Court File and Parties
Court File No.: City of Burlington 1481/18 Date: 2020-12-08 Ontario Court of Justice
Between: Her Majesty the Queen — and — Jacob Gliddon
Before: Justice Stephen D. Brown
Heard on: October 28, December 16, 17, 2019, January 7, 2020 and October 26, 2020
Reasons for Judgment released on: December 8, 2020
Counsel:
- Nick Chiera, for the Crown
- Michael O'Brien, for the accused Jacob Gliddon
Brown J.:
1.0: INTRODUCTION
1Jacob Gliddon is charged that on or about the 21st day of April 2018 he operated a motor vehicle on the Queen Elizabeth Highway in a manner that was dangerous to the public and thereby caused the death of Jake Bright, contrary to the Criminal Code of Canada, s. 249(4).
2This is a straight indictable offence and he elected trial before me.
3The evidence concluded before me on December 17, 2019 and the matter was adjourned to January 7, 2020 for further evidence. On January 7, 2020 Mr. O'Brien indicated that the defence was calling no evidence, so the matter was adjourned for oral submissions to a date that fell into the COVID-19 court closures. It was during this time that I advised counsel that I would require written submissions to be filed. They were eventually filed and oral submissions on the written submissions were heard by Zoom on October 26, 2020.
4Although little to no evidence was heard at this trial about Jake Bright other than he was a co-worker with Mr. Gliddon and was the occupant of the passenger seat of the Toyota during the collision that led to injuries that proved to be fatal, it is not forgotten or overlooked by me that his loss of life would have had a profound effect on his family members and friends, and that the effect of his loss of life at a young age is a tragedy to all those who have known him. Legally that must not and will not factor into my analysis at this stage of the trial. This stage of the proceeding must only focus on my factual findings in this trial and my application of the law to those findings.
2.0: ISSUES BEFORE THE COURT
5At the commencement of this proceeding counsel filed an Agreed Statement of Facts addressing many issues in this trial. The Agreed Statement of Fact is Exhibit 1. Both counsel are to be commended for agreeing on much of the evidence at this trial which allowed us to focus on the important issues that require consideration by me.
6I must decide on the credibility and reliability of the witnesses who testified before me and assign appropriate weight to their evidence.
7On the basis of the evidence that I do accept, has the Crown proven beyond a reasonable doubt that Mr. Gliddon operated his motor vehicle in a manner that was dangerous to the public and, therefore, caused the death of Jake Bright who was the passenger in the vehicle that Mr. Gliddon was operating during the events leading up to and including the collision?
3.0: EVIDENCE AT TRIAL
A. OVERVIEW
8The Agreed Statement of Facts filed as Exhibit 1 at this trial states as follows:
On Saturday April 21st, 2018 Jacob David Gliddon was operating a 2017 Toyota SFR motor vehicle on the Fort Erie bound Queen Elizabeth Way east of Guelph Line, City of Burlington, Halton Region. The only other occupant of the vehicle was the front passenger, Jake David Bright. At approximately 12:30 a.m., the motor vehicle being driven by Mr. Gliddon collided with the left centre concrete median, impacting the passenger side of the motor vehicle. As a result of the collision, the passenger Jake Bright suffered fatal injuries. An autopsy confirmed that Jake Bright died from blunt force craniocerebral trauma due to the single motor vehicle collision with a stationary object.
9Six civilian witnesses and four police witnesses were called by the Crown. The evidence of three of the police officers, Constable Robin Crossfield (officer in charge), Sergeant Steve Heinz (Sergeant for the reconstruction team) and Constable Derek Yao was not initially transcribed, however has been transcribed after I requested that the submissions in this matter be written.
10The evidence will be reviewed in the order it was given.
(i) CYNTHIA KESIMAAT
11Ms. Kesimaat was the most proximate witness to the collision that occurred that evening.
12Ms. Kesimaat entered the QEW westbound at Walkers Line. She had been socializing at a restaurant/bar in Burlington called "The Black Swan." She was on her way home.
