R. v. Mercer, 2018 NLSC 216

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Mercer , 2018 NLSC 216 Date : October 29, 2018 Docket : 201701G6772 HER MAJESTY THE QUEEN v. STEVEN RYAN MERCER Before: Justice William H. Goodridge Place of Hearing: St. John's, Newfoundland and Labrador Dates of Hearing: October 1, 2, 9, 10, 11, 2018

Summary: The accused was found guilty on count 3 - causing death by criminal negligence while street racing; count 4 - causing bodily harm by criminal negligence while street racing; and count 5 - failure to comply with a probation order. Appearances: Richard L. Deveau Counsel for the Crown Randolph J. Piercey, Q.C. Counsel for the Accused

Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40 , [2000] 2S.C.R. 144; R. v. Griffin, 2009 SCC 28; R. v. Pinsent, 2000 NFCA 26; Hodge's Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227, 168E.R. 1136; R. v. Waite, (SCC), [1989] 1 S.C.R. 1436; R. v. F. (J.), 2008 SCC 60; R. v. Nette, 2001 SCC 78; R. v.Maybin, 2012 SCC 24; R. v. Shilon (2006), (ON CA), 240 C.C.C. (3d) 401, 78 M.V.R. (5th) 5 (Ont. C.A.); R. v.Machado, 2010 ONSC 277; R. v. Menezes (2002), (ON SC), 23 M.V.R. (4th) 185, 50 C.R. (5th) 343 (Ont. Sup. Ct.);R. v. Smith, 2004 NLSCTD 201; R. v.

Rotundo (1993), 20 W.C.B. (2d) 409, 47 M.V.R. (2d) 90 (Ont. C.A.); R. v. Kippax, 2011 ONCA766; R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT GOODRIDGE, J.: INTRODUCTION [1] Steven Mercer, age 32, is accused of multiple criminal offences arising from an alleged street racing incident which endedwith a head-on collision that killed Hannah Thorne, age 18, and injured Gertrude Thorne, age 81. [2] The collision occurred along the two-lane highway known as Route 73 that crosses the New Harbour Barrens.

That highwaylinks the communities of Conception Bay North with communities along the eastern shore of Trinity Bay. The Crown alleges that,during the late afternoon of July 7, 2016, the accused, driving a dark blue Chevrolet Cobalt, was engaged in a high-speed street race withBrian King, driving a Ford F-150 pickup. The two were driving south on Route 80 and then turned left onto Route 73.

It is alleged thatthe two vehicles executed several dangerous passing maneuvers, including in areas where passing was prohibited, in areas where therewas oncoming traffic, and in areas where there was restricted visibility of oncoming traffic due to the road grade and turns. The Crownsays that the fatal collision occurred during one such passing maneuver, with the Cobalt in the lead and the F-150 following bumper-to-bumper.

The Cobalt slipped back into the right hand lane just in time but the F-150 did not, resulting in a head-on collision between theeastbound F-150 and the westbound Thorne vehicle. [3] The accused denies that he was the driver of that other vehicle and denies that his vehicle, a dark blue Cobalt, was involved. [4] The charges filed against the accused as a result of the collision include: • Count 1 --- criminal negligence causing death contrary to

section 220(

b) of the Criminal Code; • Count 2 --- criminal negligence causing bodily harm contrary to

section 221 of the Criminal Code; • Count 3 --- criminal negligence (street racing) causing death contrary to

section 249.2 of the Criminal Code; • Count 4 --- criminal negligence (street racing) causing bodily harm contrary to

section 249.3 of the Criminal Code; and • Count 5 --- failure to comply with a probation order contrary to

section 733.1(1) of the Criminal Code. ISSUE [5] The issue, which was the focus at trial, is whether the Crown has proven beyond a reasonable doubt that the vehicletravelling at high speeds and in tandem with the F-150 was the Cobalt driven by the accused. The secondary issues are whether thedriver was engaged in a street race, competing with Mr. King in the F-150, and whether the manner of driving amounts to criminalnegligence causing death/bodily harm. BURDEN OF PROOF [6] The Crown is required to prove each element of each offence beyond a reasonable doubt. That standard of proof is set out inR. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320 and R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144. [7] The Crown is relying on circumstantial evidence to prove that the accused was the driver and engaged in a street race. Whenrelying on circumstantial evidence the Crown has to satisfy the Court that the only reasonable or rational inference that could be drawnfrom the proven facts was that the accused is guilty, R. v. Griffin, 2009 SCC 28 at paragraph 33 and R. v. Pinsent, 2000 NFCA 26 atparagraph 44. This rule has its origins in Hodge's Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R. 1136, where the Court

