R. v. Carroll, 2019 ONCJ 64

O N T A RI O C O U R T OF J U S T IC E CITATION: R. v. Carroll , 2019 ONCJ 64 DATE: 2019·02·07 B E T W E E N : Her Majesty the Queen — and — Kevin Fitzpatrick Carroll Reasons for Judgment B. Guertin .......................................................................................... Counsel for the Crown T. David ................................................................................. Counsel for the Defendant Felix J.: Table of Contents: R v. Kevin Fitzpatrick Carroll I.

Introduction................................................................................................................................ 3 II. Decision..................................................................................................................................... 5 III. Credibility, Reliability, and the Criminal Burden of Proof.................................................................. 6 A. Introduction....................................................................................................................................................................... 6 B.

Summary of Credibility and Reliability Findings........................................................................................................ 7 IV. Dangerous Driving Northbound on Brock Road............................................................................... 8 A. Contact in Front of the Club........................................................................................................................................... 8

1 . Evidence of the Defendant............................................................................................................................................. 8 2 . Evidence of Dwite Barriffe............................................................................................................................................. 8 3 . Evidence of Tarrick Brissett........................................................................................................................................... 9 4 .

Evidence of Katiesha Brissett........................................................................................................................................ 9 5 . Evidence of Ashley Shura............................................................................................................................................. 9 6 . Analysis: Contact in Front of the Club............................................................................................................................ 9 B.

Driving Northbound on Brock Road........................................................................................................................... 11 1. Evidence of the Defendant........................................................................................................................................... 11 2. Evidence of Dwite Barriffe........................................................................................................................................... 11 3.

Evidence of Tarrick Brissett......................................................................................................................................... 11 4. Evidence of Katiesha Brissett...................................................................................................................................... 11 5. Evidence of Kadeja Hughes......................................................................................................................................... 12 6.

Evidence of Ashley Shura........................................................................................................................................... 12 V. Dangerous Driving: The Law....................................................................................................... 12 A. Introduction..................................................................................................................................................................... 12 B.

Penal Negligence......................................................................................................................................................... 13 C. Dangerous Driving: Actus reus .................................................................................................................................. 13 D. Dangerous Driving: Mens rea ..................................................................................................................................... 14 E.

Marked Departure......................................................................................................................................................... 14 F. Exculpatory Defences................................................................................................................................................... 15 VI. Dangerous Driving Northbound on Brock Road:............................................................................ 15 A.

Actus Reus..................................................................................................................................................................... 15 B. Mens rea......................................................................................................................................................................... 18 C. Conclusion..................................................................................................................................................................... 18 VII.

Dangerous Driving in the McDonald’s Parking Lot ..................................................................... 20 A. Evidence at Trial............................................................................................................................................................ 20 1. Evidence of the Defendant........................................................................................................................................... 20 2.

The evidence of Tarrick Brissett.................................................................................................................................. 21 3. The evidence of Katiesha Brissett............................................................................................................................... 22 4. The evidence of Kadeja Hughes.................................................................................................................................. 23 5.

The evidence of Ashley Shura.................................................................................................................................... 23 B. Analysis: Dangerous Driving in the McDonald’s Parking lot................................................................................. 24 1. Claimed lack of awareness of the complainant’s vehicle............................................................................................ 24 2.

Arrival at the McDonalds Parking lot............................................................................................................................. 25 3. The defendant tried to distance himself from a finding that he was familiar with the McDonalds Parking lot............. 25 4. The defendant immediately pursued an innocuous stimulus........................................................................................ 26 5.

First contact................................................................................................................................................................. 27

6. Physical confrontation with Tarrick Brissett................................................................................................................ 27 7 . The defendant disavowed anger or upset after the fight with Tarrick Brissett.......................................................... 28 8 . Statements made by the defendant before entering his vehicle.................................................................................. 28 9 .

Leaving the scene........................................................................................................................................................ 29 10 . Testimonial admission................................................................................................................................................... 29 11 . Dangerous Driving: Actus Reus................................................................................................................................... 30 12 .

Damage to the Defendant’s vehicle.............................................................................................................................. 32 13 . After the fact conduct.................................................................................................................................................. 32 14 . Dangerous Driving McDonald’s Parking Lot: Mens rea................................................................................................. 33 VIII.

Fail to Remain...................................................................................................................... 33 IX. Assault and Utter Threat allegations............................................................................................ 34 A. Threats North Bound on Brock Road and in McDonald’s Parking Lot................................................................ 34 B. Assault: Tarrick Brissett............................................................................................................................................... 35 C.

Assault: Katiesha Brissett........................................................................................................................................... 35 I. Introduction 1 [ 1 ] The defendant is charged with dangerous driving and other related criminal matters. The allegations involve a minor non- violent interaction at the front of a local night club between two groups. Thereafter, the allegation is that the defendant drove dangerously and uttered threats as the defendant drove his vehicle northbound on Brock Road in Pickering.

The parties arrived at a 24 hour McDonald’s restaurant on Brock Road north of the 401 in Pickering. There it is alleged that the defendant assaulted Tarrick Brissett, and his sister, Katiesha Brissett.

The final allegation is that the defendant drove dangerously by deliberately driving his BMW X5 SUV into Tarrick Brissett. [ 2 ] The prosecution’s case focused on the evidence of four civilian witnesses occupying one vehicle [the complainant vehicle]: Kadeja Hughes was the driver, Katiesha Brissett was the front seat passenger, Tarrick Brissett (brother of Katiesha Brissett) was in the rear passenger seat on the driver’s side, and Ashley Shura was in the rear passenger side seat. 1 Oral reasons were provided in Court on February 1, 2019. As explained that day, written reasons would be provided forthwith.

The addition of full citations and minor grammatical changes that do not impact the content of the decision have been applied. These written reasons are the official judgment. [ 3 ] The prosecution witnesses testified that there was a mild disagreement involving the defendant just prior to leaving the local night club. These witnesses generally testified that the defendant engaged in dangerous driving northbound on Brock Road after leaving the club. They describe the defendant tailgating, cutting their vehicle off, pulling in front of their vehicle, and slamming on the brakes.