13Ms. Kesimaat was operating a Ford F-150 pickup truck. She described the merge lane from Walkers Line onto the QEW as a longer merge lane such that she had more time to get up to highway speed. Exhibit 5, a diagram entitled "Figure 1, Collision Scene diagram," prepared by Raftery Engineering Investigations Ltd., was admitted on consent. Exhibit 5 depicts the lengthy merge lane at Walkers Line that ends just prior to the area where the tire marks begin, which are attributed to the Gliddon vehicle.
14Ms. Kesimaat's evidence was that she had fully merged into the lane to her left (lane 3) near the end of the merge lane. She thought her speed at that point was between 110 km/h to 115 km/h. At that point, a vehicle in lane 1 went by her at a substantially higher speed, which she thought was at least 20 km/h faster.
15She did not see any other vehicles to her left or behind her. She suddenly saw headlights in front of her, but she did not know where that vehicle had come from. It is unclear if she ever saw that vehicle on the shoulder; it seems that she only saw the vehicle once it was in front in her.
16Ms. Kesimaat quickly let off the gas and watched as the vehicle slid across all lanes of traffic and collided with the concrete median. Ms. Kesimaat did not see the vehicle collide with any other vehicles. She testified that she observed two other vehicles that appeared to have stopped just ahead of the crashed vehicle on the centre shoulder next to the HOV lane.
17Ms. Kesimaat did not know if the black vehicle, which ultimately collided with the centre median, was cut off.
18Ms. Kesimaat called 911. Her call was made Exhibit 2. The timing of the call was 12:33:50. An MTO video recording of the westbound lanes of the QEW at Guelph Line was made Exhibit 4. It depicts at least three vehicles in the area, in addition to Ms. Kesimaat's vehicle. The accident would have occurred between 12:32:45, when the Kesimaat vehicle exited the frame of the video recording, and the time of the call, 12:33:50.
(ii) FRANK PETRUZZA
19Mr. Petruzza's evidence consisted primarily of what he observed in his rear-view mirror. I agree with Mr. O'Brien's submissions that one has to examine the reliability of this evidence given that, according to Mr. Petruzza, he was travelling 120 km/h and simultaneously watching events unfold through his rear-view mirror. Presumably his attention was divided between what he was witnessing in his rear-view mirror and the road ahead of him. At best, his observations are that the vehicle went to the farthest right, then to the shoulder and then lost control. In fairness to Mr. Petruzza, his observations conform with what Constable Smith's expert reconstruction evidence finds; the vehicle went onto the shoulder, then came off the shoulder, rotated and struck the concrete barrier.
20Mr. Petruzza gave evidence with respect to speed but only in relation to a gray car that passed him. He estimated that the gray car passed him at approximately 40-50 km/h faster than his speed of 120 km/h. He did not give evidence with respect to the speed of the black vehicle, which ultimately collided with the centre median.
21Mr. Petruzza did not see any other vehicles apart from these two in his rear-view mirror, although Ms. Kesimaat's pickup truck was there to be seen. Further, the video entered as Exhibit 4 shows at least three cars in addition to Ms. Kesimaat's vehicle in the area prior to the collision.
22According to Mr. Petruzza, the black car was not weaving in and out of traffic as the gray car was. He could not see whether the black car had been cut off. In short, Mr. Petruzza did not see what caused the black vehicle to go onto the shoulder and lose control, and he cannot assist with the speed of the black vehicle.
(iii) BRENDA BRADLEY
23Ms. Bradley's evidence at trial was inconsistent with the information that she provided in her 911 calls, which were made Exhibit 3. She was asked directly by the 911 operator if she observed the collision and she said no. In her evidence at trial, she said that she did observe the collision.
24She did not say anything in either call about racing, and in one call she said that she believed the black car had been cut off. However, in her oral testimony, Ms. Bradley described getting on the QEW at Dorval Drive and within a couple of minutes a couple of vehicles went flying past her. She believes this was at Burloak, or between Burloak and Appleby, that these vehicles went flying by her.
