ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ABDUL KAZOUN
S. Monaghan, for the Crown
R. Ellis and L. Ellis, for Mr. Kazoun
HEARD: May 27-30; June 2-3; November 24, 2025
MOORE J.
OVERVIEW
1On July 22, 2022, at approximately 5:15 p.m., Garnet Prydie stopped at a Popeye’s restaurant in a strip mall at the intersection of Wellington Road and Southdale Road in London, Ontario, to pick up dinner with his roommate. The accused, Abdul Kazoun, sat in a shaded parking spot at the back of the parking lot in his tow truck.
2Mr. Kazoun received a message from a friend and pulled out of his parking space. At the same time, Mr. Prydie secured his dinner and exited the restaurant. He stepped off the curb and walked toward his roommate’s car. Suddenly, Mr. Kazoun struck him with his tow truck. He dragged Mr. Prydie several feet before running him over and causing his death.
3Mr. Kazoun now faces charges of dangerous driving causing death contrary to s. 320.13(3) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and failure to remain at the scene causing death contrary to s. 320.16(3).
4At trial, the Crown called nine witnesses. Mr. Kazoun testified on his own behalf and called an expert witness who testified in relation to the speed of the vehicle.
ISSUES
5The court must determine whether Mr. Kazoun:
(a) Drove his vehicle in a dangerous manner and, if so, whether his driving constituted a marked departure from the standard of care expected of a reasonable person in the same circumstances; and
(b) Left the scene of the collision knowing, or being reckless as to whether, he struck and killed a pedestrian.
FACTUAL BACKGROUND
Agreed Statement of Facts
6The parties filed an agreed statement of facts establishing that Mr. Kazoun was present in the parking lot at 840 Wellington Road on Friday, July 22, 2022, at approximately 5:15 p.m. He drove a 2018 GMC Sierra truck that had been modified into a tow truck and displayed a decal resembling the Toronto skyline. Mr. Prydie, age 56, exited the Popeye’s restaurant at that location. Mr. Kazoun’s vehicle struck him. Mr. Prydie later died from the injuries sustained in the collision. Mr. Kazoun was the only occupant of the truck.
7Police interviewed Mr. Kazoun on Saturday, July 23, 2022, at 8:41 a.m. His statement was voluntary.
8There are no issues regarding the continuity of the video evidence from the plaza.
9The parties admitted a report from the Centre of Forensic Sciences regarding swabs taken from Mr. Kazoun’s vehicle without viva voce evidence. Based on DNA analysis, the report concluded that the biological material and blood found on the tow truck likely originated from Mr. Prydie.
10The parties admitted the pathology report prepared by Dr. Sonya Malone without viva voce testimony.
Post-Mortem Report
11The report sets out that there were signs of multiple trauma on examination including evidence of severe head and neck trauma.
12The report details the significant trauma including bruises, abrasions, lacerations and fractures to the head, face, scalp and neck as well as the torso, upper and lower extremities and to various internal organs. There was extensive trauma to the skull including fractures and fragmentation and partial evacuation and disruption of the midbrain and circle of Willis as well as hemorrhages.
13The abrasions/bruises to the scalp and face appeared patterned and could represent tire impressions sustained in the course of being run over.
14The toxicology showed an ethanol level of 116 mg/100 ml of blood but not other drugs.
15The examination of major organs did not reveal any significant underlying medical condition that could have contributed to death. The cause of death was determined to be “multiple trauma”.
George McClure
16George McClure was a friend and roommate of Mr. Prydie. They worked at the same golf course. On July 22, 2022, they went for drinks after work and then attended Popeye’s restaurant around 5:15 p.m. Mr. Prydie entered the restaurant while Mr. McClure remained in the car.
17Mr. McClure repositioned the car in the parking lot and then saw Mr. Prydie exit the side door of Popeye’s. Mr. Prydie smiled at Mr. McClure and raised the food to approximately shoulder height to show that he had their order.
18Mr. McClure looked down to start the car. When he looked back up, he saw food on the ground and his friend lying on the pavement. He ran to Mr. Prydie and, upon observing his injuries, ran inside the restaurant to seek emergency assistance. He noticed a white truck in the area.
19In cross-examination, Mr. McClure agreed that it was possible he did not see Mr. Prydie step off the curb. He did not see his friend stumble or make any unusual movements. He also did not notice anyone else exiting the restaurant. He did not take note of the white truck until after the collision. He further testified that 12 km/h would be a low estimate of the truck’s speed.
Linda Romao
20Linda Romao testified that she and her husband, Michael Amaral, were travelling on Southdale Road and entering the left turn lane to turn onto Wellington Road. While waiting in traffic, her husband said, “he’s going to hit that guy”, which prompted her to look toward the Popeye’s restaurant in the direction her husband indicated.
21When she looked, she saw what she believed to be food flying through the air. Some of the debris struck the hood of the tow truck. She did not see the moment of impact.
22She testified that she observed something under the vehicle, although she did not know at the time what it was. She believed that the tow truck ran over Mr. Prydie with its passenger-side wheels because the vehicle moved up and down as it passed.
23The tow truck turned onto Wellingsboro Road, a service road behind the mall. Her husband turned their vehicle from Southdale Road onto Wellingsboro Road as well. She called 911. They followed the tow truck in an attempt to catch it. She testified that she last saw the tow truck when it turned west onto Bradley Avenue.
24She described the tow truck as travelling quickly through the parking lot. She testified that it did not slow down or stop before exiting onto Wellingsboro Road.
25In cross-examination, Ms. Romao agreed that part of her line of sight to the east was obstructed by a dumpster and a bricked enclosure. She agreed that the incident was traumatic, and she was in shock. She acknowledged having seen some media coverage of the incident. She was present at the scene twice: briefly before they followed the tow truck and again after losing sight of it.
26During cross-examination, she stated, “if I could see what I saw from the street, then how could the person driving not see?” She believed the truck was travelling too fast, but agreed that she only observed it after the collision and that her conclusion was based on its relative speed in a small parking lot. She agreed in her police statement that she described the truck as going too quickly and “flying”.
27She disagreed that her husband said he saw the truck “flying” before the collision but agreed he may have made that remark during the pursuit. When asked about their own speed, she testified that she asked her husband to slow down because she was concerned about causing another accident. She believed her husband was speeding but agreed that even 50 km/h can feel fast on side streets.
28Counsel suggested that she did not see the victim until they turned from Southdale Road onto Wellingsboro Road. She testified that she could see something under the truck but did not know it was a person.
29Counsel also showed her several Google photographs of the area. Counsel suggested that she could not see much of the driveway in front of Popeye’s beyond the speed bump. She disagreed. She could see the area except for the far eastern section, which was blocked by dumpsters and a brick enclosure. She maintained that she saw food fly onto the hood of the truck.
