2015 QCCQ 5221, 2015 QCCQ 5221

R. c. Burdayron 2015 QCCQ 5221 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-029641-096 DATE: March 25, 2015 ______________________________________________________________________ BEFORE THE HONOURABLE JUSTICE LOUIS A. LEGAULT, J. C.Q. ______________________________________________________________________ THE QUEEN PROSECUTION v.

JOHN VICTOR BURDAYRON ACCUSED ______________________________________________________________________ JUDGMENT (WRITTEN VERSION) ______________________________________________________________________ [ 1 ] There was an incident between the accused car and the victim's car of which he was not the driver on August 11, 2009. After that incident, the victim's car followed the accused car. 911 was called to denounce a hit and run by the accused and they were on line for some time. 911 was advised of an attempt to block the accused car. 911 instructed not to follow or block the accused's car.

The accused car was said to have escaped as he got on the highway. The attempts to have the accused come to a halt failed. [ 2 ] The victim and driver were to meet the police officer in the Kirkland mall to make a report. As they got to the Kirkland mall, the accused car was observed. The victim's car went to cut the laneway to the oncoming accused car. The victim immediately ran out of the car to the opposite lane waving with his hands and screaming. Within seconds the accused impacted the victim, the accident followed. The accused found himself on the hood and holding unto the windshield and wipers.

The car carried the victim over a distance of several feet, forty, fifty feet or more and finally the victim rolled off the hood as the accused drove away. [ 3 ] The accused went to his home that is within 3 to 5 minutes of the shopping mall and got hold of his cellular phone and called the police station some 20 minutes after coming home, He wanted to denounce the road rage of the victim and driver of that car.

He got to meet the police officers on the following day as suggested by the police on the phone. [ 4 ] INDICTMENT – The accused is charged with a hit and run [1] ( section 252 (1.2) of the Criminal code ), operating a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances [2] ( section 249 (1) a)

(2) a) of the Criminal Code ) and assault causing bodily harm to the person of Nicolas Villeneuve [3] (section 267

b) of the Criminal Code ). [ 5 ] The accused denies guilt, invokes self-defence on all counts. Although he acknowledges driving with the victim on his hood, he denies the commission of any criminal infraction as it was the victim that jumped on his car in circumstances where he felt his safety, his life was at risk.

Furthermore, the accused alleges that he acted with diligence to call the police and report as required in law the accident and that situation where he was a victim. [ 6 ] There was no debate whatsoever on the fact that these facts do per se or prima facie establish the commission of infractions of a hit and run, of dangerous driving and of assault causing bodily harm. Nonetheless, DEFENCE invokes self defence as a means of defence in law on all the counts.

Defence alleges that the PROSECUTION did not establish the guilt of the accused beyond a reasonable doubt as the accused used a legitimate measure of self-defence. THEORY OF THE PROSECUTION [ 7 ] The victim's car got bumped at a stop sign by the accused car lightly and repeatedly after he had honked the horns. The lady driver of the victim's car was taking care of her 7 years old in the backseat. The accused then in a sharp drastic manoeuvre showed his attitude in cutting off the way to the lady driver.

That got the lady driver to call the police, show her impatience and anger on a 911 call to denounce a hit and run by the accused. Instructed by 911 no to block the accused way or follow him, they followed him so long as it was not dangerous. The lady driver took the license plate number of the car driven by the accused. The lady driver kept on following the

accused car. The accused car escaped on the highway. The victim and lady driver were heading towards the parking of the shopping mall to have a police report prepared. [ 8 ] Some short time after getting to the parking of the Kirkland Shopping Mall, the two cars came face to face on a two way lanes, as the Toyota driver first cut off the road to the accused. 911 was advised that the accused car had been traced in the Kirkland Mall. As the victim's car cut off the lane to the accused car heading east, the victim ran out of his car.

He wanted the accused to get to a halt and to go and address the driver and talk to him. As he was heading towards the accused car while waving with his hands up and yelling at the oncoming car, the accused drove within seconds to hit him. The victim held onto the hood and windshield wipers of the accused car until many feet after, he rolled off that car. [ 9 ] The accused took off. He called the police some 20 minutes after getting home. He complained of having been the victim of a road rage incident. He showed the following day at the police local headquarters.

THEORY OF THE DEFENCE [ 10 ] The accused was driving home after shopping in the evening. He took notice hundreds of feet in advance of that Toyota car stopped at a stop sign which was still there when he got to that stop sign. He had to back off two times as the lady driver did so twice. There was no impact. He drove around the car. The lady driver changed her direction, did cut his way and chased him at a 10 feet distance even side by side at times until he could escape on the highway. There were several attempts to block his way.

