R. v. Weston, 2012 ONCJ 810

COURT FILE Information No 2290 Citation: R. v. Weston , 2012 ONCJ 810 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BRANDON WESTON Before Justice John Kukurin Heard on December 4, 5 & 7, 2012 Reasons for Judgment released on December 17, 2012 Michael Varpio .......................................................................................................... for the Crown Kenneth Walker ....................................................................................................... for the accused KUKURIN J. [ 1 ] These are Reasons for my decision on the first of two charges against the accused: (

a) Dangerous operation of motor vehicle (section 249(1) CCC); [1] (

b) Carrying a concealed weapon (section 90(1) CCC). [2] [ 2 ] The facts underlying these two charges were presented through the evidence of a number of witnesses; several for the Crown, several for the defence. Not surprisingly, there were some commonalities in the narratives recounted by these witnesses. However, there were disparities as well, some of which were quite significant. [ 3 ] The accused, age 21, is the owner of a red Chevrolet Impala. He was the sole driver of this vehicle during the period of time when these two offences were alleged to have been committed.

This time period was the late evening hours of Friday, July 22, 2011, extending past midnight. [ 4 ] A number of teens and/or young adults were having a bush party, complete with booze and bonfire, at a cul-de-sac of a roadway in the west end of the city. The numbers swelled to anywhere from twenty to fifty persons. A number of vehicles were parked on the sides of the roadway, including in the cul-de-sac circle. Most of the partygoers were drinking, and beer was the beverage of choice. [ 5 ] The accused arrived in his car with three other occupants.

His front-seat passenger was a friend with whom he had been spending his time earlier. The two rear-seat occupants were acquaintances to whom he had offered a ride when he learned that they wished to go to the bush party location. The vehicle arrived sometime after 11 p.m. [ 6 ] For reasons no witness could explain satisfactorily, some of the persons already at the cul-de-sac took exception to the arrival of the accused. Derogatory name calling ensued, possibly mutual, with some degree of yelling. At some point, beer bottles were thrown towards the accused and his vehicle, and were broken.

According to some witnesses, one or more bottles struck his vehicle. [ 7 ] The main factual event relevant to the charge under section 90(1) was the spraying of some persons at this bush party with mace or bear spray. That this took place is quite certain. More than one witness described a visible cloud of a substance in the air. There was some description of the noxious effect this substance caused to other witnesses. [ 8 ] What is not anywhere near as certain is who did the spraying.

According to one Crown witness, it was definitely the accused who had the canister in his hand and was spraying persons in the cul-de-sac area. However, according to a defence witness, in fact one of the individuals who had been dropped off at the party by the accused, he was adamant that it was the accused’s friend, his front-seat passenger who had retrieved the bear spray canister from the car, and it was this front-seat passenger who was the person spraying some of the persons in the cul-de-sac area. [ 9 ] Not unexpectedly, the fact of the bear spraying spread throughout the crowd.

Many headed towards the surrounding bush. One individual, perhaps best referred to as the complainant, got into his own vehicle, a dark coloured Nissan Sentra, which had

been parked in the cul-de-sac area, and began driving towards the road leading away from the cul-de-sac. [ 10 ] According to this complainant, he had not been drinking at all. He had recently had jaw surgery and was wearing elastic restraints limiting his mouth and jaw movements. He was leaving, so he said, because of his peculiar vulnerabilities, and the unwelcome prospect of being bear sprayed. [ 11 ] The accused had not parked his car parallel to the roadway when he had arrived. His car was stopped somewhat diagonally with its rear end sticking out into the driving lane.

As the complainant was driving by the accused’s car, he collided with it. This, according to the complainant, was because he had to swerve to avoid a male who appeared suddenly in front of his car on the roadway. The extent of this collision is another point of difference in the narratives of witnesses.

The complainant describes a minor impact of his car’s front (passenger side) bumper hitting the rear bumper of the accused’s car which resulted only in a minor dent on the complainant’s car. [ 12 ] This varies considerably with the account of the accused who claims that the driver’s side of the complainant’s car collided with and scraped along the driver’s side of his car, the impact strong enough to make his car shake. This version of the impact was corroborated by the description of the defence witness who had been given a ride to the party by the accused. This witness knew both the complainant and the accused.

He described the complainant’s car going “right by” the accused’s car and scraping along the side of it. [ 13 ] While this collision does not form the factual basis for the (section 249) dangerous driving charge, the evidence is important from the perspective of assessment of credibility, particularly when these accounts are juxtaposed to accounts of other events that took place shortly thereafter. [ 14 ] The factual allegations underlying this charge relate to the accused’s operation of his red Impala motor vehicle from the point it left the cul-de-sac area on Yates Street until it ran into a ditch and culvert on Second Line.

However, this involves a considerable distance, well in excess of a kilometre, involving three roadways – Yates Street, Allen’s Side Road, and Second Line. This distance was not covered in seconds. The Crown has led little evidence of the actual driving by the accused on Yates Street or on Allen’s Side Road. At best, the inference that can be made from this evidence is that the accused was driving at a high rate of speed on these two roadways.

