kelly, 2025 ONCA 92 at para. 33.

189In this case, it is not disputed that Mr. Sahota was operating a conveyance and that, while operating the conveyance, he caused bodily harm to another person.

190The essential element of impairment is proven if the evidence establishes any degree of impairment ranging from slight to great. See R. v. Stennett, 2021 ONCA 528 at para. 111.

191The Criminal Code does not prescribe any special test for determining impairment. Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. See R. v. Stellato (1993), 12 O.R. (3d) 90; aff’d by 1994 94 (SCC), [1994] 2 S.C.R. 478.

3. Automatism

192At common law, automatism is a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action. Automatism is reflected in involuntary movements that may be associated with heart attacks, seizures or external shock, or conditions such as sleepwalking or delirium, where the body moves but there is no link between mind and body. See R. v. Stone, [1999] 2 S.C.R. 290 at para. 156. (“Stone”) and R. v. Brown, 2022 SCC 18 at paras. 2, 47 (“Brown”).

193The defence of automatism amounts to a denial of the voluntariness component of the actus reus of the offence. Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonable doubt. This is distinguished from moral involuntariness, which describes scenarios where the accused retains conscious control over their body but has no realistic choice but to commit a guilty act. See Stone at para. 170, Brown at paras. 46-47 and R. v. Parks, [1992] 2 S.C.R. 871 at 896.

194In Brown, the Supreme Court of Canada also notes that “an automaton cannot form the mens rea, or guilty mind, if their actions are involuntary. Where an accused has no conscious awareness of their movements, they necessarily cannot intend their involuntary acts.” See Brown at para. 48.

195The defence of automatism is subject to special limitations. While it is the Crown’s burden to prove the actus reus and mens rea of an offence beyond a reasonable doubt, the law presumes that people act voluntarily. Given that a defence of automatism amounts to a claim that the accused’s actions were not voluntary, the accused must rebut the presumption of voluntariness. In Stone, the Supreme Court of Canada held that an accused who seeks to rebut the presumption of voluntariness by raising the defence of automatism must prove the defence on a balance of probabilities. The Supreme Court stated that “because automatism is easily feigned and all knowledge of its occurrence rests with the accused, putting a legal burden on the accused to prove involuntariness on a balance of probabilities is necessary to further the objective behind the presumption of voluntariness.” The Supreme Court also noted that genuine cases of automatism will be extremely rare. See Stone at paras. 171, 179, 180.

196The Supreme Court of Canada stated that in order to satisfy the accused’s burden, all cases will require an assertion of involuntariness and confirming psychiatric evidence. However, this burden will generally require more than an assertion of involuntariness on the part of the accused accompanied by confirming expert evidence that automatism is plausible assuming the account of events given to the expert by the accused was accurate and truthful. The existence or non-existence of evidence that corroborates the accused’s claim of automatism will be relevant to the assessment of whether the defence has been established on a balance of probabilities. See Stone at paras. 187, 189, 192.

197In the case at bar, the defence relies heavily on the case R. v. Singh, 2022 ONSC 5011 (“Singh”). In that case, Mr. Singh was involved in a collision and he claimed that he was experiencing a seizure which deprived him of awareness of his circumstances and the capacity to control his actions as his car headed toward the collision. Dr. Gojer was called as an expert witness in that case.

198In Singh, P. Campbell J. pointed out that, in dangerous driving cases, the Supreme Court of Canada had located the relevance of sudden medical crises, such as epileptic seizures, within the analysis of mens rea and the assessment of fault. See Singh at para. 100. P. Campbell J. explained the relevance of this point as follows at para. 103:

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

199P. Campbell J. then noted the following:

a. In the context of criminal driving cases, the Supreme Court has firmly placed the sudden onset of medical conditions that deprive an accused of the ability to appreciate and cope with the risks of operating a vehicle within a mens rea framework. P. Campbell J. pointed out that the Supreme Court did this in Hundal when the issue of whether such cases should be examined through the lens of mens rea or actus reus was explicitly highlighted by McLachlin J. in her concurring opinion. See Singh at para. 105.

