R. v. Precup, 2014 ONSC 6652

CITATION : R. v. Precup , 2014 ONSC 6652 COURT FILE NO.: 09-8578 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) John Ramsay, for the Crown ) ) ) - and - ) ) VLAD NICOLAE PRECUP ))))) Michael Crystal, for the Defence )) Heard: November 10, 12-14, 17-20, 24-26, 28, December 1, 2014 (at Ottawa) REASONS FOR JUDGMENT Lalonde J. THE CHARGES [ 1 ] Vlad Nicolae Precup (Mr. Precup) stands charged: 1.

THAT THE SAID Vlad Nicolae Precup on or about the 13 th day of July in the year 2008 at the City of Ottawa in the East Region did operate a motor on Colonel By Drive at Rideau Street in a manner dangerous to the public and thereby cause the death of Mitchell Anderson, contrary to

Section 249 , subsection (4) of the Criminal Code of Canada . 2.

AND FURTHER THAT THE SAID Vlad Nicolae Precup on or about the 13 th day of July in the year 2008 at the City of Ottawa in the East region did, having the care, charge or control of a vehicle on Colonel By Drive at Rideau Street that was involved in an accident with another person and knowing that bodily harm had been caused to another person, namely Mitchell Anderson, involved in the accident, and being reckless as to whether the death of that person resulted from the bodily harm, which death in fact so resulted, with intent to escape civil or criminal liability, fail to stop the vehicle and give his name and address, contrary to

Section 252, subsection (1.3) clause (

b) of the Criminal Code of Canada . OVERVIEW

[ 2 ] The charges against Mr. Precup stem from an incident that occurred when he took a late night drive with his girlfriend, Sz-Lin Yu, (hereinafter called Ms. Lu, as she was so referred to in Canada), in the ByWard Market area in the City of Ottawa. Mr. Precup was stopped at a red light at the intersection of Colonel By Drive and Rideau Street, when an apparently intoxicated pedestrian, Mitchell Anderson (Mr. Anderson), wandered in front of Mr. Precup’s vehicle (a red Mazda RX-8). Mr. Anderson passed his hand over the hood of the car, admiring the car. It appears that Mr.

Anderson stood in front of the car and touched the hood or kissed his hand and petted the hood of the car. Mr. Anderson did not approach the driver, Mr. Precup, or his girlfriend. [ 3 ] Witnesses allege that when the traffic light in front of Mr. Precup turned green, he drove through the intersection at a high rate of speed. Several witnesses, whose testimony at this trial will later be examined, testified that as Mr. Precup left the scene his vehicle fishtailed, the car tires screeched and the car appeared momentarily out of control. [ 4 ] Mr. Anderson was struck by Mr. Precup’s car as Mr.

Precup left the stop line to proceed across the intersection. On impact Mr. Anderson was thrown in the air and fell to the ground striking his head. Tragically Mr. Anderson died in the hospital from his head injuries. Mr. Precup testified that he learned of Mr. Anderson’s death days later. [ 5 ] The police interviewed Mr. Precup during their investigation as there were few Mazda RX-8 vehicles in the Ottawa area and fewer equipped with a sunroof and spoiler as was Mr. Precup’s vehicle. Mr.

Precup was interviewed twice and twice he denied his involvement, with several months separating the interviews. [ 6 ] Finally during a third interview, given five months after the collision, Mr. Precup acknowledged for the first time that he was the driver on the night in question, and that his girlfriend Ms. Lu was also present and seated in the car as a passenger. Mr. Precup acknowledged having seen Mr. Anderson and maintained that he was worried because his behavior did not seem right. Mr. Precup said that Mr. Anderson moved away from the car after a few moments and out of his sight.

It was only after the light turned green that Mr. Precup moved his car forward through the intersection. ADMISSIONS [ 7 ] The only admissions are the date of the accident, namely July 13, 2008, and that this Court has jurisdiction to hear this case with a Judge alone election. ISSUES

(1) Is Mr. Precup guilty of dangerous driving and of leaving the scene of the accident? SUB-ISSUES

(2) Mr. Precup alleged that he drove off in self-defence as he feared Mr. Anderson. Is there an air of reality to Mr. Precup’s defence of self-defence?

(3) Assuming that there is an air of reality to Mr. Precup’s defence of self-defence; does the new provision of the Criminal Code apply retrospectively to cover the circumstances of this incident? THE ESSENTIAL ELEMENTS OF THE CHARGE

(1) Did Mr. Precup operate the Mazda RX-8 on July 13, 2008, that caused the incident at the intersection of Rideau Street and Colonel By Drive?

(2) If so, did Mr. Precup operate his vehicle in a dangerous manner?

(3) Did Mr. Precup’s operation of this vehicle cause Mr. Anderson’s death? First Issue: Identity [ 8 ] Detective Constable Garneau (D.C. Garneau) has been with the Ottawa Police Services for 15 years. He was the lead investigator of the July 13, 2008, incident that resulted in Mr. Anderson’s death. D.C. Garneau remained lead investigator until July 30, 2008, when he was transferred to another police unit and was replaced by Detective Brian Dodds. [ 9 ] D.C. Garneau recalled that his investigation was concerned with finding the owner of a Mazda RX-8.

Interviews with the makers of the Mazda RX-8 led to the fact that there were 49 such vehicles in the Ottawa area out of 101 such vehicles manufactured. D.C. Garneau was informed by witnesses at the scene of the incident that a red Mazda RX-8 vehicle equipped with a sunroof and a spoiler had been involved in the incident. According to D.C. Garneau that description reduced the number of such vehicles from 49 to 12 vehicles in the Ottawa area. Witnesses at the scene of the accident also told D.C. Garneau that the driver of the Mazda RX-8 was between 20 to 30 years of age. This narrowed D.C.

Garneau’s search to five owners and Mr. Precup was one of them. [ 10 ] A media release, dated July 24, 2008, concerning the incident and identifying the vehicle involved as a red Mazda RX-8, was filed at the trial as Exhibit 22. Video surveillance in the area for that same evening and at a time shortly after the incident was filed as Exhibit 23. Exhibit 23 captured a red Mazda RX-8 vehicle on video in the immediate area. [ 11 ] Anne Lalonde (Ms. Lalonde) a 33-year-old clerk who had worked an evening shift on July 13, 2008, at the Ottawa Hospital, was returning to her home.

She recognized the vehicle, shown on Exhibit 1 as the red Mazda RX-8, as having followed her northbound on Colonel By Drive to the red light prior to entering the Rideau Street intersection. Shortly before the Rideau Street intersection, Colonel

By Drive northbound splits in two lanes and Ms. Lalonde said that she stopped in the fast lane while the red Mazda RX-8 stopped to the right of her at the curb lane. She testified that there were two occupants in the red Mazda RX-8 vehicle and that it was 11:00 p.m. She also said that she got in touch with the police after seeing a report of a hit and run incident the next morning. [ 12 ] Brian Hogan is 32 years of age and is a financial planner. On July 13, 2008, he was working at his second job as a bartender in Ottawa. Of more importance, he resided at 840 Springland Drive, Ottawa. Mr.

Hogan’s own vehicle was often parked nose to nose with a red Mazda RX-8 in the garage provided to tenants at 840 Springland Drive. After work on July 13, 2008, he went to change at his apartment and upon leaving he noticed the red Mazda RX-8 pulling out in front of him and going down Colonel By Drive. He stopped for a short time to get money out of his bank and as he came near the intersection of Colonel By Drive and Rideau Street an officer caused him to detour, preventing him from getting close to the intersection. [ 13 ] Mr.

Hogan testified that three days after July 13, 2008, he had read in the newspaper that police were looking for a red Mazda RX-8. At the same time he noticed that, the day after the incident, on July 14, 2008, and thereafter, there was no sign of the red Mazda RX-8 in the parking garage at 840 Springland Drive. Mr. Hogan then called Crime Stoppers and left a message. On July 21, 2008, Mr. Hogan left for a two-month trip to Alaska. On his return, Mr. Hogan was contacted by Detective Dodds. Mr.