Even if I could reasonably conclude he was exceeding the posted speed limit, this is insufficient in itself as a foundation for the dangerous driving charge. [ 15 ] The accused’s driving that was much more relevant to the dangerous driving charge is that which took place on Second Line. There were only four witnesses that testified to this driving [3] . Two were young teens, a 15 year old girl and a 14 year old boy who were in the area where the accident [4] took place. They each saw the two vehicles in motion for only seconds. Their testimony is limited, but important.

The other two persons were the drivers of the two vehicles involved: the accused in the red Impala, and the complainant in the dark coloured Nissan Sentra. These two recounted in their evidence very different versions of the driving of the accused on Second Line. [ 16 ] It is always good practice to keep in mind that the onus is on the Crown not only to prove all of the essential elements of the offence charge, but to do so beyond any reasonable doubt.

If it fails to do so, the accused must be acquitted. [ 17 ] In this case, the Crown asks that the evidence of the complainant be accepted as a narrative of what actually took place leading up to the accident.

This means believing: - that the Impala backed up, turned around and drove after the complainant on Yates Street at high speed; - that the Impala was hampered in catching up to the Sentra on Allen’s Side road because of another vehicle that the Nissan had passed, but which the Impala could not immediately pass because of an oncoming car; - that the Impala sped up considerably to catch up to the Sentra which was by then on Second Line; - that the Impala made contact with the rear of the Sentra, on the driver’s side rear quarter panel, at least twice “bumping” or “nudging” the Sentra deliberately, attempting to force it onto the right shoulder of the road; - that at one point, the Impala pulled alongside the Sentra, driving parallel, at which point, the person in the Impala’s front passenger seat sprayed mace at the driver’s side of the Sentra; - that the Impala tried also to make contact with the Sentra’s passenger’s side rear quarter panel or the rear of the Sentra, at which point the Impala lost control, veered towards the ditch and collided heavily with the culver; - that the vehicles were moving at a speed of about 130 kilometres per hour while this was all going on; - that the complainant saw the accident in his rear view mirror; he did not stop, but called for an ambulance, and also called his sister who had remained at the bush party site, and kept driving to the police station to report the events of the evening. [ 18 ] This story, taken at face value, would be more than sufficient to support a finding of guilt on a charge under section 249(1)(

a) CCC of dangerous driving on the part of the accused. The problem is accepting this story at face value. [ 19 ] There are some difficulties inherent in the complaint’s own recitation of events. There are even more when his evidence is juxtaposed to that of the accused. Finally, there are the testimonies of the teenage witnesses who both recount their observations of the relative positions of the two vehicles when still in motion, observations which are difficult to reconcile with the testimony of the complainant. [ 20 ] The complainant was involved in two motor vehicle collisions, the first with a vehicle that was parked and not in motion,

and some time later, with the same vehicle which went out of control at a speed well in excess of 100 kilometres per hour and crashed with so great an impact that the complainant believed the occupant(

s) might well have died. He stopped, by his own admission, for neither collision. One can understand that he would, in his vulnerable medical condition, be reluctant to stick around to deal with a person (or persons) whom he believed had bear spray in his/their possession, bear spray that had just been sprayed deliberately on a number of other individuals.

However, it is more difficult to understand why he would not stop after the accident on Second Line, something that the law requires, and that any rational driver should automatically do with a view to helping any injured party. [ 21 ] There was a significant disparity in the complainant’s version of the vehicle collision at the cul-de-sac area compared with the accounts of that of the same collision given by the accused and by the accused’s backseat passenger.

I prefer the latter versions as being more reflective of what actually happened, and conclude that the complainant’s evidence minimized the extent of the impact. While this collision is not the basis for any part of the dangerous driving charge, my inference from the complainant’s testimony leads to a somewhat unfavourable assessment of his credibility. [ 22 ] The complainant’s story that the driver’s side of his Sentra was bear sprayed as the two vehicles were parallel to each other speeding along Second Line is corroborated by no one.

This story was recounted to Police Officer Smith, the first person that the complainant encountered at the parking lot of the police station. Officer Smith, who testified that she had some familiarity with bear spray, in fact, carries it herself in her policing role, related that she took a look at the complainant’s Sentra but did not note any sign of its having been bear sprayed.

Considering her estimate that it would take more than 24 hours to air out a house in which bear spray had been used, and evidence of another witness about an orange cloud of a substance visible when bear spraying occurred at the cul-de-sac site, I infer that the signs of bear spraying would generally be quite apparent for some time. In this instance, with respect to the Sentra, there were no signs that this vehicle had been bear sprayed in what could have been not more than 10 to 15 minutes after the complainant said it was.

If anything, this detracts somewhat from the complainant’s credibility. [ 23 ] By far and away, the most significant reservations about the credibility of the complainant derived from inconsistencies relating to the relative positions of the Impala and the Sentra just prior to the accident on Second Line. The complainant’s story places the Impala behind the Sentra, pursuing it, catching up to it, pulling parallel to it at one point, but never ahead of the Sentra. The accused’s story is not only inconsistent; it flatly contradicts this.

