



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Akhtar, 2022 ONCA 279

DATE: 20220407

DOCKET: C65994

Fairburn A.C.J.O., Feldman and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Furqan Akhtar

Appellant

Mark C. Halfyard, for the appellant

Andreea Baiasu, for the respondent

Heard: November 30, 2021

On appeal from the conviction entered on
    July 6, 2018, by Justice Nola Garton of the Superior Court of Justice, sitting
    with a jury.

Harvison Young J.A.

OVERVIEW

[1]

On September 20, 2015, just before 8 p.m.,
    Christopher and Susanna Ho, together with Ms. Hos mother, were driving home
    after visiting Ms. Hos father in a nursing home on Ellesmere Road in
    Scarborough. Their route home, which Mr. Ho had driven hundreds of times, took
    them east on Ellesmere and then left or north onto Midland Avenue. When the
    road was clear, with no oncoming traffic in sight, Mr. Ho began to turn left.
    Suddenly he saw lights coming towards them at a very high speed. He had no time
    to react before two cars travelling westbound on Ellesmere crashed into his car
    at virtually the same time. Ms. Hos 81-year-old mother was killed instantly.
    Mr. and Ms. Ho survived but suffered serious injuries. The two cars were driven
    by the appellant, Furqan Akhtar, and his co-accused, Saifullah Dero.

[2]

A jury found that the two accused were street
    racing with each other along Ellesmere, approaching the intersection with
    Midland. The accused were convicted of twelve offences, including dangerous
    driving: section 249(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46;
    criminal negligence: ss. 220 and 221; and street racing causing death and
    bodily harm: ss. 249. 3 and 249.4.

[3]

The appellant appeals his convictions on the
    basis that the trial judge misdirected the jury on dangerous driving, criminal
    negligence, and the effect of Mr. Deros abscondment.

FACTS

[4]

The Crowns case relied on the testimony of the
    Hos, other witnesses to the accident, and forensic evidence. Mrs. Ho described
    the lights as moving like bullets or a freight train coming. Mr. Ho testified
    that he saw the lights crest the hill on the east side of the intersection, and
    then just a split second and the, the lights [are] right in front of my car.

[5]

Another witness, Ms. Villanueva, testified that
    she believed the appellants Lincoln and Mr. Deros Mercedes were racing. She
    thought one car was trying to overtake the other, and that the appellants
    Lincoln overtook Mr. Deros Mercedes just before the crash. She described the
    Lincoln hitting the back of the Hos vehicle first, followed by the Mercedes one,
    two seconds later.

[6]

Ms. Vllianuevas evidence was corroborated by
    that of Detective Constable Spencer, the accident reconstructionist who was
    qualified as an expert witness at trial. His report opined that the appellants
    Lincoln hit the rear passenger corner of Mr. Hos vehicle, crushing its trunk
    and ripping off its metal bumper. Mr. Deros Mercedes then struck the drivers
    side front corner of Mr. Hos vehicle, crushing the Mercedes radiator and
    engine components.

[7]

Detective Spencer extrapolated the speed of the
    Mercedes and the Lincoln from a one-second surveillance video captured from a
    nearby property. He estimated that the Lincoln was traveling at 127 kilometers
    per hour (kph) approximately 47 meters away from the point of impact, and the
    Mercedes was travelling at 129 kph about 63 metres from the point of impact.
    His calculations were subjected to rigorous cross-examination.

[8]

The appellants Lincoln was equipped with an
    Event Data Recorder (EDR) programmed to record five seconds of data when
    certain events occurred, such as a sudden drop in speed or airbag deployment. It
    indicated that the appellant reached a speed of 144 kph three seconds before
    the accident. The speed limit on Ellesmere is 60 kph.

[9]

The appellant testified at trial and maintained
    that he never exceeded 80 kph. He challenged the EDR evidence because it had
    erroneously recorded a passenger in his vehicle seconds before the accident. If
    the EDR could err on the presence of a passenger, it could also err with
    respect to speed. The appellants theory at trial was that Mr. Ho jumped in
    front of moving cars in their lane.

[10]

Mr. Dero also testified, but he did not challenge
    the EDR speed readings and admitted that his speed was excessive, though he
    could not say precisely how fast he was driving. He testified that he was
    driving faster than the flow of traffic and passing cars before reaching the
    crest of the hill. On cross-examination, counsel for the Crown suggested that
    Mr. Dero could have been driving as fast as 120 kph. Mr. Dero only indicated
    that he had not driven in some time. Other witnesses who were in their cars
    waiting to enter the intersection gave varying estimates as to the speed of the
    two cars just before the crash.

[11]

After the closing submissions were complete, and
    just before the trial judge delivered her charge to the jury, Mr. Dero
    absconded. The trial judge cautioned the jury that:

[W]hen
    deliberating your verdicts with respect to Mr. Dero, you may draw an adverse
    inference from the fact that he has absconded. However, the fact that he has
    absconded must play no part in your deliberations with respect to [the
    appellant]. Mr. Deros absconding has nothing whatsoever to do with [the
    appellants] case and must play no role whatsoever when you are deliberating
    your verdicts with respect to [the appellant].

