2019 QCCQ 966, 2019 QCCQ 966

R. c. Doyle 2019 QCCQ 966 COURT OF QUEBEC Criminal & Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-160247-174 DATE : March 1 st 2019 ______________________________________________________________________ BEFORE THE HONOURABLE D. GALIATSATOS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

BRIAN DOYLE Accused ______________________________________________________________________ REASONS FOR JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The events that transpired on June 24 th 2017 resulted in unspeakable tragedy. Zachary Zelinsky, a young American tourist having just arrived in Montreal, sustained life-altering traumatic brain injuries after rolling off a car as it exited a downtown parking lot. The aftermath of the events was (and continues to be) heartbreaking in every sense of the word.

Adding irony to the sorrow, an ambulance had driven by the exact location of the events a mere 27 seconds before Mr. Zelinsky was injured. [1] We can only speculate as to whether or not a more timely intervention by emergency services would have mitigated the damages suffered. [ 2 ] The issue in this case is whether or not those events engaged the criminal liability of Brian Doyle, the vehicle’s driver, who left the scene as Mr. Zelinsky lay unconscious in a pool of cranial blood. [ 3 ] The outcome of this trial turns in part on statutory

interpretation. In particular, the Court will have to determine if an “accident” took place within the scope of s. 252 C.C . It also depends on the application of the defences of self-defence or necessity as applied to driving offences. [ 4 ] Ultimately and more fundamentally, the Court must address a rather basic question: • What is a driver expected to do when an unwanted intruder attempts to enter his vehicle against his will? [ 5 ] Alas, while the question seems deceivingly simple, it spawns a plethora of complex legal issues. [ 6 ] The accused is charged on a two-count indictment.

Under s. 252(1.2) of the Criminal Code , he faces a charge of having failed to stop at the scene of an accident where grievous bodily harm had been caused to the complainant. Further, under s. 249(3) C.C. , he is charged with dangerous driving causing bodily harm. [ 7 ] Since the relevant events occurred in June of 2017, the recent amendments to the substantive driving provisions of the Code have no application in the case at bar. [2] [ 8 ] While several surrounding facts are in dispute, the core facts having resulted in the complainant’s injuries are not.

In the middle of the night on June 24 th 2017, in a downtown Montreal parking lot adjacent to many bars and nightclubs, Mr. Zelinsky opened the back door of the accused’s car and attempted to enter. To prevent him from doing so, the accused stepped on the gas. In a split second, rather than release the door handle, the complainant ran towards the car, grabbed onto the door frame and jumped on the trunk of the moving vehicle. Barely achieving a sitting position, the complainant almost immediately rolled off the car and violently struck his head on the pavement, forever changing his life.

FACTUAL OVERVIEW [ 9 ] The general chronology of the events is straightforward. The accused, his co-worker and the complainant were first at the Cleopatra strip club together, located on St-Laurent Blvd., near the scene of the alleged offence. For reasons explained below, at some point the decision was made by the group to attend another more “classy” strip club establishment. To that end, they walked to the Kingdom Cabaret, where they stayed for some time before exiting, going to the accused’s car and eventually returning to the Cleopatra club.

It was after their second visit to said club that they returned to the parked car and the litigious events took place.

1- The evidence of the prosecution

a) Expert reports, crime scene photos, surveillance video and admissions [ 10 ] By way of signed admissions, [3] the accused admitted that he was at the wheel of the vehicle at the relevant times. His passenger at the time of the incident was Gowtham [4] Visuvalingam. [5] [ 11 ] Mr. Zelinsky’s injury occurred at precisely 2:06 am. Some 12 minutes later, at 2:18 am, an unrelated witness called 9-1-1 and reported an unconscious man lying on the parking lot ground in a pool of blood.

It is admitted that the accused never called emergency services. [ 12 ] Footage from various surveillance cameras was filed as evidence by the Crown. [ 13 ] Clips #7 , #8 and #10 of exhibit P-5, show the three men exiting the Kingdom Cabaret at 1:06 am. They all seem to be smiling and in good spirits. The accused, who leads the group, shakes the hand of other patrons as he exits. Outside, as they walk away, Gowtham clearly has a large bulge along his right inner thigh (later identified as a hidden bottle of liquor) and the complainant is still wearing his shirt.

Three minutes later, at 1:09 am, the group makes its way to the accused’s parked car. The accused unlocks the doors and Mr. Zelinsky bends in and places something in the back seat area (passenger side). Still together, the group then walks towards St- Laurent Blvd. at a normal pace. [ 14 ] Clip #17 of exhibit P-5 shows the parking lot at 1:33 am. Gowtham and the complainant return to the accused’s vehicle, but without the accused. The complainant sits on the hood of the car for approximately 15 seconds, while talking to Gowtham and checking his cellphone.

The two men then walk towards St-Laurent Blvd. at a normal pace, though they are approximately 15 feet apart. The complainant is still wearing his shirt. [ 15 ] Clips #22 , #23 and #24 show the injury itself. The sequence begins at 2:00 am. [ 16 ] The accused and Gowtham return to the vehicle, with the accused leading the way. He unlocks the doors, both men enter and he starts the car. At this point, the complainant is nowhere to be seen. He appears only 25 seconds later.

This is also confirmed by the footage of exhibit P-6, [6] from 2:00 am to 2:01 am, which shows that the complainant was not originally with the accused and Gowtham. Instead, he was walking alone on the sidewalk, far removed from them. [ 17 ] The accused actually begins to slowly drive away. At that point, the complainant enters the parking lot and approaches the moving car. By now, the complainant is no longer wearing his shirt. Instead, it is slung over his shoulder and he is wearing only a tank top/undershirt. [7] [ 18 ] Mr.

Zelinsky first approaches the front of the car (thereby blocking its passage), but quickly moves to the driver’s side. The accused stops the car. Mr. Zelinsky and Mr. Doyle then begin a conversation through the already-open window. The video contains no audio and it is impossible to see the facial expressions of the parties. However, the complainant’s stance is upright and no sudden movements are observed. A few times during the discussion, the complainant looks towards St-Laurent Blvd. [ 19 ] Some 27 seconds later, [8] the accused inches his car forward, barely over a 1-foot distance before stopping again.

At that point, the complainant is still speaking to him through the window, while pointing at St-Laurent Blvd. Though barely visible, the accused seems to be gesturing at something in the direction of the boulevard. [ 20 ] At that point, [9] the complainant hunches over and leans onto the driver’s door, resting his right elbow and forearm on the door frame, since the window is still open.

He maintains that position for 1 minute and 7 seconds [10] as the discussion continues between the parties, with the complainant periodically looking towards St-Laurent Blvd. [ 21 ] At 2:03 am, [11] the accused again advances his car, very slowly , over a distance of roughly 2 metres. During this entire movement, the complainant never disengages his position: he remains hunched over, leaning on the driver’s door and even takes a few steps to follow alongside the moving car.

The accused stops again. [12] From that position, the conversation continues for a further 2 minutes and 44 seconds, [13] with the complainant keeping the same hunched and leaned position the entire time. At some point, [14] the accused discards something out the window (it seems like a facial tissue, but the accused later testifies that it was a cigarette wrapper). During the discussion, on a few occasions, the complainant places his left hand (his free hand) in or towards the open window. [ 22 ] Finally, at 2:06 am, [15] Mr.

Zelinsky stands upright, lifting his elbow and forearm off the door frame for the first time. Four seconds later, he then turns to his right and opens the rear driver’s-side door, making his way inside the vehicle. Within 1 second of him opening the door, [16] the accused accelerates, driving away from the complainant. [ 23 ] Within 1 second of the car commencing its movement, Mr.

Zelinsky quickly grips onto the upper door frame ( i.e. not the door handle), takes 2 steps and jumps on the trunk of the moving vehicle. [ 24 ] He remains on the trunk for less than 2 seconds when he rolls off and hits his head on the pavement, his body rolling over once in a full 360-degree rotation. [ 25 ] At trial, officer Mélanie Décarie, an expert in the forensic reconstruction of collisions, testified and produced her report. [17] In her expert opinion, no external environmental factors (such as the weather or the state of the asphalt) could have caused or contributed to the collision.

