



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Durani, 2022 ONCA 17

DATE: 20220113

DOCKET: C69370

Miller, Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmad Durani

Appellant

John M. Rosen and Rameez Sewani,
    for the appellant

Michael Dineen, for the
    respondent

Heard: January 4, 2022 by
    video conference

On appeal from the convictions entered on
    January 30, 2020, and from the sentence imposed on July 23, 2020, by Justice
    Bernd E. Zabel of the Ontario Court of Justice.

REASONS FOR DECISION

Overview

[1]

The appellant was convicted of criminal
    negligence causing death while street racing and failing to remain under ss. 249.2
    and 252(1.3)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46.
[1]
He was sentenced to a global
    sentence of 5 years imprisonment (less 1 year for pre-sentence custody). The
    appellant appeals against conviction and sentence. For reasons that follow, we
    dismiss the appeal in its entirety.

Background

[2]

On June 13, 2018, Ms. Viet (Sara) Hoang was
    tragically killed when a car driven by Warren Lewis crashed into her car as she
    attempted to make a turn onto Queenston Road out of the parking lot of a bakery
    in Hamilton. Prior to the crash, Mr. Lewis and the appellant had been street
    racing on the road. Queenston Road is a heavily travelled portion of Hamilton
    and the racing occurred around 5:30 p.m., during the weekday rush hour.
    Witnesses called by the Crown described two cars driving at high speeds,
    completing dangerous manoeuvres and forcing another driver to take evasive
    measures to avoid being struck, and generally driving with complete disregard
    for the safety of the public.

[3]

Despite the crash occurring right before the
    appellant, he did not remain at the scene. He was only tracked down later by
    the police who examined video footage, discovered Mr. Lewis had been street
    racing, and identified a car belonging to the appellants father as also being
    involved. When the police spoke to the appellant at his residence, he stated
    that he saw the car that hit the other girls car but that he did nothing
    wrong, did not need a lawyer, and was not involved in the accident.

[4]

Mr. Lewis and the appellant were tried together.
    As for the appellant, the issues at trial were whether the Crown had proven
    beyond a reasonable doubt that he was driving his fathers car during the
    racing, whether the Crown had proven that the appellant was street racing at
    the time of the crash, and whether the Crown had proven that the appellant
    failed to remain because he intended to escape criminal or civil liability for
    the accident. The appellant did not testify.

Conviction Appeal

[5]

The appellant raises the following two grounds
    of appeal against conviction:

(1)

The trial judge erred in his analysis of the
actus
    reus
and
mens rea
components of criminal negligence causing death
.

(2)

The trial judge erred in applying the
    presumption found in s. 252(2) of the
Criminal Code
to convict the
    appellant of failing to remain.

Discussion

Issue 1: Did the trial judge err in his
    analysis of the
actus reus
or
mens rea
components of criminal
    negligence causing death?

[6]

For the purposes of this appeal, the appellant concedes
    that, based on the evidence at trial, he was driving dangerously and involved
    in a street race with Mr. Lewis. However, he argues that the
actus
    reus
and
mens rea
components of criminal negligence required the
    trial judge to consider his individual conduct, perceptions, and responsiveness
    to risk. The appellant submits that the trial judge wrongfully imputed the
mens
    rea
of the offence from one accused to the other and failed to examine his
    manner of driving or individual level of culpability within the race. The
    appellant argues that, while dangerous, his driving did not rise to the level
    of a marked and substantial departure from the norm. For example, the appellant
    points to evidence that he slowed down as Ms. Hoangs car pulled out of the
    bakery parking lot and that there were no skid marks in his lane, suggesting
    that he was in control of his vehicle at all times.

[7]

The appellant submits that, had the trial judge
    meaningfully analyzed his conduct within the race and his individual level of
    culpability, he would have concluded that the requirements of criminal
    negligence were not proven beyond a reasonable doubt.

[8]

We do not agree with these submissions. In our
    view, the conviction for criminal negligence was firmly rooted in the evidence.

[9]

The distinction between the degree of fault
    required for a criminal negligence conviction as opposed to a dangerous driving
    conviction is one of degree:
R. v. Javanmardi
, 2019 SCC 54, 439
    D.L.R. (4th) 579, at para. 21;
R. v. J.L.
(2006), 204 C.C.C. (3d)
    324 (Ont. C.A.), at para. 14;
R. v. Alli
, 2012 ONCJ 49, 29 M.V.R.
    (6th) 138, at para. 55.

[10]

The Crown was required to prove that the appellants
    actions represented a marked and substantial departure from the conduct of a
    reasonably prudent driver in circumstances where the appellant either recognized
    and ran an obvious and serious risk to the life of the public, or,
    alternatively, gave no thought to that risk:
R. v. J.F.
, 2008 SCC 60, [2008]
    3 S.C.R. 215, at para. 9.

[11]

The appellants submission that he slowed down
    and was in control of his car is an attempt to draw a fine distinction between
    his own driving and Mr. Lewis in the split-second before the fatal
    accident. This is an attempt to artificially parse out the appellants actions
    at one moment during the race. In our view, the trial judge found that the
    appellants
overall
driving reflected both a
    wanton and reckless disregard for the safety of others and a marked and
    substantial departure from the norm. The race started well before the collision
    and the portion captured by the surveillance video. The crash was a direct
    result of both men deciding to race each other at speeds of up to 125 km to 130
    km per hour in a 50 km zone, at times driving in tandem, other times trying to
    overtake each other in close pursuit, cutting off motorists and veering in and
    out of lanes.