Hogan testified that from July 14, 2008 to July 21, 2008, he did not see the red Mazda RX-8 parked at 840 Springland Drive. [ 14 ] Brandon O’Brien a mechanic from the City of Toronto was holidaying in Ottawa with his girlfriend Karen Diggin. The car they travelled in was stopped in the left hand lane of the two westbound lanes of Rideau Street at the intersection of Colonel By Drive at 11:00 p.m. on July 13, 2008. Their attention was drawn to a red Mazda RX-8 travelling through Rideau Street from Colonel By Drive to its continuation on Sussex Drive.

He also recalled that a red Sunfire vehicle had crossed the intersection onto Sussex Drive. He said that the Sunfire was closest to him and the red Mazda RX-8 was in the far lane from him. [ 15 ] Brian Leslie is a programmer with the Federal Government. He lives in the ByWard Market and at 11:00 p.m. on July 13, 2008, he was walking his two dogs on George Street and was standing at the north east corner of Sussex Drive waiting to cross the street to the west side.

As he was waiting for the light to change, his attention was drawn to a red Mazda RX-8 coming towards him and his dogs because of the noise the vehicle made and the speed at which the vehicle travelled. The Police Interviews [ 16 ] Ms. Lu, Mr. Precup’s girlfriend was interviewed on Monday, August 11, 2008, and she denied her involvement and Mr. Precup’s involvement. The audio disk was filed as Exhibit 7. [ 17 ] Mr. Precup gave a video statement to police on July 31, 2008. He confirmed that he resided at 840 Springland Drive, apartment 438, in Ottawa with his 27 year old girlfriend from Taiwan.

He said that July 13, 2008, was a birthday for him and that he had spent it at his parents’ place in Metcalfe, Ontario and then had gone home after the party. [ 18 ] Mr. Precup told police that his Mazda RX-8 vehicle had a clutch problem from the first day he had bought it and that he had taken his vehicle during the past two weeks to a mechanic friend, Fernando Richer, in Carlsbad Springs, which was half an hour south east of Ottawa for repairs. Mr. Precup stated that although he had a hard time doing it, he drove his car to Carlsbad Springs.

He also said after losing his job he had filed for bankruptcy and asked the company that had financed his car to repossess it. [ 19 ] Mr. Precup gave two written consents to police: the first to allow police to speak with Fernando Richer, his mechanic and the second to obtain financial records from Americredit. During that interview Mr. Precup denied his involvement with the incident that took Mr. Anderson’s life. D.C. Garneau was told by Fernando Richer that Mr. Precup’s red Mazda RX-8 had arrived at his garage on a flatbed truck and had not been driven there as stated by Mr. Precup. [ 20 ] Both Mr.

Precup and Ms. Lu gave video statements to the police on November 26, 2008, and for the second time they both denied any involvement with Mr. Anderson’s death. [ 21 ] Mr. Precup and Ms. Lu gave a video statement on December 15, 2008. Mr. Precup had requested the interview. He confirmed that both he and Ms. Lu had been at the scene of the incident at 11:00 p.m. on July13, 2008, and that they had lied to police. Mr. Precup feared his parents and asked the police not to let them know about his involvement. Ms. Lu, for her part said that she lied to the police as she was afraid that she would lose her job.

She told the police that she hoped her name would not be revealed in their investigation. Conclusion on Identity [ 22 ] On the first issue, Vlad Nicolae Precup is the person who was driving the red Mazda RX-8 at 11:00 p.m. on July 13, 2008. This conclusion is based on Mr. Precup’s admission to the police on December 15, 2008, and was confirmed on that same date by Ms. Lu. The red Mazda RX-8 identified by Anne Lalonde, Brian Hogan, Brandon O’Brien and Brian Leslie was the vehicle involved in Mr. Anderson’s death and was owned and driven by Mr. Precup.

The evidence given by these witnesses is reliable and placed Mr. Precup’s vehicle at the scene of the incident involving Mr. Anderson’s death. DANGEROUS DRIVING CAUSING DEATH The Law [ 23 ] I have taken the test as to what constitutes dangerous driving from R. v. Roy , 2012 SCC 26 , [2012] 2 S.C.R. 60 [ Roy ]. Cromwell J. wrote, at paras 1-2, the following about the components of dangerous driving: Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison.

Like all criminal offences, 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 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, 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. [ 24 ] Cromwell J. continued to expound on the essential elements of dangerous driving at paras. 28, 32, 35 and 38 to 41: In Beatty , the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles.

In brief, the Court decided as follows. The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place ( s. 249(1) (

a) of the Criminal Code ). The mens rea is that the degree of care exercised by the accused’s was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances ( Beatty , at para. 43 ). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm.

While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). Beatty consolidated and clarified this line of jurisprudence. The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment.

As Charron J. put it on behalf of the majority, at paras. 34-35: If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty. In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law.

The extent of the driver’s liability depends not on the degree of negligence, but on the amount of damage done. Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages. In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.

To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving. The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement.

The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).

(5) Proof of the “Marked Departure” Fault Element Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused’s actual state of mind (para. 43).

Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving.

The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty , at para. 37 .

In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited. The Evidence of Ms. Lalonde [ 25 ] Anne Lalonde had Mr. Precup’s vehicle to her right at the two lane intersection of Colonel By Drive and Rideau Street. Both vehicles were waiting for a green light to cross the intersection and proceed northbound on Sussex Drive.

She testified that there were two pedestrians standing on the sidewalk adjacent to the two lanes of traffic. One pedestrian decided to walk in front of the Mazda RX-8 vehicle by leaving the crosswalk (going from the east to west across Colonel By Drive) to walk towards the stop line for cars. He then placed his hands on the red Mazda RX-8 vehicle. She stated that the pedestrian’s left hand touched the hood of the car just above the emblem of the car located on the front center of the vehicle. The pedestrian slid his hand across the hood towards the headlight on the driver’s side. [ 26 ] Ms.

Lalonde recalled that when the light turned green she did not proceed immediately, and stuck around “as something was odd” concerning the pedestrian. She then decided to cross the intersection in case the pedestrian came to her side. She recalled that as the doors of her car were unlocked, she decided to lock her car doors. Next she testified that she heard the screeching of tires and that the red Mazda RX-8 passed her on her left at a speed she estimated to be probably 70 km per hour.

She watched the vehicle in question turn at great speed and heard tires screeching at the first intersection on Sussex Drive, namely George Street. [ 27 ] During cross-examination she agreed that the pedestrian she had seen was shabbily dressed and that he could be described as a “rubby”. She stated that the pedestrian intentionally walked across Colonel By Drive when the northbound vehicles had a green light to proceed. She also stated that the pedestrian’s behaviour was erratic and that it scared her.

She stated that the last time she saw the pedestrian was when he was standing in front of the driver’s headlight, and facing the driver. She claimed that the pedestrian was “not wobbly at all.” [ 28 ] Ms. Lalonde testified that she heard a screeching noise come from the red Mazda RX-8 when it crossed the intersection of Rideau Street from the stop line on Colonel By Drive to a location halfway to the George Street and Sussex Drive intersection. The noise was not sustained but intermittent. [ 29 ] On re-examination, Ms. Lalonde stated that after locking her doors, if Mr.

Anderson had approached her vehicle, she would not have proceeded, she would have screamed at him to get out of the way and would have called the police. The Evidence of Mr. Townsend [ 30 ] A transcript of Paul Townsend’s (Mr. Townsend) evidence taken at the preliminary inquiry was filed as an exhibit. The statement was taken by police on July 14, 2008. Mr. Townsend has since died. The statement confirmed that both he and Mr. Anderson had been drinking that evening prior to the incident. He stated that Mazda RX-8 was in the inside or curb lane and that he had tried unsuccessfully to stop Mr.