Instead, the sole contributing factors were human actions. [ 26 ] In her testimony, she candidly conceded that based on the data she had, she was unable to establish the speed of the accused’s vehicle as it exited the parking lot. However, based on the nature of the tire marks in the parking lot (dirt and debris were pushed

between the tire and the asphalt), she opined that the vehicle accelerated quickly.

Moreover, the tire marks in the street showed signs of drifting (“ dérapage ”), which also suggested high acceleration as the vehicle turned left onto the boulevard. [ 27 ] Using the location of the tire marks and her surveying equipment, officer Décarie produced a very useful (scale-accurate) sketch showing the trajectory of the fleeing vehicle. [18] At the very beginning of its movement, the vehicle veered slightly left, to then keep a straight line until exiting the parking lot, at which point it turned left (northbound) on St-Laurent Blvd.

The video footage and still shots reproduced in her report reveal that the slight leftward veering was necessary to exit the parking lot, given the exit’s location. [19] [ 28 ] An expert vehicular forensic inspection was performed by Patrick Rinfret. [20] His exhaustive analysis of the Infinity G37x revealed that the vehicle was in adequate condition before the incident and that no mechanical [21] anomaly of any kind could have contributed to the collision. [ 29 ] Finally, photos taken by the Montreal Police Department of the accused’s vehicle [22] show 3 faint horizontal scratches on the rear driver’s-side fender. [23] Those same pictures also show a deep dent on that same fender, approximately at waist-level, slightly higher than the rear door handle. [24] The reconstructionist speculated that the scratches might have been caused by a rubbing torso or belt buckle.

As for the dent, she opined that it was made in the same location as where the complainant’s right leg was before being projected off of the trunk.

b) The testimony of the complainant [ 30 ] The extent of the complainant’s injuries had already been admitted by the accused; [25] moreover, on consent, his partial (though voluminous) medical records from the Montreal General Hospital Trauma Centre were tendered as evidence. [26] They describe a severe traumatic brain injury involving several skull fractures and acute subdural hemorrhaging. The complainant’s life was very much in danger.

He had to undergo countless surgeries, including an emergency decompressive craniotomy, he received several blood transfusions, he underwent a tracheotomy and now has a cranioplasty prosthesis. In his testimony, he added that he was kept in a medically induced coma for several weeks and described in detail his injuries and his slow and difficult road to recovery, which is still a work in progress. [ 31 ] As for the events themselves, Mr. Zelinsky has no recollection of them. His injuries left him with complete amnesia. He remembers nothing at all about the weekend.

In fact, he suffered retrograde amnesia as well, as he remembers nothing about the previous week either, during which he spent time on the Canadian side of Niagara Falls and in Rochester, New York. [ 32 ] In cross-examination, he explained that he was unable to recreate or retrace his activities in Montreal by looking at credit card bills. He was then shown the video footage of his injury (which he saw for the first time) in hopes of refreshing his memory. That exercise did not have the desired effect. 2- The evidence of the defence [ 33 ] The accused testified.

He explained that the young man seen with him in the video footage is Gowtham, a young co-worker of his that lived in the Westisland. [ 34 ] On June 24 th 2017, Gowtham was in a partying mood, “on a drinking vibe”, whereas the accused just wanted to relax. The original plan was to go to their boss’s house for drinks, but when that fell through, Gowtham asked to go to a strip club instead, which the accused accepted. [ 35 ] The accused drove them downtown and parked in a parking lot on St-Laurent Blvd. They first went to the Cleopatra strip club.

Although Gowtham drank heavily all night, the accused had only two Corona beers at that location. His night was relatively uneventful, although he crossed paths with an old friend and won a 420$ jackpot on the video-poker machine. [ 36 ] At some point during the night, at around 9:00 or 10:00 pm, he noticed Gowtham talking to an American tourist. The accused approached and Mr. Zelinsky introduced himself. At first, the complainant’s behaviour was perfectly normal. He was friendly, but not overpowering or overzealous. The 3 men stayed at Cleopatra for around 1 ½ hour.

Gowtham and the complainant then started to complain that the club appeared “old” and “run down”; they wanted to go to a “higher end”, more “classy” strip club. [ 37 ] The accused thus brought them to the nearby Kingdom Cabaret, where they purchased a 40-ounce bottle of whisky for 420$. The accused paid for the lion’s share of the bottle (given his video-lottery windfall) while the complainant only contributed 30$. Nevertheless, the accused limited himself to one glass, since he knew he would be driving.

Conversely, Gowtham and the complainant drank heavily. [ 38 ] When they exited the bar at 1:06 am (as seen in exhibit P-5), the accused’s plan was to merely have a cigarette. However, on their way out, Gowtham proudly showed him that he had snuck the bottle of whisky out of the club by hiding it in his pants. This made the accused stressed and uncomfortable since he knew that such behaviour was not tolerated by bars. [ 39 ] At that point, Mr. Zelinsky stated that he wanted them to go back to his hotel later with the bottle. To that end, he wanted to stash it in the accused’s car.

Although he allowed the complainant to place the bottle there, the accused never accepted to go to the hotel room. [ 40 ] After dropping off the bottle (as seen in exhibit P-5), they returned to the Cleopatra club. By then, the accused was just waiting around, talking to friends and staff, sobering up. [ 41 ] By this point, Mr. Zelinsky had become intoxicated, insistent and obnoxious. He continuously kept interrupting the accused’s

conversations, grabbing at his arm and trying to drag him away. Mr. Zelinsky wanted the accused to find prostitutes and cocaine for the party to continue at his hotel. The accused firmly denied his request, asking the complainant not to touch him, and adding that he had to drive Gowtham to the Westisland and then pick up his girlfriend. [ 42 ] When the accused finally exited Cleopatra, Gowtham was “drunk beyond belief”. The complainant followed them out. On the sidewalk, the intoxicated complainant leaned on a tree and made various gestures.

Though he spoke calmly, his words were increasingly aggressive and his tone was assertive: he wanted that bottle; they were going to his hotel; they were going to get women and drugs; they were going to party. [ 43 ] When the accused refused again, this triggered an aggressive reaction by the complainant. “He completely flipped”, according to Mr. Doyle. The accused felt unsafe and insecure at that point. As the accused left with Gowtham, he noticed the complainant following them. He was acting like a narcissistic sociopath and would not accept “no” for an answer. [ 44 ] When Mr.

Zelinsky confronted them in the parking lot, he first approached the front of the car, which is why the accused stopped. The complainant exclaimed “where do you guys think you’re going?” and became increasingly belligerent, asking for the bottle to be returned to him. [ 45 ] Because his cellphone battery was dead, Mr. Doyle could not call the police. Instead, in an effort to convince Mr. Zelinsky to leave him alone, he warned him that police officers often patrolled St-Laurent Blvd.

According to the accused, where we see the complainant pointing at the road in the video, the complainant was responding that he did not see any cops. [ 46 ] With the complainant’s shirt already removed, the accused clearly thought that Mr. Zelinsky was attempting to start a fight. During their discussion, the complainant flicked the brim of the accused’s cap up. He was repeatedly threatening him, including comments like “don’t fuck with me!” and “I’ll stab you if you don’t give me the bottle”. By then, things got hopeless; the accused knew he would be unable to calm him down. [ 47 ] Mr.

Doyle thus disengaged the brake and tried to drive off slowly. Yet, the complainant did not let go of the door. The accused thus stopped, seeing no other option, since he did not want to hurt Mr. Zelinsky with his rolling car and fearing that Mr. Zelinsky might actually jump through the window at that point. Despite stopping, he was still afraid and asked the complainant to let go of the car. He must have told him “100 times”. Each time, the complainant responded with threats: “you’re not getting away. I’m getting that bottle or I’ll make your life a living hell”, in a calm but stern and disturbing tone of voice.

The accused even attempted to reach back and get the bottle (in order to give it to the complainant), but Mr. Zelinsky quickly put his hands in his face. [ 48 ] At one point, unexpectedly, the complainant released his grasp of the car. Once he stood upright, the accused breathed a sigh of relief.