[12]

This forms the basis for one of the grounds of
    appeal.

ISSUES

[13]

The appellant advances three grounds of appeal
    against his conviction.

1.

The trial judge erred in instructing the jury on
    the
mens rea
for dangerous driving and criminal negligence by defining
    the marked departure test in common parlance terms, rather than the legal tests
    set out by the jurisprudence.

2.

The trial judge erred by giving inadequate jury
    instruction on the effect of Mr. Deros abscondment, particularly with respect
    to the street racing counts.

3.

The trial judge erred in instructing the jury that
    the appellants prior infractions under the
Highway Traffic Act
, R.S.O.
    1990, c. H.8 (
HTA
), could be considered in assessing his credibility.

[14]

For the following reasons, I would dismiss the
    appeal.

A.

The Dangerous Driving and criminal negligence charges

[15]

The appellant argues that the trial judge erred
    in her use of dictionary definitions and common parlance terms to explain
    marked departure with respect to dangerous driving, and marked and
    substantial departure with respect to criminal negligence.

[16]

With respect to the
mens rea
for dangerous
    driving, the trial judge began by instructing the jury to take into account all
    the circumstances in which their driving occurred, such as the conditions and
    place and the amount of traffic (both pedestrian and vehicular) that was
    actually there and that might reasonably be expected to be there at the time.

[17]

She then continued:

Dangerous driving involves more than
    carelessness. Crown counsel must satisfy you beyond a reasonable doubt that [the
    appellants] driving was a marked departure from what a reasonable, prudent
    driver would do in the same circumstances.

The word marked means, in this context
    noticeable, obvious, distinct, appreciable or conspicuous. As stated, the
    required marked departure from the standard of care that a reasonable and
    prudent driver would have exhibited is not established by proof of mere
    carelessness. Dangerous driving involves more than just carelessness or
    momentary inattention, unless carelessness or momentary inattention is part of
    a larger pattern of driving that, considered as a whole, amounts to a marked
    departure from how a reasonably prudent person would have driven in like
    circumstances.

What you have to decide in all of the
    circumstances is not what [the appellant] or Mr. Dero meant to do, but rather
    whether they drove in a manner that was a marked departure from the manner in
    which a reasonable, prudent driver would do in the same or similar
    circumstances. It is the manner in which [the appellant] and Mr. Dero were
    driving on which you must focus. Crown counsel does not have to prove that [the
    appellant] meant to endanger the life of Ms. Chan or the lives or safety of
    anyone else who was, or might have bee there at the time.

In the end, after
    consideration of all the evidence, you will have to decide whether the manner
    in which [the appellant] and Mr. Dero were driving constituted a marked
    departure from what a reasonable, prudent driver would do in similar
    circumstances.

[18]

With respect to criminal negligence, the trial
    judge correctly stated that the jury had to find that the appellant or Mr. Dero
    had, in the operation of their vehicles, shown a wanton or reckless disregard
    for the lives or the safety of others. She stated that:

To prove this essential element, Crown counsel
    does not have to prove that [the appellant] or Mr. Dero meant to kill or
    seriously harm Ms. Chan or anybody else.

The word wanton
    in this context means heedlessly, ungoverned, undisciplined or having an
    unrestrained disregard for the consequences. The word reckless means heedless
    of the consequences of ones action, headlong, irresponsible.

[19]

She continued to explain that this required a
    finding of more than carelessness, saying that the jury had to be satisfied
    that:

[T]he manner in which [the appellant] and Mr.
    Dero operated their respective vehicles constituted a marked and substantial
    departure from what a reasonably prudent person would do in the same
    circumstances.  The required marked and substantial departure is not
    established by proof of mere momentary inattention, unless such momentary inattention
    is part of a larger pattern that, considered as a whole, establishes a marked
    and substantial departure from what a reasonably, prudent person would do in
    the circumstances.

The word marked
    is to be given its everyday meaning, namely, clearly evident, strikingly
    noticeable, conspicuous. The word substantial is also to be given its
    everyday meaning, namely, considerable in importance, significant.

[20]

Counsel for the co-accused did not seriously
    challenge the dangerous driving counts, but concentrated on the criminal
    negligence and racing charges. For this reason, there were extensive
    discussions with the trial judge both before and during the charge, as counsel
    for the co-accused was particularly concerned that the jury understand the
    difference between dangerous driving and criminal negligence. As a result, the
    trial judge delivered the following clarification:

It is not easy to define the precise
    difference between dangerous driving and criminal negligence in the operation
    of a motor vehicle. However, with respect to dangerous driving in the operation
    of a motor vehicle, the driving must amount to more than an absence of
    reasonable care in the circumstances. It must be dangerous to the public and a
    marked departure in the standard of care of a reasonably prudent driver, having
    regard to all of the circumstances.

The more serious or blameworthy kind of
    negligence in the operation of a motor vehicle is criminal negligence. To be
    guilty of criminal negligence in the operation of a motor vehicle there must be
    more than mere dangerous driving. There must be conduct that shows a wanton or
    reckless disregard for the lives or safety of other people. The driving must be
    a marked and substantial departure from the standard that we would expect of a
    reasonably prudent driver in the circumstances.

