R. v. Chalak, 2020 ONCJ 97

ONTARIO COURT OF JUSTICE CITATION: R. v. Chalak , 2020 ONCJ 97 DATE: 2020 02 20 COURT FILE No.: Brampton 3111 998 18 7265 BETWEEN: HER MAJESTY THE QUEEN — AND — SABRI CHALAK Before Justice G.P. Renwick Heard on 19 and 20 February 2020 Reasons for Judgment released on 20 February 2020 G. Hendry.............................................................................................. counsel for the Crown K.

Szpulak............................................................. counsel for the defendant Sabri Chalak RENWICK J.: INTRODUCTION [ 1 ] The Defendant is charged with one count of Dangerous Driving, contrary to s. 249(1) of the Criminal Code . The only issue for my consideration after this brief trial is whether the evidence proves that the Defendant committed the alleged offence beyond a reasonable doubt. GENERAL PRINCIPLES [ 2 ] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt.

Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied by admissible evidence that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold. [ 3 ] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial.

While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. [ 4 ] The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1] If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt.

Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[ 5 ] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive.

A trier of fact is entitled to accept some, none, or all of what a witness says while testifying. [ 6 ] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case.

If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony. [ 7 ] If, at the end of the trial, the prosecutor has failed to satisfy me beyond a reasonable doubt that the Defendant drove his car in a manner that was dangerous to the public, I must find him not guilty of this offence.

To determine this question, I am entitled to consider the nature, condition, and use of the road where the driving occurred, the amount of other traffic, both vehicular and pedestrian that was present or reasonably expected to be on that road at that time, and any other factor related to the operation of the Defendant’s motor vehicle. [ 8 ] I remind myself that dangerous operation of a motor vehicle involves more than mere carelessness or a lack of consideration for other users of a highway.

I must be satisfied that the defendant’s conduct represents a marked departure from the driving of a reasonably prudent motorist in the same circumstances. I must be satisfied beyond a reasonable doubt that a reasonable driver in these circumstances would have been aware of the risk and the danger involved in the manner of driving exhibited by the Defendant. [ 9 ] I also remind myself that it is the manner of driving rather than the consequences that must be my focus.

The consequences of the Defendant’s driving may assist me to decide whether the Defendant’s operation of his motor vehicle was a marked departure from what a reasonable, prudent driver would exhibit in the circumstances, but standing alone, the consequences do not prove that the Defendant’s driving was a marked departure from how a reasonable, prudent driver would operate his car in similar circumstances. [2] [ 10 ] Anyone who commits that actus reus with the requisite mens rea is guilty of dangerous driving. [ 11 ] The mens rea can be established in two ways.

In some cases, the prosecution will be able to establish that the defendant drove in a deliberately dangerous manner. A driver's decision to drive in a dangerous manner within the meaning of s. 249(1) (

a) amounts to subjective mens rea . The mens rea can also be established by demonstrating that the defendant failed to meet the objective standard of a reasonable, prudent driver in the circumstances. In such cases, the fault element is not the marked departure from the conduct of a reasonably prudent driver, but the fact that a reasonably prudent driver in the defendant's circumstances would have been aware of the risk of that conduct and would have acted in a manner that was markedly more prudent.

The mens rea may only be inferred where the impugned conduct represents a marked departure from the norm, and it is not inferred from the simple fact that the defendant operated the motor vehicle in a dangerous manner. [3] [ 12 ] In this case, there is no disagreement among the parties as to the applicable law or how the law ought to be interpreted. The parties disagree on the facts. On the prosecution’s theory, the Defendant drove in very aggressive manner that put others at risk.

The prosecution asserts that the driving was obviously a marked departure from the standard of the reasonably prudent driver in the circumstances known to the Defendant; his driving was aggressive, risky, dangerous, and the cause of the collisions with Mr. Kumar’s car and Mr.

Valliant’s e-bike. [ 13 ] The Defendant submits that his driving was not a marked departure from that of a reasonably prudent driver, and the accidents that ensued were attributable to the actions of the other motorists present. [ 14 ] In the next part, I will outline some of the evidence taken during this trial and the findings I have reached. I do not propose to reiterate all of the evidence taken. It is sufficient to note that during and subsequent to the trial I have taken several opportunities to review the evidence from my notes and the digital recording of the proceedings.