However, he then noticed the complainant turn towards the back door and reach for the handle. [ 49 ] Fearing for his life and for the safety of his co-worker, he thus quickly made the decision to (1) look forward, (2) make sure the path was clear, and (3) drive off. [ 50 ] As he drove away, he heard his back door shut. [ 51 ] He never saw the complainant fall to the ground. Similarly, he never knew that the complainant had jumped on his car. His last view of Mr.

Zelinsky was seeing him, for “a split second”, running towards the car. [ 52 ] He acknowledged seeing the dent on his rear fender a few days after the incident. When he saw it, he assumed that Mr. Zelinsky must have punched the car in anger as it drove away. [ 53 ] Many weeks later, on August 7 th 2017, he turned himself in to the police after seeing his picture, by happenstance, in a newspaper

article on his cellphone. Only then did he learn that he was a wanted man. Until that day, he had no idea that he was being sought by the authorities as a suspect of any kind. At the Western Operational Centre, he voluntarily provided a 3-hour statement to the police. POSITIONS OF THE PARTIES [ 54 ] On behalf of the Crown, M e Bolduc submits that the charges against Mr. Doyle have been established beyond a reasonable doubt. With respect to the count of hit-and-run, he invites the Court to adopt a broad definition of the term “accident”, as prescribed by the appellate caselaw.

He adds that the accused is not credible and at the very least, he was wilfully blind as to whether or not Mr. Zelinsky had been injured before leaving the scene. [ 55 ] Regarding the charge of dangerous driving, the Crown contends that the mere fact of stepping on the gas as a person enters a vehicle is dangerous in and of itself. Self-defence does not apply and despite the reckless behaviour of Mr. Zelinsky, contributory negligence by a victim does not absolve an accused driver. [ 56 ] On behalf of Mr.

Doyle, M e Lefebvre argues that the accused was credible and invites the Court to conclude that he never saw the complainant getting injured. As for the count of dangerous driving, he contends that the manoeuvre ( i.e. stepping on the gas to prevent the complainant from entering) was in no way dangerous. In fact, it was the only way to escape the scene safely. He points out that Mr. Zelinsky was on the side of the car, at the rear, and there was thus no danger of him being run over or hit.

Acknowledging that the outcome was tragic, he argues that it was utterly unforeseeable that a person would unilaterally jump on a moving car. As such, it would be fundamentally unfair to hold the accused criminally liable in the circumstances. THE ASSESSMENT OF THE ACCUSED’S CREDIBILITY

[ 57 ] Before any provision of the Code can be applied, the Court must first determine what fact pattern will form the basis of its legal analysis. The same can be said of the applicable defences, should the Court conclude that they are at play. 1- General principles regarding the burden of proof [ 58 ] As both parties acknowledged in their submissions, there are no “conflicting” versions per se , given the complainant’s all- encompassing amnesia.

Nevertheless, it would be inaccurate to contend that the accused’s account is “uncontradicted”. [ 59 ] For instance, as mentioned above, there is independent evidence in the case at bar, in the form of various video recordings. In fact, it appears clear to the Court that the most reliable and objective witness here is the silent witness: the video camera located at 1430 St-Laurent Blvd. [ 60 ] Thus, while the accused is the only one to have offered an account of the events, this in no way shelters his testimony from scrutiny.

After all, there may be [27] inherent frailties or contradictions within his own testimony that greatly affect its credibility. [ 61 ] It is trite law that Mr. Doyle, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. The Crown bears the burden of proof throughout the entire trial, from beginning to end. The accused does not have to present evidence or prove anything. Moreover, it is not enough for the Court to believe that he is probably or likely guilty.

Conversely, proof establishing absolute certainty is not required of the Crown, nor may the doubt be imaginary, frivolous or irrational. [28] Such a burden would be nearly impossible to meet. Nevertheless, the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. [29] [ 62 ] Reasonable doubt must stem from reason and common sense and is logically connected to the evidence or lack thereof.

It cannot be based upon sympathy, pity or prejudice. [30] Finally, it cannot be grounded in hypotheticals, speculation or fanciful conjecture. [31] [ 63 ] The assessment of the accused’s credibility is essential to the Court’s analysis, although not in the same way that it would in he- said-she-said cases. Instead, the verdicts turn on statutory

interpretation and on the application of certain defences in law. As such, the credibility of the accused will have a direct impact on whether or not the Crown established the mens rea beyond a reasonable doubt. [ 64 ] Similarly, despite the fact that self-defence and necessity are affirmative defences, the Crown still bears the burden of disproving them beyond a reasonable doubt. [ 65 ] Finally, even where the Court flatly rejects the accused’s evidence as being untruthful, that, in and of itself, does not establish guilt. Mere disbelief of the accused does not equate to guilt.

At most, it simply implies that the defence is completely rejected – a situation akin to cases where no exculpatory evidence had ever been adduced.

The Court’s analysis must then continue by assessing whether, on the evidence that it accepts, the Crown has proven guilt beyond a reasonable doubt. [32] After all, a reasonable doubt may arise independently from the Crown’s evidence. [33] [ 66 ] These basic rules all flow from the elementary principle of the presumption of innocence in criminal matters. [ 67 ] Of course, where credibility is a live issue, the accused’s testimony must be examined in light of the evidence as a whole. As the Supreme Court of Canada expressed in R. v.

MacKenzie : "an accused's version of events is entitled to the benefit of the doubt as against a competing version, providing the comparison is made having due regard to all the evidence". [34] The evidence heard at a trial is not to be compartmentalized in watertight partitions, to be assessed in a piecemeal fashion. [ 68 ] Thus, the accused is not entitled to having his version analyzed in isolation first, with the rest of the evidence being relegated to the subsequent steps of the assessment.

Rather, the Court must consider all the evidence at each step. [35] [ 69 ] Ultimately, despite the lack of conflicting “versions”, I have instructed myself to apply the law with respect to credibility as inspired by the framework proposed by Cory J. in R. v. W.(D.) . [36] However, in addition to the traditional tripartite incarnation of the test, I rely heavily on a slightly more detailed set of propositions, as listed by Paciocco J.A. in his

article Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment . [37] These propositions not only respect the spirit and underlying purpose of W.(D.) , but they update the 3-step methodology following developments in the appellate caselaw, all of which are beneficial to the accused: (

i) The criminal trial cannot properly be resolved by deciding which conflicting version of events is preferred; (ii) A Court that believes evidence that is inconsistent with the guilt of the accused must acquit; (iii) Even if the Court does not entirely believe evidence inconsistent with guilt, if the Court is left unsure whether that evidence is true, there is a reasonable doubt and an acquittal must follow; (iv) Even where the Court entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; (

v) Even where the Court entirely disbelieves the evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused’s guilt beyond a reasonable doubt. [ 70 ] Finally, it is useful to recall that in its assessment, the Court may accept all, part or none of an accused’s testimony. [38]

2- The Court’s findings of fact [ 71 ] The Court states from the outset that the accused is 6’4” tall and weighs 225-230 lbs. Although he is larger than the complainant, I note that Mr. Zelinsky is also a tall and large man, heavy-set and broad-shouldered.

a) The complainant’s remarks and demeanour during the trial [ 72 ] I begin with a few brief remarks about the testimony of the complainant. Ultimately, given his amnesia (which is unfortunate but understandable), he is unable to shed light on the events. As such, his testimony has no impact on the Court’s fact-finding process. [ 73 ] Though Mr. Zelinsky made certain comments and observations while watching the video (P-5) for the first time in open court, these were for the most part speculative.

For instance, he expressed that “he would never have been aggressive during such a discussion”, that “a perfectly cordial adult conversation was taking place”, that “the accused invited him to enter the car”, or that “he would normally lean in to speak to someone in a car, even if it was his friend”. These remarks, undoubtedly offered in good faith, were tempered by his candid admission that he had no recollection whatsoever of the events. The witness was merely commenting on the video and hoping to project that he had done nothing to deserve his injuries.

