R. v. Shergill, 2016 ONCJ 343

CITATION: R. v. Shergill, 2016 ONCJ 343 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DHANBIR SHERGILL Before Justice Aston J. Hall Heard on February 1 and 2 and April 1, 2016 Reasons for Judgment released on June 13, 2016 Paul Kelly ............................................................................................................... for the Crown Alan J. Risen ............................................................................ for the accused Dhanbir Shergill HALL J.: Introduction: [1] Mr.

Dhanbir Shergill, the accused, is charged with dangerous driving causing death and failing to stop after an accident withthe intent of escaping civil or criminal liability. On February 1 and 2, 2016, I heard evidence at the preliminary inquiry with respect tothese offences. [2] The matter went over for both Crown and defence counsel to prepare written submissions on the issue of committal to standtrial.

On April 1, 2016, both counsel supplemented their written submission with oral arguments. [3] Today the accused is before me for judgment as to whether he should stand trial for the above-mentioned criminal charges. [4] This is a very sad and painful case, because it involves the death of a young teenage woman, named Amaria Diljohn-Williams. She was only 14 years of age. [5] Ms.

Diljohn-Williams was a passenger on a TTC bus traveling northbound on Neilson Road in Toronto on December 19,2014. [6] She got off the bus at the bus stop just south of Finch Avenue East on Neilson Road and walked north towards theintersection. [7] The bus stopped at the intersection of Finch and Neilson, at the crosswalk. The bus turned right on to Finch Avenue East, atapproximately 5:37 p.m. Ms. Diljohn-Williams was struck at the intersection by the bus and died as a result of being struck. [8] The TTC’s bus that was involved in the accident was driven by Dhanbir Shergill.

Issues [9] The core issues that I must determine are follows: first, has the Crown presented sufficient evidence before me todemonstrate, or allow for the reasonable inference, that the driving in question constitutes a marked departure from the standard of careof that expected of a reasonable person in the same circumstances. [10] The second question I must answer is this: Has the Crown presented sufficient evidence that would allow a reasonableinference that the accused failed to stop at the scene of the accident because he intended to escape civil or criminal liability.

Test the committal and definition of dangerous driving. [11] The legal test that will guide me as a preliminary inquiry judge in this analysis is from the seminal case of United Statesof America v. Shephard, (SCC), [1977] 2 S.C.R. 1067 at page 1080:

I agree that the duty imposed on a “justice” under s. 475(1) is the same as that which governs a trial judge sitting with a jury in decidingwhether the evidence is “sufficient” to justify him in withdrawing the case from the jury and this is to be determined according towhether or not there is any evidence upon which reasonable jury properly instructed could return a verdict of guilty.

The “justice”, inaccordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissibleevidence which could, if it were believed, result in a conviction. [12] It is important to note the guidance provided of now-Chief Justice McLachlin [in dissent] in R. v.

Charemski, [1998]S.C.R. 679, at para. 35 on the subject of sufficiency with respect to a directed verdict: …“sufficient evidence” must mean sufficient evidence to sustain of verdict of guilt beyond a reasonable doubt; merely to refer to“sufficient” evidence is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. Thismust constantly be borne in mind when evaluating whether the evidence is capable of supporting inferences necessary to establish anessential elements of the case. [13] It is essential to briefly review the legal test for dangerous driving. In R v.

Hundel (1993), (SCC), 1S.C.R. 867, Justice Cory instructed that a driver’s conduct had to amount to a marked departure from the standard care that a reasonableperson would observe in the accused’s situation. [14] The definition of a “marked departure” was refined and clarified in R. v. Beatty 2008 SCC 5 , [2008] S.C.J No. 5.Justice Charron said at paragraph 6 and 7: In my respectful review, the approach advocated by the Crown does not accord with fundamental principles of justice.

Unquestionably,conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penalnegligence. However, it is important not to conflate the civil standard of negligence with the tests for penal negligence. Unlike civilnegligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct”.(Emphasis in original.) [15] It is imperative to note the following as well from R. v. Beatty at paragraph 7.

The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea fornegligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm fordetermining civil negligence. It does so in two important respects. First there must be a “marked departure” from the civil norm in thecircumstances of the case.