Anderson from walking in front of the cars. He recalled that Mr. Anderson was facing the cars and was still talking to him. He identified the vehicle as a red Mazda RX-8. He confirmed that when the light turned green, the red Mazda RX-8 sped off so fast that the tires squealed. He stated that he saw the car hit his friend, Mr. Anderson, and that Mr. Anderson flew about 15 to 20 feet through the air, hitting his head as he landed. [ 31 ] Mr. Townsend stated that his friend Mr. Anderson stood in front of the red Mazda RX-8, and the driver must have intended to hit him. [ 32 ] Mr.

Townsend testified at the preliminary hearing on this matter and was cross-examined. He described Mr. Precup’s driving from hearing as a “throaty engine with an exhaust note and a squealing of tires” (Page 62 of the transcript). During cross-examination Mr. Townsend admitted that Mr. Anderson and he were more than drinking buddies having known each other for two years. He admitted that he had a long criminal record, including ten entries showing convictions for impaired driving. He claimed that neither he nor Mr. Anderson were impaired at the time of the incident. After the red Mazda RX-8 car hit Mr.

Anderson, he said that the vehicle was doing 100 km per hour as it sped past the intersection and that it passed the other car that had been next to it at the stop line of the intersection. The Evidence of Mr. Hogan [ 33 ] Brian Hogan’s evidence (also a tenant at 840 Springland Drive) did not give particulars worth noting concerning Mr. Precup’s driving. Immediately prior to the incident he had been following Mr. Precup on Colonel By Drive.

The Evidence of Mr. O’Brien and Ms. Diggin [ 34 ] Brandon O’Brien and Karen Diggin gave evidence relating to Mr. Precup’s driving. They were positioned on the opposite side of the same intersection, stopped at a red light waiting to proceed west on Rideau Street. Mr. O’Brien testified that his car window was rolled down and that the revving of the red Mazda RX-8’s engine drew his attention to his left. He described Mr. Precup’s vehicle as fishtailing on the crosswalk when the light turned green for Mr. Precup.

He stated that as a mechanic, “the dropping of the clutch would cause the tires to screech.” That is not the normal operation of a vehicle. The fishtailing occurred between the crosswalks on Colonel By Drive to the middle of the intersection on Rideau Street. He recalled that a red Sunfire had crossed the intersection three to five seconds before at what he considered a normal speed. [ 35 ] Mr. O’Brien stated that he lost sight of the red Mazda RX-8 some 50 to 60 feet north of the intersection of Rideau Street and Colonel By Drive.

He then noticed somebody on the ground and went to that person to offer assistance. He stated that there were pedestrians on the sidewalk next to the Sunfire vehicle. As a mechanic familiar with Mazda RX-8 vehicles, he testified that such a vehicle can attain 60 to 70 km per hour in the first gear. He estimated that the red Mazda RX-8 was traveling 50 to 60 km in first gear across the intersection. He also stated that it was not possible that the revving of the engine he heard could be explained by the vehicle passing from first gear to second gear. [ 36 ] During cross-examination, Mr.

O’Brien stated that it would be difficult to do “rev- matching” on takeoff from a stopped position. Mr. O’Brien agreed that if the vehicle had reached a certain speed it would jerk or would fishtail, but as the red Mazda RX-8 is a rear- wheel powered vehicle the “rev-matching” would make a different sound. He refused to agree to the suggestion that the vehicle was “rev-matching” at the time of the incident. On re-examination, Mr. O’Brien stated that “rev-matching” could only be done when shifting gears and not when a vehicle starts from a stand still position.

Such a vehicle doing “rev-matching” would make loud banging sounds that he did not hear. [ 37 ] Karen Diggin, a passenger in Mr. O’Brien’s car remembered the squealing of tires just prior to seeing the red Mazda RX-8 shoot through the intersection towards Sussex Drive. The driver of the car was proceeding “as fast as he could” through the intersection compared to the deeper red car she saw closer to her, that went through the intersection at a speed she estimated to be between 30 to 40 km per hour. She recalled that there were pedestrians around the scene. The Evidence of Ms.

Mountjoy [ 38 ] At the time of the incident, Kathryn Mountjoy was a 31 year old civil servant proceeding to the ByWard Market on July 13, 2008. She was stopped in the curb lane at the intersection of Colonel By Drive and Rideau Street. There was one car ahead of her and to the left, and the red Mazda RX-8 was in front of her. She recalled that a pedestrian was crossing in front of the red Mazda RX-8 while their vehicles were stopped waiting for a green light and that the pedestrian had made it to the other lane before he had doubled back.

All this took place while the pedestrian had a “do not cross” light that was flashing. She could only see the top half of the pedestrian but she stated that she saw the pedestrian stand in front of the headlight on the driver’s side of the red Mazda RX-8. She could not see the victim’s legs. [ 39 ] Once the traffic light turned green for the northbound traffic on Colonel By Drive, she heard the tires of the red Mazda RX-8 squealing and the pedestrian took a step back. The red Mazda RX-8’s accelerated “very very quickly.” Going through the intersection the car travelled very fast.

She said that she had an ominous feeling that something bad would happen, and that the pedestrian would get hurt. [ 40 ] Ms. Mountjoy stated that she was not afraid of the pedestrian and that his crossing of the street at that time was a bad idea. She then described the pedestrian flying through the air in a counter clockwise spin. During the cross-examination, she stated that there were more pedestrians on the sidewalk than Mr. Anderson and Mr. Townsend. She also reiterated that “she never felt [concerned] for her safety” and stated “I wasn’t frightened at all.” The Evidence of Mr.

Leslie [ 41 ] Brian Leslie waited at the intersection of George Street and Sussex Drive with his two dogs and testified that he heard a red Mazda RX-8 coming fast towards him and that it was loud. He stated that he thought the car would not stop for the red light and so he took a step back from the curb with his dogs. He testified that he was part of the Motorsport Car Club of Ottawa and that he had his own car. [ 42 ] Mr.

Leslie described the red Mazda RX-8 as travelling “exceptionally out of norm”, using a prolonged sustained rate of speed, and that it went through a red light as it turned right on George Street from Sussex Drive. There were no pedestrians at the intersection and the red Mazda RX-8’s tires squealed a bit. He testified that the red Mazda RX-8 took the corner as fast as possible. Mr. Leslie felt that the red Mazda RX-8 was being driven as aggressively as possible. The Evidence of Mr. Teather [ 43 ] David Teather is a 25 year old car salesman.

He was walking home on the night of the incident and was standing on the north east corner of Rideau Street at Sussex Drive when he heard the screeching of tires. He saw a red Mazda RX-8 fishtail as it cleared the intersection proceeding north on Sussex Drive. He said that he jumped back a couple of feet as he saw the red Mazda RX-8 approaching and felt it was out of control. During cross-examination, he agreed that as a car salesman he was familiar with the Mazda RX-8 vehicle, and that that it had rear-wheel drive, which helped the vehicle to fishtail.

The Evidence of Detective Dodds [ 44 ] Detective Dodds has been a police officer for 29 years. He recalled that during the July 31, 2008 and November 26, 2008,

investigative interviews both Ms. Lu and Mr. Precup denied all involvement in Mr. Anderson’s death. However, during the December 15, 2008, interview both Ms. Lu and Mr. Precup, who had requested the interview, changed their stories. Ms. Lu admitted that when Mr. Anderson moved his hand across the hood of Mr. Precup’s car, Mr. Precup got mad. She admitted that she did not own up to the incident prior to December 15, 2008, as she felt that Mr. Precup had not hit Mr. Anderson. She stated that Mr.

Precup was angry and that was why he had driven fast from the start line at the intersection and down Sussex Drive to George Street, but that he then slowed down. She acknowledged that he was upset, that he had a temper and had been angry at the scene of the incident. [ 45 ] That same day, December 15, 2008, Mr. Precup also volunteered for an interview. Detective Dodds reviewed the transcript of the interview with Mr. Precup as he had done earlier with the transcript of Ms. Lu’s interview. Mr. Precup admitted to Detective Dodds that he had panicked, and Detective Dodds asked why he had been afraid and panicked.