The driver had to take evasive action to avoid a collision. Thereafter, these witnesses say that the defendant followed them into a McDonald’s parking lot and parked right beside their vehicle. They say that the defendant came up to the complainant vehicle and assaulted Tarrick Brissett through the window of the vehicle. Further, that the defendant also assaulted Katiesha Brissett by grabbing her neck. Thereafter, the defendant and Tarrick Brissett engaged in a mutual fight.

At the end of the fight it is alleged that the defendant got back into his BMW X5 SUV, drove around the parking lot at high speeds, and then deliberately struck Tarrick Brissett causing injury. [ 4 ] The defence case focused on the defendant and his friend Dwite Barriffe who attended the night club together. The defendant’s position is that there was no conflict at the club. Furthermore, there was simply no contact with the complainants or their vehicle northbound on Brock Road.

The defendant’s perspective is that when he arrived at MacDonald’s to get something to eat, someone from the complainant’s vehicle called out to him. He went over to say “ Excuse me!” to the person and a female occupant of th e car (later identified as Katiesha Brissett) got out and starting telling him off and waging her finger in his face. While he was occupied with this conflict a male party (later identified as Tarrick Brissett) grabbed him from behind and they fought. After the fight was over he was intent on leaving quickly as he heard that the police had been called.

There was no unilateral assault committed on anyone. While he did leave the scene with some dispatch because he did not want to engage with the police, he did not impact the other parking lot patrons

and did not hit anyone with his vehicle. It is only when he arrived at home and parked his car that he noticed damage to his car. [ 5 ] At the outset, some preliminary guidance to this judgment is required. First of all, both counsel approached this case withattention to very fine detail. The examinations and cross-examinations were exhaustive and comprehensive. The written submissionsnaturally respond to the record produced. Given the approach of counsel, it is important to note that I will not rehash or regurgitate everysingle piece of testimony or every issue raised.

I will summarize the evidence of the witnesses and then endeavor to explain what wasimportant and why. [ 6 ] Second, while this judgment will flow thematically through the events at the club, and the events on Brock Road, andculminate with the events in the McDonald’s parking lot, the criminal burden of proof is not being applied to individual issues or piecesof evidence. [ 7 ] Third, identification issues were initially litigated in this case.

Ultimately, the defendant conceded identification during thelatter part of the prosecution case. [ 8 ] Finally, the main focus of this judgment is credibility, reliability, and the proper application of the criminal burden of proofincluding the guidance in W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D.)]. The prosecution submits that the prosecution witnesses should be believed.The defence submits that the evidence of these witnesses is rife with inconsistencies and should not be relied upon.

Furthermore, thedefence submits that the defendant’s evidence analyzed through the framework of W.(D). should result in an acquittal. II. Decision [ 9 ] My findings require some amplification because of the approach of counsel at trial.

The Crown Attorney made certainstipulations at trial with the result that the Assault with a Weapon (count 3) and Dangerous Driving (count 6) are referable to the sametransaction – namely, the defendant operating his BMW X5 SUV motor vehicle and striking Tarrick Brissett in the McDonald’s parkinglot. [ 1 0 ] I find that the prosecution has proven counts 3 and 6 beyond a reasonable doubt. I will hear submissions concerning whether aconditional stay of one of these counts should be ordered R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; and R. v.

Provo, (SCC), [1989] 2 S.C.R. 3. [ 1 1 ] The Crown Attorney prosecuted the defendant for dangerous driving both on Brock Road. and in the McDonald’s parking lot.There was only one count of dangerous driving on the Information. The Crown Attorney sought an amendment to count 6 striking outthe particularization that limited the dangerous driving to operation on Brock Road. Defence counsel consented to the amendment. As aresult, the offence of dangerous driving is referable to both transactions – Brock Road, and the McDonald’s parking lot.

Factually, whilethere is no representative count, I am satisfied beyond a reasonable doubt that the defendant committed the offence of dangerous drivingon Brock Road as well. [ 1 2 ] With respect to the criminal offence of fail to remain (count 4) some focus on the construction of the count is in order. Count 4 isparticularized to allege that the defendant was involved in an accident with a vehicle. The count alleges criminal conduct under thepenalty

section -- s. 252(1.1.) of the Criminal Code of Canada [Criminal Code]. The prosecution did not particularize the count undereither s. 252(a) [a person], or s. 252(b) [another vehicle]. The prosecution did not seek an amendment to conform with the evidence tofocus the prosecution on either a person or another vehicle. There was no request for particulars on the part of the defendant. In thesecircumstances, I find that the prosecution must prove that which was alleged – that the defendant was in an accident with anothervehicle.

I am satisfied beyond a reasonable doubt that in striking Tarrick Brissett with his vehicle, the defendant also struck KadejaHughes’s vehicle breaking the driver’s side viewing mirror on her vehicle. [ 1 3 ] The Crown has proven count 7 (breach of an s.810 recognizance) beyond a reasonable doubt. [ 1 4 ] With respect to count 1 (Assault on Tarrick Brissett), count 2 (Assault on Katiesha Brissett), and count 5 (threatening allegationconcerning Tarrick Brissett), the prosecution has not proven the offences beyond a reasonable doubt. I have a reasonable doubt sourced

from the defendant’s evidence concerning the circumstances. Furthermore, I have instructed myself on the third branch of the W.(D).analysis. Having regard to what evidence I do accept from the prosecution witnesses, I am in a state of reasonable doubt. Thiscombination of the defendant’s evidence and the third branch of W.(D). mandates an acquittal. [ 1 5 ] I will address the convictions on counts 3, 4, and 6 first (the conviction on count 7 flows from the findings in relation tocounts 3, 4, and/or 6). Then I will explain why I have acquitted the defendant on the remaining allegations. III.

Credibility, Reliability, and the Criminal Burden ofProof A. Introduction [ 1 6 ] I have considered a number of all-embracing principles relating to credibility and the criminal burden of proof. [ 1 7 ] First, as in every criminal prosecution the Crown must prove the defendant’s guilt beyond a reasonable doubt.