[21]

Following her instructions as to the elements of
    the offence of dangerous driving, the trial judge reviewed the evidence on
    these issues including:


i.

The fact that the posted speed limit on Ellesmere
    Road was 60 kilometers per hour;


ii.

The amount of vehicular and pedestrian traffic
    at the time was what would have been reasonably expected; and


iii.

The surveillance videos indicating the amount of
    traffic that evening.

[22]

The trial judge also referred to the respective
    counsels submissions on the evidence. The appellants counsel submitted that
    the data from the restraint control module was not reliable, that the video
    evidence and Officer Spencers calculations were flawed, and that Mr. and Ms.
    Ho were not reliable witnesses. He also submitted that the estimates of speed
    provided by witnesses in other cars at the intersection at the time of the
    crash were lower and supported Mr. Akhtars evidence that he was travelling 65
    to 70, or perhaps 80 kph. He argued that this did not constitute a marked
    departure from what a reasonable, prudent driver would do in similar
    circumstances

[23]

Counsel on behalf of Mr. Dero acknowledged that
    his client may have been driving as fast as 120 kph but, was likely driving 10
    to 20 kph slower than that. He did not dispute the event data recorder, but
    argued that that evidence did not necessarily correlate to Mr. Deros speed. He
    acknowledged that it was open to the jury to find that Mr. Dero was driving at
    an excessive speed as he hit the crest of the hill toward the intersection and
    that this met the elements of dangerous driving.

[24]

In this court, the appellant focuses his
    submissions on the dangerous driving counts. He submits that the charge, in
    relying on common parlance, gave rise to two problems that could have confused
    the jury and prejudiced the appellant. First, using a common parlance
    definition of a legal term  or term of art  may employ descriptors that give
    a misleadingly low, and therefore prejudicial, understanding of the marked
    departure test. He highlights the trial judges use of noticeable and
    appreciable that, in his view, falls short of a marked departure.

[25]

Second, the appellant claims that the trial
    judge failed to explain that the marked departure test is a matter of degree
    and that the lack of care must be serious enough to merit punishment or
    criminal sanction  i.e., a marked departure from the standard of a reasonably
    prudent driver. The prejudice here arises from the fact that the appellants
    own evidence was that he was driving no faster than 80 kph. That would not have
    constituted dangerous driving given the conditions at the time and the flow of
    traffic. However, the jury could have, the appellant argues, accepted his
    evidence as to speed and still convicted for dangerous driving because his
    speed might have been noticeable.

[26]

Further, though the appellant does not take as
    strong an issue with the criminal negligence charge, he still submits that the
    trial judge erred in defining the word marked with different words than those
    used in the dangerous driving instruction. This charge was thus confusing. That
    said, the appellant also acknowledges that the criminal negligence charge came
    much closer to the test because it was qualified with terms like clearly
    and strikingly and therefore suggested a measure of degree which was lacking from
    the dangerous driving charge.

[27]

The respondent submits that the trial judge made
    no error in explaining the
mens rea
for dangerous driving and criminal
    negligence. The jury charge correctly and sufficiently equipped the jury to
    appreciate the central
mens rea
issue, namely that the departure from
    the expected standard had to go beyond that required for civil liability and serious
    enough to merit punishment. The charge accomplished this by telling the jury
    that the departure had to be marked for dangerous driving, and marked and
    substantial for criminal negligence, that a higher degree of negligence was
    required than for careless driving, and that a criminal conviction required
    more than carelessness or momentary inattention.

[28]

The respondent further argues that references to
    dictionary synonyms for terms such as marked or substantial is not
    inherently objectionable, and it did not dilute the required legal standard for
    a criminal conviction here. The trial judge correctly and comprehensively set
    out the requisite degree of fault for the jury. In any event, the respondent
    argues that the appellant was not prejudiced in the circumstances given the
    evidence and the mid-charge instruction given by the trial judge.

(1)

The Principles

[29]

It is clear that the
actus reus
of the
    dangerous driving offence is conduct which, viewed objectively in all the
    circumstances, constitutes a danger to the public actually present or who may
    reasonably be expected to be present. It is the manner in which the vehicle was
    driven that is at issue, not the consequences of that driving:
R. v. Roy
,
    2012 SCC 26, [2012] 2 S.C.R. 60, at para. 35. However, the consequences may
    assist the trier of fact in assessing the risk involved:
R. v. Mueller
(1975), 29 C.C.C. (2d) 243 (Ont. C.A.).

[30]

With respect to the
mens rea
for both
    dangerous driving and criminal negligence, the starting principle is that penal
    negligence must exceed the objective norm for establishing civil negligence: A
    mere departure from the standard expected of a reasonably prudent person will
    meet the threshold for civil negligence, but will not suffice to ground
    liability of penal negligence:
R. v. Beatty
, 2008 SCC 5, [2008] 1
    S.C.R. 49, at para. 7.