b. There is no insuperable logical barrier to treating an event like epileptic seizures under either head of analysis. P. Campbell J. also noted that the expert evidence before him strongly suggested that a seizure could affect both awareness of one’s circumstances (with an impact on mens rea) and the physical capacity to respond to them with controlled bodily movements (which could go to the voluntariness component of the actus reus). It is possible that at some points during a seizure, a person is in one state (with impaired awareness) and, seconds later, in the other (with loss of conscious motor control). P. Campbell J. expressed the view that the court should avoid an analytical approach in which the same phenomenon – a sudden seizure – is examined under two different legal categories, with the prosecution bearing the burden of negating one and the defence the burden of establishing the other. He stated that with that approach, there would be little or no way of distinguishing, moment by moment, whether the accused had some awareness – though badly impaired – of the surrounding circumstances, or none at all, and was instead unable to exercise conscious control of his physical movements. See Singh at para. 106.

200The approach in Singh was adopted by Dawe J. (as he then was) in Coates. In that case, Dawe J. found that the expert evidence did not establish the affirmative defence of automatism on a balance of probabilities, which was required in order to conclude that Mr. Coates did not commit the actus reus of the fail to stop offence. He noted, however, that the burden of proof on the issue of the mens rea was not reversed and that, accordingly, he had to consider the expert opinion, along with the rest of the evidence, when deciding whether the Crown had proved the mens rea beyond a reasonable doubt. See Coates at paras. 309, 349, 358.

201I also note that in R. v. Taylor at para. 14 (Ont. S.C.J.), Belobaba J. expressed the view that in driving cases, where an epileptic seizure apparently resulted in the driver’s inability to take appropriate action, the mens rea framework set out in Beatty was the more appropriate approach to use instead of the approach of the defence of automatism. See also R. v. Grewal, 2021 BCSC 751 at paras. 31-60, 176, 180-181 (“Grewal”).

202In this case, the Crown did not directly address the Singh case, and the related cases discussed above. The Crown also did not discuss in any detail the issue of the burden of proof, aside from mentioning its position that there was not a sufficient basis to find on a balance of probabilities that Mr. Sahota has epilepsy and that he suffered a seizure on October 20, 2022.

203The reasoning in Singh is cogent and highlights an anomaly between Supreme Court of Canada cases dealing with, on the one hand, the issue of the mens rea for dangerous driving and, on the other hand, the issue of automatism. However, the “mens rea framework” adopted in dangerous driving cases based on Beatty and Hundal has also been used for other related offences, such as the offence of failure to stop after an accident: see Coates at para. 358 and Grewal at para. 181.¹ It would indeed be odd if different results were reached with respect to the state of mind of the accused in relation to offences related to the same incident.

204I note that the mens rea approach appears to be contrary to the rationale set out in Stone. As pointed out in Brown at para. 48, an automaton, by definition, cannot form the mens rea, or guilty mind, if their actions are involuntary. Therefore, allowing an accused to raise what is in effect automatism under the mens rea component of an offence likely amounts to circumventing the evidentiary rules set out in Stone, and ignores the policy concerns that informed these rules, including the following concerns quoted by the Supreme Court:

There are undoubtedly policy considerations to be considered. Automatism as a defence is easily feigned. It is said the credibility of our criminal justice system will be severely strained if a person who has committed a violent act is allowed an absolute acquittal on a plea of automatism arising from a psychological blow. The argument is made that the success of the defence depends upon the semantic ability of psychiatrists, tracing a narrow path between the twin shoals of criminal responsibility and an insanity verdict. Added to these concerns is the in terrorem argument that the floodgates will be raised if psychological blow automatism is recognized in law.

See Stone at para. 176, quoting Dickson J. (as he then was) in R. v. Rabey, [1980] 2 S.C.R. 513 at 546. See also Stone at paras. 178-180.

205Despite these concerns, I consider that the doctrine of horizontal stare decisis requires that I follow the approach set out in Singh and applied in Coates. See R. v. Sullivan, 2022 SCC 19 at para. 75.

206In this case, the defence expressly stated that Mr. Sahota was not seeking to raise the defence of automatism. Rather, the defence’s position is that the Crown has not met its burden of proving beyond a reasonable doubt that Mr. Sahota had the requisite mens rea. The approach proposed by the defence is available under Singh and Coates.