A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civilnegligence, but will not suffice to ground liability for penal negligence”. [16] I find instructive, the following from R. v. Roy, 2012 SCC 26 , [2012] SCJ 26, at para 34, Justice Cromwellnoted: In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to thepublic in all of the circumstances.

The focus of this inquiry must be on the risk created by the accused’s manner of driving, not theconsequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of R. v. Beatty, 2008 SCC 5, [2008]1 S.C.R 49, “the court must not leap to its conclusion about the manner of driving based on the consequence.

There must be a meaninginquiry into the manner of driving”. (Emphasis in original.) [17] On the question of marked departure, in Roy at para 42, Justice Cromwell said driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedlyfrom the standard of care of a reasonable person in the circumstances…. In other words, proof of the actus reus of the offence, withoutmore, does not support a reasonable inference that the required fault element was present.

Only driving that constitutes a markeddeparture from the norm may reasonably support that inference. [18] Armed with the above test for committal at a preliminary inquiry and the definition of dangerous driving, I shall nowanalyze the evidence with those governing principles in mind. Positions of the parties. [19] Crown counsel, Mr. Kelly, articulated the Crown’s position as follows: “It is the Crown’s central submission that on thebasis of the evidence heard at this Preliminary Inquiry, a trier of fact, properly instructed and acting reasonably, could find Mr.

Shergillguilty of both the offence of Dangerous Operation of a Motor Vehicle Causing Death as well as Failing to Stop at the Scene of anAccident wherein death has ensued, and that committal to stand trial is, therefore, warranted on both counts”. [20] Defence counsel, Mr.

Risen, advanced his position in the following terms: It is the position of defence, that on the whole of the evidence, “no sufficient case has been made out to put the accused on trial, and thatthe accused should therefore be discharged.” More specifically, it is a the position of the defence that on any reasonable analysis of thetotality of the driving in this case, the evidence does not establish a marked departure required for the offence of Dangerous Driving, andthat a properly instructed jury, acting reasonably, could not find the accused guilty of the charge beyond a reasonable doubt.

It is thefurther position of the defence, that there is no evidence before this court that the accused was aware that there was an accident involvingAmaria Diljohn-Williams, let alone that bodily harm and been caused. In other words, there is no evidence that he failed to stop hisvehicle because he had intent to escape civil or criminal liability with respect to accident he did not know occurred.”

Evidence and Discussion [ 21 ] The parties submitted the following agreed statement of fact:

(1) On December 19, 2014 the accused was an employee of the Toronto Transit Commission and operated the bus that struck Ms. Diljohn-Williams that resulted in the death.

(2) The accident happened approximately 5:37 PM on 19 December 2014 at the intersection of Finch Avenue East and the Nielson Road in the city of Toronto.

(3) Digital video disc from the four cameras on the bus that captured evidence of the collision.

(4) The post collision diagram produced by member of the Toronto police services.

(5) Photographs were taken by member of the Toronto police services.

(6) There is no evidence that drugs or alcohol played any

part in this case, at the time of the accident. [ 22 ] Crown counsel called three witnesses. I shall summarize their evidence. The first witness, Sergeant Reimer, is the lead investigating officer. [ 23 ] He testified that on the day of the accident he arrived at the scene at 7:13 p.m. He determined that the accident happened between 5:30 p.m. to 5:37 p.m. [ 24 ] In the course of the investigation he contacted the TTC and asked them to review video footage from buses that were in the area at the time of the accident.

A bus was identified as being at the intersection at the pertinent time. [ 25 ] This bus was equipped with four cameras strategically located throughout the bus. When the video footage from this particular bus was examined, it revealed that this was the bus that struck Ms. Diljohn-Williams. [ 26 ] The video was played by the Crown and Sergeant Reimer drew my attention to two bumps that would represent presumably when the bus ran over Ms. Diljohn-Williams. This witness attempts to explain that the bumps were so severe that it impacted a number of passengers on the bus.

For example, a female passenger seated at the back of the bus had her hair lifted from its original position as a result of the bus running over Ms. Diljohn-Williams. [ 27 ] In cross-examination the witness agreed that the passenger does not appear to have reacted to the bump. She didn’t appear to be upset or excited or took any note of the bump. The witness agreed as well there was another female passenger sitting at the front of the bus, and “the bump” appeared to have had no impact on her hair.