held that the circumstances must be consistent with the conclusion of guilt and inconsistent with any other rational conclusion. LAW [8] Criminal negligence is defined in s. 219(1) of the Criminal Code, R.S.C. 1985, c. C-46: Everyone is criminally negligent who(

a) in doing anything … shows wanton or reckless disregard for the lives or safety of other persons. The Crown must prove that theconduct on the part of the accused, which shows a marked and substantial departure from the standard of behaviour expected of areasonably prudent person in the circumstances, caused the death/bodily harm, (R. v. Waite (SCC), [1989] 1 S.C.R.1436 at paragraph 5). [9] The mental element in criminal negligence is the minimal intent of awareness of the prohibited risk or wilful blindness to therisk, (Waite at paragraph 13). [10] In R. v.

F. (J.), 2008 SCC 60 at paragraph 9, Fish, J. explained (in the context of a foster parent failing to provide thenecessities of life) what the Crown was required to prove in order to establish this mental element of criminal negligence: On the count alleging criminal negligence, the Crown was bound to show that the respondent's very same omission represented amarked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstanceswhere the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to thatrisk. [11] The Crown also has to establish that the accused’s criminally negligent act was the factual and legal cause of the subsequentdeath/bodily harm, (R. v.

Nette, 2001 SCC 78 at paragraphs 44-48). Causation in fact is made out if the Crown proves beyond areasonable doubt that the accused's criminally negligent act was a significant contributing cause of the death/bodily harm. In R. v.Maybin, 2012 SCC 24 at paragraph 38, the Court explained that an accused's actions could be found a significant contributing causewhere the acts (manner of driving) and the harm (death/bodily harm) flowed reasonably from the accused’s conduct.

Causation in law ismade out if the Crown proves beyond a reasonable doubt that the death/bodily harm fell well within the reasonably foreseeable risk ofharm created by the accused's criminally negligent act. [12] The criminal negligence while street racing charges have the same essential elements as criminal negligence, plus the streetracing component. Street racing is defined in s. 2 of the Criminal Code as “operating a motor vehicle in a race with at least one othermotor vehicle on a street, road, highway or other public place.” A race with at least one other injects the concept of mutuality.

In R. v.Shilon (2006), (ON CA), 240 C.C.C. (3d) 401, 78 M.V.R. (5th) 5 (Ont. C.A.), the Ontario Court of Appeal discussedthe concept of mutuality in the context of street racing cases: … the concept of mutuality in racing cases is referable to a common intention between the two parties to encourage or incite each otherto participate in what can be viewed as a "joint venture", a common activity in which they are jointly, intentionally involved (i.e., racing)and one which creates a common risk. [13] In R. v.

Machado, 2010 ONSC 277 at paragraph 18, Durno, J. provided a non-exhaustive list of factors to consider in decidingwhether the Crown has established beyond a reasonable doubt that an accused was engaged in a street race: 1) two vehicles travelling at excessive speeds; 2) two vehicles being driven aggressively in tandem; 3) two vehicles in close proximity to each other over a material distance; 4) one vehicle tailgating the other or other vehicles; 5) abrupt and unsafe lane changes; 6) blocking; 7) bold manoeuvres in and out of traffic; 8) jockeying for position; 9) high-risk passing manoeuvres; and 10) acts or gestures between the drivers. [14] In R. v.

Menezes (2002), (ON SC), 23 M.V.R. (4th) 185, 50 C.R. (5th) 343 (Ont. Sup. Ct.) at paragraph 83,Hill, J. discussed the concept of a street race: … the synchronized or in-tandem movements of two motor vehicles marked by high speed and close proximity over a materialdistance, often accompanied by abrupt lane changes, blocking, or bold manoeuvres in and out of traffic, amounts to racingbehaviour even though all the trappings of a drag race may not be present.

Whether by express arrangement or tacit agreement,the joint venture involves mutual incitement and encouragement toward a rivalry or demonstration of motor speed. [15] That is all I have to say about the law. My decision will be based on an application of the law to my findings of fact.

SUMMARY OF EVIDENCE [16] I will now review the highlights of the evidence that I consider more relevant to the issues that I must address.