Michael Amaral
30Michael Amaral testified that he and his wife were travelling to White Oaks Mall. They were in the left-turn lane on Southdale Road, preparing to turn onto Wellington Road. He testified that he saw the truck strike Mr. Prydie and run him over. He told his wife to call 911 and immediately turned left, crossing the oncoming lanes of Southdale Road and entering Wellingsboro Road. He observed the tow truck leave the scene without slowing or stopping.
31They slowed and stopped near a driveway where they could see Mr. Prydie’s body. They then pursued the tow truck, which turned onto Dearness Drive and then onto Bradley Avenue. He could not see the occupant or occupants of the truck because of its tinted windows. He lost sight of the truck at Bradley Avenue and Wellington Street. At one point, when the truck accelerated, he observed it emit black smoke.
32Mr. Amara testified that he saw Mr. Prydie walk from the Popeye’s sidewalk into the parking lot. He testified that Mr. Prydie was walking and standing upright when the truck struck him and knocked him down. He perceived the truck to be travelling faster than normal.
33In cross-examination, counsel asked Mr. Amaral about his memory of the incident. He testified that he was trying to forget it and avoided discussing it with his wife because she was struggling. He advised that he discussed the incident with his therapist. He agreed that he spoke with Mr. McClure. He testified that he wants justice for Mr. Prydie and wants to assist either side in reaching this conclusion.
34Counsel cross-examined Mr. Amaral on inconsistencies between his trial testimony and his police statement and preliminary hearing evidence. He agreed that, at the time of his police statement, he believed the incident had occurred earlier in the day. He later agreed that it occurred after his wife returned home from work and while they were going to the mall. He agreed that the trauma may have affected his memory. Counsel directed him to his preliminary hearing transcript, where he testified that he encountered a red light at Bradley Avenue and again at Badley Avenue and Wellington Road. He testified at the preliminary hearing that he assumed the tow truck received a green light and that he lost sight of it near Jalna Boulevard. At trial, he testified that he had no memory of the truck being near Jalna Boulevard. He testified that he now believes the truck turned right onto Wellington Road at Bradley Avenue and that he lost sight of it there. He testified that he also turned right onto Wellington Road and returned to Popeye’s. Counsel directed him to earlier evidence in which he stated that he completed a full loop. He testified that he had no present memory of doing so. He testified that, while attempting to catch the truck, he drove at approximately 50-60 km/h.
35Mr. Amaral testified that he could see the speed bump located in front of the side door of Popeye’s. He testified that the point of impact between the truck and Mr. Prydie was at the location of the puddle near the speed bump shown in the photographs. Counsel suggested that dumpsters obstructed his view of where the truck struck Mr. Prydie. He disagreed and testified that he could see from the speed bump to the western edge of the area.
36Mr. Amaral testified that the truck drew his attention because he wanted to look at its rims. He agreed that he could not see the rims until after the collision. He agreed that his memory of the rim colour might not be accurate. He agreed that he initially believed the truck entered from Wellington Road but later learned from the video that it came around the edge of the parking lot. Counsel suggested that an obstruction prevented him from seeing the impact between the truck and Mr. Prydie. He disagreed.
The Scene
Jeremy Koekebakker
37PC Jeremey Koekebakker of the London Police Service was working with his partner while travelling northbound on Wellington Road when a group of civilians flagged them down and directed them into the parking lot at 840 Wellington Road, a strip mall that includes a Popeye’s restaurant. Video footage shows that police arrived approximately three minutes after the tow truck exited the parking lot.
38PC Koekebakker observed a Caucasian male lying on the ground near the Wellingsboro Road exit on the east side of the property. He appeared deceased from a head injury. PC Koekebakker observed tire tracks running over the body and continuing out the exit onto Wellingsboro Road heading southbound. He noted the presence of exterior surveillance cameras on the building and requested additional officers attend. He identified the victim as Mr. Prydie after speaking with Mr. McClure.
39PC Koekebakker contacted the owner of Popeye’s to obtain access to the surveillance system. After the owner arrived, PC Koekebakker viewed the surveillance footage. At 17:18:12, a camera facing Wellingsboro Road showed a white tow truck exiting the Popeye’s parking lot southbound onto Wellingsboro Road. The footage showed a visible decal or design on the side of the tow truck. Through further investigation, police learned that the tow truck was associated with a company called London Towing. Police identified the owner as Abdul, the son of the owner of M&M Disposal Services. Further inquiries identified Abdul Kazoun as having an address on Ashley Crescent in London and that London Towing was registered at 41 Hamley Road in London.
40PC Koekebakker attempted to contact Mr. Kazoun and his father by telephone and attended both addresses. No one was present at either address, and the calls went to voicemail. He later returned to Ashley Crescent and spoke with Mr. Kazoun’s father, Mahmoud. Mahmoud contacted Mr. Kazoun, who confirmed that he drove the tow truck that day. PC Koekebakker asked Mr. Kazoun to return home, and he agreed. Approximately ten minutes later, police advised PC Koekebakker that other officers had located Mr. Kazoun at 41 Hamley Road.
41PC Koekebakker drove to 41 Hamley Road. Mr. Kazoun remained in the back of a police cruiser. PC Koekebakker observed several members of the accused’s family at the location. The tow truck was also present. PC Koekebakker examined the tow truck and noted that the front bumper appeared wiped clean on the driver’s side, while the passenger side retained a thin layer of dust. He also observed what appeared to be dried blood droplets on the driver’s side running board, apparent brain matter in the driver’s side rear wheel well, and possible human tissue beneath the gas tank. He remained with the vehicle until identification officers arrived to photograph the truck and collect swabs.
42In cross-examination, PC Koekebakker identified the location where police stopped the tow truck, just outside the gates of 41 Hamley Road. He testified that he did not observe food debris or spilled pop but did observe that the driver’s side bumper appeared wiped with a cloth. He described the blood droplets on the running board as small but testified that the brain matter in the wheel well was apparent. He testified that he could not determine whether the tow truck was a standard vehicle or had been modified. He confirmed that the truck had dual rear wheels and that its suspension may have been higher than normal.
Ben Hush
43PC Hush prepared the accident reconstruction report, which the Crown filed as an exhibit.
44The report indicated that, on the date of the collision, the weather was clear, sunny and 29 degrees Celsius. PC Hush included multiple photographs in the report including ones from a police drone. He summarized that Mr. Prydie had just exited Popeye’s carrying food and drinks. He stood approximately five metres north of the door when Mr. Kazoun’s tow truck struck him. Mr. Prydie fell to the ground. The driver’s side rear wheels ran over his head, causing a crushing injury and immediate death.