25The evidence of Officer Crossfield was that he attended the Ford plant and reviewed videotape evidence showing Mr. Bright and Mr. Gliddon leaving the plant at 12:06 a.m. They left in a pickup truck that Mr. Bright was operating. Officer Crossfield also interviewed Laura Diaz, Jake Bright's partner, who provided information regarding Mr. Bright and Mr. Gliddon's likely route. Mr. Bright's residence was near Appleby Line. Officer Crossfield ascertained that they picked up Jacob Gliddon's vehicle at that point and then were off to somewhere in Burlington. Officer Crossfield testified that the Gliddon vehicle would not have been on the QEW between the Ford plant and Appleby Line. It is more likely than not that Ms. Bradley's testimony with respect to automobiles racing on the QEW relates to vehicles other than the one operated by the defendant, Jacob Gliddon.
26The significant inconsistencies between Ms. Bradley's oral testimony and her 911 calls, and inconsistencies between her evidence and the evidence of Officer Crossfield casts substantial doubt on the reliability of Ms. Bradley's testimony. It is the accused's position that no weight should be given to her evidence.
27I agree with the defence submissions regarding Ms. Bradley's evidence. Despite her claim of having a "photographic memory," her evidence was rife with inconsistencies and not in accordance with what she had said on her 911 calls which are Exhibit 3 at trial.
(iv) KYLE HICKS
28Kyle Hicks is a tow truck operator who arrived on the scene shortly after the accident occurred. He observed that Mr. Gliddon was out of the vehicle and tried to calm him down as he was visibly upset, pacing back and forth. Mr. Hicks heard Mr. Gliddon spontaneously utter, "I am sorry, Jake, somebody cut me off." Mr. Hicks said that Mr. Gliddon kept repeating that phrase.
29Mr. Hicks also made an observation that the tires of the car Mr. Gliddon was driving were mainly bald. This observation is confirmed by the photographic evidence in Constable Adam Smith's mechanical inspection report. It indicates to me that even a cursory glance at the rear tires would lead any observer to note that they were obviously bald and in need of replacement.
(v) LISA ASHENHURST and FIONA ELLISON
30The evidence of the last two civilian witnesses, Lisa Ashenhurst and Fiona Ellison, was relatively limited in its usefulness. They arrived on the scene shortly after the collision and testified that Mr. Gliddon was agitated, confused and disoriented.
31They did not observe the actual collision.
(vi) OFFICER ROBIN CROSSFIELD
32Officer Crossfield was the investigating officer. He confirmed that there were cameras on the QEW in this area and that he endeavoured to obtain other video evidence that might have captured this collision but he was unable to. He confirmed that the camera that would have shown the accident on the QEW was not working. Officer Crossfield did review video from the camera that was working closest to the scene, Exhibit 4, and did not observe vehicles swerving or travelling at high rates of speed.
33He testified that during his interactions with the accused he was able to detect the odour of an alcoholic beverage.
34As a result, he made an approved screening device demand; that test resulted in an "alert" or "warn" reading. This did not provide sufficient grounds to allow him to make a demand for an Intoxilyzer test, but did permit him to issue a three-day driver's licence suspension to Mr. Gliddon.
35Constable Crossfield also testified that when he arrived the weather was clear, the roads were clear and dry, and at that time the traffic was "light".
(vii) SERGEANT STEVE HEINZ
36Sergeant Heinz was the sergeant in charge of the reconstruction team. He assigned various officers to their duties with respect to reconstructing this accident scene.
37As part of his investigation he contacted the MTO to obtain video from the highway cameras. On April 27, 2018, he reviewed the videos specifically to determine if there was video evidence of the collision. The camera that would have shown the collision, camera 442, was not working at the time of the collision.
38He made certain observations from reviewing the video made Exhibit 4 that coincide with the accident. He observed that at 12:32:45, Cynthia Kesimaat moved onto the highway and at 12:32:49 "a Toyota" moved from lane 2 to lane 3, as he described it. Sergeant Heinz saw two vehicles, which he thought may have been involved in racing at some point, followed by a black Toyota, thought to be Mr. Gliddon's vehicle. He confirmed that no one attempted to measure the speed of the vehicle, but he acknowledged that it could be done based on the video surveillance. Sergeant Heinz agreed that in all of the video he reviewed, he did not see any racing behaviour.
(viii) CONSTABLE DEREK YAO
39Constable Yao's evidence was not of much assistance. He arrived on the scene, made observations of the involved vehicle and later accompanied the ambulance that took Mr. Bright to the hospital.