In a way, he was also trying to piece together what had happened, hoping to understand what caused his sad predicament. [ 74 ] Other remarks during his testimony took the form of interpreting what was on the screen. For instance, the complaint insisted that the video did not show him run and jump on the vehicle, but that he was instead “flung”, “yanked” up or projected on the car as it rolled away. Alas, such an

interpretation of the video is in the exclusive province of the trial judge. Moreover, with great respect, it so happens that the Court expressly disagrees with his

interpretation. Instead, it appears clear to me that the video shows him running and jumping on the back of the car. [39] [ 75 ] Finally, during his testimony, the complainant was at times sarcastic and often overtly passive-aggressive. He showed significant impatience with defence counsel and even with the Court during his questioning. [40] Even after his testimony, while the accused was testifying, the complainant sat in the gallery and loudly laughed, sarcastically, in order to voice his disagreement or incredulity. [ 76 ] These aspects of his behaviour have little bearing on the Court’s fact-finding process.

Instead, I treat them as neutral factors. [ 77 ] In particular, I do not believe that they independently bolster the accused’s claim that Mr. Zelinsky was aggressive or violent on the night of June 24 th 2017. I believe it would be unfair to draw such unfavourable inferences against the complainant, for two reasons. [ 78 ] First, it is easy to understand the high level of frustration experienced by the complainant, who travelled from Florida to testify. The Court could only imagine how much he has suffered physically and emotionally in these last 2 years.

In the circumstances, he is entitled to be frustrated and to voice his resentment and anger towards the accused, whom he blames for what happened. The Court cannot fault him for those emotions, which are natural an innately human. [ 79 ] Second, Mr. Zelinsky explained that his brain injuries and successive surgeries have affected his judgment and behaviour, making him “like an entirely different person”.

In particular, his behaviour has become uncharacteristically irritable and even violent. [ 80 ] As such, it is impossible to know if the impatience or aggressiveness of today are the same impatience or aggressiveness of 2017. [ 81 ] Finally, the Court makes little use of the fact that the complainant has a prior conviction for “high speed fleeing and eluding with a motorcycle” (the rough Canadian equivalent of flight pursuant to s. 249.1 C.C. , as it then was) dating back to 2008. It is not a previous act of violence and there is no evidence suggesting that the accused knew about it.

As such, it does not assist the Court in assessing the claim of self-defence. [41]

b) The accused’s version [ 82 ] For the following reasons, the Court does not believe the accused on several aspects of his account. However, he is fully believed on others. The distinctions become critical in the analysis of the applicable legal principles. [ 83 ] I begin with the problematic portions of his testimony. [ 84 ] The accused’s version was straightforward in examination in chief. However, his cross-examination revealed several inherent frailties in his account.

Similarly, in a constant effort to depict the complainant in a negative light, the accused added several “new” facts in cross-examination. [ 85 ] Given the narrow focus of his testimony ( i.e. , establishing the dangerousness and aggressiveness of the complainant), it is certainly suspicious that he did not mention these elements in his examination in chief, despite giving a very detailed description of the events. [ 86 ] Instead, the accused appeared to be improvising in order to “hammer in” his message. For instance: → It was only in cross-examination that he mentioned for the first time that Mr.

Zelinsky had been belligerent towards the strippers at the Kingdom Cabaret, feeling entitled to free lap dances; [42] → He raised for the first time in cross-examination that the bouncer at the Cleopatra club had intervened to ensure that the complainant

was behaving; → He mentioned for the first time in cross-examination that Mr. Zelinsky took his shirt off near the Instacheck store and was “getting ready to fight them”; → In examination in chief, in his description of the discussion in the parking lot, he alleged that the complainant flicked his hat upwards. He made no mention of anything else. Yet, in cross-examination, he added that the complainant gave him little slaps on the cheek through the window.

This addition was far from negligible; it was a major occurrence. [ 87 ] While he mentioned in examination in chief that the complainant pointed to St-Laurent Blvd. saying that he did not see any cops, he embellished in cross-examination by adding “I’m from Florida, I’ve been in situations like this. I am the law”. [ 88 ] In addition to the foregoing, his testimony contained other contradictions and unrealistic assertions. [ 89 ] When the Crown asked the accused at what point he began to feel afraid, his answer was long, drawn out, and partly inconsistent. He claimed to have started fearing Mr.

Zelinsky during their 2 nd visit to the Cleopatra club. He then added that inside Cleopatra, one hour before going to the car, while the complainant was grabbing his arm, he threatened “I want the fucking bottle. If not, there’ll be problems in the future”. Yet, in examination in chief, he made no mention of these threats.

Instead, he described the threats as having started much later, outside. [ 90 ] Moreover, he then explicitly stated that he began being afraid of the complainant at the Cleopatra club, when he was grabbing his arm. [43] Yet, minutes later in his testimony, he stated the opposite: he was not really afraid at that point. [44] [ 91 ] In his attempts to insist that he feared for his life, the accused’s assertions became increasingly exaggerated as his cross- examination progressed. At times, they bordered on the theatrical. Let us recall that he is a 6’4” man with the build of a football player.

Of course, that does not automatically discount his claims of fear. Far from it. Similarly, large men are obviously allowed to be concerned for their safety and are entitled to the full protection of the law. [ 92 ] However, from a factual standpoint, his size and stature are relevant in assessing his claims of intense fear. [ 93 ] While he first depicted the complainant as a drunk and belligerent man, his description morphed into that of a deranged psychopath on the verge of snapping violently. In cross-examination, he described that Mr.

Zelinsky was “blackout drunk”, “beyond belief” and that he had a “Devil’s look in his eyes; a really sinister look”. [ 94 ] The Court finds it convenient and contrived that the accused suggests that his cellphone battery was dead, which was the only reason he did not call the police in the parking lot. Adding a level of incredulity is the suggestion that Gowtham’s cellphone battery was also, conveniently, dead. Similarly, the accused raised for the first time in his cross-examination that he yelled “Police! Police! Police!

Police!” from his car window, but no one could hear him. [ 95 ] Other than the fact that this claim was added on only in cross-examination, the Court finds it inherently unrealistic. The video footage shows absolutely no reaction – from anyone, including the complainant – when those screams were supposedly uttered; instead, the conversation carried on for several minutes.

Similarly, exhibit P-6 shows a large group of persons on the sidewalk nearby; no one reacted in the slightest. [ 96 ] The Court does not believe that the accused wanted to call the police at that point, nor did he feel that he needed to. [ 97 ] More generally, with respect to the accused’s claims that he feared for his life, the Court concludes that had that been the case, he would never have stopped his car in the first place, lowered his window and engaged in a conversation with Mr. Zelinsky.

Instead, he would have driven away immediately in the first place. [ 98 ] Finally, the Court must assess the accused’s claim that he did not know that the complainant jumped on his vehicle. [ 99 ] The accused was unrelenting in his denial. [ 100 ] In cross-examination, he first mentioned that he felt the complainant grab the door handle. [45] Seconds later, the Crown asked him: “you felt him take the door handle?”.

The accused answered: “I don’t know about ‘feeling’ it… I just turned around and saw him go towards the door and saw him put his hand towards my door”. [46] Yet again, seconds later, the Crown asked: “So, did you see him open the door or not?”. The accused answered: “Did I see him open the door?

No… I heard him… I saw him turn around… I heard him, like, going for the door… but as soon as I saw him reaching for the door in my rear view”, adding that he drove away at that point. [47] [ 101 ] Given the obvious contradictions, the Crown asked: “What do you mean you heard him going to the door?”. [48] The accused answered: “I never heard him. I saw him going to the door [adding that he did not feel it either]”. [ 102 ] The accused denied ever seeing the door open, though he inferred that it had been open when he heard it shut as he drove away. He acknowledged having seen Mr.

Zelinsky “for a split second” in his rear-view mirror, running, as he drove off. [ 103 ] If the accused legitimately feared for his safety [which the Court believes, as explained below], his flight was to get away from his aggressor. Moreover, he admits having seen his aggressor running towards his vehicle after trying to open (at the very least) his door. In the circumstances, it seems obvious that he would have looked back during his escape to see where his assailant was. That was the whole point of his escape, after all. [ 104 ] Moreover, as mentioned above, Mr. Zelinsky is a large, tall, heavy-set man.