If there is anyreasonable doubt it must be resolved in favour of the defendant. [ 1 8 ] Second, I am guided by [W.(D.)] where the Court endorsed the following analysis concerning credibility and the criminal burdenof proof: (1) if you believe the evidence of the accused, obviously you must acquit; (2) if you do not believe the testimony of the accusedbut you are left in reasonable doubt by it, you must acquit; (3) even if you are not left in doubt by the evidence of the accused, you mustask yourself whether, on the basis of the evidence which you do accept, are you convinced beyond a reasonable doubt by that evidenceof the accused’s guilt. [ 1 9 ] Third, a court may believe all, none or some of a witness' evidence: R. v.

Francois, (SCC), [1994] 2 S.C.R. 827,at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.), at para. 5; and R. v. Abdallah, [1997] O.J. No. 2055 (C.A.), at paras. 4 - 5. [ 2 0 ] Fourth, a court is entitled to accept parts of a witness' evidence, reject other parts, and determine the appropriate weight accordedto different parts of the evidence: R. v. Howe, (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44. [ 2 1 ] Fifth, a determination of guilt or innocence must not, devolve into a mere credibility contest or choice between competingprosecution and defence witness evidence.

This approach would negatively impact the presumption of innocence and the criminalstandard of proof beyond a reasonable doubt: W.(D.), at p. 409; and Avetsyan v. The Queen (2000), 2000 SCC 56 , 149 C.C.C.(3d) 77 (S.C.C.), at pp.85-87. [ 2 2 ] Sixth, having regard to the principles in W.(D.), mere disbelief of the accused's evidence does not equate to criminal liability. It isan error to move directly from mere disbelief of the accused's evidence to a positive finding of guilt: R. v. Dore (2004), (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A.No. 517); and R. v.

H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6. [ 2 3 ] Finally, after considering the totality of the evidence at trial, if I am unable to decide whom to believe as between theprosecution witnesses and the defence witnesses, this state of mind translates into a reasonable doubt: R. v. S. (J.H.), 2008 SCC 30, atpara. 12; and R. v. Austin, (ON CA), [2006] O.J. No 4660 (C.A.), at para. 20.

B.

Summary of Credibility and Reliability Findings [ 2 4 ] Credibility is assessed overall, based on the entire record of the proceeding. In the reasons that follow I will detail the foundation of my credibility determinations. [ 2 5 ] By way of high level

summary, I generally accepted the evidence of Tarrick Brissett and Katiesha Brissett and found both witnesses to be credible and reliable on the core relevant considerations. I did find that there was some limited evidence of bias against the defendant in their overall evidence and presentation at trial. I did endorse some of the reliability issues (for example, things that these witnesses testified to at trial that were not in their statement to the police) submitted by defence counsel. The reliability concerns impacted my findings.

The hint of bias caused me to be mildly cautious with the evidence of these witnesses. In the final analysis, I found both of these witnesses to be credible. [ 2 6 ] I found Kadeja Hughes to be a credible and reliable witness. Her evidence on the dangerous driving on Brock Road was particularly probative. There were mild reliability concerns with her evidence that I will explain further in this judgment. These concerns did not significantly impact her credibility. [ 2 7 ] I had both credibility and reliability concerns with Ashley Shura’s evid ence.

When testifying she displayed an obvious and transparent demeanor of bias against the defendant. I will explain further in this judgment why I was very cautious with her evidence, particularly in some areas where her testimony stood alone. To the degree I relied on her evidence I looked for corroboration. [ 2 8 ] I did not have any credibility or reliability concerns associated with the investigating police officer’s testimony. [ 2 9 ] I found defence witness Dwite Barriffe to be a credible and reliable witness. He testified in a straightforward manner and answered all questions directly and clearly.

Notwithstanding his relationship with the defendant his testimony did not display any notable bias or undue influence. Minor reliability concerns did not impact his credibility in my view. [ 3 0 ] Finally, I found the defendant to be largely incredible on several core areas relevant to criminal culpability. Demeanor is typically of limited assistance. But he did not present well as a witness when pressed on key issues, particularly during cross-examination. Nonetheless, I was able to rely on certain areas of his evidence sufficient to provoke reasonable doubt as I will explain further in this judgment. IV.

Dangerous Driving Northbound on Brock Road A. Contact in Front of the Club 1. Evidence of the Defendant [ 3 1 ] The defendant testified that he was invited to the club by his friend Dwite Barriffe and he arrived at about 1:00 AM. There was no conflict inside of the club. When leaving the club his friend was a few steps ahead of him and was chatting with a group of females. Someone in the group of females said something rude or harsh to his friend. He could not recall the specific words. Dwite Barriffe said something in response but he could not recall the specific words.

He recalled telling his friend “ Boy, just leave the fat girl alone!” and that his friend said “At least I drive a BMW! ” at the complainant’s car as it drove by. The defendant testified that he and his friend left a few moments later and that he was not angered at all about the interaction.

2. Evidence of Dwite Barriffe [ 3 2 ] The defendant’s friend and former co-worker Dwite Barriffe testified that when leaving the club he spoke with a female patron who he recognized as a frequent customer of the club. He complemented this female on her dance moves. This female took the comment well and simply said thank you. After this exchange he was confronted by a woman (who I find to be Ashley Shura) who insulted him and told him to leave the female alone. Ashley Shura also told him to take his Uber home.

Dwite Barriffe testified that he did not take the insult seriously and in response simply pointed at his BMW vehicle parked nearby and referenced the fact that he drove it. Contrary to the defendant’s testimony, Mr. Barriffe testified that he did not make any adverse comment to the complainants as they drove by in their vehicle. 3. Evidence of Tarrick Brissett [ 3 3 ] Tarrick Brissett testified that Mr. Barriffe approached his sister seeking her phone number. After she turned him down he told Mr. Barriffe to shut up because he was bragging about his BMW car. Mr. Barriffe did not recall this in his testimony.

Tarrick Brissett testified that there were no threats and it was a quick exchange. 4. Evidence of Katiesha Brissett [ 3 4 ] Katiesha Brissett confirmed that she was approached by Mr. Barriffe and that her brother was having a conflict with another male at the front of the club 5. Evidence of Ashley Shura [ 3 5 ] Ashley Shura testified that the defendant was upset by Tarrick Brissett putting down Mr. Bariffe and that the defendant threatened the group of complainants in front of the club. 6.