[ 17 ] The accused gave two voluntary statements to police. In these statements he admitted operating a blue two-door Cobalt with tinted windows, license number HNN-344, on Route 80 and Route 73 during the late afternoon of July 7, 2016. He also admitted that he could see in the rear view mirror as Mr. King’s F-150 veered off the road: “I seen a pickup truck hit the opposite shoulder of the road, and then veer down over the bank”. He initially claimed he was unsure whether it was Mr. King’s truck, but acknowledged, in the later statement of August 27, 2016, that the pickup he saw veer off the road was Mr.

King’s. [1] [ 18 ] Kayla Crocker was driving south on Route 80 during the late afternoon of July 7, 2016, heading toward the intersection with Route 73. She was behind a blue two-door Cobalt, license number HNN-344. Ms. Crocker recorded the licence number and the time of day (5:22 p.m.) because she was intending to report to police the erratic driving that she observed. The Cobalt was swerving from shoulder to shoulder, sometimes leaving the pavement and sending up a cloud of dust. Approximately 3.5 kilometres before the left hand turn off from Route 80 onto Route 73, Ms.

Crocker saw a Ford F-150 coming up quickly from behind her, and then tailgate. Seconds later, the Cobalt, still immediately in front of her, pulled out to pass a string of two or three vehicles. The F-150 immediately followed, passing her and the other two or three vehicles. The Cobalt and the F-150 executed this passing maneuver in tandem against a solid line, on a turn. Both vehicles pulled back in time, but it was a near miss for the F-150 because there was oncoming traffic. Photograph 5 in consent 6B, showing Route 80 just south of the exit for Hopeall, was identified by Ms.

Crocker as the location where the passing occurred. When Ms. Crocker rounded the turn on the road where the passing had occurred, she observed that the Cobalt and the F-150 were still together, one in front of the other, but had substantially increased the separation from her. She saw the two vehicles, in the distance, passing over a hill and out of sight. Photograph 6 in consent 6B shows this long straight stretch and the distant hill.

The vehicles had travelled at very high speeds, relative to her speed, and the other vehicles, after the passing. [ 19 ] Terry Mercer was driving east on Route 73 when he encountered a dark blue car with tinted windows coming up quickly from behind and passing, followed by a pickup truck. This was approximately 3.5 kilometres west of the collision site, or 1.9 kilometres east of the turn off from Route 80. Both vehicles passed him in an area where passing was not permitted and then disappeared over a hill and out of sight. Mr.

Mercer identified photographs 9 and 10 on consent 6B as showing the location where the passing occurred. The solid line to indicate no passing is visible in both photographs. Mr. Mercer travelled a short distance further over the crest of the blind hill, when he next saw the pickup truck. It was rounding the turn in the highway, which was a considerable distance away. The dark blue car was already out of sight. Photograph 11 on consent 6B shows this long straight stretch. The blue car and the pickup were travelling at very high speeds, relative to Mr. Mercer’s vehicle, after passing. Mr.

Mercer estimated his speed at 85-90 kilometres per hour. The posted limit is 80 kilometres per hour. The pickup was the same one that he saw a few minutes later at the collision site. [ 20 ] Randolph Greeley was a back seat passenger in Terry Mercer’s vehicle, and he gave similar evidence. He saw the darkish coloured car pass and then he saw a reddish coloured pickup pass. In his recall, both vehicles were in the westbound lane at the same time during the passing maneuver, and both vehicles were travelling “a fair bit faster” relative to Terry Mercer’s speed.

He recalled that there was a blind hill and a solid line where the passing occurred. Both overtaking vehicles pulled in before the crest of the hill. There was oncoming traffic in this area. [ 21 ] Randell Coombs was a front seat passenger in Terry Mercer’s vehicle. His recall is that a small dark blue car with tinted windows, followed by a burgundy pickup, were “right together” during this passing maneuver. He said that both pulled out together and both passed together.

The pickup was the same one that he saw a few minutes later at the collision site. [ 22 ] Jason Noseworthy was driving east on Route 73 when he encountered an F-150 and a blue Cobalt come up from behind and pass. This was approximately 1.7 kilometres west of the collision site or 3.7 kilometres east of the turn off from Route from Route 80. The F-150 was the lead vehicle and pulled out first, with the Cobalt following seconds later. The pass by both vehicles occurred on a turn in the road where a solid line prohibits passing (see photograph 12 in consent 6B). Mr.