He also conceded that no one a bus seemed alarmed. [ 28 ] Sergeant Reimer testified there is no evidence the bus was speeding on the day in question. The bus was being properly driven in its designated lane, the driver did not disobey any stop signs or traffic lights, and made a proper right-hand turn.

There was no difference between the driving pattern of the bus before and after the accident. [ 29 ] After the accident the bus never stopped, he continued on his route as normal, there was nothing in his actions that would suggest the driver was aware of accident. [ 30 ] Sergeant Reimer in his testimony acknowledged the video of the incident showed that when the bus stopped at the intersection there was no pedestrian that could be seen from the front doors and windscreen of the bus. [ 31 ] This witness agreed with defence counsel’s assertion that it appears from the video Ms.

Diljohn-Williams did not look up towards the bus at the time she walked in front of it. He agreed with another assertion from the defence counsel that the time frame that Ms. Diljohn-Williams can be seen stepping off the curb on walking in front of the bus is approximately 1.3 seconds. [ 32 ] I shall now summarize the evidence of Sean Archibald. [ 33 ] He and his son were passengers on the bus on the day of the accident. He testified that when the bus was making a right hand turn onto Finch Avenue East at the corner of Nielson Road he felt a “thump”. He didn’t consider it to be of significance.

He was not of the belief that the bus had just run over someone. He testified as well that, “nobody appeared to be concerned about the bump”. [ 34 ] During his ride on the bus on the day in question he was not concerned with the way the bus was being operated by the driver. After he felt the thump, the driver continued to operate the bus in the normal fashion, as he did before the thump. [ 35 ] The third and final witness was Detective Constable Tommy Vuong. He is an accident re-constructionist. He testified that he arrived at the scene of the accident approximately 2 hours after it occurred.

He described the road conditions at the time of the accident as cold, clear and the roads been dry. He agreed with the defence counsel that it was also dark. [ 36 ] This witness calculated the speed that the bus was traveling was 13.05 km/h; however, it would have been significantly slower at the time of the accident. [ 37 ] Ms. Diljohn-Williams walking speed was calculated at 1.45 meters per second which is normal for a 14 year old; however, from watching the video from the bus, he testified it appears that she was walking quickly.

[ 38 ] The witness testified: given the speed that the bus was traveling, had the accused been looking to his right at Ms. Diljohn- Williams he would have been able to stop the bus and avoid the accident. As well there was there was no evidence to indicate that the driver knew that he had struck Ms. Diljohn-Williams and continued on his route. [ 39 ] On the evidence before me, the accused was driving quite normally and appropriately before the accident.

There was no evidence of speeding, disobeying traffic signals, or any display of poor driving. [ 40 ] The evidence disclosed that the bus stopped appropriately at the intersection on a red light. The bus made a right turn appropriately onto Finch Avenue East. [ 41 ] From the video at the time of the accident there was no pedestrian at the intersection and it was dark. It was a matter of seconds, if not less, that Ms.

Diljohn-Williams is seen from the video stepping off the sidewalk onto the crosswalk before she was struck by the bus. [ 42 ] After the accident, the accused continued to drive the bus in the same manner he did prior to the accident. In other words the driving was normal. There was no evidence before me to suggest the accused was aware that he had earlier struck, and ran the bus over, Ms.

Diljohn-Williams. [ 43 ] The evidence before me concerning the manner of driving falls short or is insufficient to support an inference that the driving was a marked departure from the standard of care that a reasonable person would have exhibited in the circumstances. [ 44 ] There is no evidence before me to support committal for trial the accused for the offence of failure to stop. [ 45 ] In my opinion no jury properly instructed acting reasonably could find the accused guilty of the charges beyond a reasonable doubt.

This is because the evidence does not disclose a marked departure that would satisfy the requirements of dangerous driving causing death or the offence of failing to stop in an attempt to escape civil or criminal liability, given the reasons I outlined above. Conclusion [ 46 ] Based on all the evidence before me, I am unable to conclude that Crown counsel has presented sufficient evidence to justify committing the accused to stand trial. [ 47 ] I have determined that the accused will not stand trial on these charges before me. He is discharged. Released: June 13, 2016 Signed: “Justice Hall”