45At the scene, PC Hush observed a male, later identified as Mr. Prydie, under a tarp. He observed brain matter and blood. To the west of the body, he observed a baseball cap, a shoe, Popeye’s chicken, drink cups and spilled pop. He observed single and dual tire tread marks leading east out of the parking lot and turning south onto Wellingsboro Road. The tread marks originated near the speed bump, where spilled pop and drink cups laid on the asphalt. He also found food debris at that location. Closer to the body, PC Hush observed Mr. Prydie’s left shoe, the brim of his hat, a drink tray and a bag of food.
46Investigators examined the tow truck and its crash data recorder (“CDR”). The collision did not register on the CDR. The truck was examined and found to be in fair collision, showed no major defects and displayed no collision-related damages.
47PC Hush reported that the scene did not provide sufficient evidence to perform calculations.
48In cross-examination, PC Hush agreed that many vehicles present earlier at the plaza had left before he arrived. He testified that a vehicle would contact both sides when passing over a speed bump, whereas running over a skull would involve only one side and create a “weird sensation”.
49He testified that he could not determine Mr. Prydie’s body position at the moment of impact. When asked whether the front tire could have run over Mr. Prydie before the rear tire did, he testified that no physical evidence supported that possibility.
50He agreed that a delay exists between perceiving an obstacle and reacting. He testified that the average reaction time ranges from one and a half to two seconds, although some drivers react faster and others slower. He agreed that a blood-alcohol level exceeding 80 mg per 100 ml of blood could affect perception-reaction time. He testified that he could only address driving skills, not other motor skills.
Video Evidence
51Investigators retrieved two Popeye’s surveillance videos. Multiple witnesses viewed the videos, and both Crown and defence experts relied on them.
52The first video depicts the area in front of Popeye’s along Wellington Road, including two entrance-exits from Wellington Road and part of the parking lot at the end of the strip mall. The video does not show the side entrance to Popeye’s or the speed bump in front of that entrance. It therefore does not show the collision. The video first shows Mr. Kazoun’s tow truck at 17:17:46. It performed a counterclockwise loop from the rear of the parking lot, travelled parallel to Wellington Road, and then turned left out of view along the side of the building. While the truck travelled parallel to Wellington Road, the video shows two pedestrians. The truck leaves the camera’s view at 17:17:59 and is visible for approximately 13 seconds total.
53The second video shows the Wellingsboro Road exit of the parking lot and a portion of Wellingsboro Road. The video shows Mr. Kazoun’s tow truck at 17:18:10 as it completed a right-hand turn onto Wellingsboro Road. The truck does not stop or slow while in view. Trees on the east side of Wellingsboro Road obscure the truck from view at 17:18:22.
Leaving the Scene
Jennifer Hewerdine
54PC Jennifer Hewerdine attended the scene at Popeye’s. She undertook the task of identifying the white tow truck shown in the surveillance video. Using the markings visible on the truck, she identified it.
55She attended 41 Hamley Road with two other officers. She observed a tow truck parked west of the gates and identified it as the same tow truck shown in the surveillance video. She identified the driver as Mr. Kazoun and cautioned him for hit-and-run causing death. After Mr. Kazoun confirmed that he had driven the truck that day, she arrested him at 7:48 p.m. and advised him of his right to counsel and police caution.
56In cross-examination, she testified that Mr. Kazoun was exiting the truck when she approached. She testified that she did not know whether the vehicle was a commercial tow truck and that she did not examine it.
Ken Steeves
57PC Steeves is a member of the London Police Service forensic identification unit. He photographed 41 Hamley Road and the tow truck. He described the photographs as the Crown introduced them into evidence. He collected swabs from Mr. Prydie and the tow truck and gathered biological materials from the tow truck.
58In cross-examination, he agreed that he did not observe food on the truck. He observed a dark liquid on the driver’s side corner above the bumper but did not test it. He noted that the driver’s side bumper and quarter panel appeared cleaned. He testified that dust covered the vehicle from the driver’s side rearward, but he did not examine the remainder of the vehicle for dirt.
Sandor Bako
59The court qualified Mr. Bako to give expert opinion evidence in digital forensic analysis. He works for the London Police Service. He examined Mr. Kazoun’s iPad and Samsung Galaxy Z Fold phone.
60He determined that the phone provided a hotspot connection to the iPad and that the iPad stored address information. He used geolocation data from the devices to trace Mr. Kazoun’s path from Popeye’s to Hamley Road.
61He determined that someone potentially deleted two Instagram photos featuring the white tow truck from the London Towing account using the Samsung Galaxy Z Fold phone located in Mr. Kazoun’s truck at approximately 7:09 p.m. EST on July 22, 2022. The parties did not dispute that Mr. Kazoun owned and used the examined phone.
62In cross-examination, he testified that he only reviewed the London Towing Instagram account for July 22, 2022, and did not examine other dates.
Liam Heuvel
63Mr. Heuvel testified that he worked as a legal assistant and law clerk. He testified that he had known Mr. Kazoun since 2018 and had remained friends with him for years. At trial, he described their relationship as friendly.
64Mr. Heuvel testified that he met Mr. Kazoun on July 22, 2022. At the time, Mr. Heuvel worked as a welder and completed side jobs on weekends. Mr. Kazoun asked him to meet so that he could provide an engine and later deliver a car to Mr. Heuvel’s house for the engine to be installed.
65They agreed that once Mr. Heuvel finished work, he would meet Mr. Kazoun at the tow yard to receive the engine, and Mr. Kazoun would later deliver the car. They did not set a specific time. They communicated that day via Facebook Messenger. He testified that Facebook Messenger requires typed messages. When Mr. Heuvel finished work around 5:00 p.m., he told Mr. Kazoun that he needed to pick up his engine crane and would then be on his way. He testified that collecting the equipment took about five minutes and the drive to the tow yard took about fifteen.
66When Mr. Heuvel arrived at the tow yard, Mr. Kazoun was already present. They discussed the work Mr. Kazoun wanted him to complete. They loaded the engine. The process took approximately fifteen minutes. Mr. Kazoun used his tow truck to lift the engine and load it into Mr. Heuvel’s truck. They did not discuss Mr. Kazoun’s activities earlier that day or where he had been. Mr. Heuvel left the yard first.
67When asked whether anything seemed different about Mr. Kazoun that day, Mr. Heuvel responded, “no, same usual fella.”
68He attempted to contact Mr. Kazoun when he did not arrive with the car, but they did not speak again that day.
69The Defence did not cross-examine Mr. Heuvel.
Defence Evidence
70At the close of the Crown’s case, the defence brought a motion for a directed verdict. I dismissed the motion. The defence then elected to call evidence.