As well, I have come to no conclusions on the evidence until all of the submissions were received. THE EVIDENCE AND FINDINGS [ 15 ] Pankaj Kumar testified in a relaxed and confident manner. On the whole, I believe this witness. [ 16 ] Mr. Kumar testified that he drove his Honda vehicle northbound on Hurontario Street in Mississauga on June 1, 2018 in the early evening. He was going home. His wife was in the car. He was not in a hurry. In fact, at the relevant time, he was going just below the posted 60 km/hour speed limit. Mr.

Kumar observed a vehicle behind him, which the parties accept was the Defendant, in an Acura motor vehicle. Traffic was “not heavy,” but there were other motorists also going northbound. [ 17 ] Mr. Kumar saw the Acura behind him overtaking other traffic. To get out of the way, Mr. Kumar moved from the centre of three lanes, to the curb lane. When he did so, he observed that the Acura was now behind him. Again, Mr. Kumar attempted to get out of the way and he moved back to the centre lane. Again, he saw that the Acura was now behind him in that lane. At this point, Mr. Kumar

testified that the Acura attempted to pass him on the right, to go in front of him in the middle lane. According to this witness, at this point the rear driver’s side of the Acura came into contact with the front passenger side of Mr. Kumar’s car and then the Acura came to a stop. Mr. Kumar said it was not a “smooth stop,” but because he had not been going fast, he braked quickly but not hard. Only after Mr. Kumar left his vehicle did he realize that the Acura had also collided with the driver of the e-bike. [ 18 ] In cross-examination, Mr. Kumar disagreed that he did not see the Acura overtaking other vehicles.

When asked if he did not want the Acura to pass, and it was suggested that this is why he moved to the curb lane, Mr. Kumar responded, “No, I didn’t want that guy to hit me.” I believed him when he said this. His response was responsive, instantaneous, plausible, and he appeared genuine when explaining his response to the driving he had observed. [ 19 ] Also, during cross-examination, Mr. Kumar was asked if there was any other stopping, before the cars came to rest on the road. He said there was not. He was asked if there had been “stop and go, nothing like that” and he agreed.

Counsel for the Defendant relies on this evidence to suggest that the observations by Mr. Whynott were inaccurate. While I am unable to conclude why Mr. Kumar testified the way he did, I find on a balance of probabilities that Mr. Kumar is honestly mistaken about the number of times he had to brake while behind the Defendant’s vehicle. [ 20 ] I find that Mr. Kumar was balanced in his evidence. He testified that he could not estimate the speed of other vehicles, including the Defendant’s, as he watched the Acura overtaking other cars. He admitted that people were yelling at the Acura driver after the collision.

Mr. Kumar admitted that another witness to the driving had told him that the Acura driver was driving “crazy” and the witness told him that he saw the Acura hit the e-bike. Lastly, Mr. Kumar admitted in cross-examination that he had told his insurance company that he was not at fault for the collision and his claim would suffer if he had been found at fault. [ 21 ] In the end, Mr. Kumar was consistent in his evidence. He was believable. His evidence was plausible.

His evidence was not substantially contradicted by other evidence. [4] [ 22 ] Chad Valliant described his observations while operating his e-bike northbound also, in the curb lane. He could hear the honking of horns. He believed that the Acura “sideswiped” the other car, pushing that car into the far left of three lanes, when the Acura was beside him, also in the curb lane. As others tried to avoid a collision with those two cars, Mr. Valliant described going into the centre of the three northbound lanes to avoid cars swerving into the curb lane.

He then saw the Acura “slam” on his brakes, as the driver “stood up a bit” to stick his finger out the “window.” Mr. Valliant says that he heard the screeching of tires and then he was hit by the Acura. Mr. Valliant testified that after the collision with his e-bike, he confronted the Acura driver, and the driver put his face against the visor of his helmet and said that the accident was the fault of the other driver and Mr. Valliant. Before the end of his evidence in chief, Mr.

Valliant testified that the Defendant had stood up and gave everyone “the middle finger” out of the “sunroof,” just before he was struck. [ 23 ] Mr. Valliant’s evidence demonstrated a clear understanding of the requirements and restrictions for e-bikes. He drew a diagram which became the only exhibit on the trial. That exhibit supported his evidence and Mr. Kumar’s, respecting the driving before the collisions. [ 24 ] I accept most of Mr. Valliant’s evidence, especially respecting how things occurred. His evidence was plausible, reasonable, and consistent. However, I do not believe that Mr.