He managed to escape from on the highway. [ 11 ] As the accused was driving eastbound in the shopping mall, his laneway was obstructed by the lady driver heading west. As he attempted to drive by the lady's car in the opposite lane, the victim got in his way at a few feet distance gesticulating with his hands. He was thought to be in possession of either a cellular phone or a knife. The victim jumped on his hood and windshield and remained on as the accused drove for some distance. After coming to a halt, the accused drove on a lane leading to a nearby street, slowed down to let the victim roll off.

He knew the victim was injured. [ 12 ] The accused was scared by the victim suddenly showing a few feet before his car. He thought the victim had possibly a knife. Furthermore, he thought that the other person in the Toyota car was threatening his safety and could harm him. He took off. He went home at a 3 to 5 minutes distance. The accused called the police some 20 minutes after he got home. He had gained access to his cellular. He wanted to denounce the road rage incident of which he had been the victim. He was told to show at the police station on the following day.

The following morning, it was agreed he would show up after work. He showed up and the accused invited the police officer to take notice of a clear hand imprint on the passenger's side of the hood. CASE LAW ON CREDIBILITY AND TRUSTWORTHINESS OF THE WITNESSES HEARD [ 13 ] TRUSTWORTHINESS AND CREDIBILITY – PRINCIPLES OF ANALYSIS OF THE EVIDENCE – The rules as developed by the Supreme Court of Canada regarding the analysis of the evidence do apply. Namely, the accused benefits until a verdict is arrived at of a presumption of innocence. The accused does not have to prove anything.

All of the elements of the infraction must be established beyond a reasonable doubt. For that purpose, the Court has to assess the credibility and trustworthiness of witnesses heard. If the accused testimony raises a reasonable doubt and offers a mean of defence, he shall be acquitted forthwith. Although disbelieved, if the accused evidence raises a reasonable doubt in the context of the whole evidence, he shall then be acquitted. In any case, the Crown has an obligation to prove guilt beyond a reasonable doubt.

The conclusions of the judge should demonstrate a fine appreciation and assessment of the whole evidence. ( W.(D.)) . [4] That reasonable doubt can be raised on an essential element of the infractions pursued or through a means of defence. The burden is always on the PROSECUTION to show guilt beyond a reasonable doubt. [ 14 ] The evidence shall be assessed in its entirety and not element by element. [5] The accused does not need to contradict the evidence of prosecution to benefit from the reasonable doubt.

On contradictory versions, a judge is not to make a choice of which is the more likely to be true. [6] The burden is not on the DEFENCE to show that the accused does not say the truth as that would atrophy the presumption of innocence.

Questions such as the presumption of innocence and the assessment of the evidence are not merely questions of form but of substance. [7] [ 15 ] The Honourable Patrick Healy of the Quebec Court, did on the assessment of credibility of witnesses say the following: «The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of truth.

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

Only thus can a Court satisfactorily appraise the testimony of quick- witted, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken.» [8] [ 16 ] These principles have been affirmed in several decisions of the Supreme Court of Canada [9] . There is no automatic formula to be followed in the assessment of the evidence.

The verdict arrived at should demonstrate a careful examination of the evidence. A reasonable doubt cannot be frivolous or imaginary. It must be based on good common sense and on reason. Any reasonable doubt should be inferred from the evidence or its absence. [ 17 ] The Ontario Court of Appeal in R . v. Thu Van Bui [10] reminded that the level of reasonable doubt was to be understood as «a conclusion sustainable at a threshold significantly lower than a "reasonable inference" from "proven facts"». [11] The Appeal Court also in R . c.

Johnson , reminded that in assessing circumstantial evidence, guilt shall be the only inference or logical inference of reasonable inference to draw from the whole of the evidence. [12] [ 18 ] ASSAULT CAUSING BODILY HARM – PROSECUTION has to establish both the actus reus of the infraction, which is a behaviour on the part of an accused causing bodily harm and the mental element.

[ 19 ] The actus reus consists of the element of facts as enunciated in

section 265 of the Criminal Code and namely in (

a) of

section 26 «without the consent of another person, applying force intentionally to that other person directly or indirectly.» The mental element includes the «objective forseabillity of the risk of bodily harm in general.» There is no need for the PROSECUTION to show the objective foreseability of the risk of specific type of harm that actually happened [13] . This is a crime of general intent. [14] [ 20 ] DANGEROUS DRIVING - The Supreme Court of Canada in R . v.