(ix) VIDEO EVIDENCE
40The video from MTO camera 443 was entered as Exhibit 4 at trial.
41Sergeant Heinz gave evidence with respect to which vehicles captured in the video corresponded with the vehicle involved in the collision, or other vehicles about which evidence was given, such as Ms. Kesimaat's.
42The Crown suggests that an inference can be made based on the video that Mr. Gliddon moved from lane 2 to lane 3 in the video, then moved into the merge lane and shoulder to get around Ms. Kesimaat's vehicle. The position of the defendant is that the inference does not lie and amounts to pure speculation: these moves are not captured on video and the identification of the vehicles is far from certain.
43The video shows that at 12:32:45 Ms. Kesimaat's vehicle remains in the merge lane as it exits the frame. At 12:32:49, two vehicles can be observed in lane 1 and lane 2. Another vehicle can be observed in lane 2 and appears to be changing into lane 3.
44Officer Crossfield, Sergeant Heinz and Officer Smith all gave evidence that on their review of the video made Exhibit 4, there did not appear to be any racing behaviour exhibited by any of these drivers.
45Sergeant Heinz and Officer Smith both agreed that speeds could be estimated from the video evidence, however, that was not done in this case. It is possible that the speed of any of the vehicles noted in the last portion of the video would have been some eight seconds before the event, and the speed of any of the vehicles last seen on video could change considerably during that eight-second interval.
(x) CONSTABLE BRIAN SMITH
46Constable Smith was called to give expert opinion evidence by the Crown. Following a blended voir dire it was agreed that he could testify as an expert regarding accident reconstruction. What weight should be given to his evidence is for me to decide.
47It is noted that Constable Smith only testifies on behalf of the Crown. All of his testimony in prior cases has been on behalf of the Crown. That said, it is also noted that all of his notes, photographs and the data that he downloaded from the vehicle, as well as the highway camera footage, were available for review by any expert witness retained by the defence.
48Exhibit 8 in these proceedings is a copy of the collision reconstruction report prepared by Constable Smith. On the first page of Appendix E is a preface prepared by Constable Smith. He indicates in the third full paragraph:
I have personally been involved with conducting and observing staged collision tests in order to validate for myself the recorded values of EDRs against calculated values through conventional collision reconstruction momentum techniques and with other technologies. I have observed that the error rate is minimal between the record EDR values and my calculated values.
49In both his examination in-Chief and cross-examination, Constable Smith indicated that he did do these measurements to calculate the speed of the vehicle based on the physical evidence and measurements at the scene. He did not include these calculations in his report as he thought it may "confuse the matter." He further gave evidence in his examination in-Chief that the difference between the EDR (Event Data Recorder) and his calculations was up to 40 km/h. The defence suggested that the EDR download recorded a speed of 171 km/h at one point. A 40 km/h differential could make a considerable difference to the analysis of whether the vehicle was being operated in a prima facie dangerous fashion. The speed of 170 km/h was recorded for 0.5 to 1 second. However, Constable Smith explains that he did not do these calculations because that would give a confusing and, in his opinion, inaccurate estimate of the speed once the vehicle had lost control and began to rotate and spin as it was sliding across the highway. I accept his explanation about that. I also note that the EDR data recording the speed 5 seconds before the collision was data that was collected before the vehicle entered the shoulder where it was travelling slightly in excess of 170 km/h (actually 174 km/h when converted to account for the size of tires actually installed on the vehicle) and would be highly accurate as the vehicle was not spinning or sliding at that time. The data collected when it entered on to the shoulder at 143 km/h would as well be an accurate speed and that the defendant after entering the shoulder applied full acceleration is, in my view, not the actions of a reasonable person in those circumstances and in those conditions.
50Constable Smith acknowledged on cross-examination that he did not watch the MTO video of the vehicles prior to the collision (Exhibit 4), which was readily available to him, nor did he review any witness statements regarding the location, trajectory or speed of the vehicle involved. He did, however, rely on information provided to him by other officers that there was "racing involved". He noted that in his report, but I find that he still remained objective and based his final opinion on the evidence that he observed and collected at the scene and from the EDR.