Analysis: Contact in Front of the Club [ 3 6 ] No criminal liability flows from the events that occurred at the front of the club as patrons flowed out in the early morning hours. Counsel produced a thorough record of the interaction in the front of the club perhaps because this was the genesis for later events -- the allegations of criminal conduct on Brock Road and in the McDonalds parking lot. This record also provided some basis to assess credibility and reliability of the witnesses. [ 3 7 ] I found defence witness Dwite Barriffe to be credible and reliable.

I accept his evidence that his interaction with Katiesha Brissett was without conflict and that it was complimentary towards her. It would appear that Ashley Shura escalated matters. I found Ashley Shura’s evidence in this area to be incredible and unreliable. She denied swearing, insulting Dwite Barriffe, or referencing an insult involving Uber. But these were things generally observed by her friends Tarrick Brissett and Katiesha Brissett. Ashley Shura is also the sole witness to testify that the defendant uttered threats in front of the club. I do not accept this evidence.

In my view, Ashley Shura presented as a witness with transparent bias against the defendant. [ 3 8 ] I did not find the defendant’s evidence to be credible about these circumstances in front of the club. It was evident that he sought to minimize his involvement in what was clearly a minor interaction. [9]

[ 3 9 ] First of all, he sought to project physical distance when describing the position of Mr. Barriffe and the complainants in front of the club. He laboured over his precise physical movement towards and through the exit door of the club with detail that no reasonable person would possess. For example, he claimed to have a precise recollection of his exact position in relation to his friend as they moved towards the exit doors.

He also testified that he did not see his friend at the door of the club or just outside the door of the club, and that he only observed him when he had fully emerged from the club. [ 4 0 ] Second, when the defendant testified about the conflict at the McDonald’s he maintained that he did not initially draw a connection between the complainant group and what happened in front of the club.

It was only during cross-examination that the defendant grudgingly conceded that he made a connection between the woman involved in the interaction in front of the club and the conflict at the McDonalds parking lot. [ 4 1 ] Third, Dwite Barriffe was crystal clear that both he and the defendant were physically proximate to both the complainants and their vehicle. The defendant sought to project greater distance and resisted the obvious – denying that he observed the females or the male party in the complainant vehicle. [ 4 2 ] Fourth, there was a manifest inconsistency between the defendant and Mr.

Barriffe concerning the defendant’s testimony that Mr. Barriffe leaned over and directly engaged the complainant’s in their vehicle by making a comment about his BMW as the complainant’s vehicle passed. Mr. Barriffe was quite clear that this did not occur. This minor inconsistency between them attracted more attention because the defendant was placing Mr.

Barriffe in the role as the primary protagonist – relegating the defendant to the background. [ 4 3 ] Finally, when testifying, the defendant quarreled with the crown’s definition of what a “ verbal exchange” meant and supported an unreasonable and illogical definition of same. [ 4 4 ] In sum, the defendant evidently perceived there to be some advantage to distancing himself from the interaction in front of the club. He rather transparently sought to convey that he was not significantly involved in what I found to be a minor exchange.

He thought it important to claim that he never saw Tarrick Brissett at the front of the club. Ultimately, the defendant failed to appreciate that his testimony was internally inconsistent with his testimonial stated purpose in hurling an insult towards one of the complainants (the fat girl comment). He was proximate enough and involved enough to hurl an insult. [ 4 5 ] It is unclear precisely what happened in front of the club. Factual findings concerning what happened in front of the club are not directly relevant to the determination of criminal liability on the counts before the court.

The Crown need not prove a motive sourced in the events in front of the club. In the end this area of examination by counsel simply provided a narrative beginning to the allegations and provided a platform for the assessment of the credibility and reliability of the witnesses at trial. B. Driving Northbound on Brock Road 1. Evidence of the Defendant [ 4 6 ] The defendant testified that nothing happened during his drive between leaving the club and arriving at the McDonald’s parking lot near Pickering Parkway.

While driving north on Brock Road, there were a few other vehicles, but there was simply no interaction with any other vehicle or person. In particular, the defendant did not have contact with the complainant vehicle. 2. Evidence of Dwite Barriffe [ 4 7 ] The defendant’s friend left the club at the same time as the defendant and proceeded in the same direction but parted ways with the defendant at the traffic lights on Brock Road prior to the bridge over the 401. This location is far from Pickering Parkway. He was not in a position to observe any interaction between the defendant and the complainant vehicle.

He testified that he did not look back once he passed the defendant.

3. Evidence of Tarrick Brissett [ 4 8 ] Tarrick Brissett was seated in the rear passenger seat behind the driver. He described the defendant’s vehicle being operated in a dangerous fashion on Brock Road near Pickering Parkway. He explained that as the complainant vehicle proceeded northbound in the curb lane the defendant sped up and came along- side the driver’s -side of the complainant vehicle. The defendant was angrily yelling that they had cut him off. The defendant uttered a threat to kill twice and Tarrick Brissett believed the threat was directed towards him.

As a result he yelled back: “If you want to kill me come kill me”. Tarrick Brissett was angry that they were being threatened. As the only male in the vehicle he felt protective of his sister and friends. As they approached Pickering Parkway, the defendant sped up alongside the complainant vehicle, pulled out in front of the complainant vehicle, and slammed on his brakes. 4. Evidence of Katiesha Brissett [ 4 9 ] Katiesha Brissett described the defendant accosting them as her vehicle she changed lanes into the curb turning lane to proceed right on Pickering Parkway.

The defendant had the passenger side window down on his car and was yelling threats and claiming that they had cut him off. His vehicle was keeping pace with their vehicle going approximately 55 to 60 KM per hour. There was a lot of yelling and confusion. She described how the defendant’s vehicle accelerated, moved in front of their vehicle, and then the defendant slammed on his brakes. She told Kadeja Hughes to keep driving and as a result she drove out to the left, around the defendant’s vehicle, and continued on their way to Pickering Parkway. All the while the defendant’s vehicle tailgated them.