4. Evidentiary issues

a. Voluntariness of statements made by Mr. Sahota to DC Perino and Office Nogoy

207The Crown sought a ruling on the admissibility of the utterances made by Mr. Sahota to persons in authority, i.e., the statements he made to DC Perino and Officer Nogoy. The defence did not formally respond to this application.

208The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary: see R. v. Beaver, 2022 SCC 54 at para. 45 (“Beaver”).

209The confessions rule has two goals: protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes: see R. v. Oickle, 2000 SCC 38 at para. 33 (“Oickle”).

210The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority. The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry. See Beaver at para. 48.

211The types of threats or promises that will raise a reasonable doubt as to the voluntariness of a confession are inducements that, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. However, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and their circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement. See Oickle at paras. 57-58 and R. v. Spencer, 2007 SCC 11 at para. 15.

212The concept of “oppressive conditions” focuses on the atmosphere of a police interview. The non-exhaustive factors that can create oppressive conditions include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; or excessively aggressive, intimidating police questioning for a prolonged period of time. See Beaver at para. 49 and Oickle at para. 60. Another possible source of oppressive conditions is the police use of non-existent evidence. See Oickle at para. 61. Oppressive conditions can make a suspect want to escape those conditions or could overbear the suspect’s will to the point that they come to doubt their own memory, believe the relentless accusations made by the police, and give an induced confession. See Oickle at para. 58.

213The operating mind test requires that the accused possess a limited degree of cognitive ability to understand what they are saying and to comprehend that they are saying it to police officers who can use it to their detriment and as evidence in criminal proceedings. See Oickle at para. 63.

214Another consideration in determining whether a confession is voluntary or not is the police use of trickery to obtain a confession. Unlike the previous three inquiries (threats or promises, oppression and operating mind), this consideration is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system. In order for the confessions rule to be triggered, the conduct of the police must be such as to “shock the community”. See Oickle at paras. 65-66.

215With respect to the issue of a police caution, Mr. Sahota was a suspect in this case, and the officers did not caution him. The absence of a police caution is prima facie evidence of an unfair denial of the choice to speak to police, and the Crown needs to overcome this evidence of unfairness by demonstrating that the accused made a free choice to speak. If the Crown can prove that the suspect maintained their ability to exercise a free choice because there were no signs of threats or inducements, oppression, lack of an operating mind or police trickery, that will be sufficient to discharge the Crown’s burden that the statement was voluntary and remove the stain brought by the failure to give a caution See R. v. Tessier, 2022 SCC 35 at paras. 83, 89.

216In my view, the main issue in this case is whether the Crown has proved beyond a reasonable doubt that Mr. Sahota had an operating mind at the time the statements were made. I accept the Crown’s submission that there were no threats or inducements, oppressive tactics or police trickery that cast doubt on the voluntariness of Mr. Sahota’s statements. If there were no issues regarding Mr. Sahota’s operating mind, I would also accept the Crown’s submission that notwithstanding the absence of a police caution, a review of the circumstances of the conversation supports the conclusion that Mr. Sahota exercised a free and meaningful choice to speak with the officers.

217However, given my conclusion below that there is a reasonable doubt in this case as to whether Mr. Sahota was in a postictal state at the relevant time, I cannot conclude beyond a reasonable doubt that Mr. Sahota had an operating mind when he made the statements. Mr. Sahota’s apparent attempts to mislead the police are troubling. However, if Mr. Sahota experienced a seizure earlier in the night, about which I have a reasonable doubt, it is possible that Mr. Sahota’s brain was still not functioning properly when he spoke to the officers. This could also explain some of the incoherence and the lack of responsiveness in the conversations. Therefore, the statements are not admissible.

b. After-the-fact conduct

218The Crown also sought a ruling on the admissibility of the statements made by Mr. Sahota to DC Perino and Officer Nogoy as after-the-fact conduct evidence capable of supporting the inference of consciousness of guilt. The defence did not formally respond to this application.