[12]

While the trial judges reasons are somewhat
    conclusory, we are satisfied
that
    the requirement of a marked and substantial departure was inferred from the
    appellants conduct. As the trial judge noted, this was a street race at
5:30 p.m. during a weekday rush hour, on
    a busy street in the city, with pedestrians on the sidewalks, and bus stops and
    businesses in the area. These
relevant
    considerations were all mentioned by the trial judge in determining whether the
    Crown had proven the requisite elements of
the offence.
    Accordingly, we do not give effect to this ground of appeal.

Issue 2: Did the trial judge err by relying
    on s. 252(2) of the
Criminal

Code
to convict the appellant of
    failing to remain?

[13]

The appellant did not remain at the scene of the
    crash. Section 252(2) of the
Criminal

Code
allows the court
    to presume the requisite intent of the driver who leaves the scene, provided
    there is an absence of evidence to the contrary.
[2]
Evidence which is rejected or disbelieved is not evidence to the contrary. However,
    where there is evidence to the contrary on the issue of intent, the presumption
    cannot be relied upon, and the burden is on the prosecution to prove the
    requisite intent beyond a reasonable doubt: see
R. v. Gosselin
(1988),
    45 C.C.C. (3d) 568 (Ont. C.A.).

[14]

The appellant submits that the trial judge erred
    because there was evidence to the contrary in the appellants statements to the
    police (when officers attended his residence) and the trial judge did not
    assess this evidence. He argues that, unless these statements were rejected by
    the trial judge, his statements  that he was not involved and did nothing
    wrong  demonstrate his honest but mistaken belief about his lack of
    involvement and raised a reasonable doubt as to whether the appellant left the
    scene intending to escape civil or criminal liability.

[15]

We are not persuaded by these submissions.

[16]

At trial, the appellants counsel highlighted
    the significance of the appellants statements to the trial judge. Trial counsel
    argued that the statements suggested that there was evidence that the appellant
    did not intend to escape liability for the accident. In closing submissions, trial
    counsel put it this way:

[D]id [the appellant] intend to escape
    criminal or civil liability for the accident? Well, the comments that he makes
    to Officer Mukendi would suggest that he was not. His comments were, if you
    find he was the driver, were
that I didnt do anything
    wrong, that car wasnt in an accident, words to that effect
. So that the
    fifth element is simply not there and it goes to whether or not he knew his
    vehicle, whether he knew it was involved in an accident or not. [Emphasis added.]

[17]

In his reasons, the trial judge stated: [The
    appellant] was involved in the accident, which resulted from street racing.
From his own admission
he knew of the accident, the
    collision
caused
by his co-participant in the
    street racing (emphasis added). Again, while the trial judges reasons are
    cursory, it is clear that this argument about evidence to the contrary was
    rejected.

[18]

The evidence in
    relation to the fail to remain charge was overwhelming. The appellant had been
    street racing prior to the crash and the crash happened right in front of the
    appellant. Witness testimony showed it was very clear that Ms. Hoang had
    been severely injured. The fact that the appellant did not stop to offer
    assistance and left the scene led to the inescapable conclusion that he wished
    to avoid being held accountable for civil or criminal liability. Having found
    the appellant participated in a street race in the circumstances set out above,
    it is hardly surprising that the trial judge found that the appellants statements
    could not reflect an honest belief on the appellants part that he was not
    involved in the accident and had no reason to fear liability. We reject this
    ground of appeal.

Sentence Appeal

[19]

The trial judge imposed a global sentence of
    eight years on Mr. Lewis
[3]
and five years (less twelve months for pre-sentence custody) on the appellant. The
    appellant submits that the net global sentence imposed by the trial judge was
    arrived at via an error in principle and is harsh and excessive.

[20]

The sentence imposed by the trial judge was
    effectively the first period of lengthy incarceration for the appellant, but it
    was reasonable in the circumstances of this case, given the gravity of the
    offence and the degree of responsibility of the appellant. He participated in a
    high-speed race on a busy city street during rush hour resulting in horrific
    consequences. Although relatively young, the appellant was not a first offender
    and the pre-sentence report indicated he had no insight into his behaviour. The
    sentence imposed on the appellant was fit, and there is no basis to interfere with
    the trial judges decision to highlight denunciation and deterrence.

Disposition

[21]

For these reasons, the appeal from conviction is
    dismissed. We grant leave to appeal sentence, but the sentence appeal is
    dismissed.

B.W. Miller J.A.


B. Zarnett
    J.A.

S.
    Coroza J.A.





[1]
These provisions have since been repealed but were in force at the
    time of the accident.



[2]
This provision has also since been repealed but was in force at the
    time of the accident.



[3]
Mr. Lewis sentence appeal was dismissed by this court:
R. v. Lewis
, 2021 ONCA 597, 78 M.V.R.
    (7th) 183.