Valliant was not upset, that he was “calm” during the entire incident, and that he was trying to keep others from trying to attack the Defendant while awaiting the police. He had every reason to be upset: His e-bike was damaged; He had fallen off his bike; He believed that the Defendant was the “bad guy,” who had braked for no reason; and, the Defendant had given everyone the middle finger. [ 25 ] As a result of my findings, I have discounted the weight that would otherwise go to Mr. Valliant’s evidence. That is to say, his evidence only minimally corroborates Mr.

Kumar’s evidence. [ 26 ] Gregory Whynott testified that he saw much of the interaction between the Acura and the Honda. He believed that the Defendant “brake-checked” the Honda when the Acura was in front, causing the Honda to have to brake hard. Mr. Whynott admitted that he had an interest in what he had observed, because he has buried friends who died while riding motorcycles that collided with cars. [ 27 ] Mr. Whynott testified that he saw the collision between the Acura and the e-bike while he was stopped at the northbound red traffic light, looking in his mirror behind him.

He testified that there was a back and forth between the Honda and Acura, he heard bickering and saw the Defendant turn around to yell at the Honda behind him, before the Acura did the second brake-check and its nose

dipped down. He testified that the e-bike was stopped when the Acura lurched forward and hit him. Mr. Whynott testified that he pulled around the corner and parked before returning to the scene to confront the Acura driver. He testified that the e-bike rider was not confrontational with the Acura driver. Mr. Whynott admitted that he was “pissed off” with the Acura driver and he injected himself into the equation as a result. [ 28 ] In the end, I accept only part of this witness’ evidence: I find that the Acura driver had stopped abruptly in front of the Honda to berate the driver.

I find that the Acura lurched forward and struck the e-bike that was clearly stopped in front of it. [ 29 ] I have come to this conclusion based upon all of the evidence. [ 30 ] Mr. Whynott’s attention was clearly attracted to the interaction between the Honda and Acura motor vehicles. Mr. Whynott would have no reason to continue to watch the cars behind him, were it not for the Defendant’s aggressive braking maneuver when Mr. Whynott had been stopped as he was turning onto Hurontario. Furthermore, I accept that Mr. Whynott observed the collision with the e- bike as he testified.

Were it not for this observation, he would not have seen the e-bike get hit, as it was behind him, and he would have had no reason to pull around the corner and stop. [ 31 ] Constable Kerin Marks testified about the investigation and her observations of paint transfer and vehicular damage observable at the scene of the collision. This evidence was not challenged. This evidence established that there was a minor collision between the Honda, the Acura, and the e-bike. [ 32 ] Angelo D’Urso testified for the Defendant. He was a pedestrian standing at the funeral home across from where the collision took place.

He testified that his attention was drawn to the loud sounds of a motorcycle moving quickly towards the traffic proceeding to the red light at the intersection with Sherobee. Mr. D’Urso testified that he saw the motorcycle weaving in and out of traffic. He believed that the motorcyclist’s aggressive driving caused the Acura to clip the motorcycle. [ 33 ] In cross-examination, Mr. D’Urso confirmed that the sound he heard was a gas engine, revving loudly. [ 34 ] I find that Mr. D’Urso honestly believed what he heard. I find that it is not possible that he heard Mr.

Valliant’s e-bike revving, but rather, he heard the Acura revving its engine and accelerating quickly. Mr. D’Urso’s evidence is coloured by his

interpretation of what he heard and saw. His evidence does not accord with the evidence of every other witness to the collisions. I find that Mr. D’Urso’s evidence is unreliable, on this basis. Except for the acceleration sounds of the gas engine he heard, I reject Mr. D’Urso’s testimony, and specifically his view of the cause of the collision he saw. [ 35 ] On the basis of all of the evidence, I make the following findings: 1. The Defendant drove at or above the speed limit as he proceeded northbound from the North Service Road on Hurontario; 2.

