The flag-waver who gave the signal to start a fatal street race can be tried for criminal negligence causing death, the Ontario Court of Appeal ruled Thursday.
The court rejected a lower-court finding that the flag-waver, a 16-year-old young offender, had been too remotely associated with the tragedy to stand trial.
The race took place on the evening of Sept. 29, 2008, after a group of men emerged from a Mississauga, Ont., bar and set up the race.
"The respondent was asked to drop his red jacket to start the race," Associate Chief Justice Dennis O'Connor wrote, on behalf of Madam Justice Janet Simmons and Mr. Justice Robert Blair.
"He was reluctant at first, but eventually agreed. He urged the drivers to 'keep things safe.' He then started the race by dropping his jacket."
One of three drivers in the race lost control of his car and slammed into a lamp post. He was killed instantly. The two surviving drivers were charged with criminal negligence causing death.
The Crown alleged at trial that the flag-waver, identified only as M.R., could be convicted based on the fact that he aided and abetted the drivers.
However, a judge of the Ontario Court of Justice acquitted him, saying that it would bring the justice system into disrepute if he were to convict an individual who was so peripherally involved in the tragedy.
The trial judge likened the situation to that of a bank robber who asks an innocent bystander to hold his umbrella while he goes in and robs a bank.
However, Judge O'Connor said that the parallel was not apt since the person holding the umbrella neither assisted nor intended to assist in the robbery.
He said that M.R. need not have actually foreseen the death as a consequence of his acts.
"To establish liability, it is necessary to show that the accused's conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances," Judge O'Connor said.
He said that street races are inherently dangerous and frequently amount to a substantial departure from reasonable behaviour.
"Street races threaten the lives and safety of other drivers as well as people in the vicinity of the race," Judge O'Conner said. "The potential for injury and suffering by innocent members of the public is enormous."