They turned right on Pickering Parkway and left into parking lot where the McDonald’s was situated. During these events she heard her brother say to the defendant “Who are you? Leave us alone!” The defendant was saying “I am going to kill you; I am going to get you” in a loud and angry tone. Her brother challenged “C ome at me then! ”. 5. Evidence of Kadeja Hughes [ 5 0 ] Kadeja Hughes was the driver of the complainant vehicle. She described proceeding northbound on Brock Road over the bridge to the 401 where she indicated a lane change and moved from the middle lane to the curb lane.

A few seconds later a vehicle came up beside her vehicle on the driver’s side. The defendant had lowered the passenger side window and was yelling through the window that she had cut him off. He was animated, yelling, and swearing at her. [ 5 1 ] The defendant’s vehicle moved behind her in the right hand turning lane as she approached Pickering Parkway. The vehicle was following too closely and riding her bumper such that she could not even see his headlights. Then the vehicle pulled out, passed her quickly, and cut her off just in front of a traffic island. The defendant slammed on his brakes.

She had to swerve out to the left to avoid a collision with the rear of his vehicle. Thereafter she was able to return to the curb lane before turning right on Pickering Parkway. 6. Evidence of Ashley Shura [ 5 2 ] This witness first noticed the defendant’s vehicle as they were travelling northbound on Brock Road at the point when he began trying to overtake their vehicle. The defendant was yelling through the window and appeared to be staring at Tarrick Brissett and appeared to be focused on him. She could not make out what he was saying in detail.

As they approached Pickering Parkway in the curb lane the defendant’s vehicle was “literally right on their backend”. V. Dangerous Driving: The Law A. Introduction

[ 5 3 ] The proper approach to the criminal offence of Dangerous Driving has attracted significant appellate guidance as trial courts have grappled with the difficult analysis involved. As a result, this court has an obligation to clearly set out the law and the relevant analysis. B. Penal Negligence [ 5 4 ] Penal negligence, as distinct from civil negligence, is focused on punishment of blameworthy conduct: R. v.

Beatty , 2008 SCC 5 , at para. 6 [ Beatty ] . [ 5 5 ] Fundamental principles of criminal justice and penal negligence require that the Crown establish conduct that deviates from the norm and the mental intent of the defendant in support of a criminal conviction: ( Beatty , at para. 6 ; and see discussion at paragraphs for the rationale in support of this approach at paragraphs 18-28).

Given the fact that driving is a regulated and licensed activity, it is appropriate to apply an objective test subject to two important caveats: the “marked departure” test and the allowance of exculpatory defences sourced in the subjective mindset of the driver: Beatty , at paras. 33-49 [ 5 6 ] The “modified objective test” is appropriate for dangerous driving offences because it modifies the purely objective standard for civil negligence such that there must be a “marked departure” rather than a “mere departure” from the civil standard expected of a reasonably prudent person: Beatty , at paras. 7 ; 29-32. [ 5 7 ] Furthermore, the modified objective test provides for a contextual analysis of the mental state of the defendant.

Objective mens rea – the notion that a reasonable person in the defendant’s position would have been aware of the risks – is tempered by the allowance of a reasonable doubt as to whether a reasonable person in the circumstances would have been aware of the risk arising from the conduct and provides for defenses including incapacity and mistake of fact: Beatty , at para. 8 . C. Dangerous Driving: Actus reus [ 5 8 ] The actus reus is determined by the wording of the provision in the Criminal Code , not by reference to the civil standard of negligence. As explained in Beatty at paragraphs 43-45 (see also R. v.

Roy , 2012 SCC 266 , at paras. 28 ,33-35 [ Roy ]; and R. v.

Laverdure , 2018 ONCA 614 , at para. 20 [ Laverdure ] ): [t]he trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "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. [ 5 9 ] The analysis of actus reus requires a determination of the manner of driving, placed within the context of all of the circumstances, to determine whether or not the manner of driving constituted a danger to the public: Laverdure , at para. 22 .

The manner in which the vehicle was operated is the focus – not the consequence of driving: Beatty , at para. 46 ; R. v. Romano , 2017 ONCA 837 , at paras. 65-72 [ Romano ] . If the actus reus is not made out on the evidentiary record there is no need to analyze the mens rea . If the actus reus is made out the trier of fact must go on to consider evidence, if any, of the subjective mindset of the defendant: Beatty , at para. 49 . [ 6 0 ] It is an error to move directly from a conclusion that the driving was “ dangerous ” to a finding that such driving constitutes a “marked departure”.

The trial judge must explain how and in what way the driving went beyond negligence or carelessness and therefore reached the level of a marked departure from the standard of care that a reasonable person would have exhibited: Roy , at para. 30; Laverdure , at para. 25 ; and R. v. Reynolds , 2013 ONCA 433 , at para. 18 .

D. Dangerous Driving: Mens rea [ 6 1 ] The Court in Beatty also restated the requisite mens rea at paragraph 43 (see also Laverdure, at para. 23; and Roy, at paras. 28; 36-38): The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied bythe required mens rea.

In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care thata reasonable person would observe in the accused's circumstances.

Moreover, if an explanation is offered by the accused, then in order toconvict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and ofthe danger involved in the conduct manifested by the accused. [ 6 2 ] The prosecution is not required to prove a subjective form of mens rea or a positive state of mind (e.g. intent, recklessness, orwilful blindness): Beatty, at para. 47.

In circumstances where it is established that the operator purposefully maneuvered the vehicle (e.g.purposefully drove into the path of an oncoming vehicle) in a manner captured by the criminal code provision, it may be open to find thatsubjective mens rea exists but subjective mens rea is not an element of the offence: Beatty, at paras. 47-48. E. Marked Departure [ 6 3 ] Criminal law mandates proof of a “marked departure” rather than the civil standard of a “mere departure” from the standardexpected of reasonable persons: Roy, at para. 1; Beatty, at para. 33.

The addition of this “marked departure” component to the modifiedobjective test ensures that objective circumstances of driving dangerously as contemplated in the Criminal Code provision areaccompanied by the presence of sufficient mens rea to determine that the offence has been proven: Beatty, at para. 36. [ 6 4 ] While the civil standard ignores the mental state of the driver (except as it concerns punitive damages), the criminal standardrequires careful consideration of the mental state to ensure that the driving conduct is deserving of criminal punishment: Beatty, at para.35.