Mr. Precup stated that he did not remember what had caused the tires of his car to squeal upon leaving the scene of the incident. He stated also that he wanted “to get out of there because the guy was weird.” He disagreed with the suggestion that he had a bad temper and that he was upset because Mr. Anderson had touched his car. Mr. Precup then referred to the incident as an accident and insisted that he had not seen Mr. Anderson after he had touched his car. Mr. Precup explained that he had not come forward because:

a) he feared his parents’ reaction;

b) he did not trust the police to believe his version of the incident; and,

c) he did not think his car had touched Mr. Anderson. The Evidence of Mr. Vlad Nicolae Precup [ 46 ] Mr. Precup is now 38 years of age and he testified that after high school he graduated with a technical College degree. He obtained several jobs and said that he was working as a truck driver when he quit in June of 2008 due to health problems and the 15 hour days he had to put in at work. He also said that at the date of the incident he was living with Ms. Lu at 840 Springland Drive in Ottawa. [ 47 ] The Mazda RX-8 had been purchased three or four months prior to the incident, and Mr.

Precup testified that the car had a clutch problem from the time he had purchased it. One week after the incident, he called Americredit and told his finance company to repossess the Mazda RX-8 as he had no money to make his $400 monthly car payment and pay for the repairs to the car. At that time, his car was at Fernando Richer’s garage in Carlsbad Springs for repairs to the clutch. He maintained that he drove his car there. After a couple of days, Mr. Richer, the mechanic told him that it would cost over $1,000 to repair the car.

He testified that since he no longer had a job he could not afford the expensive repairs. [ 48 ] Mr. Precup recalled the activities that had taken place when he celebrated his birthday on July 13, 2008, the date of the incident. After a full day of activities he left his parents’ place in Metcalfe, Ontario where he had dinner and a birthday celebration with Ms. Lu and his parents. He then decided to go for a drive to the ByWard Market. He described how Mr. Anderson left the sidewalk, at the intersection of Rideau Street with Colonel By Drive, where he had stopped for a red light. Mr.

Anderson walked diagonally to his car. He said that Mr. Anderson touched the hood of his car making gestures with his hands. He said he wondered what Mr. Anderson wanted. Then Mr. Anderson walked to the side of his car and banged the hood of his car with his hand. Mr. Precup testified that as his traffic light had turned green, he left. He recalled that when he waited for the light to change, his car was in the curb side lane. He said that his car was functioning okay at that time. [ 49 ] Mr. Precup described Mr.

Anderson as looking rough, appearing dangerous, having long hair, and pulling up his pants as he looked towards Mr. Precup’s car. Mr. Precup said that Mr. Anderson had a friend who was standing on the sidewalk at the time that Mr. Anderson walked into the intersection. When he walked into the intersection Mr. Anderson “waived off” his friend, as the friend had been talking to him. Mr. Precup testified that at first Mr. Anderson stood in front of the car, kissing his hand and touching the car, and then moved to stand next to the car’s front wheel on the driver’s side. Mr. Precup testified that he thought Mr.

Anderson was going to come to the driver’s door of the car, but could not say what had made him think that. [ 50 ] Mr. Precup recalled that there was a car next to him in the median lane that left sooner than he did to cross the intersection. Mr. Precup stated that Mr. Anderson banged the hood of his car but not remember if Mr. Anderson had banged the hood of the car with his hand or his fist. Mr. Precup recalled that his car window was halfway up, that he did not say anything to Mr. Anderson and that he did not honk the horn at Mr. Anderson. Mr.

Precup stated that he had had no similar experience in the past. [ 51 ] Mr. Precup testified that he does not remember much as to what had happened when he set his car in motion. He recalled that he revved up the engine of his car and proceeded through the intersection “not very fast” and he also said “a bit quicker and I didn’t leave skid marks.” He stated that he did not know if his tires squealed on takeoff. [ 52 ] Mr. Precup testified that there was no collision with Mr. Anderson when the traffic light turned green and Mr. Precup put his car in motion.

He did not see a collision involving his car and he said that looking back through his rear view mirror he did not see Mr. Anderson. He recalled passing Ms. Lalonde’s car going through the intersection. He estimated his speed at 60 km per hour. He testified that the last time he saw Mr. Anderson, Mr. Anderson was three to four feet away from his car. He recalled that his car “fishtailed a bit” when he set his car in motion. [ 53 ] It was only three or four days after the July 13, 2008, incident that Mr. Precup heard on the radio that Mr.

Anderson had been killed at the intersection of Rideau Street and Colonel By Drive on July 13, 2008. The announcement also stated that the Ottawa Police were looking for a red Mazda RX-8 vehicle. Mr. Precup said that although he was worried, he had not gone to the Ottawa Police station because he was afraid that the police would find him at fault. He did not mention the incident to his parents as they would be angry if he was a suspect. [ 54 ] Mr. Precup acknowledged denying any involvement in the incident to the Ottawa police officers during the interviews of July 31, 2008 and November 26, 2008.

He testified that on December 15, 2008, he came forward voluntarily and told the police that “yes, it was his car that was present at the intersection of Rideau Street and Colonel By Drive at 11:00 p.m. on July 13, 2008”, but maintained that he had not known about Mr. Anderson’s collision that evening. He said that he had not hit Mr. Anderson with his car and that he had not entertained doubts about that fact. [ 55 ] During cross-examination, Mr. Precup admitted that he lied to police during the two investigative interviews on July 31, 2008 and November 26, 2008.

He also said that he was “worrying more than lying.” To clarify his statement with Crown counsel, he agreed

that to lie is to not tell the truth about what had happened on the evening of July 13, 2008. [ 56 ] Mr. Precup was emphatic that he did not kill Mr. Anderson and that he did not know what happened to Mr. Anderson once he set his car in motion and left the intersection. Mr. Precup reiterated that he drove “a bit quicker” and not fast on entering the intersection from a stopped position, that his car fishtailed “a bit”, and that he could not remember if the tires of his car squealed when he had set his car in motion. [ 57 ] Mr. Precup stated that Mr.

Anderson had been near the headlight on the driver’s side of his car when he engaged the clutch and took off through the intersection. When asked why he had not told police about Mr. Anderson’s banging on the hood of his car prior to this trial, Mr. Precup said that he had held back this information as he wanted to speak to a lawyer first. Mr. Precup was reminded during cross-examination that he had had 150 days to voluntarily give a statement to police from the time of the incident. [ 58 ] During the police interviews, Mr. Precup recalled that Ms. Lu was asked whether he had hit Mr.

Anderson and that she had said that he had not hit him. Mr. Precup recalled that both of them had discussed Mr. Anderson banging the hood of the car. Mr. Precup said that they were in shock. He stated further that at the scene of the incident he: had not rolled up his window; had not honked; and, had not yelled at Mr. Anderson. When asked if Mr. Anderson had said something to Mr. Precup, Mr. Precup said the he could not remember and even if Mr. Anderson had tried to talk to him, the music in his car was loud enough to prevent him from hearing what would have been said. [ 59 ] Mr.

Precup denied that he was angry and stated that the banging on the hood of his car made him worried but not angry. Mr. Precup agreed that he misled police when talking about there being “a blond in the car” nearby at the time of the accident, and about the letter “C” shown on a new Mazda and identified in videos, because as he put it “it was not my fault.” [ 60 ] Mr. Precup identified the “scary things” done by Mr. Anderson as: ▪ touching the car; ▪ pulling up his pants twice; ▪ gesturing and making weird moves. [ 61 ] Mr.

Precup was reminded that through three police interviews, this trial was the first time that he used the word “scared.” Mr. Precup said that prior to this day when he used “weird” to describe the incident he meant “scary.” [ 62 ] Mr. Precup denied that he had “blown” the red light at the corner of Sussex Drive and George Street. He said that he had slowed down. He was reminded that witnesses had estimated his speed to be between 70 to 80 km per hour.