219After-the-fact conduct encompasses what the accused both said and did after the offence charged in the indictment was allegedly committed. It covers a large range of possible circumstances, and its content and contours are confined only by the limits of human experience. As with other types of evidence, evidence of after-the-fact conduct is admissible if it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects. See R. v. Calnen, 2019 SCC 6 at paras. 106-107 (“Calnen”).

220Given my conclusion regarding the voluntariness of the statements, they are not admissible and their admission would offend another exclusionary rule of evidence. If there had been no voluntariness issue, I would have found the statements to be admissible after-the-fact conduct.

5. Assessment of the evidence

221The first step in the W.(D.) analysis is to ask whether I believe the evidence of the accused and the evidence presented by the defence.

a. Evidence of Mr. Sahota

222I do not believe the evidence of Mr. Sahota. His recollection/version of the events of October 20, 2022 was different when he spoke to Dr. Gao, when he spoke to Dr. Gojer, when he spoke to Dr. Carlen, and when he testified at trial. Among other things:

a. Dr. Gao’s Progress Notes record that Mr. Sahota told her that he had blacked out 30-40 seconds while driving in October 2022, and that he vomited afterwards.

b. According to Dr. Gojer’s report, Mr. Sahota told Dr. Gojer that he only blacked out for a few minutes. Mr. Sahota said to Dr. Gojer that his last memory on October 20, 2022 was at about 10:30 p.m., and that the next thing that he remembers is waking up 5-7 minutes later on Wellington Street. As set out in Dr. Gojer’s report Mr. Sahota appears to remember the rest of the night, including being at his girlfriend’s house in Brampton.

c. According to Dr. Carlen’s report, Mr. Sahota told Dr. Carlen that his last memory on October 20, 2022 was at about 10:30 p.m., when he was driving south on Yonge Street, just north of Adelaide Street. Mr. Sahota has two foggy memories after that, and his next memory is at about 6:30 a.m. on October 21, 2022. In his report, Dr. Carlen talks about a “prolonged loss of memory”.

d. At trial, Mr. Sahota testified that his last clear memory was at 9:32 p.m. at the Liberty Grand. He has two foggy memories after that, and his first full memory is at about 6:50 a.m. on October 21, 2022.

223I do not accept Mr. Sahota’s evidence in which he tries to explain the differences between Dr. Gojer’s report and Dr. Carlen’s report. The alleged methodology of Dr. Gojer described by Mr. Sahota does not make any sense in light of the contents and wording of the report. It also does not make any sense because the methodology described by Mr. Sahota does not appear to serve any medical purpose. In a section of the report entitled “Mr. Sahota’s Account of Himself”, Dr. Gojer clearly attributes the statements in issue to Mr. Sahota as statements of what Mr. Sahota recalled. When Mr. Sahota got information from the police disclosure, it is expressly noted in the report.

224Mr. Sahota was cross-examined about this section of Dr. Gojer’s report:

Mr. Sahota stated that he typically enters his girlfriend’s home through the garage door, and that is what he did the night of the offense. He stated that he had knocked on the door inside the garage, but there was no answer. Mr. Sahota stated that since his phone wad [sic] dead, he decided to sit in the garage with a charged [sic] he had found, and wait for his phone to turn on so he could call his girlfriend to have her let him into the house. He stated that once his phone regained battery power, he received a call from his father. […]

225According to Dr. Gojer’s report, Mr. Sahota never saw his girlfriend that night.

226Mr. Sahota’s attempt to explain this part of the report as not something that he remembered but as something that he pieced together based on the letter that his girlfriend provided to Dr. Gojer does not make any sense and is not even supported by the contents of his girlfriend’s letter to Dr. Gojer.

227I conclude that Mr. Sahota and his girlfriend lied to Dr. Gojer about Mr. Sahota not being at his girlfriend’s place with her during the night in question. I unreservedly accept Ms. Tamaya-Heer’s evidence about dropping off Mr. Sahota at his girlfriend’s house, in her presence. Ms. Tamaya-Heer’s evidence on this point is clear, and it is consistent with the text messages that she exchanged with Mr. Sahota’s girlfriend. Ms. Tamaya-Heer has no reason to lie about this. Further, her evidence about hearing the conversation between DC Perino and Mr. Sahota while she was on the phone with Mr. Sahota’s girlfriend later that night shows that Mr. Sahota was with his girlfriend that night. Ms. Tamaya-Heer would have no other way of knowing the contents of the telephone conversation between DC Perino and Mr. Sahota, including the “Brampton Toronto” comments. Thus, Mr. Sahota’s story about being in his girlfriend’s garage and not being able to enter her home or call her did not happen and is not true. This is compounded by the other statements in Dr. Gojer’s report which suggest that Mr. Sahota remembers what happened after he woke up on Wellington Street, including being driven to Brampton.

