R. v. Steele, 2012 ONCJ 462

Information No.: 10-12638 Citation: R. v. Steele , 2012 ONCJ 462 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN AND TIMOTHY STEELE REASONS FOR DECISION Matter proceeded to Trial on May 18 & June 22, 2012 Reasons for Decision released on July 10, 2012 F. Ball for Crown R. Braiden for Defence GEORGE J.: BACKGROUND/FACTS [ 1 ] Timothy Steele is charged that he operated his motor vehicle in a manner that was dangerous to the public. In assessing this, having regard to section 249(1) (

a) of the Criminal Code of Canada , I must also consider the nature, condition and use of the place where the vehicle was being operated and the amount of traffic there at the time or that might reasonably have been expected. [ 2 ] I heard testimony from three Crown witnesses, from Mr. Steele himself, and received photographs, and a map of the relevant area into evidence.

[ 3 ] The Crown must prove beyond a reasonable doubt, that Mr. Steele operated his vehicle in a manner that was dangerous to the public. They do not have to prove that Mr. Steele purposely, with a specific intent to cause a danger, operated the vehicle, rather that he operated it in a manner that was a marked departure from the reasonable person, and in so doing, caused the danger. There is no distinction to be drawn between what constitutes a 'significant departure' and a 'marked departure'. They are the same. It has to be, however, more than a mere departure. [ 4 ] There is some common ground on the facts, and for the most

part involves location, time of day, and the fact that there was indeed a disagreement between the two key Crown witnesses Mr. and Mrs. Chevers, and Mr. Steele regarding Mr. Steele's driving. [ 5 ] At some point during the evening in question, Mr. Steele was operating his small, 2006 grey Mazda, which on the evidence had significant modifications which lowered the clearance from the bottom of the car to the ground. Mr. Steele also testified to the fact that this vehicle had low profile tires, which I took to mean were inexpensive, and of lesser quality, which gave the vehicle a "rougher ride".

The defence suggests this has value and significance to matters I will address in a moment. It is also agreed that the events occurred in the City of London, and on an access road behind some businesses (including Boston Pizza), which ran parallel to Fanshawe Park Road - a major thoroughfare in London. [ 6 ] Off-duty police officer Lisa Chevers testified that as she and her family were walking through the Boston Pizza parking lot towards their vehicle, and as they were on a median about to move across the access road, she noticed a small vehicle travelling at a high rate of speed.

She testified it was travelling approximately 70-80 km/hr. The vehicle was travelling eastbound at this point. Unlike her husband, she did not speak of this vehicle driving at one of her children and her husband subsequently having to pull the child from that danger. Her evidence was simply that the vehicle was going "way too fast" at which point she yelled, according to her, "slow down". [ 7 ] Michael Chevers, as well an off-duty police officer, testified that he noticed the vehicle turn off from Fanshawe Park road, which I found to be odd as Mr.

Steele would have had to make a further right turn from that point, to be heading in the direction described. In any event, he provides a similar estimate of speed indicating the vehicle was travelling at approximately 80 km/hr. He goes on to describe quite clearly having to clutch his son from the path of a car that was about to hit him. Mr. Chevers testified his wife yelled slowed down, and clearly on the evidence that was what she said. Mr. Steele actually confirms Mr.

Chevers evidence that he almost struck the child, as he didn't see the child while travelling on an incline at that particular point on the access road. [ 8 ] Mrs. Chevers testified that the accused yelled back, from his vehicle, "want to make something of it asshole", while Mr. Chevers says he heard the accused yell "want to make something of it". An exchange like this certainly did occur. [ 9 ] From this point the evidence would indicate that Mr.

Steele continued to proceed eastbound, stopping first at the stop sign that was situated some distance away, and further down the access road near the Tim Hortons, turning around and proceeding westbound back towards where the Chevers were. [ 10 ] I will indicate now that, in my view, nothing to this point constituted dangerous driving. [ 11 ] There is no doubt Mr. Steele did make the turn and proceed to travel westbound along the access road. According to Mr. Steele, and for reasons that make little sense to me, he did so as he wanted to hear what the Chevers' had yelled at him and thought maybe Mr.