Roy states as follows: « Dangerous driving […] consists of two components: prohibited conduct – operating a motor vehicle in a dangerous manner resulting in […] – and a required degree of fault – a marked departure from the standard of care that a reasonable person would observe in all the circumstances [...] Determining whether the fault component is present may in turn be done by asking two questions. First, in light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?

Second, was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?» [15] « […] In light of all the relevant evidence, (would) a reasonable person …have foreseen the risk and taken steps to avoid it if possible. » [16] [ 21 ] MODIFIED OBJECTIVE STANDARD TO BE APPLIED – «The marked departure from the standard expected of a reasonable person in the same circumstances – a modified objective standard – is the minimum fault requirement.

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 (para. 40)». [17] LAW REGARDING SELF-DEFENCE CASE LAW ON SELF DEFENCE [ 22 ] Kent Roach [18] reminds that the proportionality test of the act done in self-defence is to be applied considering the factors as enumerated in section 34 (2) of the Criminal Code . [19] These factors can all be grouped under the general heading of the proportionality and relative harm of the force resisted or threatened and the force used by the accused.

At the same time, the only absolute requirement in section 34 (1) (

c) is that the act done must be reasonable in the circumstances. [20] [ 23 ] Kent Roach goes on as follows in summarizing self defence as it was redefined in the Criminal code : « Nevertheless, the new

section 34 retains the basic elements of self-defence in that the accused must subjectively perceive a threat or respond for the purpose of defending themselves or others and there must be a reasonable basis both for the accused perceptions of force or threat of force and the accused response in the circumstances.

The trend toward as a contextual application of objective standards also continues with specific reference to the characteristics and history of the parties to the incident. » [ 24 ] REASONABLE DOUBT ON PERCEPTION OF THREAT OR FORCE, OF SUBJECTIVE PURPOSE OF DEFENDING AND ON THE ACT BEING REASONABLE IN THE CIRCUMSTANCES – In order for self-defence to be left to the jury.

There must be evidence upon which a jury acting reasonably could find 1) a belief on reasonable grounds that force or threat of force is being made against the accused or another; 2) that the act was done for the subjective purpose of defending the accused or the other person; and 3) that the act was reasonable in the circumstances.

In order to justify an acquittal, there must be a reasonable doubt about each of those three requirements. [ 25 ] In many cases, the Courts have come to the conclusion that the simplified law on self-defence as now prevails since March 11, 2013 restructured the previous sections 34 and 35 of the Criminal code and reconciled what were distinct and complex and even difficult to reconcile provisions. [21] It can be understood that these new provisions of the law on self-defence as they reconcile and simplify without contradicting the prior sections of the law, are not only applicable prospectively but also retrospectively.

These new provisions were taken to consolidate the state of the case law and should therefore benefit the accused as it appeared to have settled the ambiguities in the law or its application. [22] DISPUTED FACTS [ 26 ] How did the whole ordeal start? The accused bumping in repeatedly and aggressively the victim's car or the lady driver backing repeatedly on him, cutting his way and repeatedly attempting to block his way. [ 27 ] How did the hit and run happen? At what distance was the victim from the car of the accused as he came in front?

Was the victim or the driver of the Toyota reasonably perceived as threatening or about to use violence against the accused? Did the accused have reasons to fear for his safety? Did the accused at the time of driving towards the victim and thereafter have reasons to fear the victim or the Toyota driver? [ 28 ] What was the demeanour of the victim before, at the time and after the hit? What was perceived by the accused? [ 29 ] How long did it take for the victim to roll off the hood? What was the accused way of driving from the time of the hit to the time of the run when the accused had rolled off the hood?

How should the attitude of the accused hitting and running be qualified? [ 30 ] Were there reasonable grounds for the accused to believe he was assaulted or threatened by the victim or the Toyota driver taking into account the whole circumstances, the context of the pursuit and the encounter of the shopping mall? Did the accused develop a perception that the victim was having a weapon in his hands? Was the accused fearful of the victim or of the driver of the Toyota? [ 31 ] Was the accused justified in running away and reporting as he did to the police officers some 25 minutes after the incident?

ANALYSIS OF THE EVIDENCE [ 32 ] FIRST HIT AND RUN – Totally unbelievable the account of the accused that he did not bump in repeatedly the Toyota car driven by a lady driver. The accused version does not stand, has no likelihood. Unbelievable that the reaction of the lady driver resulted from the simple fact he tried to pass her car. She had stalled him for too long a period at a stop sign. The Toyota car had been observed

hundreds of feet in advance immobilised at that stop sign. No doubt that the accused developed a road rage and so manifested as he took off and cut the way to the Toyota. [ 33 ] The accused version has no credibility when he says that he had to back off on two occasions because of the behaviour or poor control of her car by the lady driver. The call to 911 by the victims, however impolite and abusive, was clearly for a hit and run. The victim is trustworthy regarding that hit and run of the accused.

