R. v. Alcide, 2013 ONCJ 520

Citation: R. v. Alcide , 2013 ONCJ 520 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ GARVIN ALCIDE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) H. Song For the Crown P. Dotsikas For the Defendant Heard: May 29 and August 27, 2013 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Garvin Alcide, the defendant, is charged with the offence of operating a motor vehicle in a manner that is dangerous to the public or, in the vernacular, dangerous driving. The offence is alleged to have occurred on a stretch of the 401 highway in north Toronto at around 9am on March 7, 2012.

The defendant and the driver of a second vehicle were the only witnesses to testify about the defendantÕs driving behaviour. Their evidence is oppositional, each in effect accusing the other of appalling driving. As always in criminal trials, the legal burden rests on the Crown on a standard of proof beyond reasonable doubt. B. EVIDENCE [ 2 ] March 7, 2012 was a dry, pleasant day. Shannon Kotsopoulos was heading westbound on the 401 at about 9 in the morning. She was on her way to a work meeting along a route with which she was very familiar.

Her white Chevy Equinox SUV was doing Òat least 100Ó kph in the far left or express lane when, in her rear-view mirror, she saw a second white SUV Òriding [her] tailÓ. She ignored it. The car behind then pulled alongside hers in the middle lane. It then pulled in front of her in the express lane as the driver quickly slammed on the brakes. Kotsopoulos then moved into the middle lane and the defendant, who was driving the second car, moved in front of her and, according to Kotsopoulos, again slammed on his brakes. Kotsopoulos returned to the express lane and the

defendant straddled both lanes. Kotsopoulos feared she was being pushed into the guardrail to her left and drove on the shoulder. She both slowed down and sped up to try and re-enter the express lane, but the defendant prevented her return by mirroring her speed. Eventually she was able to get back on the highway, behind the defendant. She then moved to the middle lane and called 911. [ 3 ] Kotsopoulos took the Avenue Road exit from the 401. The defendant, she says, followed and then pulled in front of her.

He got out of his car at the first stop and approached KotsopoulosÕ while she was still speaking to the police. Following the police dispatcherÕs instructions, she drove around the defendant. He followed in his car, eventually cutting her off in a residential area and blocking her further progress by parking his car at a sharp angle in front of her SUV. The defendant approached KotsopoulosÕ car. He appeared angry and yelled at her through her closed window. A third party had also stopped his car and tried to comfort Kotsopoulos.

On being told she had summoned the police, the defendant took a photograph of KotsopoulosÕ license plate (which she identified in cross-examination) and, like her, waited for the police to attend. The first officer arrived about a minute later. Kotsopoulos estimated that the entire driving incident lasted 15 minutes at most. [ 4 ] Kotsopoulos had accumulated about three speeding tickets in 10 years of driving.

She denied: 〈 Holding a cellphone device while first in the express lane (although she was using a speaker-phone system); 〈 Holding up traffic; 〈 Moving in front of an 18-wheeler that had to slam on its brakes when she first transferred to the middle lane; 〈 Slamming on her brakes at any time; 〈 Causing the defendant to end up on the shoulder when she tried to pass him in the express lane; 〈 Not committing to leaving the 401 at the Avenue Road exit until after the defendant. [ 5 ] Kotsopoulos had no recall of the defendant being in the far right lane when she was in the middle lane.

She agreed that the written statement she provided the police some eight days after the incident did not include any references to the defendant tailing her. She attributed this omission to her not being certain the SUV close behind her was the same SUV as the one driven by the defendant. Kotsopoulos adopted her uncertainty on this point in cross-examination. [ 6 ] Cst. Dominica Papiorek was the first police officer to attend the scene off Avenue Road at which both SUVs were parked. The defendant was agitated and yelling, but returned to his car as soon as the officer directed. Kotsopoulos was crying and shaking.

The cars were parked on an east-west street with one lane in each direction. The defendantÕs car was parked in front of KotsopoulosÕ, Òkind of at an angleÓ; eastbound traffic would have to drive around the defendantÕs SUV. Papiorek conducted an initial investigation. She did not arrest or charge the defendant. [ 7 ] The defendant, Garvin Alcide , was a 40-year old married man at the time of the incident. He lived in Ajax with his family, was employed in the design department of a major department store chain, and had no criminal record.