The vehicle driven was an Infinity G37x. The pictures and video show that it is a compact 4-door sedan. The Court easily comes to the conclusion that when the large human [49] jumped on the hood of the car – hard enough to cause a dent in the rear fender, the occupants of the car felt it and were alerted of his

presence. Let us recall that the vehicle’s suspension was in proper condition. [50] The car must have dipped. [ 105 ] Furthermore, the driver’s window was open. The sound of the impact on the car and the sound of the thud from the complainant falling to the ground were surely audible. [ 106 ] Ultimately, the Court concludes that the accused did know that complainant had grabbed his car and jumped on the trunk.

It also concludes that he knew that the complainant fell off the vehicle. [ 107 ] In addition to the foregoing, in my assessment of his credibility, I consider the accused’s prior convictions for drug trafficking in 2002, for failure to comply with a recognizance in 2002 and for possession of stolen property in 2013. As provided by s. 12 of the Canada Evidence Act , there is a permissible inference that a person with persistent prior criminal convictions may be seen as less credible and trustworthy, as well as having less respect for the truth and for his oath, which touches on his testimonial reliability. [51]

Section 12 C.E.A. applies to any criminal offence and is in no way limited to a finite category of convictions. [52] Having said that, the impact of such convictions on the accused’s credibility will be greater when they involve so-called crimes of dishonesty, which are inherently probative of deception. [53] Here, the prior conviction regarding stolen property is a crime of dishonesty; the conviction for breaching conditions suggests lack of respect for the justice system. [ 108 ] To be clear, however, while the Court finds the accused to have greatly exaggerated his fears of the complainant, I do not discount them completely. [ 109 ] In other words, I do accept, wholeheartedly, that the accused was afraid of what Mr.

Zelinsky might do. [ 110 ] I also accept, beyond any shadow of a doubt, that the only reason that the accused accelerated and left the scene was to get away from the complainant, who was hostile and who tried to enter his vehicle against his will. [ 111 ] In fact, the Crown does not allege otherwise. The evidence to that effect is credible, uncontradicted and independently corroborated by the objective video footage.

The video confirms other aspects of his account as well, including for instance the entire story surrounding the bottle of liquor ( i.e. , the visible bulge in Gowtham’s pants, the fact that they went to drop off the bottle in the car, the fact that Mr. Zelinsky and Gowtham disappeared for a while without the accused).

The Court accepts and believes the entire narrative regarding the bottle. [ 112 ] Furthermore, the video clearly shows that the complainant had taken off his shirt shortly before the final sequence of events. [ 113 ] This can only suggest two logical inferences: (1) the complainant was confrontational and looking to fight, or (2) the complainant was intoxicated.

Both alternative inferences support and corroborate the accused’s account of the night’s events. [ 114 ] I also consider the fact that the video footage depicting the final confrontation in the parking lot confirms, sequence by sequence, the story put forward by the accused. [ 115 ] As defence counsel correctly points out, the accused had never even seen said video footage when he met with the police and voluntarily provided a 3-hour-long statement. [ 116 ] Upon their final return to the car, the complainant was not with them. He appeared shortly thereafter.

Before he approached the car, the accused was already rolling, presumably to leave. This confirms that the accused was trying to get away from him and cut ties with him for the night. [ 117 ] The video also reveals that the accused made two first attempts to leave, very slowly and safely, but the complainant prevented him from doing so, staying firmly leaned on his driver’s door frame during the second attempt. [ 118 ] Immediately as the complainant stood upright, finally releasing the car, the accused attempted to roll away.

This corroborates and confirms that the accused was afraid, and was waiting for his first opportunity to flee the scene.

c) Conclusions as to the facts [ 119 ] Following its careful review of the evidence, and keeping in mind the presumption of innocence and the applicable onus and standard of proof, the Court makes the following factual findings:

(1) On the night of June 24 th 2017, the complainant became drunk, belligerent, aggressive and unpredictable in his behaviour towards the accused and Gowtham;

(2) It was the accused’s intention to leave the scene without the complainant. In fact, he wanted nothing to do with Mr. Zelinsky;

(3) Had Mr. Zelinsky not approached the car from the front, the accused would have left the parking lot without incident;

(4) During the discussion in the parking lot, the accused was annoyed, concerned and fearful of what the complainant might do, given his previous behaviour that night. He was not terrified or overwhelmed, nor did he believe his life was in imminent danger. He was however afraid that the accused would be violent towards him;

(5) During said discussion, the accused did not call the police, nor did he attempt to (either by phone or by yelling). However, he did want to leave, which Mr. Zelinsky prevented him from doing;

(6) Once the complainant released his grasp of the car and stood upright, he made a move to open the door. The accused knew that the complainant opened his door and intended to enter;

(7) The complainant opened the back door and tried to enter the car, against the driver’s will;

(8) The accused accelerated to prevent the complainant from entering the vehicle;

(9) Mr. Zelinsky, instead of releasing the door and letting the car drive away, quickly chose to grab the door frame, run after the car and jump on the trunk;

(10) As he rolled away, the accused knew that Mr. Zelinsky had jumped on his car and subsequently fallen off. ANALYSIS 1- The count of hit-and-run [ 120 ] Contrary to the charge of dangerous driving, the issue of whether or not the accused’s behaviour attracts criminal liability for hit-and-run will focus on his departure from the scene (and his failure to alert emergency services), as opposed to the collision itself.

a) The essential elements of the offence: s. 252(1.2) C.C. [ 121 ] The Criminal Code sets out the offence and provides for a rebuttable presumption [54] of mens rea : 252(1)(a) – Failure to stop at scene of accident – Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance. 252(2) – Evidence – In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. [ 122 ] The essential elements of the offence were recently enumerated by the Quebec Court of Appeal in R. v.

Tukalak : [55] The actus reus comprises:

(1) The occurrence of an accident with another person;

(2) Care or control of the vehicle by the accused during said accident;

(3) Failure to stop and give his name and coordinates, and assistance in the case of injury; The mens rea is:

(4) Subjective contemporaneous knowledge of the accident by the accused; [56]

(5) Specific intent [57] to avoid criminal or civil liability – as it arises from the operation of the motor vehicle (as opposed to some other source of liability). [58]

b) Was there an “accident” for the purposes of s. 252?

i) The

interpretation in the caselaw of the notion of “accident” [ 123 ] Having watched the video footage during the trial, at the end of the evidence, the Court, on its own initiative, invited the parties to make submissions on the issue of whether or not an “accident” had taken place. [ 124 ] In my view, the principal issue raised in by this case (on this count) is whether the incident falls within the scope of “accident” in terms of s. 252. [ 125 ] The Criminal Code does not provide a definition of “accident”. [ 126 ] I recognize that the appellate caselaw calls for a broad

interpretation of the term. In fact, the following propositions are now settled law: • “Accident” encompasses not only “accidental” collisions, but intentional ones as well, where the driver means to strike the other person or vehicle. [59] • An “accident” may be found to occur even when there is no physical collision between the accused’s vehicle and the other car (or pedestrian). [60]

• An “accident” does not require damages or injuries. The commonly understood meaning of “accident” is not limited to only those incidents and there is nothing in the wording of s. 252(1) to suggest any such limit. [61] [ 127 ] However, there are limits to such a definition. Insofar as it triggers criminal liability, [62] the concept of “accident” in s. 252 C.C. cannot be all-encompassing or include any type of injury imaginable flowing from contact with a vehicle. [ 128 ] For that reason, I do not feel bound by the definition provided at s. 167 of the provincial Highway Safety Code : [63] 167 .

For the purposes of this Title (accidents on road or land), an accident is an event during which injury or damage is caused by a moving road vehicle. 167 . Pour l’application du présent

titre (accidents survenus sur tout chemin ou terrain), un accident est un événement au cours duquel un préjudice est causé par un véhicule routier en mouvement . [ 129 ] The C.S.R. contains its own regime imposing on the driver of a vehicle that is involved in an accident the duty to stop and render assistance. This statutory definition of “accident” in s. 167 is extremely broad. [ 130 ] For similar reasons, I feel that reference to dictionaries is not particularly useful in these specific circumstances.