The Defendant made several lane changes and he overtook other vehicles; 3. When the Defendant’s Acura approached Mr. Kumar’s Honda, he tried to pass it by moving to the curb lane at the same time that vehicle also went to that lane to get out of the way; 4. The Defendant next attempted to go back to the middle lane at the same time Mr. Kumar attempted to get out of the Defendant’s path by going to that lane; 5. The Defendant passed Mr. Kumar by travelling in the curb lane;

6. The Defendant made a quick lane change in front of the Honda and while doing so, the Acura clipped the front of the Honda on the passenger side of the front bumper; 7. The Defendant braked for no apparent reason after contacting the Honda; 8. The Defendant yelled out and gave the middle finger to Mr. Kumar; 9. The Defendant braked aggressively a second time, causing Mr. Kumar to brake and others on the highway to swerve around the Honda into the curb lane; 10. Mr. Valliant moved his e-bike to the centre lane to avoid other vehicles that were swerving into the curb lane; 11. Mr.

Valliant was stopped or stopping when he was rear-ended by the Defendant’s Acura; 12. The Acura had screeched its tires and lurched forward for no apparent reason and struck the e-bike which was plainly visible ahead of it in the same lane; and 13. The Honda, the Acura, and the e-bike were behind Mr. Whynott, who was stopped at the red traffic signal at the intersection of Sherobee and Hurontario before the Defendant struck the Mr. Valliant’s e-bike. ANALYSIS [ 36 ] Dangerous driving is a serious criminal offence.

It consists of two components: …prohibited conduct – operating a motor vehicle in a dangerous manner resulting in death – and a required degree of fault – a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence.

Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature of driving. Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put it in R. v . Beatty , 2008 SCC 5 , [2008] 1 S.C.R. 49 , at para. 34 , "If every departure from the civil norm is to be criminalized, [page64] regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy".

Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless. [5] [ 37 ] In this case, I have the actions of the Defendant in the operation of his motor vehicle: 1. He drove at a rate of speed higher than the flow of traffic and likely higher than the speed limit; 2. He made multiple lane changes to maneuver around other vehicles; 3. He quickly entered the curb lane around the same time that Mr. Kumar did; 4. He quickly entered the middle lane around the same time that Mr. Kumar did;

5. He went to pass Mr. Kumar on the right; 6. He drove into Mr. Kumar’s lane without enough space between the vehicles to avoid contacting the front of the Honda with the back of the Acura; 7. He braked aggressively; 8. He yelled and gestured at Mr. Kumar; 9. He revved his engine and accelerated aggressively; 10. He failed to notice the e-bike which was ahead of him in his lane; 11. He failed to notice the red light of the intersection he was approaching; and 12.

He failed to turn out to avoid colliding with the back of the e-bike. [ 38 ] While it is not likely that the Defendant intended to hit the e-bike driven by Mr. Valliant, the act of aggressively accelerating was intentional and volitional. It was dangerous. As was the aggressive lane change in front of the Honda and the aggressive braking ahead of the Honda, which caused other motorists to swerve and honk their horns. [ 39 ] The risks of driving in this manner were plainly obvious. I find that the Defendant’s aggressive lane change into the centre lane caused the minor collision with the Honda.

This may have been accidental, in the sense that frustration and misjudgment may well explain this collision. However, slamming on the brakes ahead of other motorists, even going only 60 kms/hour, when it is unexpected, is extremely dangerous. Revving one’s engine and accelerating rapidly to the point of failing to control one’s vehicle and striking the back of a slowing or stopped vehicle is incredibly dangerous. [ 40 ] I have cautioned myself to consider if there is any other explanation for the collision between the Defendant’s Acura and Mr. Valliant’s e-bike. I have specifically considered whether Mr.

Valliant’s lane change into the middle lane was sudden, unpredictable, or otherwise unforeseen. Given that the reason Mr. Valliant left his lane, to avoid the quickly approaching vehicles swerving to avoid rear- ending the Defendant and/or Mr. Kumar, I am satisfied beyond a reasonable doubt that the only conclusion I can draw on the evidence is that the Defendant intended to slam on his brakes and then he intended to rapidly accelerate. The risk the Defendant posed by rapidly accelerating while his attention was partly focused on gesturing to Mr.

Kumar was significant. [ 41 ] I am not left in any reasonable doubt in this matter. I am satisfied on all of the evidence that the Defendant intentionally engaged in driving conduct which was objectively dangerous given the numerous other users of the highway and his agitated state. His actions constituted a marked departure from the prudence required in the circumstances. CONCLUSION [ 42 ] I find Sabri Chalak guilty of dangerous driving. Released: 20 February 2020

Justice G. Paul Renwick