It can be said that the victim and lady driver did not have time then to ascertain the damages to the bumper of the Toyota. Indeed, the accused showed quite a road rage and did not act according to his obligations after an accident. The accused did not expect the Toyota to take issue on his behaviour. [ 34 ] ESCAPING THE TOYOTA VICTIMS THAT WERE SUMMONING THE ACCUSED TO COME TO A HALT – Notwithstanding the allegation of attempts by the Toyota driver to block him, the accused car was not blocked.

The accused stated that he had recognized the victim in the pursuit that went on and that he had managed to keep a distance of 10 feet generally from the Toyota car. Indeed there were no more than attempts to invite or summon the accused to come to a halt. That is the reality. The accused escaped on the highway. [ 35 ] AWARENESS OF THE PRESENCE OF A LADY DRIVER – It is long in advance that the accused became aware of the presence of the Toyota driven by the lady driver.

When the accused states that he had remarked the presence of two occupants in the Toyota, as the windows of that car were not tainted, his denial of awareness of the presence of a lady driver is unbelievable. Namely, there was that first opportunity to observe during a rather lengthy lapse of time that blond lady when she turned towards the back seat to take care of her child. [ 36 ] Furthermore, undoubtedly, in the shopping parking mall, when the accused laneway was blocked eastbound, the accused had a unique and general view of the driver through an untainted windshield.

That was clearly witnessed by the sole independent witness whose car was in quite the same angle as the accused car. Inescapable finding for the accused. The accused denial is unbelievable. Furthermore, the accused who stated that he maintained generally a 10 feet advance on the victim's car during that pursuit had a mirror access to view generally the blond lady profile of this Toyota driver. [ 37 ] The accused assertion that he only got to know the presence of the lady only upon disclosure of the evidence or at the police station is not believed.

The accused had at different times and clearly when facing the Toyota a privileged view. Furthermore, he had recognized the victim who was the passenger in the Toyota car. The accused pretences he never became aware of the presence of a lady in the car and feared the presence of another man is unbelievable and is not a reasonable or possible inference to be made in the circumstances. The accused tortured the truth on these aspects of the evidence. Other aspects of the evidence permit to so affirm. [ 38 ] So, why did the accused refuse to come to an halt.

At least, it had to do with his impression that there were no significant damages to the Toyota he bumped in and his knowledge he had acted wrongly and foolishly as he undertook to escape to no avail very finally. And why if the accused was scared for his safety, did he not ask for police officers to come to his home to get the investigation going? On that, the accused behaviour speaks to his ongoing running away for reasons that have to do with his illegitimate and criminal behaviour.

Running away from the shopping center followed the aggravated conduct of the accused as it remains unbelievable he feared for himself. [ 39 ] REASONABLY INCREDIBLE, TOTALLY UNLIKELY AND UNFOUNDED – The accused alleges how fearful he got. It is reasonable to objectively and subjectively conclude that the accused never entertained a reasonable concern for his safety. He was escaping and wanted to escape responsibility fat least for what he did. He did everything not to get identified, at least hoped so.

He was upset certainly at the idea of being followed when as he states there were no damages to his car or her car. These words of the accused were not meant to be an admission. But, they were undoubtedly part of what the accused thought or hoped as he drove away. Unbelievable that the Toyota occupants would have reacted to the accused simply appearing to have cut his way from the stop sign. That was not the situation. That leaves no doubt. [ 40 ] ROAD RAGE OF THE VICTIM OR OF THE LADY DRIVER – The accused said he feared the road rage of the Toyota occupants.

He excels in questioning the morality of that mother driving in such a way. He develops certainly some apprehensions. He knows he is the one who started the whole endeavour with a hit and run. He has refused throughout to come to a halt and face the victims of his behaviour who were that insistent. The accused knew how wrong he acted. He wants solely to escape any responsibility. That is understood. [ 41 ] The accused has a vague account of an impression that the victim may have had in his hands or a cell or a knife. That is no more than an unfounded excuse for hitting and running on the victim.

It is not believed at all that within 2 to 5 feet of hitting the victim, the accused behaviour already accelerating had to do with any thinking that the victim had a weapon. The accused only saw when heading to make his way that the victim gesticulated with open hands in the air and screamed. [ 42 ] The accused testifies that he did not hear any sound, neither any word. That is disbelieved. He did not only see the victim screaming, he most certainly could hear the person yelling. He knew that the victim wanted him to come to a halt and had his hands in the air for that purpose.