228I find that Mr. Sahota was not truthful with the Court and with Dr. Gojer and Dr. Carlen. He is not a credible witness and I do not accept his evidence regarding the events in issue.

b. Evidence of Dr. Carlen

229The defence also adduced the evidence of Dr. Carlen. As was pointed out by the Crown, there are many problems with Dr. Carlen’s evidence. Among other things:

a. Dr. Carlen only met with Mr. Sahota once, for about one hour or one hour and a half. Apart from Mr. Sahota’s self-reporting and the short physical examination that he conducted, Dr. Carlen was not provided with any other sources of information, except for the police synopsis and Dr. Gojer’s report. Dr. Carlen did not see any of the video footage showing Mr. Sahota’s behaviour on the night in question, and he was not provided with pictures of Mr. Sahota’s injuries on his arms and eye. He did not receive any medical documentation or reports, except for the report of Dr. Gojer.

b. In his report, Dr. Carlen summarizes Dr. Gojer’s report, including sections of what Mr. Sahota remembered during the evening. At no point does Dr. Carlen address the fact that what Mr. Sahota told him about what he remembered is vastly different from what he told Dr. Gojer. Dr. Carlen shows little critical thinking about what Mr. Sahota reported to him, and he does not appear to have probed Mr. Sahota about obvious discrepancies and inconsistencies. This is the case despite his own admission that the prolonged postictal amnestic state reported by Mr. Sahota is unusually long and not very common. The fact that Mr. Sahota does not have any memory is an important fact for Dr. Carlen and, given this, one would have expected Dr. Carlen to be much more probing on this point given the indications in Dr. Gojer’s report that Mr. Sahota remembers more than what he told Dr. Carlen.

c. Dr. Carlen’s conclusion that Mr. Sahota had a convulsive seizure is based in large part on Mr. Sahota having bruises on his inner forearms. However, Mr. Sahota did not have bruises on his inner forearms. His bruises were on his inner arms, near his shoulders. It does not appear that such bruises could have been caused through contact with a steering wheel. The fact that there is a much more plausible cause for the bruises – the fight with Mr. Sohal – is not information that was shared with Dr. Carlen.

d. Dr. Carlen’s conclusion that Mr. Sahota had a convulsive seizure does not make sense in light of the chronology of events. The seizure would have had to happen before Mr. Sahota had a memory loss, which started at around 9:30 p.m. according to Mr. Sahota’s evidence at trial. Further, as noted by Dr. Carlen, if Mr. Sahota had a convulsive seizure while driving, he would have lost motor control and crashed the car, which did not happen.

e. Dr. Carlen’s reasoning appears at times to be circular. For instance, he concluded that Mr. Sahota’s brain was not functioning fully because he went up a one-way street the wrong way and that was not the correct decision to make at the time. Clearly, some people make this type of “incorrect decision” for reasons other than a seizure and/or a postictal state. Some circular reasoning also appears in how Dr. Carlen uses Mr. Sahota’s alleged loss of memory to conclude that he was in a postictal state. As noted in Brown at para. 50, a failure to remember does not prove that an individual was acting involuntarily.

230Dr. Carlen acknowledged that his opinion was only as good as the veracity of the information that was provided to him or, as he said, “garbage in, garbage out”. In my view, Mr. Sahota was not fully honest and candid with Dr. Carlen, he only provided Dr. Carlen with extremely limited documentation and information, and he chose not to provide Dr. Carlen with information and evidence that were clearly relevant to the opinion that Dr. Carlen was being asked to provide. While I would not use Dr. Carlen’s expression to describe his report and opinion, there are significant issues with both the input and the output.

