R. v. Keita, 2012 ONCJ 831

COURT FILE No.: Toronto Region, Metro North Court DATE: 2012·09·05 Citation: R. v.

Keita , 2012 ONCJ 831 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JUNE KEITA Before Justice Carol Brewer Heard on April 12 and 13, 2012 Reasons for Judgment released on October 24, 2012 Paul Alexander ....................................................................................................... for the Crown Leonard Stigler .............................................................................. for the defendant, June Keita Brewer J.: Introduction [ 1 ] June Keita is charged with committing the following offences on October 20, 2010: • failing to remain at the scene of an accident causing bodily harm; • criminal negligence causing bodily harm; and • dangerous driving causing bodily harm. [ 2 ] These charges arise out of a tragic incident in which the vehicle operated by Ms.

Keita struck and ran over her co- worker, Savita Kubarie, while exiting a parking space in a parking lot at their workplace. Ms. Kubarie suffered serious injuries, including fractures to her left cheekbone, 6 to 8 of her ribs, the left scapula, right hand, and one vertebrae; two damaged disks in her back; and bruising on her right leg and back. The complainant spent 10 days in the hospital, had extensive physiotherapy and has been unable to work since the collision. [ 3 ] There is no suggestion that the collision was deliberate, in the sense that the defendant intended to run over her colleague.

Rather, the issue in this case is where on the continuum between accident and criminal negligence, the Crown has proven that this case falls. The Evidence [ 4 ] It is not disputed that Ms. Kubarie and the defendant worked a shift that ended at 11:00 p.m. on October 20, 2010. Ms. Keita left building 8 of Symcor and hurried through the parking lot to her vehicle about two minutes before the complainant entered the lot. It was cool and rainy at that time. The two women, as well as other employees, went behind the parked cars while going through the lot to their vehicles.

The parking lot is flat, [1] properly paved, and was free of debris. Ms. Kubarie’s automobile was parked three or four parking spots past the defendant’s car. While the parking lot is darker in some places, there was a light standard approximately two car widths from the rear of the defendant’s vehicle, as well as lights on the outside of the building where they worked. [ 5 ] A surveillance video of the parking lot showed that Ms. Keita used a remote device on her car key to unlock her Chevy Blazer. About 40 seconds after entering the vehicle, the car was turned on and the headlights were visible.

The defendant put on her windshield wipers and front defogger to clear her windows. According to Ms. Keita, the “check engine” light on her dashboard lit up as soon as she turned on her car. While this concerned the defendant, she was not worried about the safety of the vehicle and chose to drive

it. [6] Two pedestrians, later identified as Jo-ann Gallagher and Imelda Faminial, walked by the defendant’s vehicle, sharingan umbrella. Savita Kubarie entered the parking lot about a minute after Ms. Gallagher and Ms. Faminial passed the defendant’s car. The complainant had her black jacket pulled up to cover her head. Under the jacket she was wearing blue pants and a light gray sweater. [7] Ms. Keita’s vehicle had been backed into its parking space, so that the front of the car was facing outwards towards theroad. As Ms. Kubarie moved towards the defendant’s automobile, Ms.

Keita pulled out of her parking space. However, when thedefendant noticed two other cars approaching, she reversed direction and moved back into her parking spot. [8] The complainant stopped and waited for a few moments after Ms. Keita moved out of and back into her parking space. Before walking in front of the Blazer, Ms. Kubarie looked directly at the defendant, who was gazing in her direction. The complainantassumed that Ms. Keita saw her, as they had a clear, unobstructed view of each other. [9] A one-way sign was located on the opposite side of the road, directly in front of the defendant’s vehicle.

The trafficwas meant to travel to the defendant’s right. Although she was aware of both the sign and the proper flow of traffic, Ms. Keita made aconscious decision to drive the wrong way on the one-way street. There was evidence that it was not unusual for employees of Symcorto ignore the one-way signs, despite the company posting memos, sending emails and holding meetings to emphasize the importance ofobeying the signs. The defendant had only been in this building at Symcor for 3 months.