And, to be clear, he knew why and it had been so, throughout. Any pretention that the accused may have believed that the victim had a knife does not stand. There is place for no such finding, no such belief in the context of the whole circumstances or upon examination of the accused version in the whole context. The accused disliked being pursued and even more, disliked when being that wrong, facing again the same Toyota occupants. [ 43 ] There were no reasonable grounds for the accused to react by a hit and run, to fear the force or a threat of force of the victim or of the Toyota lady driver.

It is not at all believed that the hit and run was achieved for the subjective purpose of defending himself. No such finding and no such belief by the accused. The accused offers a totally unlikely version. [ 44 ] SELF-DEFENCE – When the accused testifies that he feared for himself, that the victim jumped on his car, nothing in his observation of the victim holding unto his car, feeds any feeling of fear. The accused drove at a faster pace towards the victim and accelerated. That had nothing to do with any fear of the victim or of the lady driver. The victim wanted to go and talk to the accused.

He was not given that opportunity. The accused was not to open his driver's window or talk with the victim. The victim does not recall what

he said but he knows he wanted the accused to wait for the police to come. That was the main purpose. The accused did not want to come to a halt as he was involved in a hit and run. [ 45 ] There is no surprise that at a rather slow and increasing speed the victim got hit and ended on the hood of the accused car. Whatever was the speed the accused got, it was perceived by the independent witness as having been real and high. For the victim, the accused came at a growing speed from a relatively slow one.

The accused did not relate seeing any weapon in possession of the accused at the time he was giving him an unwarranted ride The accused cannot in any way reasonably ground the use of that violent hit and that running over 40 feet at a faster speed with the victim onboard in the context of the whole circumstances. The accused did not want to stop. He did not want to be arrested and in any case, he feared that much. He did not develop any grounds for his fears.

And finally he got involved in a second hit and run. [ 46 ] Did the accused slow down several meters after the hit to let the victim get off is possible but does not contribute to believe reasonably in self defence on the part of the accused. There were no grounds whatsoever for the accused to run away. His hit and run, and dangerous driving and his assault were not achieved for the subjective purpose of defending himself. That is it. [ 47 ] Strangely, there were opportunities for the accused to solve any alleged concern in facing the victim. He chose to escape.

He did not see fit to stop his car, to take advantage of the pedestrians who walked by, of the surrounding boutiques to go and seek help, or make a call as he pretends he did not have his cell on him. He did not see fit to change laneways and direction. He did not see fit to avoid hitting and running with the accused on the hood of his car. He did not see as of importance to ask for the immediate investigation of people he suspected, so he says, of being West Island criminals, gang members.

He did not insist on the police officers coming to his home as he feared so much the victim and the other occupant of the Toyota car. He did not disclose a need of protection or to have the investigation started. He states nothing some 25 minutes after the hit and run of his fear of the victim. He needs no such police protection or investigation before the next day's evening. He discloses nothing of his own behaviour and error.

He lies about his own illicit actions, about his outgoing road rage. [ 48 ] What is it that got the accused to act with rage and disproportion against a driver immobilized on a stop sign for too long in his own opinion except his own determination never to face his responsibilities and the consequences of his wrongful act?

A very serious error of judgment that lasted the time of 2 hits and run. [ 49 ] The injuries suffered by the victim do not in any way disqualify his credibility or his trustworthiness that the accused ran on him. [ 50 ] The accused stated that before the impact, a delay of 3 to 5 seconds could be counted. The accused also states that the victim came before his car between 2 to 5 feet before he got to him. In any case, there was no attempt by the accused to come to a halt.

He had time to do so or reduce the risk of injuries to the victim. [ 51 ] As the accused chose to drive dangerously and hit and run the victim and drive with the victim on his hood and to assault him with his car, he committed all of the three infractions he is indicted with. Hitting the victim as he did and accelerating and slowing down at a distance of 40 feet, 50 feet or even much more (as the exhibits would tend to show) and doing a bunk and taking off to avoid assuming his responsibility and abiding by his obligations under the law, is called a hit and run.

It was evidence of dangerous driving and assault causing bodily harm as demonstrated. There is not surprise that the victim was seen as being unhappy, even mad. What else could the victim's reaction be? Nothing however to induce fear for the accused safety. In any case, the accused did not develop reasonable grounds to fear for his safety regarding the lady driver in her car.