231Thus, I am not satisfied that Dr. Carlen’s opinion should be accepted. I also note that his opinion that Mr. Sahota was suffering from a seizure disorder on October 20, 2022 is undermined by the little evidence that was adduced at trial on this issue and on the other alleged incidents of seizure. While I do not agree with the Crown that Mr. Sahota’s evidence about the other incidents of seizure was entirely hearsay,² it was in large part based on hearsay and was not supported by any other evidence at trial. Moreover, the Progress Notes of Dr. Gao do not contain a formal diagnosis of epilepsy or seizure disorder and further investigation was required. There is no evidence before me as to any subsequent diagnosis made by Dr. Gao.

232Had Mr. Sahota wished to rely on the defence of automatism, I would have found that he had failed to prove involuntariness on a balance of probabilities. However, Mr. Sahota is not advancing such a defence. Therefore, despite the fact that I do not believe the evidence presented by the defence, I must determine if I am left in reasonable doubt by it and, if not, whether I am convinced beyond a reasonable doubt of Mr. Sahota’s guilt on the basis of the whole of the evidence.

c. Whether I am left in reasonable doubt by the evidence presented by the defence and the whole of the evidence

233While I do not believe Mr. Sahota’s evidence and I have significant issues with Dr. Carlen’s opinion evidence, I am nevertheless left in reasonable doubt by this evidence and the whole of the evidence.

234Based on the whole of the evidence, it is possible that Mr. Sahota has a seizure disorder and that he could have had a seizure on October 20, 2022. Among other things:

a. Dr. Carlen is a neurologist with a specialty in epilepsy with many years of experience as an active neurological clinician at the Toronto Western Hospital. He came to the conclusion that Mr. Sahota has a seizure disorder. This conclusion is supported, in part, by Dr. Gao’s decision to prescribe Keppra to Mr. Sahota. Dr. Carlen expressed the view that Mr. Sahota was not trying to “fake it” when he spoke to him. I note that there is also some admissible evidence by Mr. Sahota about other incidents of seizure, with attendances at the hospital.

b. Dr. Carlen opined that Mr. Sahota’s behaviour on October 20, 2022 and in the aftermath of the collision was consistent with the behaviour of a person in a postictal state. He also opined that a person in a postictal state is able to display complex behaviours and do complex maneuvers like driving a car. See also Singh at para. 82. The Crown did not adduce any expert evidence in response.

c. The chronology of events includes some odd aspects that are difficult to explain and could support a conclusion that Mr. Sahota was in a postictal state. For instance:

i. Mr. Sahota suddenly and abruptly left Mr. Sohal while Mr. Sohal was relieving himself, without telling him that he was leaving.

ii. When Mr. Sohal was able to reach Mr. Sahota on the phone approximately 15-20 minutes after they parted ways, Mr. Sahota’s behaviour was drastically different. He was screaming “Fuck you” repeatedly in an aggressive way and hanging up the phone. This sudden change in behaviour within a short period of time does not make sense in light of Mr. Sahota’s prior behaviour and the fact that Mr. Sahota and Mr. Sohal had previously gotten along all evening.

iii. On the phone, Mr. Sahota was not coherent or acknowledging anything that people were saying to him.

iv. When Mr. Sohal first saw Mr. Sahota in his car at the intersection of Mercer Street and Blue Jays Way, Mr. Sahota had a stoic look or blank face. He was expressionless, he had big eyes and he was staring forward.

v. Mr. Sohal testified that he had seen Mr. Sahota intoxicated before and that there were some differences between what he had seen Mr. Sahota do on those prior occasions and what he did on October 20, 2022. The differences identified by Mr. Sohal were that Mr. Sahota resisted him, he had a stoic look and he was not making sense.

235The fact that Mr. Sahota has, in my view, subsequently lied about what he was able to remember does not negate the existence of a reasonable doubt. This type of after-the-fact conduct may be attributable to fear, embarrassment, guilt of something else, or some other explanation. See Calnen at para. 117. Among other things, Mr. Sahota may not have wanted to involve his girlfriend in this incident. Further, I note that the inconsistencies with respect to what Mr. Sahota is able to remember do not include the moment when the collision happened.