There is no evidence that she was aware of thecompany’s efforts in seeking the employees’ compliance with the rules of the road while on the business’ private roadway. Ms. Keitaadmitted having disobeyed the one-way sign a couple of times prior to this incident. [10] When the complainant had moved just past the driver’s side headlight on the Blazer, Ms. Keita drove out of her parkingspot, turned to the left and struck Ms. Kubarie. The complainant called out to Ms. Keita, but was not heard.

The surveillance videoshows the Blazer driving onto the complainant’s body, stopping for a few seconds and then proceeding to the end of the road. Themovement of the vehicle as it bounces onto and off of the body is clearly apparent. Ms. Kubarie described seeing the brake lights of theBlazer as it reached the end of the parking lot and believing that Ms. Keita was stopping in order to come back to assist her. That hopewas dashed when the car continued out of her sight. [11] Ms.

Faminial noticed the defendant’s car stopping for a few seconds, almost directly in front of her car, as she waited todrive herself and Ms. Gallagher home. When Ms. Faminial began to drive forward, she saw something move on the pavement, whichappeared to be a person’s head. She backed up, exited the vehicle and discovered the complainant lying on the ground. Ms. Faminial ranto the building to summon help and Ms. Gallagher called 911. [12] Ms. Keita left the Symcor property and drove to her residence.

Immediately after the defendant reached home, she wascalled by police and directed to return to the scene of the collision. Ms. Keita picked up her mother and the two women drove to Symcorin the defendant’s vehicle. When advised by Constable Li that her vehicle had struck a colleague in the parking lot, the defendantappeared shocked and began to cry. [13] Ms. Keita acknowledged knowing that people would walk through the parking lot in order to get to their cars and seeingpeople do so on the night of the collision.

The defendant maintained that she was paying attention and that she checked to her left, rightand through the front windshield before moving her car forward to leave the parking lot. There were no distractions that affected herability to drive. Her vision is perfect. Ms. Keita testified that she did not see the complainant, nor did she feel any bump, unexpectedmotion and anything under the car. The defendant did not hear anyone call her name. Ms. Keita explained that she stopped on the roadbecause her engine light was fluctuating.

At the time of the trial, June Keita still did not accept that her car hit the complainant. [14] The defendant took a defensive driving course before getting her driver’s licence in 2003. Between 2003 and thisincident, Ms. Keita had a clean driving record. However, on October 20, 2010, the defendant’s vehicle was uninsured. She hadretrieved her car two days earlier from her mechanic and had not reinstated her insurance. Ms. Keita admitted that she had made aconscious choice to drive knowing that she did not have insurance. The Fundamental Principles [15] In this case, Ms.

Keita is presumed to be innocent, unless and until the Crown has proven each essential element of theseoffences beyond a reasonable doubt. [16] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack ofevidence. [17] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requiresmore. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

At the same time,reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. [18] In weighing the credibility of the witnesses in this case, I remind myself of the principles articulated by the SupremeCourt of Canada in R. v. D.W. (1991), (SCC), 63 C.C.C. (3d) 397. [19] Assessed in the contest of the evidence as a whole, I do not believe Ms. Keita’s evidence, nor does it raise a reasonabledoubt in my mind. I find that her evidence was unreliable for the following reasons: • There were internal inconsistencies in the defendant’s testimony. For example, Ms.

Keita stated that, when the engine lightturned on, she was concerned that the car was unsafe but, regardless, she chose to drive it home. Shortly thereafter the defendant assertedthat she was not concerned about the car being unsafe, but was worried that the engine light had appeared;

• There were discrepancies between the defendant’s statement to the police and her evidence at trial. By way of illustration, Ms. Keita told the police that she did not stop or slow down at all after pulling out of her parking space. Yet, at trial, she said that she stopped her car because the engine light was fluctuating; • There were inconsistencies between the defendant’s testimony and the surveillance video. For instance, Ms. Keita initially explained the 40 second delay between entering her car and turning it on by saying that she needed to find the keys in her purse.