[31]

In
Beatty
, the driver of a pickup truck
    had suddenly veered into oncoming traffic, causing a serious accident in which
    all three occupants of the oncoming car were killed. There was no doubt that
    the
actus reus
of dangerous driving was made out in that the driver
    crossed the centre line, but the evidence indicated that the dangerous conduct
    was only due to a momentary lapse of attention. There was no evidence of
    improper driving before the car momentarily crossed the centre line, nor was
    there any evidence that the driver was under the influence of intoxicants.
    Charron J., writing for the majority, set out the
mens rea
for
    dangerous driving, at para. 7, as follows:

The modified objective
    test established by this Courts jurisprudence remains the appropriate test to
    determine the requisite
mens rea
for negligence-based
    criminal offences. As the label suggests, this test for penal negligence
    modifies the purely objective norm for determining civil negligence. It
    does so in two important respects. First, there must be a marked departure
    from the civil norm in the circumstances of the case. A mere departure
    from the standard expected of a reasonably prudent person will meet the
    threshold for civil negligence, but will not suffice to ground liability for
    penal negligence. The distinction between a mere departure and a marked
    departure from the norm is a question of degree. It is only when the conduct
    meets the higher threshold that the court may find, on the basis of that
    conduct alone, a blameworthy state of mind.

[32]

At para. 8, Charron J. went on to explain that
    the modified objective test for penal negligence cannot ignore the actual
    mental state of the accused:

[
U]nlike the test for civil
    negligence which does not concern itself with the mental state of the driver,
    the modified objective test for penal negligence cannot ignore the actual
    mental state of the accused.
Objective
mens rea
is
    based on the premise that a reasonable person in the accuseds position would
    have been aware of the risks arising from the conduct. The fault lies in the
    absence of the requisite mental state of care. Hence, the accused cannot avoid
    a conviction by simply stating that he or she
was not thinking
about
    the manner of driving. However, where the accused raises a reasonable doubt
    whether a reasonable person in his or her position would have been aware of the
    risks arising from the conduct, the premise for finding objective fault is no
    longer sound and there must be an acquittal. [Emphasis in original.]

[33]

Instructing a jury on dangerous driving and
    criminal negligence has long been recognized as a challenging endeavor. As
    Sopinka J. noted in
R. v. Anderson,
[1990] 1 S.C.R. 265, at p. 269:

In approaching the
    critique of a trial judgment dealing with a charge of criminal negligence, one
    can only have profound sympathy for the plight of the trial judge. This area of
    the law, both here and in other common law countries, has proved to be one of
    the most difficult and uncertain in the whole of the criminal field.

[34]

The Supreme Court, in
R. v. MacGillivray
,
    [1995] 1 S.C.R. 890
,
held that it is not an error of law for a judge
    to use words other than marked to describe the level of departure from the
    standard of care that a reasonable person would observe in the accuseds
    situation as long as the word is truly a synonym. In that case, the trial judge
    had used the term significant instead of marked, which the court found to
    have been more stringent and thus not prejudicial to the accused. However, Cory
    J. stated that, while using a term that is clearly synonymous to marked will
    not constitute an error of law, it is nevertheless preferable to use the words
    employed by the Supreme Court in
R. v.

Hundal,
[1993] 1
    S.C.R. 867;
MacGillivray,
at para. 14. The clear message is that,
    while it is tempting to employ apparent synonyms in an attempt to explain or
    flesh out the meaning of marked to a jury, a trial judge who does so risks
    falling into error.

(2)

The Principles Applied

[35]

I would not give effect to this ground of appeal
    for a few reasons. At the outset, I would observe that there were extensive
    pre-charge discussions between counsel and the trial judge. There were also
    discussions during the charge that resulted in some modifications, particularly
    with respect to the distinction between dangerous driving and criminal
    negligence. Trial counsel were in the best position to understand the triable
    issues in this case and whether the charge adequately addressed those issues. Neither
    counsel made any objections to the charge.

[36]

Second, I disagree that the trial judge erred by
    using synonyms to explain that the departure from what a reasonable, prudent
    driver would do in the same circumstances had to be a marked one to warrant
    criminal punishment. Although it would have been better had the trial judge
    altogether stayed away from synonyms, no one objected to their use and,
    importantly, the ones used did not inject confusion into the charge. At the end
    of the day, read in totality, the charge clearly conveyed what a

marked and a marked and substantial departure from
    a reasonable, prudent driver meant, and eschewed any notion of mere
    carelessness or momentary inattention.

[37]

Third, I disagree with the suggestion that the
    trial judge failed to instruct the jury that dangerous driving is a measure of
    degree. She explicitly told them that the fault requirement must be higher than
    civil negligence. In her charge, she tells the jury that [d]angerous driving
    involves more than just carelessness or momentary inattention. Further, as a
    result of Mr. Deros counsels request, she delivered a clarifying instruction,
    as set out above, that fleshed out the distinction between dangerous driving and
    criminal negligence. That clarifying instruction clearly conveyed the spectrum
    of criminal responsibility represented by the two charges.

