



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2020 ONCA 30

DATE: 20200117

DOCKET: C65735

Gillese, Rouleau and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Taylor Williams

Appellant

Cara Barbisan, for the appellant

Gerald Brienza, for the respondent

Heard: January 16, 2020

On appeal from the conviction entered on April 18, 2018
    by Justice Jennifer Woollcombe of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

Taylor Williams (the appellant) and his friend,
    Ronald Hopkins, were street racing on a sunny day in April 2018. The roads on
    which they were travelling were clear and dry, with a posted speed limit of 60
    kph. Mr. Hopkins lost control of his car at a bend in the road and struck a
    lamp post, killing Candace Gabriel, the passenger in his car.

[2]

Both the appellant and Mr. Hopkins were
    convicted, after trial by judge alone, of dangerous driving causing death. The
    main issue at trial was whether Mr. Hopkins car had an unexpected mechanical
    failure that made him unable to operate his car normally. No mechanical
    inspection was done of his car after the crash.

[3]

In support of its case, the Crown: tendered
    photographs from the collision scene; called evidence from four civilians who
    observed the driving of the co-accused shortly before the collision; played
    video surveillance taken from cameras of businesses located on the road on
    which the collision took place and which captured the cars that each co-accused
    was driving shortly before the collision; and called expert evidence on the
    critical curve speed at the bend in the road where the collision took place.

[4]

Mr. Hopkins testified in his own defence. The
    appellant exercised his right to not testify. The defence also called expert
    evidence from an engineer on automotive mechanics generally and the potential
    automotive failure that could be inferred from the wreckage and debris on the
    road.

[5]

The trial judge found that Mr. Hopkins was
    travelling about 100 kph at a point where the critical curve speed was 88 kph
    and it was that which caused him to lose control of his car and hit the pole.

[6]

The appellant submits that the trial judge erred
    in: (1) failing to consider that a mechanical failure of Mr. Hopkins car was a
    reasonable inference and could have accounted for the accident and/or (2) her
    causation analysis as it pertained to him.

[7]

We dismissed the appeal at the completion of the
    hearing for reasons to follow. These are the promised reasons.

(1)

The trial judge considered a
    possible mechanical malfunction

[8]

The appellant says that the trial judge failed
    to properly consider the evidence in support of an inference that a mechanical
    failure of Mr. Hopkins vehicle was the cause of the accident. He points to
    three sources of evidence:

1.

Mr. Hopkins evidence;

2.

The statement that Mr. Hopkins made at the time
    that a witness to the accident called 911. In the 911 call, Mr. Hopkins can be
    heard asking the witness placing the call What happened to my wheel? Did it
    break? and

3.

The evidence on what could have been learned
    from the car wreckage had it been preserved for inspection.

[9]

The appellant takes no issue with the trial
    judges handling of Mr. Hopkins evidence which, for lengthy and detailed
    reasons, she found unreliable. She also squarely rejected his evidence on a
    possible mechanical failure.

[10]

However, the appellant says the trial judge
    failed to properly consider Mr. Hopkins statement overheard in the 911 call.
    We disagree.

[11]

At para. 165 of her reasons, the trial judge
    acknowledges the statement and Mr. Hopkins testimony about it. She states that
    she was not persuaded that the statement was an assertion showing that, at
    the time of the accident, Mr. Hopkins believed there had been a mechanical
    issue with the car.  She said that Mr. Hopkins was trying to turn what was
    effectively a question to the witness into an assertion of a mechanical
    failure. She found that, read in context, the statement was simply Mr. Hopkins
    attempt to ascertain from the witness what had happened. It was entirely open
    to the trial judge to make this finding.

[12]

In terms of the experts conflicting evidence
    about what might have been learned from the car wreckage, had it been preserved
    for inspection, the trial judge addresses this at para. 161 of her reasons. 
    She found it unnecessary to speculate as to what if anything might have been
    gleaned by such an inspection. She noted that there was no physical evidence
    that supported Mr. Hopkins assertion of a mechanical failure but went on, in
    the following paragraphs, to explain that was not why she rejected his evidence
    on this matter. She rejected it because it was incredible, explaining that the
    vehicle had been road safe, had never had any mechanical difficulties, was
    performing well into the bend, and was then said to have suddenly stopped
    performing.

[13]

The trial judge also acknowledged that the
    defence expert testified that mechanical failure appeared to be possible, given
    the evidence about how the car leaned. However, the trial judge found the
    defence expert to be unreliable and gave cogent reasons for this.

[14]

Thus, we do not accept that the trial judge
    committed the alleged errors in relation to a possible mechanical malfunction.

(2)

The trial judge made no error in her
    assessment of causation as it relates to the appellant

[15]

The law is clear that, absent an intervening
    event, when two motorists engage in street racing, both are considered in law
    to have caused injury to an innocent third party who is harmed because of their
    racing. The appellant acknowledges this legal principle but says that the trial
    judge failed to recognize an intervening event, namely, that he had withdrawn
    from the race. In support of this ground of appeal, he points to the videos
    that show that his car was behind Mr. Hopkins when the crash occurred.

[16]

We do not accept this submission. The trial
    judge addresses this point at para. 172 of her reasons when considering whether
    the appellants conduct was a significant contributing cause of Ms. Gabriels
    death.

[17]

In para. 172, the trial judge sets out her
    finding that the appellant instigated the racing by revving his engine twice
    and that he then drove at an objectively dangerous rate of speed.  She then
    states:

The videos show that [the appellant] was ahead
    of Mr. Hopkins and then
fell slightly behind
by the time they reached the Wasteco.  But, I am prepared to find
    that for most of the time after the intersection, he actively engaged in the
    race, and chose to maintain a position parallel, or close to parallel, with Mr.
    Hopkins. [Emphasis added.]

[18]

In short, the trial judge found that the
    appellant did not withdraw from the race. Rather, she found that after
    instigating the race, the appellant chose to actively engage in it, remaining
    parallel or close to parallel with Mr. Hopkins car. While he may have fallen
    slightly behind Mr. Hopkins car at the point of the crash, the trial judges
    findings of fact make clear that the slight falling behind was not the function
    of leaving the race. On the trial judges findings, there was no intervening
    event.

[19]

After finding that the test for factual
    causation had been met for both co-accused, the trial judge concluded that the
    test for legal causation had also been met: a reasonable person in the position
    of both co-accused would have easily recognized the foreseeable risk of
    immediate and substantial harm that their driving posed not only to themselves
    but to other drivers and innocent third parties.

[20]

For these reasons, there is no error in the
    trial judges causation analysis as it relates to the appellant.

Disposition

[21]

The appeal is dismissed.

Eileen
    E. Gillese J.A.

Paul
    Rouleau J.A.

Fairburn
    J.A.