For instance, the Oxford dictionary refers to “an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury. An event that happens by chance or that is without apparent or deliberate cause”. Clearly, the events at bar are unfortunate, but that gets us nowhere. Moreover, contrary to this definition, the caselaw has already held that no damage or injury is required.

Finally, the “without deliberate cause” aspect does not answer the question: what if the deliberate cause is that of the victim? [ 131 ] As for the Webster dictionary, it defines an “unforeseen and unplanned event or circumstance”. This definition is even more universal than that provided in the C.S.R. , and clearly overshoots the intent of Parliament. It adds “an event resulting especially from carelessness or ignorance”.

That has no application here. [ 132 ] Even Black’s Law Dictionary provides little assistance: “an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. An unforeseen and injurious not attributable to mistake, neglect or misconduct”. [64] [ 133 ] Thus, we must look to the caselaw for guidance. [ 134 ] In R. v. Mihalick , where the British Columbia Court of Appeal espoused a broad meaning for the notion, it described “an incident of any sort causing injury or damage”. The “causation” element is thus added to the mix.

What would happen if the Court (as I do below) concluded that the injury or damage was not caused by the accused, but instead solely and exclusively caused by the complainant? [ 135 ] In the leading case of R. v. Hansen , that same Court similarly described an “operation of a vehicle so as to cause injury to another person or vehicle”. [ 136 ] Ultimately, the Court must strive to interpret the provision in accordance with Parliament’s intent. In that sense, I must apply the modern approach to statutory

interpretation, as endorsed by the Supreme Court of Canada in several decisions: “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament”. [65] [ 137 ] In deciphering the meaning intended by Parliament, a good starting point is an examination of what mischief the provision is intended to rectify.

Section 12 of the

Interpretation Act [66] states that an enactment shall be interpreted “as best ensures the attainment of its objects”. As canvassed by the Alberta Court of Appeal in R. v. McColl , the intent of Parliament was to punish drivers leaving an accident scene without tendering assistance to an injured person in need. [67] [ 138 ] That being said, it cannot have been the intention of Parliament to criminalize failure to stop and assist an attacking assailant that throws himself on your vehicle.

Such an extreme level of selfless altruism (not to mention instantaneous forgiveness) goes beyond what the Canadian criminal law requires of its citizens. [ 139 ] To my knowledge, the scenario in the case at bar has never been addressed in the jurisprudence. [ 140 ] However, the situation in R. v. Jagoe was somewhat analogous. In that case, after an alcohol-fuelled night out at a local bar, the accused gave some men a ride home. While en route, the group of men became rowdy and belligerent. As one of them exited the car, he punched the accused on the side of the face and spat on him.

Moments after they exited, the accused saw two of the men (one of which was wielding a baseball bat) approach his car in an aggressive manner, shouting “bring it on!”. The accused attempted to avoid him, but the complainant climbed onto the hood of the truck. The accused applied the brakes in an effort “to get him off” and the complainant fell off, struck his head on the pavement and died as a result of his injuries.

The trial judge concluded that the accused was “scared for his life” during the manoeuvre. [ 141 ] The accused was charged with various offences, including dangerous driving causing death, impaired driving causing death, driving “over 80” causing death and hit-and-run after a deadly accident. [ 142 ] In affirming his acquittal, the New Brunswick Court of Appeal addressed the concept of “accident”. [68] Writing for a unanimous Court, Bell J.A. explained: In order to convict on the charge as laid, the Crown must prove the driving (which admittedly was over 80) caused the “accident”. [69] […]

In order to be convicted, Mr. Jagoe must have “caused” an “accident”. There is considerable jurisprudence which supports the notionthat, in prosecutions for leaving the scene of an accident, the word "accident" includes both intentional and unintentional collisions. Forexample, in R. v. Modeste, 2012 NWTSC 31, the accused deliberately ran into the victim with a snowmobile after an altercation. Whencharged with leaving the scene of an accident with intent to escape civil or criminal liability, Mr. Modeste contended there was noaccident. The coming together of the snowmobile and the pedestrian was quite deliberate.

After a thorough analysis of the jurisprudence,Charbonneau J. concluded that an "accident", for purposes of s. 252, includes intentional conduct on the part of the accused. In R. v.Hansen, (BC CA), [1988] B.C.J. No. 2600 (B.C. C.A.), the accused was convicted of attempted murder and leavingthe scene of an "accident" after running down his lover's estranged husband. He appealed the conviction of leaving the scene of an"accident" on the basis that the act was deliberate.

Hutcheon J.A., for a unanimous Court, concluded that s. 236 (as it then was) must beconstrued to "include both intentional and unintentional striking by a motor vehicle of a person". See also R. v. Chase, 2006 BCCA 275,and R. v. Chisholm, 1998 NSCA 155 , [1998] N.S.J. No. 274 (N.S.C.A.). Needless to say, this line of authorities makesabundant good sense when dealing with leaving the scene of an accident to escape civil or criminal liability.

It would constitute anabsurd result if one could deliberately strike an individual and leave the scene without penal consequences, while an accidental collisionin which the driver left the scene would carry severe consequences. For purposes of applying s. 255(3.1) to the facts of this case, I am of the view an absurdity would result if this Court concluded thefacts as presented constitute an "accident". Unlike the line of cases relied upon by Charbonneau J. in Modeste, we are not facedwith a deliberate and malicious act of the accused.

Here, the Court is presented with a collision between the purported victim andthe vehicle which results from the deliberate conduct of the purported victim. I am of the view that Mr. Corrigan's conduct injumping on the vehicle and wielding a baseball bat at the driver does not constitute an accident for the purposes of s. 255(3.1). Inreaching this conclusion, I would not close the door to another Court interpreting "accident" more broadly in other circumstances where,for example, someone intentionally jumps on the hood of a vehicle to affect an arrest of the driver or in

an act of self-defence. Thedistinguishing factor in the present case is that Mr. Corrigan's conduct was deliberate, criminal and totally unjustified. I would go even further… In this case, the collision between Mr. Corrigan and the vehicle occurred when Mr. Corrigan jumped onto thehood of the vehicle. That collision was caused solely by Mr. Corrigan's intentional act of jumping on the hood. To those who wouldsuggest that Mr. Jagoe's intentional braking and eviction of Mr.

Corrigan from the hood caused an "accident" (the striking of Mr.Corrigan's head on the pavement) I would simply reply that the criminal law permits people to defend themselves from assaults andimminent attacks. In my view, it would be absurd to conclude that a perfectly sober driver confronted with an attacker on the hood of hisor her vehicle causes an "accident" when he or she brakes to evict the intruder. Mr. Jagoe behaved no differently than one would expectfrom any other driver in similar circumstances, over 80 or not.

The removal of an assailant from the hood of a car by braking does notbecome an "accident" just because the driver happens to have over 80 mg of alcohol per 100 ml of blood. To summarize, I am of the view Mr. Jagoe was not involved in an accident as contemplated by s. 255(3.1) of the Code; and if he was, hedid not cause the accident.[70] [emphasis added] [143] I find Bell J.A.’s reasoning very persuasive.

It is based on common sense and is respects the spirit of s. 252 C.C. and thebehaviour that it seeks to criminalize. ii) Application to the case at bar [144] In the case at bar, I have held that the complainant made a conscious (albeit quick) decision to run and jump on the back of theaccused’s car as the latter drove away, precisely to escape from him. [145] The actions leading to Mr. Zelinsky being on the vehicle were entirely his. The accused played no

part in that process, eitherintentionally or unintentionally. The decision was unilaterally Mr. Zelinsky’s and his subsequent conduct was intentional. [146] Similarly, the fact that he fell off the vehicle is also a result of his actions. The vehicle was already moving. In that sense, we donot even have a scenario like that of Mr. Jagoe where the driver swerved or applied the brakes for the express purpose of removing theassailant. Thus, if Mr. Jagoe’s incident did not qualify as an “accident”, Mr.