[38]

Fourth, I do not accept the suggestion that the
    jury may have convicted the appellant on the mere basis that he admitted to
    driving at a speed up to 80 kph because the jury could have found that speed to
    be noticeable. The record in this case belies that suggestion, particularly
    the convictions for street racing. Those convictions were well founded in the
    evidence, including Mr. Dero evidence regarding the speed at which the cars
    were travelling and the evidence of the accident reconstructionist.

[39]

Finally, in the event that the charge on the street
    racing counts was free of error, a subject I will arrive at soon, there can be
    no doubt that the two accused were also guilty of dangerous driving and
    criminal negligence. Indeed, the parties agreed that if the appellant and his
    co-accused were involved in a street race, this would effectively amount to
    proof on all counts.

[40]

This brings me to the submissions on the trial
    judges adverse inference instruction and its effect on the street racing
    counts.

B.

The Adverse Inference Charge

[41]

The appellant does not submit that the trial
    judge erred in her charge with respect to her instructions to the jury on street
    racing
per se
. Rather, he argues that her charge was inadequate with
    respect to the effect of her finding that Mr. Dero had absconded. The appellant
    argues that the trial judges instruction on the adverse inference resulting
    from Mr. Deros abscondment should have been more precise, and specifically
    tailored to avoid Mr. Deros consciousness of guilt bleeding into, or
    bolstering, the appellants culpability.

[42]

Section 475(1) of the
Criminal

Code
provides as follows:

475 (1) Notwithstanding any other
    provision of this Act, where an accused, whether or not he is charged jointly
    with another, absconds during the course of his trial,

(a) he
    shall be deemed to have waived his right to be present at his trial, and

(b) the
    court may

(i)
    continue the trial and proceed to a judgment or verdict and, if it finds the
    accused guilty, impose a sentence on him in his absence, or

(ii) if a
    warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to
    await his appearance,

but where
    the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any
    time, continue the trial if it is satisfied that it is no longer in the
    interests of justice to await the appearance of the accused.

(2) Where
    a court continues a trial pursuant to subsection (1), it may draw an inference
    adverse to the accused from the fact that he has absconded.

[43]

During the pre-charge discussions, in the wake
    of Mr. Deros abscondment, the trial judge stated that the charge would follow
    the language of s. 475(2) and need not include more detail. Counsel understood
    that the adverse inference would go to consciousness of guilt. The Crown also
    sought an adverse inference as to Mr. Deros credibility since he had testified
    at trial and put his character in issue. The appellants lawyer was concerned
    that an adverse inference on credibility could reflect very badly on the
    appellant. In response, the trial judge added the caution that the adverse
    inference against the co-accused should have no role in the jurys
    deliberations with respect to the appellant. The appellants lawyer took no
    issue with this charge and the trial judge proceeded to charge the jury as
    follows:

I just wanted, I instructed you yesterday, I advised
    you that the
Criminal Code
provides that a trial can continue in the
    absence of an accused and that is what we are doing in this case. We are
    continuing the trial in the absence of Mr. Dero. I have found that Mr. Dero has
    absconded, and he has absented himself from the trial and that being the case
    you may draw an adverse inference from the fact that he has absconded.



Just before we go
    for the break I wanted to remind you that, as I instructed you earlier, when
    deliberating your verdicts with respect to Mr. Dero you may draw an adverse
    inference from the fact that he has absconded. However, the fact that he has
    absconded must play no part in your deliberations with respect to [the
    appellant]. Mr. Deros absconding has nothing whatsoever to do with [the appellants]
    case and must play no role whatsoever when you are deliberating your verdicts
    with respect to [the appellant].

[44]

Despite this limiting instruction, the appellant
    submits that the instruction did not go far enough, particularly in light of
    the street racing counts. As I noted earlier, the parties agreed that, if the appellant
    and Mr. Dero were involved in a street race  particularly at the speeds the
    Crown alleged they drove  this would effectively amount to proof of all the
    counts, as it would be a deliberate act of dangerous or negligent driving. As
    the co-accuseds counsel told the jury:

Because if he was
    racing his car then a finding of guilt on any of the counts 7 to 12, the racing
    charges, is going to be available. And that effectively provides you with a
    legal shortcut to a conclusion of either dangerous operation or criminal
    negligence.

[45]

The act of racing requires joint participation
    or mutuality. The previous version of s. 2 of the
Code
defines street
    racing as operating a motor vehicle in a race with at least one other motor
    vehicle on a street, road, or highway or other public place.
[1]
As counsel for the appellant
    put it: You cant have a one-horse race. Later in the closing submissions,
    the appellants lawyer told the jury:

But to prove
    racing, the Crown must prove an engagement by two or more people to the race.
    Her Honour will give you the law in this regard. And in other words, it takes
    two to tango. There cant be a one, there cant be a one-person race.

[46]

Moreover, the trial judge defined street racing
    to the jury as a mutual endeavour, involving the participation of both accused.
    She set out the racing counts in the charge to the jury as follows:

In order to
    establish street racing the Crown must establish that [the appellant] and Mr.
    Dero engaged in a race, a contest of speed. This essential mutuality component
    requires evidence that both were jointly and intentionally involved in a race.