Chevers wanted to fight him. It's hard to imagine why anyone would do that in those circumstances, but to his credit I believe Mr. Steele was honest about the reason for his poor exercise in judgment. In any event, that reason having been established does not in and of itself constitute dangerous driving, although as the Crown points out does assist in providing context. [ 12 ] During Mr. Steele's trip westbound along the access road, both Mr. and Mrs. Chevers indicated their belief that Mr. Steele intentionally veered his vehicle towards them as he passed by. [ 13 ] If the Crown's theory that Mr.

Steele drove directly at Mr. Chevers in a purposeful movement is accepted, that is dangerous driving. There can be no doubt about that. Even if I don't accept that, however, that doesn't necessarily mean Mr. Steele didn't drive dangerously. The combination of other evidence and factors could still constitute a marked departure.

For instance, a combination of speed; a nefarious or reckless purpose for the return trip down the access road; the manner of driving otherwise; and proximity of his vehicle to others, even if not with the intent to strike or intimidate, could, when taken together, amount to dangerous driving.

LAW/ANALYSIS [ 14 ] The direction from the Supreme Court in Canada in both R. v. Hundal, [1993] 1 S.C.R. 49 and R. v. Beatty, 2008 SCC 5 is clear as it relates to the mental element of this particular offence. The Court must focus its analysis on the manner of the operation of the motor vehicle and not leap from the consequences of the driving to a conclusion about its dangerousness. The test to be applied is really set out in two parts; first, was there the prohibited conduct (driving that posed a danger)?, and second, was this driving a marked departure from the standard of care of a reasonable person?

The latter represents the fault requirement for the offence of dangerous driving. [ 15 ] Did Mr. Steele drive at Michael Chevers? Mr. Chevers says he did. Mr. Steele says not. There is a contest here. On this point, I give little weight to the evidence of Mrs. Chevers. She was adamant in her assessment of what happened to the point of being slightly combative with defence counsel who was neither oppressive, nor disrespectful in the manner of his cross examination.

She wouldn't budge on any point pursued by the defence or hold out any possibility that she may have been mistaken on anything, when clearly, on her evidence she began at an early point, focussing on getting her children to the car and tending to them. As the defence points out, that is where her focus would have been, and rightly so. I believe the evidence was she was doing so on the passenger side of the vehicle which, given what I was told about where and how the vehicle was parked, would have meant her back was necessarily to much of what was going on, at least after she crossed the access road.

Beyond that, I can't ascertain from the evidence for how long she was at the side of the vehicle; for how long she was inside the vehicle (if she was at all), or what exactly she was doing with the kids, other than getting them into the car and situated. It is clear, however, that she did not leave the vehicle or the children, and join Mr. Chevers where he was on or near the roadway, at least at the point Mr. Steele passed by them while heading westbound. [ 16 ] Mrs. Chevers testified that "she is certain" Mr. Steele's vehicle came "within a meter, or less" of their car where she was with the children. Mr.

Chevers testified that he was standing on the edge of the thoroughfare, presumably some distance from his car as on both of their evidence he was standing out there to observe Mr. Steele's car as it drove away initially. He testified that Mr. Steele's vehicle while travelling back westbound, came within 18 inches of him. I have some difficulty accepting this, especially when comparing it to his wife's evidence. Perhaps this is just a function of imprecision in a witness' answers to pointed questions. Regardless, I'm really left to guess about three things. First, how far was Mr. Chevers from his vehicle?

Second, how far was Mr. Chevers from the road (or was he on the road)? Third, how far was Mr. Steele's vehicle from each of Mr. Chevers and Mr. Chevers' vehicle? I can't speculate about this, and that, in conjunction with the evidence I heard about the lighting in the area, and the fact there was no follow up by the London Police to inspect the scene, including road conditions and any possible unique markings on the shoulder area, I am not prepared to make a finding that Mr. Steele drove his car directly at the Chevers. [ 17 ] Is it possible that Mr. Steele's vehicle did manoeuvre towards Mr.