51Constable Smith also indicated in his report that "the Toyota was observed travelling at a high rate of speed." He could not say what the source of that information was. The defence suggests that it would appear that for the most part Constable Smith's report is based primarily on a download from the airbag control module. A good portion of the download with respect to speed is not reliable given that the vehicle tires were spinning as a result of the loss of control of the vehicle on the shoulder.
52His opinion, however, is that the vehicle being operated by Mr. Gliddon "at a speed, according to the downloaded ECU (Electronic Control Unit), of 174 k.p.h at 5 seconds prior to AE (Algorithm Event). When the vehicle was travelling at 143 k.p.h it entered the right shoulder. The right shoulder was partially covered in gravel and dirt. The rear tires on the vehicle had inadequate tread depth. The driver accelerated from 143 km/h with 100% accelerator pedal application within the shoulder and lost control of the vehicle. While losing control, the vehicle then entered the thru lanes again and began a counterclockwise rotation. While in rotation, the driver attempted to correct the situation by steering to the right. The Toyota then slide [sic] across all lanes of travel and struck the left side jersey barrier with the right side of the vehicle".
53Constable Smith confirmed that it was possible to measure speed from the MTO cameras but he did not attempt to do so. He acknowledged that he could not say what the speed of the vehicle was prior to the 5.0 seconds measured by the AE.
54Constable Smith confirmed that the time between when the last of the vehicles involved exits the video screen to the time of the loss of control is very short, in the neighbourhood of 8 seconds.
55Upon reviewing the videotape during cross-examination, Constable Smith agreed that traffic just prior to the collision event appeared to be moving relatively normal.
56It is submitted by the defence that not much weight should be put on Constable Smith's evidence. There is evidence that was clearly relevant that he did not look at or he just ignored. He also did not include in his report calculations that may have assisted the defence. I disagree. He adequately explained to me why he thought that speed analysis calculation may be unreliable in the circumstances of this case.
57Constable Smith had the ability to measure the speeds of the vehicles from the video but did not do so. He did not even watch the video until he was on the witness stand. I do not find that this is of much significance and question why he would watch a video that occurred some eight seconds before the events that led to this collision took place.
58Constable Smith relied on the statements with respect to racing and the Toyota travelling at a high rate of speed, but did not verify the accuracy of those statements or their source.
59On the other hand, the Crown submits that Constable Smith is a reliable and credible expert witness and that I should give much weight to his opinion. Constable Smith testified that he understood that his duties in the examination of the vehicle collision scene and evidence were to the Court and that he was required to be impartial and objective. He testified that while he is employed as a police officer, and only testifies as such, he uses the physical evidence to come to his conclusions and tries to be as impartial as he can be in his evidence. I agree, and I find Constable Smith to be a reliable and credible expert witness.
60The omissions of certain data or calculations in his report were explained by him to my satisfaction. I did not find him to be biased towards the Crown's case and I found him to be an expert who was fair and balanced and took into account all of the evidence that he gathered from his very thorough investigation. Furthermore, he is an extremely well-qualified expert witness in the field of accident reconstruction with vast experience and regularly stays abreast of updates in his field.
61Constable Smith testified that his initial walk-through of the scene began at the vehicle's final resting point and proceeded backwards to the point of impact and beyond. Constable Smith was able to follow the roadway evidence to determine that Mr. Gliddon's vehicle had travelled onto the gravel shoulder, then back onto the travelled portion where the vehicle had begun to slide and rotate counterclockwise such that it was now facing the wrong way.
62The tire markings continued to the point of impact with the concrete jersey barrier where there was further evidence of scrapings on the roadway and black marks on the jersey barrier. Finally, there were tire marks leading from the point of impact to the vehicle's final resting place.
63Photos of the scene and of the vehicle showed the significant damage that had occurred to the passenger side and front of the vehicle. There was very little apparent damage to the driver's side of the vehicle. Both rear tires were deflated and were noted to have less than the minimum required tire tread depth.
64One of the points raised in cross-examination was that Constable Smith did not provide the Court with the calculated speed of the vehicle based on the roadway evidence. However, he testified there were many variables that would have gone into this type of calculation such that it would have rendered the opinion of speed based on the calculation unhelpful and perhaps misleading.