Thomas Flynn
71The parties agreed that Thomas Flynn was qualified to give expert opinion evidence as a certified forensic video technician, including speed calculations from video.
72The defence filed Mr. Flynn’s report on consent. The Crown advised that accident reconstructionist PC Hush reviewed the report and that the Crown did not contest the calculations.
73Mr. Flynn did not examine Mr. Kazoun’s tow truck. He understood that the truck was a 2018 GMC Sierra 3500HD SLE modified into a wheel-lift tow truck with a boom and crossbars added to the rear.
74In his report, Mr. Flynn opined that, based on his analysis of the scene videos, Mr. Kazoun’s truck travelled at a roughly constant speed of 11-14 km/h before the collision with Mr. Prydie. He opined that the truck travelled at approximately 12.5 km/h immediately before it disappeared from view prior to the collision. He calculated that, after the collision, the truck travelled at approximately 20 km/h while completing the right-hand turn out of the parking lot and then accelerated to 43-49 km/h southbound on Wellingsboro Road. He opined that the observed rate of acceleration was typical following a right-hand turn.
75No video captures the collision with Mr. Prydie or the area along the side of the building and parking lot where the collision occurred.
76In cross-examination, Mr. Flynn testified that his speed calculations were accurate to within less than 1 km/h. He agreed that the tow truck travelled at 12.5-13.5 km/h as it disappeared from view before the collision. When asked whether a driver would experience a speed bump the same way in a heavy vehicle, he testified that the rear axel would feel different because it has different suspension. When asked about running over a person, he testified that he had not reviewed research on the subject. He stated that a driver would likely feel something, but he could not specify what sensation would occur.
Abdul Kazoun
77Mr. Kazoun testified on his own behalf.
78He testified that he was 26 years old and had no criminal record. He was born in Canada and completed high school and a college automotive technician program.
79He typically worked a 9:00 a.m. to 5:00 p.m. shift driving his tow truck. Before the collision, he parked his truck under trees at the back of the Popeye’s parking lot. He testified that he often parked in that lot and had done so seven days a week for approximately six months.
80He testified that he exchanged Facebook messages with his friend Mr. Heuvel, a fabricator who planned to build engine mounts for him. They had previously discussed the engine. On July 22, 2022, he messaged Mr. Heuvel around 10:00 a.m. He expected to have access to a pickup truck, but when it became unavailable, Mr. Heuvel agreed to transport the engine to him. Mr. Kazoun suggested that they use the tow truck to lift the engine into Mr. Heuvel’s truck.
81Mr. Heuvel messaged around 4:00 or 5:00 p.m. to say he was heading out. They planned to meet at the yard at 41 Hamley Road. When they met, they discussed where Mr. Kazoun wanted the car and plans to build a race car.
82While Mr. Kazoun was at Popeye’s, Mr. Heuvel messaged him that he would arrive in 10-15 minutes. Mr. Kazoun replied that he would be on his way. He started the truck, drove through the parking lot, saw two people, slowed down, turned left in front of Popeye’s, drove over the speed bump, and then turned right onto Wellingsboro Road. He drove directly to the shop on Hamley Road, which took approximately seven to eight minutes. His path was confirmed by the analysis of his devices.
83Mr. Kazoun testified that he did not speed. He recalled stopping at a red light at Bradley Avenue. He also testified that he did not feel the truck move up and down. The truck had heavy suspension and did not bounce easily. He described his driving as slow.
84He testified that vehicle and pedestrian traffic were present in the parking lot, including Uber drivers and four to five other vehicles. He testified that he only saw a mother and daughter walking. He watched them to see their path before continuing. He testified that he did not brake and instead rolled through the parking lot with his foot off the pedals.
85Mr. Kazoun said that, after arriving at the yard and before Mr. Heuvel arrived, he topped up the washer fluid and diesel exhaust fluid (“DEF”). He spilled both fluids and wiped the bumper with a rag. He testified that DEF is highly corrosive. He only wiped the area where he spilled the fluid. While he had access to a pressure washer at the shop, he did not wash the truck. He normally washed the truck on weekends during his free time.
86When asked about his Instagram account, he testified that he frequently uploaded new content and deleted older material. He had no memory of deleting content on the day of the collision.
87His father owned M&M Disposal further down Hamley Road. He described 41 Hamley Road as a series of gated compounds. After speaking with a police officer, he drove along Hamley Road, saw police at 41 Hamley Road, stopped on the road, and exited his vehicle to speak with them. Before he crossed the road, police drove over to him. He testified that he was driving home to meet the officer who had called him.
Cross-examination
88In cross-examination, Crown counsel asked Mr. Kazoun whether he ran over Mr. Prydie. He responded, “if that is what the evidence shows.” When pressed, he agreed that he had a collision with Mr. Prydie.
89He explained that he and his employees worked assigned districts. He testified that he parked under the trees at Popeye’s because the location fell within his district and the weather was hot.
90He agreed that he held a DZ driver’s licence, which required driving school, testing and renewal every four to five years. He testified that the licence related to air brakes and was not required for his tow truck.
91He testified that July 22, 2022, was a slow workday. He only received one call at approximately 7:30 a.m. He believed he arrived at Popeye’s around noon. He left the parking lot twice: once to respond to a call and once to give someone a ride to the mall. He believed he returned at approximately 3:40 p.m. He had his phone, iPad and stereo in the truck. He passed the time by talking to other drivers and using social media.
92He agreed that he exchanged multiple typed messaged with Mr. Heuvel on Facebook Messenger. He testified that after Mr. Heuvel said he would arrive in approximately 15 minutes, he waited about five minutes and then left. He testified that Mr. Heuvel messaged that he was picking up his engine crane, but Mr. Kazoun suggested using the tow truck instead.
93He did not see police at the yard until after 7:00 p.m., when police arrested him. He testified that he set up the truck and engine before Mr. Heuvel arrived. Afterward, he went to another yard and helped unload excavators and bobcats.
94He later indicated that he was at the other yard when he added fluids to the truck and spilled them. He spilled fluid on the bumper and hood but later stated that he spilled fluid under the hood while it was open. He testified that he did not immediately wipe the spill but added other fluids before using a rag to clean up. He had spilled these fluids before and described the filling up as a messy job.
95He testified that nothing caused him to think the dark liquid on his truck was a soft drink because he knew he had spilled fluids. He wiped up whatever he spilled. Crown counsel asked whether he spoke to police about seeing soda on the hood of the truck. He testified that he believed an officer asked him about soda and that he told the officer he wiped something. When asked whether liquid could have been on the hood, he agreed that it could have been. When asked whether it could have been Coca Cola, he agreed that it could have been Coca Cola or DEF mixed with washer fluid.