Thus, it is appropriate that the prosecution be required to prove a marked departure from the standard of care that a reasonable personwould observe in the circumstances: Beatty, at para. 36. [ 6 5 ] Evaluation of the issue of a “marked departure” involves drawing inferences from all of the circumstances including any availableevidence about the defendant’s actual state of mind: Roy, at paras. 39 -40 F.

Exculpatory Defences [ 6 6 ] Criminal law also mandates a contextual analysis with due consideration of any exculpatory defences to ensure that the offence isconstitutionally compliant: Beatty, at para. 37. [ 6 7 ] The premise that a reasonable person in the position of the defendant would have been aware of the risks associated with drivingand would not have engaged in such conduct may not be sustainable on a contextual analysis of all of the circumstances: Beatty, at paras.37-38. In such circumstances, (examples which the Court cited from R. v.

Hundal, (SCC), [1993] 1 S.C.R. 867) areasonable person would not have been aware of the risk or would not have been able to avoid creating the danger. It is unjust to findsuch persons criminally blameworthy. VI. Dangerous Driving Northbound on Brock Road: A. Actus Reus

[ 6 8 ] I make the following specific findings with respect to the actus reus : a. The complainant vehicle proceeded northbound on Brock Road in the curb lane after leaving the club; b. The complainant vehicle changed lanes to the right hand turning lane for Pickering Parkway; c. The defendant’s BMW X5 SUV vehicle began to follow the complainant’s vehicle too closely and was riding the bumper of the complainant’s vehicle; d. The defendant sped up to approximately 55 KM and moved out to the left parallel with the complainant vehicle; e.

The defendant was yelling and screaming at the occupants of the complainant vehicle while maintaining a parallel speed of approximately 55 to 60 KM per hour; f. The defendant suddenly moved to the right in front of the complainant vehicle thereby “cutting off” the complainant vehicle; g. The defendant slammed on his brakes; h. The complainant vehicle swerved out to the left to avoid a collision; i. The complainant vehicle drove around the defendant’s vehicle back into the turn lane for Pickering Parkway; j. The defendant’s vehicle began tailgating the complainant’s vehicle again; and, k.

There were no road conditions, weather conditions, or mechanical issues impacting the defendant’s ability to operate his vehicle. [ 6 9 ] Identification of the defendant has been conceded.

I am satisfied beyond a reasonable doubt that the vehicle described by the prosecution witnesses was operated by the defendant and he followed them into the McDonalds parking lot off of Pickering Parkway. [ 7 0 ] I reject the defendant’s testimony that there was no contact with the complainant vehicle northbound on Brock Road for several reasons. [ 7 1 ] First, even on the defendant’s evidence he used Brock Road to arrive at the McDonald ’ s parking lot. Second, Dwite Barriffe passed the defendant’s vehicle at the lights prior to the bridge to the 401.

The dangerous driving occurred at Pickering Parkway – on the other side of the 401 bridge, some distance away. As such, Dwite Barriffe was not in a position to observe the incident. Probative of his credibility he did not attempt to suggest that he was in a position to observe any interaction between the complainant vehicle and the defendant’s vehicle. But, eve n the defendant’s friend confirms that the defendant proceeded northbound on Brock Road.

Third, the defendant cites the fact that the complainant’s did not immediately call the police or other friends for help on Brock Road as support for the improbability of their account. The defendant argues that if the events occurred as described by the prosecution witnesses then someone would have called the police or alerted other friends in the area. In my view, this is not important. People react differently to events. The events on Brock Road were not protracted. [ 7 2 ] Fourth, I do not agree with the defendant’s argument that the complainant’s colluded to present a cohesive fabricated account.

I do not find that the evidence of the prosecution witnesses has been contaminated by collusion. There are differences and omissions when considering the civilian witness evidence as a whole. For example, Katiesha Brissett was the only witness to testify that her brother called the defendant a “bean -h ead” at the club. I do not think this happened. Ashley Shura testified that Tarrick Brissett was not even present at the front of the club. I believe that he was indeed present at the front of the club.

Ashley Shura was the only witness to testify that the defendant was driving like a maniac prior to approaching the rear of their vehicle. Other witnesses simply observed tailgating.

Finally, the prosecution civilian witnesses were inconsistent when describing an alleged threat or threats uttered by the defendant. For reasons I will explain later on, this has resulted in an acquittal on the threatening count. Were these witnesses intent on fabricating evidence or otherwise colluding against the defendant, speaking with one voice about the threat would have been an easy focus point.

I have done my best to synthesize a vast detailed record produced by counsel and I simply cannot agree that the witnesses colluded. [ 7 3 ] Each prosecution witness described the maneuvers of the defendant in a slightly different but immaterial fashion. Each witness had varying levels of detail. This was not a collusive presentation of the evidence. The driver Kadeja Hughes had the most detail about the maneuvers of the defendant’s vehicle. I found her evidence to be very detailed and highly probative. She was specific, logical, and did not manifest bias toward the defendant when testifying.

I find that when Tarrick Brissett and Katiesha Brissett testified the weight of their evidence was impacted very slightly by some indications of bias towards the defendant as displayed by demeanor. But these minor displays were not critical when evaluating the overall credibility and reliability of Tarrick Brissett and Katiesha Brissett. It was natural and understandable that perhaps Tarrick Brissett felt a more protective role as the only male party in the group. It is also natural and understandable that a brother and sister would exhibit protectiveness towards each other when testifying.

Ashley Shura did not have much detail. But her evidence overall was tainted by manifest bias towards the defendant. I did not attach much weight to her evidence and if I did I looked for external corroboration. This record does not support collusion on the part of the prosecution witnesses. [ 7 4 ] Fifth, I am not perturbed by the lack of definitive evidence from Kadeja Hughes that she cut off the defendant. She could have inadvertently cut off the defendant. In any event, the prosecution need not prove that this occurred to sustain the defendant’s guilt.

In a similar vein I am not put off by the fact that on the evidence of the complainant’s, the defendant appeared to single out Tarrick Brissett notwithstanding the complaint appeared to be that Kadeja Hughes had cut him off. The defendant’s position is that none of this happened. He has no contrary version for me to consider.

