Judge acquitted accused of failing to remain charge because he was not found to have taken on the additional intent to flee the accident scene

Case Name:



Her Majesty the Queen, and



Information No. [REDACTED]

Ontario Court of Justice

Brampton, Ontario


Heard: [REDACTED].

Oral judgment: [REDACTED].

(28 paras.)

Criminal law -- Criminal Code offences -- Offences against person and reputation -- Motor vehicles -- Dangerous operation of motor vehicle -- Failing to stop or remain at accident scene -- Trial of accused, who pled guilty to dangerous driving and not guilty to failure to remain -- Crown proved aggravating facts of dangerous driving but accused acquitted for failure to remain -- Officers gave credible and compelling evidence that accused fled police, hit vehicles and sign and drove over fence and curb -- Accused's claim he believed he was going to be robbed by persons in van made no sense given he stopped to drop off friend and exited vehicle -- Accused's intent was to flee police to avoid investigation -- Accused did not take on additional intent to flee accident scene.

Trial of the accused, who pled guilty to dangerous driving and not guilty to failure to remain. The Crown alleged aggravating facts on the dangerous driving charge. The aggravating facts alleged were that the accused knowingly fled police, hit vehicles and a sign and drove over a fence and the curb. The accused testified he believed he had been set up to be robbed by individuals in a van, so he was fleeing the van. The accused claimed that he kept his speed under control while fleeing.

HELD: Aggravating facts proven but accused acquitted of failure to remain. The officers gave credible and compelling evidence about the events. The accused's claim he was fleeing would-be robbers made no sense given he left himself vulnerable to dropping of his friend and exiting his vehicle. The accused's evidence was not internally consistent. The officers were shouting at the accused to stop and had their lights and sirens on, so the accused clearly knew the police were trying to stop him. There was no doubt the accused knew he hit vehicles and the fence. The accused's intent was to avoid investigation for criminal activity. The accused did not take on additional intent to flee the accident scene, so the failure to remain count was not proven.

Statutes, Regulations and Rules Cited:

Criminal Code, R.S.C. 1985, c. C-46, s. 252(1), s. 252(2)


E. [REDACTED]: Counsel for the Provincial Crown.

[REDACTED] Counsel for [REDACTED].


1 Judge: [REDACTED] (orally):-- It is late in the day. I am going to give my reasons for judgment. I will set out my findings in relatively brief compass. I am not going to summarize the evidence in any detail. After introducing the matter and setting out the issues, I will go right to my findings. The evidence is fresh in everyone's mind. Part of it was heard today and we do, of course, have transcript from day one.

2 [REDACTED] is charged with dangerous driving and failing to remain at the scene of an accident on June 17, 2009. On March 30, 2011, he pleaded guilty to dangerous driving and a brief agreed statement of fact was read into the record. On the fail to remain charge, he pleaded not guilty. Evidence was called over two days to determine, first, whether the Crown had proven certain alleged aggravating facts of the dangerous driving charge beyond a reasonable doubt under the Supreme Court of Canada's decision in [REDACTED], [REDACTED] and second, whether the Crown had proven the fail to remain charge beyond a reasonable doubt.

3 The issue on the [REDACTED] hearing is whether the Crown has proven the aggravating facts of the dangerous driving charge on which [REDACTED] has already been found guilty on his plea in March 2011. Those alleged facts include: whether [REDACTED] knew it was the police who were trying to stop his vehicle at 25 Paisley and deliberately took flight from the police; whether he knowingly drove around Constable [REDACTED]; whether he hit the parked Acura and then hit Constable [REDACTED]'s vehicle, but whether he drove over a fence and whether he hit a post or a sign when he jumped the curb at the south end of 25 Paisley before heading westbound on Paisley.

4 The issues on the fail to remain charge are whether the Crown has proven, first, that [REDACTED] was involved in an accident with a vehicle, and second, whether, when he left the scene without performing the duties listed in Section 252(1) of the Criminal Code, he intended to escape civil or criminal liability for the accident or accidents.

5 The Crown relies on the presumption in Section 252(2) of the Code. That subsection creates a presumption of intent "in the absence of evidence to the contrary". It imposes no burden on the defendant to establish lack of intent [R. v. Gosselin [1988] O.J. No. 1921, p. 3, (C.A.); R. v. Rampersad, 2006 ONCJ 182, para. 17.]

6 Evidence to contrary is evidence that is not rejected by the trier of fact and that tends to show the defendant did not have the requisite intent [R. v. Nolet, (Charett) (1980), 4 M.V.R. 265, p. 269, (Ont. C.A.); R. v. Ford, [1997] O.J. No. 220, para. 50, G.D.]