Noseworthy says that he was travelling at 110 to 120 kilometres per hour and both vehicles passed by him at a much higher rate of speed. After passing, but still on the turn within the no passing zone, and approaching a blind hill, Mr. Noseworthy observed the same two vehicles now side-by-side. Photograph 13 in consent 6B shows the area where side-by-side driving was observed. When Mr. Noseworthy crested the hill, beyond the turn, he had a straight sightline to the area where the collision occurred. In the distance, he saw the brake lights of the F-150 come on, and then the collision impact.

He did not notice the Cobalt. [ 23 ] Allan Clarke was driving east on Route 73, at a speed of about 85-95 kilometres per hour. This was a short distance west of the collision site. There was a blue car, followed by a pickup truck, coming up fast from behind. These two vehicles went around him “pretty well bumper to bumper” and passed. He felt it was an unsafe area to pass because “I know they could not see what was coming”. On cross-examination, he agreed that the blue car might have been in a lawful passing zone.

The two vehicles pulled back into the right hand lane behind a grey car that had been in front of Mr. Clarke. They remained in that position briefly, and then pulled out in tandem to pass the grey car: “The truck pulled out right behind the blue car … bumper-to-bumper”. The blue car pulled back into the right hand lane in time but the pickup collided head on with the oncoming Thorne vehicle. The blue car did not stop at the collision scene. The day after the collision Mr. Clarke looked for cars similar to the blue car, in order to identify the make and model.

Based on his memory of the shape of the taillights, he concluded that the blue car that he had observed was a Chevrolet Cobalt. [ 24 ] Selby Parsons was a back seat passenger in Mr. Clarke’s vehicle. Mr. Parsons saw a dark blue car with tinted windows and a Ford F150 “pass us like we were stopped.” He estimated the rate of speed for both to be close to 140 kilometres per hour. The two vehicles were “bumper-to-bumper” during the passing maneuver, and the passing occurred against a solid line indicating a no passing zone. Seconds later the vehicles pulled out again to pass a grey car.

The blue car “just got in” but the Ford F-150 collided head on with the oncoming Thorne vehicle. Mr. Parsons told police in the statement that he gave after the collision that he thought the blue car was a Cobalt, but that he was not certain. [ 25 ] Mark Peach was a back seat passenger in the vehicle driven by Allan Clarke. He was dozing and only opened his eyes after Mr. Clarke called out: “Look at this”. Mr. Peach sat up and saw two cars attempting to overtake a grey car in front of them.

The blue car completed the pass but the pickup was still in the westbound lane and collided with the oncoming Thorne vehicle. [ 26 ] Stephen Mahaney was a back seat passenger in the vehicle driven by Allan Clarke. He had his eyes shut but opened them after Mr. Clarke called out in the seconds before the collision impact. He was alert and watching as the pickup truck popped up into the air on

impact. He saw a dark blue car continue eastward without stopping. [ 27 ] Derrick Greeley was the operator of the grey vehicle that had been in front of Mr. Clarke. He was just a few hundred meters back from the collision site when a small dark coloured car and a Ford pickup truck passed him. He testified that this was a dangerous maneuver because it was a no passing zone and there was oncoming traffic. Mr. Greeley observed that the two vehicles “just got in” to avoid oncoming traffic. Mr.

Greeley estimated that he was travelling at 80 kilometres per hour, and that these two vehicles were going “pretty fast” relative to his speed. During the passing maneuver, he observed that the two vehicles were “close together, real close.” Seconds later the two vehicles pulled out again, in tandem, to pass a white SUV that was in front of Mr. Greeley. The small car completed the pass just in time but the pickup collided head-on with the oncoming Throne vehicle.

The white SUV stopped east of the collision site, but the small car continued without stopping. [ 28 ] George Janes was driving east on Route 73, about 4.6 kilometres east of the collision site or 10 kilometres east of the turn off from Route from Route 73. It was close to 5:30 p.m. on July 7, 2016. He had already passed the collision site but the crash had not occurred at the time that he drove through the area. As he continued eastward he observed in his rearview mirror a dark blue car with tinted windows, either a Chevrolet Cobalt or a Pontiac G6, coming up from behind at high speed.

He feared for his safety and braced for a possible rear-end impact. There was no impact and the car just pulled around and passed. The passing occurred on approach to a hill or grade and, during the passing maneuver, other approaching vehicles came into view. The car slipped back into the right hand lane, avoiding these oncoming vehicles, with 4 or 5 car lengths to spare. When Mr. Janes crested the hill this dark blue car was about 400 to 500 meters further ahead, indicating a relatively high rate of speed to create the separation so quickly. [ 29 ] Melanie Barrett is the former common-law partner of the accused.