[47]

The appellant submits that the trial judge erred
    in failing to give an adverse inference instruction that distinguished between
    making an adverse inference as going to Mr. Deros credibility and one going to
    consciousness of guilt.

[48]

With respect to an adverse inference against Mr.
    Deros credibility, the appellant argues that the jury should have been told
    not to reason that, because his co-accused admitted to driving well in excess
    of the speed limit, they could apply the adverse inference to the appellant as
    well. Further, the jury should have been told not to reject the exculpatory
    portions of Mr. Deros evidence that were helpful to the appellant.

[49]

With respect to the adverse inference of
    consciousness of guilt, the appellant submits that this inference made it
    nearly impossible to conclude the appellant was not also racing given the
    mutuality requirement of the offence. Therefore, the appellant argues that the
    instructions needed to set out that the jury could not infer that he had a
    guilty mind simply because Mr. Dero absconded.

Issue #1: Impact of an adverse inference in
    relation to credibility

[50]

The appellant submits that the adverse inference
    instruction was proper as far as it went but that it should have gone further.
    As the adverse inference was only admissible against Mr. Dero, the jury should
    have been instructed that, if they were assessing Mr. Deros evidence in terms
    of his admissions - particularly his admission that he was driving well above
    the speed limit - this evidence could not be bolstered on account of his
    absconding, nor could it be used against the appellant. Moreover, the jury
    should have been told not to reject parts of Mr. Deros evidence that assisted
    the appellant - for instance, that they were not racing or that he saw no
    passenger in his vehicle - simply because he had absconded.

[51]

I would not accept this submission.

[52]

To begin with, it is entirely appropriate for
    the adverse inference against the co-accuseds credibility to have an indirect
    impact on the appellant because the jury can consider the totality of the
    evidence it heard, including evidence both for and against the appellant, in
    determining the appellants culpability.

[53]

Mr. Dero chose to take the stand at trial. It
    was open to the jury to apply an adverse inference against his credibility when
    he absconded since he had opened the door to having the trustworthiness of his
    evidence challenged by testifying.

[54]

The adverse inference drawn against the
    co-accused was part of the totality of the evidence that the jury heard and
    could permissibly impact the jurys overall assessment of the Crowns case. As
    this court has noted: [I]t is perfectly proper for the jurys assessment of
    the overall credibility of one co-accused to be influenced by the totality of
    the evidence they have heard, including evidence relating to another
    co-accused:
R. v. Salah
, 2015 ONCA 23, 328 O.A.C. 333, at para. 122,
    citing
R. v. Rojas
, 2008 SCC 56, [2008] 3 S.C.R. 111, at paras. 24-25.
    Even where a co-accused pleads guilty, the accuseds trial is not rendered
    unfair by the jury considering a co-accuseds evidence if they are warned not
    to draw an adverse inference against the accused.

[55]

In this case, the trial judge cautioned the jury
    that an adverse inference should not be drawn against the appellant. The
    appellant got the benefit of the co-accuseds evidence, untainted by his
    abscondment, to the extent that it assisted the appellant and, similarly, the
    disadvantage of the co-accuseds evidence to the extent that this evidence
    could be used against him. For example, it was open to the jury to accept Mr.
    Deros evidence as to the speed he was driving and reject the appellants
    evidence that he was driving no faster than 80 kph.

[56]

In my view, the trial judge could not have gone
    farther than explicitly instructing the jury that Mr. Deros abscondment could
    play no role whatsoever in the jurys deliberations. The charge effectively
    shielded the appellant from the effect of Mr. Deros abscondment.

Issue #2: Impact of adverse inference in
    relation to consciousness of guilt

[57]

A trial against an accused is not rendered
    unfair when a co-accused absconds, provided that the jury is cautioned that
    they are not to draw an adverse inference against the remaining accused:
R.
    v. Garofoli
(1988), 64 C.R. (3d) 193 (Ont. C.A.), revd on other grounds,
    [1990] 2 S.C.R. 1421. While it is preferable for a trial judge to caution the
    jury that an adverse inference should not be drawn against an accused by reason
    of the fact that his co-accused absconded during the trial, failure to do so
    does not necessarily result in a miscarriage of justice:
R. v. Mitchell
,
    [1979] O.J. No. 95 (C.A.), at para. 3.

[58]

Here, the trial judge did caution the jury, in
    strong terms, not to use the adverse inference against the appellant. The
    appellant, however, states that a caution was not enough. Instead, the jury
    should have been told not to draw an adverse inference in relation to street
    racing because of the mutuality requirement of that offence. Essentially, he
    argues that the adverse inference that Mr. Dero absconded because of his
    consciousness of guilt could, at least theoretically, tip the balance towards a
    finding that Mr. Dero was street racing. Due to the mutuality requirement of
    the offence, this could prejudice the appellant if, for example, but for an adverse
    inference as to his consciousness of guilt, Mr. Dero would have been acquitted
    on that count.