7 The Crown bears the burden to prove guilt beyond a reasonable doubt. [REDACTED] is presumed innocent and bears no burden to prove anything. If the whole of the evidence leaves a reasonable doubt on any essential element, he must be found not guilty. Proof of probable guilt is not enough. I must be sure.

8 Similarly, the Crown has the burden of proving any contested aggravating factors on sentence beyond a reasonable doubt. The rule of reasonable doubt applies to the issue of credibility. The case must not be seen as a credibility contest between [REDACTED] and the police witnesses. That approach risks eroding the presumption of innocence and shifting the burden of proof. If [REDACTED]'s evidence leaves a reasonable doubt, even if I do not believe it, he must be acquitted and I cannot rely on the alleged aggravating facts in sentencing for the dangerous driving offence. Even if I reject [REDACTED]'s evidence, I must still ask whether on the evidence I accept, I am convinced of his guilt and of the alleged aggravating facts beyond a reasonable doubt.

9 Each witness is entitled to a fair and evenhanded assessment of his or her testimony based on logic, common sense, and everyday human experience. Each person's evidence must be evaluated not in isolation, but in light of the whole of the evidence. The trier of fact can accept some, none, or all of the evidence of any witness. The case for the prosecution and the defence must be subjected to the same level of scrutiny. Fairness and balance are essential.

10 I begin my assessment of the evidence with the police witnesses. I will then turn to [REDACTED]'s evidence. While I will discuss the evidence of the Crown witnesses and [REDACTED] in separate sections, I remind myself that the evidence of any witness, as I have just mentioned, must be assessed in light of the evidence as a whole.

11 In my assessment, Constables [REDACTED], [REDACTED], and [REDACTED] were highly credible witnesses who gave reliable evidence about the events of the night of June 17, 2009.

12 Despite a couple of answers that reflected some degree of passion, Constable [REDACTED], Constable [REDACTED], and Constable [REDACTED] testified in a professional and even-handed way, based on reasonably contemporaneous notes. I do not accept the submission that Constable [REDACTED] or either of the other two officers was biased or unfair. On the contrary, each made reasonable concessions and I never sensed that they were being guarded or evasive. Each officer's account was rich in detail.

13 I could give a number of examples, but I will give only one. Constable [REDACTED] gave his testimony about what he observed in the parking lot of Silver Tips in considerable detail. I am thinking here of, for example, the description of the white male buyer with the Cleveland ball cap and the scruffy beard; the small features he noticed on [REDACTED] that gave him an appearance that reminded him of Michael Jordan; the way the buyer was pacing back and forth with a hop in his step doing a fighter-type dance that signaled to Constable [REDACTED] that he was a crack user.

14 Similarly, and without going into it in detail, the evidence of each of the three officers about what happened on the way to 25 Paisley and at 25 Paisley was highly detailed. In addition, the evidence of these three officers, who were in different vehicles, performing different roles, and making different observations, when seen as a whole, hangs together, as Ms. [REDACTED] submitted, on virtually all core points in a way that is natural, logical, and accords with common sense. While there may be some differences among the officers on certain points, these, in my view, are of minor significance and are to be expected when three differently positioned officers are describing an event that happened as quickly and as intensely as the event at 25 Paisley that night.

15 I am not troubled by the absence of photographs of damage to vehicles or other property. These three witnesses were not in charge of the collision investigation. I accept Constable [REDACTED]'s evidence that he did take some pictures on his cell phone but could not access them because his phone later fell in some water and broke.

16 In short, I find the evidence of the police witnesses to be extremely compelling and my assessment of each officer's testimony in light of the whole of the evidence leaves me with no credibility or reliability concerns.

17 Before moving on, I remind myself that my positive assessment of the police evidence must not lead to rejection of or skepticism about [REDACTED]'s evidence. As I mentioned at the outset, he, like any witness, is entitled to a fair consideration of his testimony in light of the whole of the evidence. It would be wrong for me to examine his account with undue rigor simply because I have expressed positive views about the police evidence.

18 Having examined his evidence in light of the whole of the evidence in this case, I am left with significant credibility concerns. I will give a couple of examples that focus on his evidence about what happened at the end of the incident.

19 On [REDACTED]'s version, from the time he left his mother's house until the time he left 25 Paisley and headed westbound on Paisley, he had become increasingly concerned that [REDACTED] had set him up and that someone was going to rob him. According to [REDACTED], when he came around the southeast corner of the building at 25 Paisley and went west along the narrow driveway, there was one vehicle still right behind him, and then the gold van rushed up in front of him and tried to block him. When he pulled out of the driveway at 25 Paisley to go westbound, one vehicle was still following him. And yet, within about 30 seconds, [REDACTED] stopped at the side of the road and dropped [REDACTED] off. He then continued driving westbound and, about 30 seconds later, parked in the community centre parking lot. He got out of the car, looked at the vehicle long enough to see that there was nothing wrong with it, and then walked away, locking the door behind him. He testified that he left the car there overnight because he did not want the van following him home. He also said, parenthetically, that even though he had just jumped a curb at 25 Paisley and driven over a sidewalk, he was still keeping his speed under control on Paisley at about 70 kilometres an hour.