The evidence of the prosecution witnesses provides context for why the defendant continued the event by following them into the McDonald’s parking lot. [ 7 5 ] Finally, the central conclusion I have reached in this case is that the defendant followed the complainant’s into the McDonald’s parking lot and continued the conflict.

While the McDonalds restaurant was really the only restaurant open, and I accept the defendant’s testimony that it was not unusual fo r him to attend this restaurant, it is no mere coincidence that he arrived moments after the complainant vehicle and parked next to that vehicle despite the vast array of available parking locations in the large parking lot. He followed the complainant vehicle into the parking lot after the conflict on Brock Road.

It is not a coincidence that he arrived at the MacDonald’s parking lot proximate in time to the complainant’s arrival, parked beside them, and then engaged them further. [ 7 6 ] It is quite clear on all of the evidence that both the defendant and the complainant vehicles left the same club, took the same route northbound on Brock Road, and arrived at the McDonalds parking lot at essentially the same time. The circumstances involving the interaction in front of the club, the movement [17] northbound on Brock Road, and the contact in the McDonald’s parking lot were very close together in time and distance.

This close temporal timeframe and sequence of events belies the defendant’s claim of non -involvement in matters on Brock Road. B. Mens rea [ 7 7 ] The defendant testified that he did not have any contact with the complainant vehicle northbound on Brock Road. Directly and inferentially his version of events negates any possibility that the offence of dangerous driving occurred. If I believed this testimony, or harboured a reasonable doubt I would be obligated to register an acquittal. I do not believe the defendant’s evidence for several reasons.

I am not in a state of doubt. [ 7 8 ] I have outlined the actus reus concerning the dangerous driving on Brock Road. I find that he was indeed present northbound on Brock Road. I do not believe his denial. [ 7 9 ] Focusing on the mens rea , I have only the defendant’s testimonial blanket denial. As a result: (1) there is no exculpatory

alternative version for me to weigh; (2) there is no room for me to credit him by imputing to the complainant’s a misunderstanding or misperception of the important events; and (3) there is no subjective mindset of the defendant to analyze with a view to his criminal blameworthiness. The defendant’s blanket denial that he was even present northbound on Brock Road leaves me with no evidence from him that is probative on the issue of mens rea . Often there are at least two sides to the typical “road rag e” type incidents addressed commonly in criminal courts.

The defendant denies even being present for this portion of the allegations. As such, there is no insight into his mental state or how he evaluated the circumstances. There is no evidence from the defendant that might mitigate the findings reliant on the evidence of the prosecution witnesses. One might imagine a defence position that posits presence at the scene but denies culpable acts or the extent of the culpable acts alleged by the complainants. This state of affairs is critical given the application of the modified objective test providing access to exculpatory evidence or a lack of criminal mens rea . C.

Conclusion [ 8 0 ] The prosecution must establish beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea . In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances.

Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. [ 8 1 ] Determining whether or not the elements of the offence of dangerous driving are present is not necessarily informed by the fact of injury, or death.

This court must explain how and in what way the driving went beyond mere carelessness or civil negligence as it is an error to move from a bare conclusion that the driving was dangerous to a finding that such driving constitutes a “marked departure”. [ 8 2 ] The central reason why the defendant’s conduct on Brock Road. meets the test for dangerous driving is because I find that the driving he exhibited was deliberate or intentional and I reject his denial of involvement. However, simple rejection of the defendant’s evidence is not sufficient to sustain a criminal conviction.

I must go further and consider whether the evidence I accept from the complainant’s supports a criminal conviction. [ 8 3 ] The prosecution has established dangerous driving beyond a reasonable doubt. In coming to this conclusion I am mindful that individuals driving in the GTAA every day perhaps experience similar conduct “bad driving”. I am also mindful that much of this type of conduct may even escape the purview of criminal courts unless reported to the police. Reports to the police are often in the aftermath of injury or vehicular accident.

But this does not mean that this type of intentional driving conduct necessarily escapes criminal examination. There were four persons in the complainant’s vehicle. I do not need expert evidence or a witness from BMW to tell me that a BMW X5 SUV is a large sport utility vehicle. The defendant deliberately engaged the complainant vehicle in the manner I have outlined in this judgment. There is no exculpatory defence to consider. As I have outlined above, there is no subjective mind set for me to consider when applying the modified objective test.

This leaves the Court in the position of simply evaluating the driving conduct and drawing an inference with respect to the presence or absence of the requisite mens rea . [ 8 4 ] While at the lower end of the spectrum of dangerous driving often seen in criminal courts, the defendant’s deliberate conduct and acts were in fact a “marked departure from the norm”. No reasonable person in his circumstances on the evidentiary record placed before this Court would act in this fashion.

The hypothetical reasonable person would not tailgate, drive at high speeds while yelling out the window, cut off the complainant vehicle, and slam on the brakes risking a serious collision. But for Kadeja Hughes taking evasive action there would have been a collision. VII. Dangerous Driving in the McDonald’s Parking Lot A. Evidence at Trial 1. Evidence of the Defendant

[ 8 5 ] The defendant testified that he attended the McDonald’s parking lot to obtain some food from McDonald’s. This was not unusual for him, he would at times obtain food from this particular restaurant for his family. It was also not unusual for him to attend this McDonalds after having attended the club as it was one of the only restaurants open at that late hour. He testified that he was familiar with the area. He shopped for groceries at the Sobeys, he had shopped several times at the Blue Sky grocery store, and he had attended this McDonald’s in the past.

He entered the McDonald’s parking lot from Pickering Parkway and specifically testified that this was the way he customarily entered the McDonald’s parking lot. [ 8 6 ] Upon arrival in the parking lot there were already some cars parked and it was moderately busy. He parked his vehicle in one of four rows of parking and marked this general area on an exhibit showing the layout of the parking lot. [ 8 7 ] The defendant explained that he did not customarily access the drive thru at McDonald’s because he generally worked nights and the drive thru was busy at night.

He got out of his vehicle and was on his way towards the McDonald’s restaurant when he heard someone say something loudly behind him. At this time there were several people hanging around the parking lot, both inside and outside their vehicles. He turned around to say “What’s going on?” He walked towards the vehicle next to his vehicle and a female person whom he initially said he did not recognize got out of the car and started pointing her finger in his face. He later testified that he thought it was one of the females from the bar. He testified that he could not remember what she was shouting but she was rude.