While testifying, he denied leaving Colonel By Drive at the speed estimated by witnesses during trial, but then later agreed with 70 km per hour estimate and to going about 30 to 40 km per hour as he turned right on George Street. Mr. Precup also stated that on taking off from Colonel By Drive his car did not leave skid marks on the pavement as he had checked this in his rear view mirror. [ 63 ] During cross-examination, Mr. Precup said that he had checked his car twice for marks following a radio report he had heard concerning the hit and run that killed Mr. Anderson. He stated that he found no marks.

He testified that the reason he had called Americredit to repossess his car was not to hide evidence from police but because he could no longer afford to make car payments. [ 64 ] Mr. Precup was asked if he could see Mr. Anderson after putting his car in motion at the intersection. Mr. Precup said the he could not remember. Mr. Precup recalled that Mr. Anderson was bent over when banging on the hood of his car, and was standing next to the car’s front tire on the driver’s side. Mr Precup testified that as he put his car in motion Mr. Anderson moved over and when asked how Mr. Anderson moved Mr.

Precup replied “he just did.” When Mr. Precup was asked why he had not mentioned Mr. Anderson’s actions of banging on the hood of his car to Detective Dodds, he replied that he had wanted to speak to a lawyer first. Mr. Precup drew the point where Mr. Anderson was standing when banging on the hood and that drawing is filed as Exhibit 29. [ 65 ] It was put to Mr. Precup that it is a known fact that homeless persons in the ByWard Market frequently ask for money at intersections when cars are stopped at a red traffic light. Mr. Precup agreed that he had been aware of this fact.

When asked whether or not he had experienced homeless persons acting weird before he said no. [ 66 ] During his December 15, 2008, interview with Detective Dodds, Mr. Precup was expressly asked whether Mr. Anderson had pounded the hood of his car with his fists and Mr. Precup had replied “No, No” (Page 37). Further along in the interview with Detective Dodds (page 59), Mr. Precup again denied that Mr. Anderson had pounded his car with his fists. [ 67 ] When reminded that Ms. Lu had told Detective Dodds on December 15, 2008, that he was angry, Mr.

Precup said that angry is different than being upset and that he had not been angry. Mr. Precup maintained that he lied to police because he feared his parents’ reaction. He agreed that he also wanted to evade responsibility because Mr. Anderson’s death was not his fault. [ 68 ] Mr. Precup was asked why he had told Detective Dodds during the third interview that he had panicked (Page 63). He replied that people use strong words that they don’t mean. [ 69 ] The car was released to Americredit on July 18, 2008. Mr.

Precup was asked why he was in such a hurry to get rid of a car that he loved and had made sacrifices to keep. Mr. Precup replied that the vehicle had cost him $18,000 and he was paying 17.5 % interest on his loan. His monthly payments were $400. He also stated that he also paid $750 in rent and that his girlfriend Ms. Lu paid for groceries. Mr. Precup was reminded during cross-examination that two days after he heard the news of Mr. Anderson’s death he decided to get rid of the car against Americredit’s advice that he had better options open to him than just surrendering the car. Mr.

Precup replied that he surrendered his car because he had lost his job and could no longer make the payments.

[ 70 ] Mr. Precup testified that he had discussed the incident with Ms. Lu three days after hearing of Mr. Anderson’s death on the radio. He recalled that he had checked his car for damage after hearing about the collision on the radio. [ 71 ] This was not the first time that a similar incident had happened to Mr. Precup. Contrary to his earlier denial, Mr. Precup stated that in a prior incident someone had raced after him and stopped in front of his vehicle. When Mr. Precup left his vehicle to confront the person who challenged him, the individual smacked him in the neck. Mr.

Precup stated that the previous incident had occurred 20 years ago when he was 19 years of age. He admitted that he had not called police at that time, nor reacted in any manner even though Mr. Precup’s assailant was similar in size to him. [ 72 ] After putting his car in motion on July 13, 2008, and proceeding across the intersection, Mr. Precup said that he checked his rear view mirror and could not see Mr. Anderson (Pages 79 to 83). [ 73 ] Mr. Precup agreed that he had asked Ms. Lu not to tell the police that they both had been involved in the incident surrounding Mr. Anderson’s death.

He testified that he had not told police about his involvement because he was afraid “sometimes police make mistakes...We all do.” He agreed that he was evading police but it was because he had done nothing wrong. [ 74 ] Mr. Precup testified that it was a blond woman who was driving the car next to him who ran over Mr. Anderson. Mr. Precup asked to be placed under the witness protection program in order to answer the questions. Then when asked by myself if he felt medically fit to continue, he stated that he was fit and did not need protection. He testified that Kathryn Mountjoy ran over Mr. Anderson.

He said that Mr. Anderson left from the driver’s side walking towards Anne Lalonde’s vehicle and was rolled over by Ms. Mountjoy’s vehicle. Mr. Precup testified that he had looked in the rear view mirror and Ms. Lu had looked back and then they had exchanged a look. They both drove home without saying anything to each other. [ 75 ] During re-examination, Mr. Precup agreed that Dr. Christopher Milroy had not given any evidence concerning Mr. Anderson’s injuries that could lead him to think Mr. Anderson had been run over by a car. However, Mr.

Precup maintained that immediately after his car had ceased to fishtail he had seen Ms. Mountjoy’s car roll over Mr. Anderson. He said that Ms. Mountjoy’s car had been the car immediately behind him at the traffic light at the intersection. Mr. Precup agreed that he had this information in mind during the three interviews he gave to the police. He had told Ms. Lu, his lawyer and his probation officer about Ms. Mountjoy’s involvement. Dr. Milroy’s Evidence on Fight or Flight [ 76 ] Dr.

Milroy testified for a second time in this trial, called by the accused to give expert evidence on the physiological theory of fight or flight. Dr. Milroy had been qualified earlier in the proceeding as an expert in forensic pathology. He explained that he had written an

article on fight or flight and that it formed a basic teaching of physiology in medical school. [ 77 ] The sympathetic alarm response to stress on the nervous system is well-known in forensic pathology. It is seen on people who die from heart disease as a result of physiological stress. Fight or flight can also play a role in fights between people and it is within the general knowledge of a physician. Following a voir dire , Dr. Milroy was qualified to give evidence on the subject. [ 78 ] A sympathetic nervous system is one that is not under our control and is affected by some of our actions. Dr.

Milroy explained that taking drugs for instance, can result in internal stimulants being released by the body that increase strength and the level of energy to the muscles, and that can make a person fight to stand his or her ground or run away. The alarm or stress response can be fear or rage or other emotional states that are not under our thought control. An

article was filed (Exhibit 30) that outlines eight characteristics all designed to increase the ability of a person to conduct strenuous physical activities that he or she could otherwise not do. Dr. Milroy gave as an example a driver who presses a pedal down faster than one would normally do, if he or she feared for his or her own safety. The Evidence of Sz-Yin Lu [ 79 ] Sz-Yin Lu (Ms. Lu) testified by teleconference from Taiwan in Mandarin. An accredited translator was present in the courtroom to translate her evidence. I will continue to refer to her as Ms. Lu. She testified that she married Mr.

Precup in June 2009 and that she had cohabitated with him since 2007. She testified that she pled guilty to a criminal charge of obstructing a police officer last year and was deported to her country of birth, Taiwan. [ 80 ] Ms. Lu recalled that on July 13, 2008, she had accompanied Mr. Precup in his car for a ride in downtown Ottawa. While stopped at the intersection at Colonel By Drive and Rideau Street, she said that a pedestrian had left the sidewalk and came towards their car waving his arms and pulling his pants up and down. She felt that the man’s gestures were rude and felt insulted and affronted.

The man was “sort of dancing” and stood in front of their car. He then kissed his hand and put his hand on the hood of the car and then turned to a friend that had remained on the sidewalk and boasted to him. [ 81 ] Ms. Lu testified that she felt uncomfortable not knowing if the man would “break the glass or damage the car.” He moved slowly to the driver’s side and then she heard noise coming from the car’s tires as they sped away.