He had, however, amassed almost a dozen moving violations, chiefly for speeding, under the Highway Traffic Act in the previous 18 years. [ 8 ] The defendant was driving his white Acura SUV from his home in Ajax to a 10am company meeting in Brampton. It was a familiar route. The defendant was westbound in the express lane of the 401 at about 8:45am when the traffic began to bottle up in the area of the Scarborough Town Centre. He ended up Òvirtually stoppedÓ behind KotsopoulosÕ white SUV.

Traffic appeared to be moving well ahead of Kotsopoulos but her slow rate of speed and an 18-wheel transport truck to the defendantÕs right impeded his progress. It appeared to him that Kotsopoulos was distracted while using a cellphone. As she cleared the 18-wheeler, Kotsopoulos signaled and began to move to the middle lane in front of the transport truck.

Before completing her lane change, she jammed on her brakes, causing the defendant to veer to his left and halfway onto the shoulder for about a second, and then abruptly back onto the highway to avoid hitting the guardrail. [ 9 ] The defendantÕs Ònerves were rattledÓ. He tried to collect himself by moving into the middle lane, between Kotsopoulos and the 18-wheeler. Again, says the defendant, Kotsopoulos jammed on her brakes without apparent reason. He moved into the fast lane. She appeared to be pointing and laughing at the defendant, as though taunting him, as he passed KotsopoulosÕ SUV.

The defendant returned to the middle lane. Kotsopoulos pulled up behind and began to tailgate him. The defendant had recently read an online

article about intentional-collision fraud artists. Baffled by KotsopoulosÕ conduct, he feared he might be a victim of such scam. He tried to move into the express lane as the 401 approached Victoria Park Avenue. Kotsopoulos, he says, mimicked his lane change and then tried to pass him on the shoulder, falling back behind the defendantÕs car after about ten seconds. The defendant made a number of unsuccessful attempts to read the plate number on KotsopoulosÕ vehicle in his rearview mirror. [ 10 ] The defendant moved to the slow lane to conserve fuel as his gas warning light had activated.

Again, he says, Kotsopoulos followed him, closing an initial gap of about a dozen car lengths. Wanting to maintain his distance, the defendant moved into the middle lane. The defendant decided to leave the 401 and refill at the nearest gas station. The next several exits were under construction. Following his GPS directions to the nearest station, the defendant moved into the collector lanes so as to exit on Avenue Road.

Kotsopoulos did the same, a maneuver the defendant acknowledged as a reasonable ÒcoincidenceÓ as this was the only available exist before Highway 400. [ 11 ] Although uncertain, the defendant believed stop signs rather than traffic lights controlled the traffic at the first intersection following the Avenue Road exit. He stopped in the middle of three lanes, which he described in direct examination as an optional turn lane. Kotsopoulos was now behind the car to his right, in the turn-right-only lane.

Reasoning that he now had an opportunity to secure KotsopoulosÕ license plate number, he turned right onto Avenue Road north and into a residential area. He left his car at the first subsequent stop sign and told Kotsopoulos he was taking her plate and calling the police. From inside her car, Kotsopoulos replied that she had already called the police. She pulled around the defendant and continued driving. The defendant followed, parking in front of KotsopoulosÕ vehicle at a Òslight angleÓ when she suddenly pulled over and stopped along a narrow residential street. He did not park

behind Kotsopoulos because the abruptness of her stop risked a rear-end collision had he not gone around her SUV. He then removedhis cellphone from his bag in the back seat of his car, approached KotsopoulosÕ, and took a photo of her plate. He also got into a verbalspat with the unknown driver of a third vehicle. The defendant remained on the scene until the police arrived and then spoke withseveral officers, including Cst. Papiorek. [12] The defendant agreed he was, at different times, flustered, annoyed and frustrated by KotsopoulosÕ driving but not, he said,angry or in a state of Òroad rageÓ.