65It should be noted that Constable Smith testified that although he was able to get certain information such as the co-efficient of drag of the paved roadway, he could not have determined with much accuracy the speed loss over the gravel portion of the roadway and then the paved portion as the vehicle began to spin, as well as the speed loss due to the impact with the jersey barrier given the angle of impact.
66What he was able to determine was the initial speed of the vehicle as recorded by the Engine Control Unit (ECU). The initial speed recorded 5 seconds prior to the triggering event was 171 km/h. As explained by Constable Smith, the computer for the ECU will record the last 5 seconds prior to a triggering event which, in this case, would occur when the vehicle hit the jersey barrier. The ECU also recorded the steering input, accelerator input and brake input for the same intervals. Constable Smith went on to explain how each of those data sets informed him of what was going on with the vehicle at a particular moment in time.
67Constable Smith explained that at some point during its travel, the vehicle would have started its spin and therefore the "over-the-ground" speed would no longer correspond to the speed recorded by the wheel speed sensors. The steering input, accelerator and brake inputs, however, helped to determine what the driver was doing at each particular interval.
68According to his estimation, Constable Smith testified that it would have taken the vehicle 2 ½ to 3 ½ seconds to veer across the roadway and hit the barrier. He also looked at the roadway evidence and determined that the vehicle would have entered the right shoulder prior to then re-entering the travelled portion of the road, thus requiring a slight right and then slight left input in the steering.
69When looking at the data chart in the Speed Analysis section of his report, he noted that the vehicle input showed a 33-degree turn to the right followed by a quick 64.5-degree input to the left. Constable Smith opined that this is the point where the vehicle veered right onto the shoulder and then left, back onto the travel portion of the road. At that point in time, the vehicle speed was recorded as between 141 km/h to 149 km/h, with the accelerator being reengaged at 100% input.
70Prior to that point in time, the vehicle speed at 5 seconds before the triggering event was 171 km/h with 100% accelerator input, followed by the brake input being on (and accelerator dropping to 0.0 %) with the speed dropping down to 141 km/h and the vehicle steering input going from 4.5 degrees to the left over to 33 degrees to the right.
71It was Constable Smith's opinion that this was corroborated by the roadway evidence of a vehicle traversing from the travelled portion of the road to the right shoulder and then back to the left onto the travelled portion where it lost control.
72Constable Smith's opinion was that this was a preventable accident. Had there not been excessive speed on the shoulder of the road, together with the possible contribution of the bald rear tires on the vehicle, it would not have lost control while on the shoulder of the highway and re-entering the travelled lanes of the highway.
4.0: LAW & ANALYSIS
73It is well established that in order to prove dangerous driving, the Crown is required to show that the accused person's manner of driving constituted a "marked departure from the standard of care that a reasonable person would observe in the accused's situation". (R v. Hundal, [1993] 1 S.C.R. 867, at p. 888)
74The leading cases with respect to the offence of dangerous driving are R v Beatty, 2008 SCC 5 and R v Roy, 2012 SCC 26. Both review and modify the test as laid out by the court in R v Hundal, [1993] 1 SCR 867. Beatty and Roy place a significantly greater emphasis on the mental element of the offence and on criminal blameworthiness than the court had in earlier jurisprudence. In Beatty, Justice Charron writing for the majority stated the test as follows:
A - The Actus Reus
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time is or might reasonably expected to be at that place.
B – The Mens Rea
The trier of fact must be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
75In terms of the actus reus, Justice Charron notes that conduct falling below the standard of a reasonably prudent driver does not necessarily equate to dangerous driving. It is the manner of driving and not the consequence of the driving that is relevant to the analysis. Justice Charron states that the court must not leap to a conclusion about the manner of driving based on the consequence of the driving. There must be a meaningful inquiry into the manner of driving (Beatty, para 46).
76In Roy, Justice Cromwell, writing for the court, reviewed the elements of dangerous driving as set out in Beatty. At paragraph 32, he notes:
Beatty consolidated and clarified this line of jurisprudence. The court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purpose of imposing civil liability and that necessary for the imposition of criminal punishment.