96Crown counsel directed Mr. Kazoun to his police statement. He agreed that he attempted to be truthful and accurate during his statement while also trying to understand what had occurred. In the statement, an officer suggested that someone appeared to have wiped something from the front of the vehicle. The officer asked whether he or someone else had wiped it. He initially stated that he did not remember. He then stated that he filled the truck with gas, DEF fluid, and other fluids and agreed, “I did wipe it down, actually yeah. The front.” When asked why, he responded, “yeah, there was like, uh, juice. Like juice.” When asked, “or something. And then the DEF fluid, right?” He responded, “yeah, I did see juice or something. Yeah.”
97Later in the interview, after a short break, the officer returned to the topic of DEF fluid. Mr. Kazoun told the officer that DEF comes in a large jug and enters the vehicle on the passenger side under the hood. The officer asked where he saw the liquid, and Mr. Kazoun stated that he saw it on the driver’s side when he closed the hood. He stated that he saw “the stuff” and thought “what the hell is that.” He then wiped it away. The officer suggested that it could have been soda that the pedestrian carried. Mr. Kazoun responded, “probably… like I’m guessing. I told you I saw the juice, right. So I’m like ‘what the fuck’… so I wiped it.”
98He denied seeing food on the vehicle but agreed that he saw liquid or “the juice”. When the officer once again suggested that it was soda, Mr. Kazoun responded, “if that is what it was yeah. I thought it was juice. It was pretty sticky.”
99The officer summarized a scenario in which a pedestrian walked across the parking lot carrying food and a drink, struck the front of the vehicle and spilled liquid, and then asked, “and you don’t see anything?” Mr. Kazoun maintained that everything was normal and that he did not see anything. When asked how that was possible, he stated that he did not know.
100Shortly afterward, the officer returned to the topic of the fluid on the truck. She put to Mr. Kazoun that after adding DEF on the passenger side and closing the hood, he saw liquid on the driver’s side. Mr. Kazoun replied, “yeah.” The officer asked whether he saw liquid elsewhere, and Mr. Kazoun responded “no.” The officer specifically asked whether he saw liquid on the front grill. Mr. Kazoun responded “I just cleaned the front hood, the fender… and whatever I saw on it, to be honest. I didn’t… see the grill and stuff, no.” The officer clarified that he only cleaned the hood and fender. Mr. Kazoun agreed and stated, “yeah, that is all I saw.”
101The officer asked, “because you saw the pop on [the grill and fender]?” Mr. Kazoun responded, “mm-hmm.” The officer added, “or whatever the liquid.” Mr. Kazoun responded that he saw the liquid on the truck because the truck is white. The officer suggested that the liquid was probably Coca Cola or something similar. Mr. Kazoun responded, “yeah.”
102Later, the officer asked whether he looked elsewhere around the truck after seeing the fluid. Mr. Kazoun stated that he did not. When asked whether he thought the situation was strange, he responded, “honestly, no.” He explained that he thought someone threw something at the truck and that “I just looked and I didn’t really look around my truck. No.”
103At trial, Mr. Kazoun testified that he merely agreed with the other officer that the liquid could have been soda, that he did not precisely recall what it was, but that he wiped the vehicle. Crown counsel suggested that his statement referred to a liquid other than DEF. Mr. Kazoun agreed that he likely saw a different substance. When counsel suggested that he wiped both DEF and soda, he responded, “I guess”. He testified that he wiped the area where he spilled fluid.
104Crown counsel pressed that he told police about another liquid. Mr. Kazoun responded, “yes, it was a long time ago.” When asked why he thought someone threw something at the truck, he responded that he did not notice and just wiped the substance away. He eventually agreed that the liquid he told police about wiping differed from DEF fluid.
105Counsel put to him that he spilled fluid under the hood rather than on the hood itself. He agreed and stated that he wiped the bumper. When asked whether he wiped the hood, he responded, “I don’t remember.” Counsel suggested that his memory should have been fresh at the time of his statement. Mr. Kazoun responded that he was likely agreeing with the officer and testified that he did not recall wiping the hood and was almost certain that he did not. He agreed that his statement shows that he introduced the idea of wiping the hood, not the officer.
106Crown counsel cross-examined him about the Instagram photos. Mr. Kazoun reiterated that he had no recollection of deleting photos that day.
107Mr. Kazoun confirmed that he was very familiar with the Popeye’s parking lot and knew that pedestrians could walk anywhere. He confirmed that he knew about the side door exiting into the parking lot. He agreed that the lot received heavy traffic and required special attention. He testified that he only saw a mother and child, slowed for them, and otherwise drove at idle speed without touching the gas or brake.
108The Crown suggested that he was distracted and not paying attention. Mr. Kazoun disagreed.
109Crown counsel directed Mr. Kazoun to his police statement, where the officer asked whether he failed to see the victim because he looked down at his phone or iPad. Mr. Kazoun responded, “that could be… that could be, right? I don’t remember exactly what I was doing. Like, maybe I was looking down at that iPad, but I did not see nobody and I did not feel nothing.”
110Crown counsel directed him to another part of the statement in which he stated that police told him he hit a person, but that he did not see or feel it. The officer suggested that he may have been “doing something else”, to which he responded, “honestly, I don’t know.” The officer suggested that he drove through the parking lot without watching for pedestrians. Mr. Kazoun responded that he did not rush or drive dangerously. However, he stated that he might have been looking left or right rather than straight ahead. He maintained that he was not speeding out of the parking lot.
111At trial, Mr. Kazoun insisted that he was not distracted and testified that he was sure he was not looking at his iPad because he saw other pedestrians. He testified that the iPad would likely have been off. The Crown asked why he made those statements to police if they were inaccurate. He testified that he was trying to understand what had happened.
112The Crown suggested that the tow truck required different driving. However, Mr. Kazoun testified that the truck’s pillars matched those of a 1500 pickup truck and that he constantly looked around to avoid striking someone while operating a commercial vehicle. He testified that the pillars did not obstruct his view because he looked left and right. Otherwise, he would not have seen the mother and daughter. The Crown played the video for the court, which did, indeed, show the mother and daughter passing but it before Mr. Kazoun reached the left turn.
113The Crown suggested that Mr. Kazoun knew about and could feel the speed bump. Mr. Kazoun agreed that he knew about the speed bump and could feel it at the front of his truck, however, he claimed that the rear suspension dampened small bumps.
114Mr. Kazoun agreed that he did not see food on the ground or notice anything unusual as he exited the parking lot. He agreed that he had no explanation for failing to see an adult man if he looked left and right, as he claimed.