She stated that man looked like someone who did not care about anything. [ 82 ] The noise made by the car seemed to startle the man, who then moved more left from the position that he was in on the left side of the car. Ms. Lu also testified that the man was standing as they drove away. There was noise coming from the tires and from the engine as they drove away. She also said that she had seen the man jump to the left as the car got in motion. [ 83 ] Ms. Lu testified that Mr. Precup did not show any physical or emotional reaction nor was he angry or using swear words as the car moved.

He was nervous and she said that she concluded this because she had never seen him start the engine so fast or make the engine do that noise. While she felt that the tires were not moving straight she said that she did not know if it was the result of losing control. She said that the car fishtailed a little bit on leaving.

[ 84 ] Ms. Lu recalled that there was another car next to theirs, but had moved on before they did. She said that their car did not move because the man was in front of their car. She also said that it was impossible for Mr. Precup’s car to have hit the man because he was to the left of their car when Mr. Precup set their car in motion. She was sure that she had not looked back over her shoulder as they crossed Rideau Street because she felt that the man was in no danger as they left.

She recalled pedestrians on the sidewalk as they left but there were not as many pedestrians on the sidewalk as they crossed the intersection. [ 85 ] On their way home that same night, Ms. Lu felt that Mr. Precup was driving faster than usual. She recalled that she had asked Mr. Precup “we didn’t hit right?” and that he had answered “I don’t’ think so.” She described Mr. Precup as being frightened, and nervous when they got home. As for Mr. Precup driving fast, Ms.

Lu recalled that he had told her he wanted “to get out of there as soon as possible.” She said that they had not checked the vehicle for damage upon arriving at their apartment. [ 86 ] The issue about the car was that two or three times a month the car would not start. There had been no specific problems with the car that day. She recalled that she had heard of Mr. Anderson’s death the same day the car was taken to a garage. She could not remember how much time had elapsed between her ride in the car to school in the morning and the car’s arrival at the garage. [ 87 ] Ms.

Lu testified that her interviews were not translated for her when she attended at the police station. She said that she did not know she could have asked for an interpreter from English to Mandarin. Once she had viewed angry comments on the Internet concerning the Anderson hit and run she felt scared and helpless but she did not contact Mr. Precup’s parents. It was a cultural matter and she did not think that she was close enough to them to confide in them. She also feared for her immigration status. [ 88 ] False allegations were the reason Ms. Lu gave for lying to the police.

She testified that “our car did not hit this person at all” and as a result she stated that she did not want to involve herself in false allegations. Mr. Anderson, she recalled, had not been close to their car when the car was set in motion and she maintained that she saw Mr. Anderson through the car window. [ 89 ] Ms. Lu recalled that, after the second interview and as they were leaving the parking lot at the police station, they were going to go back to the police station to tell the police exactly what had happened. However, she stated that Mr.

Precup had talked so much that he could not handle more talking because of his mental illness and they decided to go home. [ 90 ] For the interview December 15, 2008, Ms. Lu recalled that herself and Mr. Precup discussed the incident but not in detail. They decided that they would both go to the police station and each of them would say what they saw. She stated that she had not paid attention to other vehicles next to their vehicle at the intersection and that the presence of other vehicles had not entered their discussions. [ 91 ] During cross-examination, Ms.

Lu admitted that she had a working knowledge of the English language as she was teaching junior and senior Kindergarten in English and that she spoke English when visiting Mr. Precup’s parents. She also spoke English to her boyfriend, Mr. Precup. She also passed the written examination for her driver’s license on August 26, 2008, and the questions were all in English. [ 92 ] Concerning her obligation to report to police when she said she knew that both Mr. Precup and she were involved in a hit and run collision, Ms. Lu maintained that it was not a collision. She recalled that Mr.

Anderson was wavering when he walked. She was reminded that she had not mentioned this before. She stated that she had used different words such as weird movement. [ 93 ] Ms. Lu recalled that Mr. Precup had not told her what to say to the investigating officers. After Mr. Precup’s first interview, she recalled having asked him what he had said and replied: “I copied that.” She agreed with defence counsel that the day the Mazda RX-8 was driven to the garage in Carlsbad Springs, Mr. Precup had given her a ride to school and that there were no problems with the car. [ 94 ] Ms. Lu agreed that Mr.

Precup had spent this past summer with her in Taiwan. She stated that they had discussed the case “very little.” She was adamant that even if she knew that Mr. Precup was advancing a defence of self-defence, she did not change her evidence as she wanted to tell the truth. She also said that she had not tailored her evidence to help her husband. [ 95 ] Ms. Lu was asked why she had waited until this trial to say that she feared Mr. Anderson. She replied that she had said she was afraid when she talked to police and when she told them of Mr. Anderson’s weird behavior.

When asked why she had not told her husband’s lawyer that her husband was angry after Mr. Anderson touched his car, she said that she could not speak on her husband’s behalf. She was asked why she had not told police officers that Mr. Anderson was standing next to the driver’s side window. She replied that she had left that out because the Detective knew what had happened and only needed her evidence to fill in the gap. She was then reminded on cross-examination that she never said that Mr. Anderson had moved to the driver’s side window. [ 96 ] Speaking of Mr. Townsend’s presence, Ms.

Lu was reminded that she had not told police he was there. She replied that she thought it was not worth mentioning to police who have too much to do. She also said that she did not tell Detective Dodds everything she knew as the interview had concentrated on Mr. Anderson’s death. [ 97 ] The statement Ms. Lu gave to police on December 15, 2008, was reviewed at pages 56, 57 and 12 where Ms. Lu stated that both Mr. Precup and she were angry. While she testified that she could not answer for Mr. Precup, she said that she had concluded that he was angry because his driving after the incident was unusual.

She also said that she could not answer for Mr. Anderson when she was asked why Mr. Anderson had jumped back as the car was set in motion. Ms. Lu testified that on the way home the night of the incident she had not asked more details of what had happened because Mr. Precup needed to concentrate on his driving. [ 98 ] Ms. Lu testified that she had not lied to police to protect her husband but because she was concerned about her immigration status. On September 23, 2009, she was convicted of obstructing a police officer and deported on June 10, 2013, after she lost her appeal.

She agreed that the reason for the conviction was that she had lied to the investigating officers. [ 99 ] Ms. Lu stated that she did not mention the banging Mr. Anderson made on the hood of the car as stated by Mr. Precup during his testimony, as Mr. Anderson only kissed his hand and touched the car. She recalled that Mr. Precup had said that the blond woman in the car behind theirs had hit Mr. Anderson. This she also recalled after Mr. Precup had testified in court. She stated that at the intersection she had not looked in the rear view mirror to find out what had happened behind them.

[100] There was no eye contact between Mr. Anderson and Ms. Lu when Mr. Anderson had stood in front of their car. Mr. Precuphad not, according to Ms. Lu, honked the car horn or shouted at Mr. Anderson to get out of the way. She said that the head light of thecar was wide and that part of it was in the front and part of it was on the side. She agreed that Mr. Anderson was standing at the edge ofthe right head light. She also agreed that even though she had a cellphone she had not called 911.

She recalled that the windows of thecar were rolled up, the doors of the car were locked, and the sunroof was open. [101] Ms. Lu stated that the fact Mr. Anderson was pulling his pants up and down made her uncomfortable as it was as sexuallysuggestive, as was Mr. Anderson’s action of kissing his hand and touching the car. She also stated that the gestures were directed at hereven though she testified that she had not made eye contact with Mr. Anderson. She agreed that Mr. Anderson had not made a singlestep toward the driver’s door of the car. [102] During re-examination Ms.