77In discussing the actus reus, Justice Cromwell noted:
The focus of this inquiry must be on the risk created by the accused manner of driving, not the consequences, such as an accident in which he or she was involved. Charron, J. at paragraph 46 of Beatty, "the court must not leap to a conclusion with the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant and not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity but one that is both legal and of social value (Beatty, paras 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.
78With respect to the mens rea Justice Cromwell says:
The focus of the mens rea analysis on whether the dangerous manner of driving was a result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, para 48).
79It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If the answer is yes, the second question is whether the accused's failure to foresee the risk and take steps to avoid it if possible was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.
80At paragraph 42 of Roy, Justice Cromwell states:
Driving, which objectively viewed, is simply dangerous will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron, J., para 49: see also McLachlin, C.J., para 66 and Fish J., para 88.
81In other words, proof of the actus reus of the offence without more does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.
82The Ontario Court of Appeal has long held that in certain circumstances, speed alone can constitute a marked departure that would support a finding of Dangerous Driving. (R v. Richards, [2003] O.J. No. 1042 at para. 11; see also R v. Porto, [2016] O.J. No. 6801)
83However, while speed alone may be enough to constitute dangerous driving, a Court must look at all of the circumstances and determine if a reasonable and prudent driver would have considered the accused's driving to be a marked departure.
84Mr. Chiera submits on behalf of the Crown that Mr. Gliddon's alcohol consumption is a factor that I should consider in my assessment of the evidence in this case. I disagree based on the evidence before me. The evidence at trial regarding alcohol consumption comes from Officer Crossfield. Officer Crossfield stated that while in the cruiser he could smell the odour of alcohol. He then attempted to provide an admission by Mr. Gliddon as to having consumed alcohol, but was stopped by the Crown and redirected to whether he had then conducted a roadside screening test on Mr. Gliddon and if he was charged with any further offences. The only evidence before me is that he was served with a three-day driving suspension. There was an utterance that he had consumed alcohol but it was not proven admissible or voluntary and not admitted to be so. I place no weight on that. Other than that, there is no evidence before the court as to what the blood alcohol level of Mr. Gliddon was or what effect alcohol could have been a factor in this case. At most, I can take judicial notice that there was some alcohol in Mr. Gliddon's blood at the time of the collision. I am missing any expert evidence as to what if any effect that alcohol may have had on him.
85I do accept the opinion evidence of Constable Smith that according to the downloaded ECU the vehicle was travelling at 174 km/y at 5 seconds prior to AE. When the vehicle was travelling at 143 km/h it entered the right shoulder. The right shoulder was partially covered in gravel and dirt. The rear tires on the vehicle had inadequate tread depth. The driver accelerated from 143 km/h with 100% accelerator pedal application within the shoulder and lost control of the vehicle. The vehicle then began to lose control and, while entering the through lanes again, it began a counterclockwise rotation.
86I am satisfied beyond a reasonable doubt that Mr. Gliddon, while on the dirt and gravel covered shoulder, applied full acceleration to his vehicle which caused it to lose control while he attempted to re-enter the travelled lanes of the highway. This, combined with his speed of 174 km/h five seconds prior to the algorithm event (AE), in my view, convinces me beyond a reasonable doubt that there was a marked departure from the standard of care that a reasonable person would observe in the accused's situation.
87Even if I accepted the statement that he made at the roadside about being cut off and was forced onto the shoulder, which I do not, then a reasonable and prudent driver would not have engaged their vehicle in full acceleration while on the shoulder of a major highway with visibly bald tires. It is this manner of driving that created a risk to the public that was a marked departure from the standard of care required.
88Because Mr. Gliddon made a spontaneous utterance on the side of the road to the tow truck driver, Mr. Hicks, that he had been cut off, I have engaged a W.D analysis in my reasoning.
89I do not believe that Mr. Gliddon was cut off, nor does his assertion that he was raise in my mind the reasonable possibility that he was, thus satisfying stage one and two of the W.D analysis.