Subsequently, when confronted with the videotape, Ms. Keita admitted that she used the keys to unlock her car from a distance and that her earlier answer was not true. The delay was then attributed to wiping the rain from her face; and • Certain portions of the defendant’s evidence appear illogical. For example, Ms. Kieta’s inability to see the complainant who was walking close to her vehicle, is at odds with her sighting of Ms. Gallagher and Ms. Faminial, who were a greater distance away. It is also inconsistent with the fact that Imelda Faminial was able to see the complainant from her car even though Ms.

Kubarie was lying on the ground. [ 20 ] I am satisfied that the surveillance videotape provides an objective and accurate depiction of the events in the parking lot. I find that the accounts given by the complainant and the two independent witnesses are generally consistent with the video. The Law [ 21 ] Based upon the submissions of counsel, there is no serious dispute that Ms. Keita’s vehicle struck and then ran over Savita Kubarie and that the collision caused her bodily harm. A. Dangerous Driving Causing Bodily Harm [ 22 ] Recently, in R. v.

Roy , [2012] S.C.J. № 26 the Supreme Court of Canada described the elements of dangerous driving as follows at ¶34 and 36: In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. … A manner of driving can rightly be qualified as dangerous when it endangers the public.

It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value ( Beatty , at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. . . .

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances ( Beatty , at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible.

If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances. [ 23 ] In this case, I have concluded that the only reasonable conclusion to be drawn from the defendant’s failure to see Ms. Kubarie, in circumstances where • Ms. Keita saw other pedestrians who were further away than the complainant; • the defendant acknowledged that there was nothing distracting her at that time; • Ms.

Suvarie was standing just past the headlight on the driver’s side of Ms. Keita’s vehicle at a distance of about one foot in front of the car immediately before the Blazer was driven forward and struck her; and • Imelda Faminial saw the complainant even when she was lying on the ground; is that Ms. Keita failed to look forward before driving out of her parking space. Standing alone, this piece of driving could be viewed as “momentary inattention”.

However, in my opinion, the driving must be assessed in its entirety, particularly because all of the driving took place over a very short time frame. [2] This example of poor driving must be considered together with the defendant’s deliberate choice to drive the wrong way on a one-way street at 11:00 p.m., in the rain and in a place where pedestrians and other cars were likely to be. Further, I do not accept that Ms. Keita was unaware of the bounces that her vehicle clearly made when driving onto and off of the complainant, given their distinct and obvious character on the video.

In my opinion, the failure to stop and investigate the reason for a car bouncing over something in a parking lot that was flat, properly paved, free of debris, and which was used by co-workers going to their vehicles, is another feature of the driving under consideration. When viewed cumulatively, there is no doubt in my mind that Ms.

Keita’s driving was dangerous and endangered the public. [ 24 ] In my view, a reasonably prudent driver would have been aware that a work shift had just ended, co-workers would be walking through the parking lot to get to their cars and, from the 11 vehicles that were still parked in the lot and the sighting of Ms. Gallagher and Ms. Faminial, that the presence of pedestrians in the area of her vehicle was very likely. The darkness and the rain would have caused the reasonably prudent driver to take extra care in keeping a proper lookout to ensure that no pedestrians were in her vicinity before driving forward.

Further, a prudent driver would not have driven the wrong way on the company’s private one-way road through

the parking lot, as such an action could not be anticipated by any nearby pedestrians and would create a risk to her co-workers and anycars that were likely to be in the area. Lastly, a reasonably prudent driver would have appreciated that the bouncing of her vehicle meantthat she had run over something that was almost certainly a pedestrian and stopped to investigate and give aid. Accordingly, I find that areasonable person would have foreseen the risks arising in these circumstances and taken steps to avoid them. When the evidence isconsidered in its entirety, I an satisfied that Ms.