Lu testified that even though the doors were locked and the windows were rolled up, the sunroofwas open and she did not feel one hundred percent safe. The Evidence of Mr. Richer [103] Fernando Richer, an auto licensed mechanic operating at Carlsbad Springs, Ontario confirmed that Mr. Precup’s Mazda RX-8was at his garage for a clutch repair. As Mr. Richer had not kept notes he had to agree with the timelines suggested to him during cross-examination as to when and how the car had come to his premises. He maintained that the estimate he gave to Mr. Precup to repair theclutch, using a rebuilt clutch was $700.

He recalled that Mr. Precup told him not to commence the repairs as the car was perhaps underwarranty. [104] Mr. Richer described a second visit by police officers who wanted to tow the car away on a flatbed truck. He refused to givethem permission. Eventually Mr. Richer testified that the car dealer who sold the car to Mr. Precup picked up the car with a flatbedtruck. Mr. Richer also testified that Mr. Precup’s car could not be driven as the vehicle could not be put in gear, rendering it unsafe todrive. The Evidence of Mrs. Precup [105] Ana Precup, the mother of Vlad Precup testified.

She confirmed that her son’s Mazda RX-8 had gear problems at the time ofpurchase. She said that she advised her son against purchasing the car but that he had fallen in love with the car and bought it. Sheconfirmed largely the evidence that the Court heard from Mr. Precup concerning the reasons why he had quit his job at Meyer’sTransport, where he lived and why he gave up his car. She confirmed that having dropped his car off at Mr. Richer’s garage, she hadpicked up her son at the garage. Her son had stayed at her place overnight.

She testified that she drove him to his apartment in Mooney’sBay the next day. [106] During cross-examination, she stated that her son had driven his car to Mr. Richer’s garage and that the car had not been towedthere. She confirmed that her son had not quit his job at Meyer’s Transport because of ill health as he was “good on medication.” Shesaid her son quit because of long hours of driving and especially because he had to drive at night. She recalled that he also received aspeeding ticket at the time.

Prior to disposing of his car, Ana Precup acknowledged that her son had said nothing about giving up his carand had not sought her advice. The Evidence of Mr. Williamson [107] Peter Williamson (Mr. Williamson) is a mechanical engineer that I qualified as an accident reconstruction and expertspecialist. He has given evidence since 1994 in criminal and civil trials in several provinces. Crown counsel agreed with defencecounsel that he was an expert in his field but questioned, on the test set out in R. v. Mohan, (SCC), 1994] 2 S.C.R. 9,why it was necessary for the Court to hear Mr.

Williamson’s testimony on his report dealing with the incident. I allowed Mr.Williamson to testify and present his report judging that some light might be shed on Mr. Precup’s manner of driving that had not beenpresented so far. Because of the assumptions used by Mr. Williamson, resulting from an incomplete grasp of the evidence (he was notpresent in the courtroom except for the evidence of Ms. Lalonde), I must decide what weight I will attach to his evidence. [108] The expert gave the following measurements concerning the scene of the collision and Mr.

Precup’s ability to gauge thesituation he was facing on July 13, 2008, as follows: ▪ Using the police diagram (Exhibit 4) the distance from the curb on Colonel By drive to the mid-lane is 3.6 to 3.7 metres; ▪ The distance of the outer line from side to side is 3.2 to 3.3 metres; ▪ The distance from the stop line on Colonel By drive to the first curb on George Street is 112 metres; ▪ The width of the front of the Mazda RX-8 vehicle is 1.77 metres (as published by the car maker); ▪ Had the Mazda RX-8 been hugging the sidewalk on the curb lane the maximum space left in the curb lane would be 1.9 metres and ifthe car was centered in the lane, there would be a space of 1 metre on either side.

Mr. Williamson explained the car movement called fishtailing. It is caused by a sudden acceleration on a perfectly flat surface. At theintersection in question there is a depression to the right of the intersection as Rideau Street, extending to the east from the intersection,is downhill. Mr. Precup’s vehicle, being rear-wheel powered, would slide to the right and the driver would have to steer the vehicle tothe right to correct the slide, taking pains to not over correct.

[ 109 ] A chart was introduced by the expert to estimate the speed of the vehicles. The chart was filed as Exhibit 34 and Mr. Williamson’s report and photographs were filed as Exhibit 35. During cross-examination he testified that from his calculations on the chart he would peg Mr. Precup’s speed at approximately 25 km per hour if Mr. Precup turned onto George Street from the curb lane and at 40 km per hour if he made the turn from the left lane. [ 110 ] Referring to the rate of acceleration, Mr.

Williamson stated that this represents the unit of acceleration that an object has free falling, namely 9.8 square metres. In this case the published Fugger Chart showed that a force of acceleration of .27 gs would be necessary to make a 40 km turn on George Street (“gs” refers to the mass air flow centre that regulates air pushing through the engine and can climb to just over 1.0). The average acceleration rate is .23 gs. He estimated that it would take Mr. Precup 15 metres to attain 30 km per hour. [ 111 ] During cross-examination, Mr.

Williamson agreed that there could be many factors that could cause variations in his calculations, done six and a half years after the collision and without some specific information. Mr. Williamson agreed that Mr. Anderson’s position in front of the left front bumper of the car made it too dangerous to proceed forward. Looking at the photographs taken by Mr. Williamson with Mr. Precup standing at the left front headlight of a similar Mazda RX-8 vehicle, Mr. Williamson testified that Mr. Precup should have been able to see Mr. Anderson. He was informed by the Crown on cross-examination that Mr.

Anderson, when struck, went up in mid-air with feet over head and Mr. Williamson who had not known about this replied “yeah it tells a lot.” The Evidence of Mr. Ioan Precup [ 112 ] Ioan Precup is the father of Vlad Precup. He confirmed that his son had worked for Myers Transport prior to quitting because of the odd hours he was given by the transport company. Because his son, Mr. Precup, was on medication it was one of the reasons that made his son quit.

The other reason was the fact that his son had received another speeding ticket. [ 113 ] Ioan Precup said that he found out from his wife that police were looking for a red Mazda RX-8 that had been involved in a hit and run collision. He stated that his wife got that information from the mechanic Fernando Richer. He testified that he was mad at his son because his son had not turned himself in to the police immediately. Ioan Precup said that he had raised his voice to his son when he found out the police were looking for a red Mazda RX-8. CAUSE OF DEATH Dr.

Christopher Milroy [ 114 ] There was no objection that Dr. Milroy is qualified as a forensic pathologist. He is a Director of Forensic Pathology Examinations for Eastern Ontario, and a professor of Forensic Pathology at the University of Ottawa. He has testified frequently in Superior Court in Ottawa in a variety of criminal cases as an expert in pathology. He replaced Dr. Perez, his wife, who did the autopsy on Mr. Anderson after conducting an independent review of her autopsy, and he testified that her conclusions were reasonable. [ 115 ] Dr. Milroy testified that Mr. Anderson died from brain injuries. Mr.

Anderson suffered a traumatic lesion as 100 mm of congealed blood was found underneath the dura (a thick membrane of the skull) where no blood is usually found. The short

summary according to Dr. Milroy is that an impact to Mr. Anderson’s head caused a fracture of the skull leading to a hemorrhage and damage to the brain. [ 116 ] Other damage to Mr. Anderson involved damage to his legs as Dr. Milroy explained a fracture to the left tibia. The fracture was located 44 cm up from the sole of the left foot. He testified that this injury is typical in a car bumper fracture. The physical injuries support the theory that Mr. Anderson was struck with the bumper of a car, was propelled in the air, and hit his head on the sidewalk resulting in head injuries. [ 117 ] Dr.

Milroy also testified that the bumper fracture in this case indicates that the victim was upright when hit. He also concluded that Mr. Anderson was not hit by a truck as victims in such cases are propelled forward. Bumper fractures in ordinary sedan cars result in victims hitting the roof or windshield, or roof of the car. In Mr. Anderson’s case, there is no evidence of him hitting those parts of the car before his head hit the hard surface of the sidewalk. [ 118 ] Another conclusion arrived at by Dr. Milroy was that at the time of collision, Mr.