During the late afternoon of July 7, 2016, she received a call from the accused requesting that she come home. At the time of the call, sirens were sounding in the community of Spaniard’s Bay. The accused advised Ms. Barrett that he thought he knew what had prompted the sirens. Ms. Barrett immediately drove to her home. The accused was waiting outside. The blue Cobalt was in the driveway. Using her Ford Escape, Ms. Barrett drove, as directed by the accused, until arriving at a backup of vehicles on Route 73. The accused exited the vehicle and Ms. Barrett waited until he returned five minutes later.

The accused advised Ms. Barrett that he had not walked all the way up the collision site, but from a distance, it looked like Mr. King’s F-150 was involved. [ 30 ] The accused made other statements to Ms. Barrett during the drive: • he had been with Mr. King that afternoon in Green’s Harbor to buy a part for boat; • they left in separate vehicles for the drive home; • he had just passed one or two vehicles on Route 73 when he observed in his rear view mirror a truck like Mr.

King’s off the road and on the opposite shoulder; and • he did not stop because he could not quite see what had happened. [ 31 ] After returning to their home in Spaniard’s Bay, the accused called Mr. King’s cellular phone, and learned that one of the victims of the collision was not breathing. [ 32 ] The collision analysis report of RCMP Constable Janet Austin was entered by consent. It includes an analysis of a computer chip in the F-150, which can record the vehicle speed. Five seconds prior to collision the F-150 was travelling at 130 kilometres per hour.

At the instant of impact, the F-150 was traveling at 94 kilometres per hour. Ms. Austin also notes that the road grade in the area of the collision, and the weather conditions, were not a contributing factors to the collision. [ 33 ] RCMP Constable David Bourden investigated the collision and took the photographs and measurements. Route 73 is one lane in each direction with gravel shoulder. The no passing zone for eastbound traffic begins 650 metres west of the collision point. There is a turn in the road east of the collision site.

The landscape and vegetation make it impossible to view the collision site from a rear view mirror once one has travelled more than 700 metres east. The speed limit on Route 73 is 80 kilometres per hour. [ 34 ] The medical report and autopsy confirm the death and bodily injury that resulted from the collision. [ 35 ] The probation order of March 18, 2016 confirms that the accused was under a condition to keep the peace and be of good behavior at the time of this collision.

FINDING OF FACT [ 36 ] Based on the evidence summarized above, I make the following findings of fact. [ 37 ] The accused was driving a blue two-door Chevrolet Cobalt with tinted windows, license number HNN-344, on Route 80 (southbound) and Route 73 (eastbound) during the late afternoon of July 7, 2016. He encountered Mr. King, driving the Ford F-150, while south bound on Route 80. The accused and Mr. King engaged in a street race that began when they first encountered each other on Route 80 and continued to the point of collision on Route 73.

The approximate distance covered during the race was 8 kilometres. [ 38 ] That the accused was the driver of the vehicle engaged in this speed competition with Mr. King is the only reasonable or rational inference to draw from the proven facts. Defence counsel referred to R. v. Smith 2004 NLSCTD 201 and argued that an alternate rational inference is that there was another driver using a similar vehicle. I reject that argument. Mr. Noseworthy and Mr. Clarke observed the make, model and colour of the Cobalt. Mr. Mercer, Mr. Coombs, and Mr. Parsons observed the unique dark tinted windows. Ms.

Crocker observed the make, model, colour and plate number. The accused admits he was driving a dark blue Cobalt with that plate number. The accused admits that he was driving this vehicle when he saw the F-150 veer off the road as he drove away. The two vehicles were together at the start of the race and at the end of the race. Eyewitness observations establish that the two vehicles remained together during the race.

[ 39 ] The eyewitnesses were not all perfect in their observations. For example, on cross-examination, Mr. Noseworthy said the taillights of the Cobalt appeared black to him. That inconsistency does not create a doubt in my mind on identity. Red taillights in several of the photographs appear black due the light reflection; for example, see photographs 2011, 2014, 2019, 2020 on consent 6A and photographs 3, 8, 12, 14, and 19 on consent 6B. [ 40 ] The two vehicles remained in close proximity, one in front of the other, during the race, with the accused most often in the lead position.

There was extremely aggressive and dangerous driving by the accused to maintain his lead. This included illegal passing maneuvers on at least three occasions over the final 3.5 kilometre stretch before collision. The passing maneuvers observed by Mr. Mercer, Mr. R. Greeley, and Mr. Noseworthy occurred on turns or hills where it was not possible for the accused to adequately observe for oncoming traffic.

