Prior to trial the Crown brought a motion to tender evidence of Pizza Pizza’s “30 minutes or its free” policy. The conduct related to the Crown’s theory that there were pizza boxes in a delivery satchel from Pizza Pizza located in an alley near the scene. The Crown alleged that this evidence supports an inference that excessive speed was a factor and one that Fatahal-Delil was concerned about following the incident, given the disposal of the pizzas.
The defence was not prepared to admit that the 30 minutes or its free policy was in effect at the time of the incident; alternatively if it did exist it had no impact on the driver’s conduct.
O’Marra J held that this evidence of post-offence conduct would be admissible at trial: 2013 ONSC 4012.
First, O’Marra J noted that:
[w]hether the defendant was speeding at the time of the incident or had a motive to speed is an important live issue on this trial. Evidence that the defendant sought to distance of himself from the policy would be relevant to those important issues [para 11].
Second, O’Marra J explained that a limiting instruction will accompany the admission of the evidence. The instruction is as follows:
There is no direct evidence that those items were placed where they were found by the defendant after the incident. There is no evidence that anyone saw him place those items there. The combination of evidence on this issue is circumstantial that he did place those items there. The Crown is not obliged to prove that he did so beyond a reasonable doubt. However, if you find that he did place those items there you may consider that for a limited purpose.
If the defendant did place those items where they were found you may consider that it may have been because he was concerned about his potential jeopardy. The concerns specifically would relate to whether he was speeding in order to make a timely delivery in accordance with the current policy of Pizza Pizza.
If you find that this was the case this does not mean that he was conscious of committing a criminal level of driving in the incident. He may have been conscious of committing a less serious, non-criminal act such as careless driving or speeding. Those offences are provincial charges and not criminal. They are not before you for decision.
The limited and only use you may make of this evidence if you find he removed those items to where they were found is whether he did so out of concern for a link between his assigned pizza delivery and the company policy of "delivery within 40 minutes or customer does not pay" that may have caused him to speed.
You may not use this evidence as proof of criminal negligence or dangerous driving or to elevate dangerous driving to criminal negligence. If you do not find he moved those items to where they were found you should not consider that evidence for any purpose.
Whether the removal of the items was an attempt to conceal a motive to speed preceding the impact is for you to decide. You must look at this matter in light of all the evidence. It is on a consideration of all the evidence that you decide whether the Crown had proven guilt beyond a reasonable doubt [para 12].