Doyle’s certainly cannot. [147] Borrowing the terms used by Bell J.A., I am of the view that an absurdity would result if I concluded that an “accident” occurredhere, engaging the accused’s obligation to stop and provide assistance. [148] The complainant was a hostile aggressor attempting to enter Mr. Doyle’s vehicle. Being unsuccessful in his endeavour, he thenjumped on the escaping car. Though Mr. Zelinsky’s behaviour was far less threatening and violent than that of Mr.

Corrigan in R. v.Jagoe, it remained assaultive, illegal and unjustified. [149] While the incident may satisfy the penal/regulatory definition in the C.S.R., it would be unfair to extend the reach of the criminallaw to these circumstances; do to so would attract criminal liability for conduct that is not sufficiently morally blameworthy. [150] Mr. Zelinsky’s conduct in jumping on the vehicle does not constitute an accident for the purposes of s. 252. For these reasons,the accused is found not guilty on the count of hit-and-run.

c) But for the definition of accident, a guilty verdict would have ensued [151] Given my conclusion above, the analysis could end there. Nevertheless, given the relative dearth in the caselaw, I offer thefollowing remarks as obiter dictum, in the event that I am wrong. [152] But for my

interpretation of the notion of “accident”, I would have found the accused guilty on the count of hit-and-run. All theother essential elements of the offence were established by the Crown beyond a reasonable doubt. At no time did Mr. Doyle attempt

compliance with the statutory duties cast upon persons involved in an accident [had there been an “accident”]. [ 153 ] The Crown had to prove contemporaneous knowledge of the accident and specific intent to avoid criminal or civil liability. [ 154 ] During the parties’ submissions, much was said of the concept of wilful blindness in hit-and-run prosecutions as it relates to the requisite mens rea . [71] Wilful blindness can substitute “actual” knowledge whenever knowledge is a component of the mens rea . It is different from recklessness.

It is where a person is aware of the need to inquire, but makes no inquiry because he does not want to know the truth. [ 155 ] I am satisfied that the element of knowledge accompanying s. 252(1) with respect to involvement in an accident can be met by the accused exhibiting wilful blindness towards what transpired. After all, in R. c.

Doyon , the Quebec Court of Appeal explicitly recognized the concept’s application in hit-and-run prosecutions. [72] Logically, wilful blindness also applies to the knowledge that bodily harm was caused under s. 252(1.2). [ 156 ] Having said that, resort to wilful blindness doctrine is not necessary here. Let us recall that the Court flatly disbelieves the accused’s claim that he did not know (1) that the complainant had embarked on his car, (2) that he fell off, and (3) that he hurt himself doing so.

Instead, the Court concludes that the accused did in fact know these elements as he drove off. [ 157 ] As such, the presumption at s. 252(2) C.C. receives full effect. As the Quebec Court of Appeal aptly stated in the recent case of R. v. Tukalak , “the [accused’s] explanations, which were flatly rejected by the judge as being not credible, cannot constitute ‘evidence to the contrary’ rebutting the presumption of intent to escape civil or criminal liability”. [73] [ 158 ] I note that the accused made no subsequent phone call to the police either, once he had removed himself from the volatile situation.

In any event, while the situation may have been volatile at first, the danger was quickly neutralized when Mr. Zelinsky hit the ground and lost consciousness. As of that point, the flight was in no way justified by any fear of a further physical confrontation. 2- The count of dangerous driving

a) What part of his driving should the analysis focus on? [ 159 ] For the purposes of the analysis, it is important to identify exactly what the Crown alleges was the dangerous driving. For instance, was it (1) the fact of driving away, or (2) the fact of driving with someone on your trunk? [ 160 ] In its submissions, the Crown isolated the issue.

It is the prosecution’s position that the s. 249 C.C. analysis should focus on: • The fact of accelerating abruptly and driving off while knowing that someone is attempting to enter the vehicle. [ 161 ] I agree that this is a fair way to focus the issue. [ 162 ] Conversely, it would have been unfair to apply the provision to “driving with someone on his trunk”, since that part of the driving was wholly involuntary. It was unforeseeable and the accused had no control over the complainant’s unilateral decision to jump on, when he was already rolling.

b) The interplay between the offence of dangerous driving and available defences [ 163 ] The accused essentially argued that his driving was appropriate in the circumstances. As such, while he did not deny having quickly accelerated while Mr.

Zelinsky tried to enter the car, he maintained that his driving was justified or excusable. [ 164 ] Ultimately, he advanced a form of self-defence or necessity. [ 165 ] A preliminary question arises regarding the application of said defences in a driving context: is such a justification “built in” to the essential elements of s. 249 C.C. , or must a separate analysis of s. 34 C.C. (or the defence of necessity) be conducted after first finding that the dangerous driving offence was established prima facie ? [ 166 ] After all, the mens rea for the offence requires a marked departure from the standard of care that a reasonable person would observe in all the circumstances .

If those “circumstances” include an imminent danger facing the driver, does that make his objectively/subjectively dangerous driving less of a “marked departure”? [ 167 ] In the case at bar, the Crown acknowledges that the defences of self-defence and necessity could apply, in principle. It argues however that they do not apply in the circumstances of this case. [ 168 ] Defence counsel does not explicitly invoke said defences. Not because he abandons them or concedes their inapplicability; instead, he contends that they are subsumed in the s. 249 C.C. analysis itself.

In other words, there was no dangerous driving in the first place. It is therefore unnecessary to go the further step and apply s. 34 of the Code . The defences are invoked from a different angle. [ 169 ] It appears that the caselaw is inconsistent on this threshold issue. [ 170 ] In R. v. Munden , Campbell J. espoused the view that the defences are already “built in” the s. 249 provision: Courts have considered the application of the self-defence provisions to charges of dangerous operation of a vehicle, R. v . Kravshar , 2008 ABPC 313 .

The essential elements of the charge itself however, appear to incorporate a consideration of the surrounding circumstances that make the resort to the self-defence provisions if not redundant at least not necessary in this case. [74]

[…] Section 249(1)(b), in itself contains the requirement that consideration be given to "all of the circumstances". Those circumstances include the driving or boating conditions at the time but there would appear to be no reason why they should not also include the situation in which the operator of the vehicle or vessel has found himself at the time. … The reasonable person must be put with the situation with which the accused was confronted… [75] […] It does not appear as though the self-defence provisions of the Criminal Code are necessarily relevant.

In considering both the surrounding circumstances to determine whether the operation of the vessel was objectively a marked departure from the norm, and in considering the modified objective test about the actions of a reasonable person in the position of the accused at the time, the evidence which gave rise to the argument that self-defence was available, would have to be considered. [76] [ 171 ] Other courts have taken such a one-step approach without explicitly mentioning it. For instance, in R. v. Wood , Hill J. applied an “integrated” analysis, without explicit reference to s. 34.

In a case where the accused perceived to be in danger, he concluded that the accused had acted reasonably and proportionally in “choosing to drive in what, in ordinary circumstances, would be a criminally irresponsible manner”. An acquittal ensued accordingly. [77] [ 172 ] Similarly, in R. v.

A.B. , the accused’s driving was held not to amount to a marked departure, but because necessity had been established. [78] [ 173 ] However, in other decisions, the defences of self-defence or necessity have been separately applied, as seen below. [ 174 ] I conclude that s. 34 C.C. and the defence of necessity must be separately applied. With great respect to those holding the opposite view, I believe that it provides for a clearer roadmap to the judge’s reasoning and facilitates appellate review. Having said that, in the case at bar, the result would have been the same, regardless of the avenue adopted.

c) The essential elements of the offence: s. 249 C.C. [ 175 ] Dangerous driving is a serious offence. Like all criminal offences, it consists of two components:

(1) Prohibited conduct ( actus reus ): operating a motor vehicle in a dangerous manner, 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 be reasonably expected to be at that place; [79]

(2) The required degree of fault ( mens rea ): a marked departure from the standard of care that a reasonable person would observe in all the circumstances. [ 176 ] A mere departure will not suffice, even though it may support civil liability. Such a lower standard would unduly extend the reach of the criminal law and wrongly brand as criminals those who are not morally blameworthy. [80] [ 177 ] Of course, proof of subjective mens rea – that is, deliberately dangerous driving – will satisfy the fault requirement. [81]

d) The offence of dangerous driving was committed prima facie [ 178 ] I agree with the Crown that pressing on the gas pedal when a person is entering a vehicle is inherently dangerous.