Furthermore, there was no evidence of a Toyota driver seen by the accused stepping out of her car at any relevant time. [ 52 ] Indeed, the accused offered a contradictory statement as to the whole context, he offered half-lies hoping to ground the legal requirements of self-defence. The accused testimony was inconsistent with the currently existing context.

He offered a combination of a rather skilful exaggeration and suppression of the truth that does not in any way contribute to raising any reasonable doubt as to the accused guilt. [ 53 ] TESTIMONIES OF THE WITNESSES OF THE CROWN – Notwithstanding the honest mistakes of the PROSECUTION witnesses on that incident that took place approximately 5 years ago, their general account of the accused committing the infractions alleged is trustworthy and they are believed on the essentials and so many details even if their memory had to be refreshed. [ 54 ] The victim's version suffers from an adamant attitude to police the accused, to have him arrested, to teach him a lesson.

He and the lady driver were not exactly obedient to the police instructions. But, as they had given up on chasing the accused or as they believed the accused had escaped, there he happened to be. The victims appeared to have lacked judgment. The accused did lack judgment and clearly then acted in a criminal fashion as he desperately wanted to avoid taking responsibility for what he did. The accused was not obliged to step out of his car. He could have simply stayed there after the first hit on the Toyota car. He knew why the victim and the driver were upset.

He knew why he ran away. [ 55 ] POOR ACCOUNT OF THE INDEPENDENT WITNESS AND OF THE VICTIM – Let it be clear that the victim remembers only generally the incidents as his memory is tricked by the intensity of the incidents that will happen Let it be clear that the witness Grotto does not remember with nicety the events that happened 5 years prior when he was 19 years old. He keeps an impressionist memory of the incidents. [ 56 ] His general account of a hit and run stands whatever are the loopholes or honest mistaken souvenirs.

His visual memory is well served generally and trustworthy on the accused general behaviour, on his observation of the occupants of the car and victim. In fact, he sees the Toyota car and the occupants, he sees the victim running rapidly out of the Toyota to face the car of the accused who will appear driving fast and indeed the accused accelerated as he passed the car of the witness. The impressions of the witness is also served by the sounds and a general assessment of the speed which although exaggerated also points out to the accused speeding up after hitting the victim.

It is clear that whatever the speed of the accused was at the time of the hit, it was not excessive to the point of having the victim fly as a result of the impact. Everything happened very fast. It is understood that the accused drove more rapidly after the victim got on the hood. Even on the distance covered by the victim on the hood of that car, Mr Grotto's memory is not at all faithful. His first testimony or statement regarding the distance covered by the victim on the hood of the accused car, remains vague and was contradictory

at trial as it was then for a short distance. The witness first account assess that distance as being of approximately 40 feet. The accused testimony on that prevails easily and can serve to detail the circumstances. CONCLUSION ON SELF-DEFENCE APPLICATION OF THE LAW TO THE FACTS [ 57 ] The Court gives act of the fact that self-defence can in law be pleaded on all counts. [ 58 ] WERE THERE REASONABLE GROUNDS THAT FORCE OR THREAT OF FORCE WAS BEING MADE AGAINST THE ACCUSED? WAS THE ACT DONE FOR THE SUBJECTIVE PURPOSE OF DEFENDING HIMSELF? WAS THE ACT REASONABLE IN THE CIRCUMSTANCES?

For the accused to be acquitted, it suffices that there be a reasonable grounds on these 3 requirements. The Court in applying a test of reasonableness to the «relevant circumstances of the person, the other parties and the act as set in section 34 (2) [23] and not limiting these circumstances to the factors as outlined, can only conclude that the accused alleged self- defense is unfounded». [ 59 ] THE NATURE OF FORCE AND THREAT – The accused exercise of force did not result as a measure of defense against any threat of violence or any violence of the victim even in the context of the whole circumstances.

The nature of the force used by the accused was in no relationship whatsoever with any belief based on reasonable grounds that he was the victim of a threat to his safety. The accused is not to be believed that he was reacting to the possession by the victim of a knife. On that, the accused remained vague and was even contradictory as he was adapting his version from an open hands gesticulating to a one hand clapped on what could be a cellular phone, certainly not a danger to him, or a knife with however no details permitting to believe that he saw any blade.

The victim was attempting to do no more than halt the car and hopefully come to speak with the driver. Nothing that the accused wanted. No gestures are directed at the accused save an invitation to stop. The accused decision to continue driving and even accelerate is not grounded on any belief, reasonable or not, that he was the subject of a threat or assault. That is so even as the victim holds for quite some time to his car. The trace of the handprint on the hood does not support in the context of the whole evidence the accused version.