115In re-examination, defence counsel returned to portions of the police statement already discussed. Mr. Kazoun testified that he merely agreed with the officer’s suggestions about soda on the truck. Referring to a passage at p. 94, defence counsel highlighted an exchange where the officer stated: “you just drove across the parking lot and may not have been paying attention.” Mr. Kazoun responded that he remembered stopping, checking for cars and leaving without rushing. He stated, “I didn’t just storm out of Popeye’s. I didn’t do that.”
APPLICABLE LEGAL PRINCIPLES
General
116I must keep in mind that Mr. Kazoun, like every other person charged with a crime, is presumed innocent unless and until the Crown proves his guilt beyond a reasonable doubt. It is not enough to believe that he is probably or likely guilty. Proof of probable or likely guilt does not satisfy the criminal standard. Conversely, the law does not require the Crown to prove guilt with absolute certainty. Absolute certainty is not a standard of proof recognized in criminal law: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242; R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733, at paras. 13-17.
117This is not a credibility contest in which the court simply chooses between competing versions of events. The burden of proof rests entirely with the Crown. Any reasonable doubt arising from the evidence must result in an acquittal.
118The Supreme Court in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, established a framework to ensure that the burden of proof remains with the Crown when an accused testifies. Where the offence includes a modified objective standard, that framework must be applied with care.
119If I accept Mr. Kazoun’s evidence, or other exculpatory evidence, and it leaves me with a reasonable doubt regarding any essential element of the offence, I must acquit. If I do not accept that evidence, but it nevertheless raises a reasonable doubt about any essential element, I must acquit. Only if the defence evidence does not raise a reasonable doubt must I assess whether the evidence I accept proves each essential element of the offences beyond a reasonable doubt.
120I must consider the evidence of each witness in the context of the evidence as a whole: R. v. Ing, 2013 ONCJ 46, at para. 91; R. v. N.K., 2021 ONCA 13, at para. 10; and R. v. Hull, 2006 26572 (Ont. C.A.), at paras. 5-6.
121I may accept some, all or none of a witness’ evidence. Credibility findings do not operate on an all or nothing basis. I may assign different weight to different aspects of a witness’ testimony, particularly where inconsistencies arise. Some inconsistencies may undermine reliability, while others may be minor or insignificant: R. v. M.D., 2022 ONSC 5778, at para. 7.
122I must assess both credibility and reliability. Credibility concerns whether a witness is telling the truth. Reliability concerns whether the witness is accurate. A witness who lacks credibility cannot provide reliable evidence on that issue. However, a credible witness may give unreliable evidence: R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41.
123I must consider each count separately and determine whether, in respect of each charge, the Crown has proven all essential elements beyond a reasonable doubt:
Dangerous Driving Causing Bodily Harm or Death
124The Supreme Court of Canada in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28, citing R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, summarized the essential elements of the offence of dangerous driving:
The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from the norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [Emphasis in original.]
125In Roy, at para. 36, the Supreme Court articulated two guiding questions to assist the trier of fact in determining whether the Crown has established the required mental element:
(a) In light of all the evidence, would a reasonable person in the accused’s circumstances have foreseen the risk and taken steps to avoid it, if possible?
(b) Was the accused’s failure to foresee the risk and take such steps to avoid it a marked departure from the standard of care expected of a reasonable person in the same circumstances?
126These questions reinforce that foreseeability and seriousness of the departure are both essential to criminal culpability. Neither the occurrence of a collision nor the presence of tragic consequences is determinative alone: Roy, at paras. 35-36.
127This offence engages a modified objective test. The court must assess Mr. Kazoun’s driving against the standard of a reasonable person, while considering his actual circumstances, including what he knew or reasonably ought to have known at the time: Beatty, at para. 38; Roy, at para. 41. Personal characteristics, such as lack of skill or experience, cannot lower the standard, but the surrounding circumstances in which the driving occurred inform the assessment.
128For offences of dangerous driving causing bodily harm or death, the Crown must prove causation. The Crown must establish that Mr. Kazoun’s manner of driving was a significant contributing cause of Mr. Prydie’s death. There is no dispute in this case that Mr. Prydie’s death satisfies the causation and harm elements of the offence.
129I must take care not to reason backward from the devastating consequences of the collision to infer that Mr. Kazoun’s driving was dangerous. The Supreme Court has repeatedly cautioned that the focus of my inquiry must remain on the conduct and risk before the collision, not the severity of its outcome: Roy, at para. 36; Beatty, at para. 48.
130Although the collision may give rise to civil liability, civil fault is not the test here. The Crown must satisfy the criminal standard of proof beyond a reasonable doubt with respect to each essential element of the offence. Only conduct amounting to a marked departure from the standard of a reasonably prudent driver, combined with the necessary mental element, can ground criminal liability: Beatty, at paras. 47-49.
131Where the Crown relies substantially on circumstantial evidence, I must be satisfied that guilt is the only reasonable inference available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. A reasonable doubt may arise from alternative explanations grounded in the evidence or from evidentiary gaps. Speculation or conjecture cannot supply missing proof.
POSITIONS OF THE PARTIES
132The Crown submits that Mr. Kazoun drove too fast for the surrounding circumstances, including a busy plaza parking lot with vehicles and pedestrians at approximately 5 p.m. The Crown emphasizes Mr. Kazoun’s familiarity with the parking lot and the foreseeable risk of pedestrians exiting Popeye’s. It submits that a reasonable person in the same circumstances would have driven more slowly, maintained a proper lookout for pedestrians, seen Mr. Prydie, and taken steps to avoid the collision.
133The Crown further submits that the court should accept the evidence of Ms. Romao and Mr. Amaral that food or drink flew onto the hood of the tow truck. The Crown argues that this evidence supports the conclusion that Mr. Kazoun would have seen or noticed an impact and could have stopped before dragging and running over Mr. Prydie.
134The Crown submits that a number of events would have alerted Mr. Kazoun to the collision. He would have seen Mr. Prydie, observed food or drink flying into the air, or felt a bump as his vehicle ran over Mr. Prydie’s head. It argues that Mr. Kazoun therefore knew, or was reckless as to whether, he has struck and seriously injured or killed a pedestrian.
135The defence submits that Mr. Kazoun drove at a safe speed in the parking lot and that the evidence does not establish dangerous driving. It argues that Mr. Prydie may have stepped unexpectedly into the path of the tow truck and that his blood alcohol level may have affected his perception. The defence submits that, even if the driving is dangerous, it does not rise to the level of a marked departure. At most, it amounts to momentary inattention.
136The defence further submits that the court should accept Mr. Kazoun’s evidence that he was unaware of any collision. It points to the absence of efforts to clean the vehicle despite the opportunity to do so and the absence of abnormal behaviour in Mr. Kazoun’s interactions with Mr. Heuvel following the incident.
ANALYSIS
Count One: Failure to Remain at the Scene Causing Death
137I will address first the charge contrary to s. 320.16(3) regarding Mr. Kazoun’s alleged failure to remain at the scene causing death.
