r v. Ettore, 2011 QCCQ 12996

R. c. Vittoria 2011 QCCQ 12996 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-017937-050 500-01-017939-056 DATE: 24 October 2011 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Ettore VITTORIA Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] The indictment charges that on 20 May 2005 Mr. Vittoria committed an offence of dangerous driving causing bodily harm [1] and an offence of failure to remain. [2] These charges relate to a sequence of events on Sherbrooke Street East in Montreal. There is no question that Mr.

Vittoria was the driver involved in these events or that these events included two collisions, the first with the car of Madame Martine Kenny and the second with the vehicle of Monsieur Albert Belleville. There is also no question that Monsieur Belleville suffered bodily harm in the collision with his car. The central questions are whether Mr. Vittoria committed an offence under section 252(1) following the collision with Madame Kenny’s car and whether committed an offence under

section 249 in the collision with Monsieur Belleville. [ 2 ] Mr. Vittoria testified in his defence and affirmed that he has no recollection of any part of the events in question. For this reason his testimony cannot raise a reasonable doubt. He has nothing to prove, obviously, and thus everything turns on the strength of the prosecution evidence.

If there is a reasonable doubt arising from this evidence, there must be an acquittal. [ 3 ] The prosecution case, as presented in the evidence of the civilian witnesses, leaves no reasonable doubt on either count. [ 4 ] As for dangerous driving causing bodily harm, the evidence proves that Mr. Vittoria drove at high speed on a busy urban street in the middle of the day and in doing so did not stay in the defined lane but weaved and went into the median several times before colliding with the car of Madame Kenny as she prepared to turn across the lane of approaching traffic.

After this collision he reversed and continued the erratic conduct of his car, at increasing speed, before colliding with Monsieur Belleville’s vehicle and causing bodily harm to the complainant. [ 5 ] The assessment of this proven conduct must be made with reference to the principles stated in Beatty . [3] The prosecution has proved beyond reasonable doubt that, viewed objectively, Mr.

Vittoria was driving in a manner that was dangerous to the public, having regard to all of the circumstances – including the nature, condition and use of the place in which the car was operated and the amount of traffic that at the time might reasonably be expected to be in that place. This proves the actus reus of dangerous driving as defined by the Code and, as noted previously, there is no doubt that this conduct caused bodily harm to Monsieur Belleville. Further, the evidence proves beyond reasonable doubt that the conduct of Mr.

Vittoria was a marked departure from the standard of care that a reasonable person would observe in the circumstances. In addition to the actus reus for dangerous driving, the evidence proves the necessary element of fault. Nothing in the evidence raises a reasonable doubt that a reasonable person in Mr. Vittoria’s circumstances could fail to realise the risk created by his conduct. His absence of recollection in these circumstances does nothing to contradict these conclusions.

Accordingly, the prosecution has proved beyond reasonable doubt all of the elements of the offence of dangerous driving causing bodily harm. [ 6 ] As for the second count, the evidence proves beyond reasonable doubt that after colliding with Madame Kenny’s car Mr. Vittoria deliberately sped away from the scene and failed to provide his name and address. Section 252(2) creates a presumption of intent to avoid civil or criminal liability in such circumstances and the defence has not challenged the validity of this provision.

However, even if this presumption did not exist, the inference that it compels is the ineluctable conclusion on the evidence in this case. After the collision with Madame Kenny’s car, she alighted from her vehicle only to see Mr. Vittoria deliberately speed away from the scene. He intentionally left the scene to avoid contact with the driver of the vehicle that he had hit. Nothing in the evidence can raise a reasonable doubt in these circumstances that Mr. Vittoria intentionally sought to avoid civil or criminal liability.

FOR THESE REASONS Mr. Vittoria is guilty on both counts in the indictment. ____________________________________ PATRICK HEALY, J.C.Q. M e Isabelle Grondin For the prosecution M e Claude Olivier For Mr. Ettore Vittoria Date of hearing: 8 October 2009, 4 October 2010, 12 April 2011