



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Kassem, 2015 ONCA 320

DATE: 20150508

DOCKET: C56888

Feldman, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamad Al-Kassem

Appellant

Michael Dineen, for the appellant

James V. Palangio and Molly Flanagan, for the respondent

Heard: April 29, 2015

On appeal from the conviction entered on March 8, 2013 by
    Justice Nancy M. Mossip of the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

The appellant was convicted by a jury of criminal negligence causing
    death and leaving the scene of an accident. He appeals from the conviction for
    criminal negligence causing death on the basis that the verdict on that count
    was necessarily inconsistent with the jurys verdict acquitting him of
    dangerous driving causing death for the same conduct. We agree that the
    verdicts are necessarily inconsistent, and that the appeal must therefore be
    allowed.

[2]

The driving that led to both charges and to the death of Ronald Persaud was
    the culmination of a parking lot confrontation between the appellant and Mr.
    Persaud. At trial the appellant argued that he drove away to escape an attack
    by Mr. Persaud. He argued self-defence, accident and that his driving was not a
    marked or substantial departure from the norm expected of a reasonably prudent
    driver in those circumstances.

[3]

The issue of inconsistent verdicts in a driving case was recently discussed
    by this court in
R. v. Catton
, 2015 ONCA 13, at para. 21:

Inconsistent verdicts are a subspecies of unreasonable
    verdicts:
R. v. Pittiman
, [2006] 1 S.C.R 381 at para. 6. If a trier of
    fact returns a conviction on one count (or against one accused), and an
    acquittal on another count (or against a co-accused), the inconsistency in the
    verdicts will only render the conviction unreasonable if the appellant can
    demonstrate that on any realistic view of the evidence, the verdicts cannot be
    reconciled on any rational or logical basis:
R. v. McShannock
(1980),
    55 C.C.C. (2d) 53 (Ont. C.A.) at 56;
Pittiman
, at paras. 7-8.

[4]

There can be no doubt that the act of driving a motor vehicle in a
    parking lot in such a fashion as to strike a nearby person and drag him under
    the car for some distance is objectively dangerous. In this context, what
    distinguishes criminal negligence from dangerous driving is the mental element.
    For criminal negligence the Crown has to prove that the conduct amounted to a
    marked and substantial departure from the conduct of a reasonably prudent
    driver. For dangerous driving, the Crown has to prove that the conduct amounted
    to a marked departure from the conduct of a reasonably prudent driver. There is
    no logical basis in this case upon which the jury could have found that both
    elements were present for the count of criminal negligence, but that one of
    those elements, a marked departure, was not proven for dangerous driving.

[5]

The Crown argues that in the case, the elements of the
actus reus
of dangerous driving, such as the amount of traffic or the number of
    pedestrians that were present, are different from the elements of the
actus
    reus
of criminal negligence. It submits that the jury might have found that
    the manner of driving was not dangerous and acquitted the accused on that count
    for that reason, although it did find that the driving was a marked and
    substantial departure from the norm expected of a reasonable driver. We reject
    this submission. Here the identical conduct was alleged to have been the basis
    for both charges, and

the
actus reus
was indisputably dangerous, driving rapidly forward to as to strike Mr. Persaud
    and drag him under the vehicle.

[6]

By acquitting the appellant of dangerous driving causing death, the jury
    was not satisfied to the necessary standard that the appellants driving
    constituted a marked departure from the norm expected of a reasonable driver,
    and he is entitled to the benefit of the jury acquittal on that count. The
    Crown has not appealed from that acquittal, nor is there any suggestion that
    there would be any basis for such an appeal. To order a new trial on the
    criminal negligence count would necessarily invite another inconsistent
    verdict. For this reason, as in
R. v. Catton
and
R. v. J.F.
[2008] 3 S.C.R. 215, an acquittal on the criminal negligence count is the appropriate
    remedy.

[7]

Given this conclusion it is not necessary to address the other grounds
    of appeal from the conviction for criminal negligence.

[8]

We do observe that pursuant to s. 662(5) of the
C
riminal
C
ode
,
    where criminal negligence causing death by driving is not proven, dangerous
    driving causing death is expressly made an included offence. It is difficult to
    see what advantage there could be to including both counts separately on an
    indictment in circumstances like these rather than relying on the operation of
    s. 662(5). The risk is what occurred in this case: juror confusion or
    inconsistent verdicts. If a trial judge is compelled to instruct on separate
    counts in the indictment in these circumstances, it may be appropriate to instruct
    the jury that a conviction for the more serious offence necessarily requires a
    conviction on the lesser offence.

[9]

The appellant also argues that his conviction for leaving the scene of
    the accident must also be set aside. He argues that while there may be no
    logical inconsistency between the conviction on this count and the disposition
    of the other counts, as in
Catton
at para. 29:

However, the irreconcilable inconsistency between the
    conviction on count one and the acquittal on count two, raises serious doubts
    about all of the convictions. The inconsistent verdicts on counts one and two
    suggest either a serious misunderstanding of the trial judges instructions, or
    a misguided compromise among the jurors as to the appropriate verdicts:
McShannock
,
    at p. 56. In either case the inconsistent verdicts undermine the reliability of
    all the convictions.

[10]

In
    any event, the jury charge was flawed in respect of this charge in the
    instruction on evidence to the contrary. The trial judge correctly instructed
    the jury as follows:

You may conclude, in the absence of any evidence to the
    contrary, that Mr. Al-Kassem intended to escape civil or criminal liability for
    the accident by failing to do what the law requires of him. By evidence to the
    contrary, I mean evidence that you do not reject that leads you to believe or
    have a reasonable doubt that Mr. Al-Kassem intended to escape civil/criminal
    liability for that accident. Consider all the circumstances. It is for you to
    say.

[11]

However,
    in the immediately following paragraph she indicated:

In this case, there is what is referred to above as evidence
    to the contrary. There is the evidence of Mr. Al-Kassem himself that he left
    the scene of the accident because he was afraid for his life and partly because
    he was an unlicensed driver. This evidence to the contrary, if you accept it,
    takes away the presumption that Mr. Al-Kassem left the scene of the accident to
    escape civil or criminal liability for the accident for failing to do what the
    law requires of him.

[12]

This
    instruction took away the possibility that the presumption could be rebutted by
    evidence to the contrary which was not necessarily accepted, but which raised a
    reasonable doubt.

[13]

For
    these reasons, the appeal is allowed, the conviction for dangerous driving causing
    death is set aside and an acquittal is entered on that count. The appeal is
    allowed on the conviction for leaving the scene of the accident, and a new
    trial is directed on that count.

Released: May 8, 2015

(K.F.)                                                                              
    K. Feldman J.A.

G. Pardu J.A.

David Brown J.A.