He was presented, in cross-examination, with Google images of the Avenue Road intersection atwhich he turned right and followed Kotsopoulos. One photograph made clear that lights rather than a stop sign controlled the traffic atthe intersection. The defendant explained that he was relatively unfamiliar with this intersection, having only used it a couple of timepreviously and having turned south, rather than north, on each occasion. Another image demonstrated that both the left and centre laneswere left-turn-only lanes; only the right lane, occupied by Kotsopoulos, permitted a right turn.

The defendant acknowledged that he wasÒmistakenÓ about his license to turn right from the centre lane in which he had stopped at the intersection. He explained that in theDurham area, where he lived and with which he was more familiar, the centre lane at similar highway exits were optional turn lanes. Hehad abandoned his plan to secure KotsopoulosÕ plate number when he decided to leave the 401, and he initially intended to turn left atthe first intersection to get gas.

When he realized that Kotsopoulos had taken the same exit he made a split-second decision to seize theopportunity and followed her vehicle as it turned right. He still had ample time, he reasoned, to record the plate, refill his tank and makehis meeting. C. ANALYSIS [13] There is here no need to explore the complexities of the law of dangerous driving. If believed, KotsopoulosÕ evidence of thedefendantÕs persistently outrageous driving behaviour more than satisfies the essential elements of the offence.

The core issue,however, is not whether KotsopoulosÕ account makes out the criminal allegations but whether there remains a reasonable doubt as totheir occurrence. KotsopoulosÕ evidence is not unchallenged. Indeed, the defendantÕs recall of the material events is as faciallydescriptive of KotsopoulosÕ dangerous driving as is her account of his alleged misbehaviour. Although a somewhat unusual scenario,the case presents as a variant of the he-say/she-say factual contests that routinely occupy trial courts.

The legal question thus invokesthose considerations that govern the assessment of credibility and, in the end, the adjudication of reasonable doubt in cases of directtestimonial conflict. [14] The seminal authority in these regards is the Supreme Court decision in R. v. W.(D.) (1991), (SCC), 63 C.C.C.(3d) 397. As explained in R. v. J.H.S. (2008), 2008 SCC 30 , 231 C.C.C. (3d) 302 (S.C.C.), at para. 9, W.(D.) Òsimply unpackswhat reasonable doubt means in the context of evaluating conflicting testimonial accountsÓ.

The governing jurisprudence makes clearthat I may, with reason, accept none, some or all of the evidence of any witness: R. v. J.H.S, supra, at para. 10; R. v. Fran�ois, [1994] 2S.C.R. 27, at para. 14; R. v. Abdallah, (ON CA), 125 C.C.C. (3d) 482 (Ont. C.A.), at paras. 4-5. Where reasonable, Imay accord different weight to different portions of the evidence that I do accept: R. v. Howe, (ON CA), 192 C.C.C.(3d) 480 (Ont. C.A.), at para. 44. Further, where, as here, a defendant has testified, his evidence Ð like that of any witness Ð cannot beassessed in a vacuum; as said in R. v. Humphrey, ONCS 3024 (Sup.

Ct.), at para. 152, Òthe first and second stages of the W.(D.)framework for analysis can only be undertaken by weighing the accusedÕs evidence together with the conflicting Crown evidenceÓ. Finally, acceptance of a contradictory account may itself be a proper basis for rejecting a defendantÕs testimony: R. v. D. (J.J.R.) (2006), (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53; R. v. M. (R.E.), (2008) 2008 SCC 51 , 235 C.C.C.(3d) 290 (S.C.C.), at para. 66; and R. v. Thomas, 2012 ONSC 6653 , 2012 ONCS 6653, at para. 26. [15] KotsopoulosÕ account is compelling, coherent and internally consistent.

When confronted, she readily accepted and explainedthe omission in her police statement of any reference to her evidence in chief as to the defendant tailgating her; she had, she said, beenuncertain about whether the defendant was the driver of the vehicle that had been tailgating her when she spoke with the police, and shetestimonially adopted her earlier uncertainty.