138Mr. Kazoun denied knowing that he had collided with anything, let alone a person, before exiting the parking lot. He testified that he did not see, hear or feel anything unusual. I have assessed that denial in the context of all the evidence.
139I am left with a reasonable doubt as to whether Mr. Kazoun knowingly or recklessly left the scene after striking and running over Mr. Prydie. I reach this conclusion despite accepting the evidence of Ms. Romano and Mr. Amaral.
140Based on the photographs and other evidence, I find that Mr. Kazoun struck Mr. Prydie after he crossed over to the driver’s side in front of the tow truck. I accept Mr. Amaral’s evidence that Mr. Prydie stood upright when the tow truck hit him. I also accept Ms. Romano and Mr. Amaral’s evidence that something flew into the air at the time of impact. The spilled pop located near the speed bump supports that observation, as does Mr. Kazoun’s admission in his police statement that he noticed a sticky liquid on the hood or front of his vehicle and wiped it off with a rag.
141I found both Ms. Romao and Mr. Amaral to be independent witnesses who attempted to provide the court with honest accounts of their recollections. Although some of their observations provided inaccurate, such as their belief that Mr. Prydie’s body laid on the passenger side of the truck or that the truck passed through the intersection at Wellington Street and Bradley Avenue, I found them to be generally reliable witnesses.
142However, after considering their evidence and the video footage, I cannot conclude that Mr. Kazoun’s driving after turning onto Wellingsboro Road demonstrated flight from the scene. Although flight certainly remains one possible inference for his behaviour, it is not the only one. The evidence equally supports another innocent explanation. As I mentioned before, a guilty inference must be the only one available in the case of circumstantial evidence per Villaroman. The video footage suggests that Mr. Kazoun travelled at speeds in the range of approximately 39-60 km/h while the truck remained visible on Wellingsboro Road. Mr. Kazoun’s testimony provides that he drove to the tow yard to meet with Mr. Heuvel. This evidence is corroborated by both Mr. Heuvel and Mr. Bako’s geolocation analysis from the seized devices tracking the truck’s route.
143I had reservations about Mr. Kazoun’s trial evidence regarding the liquid he wiped from the truck. At trial, he testified that it was DEF and washer fluid. He resisted the possibility that it could have been another substance. When confronted with his police statement, I found that he appeared evasive about both the nature of the liquid and the areas of the vehicle he cleaned. His evasiveness undermines my ability to fully accept his trial testimony on this point.
144Even so, the inconsistencies between Mr. Kazoun’s trial evidence and his police statement do not rid me of reasonable doubt about whether he knew that he struck Mr. Prydie or realized the seriousness of what occurred. I have considered Mr. Heuvel’s evidence that, mere minutes after the collision, Mr. Kazoun appeared to be the “same usual fella” when they met at the tow yard. I also note that despite wiping part of the front of the vehicle, other visible biological material remained on the running board and rear wheel well. Mr. Kazoun could have seen this material and wiped it away if he subjectively believed that he struck a person and was attempting to conceal evidence. I further consider that Mr. Kazoun had unsupervised access to a pressure washer and more than two hours before police arrested him. Yet, he did not wash this debris from his truck.
145The Instagram evidence also requires careful treatment. At approximately 7:00 p.m., Mr. Kazoun deleted two images depicting his tow truck from a corporate Instagram account. While that behaviour could suggest an attempt to distance himself from the vehicle, it does not establish that these were the only images of the truck on the account. Mr. Bako told me that he did not check for other images and that he did not examine posting activity on other dates. Mr. Kazoun also testified that he regularly uploaded and deleted content and had no recollection of deleting posts that evening. Without more, I cannot infer that he deleted these images to avoid detection.
146Even if Mr. Kazoun lacked actual knowledge that he struck Mr. Prydie, I must consider whether he acted recklessly by leaving the scene. This issue requires an assessment of whether he may have felt or perceived the rear wheels run over Mr. Prydie’s head or observed debris or a body in his path.
147While logic suggests that some vehicle movement may occur when running over a human body, I accept Mr. Kazoun’s evidence that the tow truck’s self-levelling suspension could have reduced or dulled such sensations. I also accept that not all drivers would check their rearview mirror when exiting a plaza. Mr. Kazoun testified that he looked left and right before turning onto Wellingsboro Road.
148Taken together, I am left with reasonable doubt as to whether Mr. Kazoun acted recklessly in leaving the scene. Thus, I must acquit him on this charge.
Count Two: Dangerous Driving Cause Death
149I now consider the second count faced by Mr. Kazoun: dangerous driving causing death.
150At the outset, I would like to acknowledge that some of the same evidence supporting my conclusion that Mr. Kazoun lacked awareness of the collision also supports the Crown’s position that he failed to exercise the degree of care expected of a reasonable driver in a busy commercial parking lot at approximately 5:00 p.m. I consider that evidence in the analysis that follows.
Actus Reus
151The actus reus in this case consists of Mr. Kazoun driving a tow truck through a busy plaza parking lot at approximately 11-14 km/h and striking an adult pedestrian on the driver’s side of the vehicle, resulting in food or drink debris flying into the air, followed by dragging the pedestrian and running over his head without any apparent awareness.
152I have no difficulty in finding that striking and running over a pedestrian in a well-lit parking lot with fair weather conditions, in an area where Mr. Kazoun knew pedestrians were reasonably foreseeable, constitutes objectively dangerous driving. The Crown has therefore established the actus reus of dangerous driving.
Mens Rea
153The more difficult question is whether Mr. Kazoun’s manner of driving constituted a marked departure from the standard of care expected of a reasonable person in the same circumstances and, therefore, is deserving of criminal liability.
154The law draws a careful distinction between criminal liability and civil negligence. Momentary inattention, simple misjudgment or mere negligence generally do not meet the standard of a “marked departure”. Driving necessarily involves some degree of risk, and even prudent drivers may become involved in collisions.
155Dangerous driving is a negligence-based offence assessed under an objective standard. Subjective intent is not required but may be relevant if present. The Crown does not need to satisfy me that Mr. Kazoun intended to drive dangerously; it must satisfy me that he did. As articulated in Beatty, at para. 48, the inquiry considers whether the conduct amounted a marked departure from the standard expected of a reasonably prudent driver:
The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a “marked departure” from that norm, the offence will be made out. As stated earlier, what constitutes a “marked departure” from the standard expected of a reasonably prudent driver is a matter of degree. The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly remarked in Willock, “conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum” (para. 31). Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle.
156The jurisprudence assists in locating the boundary between momentary carelessness and criminal fault – or a “marked departure”.