These passing maneuvers by the accused, all at high speeds, showed wanton and reckless disregard for the safety of other persons, and created an extremely high risk factor for the exact event that occurred, a fatal head-on collision. This was a marked and substantial departure from the standard of behaviour expected of a reasonably prudent person in the circumstances. [ 41 ] The accused and Mr. King were jockeying for lead position during this street race. During the pass around the Mercer vehicle, the accused had the lead; during the pass around the Noseworthy vehicle, Mr.

King had the lead; during the pass around the Clarke vehicle, the accused had regained the lead. The jockeying for lead position included the dangerous side-by-side driving within a no passing zone, and approaching a hill, as observed by Mr. Noseworthy. Either during that side-by-side passing attempt or soon after, the accused regained the lead over Mr. King. [ 42 ] At five seconds prior to collision, which would be less than 180 meters from collision site, the accused was maintaining a rate of speed of at least 130 kilometres per hour in order to hold his lead position.

This finding of fact is based on the speed of the F-150 as measured from the computer chip, and the reality that the accused was maintaining a lead position in front of the F-150. The posted speed limit on Route 73, as I said earlier, is 80 kilometres per hour. [ 43 ] The collision occurred during a dangerous passing manoeuvre in a no passing area. The accused, still in the lead position, narrowly missed a head on collision with the Thorne vehicle as he pulled back into the right hand lane. Mr.

King’s F-150, bumper-to- bumper behind the accused, could not pull right in time and collided head-on with the Throne vehicle. [ 44 ] The accused drove in a manner that showed a wanton and reckless disregard for the safety of other persons. The conduct of the accused was a marked and substantial departure from the standard of behaviour expected of a reasonably prudent person in the circumstances. A head on collision, as occurred, was almost inevitable considering the high speed passing manoeuvres that the accused and Mr. King executed on hills and turns where passing was prohibited.

This high risk for immediate and substantial harm was reasonably foreseeable. [ 45 ] The accused was aware of the collision and elected not to stop. The admissions that the accused gave to police, that he could see in the rear view mirror as Mr. King’s F-150 veered off the road, confirm this fact. He was at the scene while the F-150 was still in motion following collision impact. CAUSATION [ 46 ] Mr. Mercer’s vehicle had no contact with the Thorne vehicle, but his role as a participant in this street race, during a relatively busy traffic time, makes him equally culpable. As stated in paragraph 2 of R. v.

Rotundo (1993), 20 W.C.B. (2d) 409, 47 M.V.R. (2d) 90 (Ont. C.A.) : … the law, consistent with common sense, does not require that there be physical contact between the appellant's car and that of his victims. The appellant's participation in the race, whether viewed objectively or subjectively, created a grave risk of death or injury to other users of the highway. What happened came within the ambit of that risk. [ 47 ] The accused’s criminal negligence, while mutually engaged in a street race with Mr.

King, was a significant and direct cause to the collision that resulted in the tragic death of 18 year old Hannah Thorne and the serious injuries to 81 year old Gertrude Thorne. It does not matter that there was no physical contact between the accused’s vehicle and the Thorne vehicle. There is still factual and legal causation connecting the accused’s actions with the resulting harm. The accused’s continued participation in the street race was a factual cause because it had the effect of egging on Mr. King to maintain high speed and attempt dangerous passing maneuvers.

Legal causation is established because the death and bodily harm in question fell well within the scope of the risk created by the accused as he drove in a criminally negligent manner, (see R. v. Kippax , 2011 ONCA 766 , at paragraph 27 ).

CONCLUSION [48] The vehicle travelling at high speeds in tandem with the F-150 was the Cobalt drivenby the accused. The accused was engaged in a street race, competing with Mr. King and the F-150. The manner of driving during the street race amounts to criminal negligence. The accused’scriminal negligence, while engaged in a street race, caused the death of Hannah Throne andbodily injury to Gertrude Thorne. VERDICT [49] On Count 3, causing the death of Hannah Thorne by criminal negligence while streetracing, I find you guilty.

On Count 4, causing bodily harm to Gertrude Thorne by criminalnegligence while street racing, I find you guilty. On count 5, breach of your probation conditionto keep the peace and be of good behaviour, I find you guilty. [50] Counts 1 and 2 arise from the same delict as counts 3 and 4. In the circumstances Iapply the principles set out in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 andenter a conditional stay for counts 1 and 2. _____________________________ WILLIAM H. GOODRIDGE Justice