Neither KotsopoulosÕ reliability nor the strength of her evidence as to the objectivelydangerous nature of the defendantÕs driving Ð his repeatedly cutting her off, mirroring her moves, blocking her progress on the 401 andeffectively driving her into the shoulder Ð are materially diminished by this relatively small and candid correction. [16] Unlike many cases involving testimonial conflict, the defendantÕs account is much more than a bald denial of thecomplainantÕs allegations. Here, the defendant ascribes to Kotsopoulos the very driving misconduct that she says he exhibited.

Each, inshort, says the other drove in a brazenly reckless manner on one of CanadaÕs busiest highways and that each had to engage in defensiveconduct to avoid the aggressively targeted danger presented by the other. But for Cst. PapiorekÕs confirmation of the defendantÕssomewhat skewed parking at the conclusion of the incident, neither of the witnessesÕ accounts of the otherÕs disturbing driving is inany way corroborated. Further, the defendantÕs evidence, viewed on its own, is, like KotsopoulosÕ, coherent, consistent and detailed.

What marks both witnessesÕ narratives is the bizarre character of the driving behaviour each assigns to the other. [17] In fairness, the defendantÕs evidence is not free of concern. His anxiety about being victimized by an intentional collisionfraudster and the fuel alert that coincidentally deposited him at the bottom of the same exit ramp as Kotsopoulos both raise suspicions ofcontrivance or after-the-fact rationalization. Although he provided plausible explanations, he clearly mis-described both the trafficcontrol system coming off the 401 and the turn options available to him at that first stop.

Further, it is at least peculiar that he elected tofollow KotsopoulosÕ vehicle to the right at that same intersection when the search for a gas station that motivated his exit from the 401involved a left turn, when he had a time-sensitive meeting, and when he had several times expressed his desire to distance himself fromKotsopoulos.

On the other hand, the defendant did take a photo of KotsopoulosÕ license plate and waited for the police to arrive Ð bothas consistent with his explanation for following KotsopoulosÕ car as is Kotsopoulos 911 call consistent with her own account. [18] Guided by W.(D.), Òwhom should I believe?Ó is clearly the wrong question. The correct question is whether, in view of all theevidence, am I persuaded to the appropriate standard that the defendant is guilty? Put otherwise, am I left with a reasonable doubt as towhether the defendant engaged in the dangerous driving described by Kotsopoulos?

There is, of course, no burden on the defendant toconvince me of the truth of his exculpatory narrative.

[19] While I find KotsopoulosÕ evidence more persuasive, I cannot, in the end, definitively reject the defendantÕs account. Itmight, in the language of W.(D.), reasonably be true. In framing the result in this manner I can do no better than to repeat and adopt thelegal analysis advanced by Code J. in R. v. Humphrey, supra, at para. 156: [T]he second stage in Cory J.Õs analytical framework in [W.(D.)] refers to the trier of fact being in a state of uncertainty. As MordenJ.A. put it in [R. v.] Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont.

C.A.), at pp. 556-7, it refers to Òsomethingin betweenÓ either Òtotal acceptanceÓ or Òtotal rejectionÓ of the accusedÕs exculpatory account. These latter two states of mind, atwhich a trier of fact may arrive when assessing all the evidence at the end of the case, are addressed at the first and third stages of theanalytical framework. The Òin betweenÓ state of mind was also referred to in Challice, supra as simply meaning that the trier isÒunable to resolve the conflicting evidenceÓ. In [R. v]. Nimchuk (1977), (ON CA), 33 C.C.C. (2d) 209 (Ont.

C.A.),Martin J.A. referred to it as meaning that the trier does not know Òexactly where the truth of the matter layÓ, unlike the other two statesof mind where the trier of fact is sure where the truth lies. It is in these senses that I use the phrase Òmight reasonably be trueÓ and notin the sense of imposing some tactical or evidentiary burden on the accused to disprove his guilt. I simply mean that his story has neitherbeen accepted nor rejected, that it might be true, and that I am left in a state of reasonable doubt. Accordingly, an acquittal must follow. D.

CONCLUSION [20] For the reasons I have just recited, I find the defendant not guilty of the offence of dangerous driving. Released on September 18, 2013 __________________________ Justice Melvyn Green