236Based on the whole of the evidence, including the evidence referred to above, I am left with a reasonable doubt as to whether Mr. Sahota had a seizure in the evening of October 20, 2022 and was in a postictal amnestic state at the time of the collision, with a brain that was not functioning properly.

237I now turn to the offences charged in this case.

d. Dangerous operation causing bodily harm

238I find that the Crown has not proved beyond a reasonable doubt the mens rea component of this offence. In light of the foregoing, I am of the view that there is a reasonable doubt as to whether: (a) Mr. Sahota was experiencing the effects of a seizure or was in a postictal amnestic state at the time of the collision, and (b) Mr. Sahota was capable of appreciating and avoiding the risks in his manner of driving as he operated his car on Adelaide Street West. Applying the modified objective standard set out in Roy and Beatty, I conclude that there is a reasonable doubt as to whether a reasonable person placed in the same circumstances as Mr. Sahota would have been able to appreciate the risks in Mr. Sahota’s manner of driving and take steps to avoid them. Therefore, it has not been proved beyond a reasonable doubt that there was a marked departure from the standard of care that a reasonable person would have exercised in the same circumstances.

e. Failure to stop after accident resulting in bodily harm

239I also find that the Crown has not proved beyond a reasonable doubt the mens rea component of this offence. First, the Crown has not proved beyond a reasonable doubt that Mr. Sahota failed to stop “without a reasonable excuse”. There is a reasonable doubt as to whether Mr. Sahota’s brain was recording and functioning properly at the time of the collision. Thus, there is a reasonable doubt as to whether a reasonable person placed in the same circumstances as Mr. Sahota would have stopped the vehicle, given their name and address, and offered assistance.

240Further, given that there is a reasonable doubt as to whether Mr. Sahota’s brain was recording and functioning properly at the time of the collision, there is a reasonable doubt as to whether: (a) Mr. Sahota knew or was reckless as to whether his vehicle was involved in an accident with a person that resulted in bodily harm to another person; and (c) Mr. Sahota intended to drive away and fail to meet any of the three requirements to stop, give his name and address, and offer assistance.

f. Operation while impaired causing bodily harm

241In my view, the Crown has not proved beyond a reasonable doubt that Mr. Sahota’s ability to operate a conveyance was impaired by alcohol.

242I do not accept Mr. Sahota’s evidence that he only had two glasses of wine at the Liberty Grand, and that he ordered his last drink at around 6:30 or 6:45 p.m. As set out above, I do not find Mr. Sahota to be a credible witness. Further, Mr. Sahota’s evidence on this point is too much at variance with Mr. Sohal’s evidence, who I found to be a more credible witness.

243However, there are issues with the reliability of Mr. Sohal’s evidence on this point. While I accept that Mr. Sohal was being truthful when he gave evidence as to how many drinks he thought that Mr. Sahota had at the Liberty Grand, the following injects some uncertainty into his estimate:

a. When he gave his statement to the police on October 28, 2022, Mr. Sohal said that he did not know how much alcohol Mr. Sahota had at the BMW event.

b. Mr. Sohal was not sure about how many drinks exactly he had during the evening, and he said that the drinks were spaced out during the evening.

c. Mr. Sohal could not tell whether Mr. Sahota had drunk all of the drinks that were ordered at the bar and, if not, how much of each drink he had. While Mr. Sohal and Mr. Sahota may have ordered the same – or a similar – number of drinks, Mr. Sahota may have drunk only a little bit of some of them and discarded the rest. As Mr. Sohal pointed out, this was an open-bar event, and there were times when glasses were discarded and they got new glasses. It would have made sense, for instance, for Mr. Sahota to discard his drinks before doing the test drive experiences and the virtual driving game.

244Thus, I am not satisfied that Mr. Sohal’s memory is sufficiently reliable to allow me to come to a firm conclusion about exactly how much alcohol Mr. Sahota actually ingested at the Liberty Grand.