20 All of this, in my view, strains common sense. If [REDACTED] was scared of getting robbed, and if one vehicle tried to block him and another was right on his tail, it makes no sense that he would stop and drop [REDACTED] off at the side of the road and then park his vehicle and get out, leaving himself completely exposed to people he thought were following him for the purpose of robbing him.

21 In my assessment, [REDACTED]'s attempt to explain away the fact that he abandoned his vehicle in the parking lot a short distance from 25 Paisley defies common sense and undermines his credibility. I also observed that, when pressed during cross-examination, his evidence started to shift in a subtle way. Initially, [REDACTED] gave the impression that he was in a hurry to get away from the area. This is why, for example, he left his documents in his car. But later, when he was pressed about when the van stopped following him, he said that, when he dropped [REDACTED] off, he noticed the van wasn't there and that is why he walked away from his car after parking it and he did not run. As for his documents, while [REDACTED] first said he left them in the car because he was trying to get away, he later said he always leaves his documents, including his driver's licence, in the car.

22 I stress once again that this is not a credibility contest. It is not a question of comparing the evidence to decide who I believe. The burden of proof remains squarely on the prosecution. But when I assess [REDACTED]'s account in light of the clear, consistent, detailed, and compelling evidence of the three differently positioned police officers about, for example, receiving the information from Constable [REDACTED], converging on the suspect vehicle, moving in and positioning themselves at 25 Paisley; Constable [REDACTED]'s actions in getting out of his vehicle and yelling "Police" with his take-down vest on and lights and sirens of two vehicles flashing, as well as the movements of [REDACTED]'s car throughout the incident, I find that [REDACTED]'s evidence is not credible. I reject his testimony about what happened that night both at Silver Tips parking lot and at 25 Paisley. I do not believe [REDACTED]'s evidence and it does not leave me with a reasonable doubt. I accept the evidence of the three police officers and am satisfied beyond a reasonable doubt that the Crown has proven the aggravating facts on the dangerous driving charge, including that Constable [REDACTED] was out of his car; that he yelled "Police"; that his lights and sirens were flashing; that [REDACTED] knew the police were trying to stop him and that, knowing this, he fled in his vehicle, striking the Acura, striking Constable [REDACTED]'s vehicle, driving over the fence and then hitting the sign before escaping westbound on Paisley.

23 I turn to the fail to remain charge. This incident happened in mere seconds. As I have already mentioned, I am satisfied beyond a reasonable doubt that [REDACTED] knew the police were there and that he intentionally fled from the police. I find that when he fled he was intending to avoid an investigation by the police into alleged criminal activity. That was his intention when he hit the gas or "gunned it", to use Constable [REDACTED]'s term.

24 I also find that [REDACTED]'s vehicle came into contact with both the Acura and Constable [REDACTED]'s vehicle. But on the whole of the evidence, including the speed and intensity of these events, the nature of the impact with each vehicle, as described by the police witnesses, I am left in some doubt about whether [REDACTED] knew he had hit either vehicle.

25 As for the fence, there is no doubt in my mind that [REDACTED] knew he hit the fence. I accept the police officers' description of the driving over the fence and [REDACTED] must have known that his vehicle had come into contact with that fence.

26 In any event, even if [REDACTED] knew that he had hit the vehicles at 25 Paisley, this, in my view, is a case where there is evidence to the contrary in the evidence tendered by the prosecution.

27 On the whole of the evidence, I find that [REDACTED]'s exclusive intent was to flee the police to avoid investigation for criminal activity, namely, drug activity. In doing this, he hit two cars and failed to stop. But on the evidentiary record in this particular case, I do not think [REDACTED]'s intent can realistically be parsed up as the Crown's theory would require. In my view, on the evidence in this case, it is not realistic to say that in the split second after hitting each of the vehicles, [REDACTED] took on the additional intent of seeking to escape liability for the accidents with the vehicles.

28 On this record, I find that [REDACTED]'s dominant or exclusive intent was to avoid investigation by the police for other criminal activity. This is a case, as I have already mentioned, where there is evidence to the contrary arising out of the Crown's own evidence that leaves me with the reasonable doubt on the very specific intent in section 252(1) of the Criminal Code. I therefore find [REDACTED] not guilty of the fail to remain charge. Thank you.



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