Indeed, the medical state of the victim supports the victim's version. [ 60 ] The main and dominant fear that got the accused to do a hit and run is and was that fear of being arrested for everything he did wrong in the course of these less than 10 minutes incidents. [ 61 ] THE EXTENT TO WHICH THE USE OF FORCE WAS IMMINENT AND WHETHER THERE WERE OTHER MEANS AVAILABLE TO RESPOND TO THE POTENTIAL USE OF FORCE – Clearly there were no grounds or even reasonable grounds on the part of the accused to fear the imminence of the use of force against him. He never feared the victim or the driver of the Toyota car.

Nothing grounds any reasonable fear or any fear whatsoever except the creative mind of the accused after the whole events and after he had called the police some 25 minutes after his hitting the victim and running away from the scene. Indeed it can be said that the accused was caught up in his errors of judgment as they build up until the hit and run. All the accused wanted all the way along was to escape. The accused alleged fear of any imminent violence is unbelievable and unreasonable at the time of the incident.

His behaviour also after the fact also affirms that he did not fear the victim or the occupant of the car. [ 62 ] THE PERSON'S ROLE IN THE INCIDENT – The accused manifestly is the prime source of the events that led to this HIT AND RUN apparent incident. Indeed the Toyota people kept tracking him. They did not accept his flight as a valid answer. They were unhappy with the slow intervention of the police task force.

The accused had an important role as he did not abide by his responsibility to come to a halt after the first hit and run and as he decided in that laneway of the shopping center to hit and run away from the victim. [ 63 ] The accused allegations are untrustworthy, senseless and invented and have no grounds whatsoever. He chose not to change his way of driving as he had decided no one would get him to face his responsibilities.

And indeed, it may be worrying that people would insist to the point of tracking and trying to police the accused as they wanted him to come to a halt and face police officers for his hit and run and his aggressive behaviour. The victims may not have been wise. But they did not adduce in the mind of the accused belief on reasonable grounds that they were going to be violent with him.

The accused has no grounds of defence to the charges of hit and run, dangerous driving or assault causing bodily harm. [ 64 ] THE SIZE, AGE, GENDER AND PHYSICAL CAPABILITIES OF THE PARTIES TO THE INCIDENT – The accused showed how uncontrollable he was. The Toyota people displayed intolerance regarding the uncivil and violent behavior of the accused. The accused knew what had provoked the anger of the Toyota people and did not expect such resilience in their ongoing determination to have him arrested. Nothing exceptional can be said as to the size or physical capabilities of the victim or the driver of the Toyota.

The accused is not to be believed he did not know that the driver of the Toyota was a lady. Certainly the lady driver was a foul-mouthed, impolite lady when she talked her heart to 911.

She had reasons to be very much hurt by the accused behavior as she had her child in the car. [ 65 ] THE NATURE, DURATION AND HISTORY OF ANY RELATIONSHIP BETWEEN THE PARTIES INCLUDING ANY PRIOR USE OR THREAT OF FORCE AND THE NATURE OF THAT FORCE OR THREAT AND ANY HISTORY OF INTERACTION AND COMMUNICATION BETWEEN THE PARTIES TO THE INCIDENT – The parties that led to the incident has no other history but that road rage and stubborn decision against 911 notice until the highway to persist in demanding the accused to come to a halt. [ 66 ] The fear of being admonished, of having to render account, of being arrested led the accused.

The fear of admitting his tort, his wrongdoing was key in his behaviour. The accused was good at scaring others, provoking others. He failed his duty of citizens several times. There was nothing that can justify his criminal behaviour. There was nothing in his acting out that can be labelled as self defence. [ 67 ] THE NATURE AND PROPORTIONALITY OF THE PERSON'S RESPONSE TO THE USE OR THREAT OF FORCE AND WHETHER THE ACT COMMITTED WAS IN RESPONSE TO A USE OR THREAT OF FORCE THAT THE PERSON KNEW WAS LAWFUL – The accused reacted in a way that had no proportion to the threat or force used to get him to come to a halt.

They may not have been ideal the attempts of the driver of the car to try to force him to come to a halt, It was not unlawful, It simply was in no

way a response of a nature and extent that should have gotten the accused to assault the victim. [ 68 ] The use of a car as a weapon by the accused was grossly unreasonable. There was no imminent use of force threatened with. The accused chose the course of action to get the victim out of the way. He never changed his course of driving. The accused did not chicken out on his attitude. He went through. He chose to hit and not refrain from hitting the victim with his car. He drove with the victim hanging to his windshield on a significant distance and for a significant lapse of time.