Chevers inadvertently as a result of hitting a pothole, as suggested by Mr. Steele? I conclude that this is at least a plausible explanation. If either Mr. or Mrs. Chevers had given clearer evidence respecting the condition of the roadway, or had the London Police officer who arrived at the scene later on, conducted even the slightest of investigations respecting the area, I may have been convinced otherwise. [ 18 ] Although after a significant passage of time, Mr. Steele did attend the area and take photographs of the scene which revealed a rough, patchy road area, with a significant pothole.

These pictures were presented to me at trial. Additionally, as eluded to earlier, the investigating officer from the London Police Service, although arriving to take statements and arrest Mr. Steele that very night, undertook no investigation of the scene. [ 19 ] Does the combination of the accepted facts, otherwise, support a finding of guilt? I found Mr. Chevers to be believable and accept that he was well situated to observe the critical events on this night. Finding him believable however doesn't end the analysis. Here, there are competing versions of events, and the accused did testify. [ 20 ] Mr.

Steele testified that his speed did not exceed 40 km/hr while heading eastbound. He testified that he obeyed all traffic signs as there were stop signs situated at one, and maybe two points along the access road. I find as a fact that he did that. He says he yelled something to the effect of "are you trying to start something -- shut up" in response to Mrs. Chevers' comment, which I as well find as a fact he did. He testified he didn't hear what Mrs. Chevers yelled at him, which given the distances and the nature and description of his vehicle, I accept.

He further testified he did not use the term asshole, which I believe as well, and which is to some extent confirmed by Mr. Chevers. [ 21 ] Mr. Steele further testified that he turned around because he saw, presumably Mr. Chevers, standing on the roadway, and he took this as some sort of challenge. While traveling westbound he testified his speed never exceeded 50 km/hr, and that he did not intentionally drive at Mr. Chevers. He testified that, after inspecting the roadway sometime later, he noticed that the road was rough, patchy, and in fact had potholes. I accept that Mr.

Steele didn't know the roads poor condition at the time he made the decision to turn around and drive westbound, which if he did would have significantly impacted this analysis. He further testified that he saw the man

(Mr. Chevers), not by the thoroughfare, but in the thoroughfare and once he got to that point, and was able to take a better view of Mr.Chevers, he thought better of stopping and according to him, decided to go around him. This account suggests Mr. Chevers was on theroadway. Defence counsel put to Mr. Chevers his statement to the police wherein he indicated he was on the thoroughfare, but hemaintained his earlier evidence that he was only by the road. To resolve the issue of where precisely Mr. Chevers was on the roadwaywould require clairvoyance on my part.

In instances such as this, the benefit of the doubt must go to the accused. CONCLUSION [22] It is hard to understand why Mr. Steele did what he did; that is drive back in any manner or for any reason, or why he thought whatwas clearly a father with his kids would want to fight him. If this case were to be determined on a preponderance of the evidence, Iwould say it is more likely than not that Mr. Steele travelled back towards the general area of these folks with a view to intimidatingthem and in so doing was operating the vehicle in a manner closer to the description offered by the Chevers’.

That is not the test,however. I need to be satisfied beyond a reasonable doubt that Mr. Steele's conduct amounted to criminal behaviour as contemplated bythe charging section. [23] This is not a contest. In assessing credibility, I can't disbelieve Mr. Steele simply because I believe Mr. Chevers. To do so wouldbe an error. Mr. Steele withstood a very effective cross-examination by the Crown, and at no point resiled from his position. In fact Ifound his demeanour to be appropriate at all times.

He conceded on points which clearly required a concession (most of which were notself-serving) and he was not combative with the Crown. Although I don't entirely believe Mr. Steele, I can't completely reject hisevidence. [24] I will say also that, although there was some impropriety on Mr. Steele's part, and concerning features to his driving, I am mindfulof the decision of the Supreme Court of Canada in R. v. Roy 2012 SCC 26 , [2012] S.C.J.

No. 26, in particular JusticeCromwell's comments at paragraph 1: "The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminalconviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies thefault requirement for this serious criminal offence." [25] On Mr. Steele's version of events, which I cannot reject, the manner of driving does not fit the fault component as described inRoy. There being a reasonable doubt, the charge is dismissed. ________________ Justice J.C. George