157In R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867, 79 C.C.C. (3d) 97, the accused drove an overloaded dump truck through a red light in busy downtown Vancouver on wet roads at a speed of 50-60 km/h. The Court found that this manner of driving constituted a gross departure from the standard of care.
158In Beatty, the accused suddenly and for no apparent reason crossed a solid centre line and struck an oncoming vehicle. He testified that he may have lost consciousness while driving, potentially due to heat stroke. The Court found no evidence of deliberate risk-taking or an intention to create danger. It concluded that the conduct reflected a momentary lapse of attention rather than dangerous driving. There were no improper movements before the accused crossed the centre line, leaving available a reasonable inference that the accused merely lost consciousness.
159In Roy, the accused pulled out from a stop sign at a difficult intersection in poor visibility caused by fog when it was not safe to do so. The Court held that the driving did not support an inference of a marked departure from the standard of care and amounted to a simple misjudgment of speed and distance in challenging conditions and poor visibility. The Court found no evidence of dangerous driving leading up to the incident. Instead, this was a mere lapse in judgment.
160In R. v. Reynolds, 2013 ONCA 433, the accused turned left into a moderately busy shopping plaza and struck a pedestrian. He then reversed, believing that ice was lodged under his vehicle, and ran over the pedestrian a second time. On appeal from a conviction, the Court of Appeal held that the trial judge erred by failing to identify how the accused’s driving reflected a marked departure from the standard of care. The Court of Appeal emphasized the need to examine how the accused’s failure to foresee and respond to the pedestrian amounted to more than mere carelessness, particularly in light of evidence that he drove slowly and checked his mirrors. The Court of Appeal ordered a new trial.
161In R. v. Norris, 2023 ONSC 4622, the accused consumed drugs he knew could cause fatigue. In the seven kilometres preceding a head-on collision, he crossed a wide median, re-crossed it, and repeatedly crossed the centre line while weaving in his lane. The court found that the accused’s failure to respond to clear indicators of impaired driving on a busy roadway and avoid the risk constituted a marked departure from the expected standard of care.
162In R. v. Beedawia, 2023 ONSC 6257, the accused drove a transport truck at the maximum posted speed despite darkness, fog and his knowledge of a controlled intersection. The trial judge found that visible stop signs, headlights and rumble strips provided warning cues that the accused failed to heed. His continued driving at speed for 10-15 minutes in those conditions amounted to more than a momentary lapse of attention and constituted a marked departure.
163In R. v. Andrew Ian Ranger, 2015 ONSC 1158, the accused drove at excessive speed, on the wrong side of the road, while having a blood-alcohol level more than twice the legal limit. The court concluded that this conduct constituted a marked departure from the standard of care.
164In R. v. Jeremiah (2021), 174 W.C.B. (2d) 200, the accused drove at 186 km/h in a 100 km/h zone on Highway 401 during rush hour, weaved between vehicles, raced another car, continued driving after running over a spike belt, mounted a curb to avoid a truck and failed to stop despite police pursuit. Carnegie J. found that this conduct amounted to a marked departure from the standard of care.
165Each case turns on its own facts. However, the authorities provide guidance on when conduct amounts to a “marked departure” from the standard of care expected of a reasonable person.
166In this case, Mr. Kazoun testified that he drove slowly through the parking lot. He did not even press the gas pedal and simply allowed the vehicle to idle as he made his way out from under the trees. He testified that he saw a mother and daughter in the process of leaving his parking spot. He correctly identified these pedestrians, as they are visible from the surveillance footage capturing the front of the restaurant. Mr. Kazoun slowed his truck upon detecting them to determine their path to ensure he avoided them.
167Mr. Kazoun told me that he paid attention and was certain he did not look at any electronic devices while driving through the parking lot. I do not accept his evidence in that regard. In his police statement, he acknowledged that he “could have been” looking down at his phone or iPad. Yet, two years later, on the stand at his own trial, he claimed to be certain that he was not. It does not make sense to me that the day after the collision he would allow for such a possibility yet, two years later, he could be so confident in his actions on the date in question. I want to be clear: while I do not find that he was using an electronic device, I reject his assertion that he was certain he was not.
168The Crown argued that speed was a factor and submitted that a reasonable driver would adjust their speed to account for pedestrian and vehicular traffic in a busy parking lot. I do not find that Mr. Kazoun’s speed of 11-14 km/h was inherently dangerous. The central issue is his failure to maintain a proper lookout while travelling at that speed in the circumstances.
169I find that Mr. Prydie took several steps onto the parking lot roadway when the tow truck struck him. This finding accords with the location of the spilled food and drink near the speed bump and with the fact that the tow truck ran him over on the driver’s side. Although not a tall man, Mr. Prydie would have been visible over the hood of the truck. He would have also been visible before stepping off the sidewalk, as Mr. McClure saw him standing at the Popeye’s exit grinning at him with their order in hand before the collision.
170I accept that Mr. Kazoun did not see Mr. Prydie. This is not a case of a delayed reaction. This is a case of no reaction at all.
171The question I must consider is whether Mr. Kazoun’s failure to keep a proper lookout and see Mr. Prydie before the collision or immediately after amounts to a marked departure from the standard of care. Although I would have no trouble finding that Mr. Kazoun acted negligently, criminal liability requires more. It is also insufficient to conclude that greater care may have prevented this tragic collision.
172I have asked myself whether I am satisfied beyond a reasonable doubt that Mr. Kazoun’s failure to see Mr. Prydie on the sidewalk or in front of his vehicle or to have been aware that he struck Mr. Prydie, when witnesses across Southdale Road observed him and saw food and drink fly into the air, constituted a marked departure, or whether that failure could reasonably amount to a momentary lapse in attention. I note that those witnesses observed the scene from a different vantage point than Mr. Kazoun. However, it no doubt leaves me to wonder how Mr. Kazoun, who presumably had a front row seat to these events, could not have made such an identification himself.
173This is a difficult case with tragic consequences. However, the standard of proof beyond a reasonable doubt in a criminal trial is exacting. On a spectrum, it is the last stop before approaching certainty. When considering that Mr. Kazoun’s driving before and after the collision presented no issues and all the relevant evidence on the record before me, I am simply unable to conclude beyond a reasonable doubt that his failure to observe Mr. Prydie amounts to a marked departure rather than momentary inattention.
CONCLUSION
174Mr. Kazoun, for these reasons, I find you not guilty on both counts.
Justice P.J. Moore
Released: April 28, 2026
Read out orally: April 10, 2026
The written decision is the official decision.
CITATION: R. v. Kazoun, 2026 ONSC 2524
COURT FILE NO.: CR-24-115
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
ABDUL KAZOUN
REASONS FOR JUDGMENT
Justice P.J. Moore
Released: April 28, 2026