His actions were directed throughout to escaping his responsibilities. The force displayed was totally unreasonable, excessive, without any reasonable or necessary foundation. The testimony of Mr. Grotto, the independent witness, despite the frailties of his memory, supports the absence of any reasonable grounds for the accused to behave as he did. [ 69 ] Self defence did not get the accused to drive as he did and hit de victim and run away. [ 70 ] Indeed, the credibility of the account by the witnesses appears to be hindered by those 5 years passed and by the traumatic experience of the victim.

The independent witness statement has certainly many weaknesses, but his statement made after the accident appears to confirm some of the affirmations of many. It appears that the witness has developed a memory of the incidents where he may have accrued a conviction that the incidents happened as he recounted these. His prior statements and testimony were taken righty by that witness much more likely to be in line with what happened. [ 71 ] No surprise that the victim's account of the circumstances has some weaknesses. These weaknesses in the victim's testimony are not to be interpreted as a show of bad faith.

The trustworthiness of the victim's account stands as he is confirmed in so many ways as to the timing, as to his unusual efforts to pursue the accused, as to the fact he and the lady driver had lost sight of the accused when he got on the highway, as it is believed that unexpectedly they came to again meet the accused in the shopping mall and as they intended to have the police report then prepared. [ 72 ] The victim's version is generally trustworthy although part of his testimony were impressionist regarding the speed of the vehicle driven by the accused at the time of the hit and thereafter. Mr.

Grotto's version leaves no doubt that the accused did not jump on the car in that voluntary fashion as described by the accused. The victim terminates his testimony in confirming that the speed of the accused at the time of the hit might have been considerably lower and that the accused drove faster after. The accused alleges that after 40 to feet with the victim on the hood, he come to a stop and then went on and slowed down to let the victim roll of his car. That may be. [ 73 ] It cannot be said that the victim's behaviour was ideal.

The 911 call illustrates the fact it is the victim's initiatives to block the way to the accused car also illustrates he needed not act to block the accused car. But that together with his behaviour throughout does not contribute to weaken the strength of the evidence against the accused. [ 74 ] In order to justify an acquittal, there must be a reasonable doubt about each of those three requirements. The accused fails.

The accused did not act in self-defence. [ 75 ] On the count of dangerous driving, the Crown has established a marked departure by the accused from the standard expected from a reasonable person in the same circumstances. A reasonable person would have foreseen the risk and taken steps to avoid it. The Court makes the finding that that dangerous driving was deliberate and dangerous. [ 76 ] On the count of assault causing bodily harm, the evidence shows the guilt. [ 77 ] On the count of hit and run, the evidence proves guilt.

The late call to the police does not in any way permit an inference that he did not run away. It was too late and the evidence does not support any proposition of self defence.

His silence in his first call to police officers that he feared being targeted by gang members or ill-intended criminals also contributes to disqualify any proposition of self defence. [ 78 ] It was a must that there be evidence upon which a person truly acting reasonably could find 1) a belief on reasonable grounds that force or threat of force is being made against the accused or another; 2) that the act was done for the subjective purpose of defending the accused or the other person and 3) that the act was reasonable in the circumstances.

In order to justify an acquittal, there must be a reasonable doubt about each of those three requirements. [ 79 ] The Crown has shown beyond a reasonable doubt that the accused was not acting in self defence and that he is guilty on all three counts as pursued.

Therefore the Court declares the guilt of the accused on all counts, namely: Count 1: That, on or about August 11, 2009 in Montréal, district of Montréal, having the care charge or control of a Nissan Altima automobile, that was involved in an accident with Nicolas Villeneuve, knowing that bodily harm had been caused to Nicolas Villeneuve, with intent to escape civil or criminal liability, did fail to stop the vehicle, give his name and address and Nicolas Villeneuve having been injured or appearing to require assistance, committing thereby the indictable offence provided by section 252(1.2) of the Criminal Code .

Count 2: That, on or about August 11, 2009 in Montréal, district of Montréal, did operate a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances, committing thereby the indictable offence provided by section 249(1) a)

(2) a) of the Criminal Code . Count 3: That, on or about August 11, 2009 in Montréal, district of Montréal, in committing an assault on Nicolas Villeneuve, did cause bodily harm to the said person, committing thereby the indictable offence provided by

section 267b) of the Criminal Code .

__________________________________ LOUIS A. LEGAULT, J. C.Q. M e Pierre Garon Attorney for Prosecution M e François Audet Attorney for Defence Date of hearing: 13 May and 17 October 2014