[59]

The mutuality component of street racing
    requires evidence of a common intention between the two parties to encourage or
    incite each other to race. As described by Hill J. in
R. v. Menezes
(2002), 50 C.R. (5th) 343 (Ont. S.C.), at para. 101:

By their actions,
    those who race at excessive speeds on a public roadway assist one another in
    creating a dangerous risk. Each encourages and incites the other. The drivers
    either deliberately assume the risk of danger to themselves and others or, in
    the circumstances of the degree of departure from reasonably prudent and lawful
    driving standards, can be taken as having an unrestrained disregard for the
    consequences of their actions. It is the mutuality of their contribution toward
    the rivalry of speed which creates a singular hazardous situation.

[60]

Evidence of a race is often drawn from
    circumstantial evidence such as synchronized or in-tandem aggressive movements
    of two vehicles, marked by high speed and close proximity over a material
    distance, often accompanied by abrupt lane changes, blocking, or bold
    manoeuvres in and out of traffic to name a few indicia:
R. v. Machado
(2010), 92 M.V.R. (5th) 58.

[61]

Each case falls to be decided on its own set of
    facts. The
actus reus
and
mens rea
components of the offence require
    the trier of fact to consider each partys overall driving conduct:
R v.
    Durani
, 2022 ONCA 17, at para. 11. For example, one party accused of
    street racing may raise an intervening event, such as evidence that he or she
    has withdrawn from the race, to avoid culpability. However, absent an
    intervening event, when two drivers engage in street racing, both are
    considered in law to have caused injury to those harmed by their racing:
R.
    v. Williams
, 2020 ONCA 30, at para. 15.

[62]

Therefore, as a matter of law, it is not true
    that the finding of guilt of one co-accused to an offence containing a
    mutuality requirement must result in a finding of guilt of another co-accused:
R.
    v. Guimond
, [1979] 1 S.C.R. 960 at 977.

[63]

In effect, the appellants position reads into
    s. 475(2) a limitation that does not exist: that an adverse inference against
    the absconding accused cannot be drawn in an offence with a mutuality
    requirement because one accuseds consciousness of guilt means the guilt of the
    other. This is not correct.

[64]

Here, the trial judge correctly instructed the
    jury to consider each charge separately for each co-accused. The charge
    instructed them to consider all of the circumstances to assess whether there
    had been a race, to consider the testimony of each accused to assess whether
    they believed some, none, or all of it and the burden on the Crown to prove the
    essential elements beyond a reasonable doubt against each accused.

[65]

Even if it were theoretically possible that the
    adverse inference against one accused might tip the balance on road racing and
    result in a conviction of both accused when it might otherwise have been an
    acquittal or inconsistent verdicts, that scenario was not borne out by the
    evidence in this case. The evidence of road racing was supported by the record,
    including:

·

The relative speeds of the vehicle as shown by
    the video and the EDR;

·

Mr. Deros evidence that he was passing other
    vehicles before the appellant passed him;

·

The appellants own evidence that he passed Mr.
    Dero on the downslope towards the intersection;

·

Det. Spencers accident reconstruction that
    showed the appellant hitting Mr. Hos vehicle first, followed seconds later by
    Mr. Dero; and

·

The evidence of Ms. Villanueva who said they
    appeared to be racing as they approached the intersection.

[66]

While some of the witnesses at the scene did
    estimate the speed of the two cars as quite low, the objective and expert
    evidence supports the jurys conclusion. And, while Mr. Dero denied racing, his
    concession on his speed and the evidence showing that the appellant passed him
    just before the crash shows that the accused were driving very fast indeed.

[67]

The appellant was not entitled to effectively
    immunize himself from the effect of Mr. Deros evidence with the evidence as a
    whole before the jury. It was open to the jury to find, as it did, that the two
    men had been engaged in street racing, and I find no error in the trial judges
    instruction to the jury.

C.

The Highway Traffic Act Instruction

[68]

Finally, the appellant submits that the trial
    judge erred in her discussion of the
appellants

HTA
offences
    as a prior inconsistent statement that could affect the jurys assessment of
    his credibility.

[69]

In his direct examination, the appellant
    testified that he had a clean driving record when, in fact, he had a 2014
    conviction for speeding and failing to produce his insurance. The trial judge
    referred to this evidence at two points in her charge: as an example of a prior
    inconsistent statement given by the appellant, and generally in relation to his
    credibility and character. In its use as a prior inconsistent statement, the
    trial judge noted:

Inconsistency may also arise when a witness
    says different things within the course of the trial itself, for example, when
    a witness says something different in examination in-chief than he later says
    in cross-examination. For example, in the present case, [the appellant] was
    asked about his driving record during his examination in-chief. He stated that
    it was clean and that he never even had a parking ticket. He denied having any
    speeding tickets. After the lunch break his lawyer showed him his driving
    record, which includes a conviction for speeding and failing to produce his
    insurance card. [The appellant] testified that he got a ticket in 2013 for
    going 64 kilometres an hour in a 50-kilometre zone. In cross-examination [the
    appellant] was asked why when he was initially asked about his driving record
    he stated that it was clean and made no mention of a speeding ticket, he explained
    that he thought the question referred only to convictions within the last three
    years. The driving record indicates that [the appellant] on July 8th, 2014 of
    going 72 kilometres an hour in a 50-kilometres an hour zone and that he
    received three demerit points. On that same date he was also convicted of
    failing to produce his insurance card. [The appellant] insisted that he was
    only convicted of going 14 or 15 kilometres over the speed limit, but
    acknowledged that he got the speeding ticket on the same day that he got the
    ticket for not having his insurance card. He did not remember receiving the
    demerit points.