Anderson had .298 mg of alcohol per 100 mm of blood in his system which meant that he was three and a half times over the .08 limit for driving a car. This also meant, according to Dr. Milroy, that Mr. Anderson would appear drunk to other people. [ 119 ] Dr. Milroy stated that the weight of the bone fracture on the leg would have been slightly above the area of the force. He also stated that because of a red mark on Mr. Anderson`s right leg, it was clear that the left leg was pushed into the right leg on impact. [ 120 ] During cross-examination, Dr.

Milroy stated that the fact that the fibula was not broken, but only the tibia (when both bones are next to one another in the leg), points to a glancing blow. Had it not been a light brush impact, a victim could have fractures of the femur, the fibula and the tibia. The anatomy in photos and Dr. Milroy’s

article on the subject were filed as Exhibit 18. For Mr. Anderson to have been spun around at impact, he would have to be in front of the bumper. ANALYSIS AND DECISION [ 121 ] I will now guide you through some

definitions of terms and concepts I used in deciding this case. [ 122 ] I have instructed myself with the definition of reasonable doubt given by Mr. Justice Peter Cory, as he then was in the Supreme Court of Canada, in the decision of R. v. Lifchus (1997), 118 C.C.C. (3d) at 1. He states the following: 39 Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines:

The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression "beyond a reasonable doubt" mean? The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [123] The appreciation of credibility as said by the Ontario Court of Appeal in R. v.

Agil (1996), (ON CA), 91O.A.C. 1, is, as always the case, of crucial importance, and of course, I have instructed myself from the case of R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 [R. v. W.(D.)], and in that decision they quote the case of R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.) as to what should be considered on credibility. [124] First, if you believe the evidence of the accused, obviously, you must acquit. Secondly, if you do not believe the testimony ofthe accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in a reasonable doubt by theevidence called for the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convincedbeyond a reasonable doubt by that evidence of the guilt of the accused. [125] In R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521, Mr. Justice Cory, disapproving of what the trial judge did inthat case, puts me on guard against making the evidence a credibility contest, where I choose to believe the complainant or the accused. This type of approach was rejected in R. v.

W. (D.), as a trial judge must consider the third alternative, namely that a trial judge may notbelieve the accused, but may still have a doubt on the whole of the evidence.

I must weigh the evidence and look at the whole case andsay to myself, looking at all the evidence, whether I am convinced beyond a reasonable doubt that the complainant’s evidence is correct,and the accused’s evidence cannot be accepted, and I need to do that for each count. [126] I have also reminded myself of the instructions we give to juries on the evidence of a witness: you may believe all of theevidence given by a witness, you may believe part of that evidence, or you may believe none of it.

The rejection of defence testimonydoes not result in a positive finding with respect to the prosecution’s case. [127] I have instructed myself as well, that it is a principle of law that, regardless of how suspicious the circumstances involving anoffender are, the Crown cannot ask the Court to substitute conjecture and speculation for inference, which are probably drawn fromestablished facts.

Hence, it is not correct to infer guilt from disbelieving the accused’s evidence. [128] The Court also has to direct itself that the onus of proof rests on the Crown throughout, and with respect to every essentialelement. [129] In addition, I must remind myself that the defence bears no evidentiary onus to attempt to explain in any fashion why thecomplainant would have advanced such accusations if no untoward conduct had occurred. [130] I accept Dr. Milroy’s conclusions on the location of the fracture found 44 cm from the sole of Mr. Anderson’s bar foot.

Oneinch or 2.5 cm was added to account for the approximate heel of Mr. Anderson’s white Reebok running shoe, evidence given byConstable Herasimenko in his occurrence report and this means that the fracture was approximately 46.5 cm from the ground where Mr.Anderson stood when he was struck by a vehicle. [131] Investigating officers testified that a scull mark was found 49 cm from the ground from where Mt. Precup’s vehicle waspositioned at the time of the incident, which Dr. Milroy and Mr.

Williamson testified would be consistent with a head-on collision with apedestrian standing (facing the vehicle) at the right from the headlight of Mr. Precup’s Mazda RX-8 as described by Ms. Mountjoy andMr. Townsend.

[132] Both Dr. Milroy and Mr. Williamson dealt with the theory of a glancing blow and both agreed that it would not explain howMr. Anderson ended up approximately 15 feet away from the stop line where the impact of the collision took place. ConstableHerasimenko filed an occurrence report and he stated that Mr. Anderson landed 4.59 metres north of the stop line and he arrived at thatconclusion because there was a pool of blood at that location and that is where Mr. Anderson landed after being hit. [133] I find that Mr. Anderson was standing at the very least in front of Mr. Precup’s vehicle as related by Ms.

Mountjoy, Mr.Townsend and Ms. Lu. I will deal with the credibility of witnesses shortly. [134] Dealing with Mr. Williamson’s evidence, I agreed with Crown counsel’s submissions that I reproduce here, and I find that Iwill accord very little weight to Mr. Williamson’s evidence of Mr. Precup’s speed. The Crown’s submissions were: ▪ Mr. Williamson was obviously not present the night in question, but he was similarly not present for any of the evidence given duringtrial (except for Ms. Lalonde, the Crown’s first witness). This includes evidence of driving, speed and distance given by Mr. Leslie, Mr.Teather, Mr.

O’Brien, Ms. Mountjoy, Ms. Diggins, Ms. Lu, Mr. Townsend, and Mr. Precup. ▪ At best, Mr. Williamson based his conclusions on incomplete and sometimes incorrect data. He failed to state any assumptions in hisreport. He failed to include any notes, calculations, formulae, and references in his report by which one could independently test hisopinions.

He also referred to hearsay reports of what was transpiring in court, including the undisclosed notes of co-counsel for theaccused, who was not present for multiple days of the trial and who has been retained to advocate on behalf of the accused’s interest. ▪ These are not the hallmarks of an independent, unbiased expert. Without a doubt, the perception of bias is manifest when oneconsiders the above. ▪ Similarly, Mr. Williamson failed to testify as to the actual documents he had referred to – only that he had received “a whole bunch”and that he “thought” one of them might be the forensic pathology report. ▪ Mr.

Williamson did not include any of the “PC Crash” results, methodology, inputs, outputs, and conclusions in his report. Onecannot reproduce his work to ensure its validity, as he did not disclose anything more than his conclusions. One is left to wonder if thecourt is getting his opinion or that of his computer’s software. ▪ It is difficult to fault Mr. Williamson – it seems as though he was being asked to come up with opinions at the last minute and on thefly.

He gave evidence that as early as the morning of his testimony he was receiving hearsay reports of the goings-on of the trial andbeing asked to incorporate them into his opinion. ▪ Mr. Williamson’s measurements of the 2007 RX-8 are of little to no worth – it is not the same vehicle, it does not have the samewheels and/or tires, he cannot tell us of the suspension settings, including whether Mr. Precup’s 2004 RX-8 or the 2007 “exemplar” RX-8 had any kind of suspension sag. He cannot attest to any aftermarket parts that may have been on either vehicle.

Briefly – he is workingin a vacuum of evidence and being asked to speculate. FIGHT OR FLIGHT [135] Dealing with expert evidence I recall Dr. Milroy’s evidence about fight or flight in generic terms. That theory did not help mein seeking the truth as I do not believe that Mr. Precup was scared of the defenceless pedestrian who kissed his hand and petted the hoodof Mr. Precup’s car. [136] Counsel for the accused has cited many decisions to give an air of respectability to the theories he advanced on behalf of hisclient.

In all of the cases, including those where judges accepted the fight or flight theory, the decisions turned on the facts of each case. This case is fact specific and no less than 18 witnesses have testified on one aspect or another regarding the events that took place before,at the time of the collision, and after the collision. There were also three statements given by police officers who attended the scene ofthe collision and that were admitted in evidence. I prefer to rely on the accounts of witnesses and the evidence of Mr. Precup and Ms. Luto decide why Mr. Precup left the scene of the collision as he did.

After-the-Fa

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