90I agree with the opinion of Constable Smith and accept that the EDR data is proof that within 5 seconds of this collision Mr. Gliddon was operating his motor vehicle at the speed of 174 km/h in a posted 100 km/h speed limit. Operating his motor vehicle at such an excessive speed on a major highway leaves one little room or time to react if another driver would have pulled into his lane. The entry onto the dirt and gravel covered shoulder of the highway was done at an excessive speed and followed by full accelerator engagement on the shoulder. It is during this period that Mr. Gliddon lost control of his motor vehicle causing it to rotate almost 180 degrees and then slide across all major lanes of the Queen Elizabeth Way and into the concrete barrier. This conduct created a risk of injury or damage to any member of the public who could have been on the highway at that time and in those conditions.
91Mr. Petruzza did not see the black vehicle that was one of the two that he was watching be cut off by any vehicle, although he conceded that there was a possibility that it was. His attention was somewhat divided as he was watching this incident unfold through his rear-view mirrors. He did see Mr. Gliddon's vehicle go on to the shoulder of the road and then lose control and go across the highway and strike the centre concrete barrier.
92Ms. Kesimaat's attention was focused on the vehicle that was passing her quickly in the lane to her left and then she noticed Mr. Gliddon's vehicle because its headlights were facing towards her in the wrong direction. She made no mention of any other vehicles in the vicinity at the time. Because she would only have first noticed the vehicle facing in the wrong direction, I find this would have been after it had attempted to re-enter from the shoulder and rotated counterclockwise.
93With respect to the issue of whether the Gliddon vehicle was racing another vehicle on the highway, there is not sufficient evidence in the case before me to do anything other than raise a suspicion that that may have been the case. That is nowhere near the level that I have to be at to make a finding of fact on that point beyond a reasonable doubt.
94The evidence of Brenda Bradley was so rife with inconsistencies that it is of no worth to me in any way. I do not find her to be a reliable witness.
95Although the evidence of Mr. Petruzza suffers from some concern regarding its reliability (in that he was observing these vehicles through his rear-view mirrors while having to keep his forward attention on operating his motor vehicle), I find him to be a credible witness who saw the Gliddon vehicle enter into the right shoulder and then lose control and spin across the highway. His observations were focused on both the black and the gray vehicles that he saw approaching him. He may not have been alert to other vehicles in the vicinity, including Ms. Kesimaat's pickup truck that was closest to the Gliddon vehicle.
96I have closely weighed all the evidence in this case and carefully considered the applicable law. I have watched the video evidence of the involved vehicles on a frame-by-frame basis and on a free-flow basis many times. The video is difficult to interpret and is certainly not of the best quality. More importantly, the crucial video of the actual loss of control of the Gliddon vehicle was unavailable. That was unfortunate because it may have made the task of what occurred that night less daunting.
97What is available is the unrefuted evidence of the EDR which I accept as accurate and highly reliable. Combining that with the expert evidence of Constable Brian Smith, which I accept, I come to the only conclusion available to me which is that Mr. Gliddon was operating his motor vehicle that evening in a manner that was a marked departure from how a reasonably prudent driver would under those circumstances. After considering the evidence as a whole, and applying the applicable law, I am satisfied that the Crown has proven all the essential elements of this offence beyond a reasonable doubt. This was not simply a civil level of negligence but was a marked departure from what a reasonable and prudent driver would have done in the circumstances and it is deserving of criminal sanctions.
5.0: CONCLUSION
98For the reasons given above, I find that Mr. Gliddon is guilty of the offence of dangerous operation of a motor vehicle. Because causation of death was not in issue in this trial, I find that he is guilty of the offence of dangerous operation of a motor vehicle causing death as charged.
99Although the consequences of his dangerous operation of his vehicle that night did not factor into my decision as to whether his conduct was dangerous operation, it is with profound sadness now that I say that this driving, which may otherwise have resulted in a potential or actual risk to the public, in this case resulted in the death of a young man who I know far too little about. I will find out more about him in the Victim Impact Statements that are bound to follow before the next phase of this proceeding. It is not lost upon me that this may yet be the most difficult part of this very difficult trial.
100I also recognize the help that both counsel afforded to me in their able submissions and their professional conduct during the trial of this difficult case.
Released: December 8, 2020
Signed: "Justice Stephen D. Brown"