If you find that
    there is an inconsistency in what [the appellant] initially said when he was
    asked about his driving record, and what he later said about it, consider the
    fact, nature and extent of any differences between the versions in deciding
    whether or how much you will believe of or rely upon his testimony in deciding
    this case. Bear in mind that not every inconsistency will be significant. You
    must also take into account any explanation [the appellant] gave for any
    inconsistency in his testimony.

[70]

Later in the charge, she commented on the appellants
    prior
HTA
convictions in her discussion about good character, and in
    relation to the appellants credibility generally. The trial judge instructed
    the jury as follows:

[The appellant] also testified that he had a
    clean driving record but later acknowledged that he had been convicted of the
Highway
    Traffic Act
offences of speeding and failing to produce his insurance
    card. As I earlier stated, you must not use the fact that [the appellant] has
    previously been convicted of an offence in the past as evidence that he
    committed the offences charged or that he is the sort of person who would
    commit the offences charged. However, you may use the fact and nature of a
    prior conviction to help you decide how much or how little you will believe of
    and will rely upon [the appellants] evidence in deciding this case.

A previous conviction does not necessarily
    mean that you cannot or should not believe or rely upon the testimony of [the
    appellant] to help you decide this case. Some convictions, for example,
    convictions involving dishonesty, may be more important than others in deciding
    how much or how little you would believe or rely upon the testimony of a
    witness. Other convictions, such as driving offences, may be less important.
    Consider as well whether the previous convictions are recent or happened a
    number of years ago. An old conviction may be less important than a more recent
    one. Use your common sense and experience.

Through [the
    appellants] testimony you have heard evidence of his good character. You may
    also consider the evidence of his previous
Highway Traffic Act
convictions to help you decide how much or how little you will believe of and
    rely upon his testimony regarding his good character. However, it is very
    important that you understand that you must not use the fact or nature of the
    prior convictions to decide or help you decide that [the appellant] is the sort
    of person who would commit the offences charged.

[71]

The appellant submits that the trial judges
    instruction that they could use the
HTA
offence akin to a prior
    criminal conviction in assessing his credibility was unduly prejudicial and unfair,
    particularly given the similarity of the
HTA
offence to the matters
    before the court: see
R. v Corbett
, [1988] 1 S.C.R. 670, at pp. 738-39.
    The jury had already been instructed that, as a potential prior inconsistent
    statement, they could take it into account in assessing the appellants
    credibility.

[72]

The respondent refers to the pre-charge
    conference, at which the trial judge initially took the view that the
HTA
record was only relevant to the appellants credibility assessment, but made
    the more extensive and impugned instructions after his trial counsel advised
    that he was going to rely on the appellants good character for the purpose of
    both enhancing his credibility and making him less likely to commit the
    offences.

[73]

I would agree that, read in its entirety, this
    instruction went too far and was prejudicial to the appellant. Despite the fact
    that the trial judge cautioned the jury that they were not to reason that the
    accuseds inconsistent statements meant that he was the sort of person who
    would commit these offences, the prejudice was implicit both from the fact that
    these were similar to the charges at issue, and thus invoked the heart of
Corbett
,
    and from the fact that the trial judge devoted undue attention to the point.

[74]

That said, I am satisfied that this is a
    circumstance that justifies the application of the curative proviso s.
    686(1)(b)(iii) of the
Code
. The appellants credibility was significantly
    undermined when he first volunteered that he had a clean driving record,
    without even a parking ticket, and then insisted that the official driving
    record was inaccurate. Any vestigial effect on his credibility from the trial
    judges
Corbett
instruction was so minor that any error in this regard
    caused the appellant no substantial wrong or miscarriage of justice. As
    discussed earlier in these reasons, the appellant testified in a number of
    other respects, such as his speed, his suggestion that neither his Lincoln nor
    Mr. Deros Mercedes appeared in the video, and that the EDR was inaccurate. The
    jury had ample grounds to conclude that the appellant was not credible in a
    number of key elements of his evidence. Accordingly, the error was harmless, and
    would not have affected the outcome:
R. v. Samaniego
, 2022 SCC 9,

at
    para. 78. I would reject this ground of appeal.

Disposition

[75]

For these reasons, I would dismiss the appeal.

Released: April 7, 2022 J.M.F.

A. Harvison Young J.A.

I agree Fairburn A.C.J.O.

I agree K. Feldman J.A.





[1]
This definition of street racing has been repealed from the
Code
.
    Street racing is now considered an aggravating factor in the dangerous
    operation of a conveyance in s. 320.22 of the
Code
. The current
    provision warns that it is an aggravating factor to operate a motor vehicle in
    a race with at least one other person or in a contest of speed:
An Act to
    amend the Criminal Code (offences relating to conveyances) and to make
    consequential amendments to other Acts
, S.C. 2018, c. 21, s. 12.