He put his hands up in front of him and said “Whoa! Whoa! Whoa!” while retreating away from the female’s vehicle. Then someone grabbed him from behind and he was thrown to the ground. Thereafter the female party lunged aggressively at him. [ 8 8 ] The defendant explained that at this point he was engaged in a physical altercation with a male person. This person then knelt on top of him and was punching down towards his face. He was struck on both sides of his temple and was holding his face trying to avoid being hit.

This male somehow was removed from on top of him and then took off his shirt and started walking around angrily and flexing and coming back towards him. At the time he was grabbed from behind he did not know who had assaulted him. By the time of trial it was clear that the person was Tarrick Brissett [ 8 9 ] The fight lasted perhaps 30 seconds. Afterwards, he got up and went towards an unknown male party who was present and offered his hand to shake hands as a gesture of peace.

The defendant was evidently quite hurt when this uninvolved unknown male party declined to shake his hand as during his testimony he became a bit emotional when describing this portion of the events. The defendant testified that someone was telling him to leave or they would call the police. He testified that he had taken a few blows and just wanted to get out of area. He also testified that he did not want to interact with the police. [ 9 0 ] The defendant acknowledged entering his car and driving at a fast speed because he wanted to leave.

He used Exhibit 2 and drew the pathway he followed to leave the premises. He testified that he “looped” between some cars and there were some people “hanging there” and given the direction he was driving these people had to move out of the way. He tried to leave through the same driveway that he had used to enter the McDonald’s parking lot but claimed that too many cars were blocking the entrance trying to get in and he could not get out that way. As a consequence he continued in a circle through the parking lot and left through a north exit.

During direct examination the defendant was adamantly clear that at no time did he hit anyone or anything. He was only concerned with leaving the parking lot. [ 9 1 ] The defendant testified that he left the parking lot via the north exit and travelled for about 15 to 20 minutes to his home. He parked his car on the grass next to his house as is his custom (he claims) when his driveway has parked cars (see Exhibit 4). It was only when he was checking his vehicle’s positioning on the grass that he noticed damage to his vehicle. He assumed that someone had vandalized his vehicle.

Shortly thereafter a police officer arrived at his home. At the police station his head was throbbing and his vision was blurry and he sought medical attention. 2. The evidence of Tarrick Brissett [ 9 2 ] Tarrick Brissett testified that defendant followed them into the parking lot and parked in the spot next to their vehicle. The defendant got out of his vehicle, immediately approached his window (rear passenger driver’s side), and tried to choke him through the window. The defendant was using his right hand on his neck area.

He was trying to push the defendant’s hands off of him and was able to do so given the lack of pressure exerted by the defendant. The defendant was saying phrases such as “You caused this” and “I’m going to get you”. These events were moving very quickly in his mind.

[ 9 3 ] Tarrick Brissett testified that his sister was at the area of his window as well yelling “Don’t touch my little brother!”. His sister was scuffling with the defendant. He saw that they both had a grip on each other. He saw her push the defendant off. He also heard her say “ W hy would you hit me” so he immediately got out of the car to help his sister. Thereafter he and the defendant engaged in a physical fight. He punched the defendant in his face twice. The defendant tried to throw him on the ground and bit him on his chest.

The fight was broken up and he was restrained by friends. [ 9 4 ] Tarrick Brissett testified that the defendant was angry and said “he had something” for him and proceeded to get into his vehicle. He saw the defendant drive his vehicle in a loop around the parking lot trice. The first time the defendant drove very fast back towards the McDonald’s at a high rate of speed missing him by approximately 30 cm. Had he not jumped out of the way, the vehicle would have struck him. The second time, the defendant said “I am not done yet”, reversed his vehicle, and re-aimed his vehicle towards him and drove straight at him.

He was stuck in between two parked vehicles and could not get out of the path of the defendant’s vehicle. He jumped as high as he could to his left (which was the right side or passenger side of the BMW) but the defendant’s vehicle h it him. The front grill of the BMW X5 struck him on his lower legs and knees. The contact from the vehicle caused his legs to spin to the side and hit the car next to him. He rolled over the defendant’s vehicle and landed on the ground. He recalled his sister calling the police and yelling that she had the licence plate of the vehicle.

The defendant then sped out of the parking lot. [ 9 5 ] Tarrick Brissett testified that when he gave his hand written statement to the police he was still in a state of shock and was receiving medical treatment. He identified a number of photos depicting the injuries to his legs and a bite mark on his chest. 3.

The evidence of Katiesha Brissett [ 9 6 ] Katiesha Brissett testified that defendant’s motor vehicle was behind them as they entered the Plaza and followed as their vehicle went to park in the fourth row of available parking spots across from the drive thru. [ 9 7 ] The defendant parked his vehicle right next to them on the passenger side. The defendant got out of his vehicle and without any preliminary contact immediately went around behind the car, to the rear driver’s side of her vehicle where her brother was sitting and confronted him.

She testified that she got out of the vehicle as the defendant was heading towards her brother. [ 9 8 ] The defendant was trying to grab her brother through the window with one arm so she pulled the defendant by the right shoulder on his shirt. The defendant reached out as if to choke her and put his hand on her throat. She knocked his hand down and said “what the fuck are you doing” and continued trying to pull him away from her brother. She was telling him to “Get off!” and pulling him by his shirt. [ 9 9 ] A crowd of about 10 people formed in the area of the McDonald’s parking lot.

The occupants of her vehicle were yelling and screaming at the defendant. She heard the defendant say he is going to get her brother. The defendant got in his vehicle drove away towards an exit, and then came back towards them at approximately 60 km/h. He drove in three or four circles around the parking lot in this manner during which people in the parking lot were running out of the way. The defendant drove his BMW X5 SUV at her brother. She was at the front passenger side of her vehicle when she saw the vehicle strike her brother and he tumbled over the vehicle.

In the aftermath, her brother was angry and screaming “Y ou hit me with your fucking car!” She saw the saw the defendant looking back through the window of his vehicle. She took out her phone to cal

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