It does constitute dangerous driving for the purposes of the actus reus of the offence. [ 179 ] Given the proximity of the complainant to the car and his already-commenced action of entering, there was a heightened danger that: (1) he would be struck by a part of the car, (2) that the rear wheel would drive over his foot, or (3) that he would lose his footing. [ 180 ] Incidentally, I pause to mention that neither of those actually occurred here. [ 181 ] Although a specific speed was not established by the evidence, the video footage shows that the accused drove off quickly.

In fact, he explicitly admits so in his testimony. [ 182 ] As for the mens rea , the accused, an intelligent and sober man, was aware of this inherent danger and chose to drive off nonetheless. As mentioned above, I made findings of fact that the accused did know that Mr. Zelinsky was in the process of entering his vehicle when he chose to speed off. [ 183 ] By acting as he did, the accused displayed a marked departure from the standard of care expected of a reasonable person in the circumstances.

I conclude that he had the necessary intent to commit the offence. [ 184 ] Indeed, this case is not one where the driver’s manoeuvre was inadvertent. Rather, Mr. Doyle made a deliberate decision to accelerate as the complainant tried to enter the vehicle. This is markedly beyond mere carelessness. He was aware of the risk and consciously decided to take it [82] (though perhaps for very legitimate reasons). [ 185 ] However, this conclusion in no way settles the issues of:

(1) Was the dangerous driving legally excused?

(2) If not, did the dangerous driving cause the bodily harm?

e) The application of s. 34 of the Criminal Code [ 186 ] In R. v. Kravsher , the Court recognized in principle that the defence of self-defence is accepted in cases of dangerous driving. [83] Several other courts have followed suit. [ 187 ] I must apply the new framework provided at ss. 34(1) and 34(2) C.C. , as amended by the Citizen’s Arrest and Self-Defence Act : [84] 34(1) Defence – use of threat of force – A person is not guilty of an offence if: (

a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) The act that constitutes the offence ( i.e. the dangerous driving) is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) The act committed is reasonable in the circumstances. 34(2) Factors – In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) The nature of the force or threat; (

b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) The person’s role in the incident; (

d) Whether any party to the incident used or threatened to use a weapon; (

e) The size, age, gender and physical capabilities of the parties to the incident; (

f) The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history or interaction or communication between the parties to the incident; (

g) The nature and proportionality of the person’s response to the use or threat of force; and (

h) Whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 188 ] Several principles that had developed in the caselaw before the amendments continue to be applicable. [ 189 ] For instance, it remains trite law that a citizen is not required to wait to be hit before taking measures to protect himself. [85] A certain degree of preventive action is both appropriate and permissible. [86] [190] Furthermore, in assessing the proportionality of an accused’s defensive actions, it is not the task of the Court to exhaust all of the potential possibilities which one can consider with the benefit of hindsight.

The law of self-defence has always recognized the need to account for situations of stress. In other words, forced to react quickly to a perceived danger, it is normal that a person cannot weigh to a nicety the exact measure of the defensive action required. [87] [191] Volatile situations do not provide persons with time for subtle reflection. [88] [192] Several cases have applied self-defence to dangerous driving contexts. Obviously, each assessment is fact-specific. [193] In R. v.

Jagoe , mentioned above, the New Brunswick Court of Appeal stressed that the criminal law permits people to defence themselves from assaults and imminent attacks. In that case, it reasoned that confronted with an attacker on one’s hood, the normal reaction expected from reasonable drivers would be to brake to evict the intruder. [194] In R. v. Zeus , the accused was charged with dangerous driving causing bodily harm. The defence conceded that the driving was dangerous within the meaning of s. 249 C.C. ; however, it invoked self-defence.

Two days before the events, she had already been intimidated by a group of individuals following a dispute over noise being made at a lookout. In the aftermath of that confrontation, she had accused the complainant of stealing a telephone charger. On the day of the alleged offence, the accused returned to the lookout. [195] This time, the complainant confronted her, upset about having been unjustly accused of theft. Several other friends of the complainant’s arrived and all angrily confronted the accused. At that point, as soon as the dispute started to escalate, the accused tried to enter her vehicle to leave.

However, a number of vehicles pulled in and came to a stop in quick succession, essentially forming an arc surrounding the accused’s car and preventing her from leaving. [196] The scene was loud and chaotic. People took turns engaging in verbal confrontations with the accused in the area immediately in front of her vehicle. The accused was angry and screamed at people to get out of her way or she would run them over. [89] The Court accepted that she was terrified. It is to be noted that no one in the group explicitly threatened her. Nor did anyone brandish a weapon.

When the accused started to accelerate moderately, the complainant stepped towards her and hopped onto her hood in a seated position. As she continued to drive slowly, the group shouted at her and someone kicked her car. The accused then panicked, applied the brakes

and then accelerated. [197] Konyer J. held that the fact that no one had brandished a weapon or explicitly threatened to harm her did not mean that the situation was not dangerous. [90] He acquitted the accused on the basis of self-defence. [198] In R. v. Wood , the accused was charged with dangerous driving causing bodily harm and hit-and-run. Witnesses had seen the accused driving erratically. For that reason, one witness pulled his vehicle in front of the accused’s to prevent him from leaving. The complainant pulled up behind him at the same time. It was night time.

The accused claimed that he was afraid as both witnesses approached his car in an angry fashion, yelling and screaming. As he executed a U-turn in an attempt to go around the complainant and escape, the complainant ended up on the hood of the car and commenced to punch at the windshield. The accused then swerved in an effort to throw the complainant off, which he succeeded in doing, leading to the latter suffering injuries as he rolled off the vehicle.

There were no clear estimates of the speed of the car at trial. [199] The Court accepted the accused’s testimony that he was frightened by the complainant’s behaviour. Hill J. went to acquit on the following basis: Considering the preceding events, Mr. Wood's stated fear that the complainant was trying to come through the windshield at him, was not unreasonable. In the context of there existing a reasonable doubt that Mr.

Dolganiuk was the aggressor, in terms of his voluntarily mounting the hood of the Honda, the risk of violence had progressed to actual violence to property (the smashing of the windshield) with the greater proximity of physical peril for Mr. Wood. In effect, the accused subjectively believed that he faced an emergency - a threat to personal safety. On an objective assessment of the totality of the evidence, I am unable to say that this perception was unreasonable . The accused had no realistic alternative course of escape.

To stop and get out of the car would place him at the immediate disposal of the men on the street . Backing the vehicle up, prior to Mr. Dolganiuk's presence on the hood would lead to confrontation again with Mr. Fakih. Stopping the Honda, locking the doors, and sitting inside, risked Mr. Dolganiuk succeeding in coming through the windshield and the arrival of at least Mr. Fakih by way of reinforcements. Whether described in terms of an attempt to overcome

an act of road-blocking intimidation directed toward him, or an attempt to repel a reasonably apprehended assault, I am unable to say that the accused was not, in all of the circumstances, employing proportionately reasonable force in choosing to drive in what, in ordinary circumstances, would be a criminally irresponsible manner . It follows that I have a reasonable doubt that Mr. Wood's actions, leading to the bodily harm occasioned to Mr.

Dolganiuk, were justified. [91] [emphasis added] [200] In the case at bar, I consider the fact that the accused acted in a state of concern and legitimate apprehension that the complainant would harm him. Although I rejected his claims that he was “utterly terrified” or that he thought his life was in imminent danger, that does not discount his legitimate concerns or his fear that the accused would assault him. Nor does it disentitle him from defending himself and his passenger Gowtham. Imminent mo

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