Keita’s failure to see the risks and avoid their obvious consequences was a markeddeparture from the standard of care that a reasonably prudent driver would have exercised in the circumstances. Further, the defendant’smanner of driving raised a foreseeable risk that it would cause bodily harm. B. Criminal Negligence Causing Bodily Harm [25] The physical element of criminal negligence involves conduct that is not simply dangerous to the public, but whichinvolves

an act or omission that “shows a wanton or reckless disregard for the lives or safety of others”. When viewed objectively, theconsequences of the negligent driving must be obviously wanton or reckless: R. v. J.L., [2006] O.J. № 131 (C.A.) at ¶18. The greater therisk of harm, the more likely the consequences are the natural result of the conduct creating the risk. “Wanton” means heedlessly,ungoverned, undisciplined or an “unrestrained disregard for the consequences”.

In this context, “recklessness” means “heedless ofconsequences, headlong, irresponsible”. [26] The mental or fault element of criminal negligence involves a “marked and substantial departure” from the standard ofcare that would be employed by a reasonably prudent driver in circumstances where the accused either recognized or ran an obvious andserious risk to the life or safety of another or gave no thought to that risk: R. v. J.F., [2008] S.C.J. № 62 at ¶7-9; R. v. M.R., [2011] O.J.№ 1017 (C.A.) at ¶30. [27] In applying these concepts, the Court of Appeal in R. v.

M.R. directed trial judges to consider the actus reus, or physicalelement of the offence, first and only where the conduct meets the actus reus requirements is it necessary to go on and consider themental element of the offence. [28] In assessing the extent to which an accused’s conduct departed from the norm, factors such as planning andpremeditation; a sustained course of negligent driving; the consumption of alcohol or drugs; or the egregious character of the drivingbear on whether the standard of wantonness or recklessness has been established. The tragic fact that Ms.

Kubarie sustained seriousinjuries is not to be considered when determining whether the defendant’s negligent driving rose to the level of criminal negligence: R. v.Beatty, [2008] S.C.J. № 5 at ¶46. None of the features that characterize the other cases where criminal negligence was proven arepresent in this situation. I am not satisfied that the Crown has proven beyond a reasonable doubt that the defendant’s negligent drivingreached the level of wanton or reckless. C.

Failure to Remain at the Scene of an Accident Causing Bodily Harm [29] The offence of failing to remain at the scene of an accident knowing that an injury has been occasioned requires proofthat the accused had care or control of an automobile involved in a collision with a person or vehicle, and proof that the accused wasaware of both the accident and the resulting injury to the victim of the accident.

The offence also requires that the accused’s failure tostop at the scene of the collision and identify herself or offer assistance was for the purpose of escaping civil or criminal liability, absentevidence to the contrary. [30] In this case, the issue is whether the knowledge component of the offence has been proven beyond a reasonable doubt. As stated earlier, I am satisfied that Ms. Keita was aware of her vehicle bouncing onto and off of an object.

Given the surroundingcircumstances, a reasonable driver would have recognized that the bouncing meant that the vehicle had run over something, which wasalmost certainly a pedestrian. Bodily harm was foreseeable from the fact of a person having been driven over by a car. During cross-examination the defendant agreed she knew that if a car hit a person, that individual could be hurt. [31] In R. v. Briscoe, [2010] S.C.J. № 13 at ¶21 the Supreme Court of Canada stated: Wilful blindness does not define the mens rea required for particular offences.

Rather, it can substitute for actual knowledge wheneverknowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion isaroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. SeeSansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v.

Jorgensen, (SCC), [1995] 4 S.C.R. 55.As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question:Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?" [32] I am satisfied that the defendant realized she had run over something and did not get out of her vehicle to confirm that itwas a person who had been injured because she was uninsured and did not want to know. This was a case of deliberate ignorance on thepart of Ms. Keita.

Conclusion [33] The Crown has proven the charges of dangerous driving causing bodily harm and failing to remain at the scene of anaccident causing bodily harm beyond a reasonable doubt. Findings of guilt are entered on those charges. There will be an acquittal onthe charge of criminal negligence causing bodily harm. Released: October 24, 2012

Signed: “Justice Carol Brewer”