The accused maintains that the Sentra was suddenly behind his Impala coming “out of the blue” while the accused was driving on Second. It was the Sentra, according to the accused, that hit him from behind, and possibly on his rear quarter panel, which spun the Impala enough for the accused to lose control and leave the roadway. [ 24 ] The evidence of the two teenagers is very important to the judicial fact finding role as it relates to this contradictory evidence. Firstly, the testimony of both teens was not affected by the self-interest that may have coloured the testimony of the complainant and of the accused.

Secondly, both teens made essentially the same observation, namely, that the dark car was behind the red car. [5] There was sufficient evidence for me to infer that the dark car was the Sentra and the red car was the Impala, and that there were no other motor vehicles involved or anywhere in the vicinity of these two. Thirdly, I detected no equivocation, ambivalence, unsureness or confusion in what these teens said, or how they said it. My impression is that they were quite confident in what they say they saw.

Fourth, and significantly, each corroborates the other in terms of what they saw as to the relative position of the two vehicles. Overall, I’m inclined to believe their evidence on this point. [ 25 ] There are other pieces of evidence, perhaps less critical, that detract further from the credibility of the complainant. The 15 year old teenager heard a voice shouting some words as she was running to the accident scene. The timing, the words heard, and the circumstances suggest that this was an utterance of the complainant.

It was extremely unlikely that either occupant of the red Impala would have been in a condition to, or would have said, such words. But the complainant denied that he yelled anything, stated, in fact, that the didn’t stop at all, and he was incapable of yelling because of his jaw. Whence, then, did these words come? There was no one else around. And the evidence of the complainant himself as well as that of Officer Smith, clearly indicates that the complainant was able to talk and communicate sufficiently to give a formal statement shortly after the accident.

He also called for an ambulance and he also spoke with his sister. I cannot discount or ignore the evidence of the teen about what she heard. [ 26 ] Also, somewhat peripheral, is the complainant’s statement that he did not recall using the term “pit manoeuvre” [6] when he spoke with Officer Smith. She clearly remembered his doing so, and made a note of it. This is not insignificant as the elements of a “pit manoeuvre” may have been in play just prior to the accident. At the very least, this evidence calls into question the complainant’s memory or ability to recollect accurately.

Combined with his own admission that he was upset and scared, apprehension because of his recent surgery, and at some point, in a panic, his failure to recall a significant utterance further detracts from his credibility. [ 27 ] Finally, photographs of the Sentra and of the Impala were tendered as exhibits with no evidence of when, where and by whom the photos were taken.

With these limitations, with the significant damage caused to the Impala by its impact with the culver, and in absence of any expert testimony, it is difficult to make any inference about whether the Impala was driven “in a manner that is dangerous to the public”. [ 28 ] The photographs of the Sentra show both the driver’s side as well as the passenger side, in fact, several close-ups of the passenger side.

What is clearly visible in the photographs are horizontal dents and scraping marks along the passenger side of this vehicle – above the rear wheel well, along the passenger door, and, more prominently, on the passenger side quarter panel ahead of the right front wheel well. Significantly, on the marks, especially the scrapings, are unquestionable signs of red paint. How did these get there? [ 29 ] These are not explainable by the collision that took place at the cul-de-sac on Yates Street.

Certainly not by the account of the complainant, and even less so by that of the Impala’s rear seat passenger who was sure that the driver’s sides of the vehicles had come into contact on that occasion. [ 30 ] One possible inference is that these red marks resulted from contact between the Sentra and the Impala while they were speeding down Second Line. If so, how are these marks, especially those as far forward as the right front quarter panel, explainable with the testimony of the complainant? They are not.

The court would have to conclude that the Impala pulled up parallel to the Sentra, and to the right of it; that is, driving on the right shoulder of the road – at 130 kilometres per hour. No one has suggested that this ever happened

– and it is too farfetched to believe this was even possible. These marks, however, would be consistent with the Sentra driving in the oncoming (westbound) traffic lane parallel to the Impala driving in its proper (eastbound) lane, veering into the Impala’s lane, and making contact between the driver’s side of the Impala with its (the Sentra’

s) passenger side. [ 31 ] Whether this is what actually took place is not necessary for this court to find. It is sufficient for the court to have a reasonable doubt as to what the Crown has the onus to prove. In this case, I do have what I consider a more than reasonable doubt as to whether the accused drove in a manner dangerous to the public as charged pursuant to section 249(1) (

a) of the Criminal Code . The law is clear that in such circumstances, the appropriate decision must be a finding of not guilty. [ 32 ] With respect to the charge under s. 90, there appears to be a modest amount of case law relating to concealed weapon charges. None was cited to me.

In fact the submissions of counsel seemed to suggest that for a finding of guilt, it was necessary for this court to find as a fact that the accused himself sprayed the bear mace on the bystanders. [ 33 ] I require some additional time to review the evidence of the witnesses and to consider the statutory provisions and case law as they relate to this charge. Accordingly, I intend to adjourn this charge for a further period to allow me to do so. Released: December 17, 2012 Signed: “Justice John Kukurin” [1] S. 249(1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; [2] S.90(1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.