245In addition to the uncertainty related to the quantity of alcohol drank by Mr. Sahota, the following evidence of Mr. Sohal does not support a conclusion that Mr. Sahota exhibited signs of impairment at the Liberty Grand:

a. Mr. Sohal did not notice anything out of the ordinary in Mr. Sahota’s behaviour during the evening.

b. Mr. Sohal got into Mr. Sahota’s car without hesitation at the end of the event to drive from the parking lot to the Liberty Grand to take some pictures.

c. Up until Mr. Sahota left while Mr. Sohal was relieving himself, Mr. Sohal had not noticed anything concerning or unusual about Mr. Sahota’s behaviour.

246I also note that Ms. Tamaya-Heer stated that nothing stood out to her about Mr. Sahota’s behaviour at the event at the Liberty Grand.

247While it is true that, later in the evening, Mr. Sahota exhibited behaviours and signs that were consistent with a person impaired by alcohol, most of these signs and behaviours could also be consistent with a person in a postictal state, as Dr. Carlen’s evidence indicates. As set out above, the following evidence, in particular, could support a conclusion that Mr. Sahota was in a postictal state:

a. Mr. Sahota suddenly and abruptly left Mr. Sohal while he was relieving himself, without telling him that he was leaving.

b. When Mr. Sohal was able to reach Mr. Sahota on the phone approximately 15-20 minutes after they parted ways, Mr. Sahota’s behaviour was drastically different. He was screaming “Fuck you” repeatedly in an aggressive way and hanging up the phone. This sudden change in behaviour within a short period of time does not make sense in light of Mr. Sahota’s prior behaviour and the fact that Mr. Sahota and Mr. Sohal had previously gotten along all evening.

c. On the phone, Mr. Sahota was not coherent or acknowledging anything that people were saying to him.

d. When Mr. Sohal first saw Mr. Sahota in his car at the intersection of Mercer Street and Blue Jays Way, Mr. Sahota had a stoic look or blank face. He was expressionless, he had big eyes and he was staring forward.

e. Mr. Sohal testified that he had seen Mr. Sahota intoxicated before and that there were some differences between what he had seen Mr. Sahota do on those prior occasions and what he did on October 20, 2022. The differences identified by Mr. Sohal were that Mr. Sahota resisted him, he had a stoic look and he was not making sense.

248While I find that Ms. Tamaya-Heer was a credible witness, I do not find her evidence regarding the smell of alcohol in her car to be reliable in light of the following:

a. According to Ms. Tamaya-Heer, Mr. Sohal did not smell of alcohol. Given Mr. Sohal’s evidence that he and Mr. Sahota had approximately the same number of drinks, it would be unusual for Mr. Sohal not to smell of alcohol at all and for Mr. Sahota to have a very strong smell of alcohol.

b. During his testimony, Mr. Sohal did not mention anything about Mr. Sahota smelling something in the car, which is unusual if the smell was that strong.

c. Ms. Tamaya-Heer described the smell in her car as a smell of alcohol and sweat. Mr. Sahota may well have had body odor after an epileptic seizure, and Ms. Tamaya-Heer could have been mistaken about the components of the smell or the reasons for the smell.

249In my view, the evidence falls short of proving beyond a reasonable doubt that Mr. Sahota was impaired to any degree by alcohol. The inconclusive evidence regarding the quantity of alcohol consumed by Mr. Sahota; the absence of signs of impairment at the Liberty Grand; the abrupt, sudden, drastic and unexplained change in Mr. Sahota’s behaviour within a short period of time after he left the Liberty Grand; the fact that Mr. Sahota’s subsequent conduct is equivocal and open to more than one interpretation; and the opinion of Dr. Carlen raise in my mind a reasonable doubt as to whether Mr. Sahota was impaired by alcohol at the time of the collision. Thus, I am unable to conclude with the required level of certainty that Mr. Sahota’s ability to drive at the time of the collision must have been impaired to any degree by alcohol.

V. CONCLUSION

250I find Mr. Sahota not guilty on all counts.

Vermette J.

Footnotes

1. 1The reference to “without reasonable excuse” in section 320.16(1) (failure to stop after accident) may bring into play the same considerations as the ones discussed in Beatty and Hundal with respect to what a reasonable person would have done in the same circumstances.
2. 2Mr. Sahota would be able to know, for instance, if he urinated in bed, if he injured himself, how he felt when he “came to”, and whether there is a period of time for which he does not have a memory.