DATE: December 6, 2024

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

WILLIAM CRAIG ROBSON

Before Justice B. Green

Heard on October 7th, 8th, 9th, 10th and 11th

Reasons for Judgment released on December 6th, 2024

Counsel: Mr. Humphrey, counsel for the Crown Mr. Ayotte, counsel for the defendant Mr. Robson

Green J.:

Introduction

1Mr. Robson is charged with one count of operation while impaired or with a blood alcohol concentration in excess of the legal limit causing death contrary to subsection 320.14(1) and a second count of dangerous operation causing death contrary to section 320.13(1) of the Criminal Code. The matter proceeded to trial in October of 2024. Apart from a few issues, most of the facts were not disputed during the trial.

2On March 20th, 2020, Mr. Robson was operating a snowmobile while towing his son and his son’s best friend, Tyler Christine-Bourgeois, behind him on two separate sleds. They engaged in a stunt on a frozen lake which involved quickly driving the snowmobile over some open water with the intention that the skidoo and the sleds would skim over the water’s surface. Tragically, Tyler lost control of his sled and he plummeted beneath the freezing water. Despite efforts to find him, Tyler drowned, and his body had to be recovered by emergency services.

3Throughout these reasons, the place where the participants tried to skim over is referred to as “open water”. It is not an accurate description of that area. There is an aerial photo of the area and evidence establishing that there were large pieces of ice loosely floating in an area of the water that was not completely frozen over. It was “open” in the sense that flowing water can be seen in that area of an otherwise frozen lake.

4Counsel emphasized that Mr. Robson was an experienced operator of snowmobiles. He had engaged in this kind of activity of skimming or skipping over open water on a snowmobile many times in the past. Mr. Robson did not foresee any potential hazards especially considering the water was only 4 feet deep and snowmobile water skimming is a recognized sporting event. Counsel urged me to find that his client’s operation of the snowmobile, having regard to all the circumstances, was not dangerous to the public.

5In contrast, the crown focussed on other considerations. This was not a controlled environment like organized events. None of the participants were wearing proper protective gear and there were no emergency personnel on standby. The ropes and sleds were not regulated, and one sled recently lost a ski. Mr. Robson had to drive at a high speed to skim over the water and increase that speed to compensate for towing two grown men with no advance assessments of their height and weight. There were no safety checks of the equipment and no measurement of the opening in the ice. There were free floating chunks of ice in the water. Importantly, all three of them had been drinking alcohol beforehand. The crown asserted that this was incredibly dangerous operation of the snowmobile.

6Even if I find that Mr. Robson was operating this vehicle in a manner that was dangerous to the public, counsel submitted that the crown has failed to prove beyond a reasonable doubt that Mr. Robson is legally responsible for causing Tyler’s death. Tyler made an independent and unexpected choice to use the sled in a manner that was not discussed beforehand. As a result, the crown has failed to prove that Tyler’s death was “caused” “as a result of” Mr. Robson’s driving. Accordingly, at worst, Mr. Robson should be found guilty of the lesser but included offence of dangerous operation.

7The entire incident was captured on a video recording. Before Mr. Robson took off on the snowmobile, he looked behind him. At that moment, both young men were seated on their individual sleds although Tyler appeared to be sitting a little higher up than Gage. Thereafter, Mr. Robson focussed his attention on driving forward. He began to accelerate the snowmobile towards and then over the water. As Tyler’s sled approached the open water, he leaned back on it, while he was still on the ice. This action caused the front end of the racer to raise up considerably off the ice; like performing a wheelie on a bicycle. As soon as the back skis of his sled hit the open water, Tyler was violently ejected from the sled and forcefully propelled beneath the water. Mr. Robson’s son Gage, who remained seated on the sled with all three of its skis down, glided over the surface without incident.

8Counsel advocated that Tyler’s intervening act of raising the sled broke the chain of causation such that Mr. Robson is morally innocent of his death. In contrast, the crown stressed that this activity was a joint enterprise in which all three of them actively participated. Tyler would not have been able to perform this stunt or fallen off without Mr. Robson willingly aiding them by driving the snowmobile over the water. As a result, Mr. Robson’s dangerous operation of the snow mobile was a contributing cause of Tyler’s death. Furthermore, it was foreseeable, if not predictable, that someone would get hurt or even killed considering the dangerousness of the activity that they participated in that day.

9I do not intend to devote much time to explaining my reasons for acquitting Mr. Robson of Count 2 for operating the snowmobile with an excessive amount of blood alcohol. Simply put, I am left with a reasonable doubt with respect to whether Mr. Robson’s readings would have exceeded the legal limit at the time he was operating the snowmobile. The far more vexing issues to determine were whether the crown proved beyond a reasonable doubt that Mr. Robson operated the snowmobile in a manner dangerous to the public and the legal causation of Tyler’s death.

10This was an extremely difficult trial. The courtroom was full of grief-stricken individuals who are still mourning the loss of a vibrant young man, especially his mother. Everyone relived those last few tragic moments of Tyler’s life while watching that video. The tragedies did not end with Tyler’s death. Shortly after this heartbreaking event, Mr. Robson’s son, Gage, died in an unrelated single car collision. The guilt and sadness that Mr. Robson feels about Gage’s death, following so quickly after Gage lost his best friend, was evident. There were many tears shed throughout the proceedings.

11Judges are not computers. We are fallible beings like everyone else. It is challenging not to be influenced by genuine expressions of anguish and vicarious trauma. As triers of fact, it is essential to remind ourselves of the standard jury instructions in Watt’s Manual of Criminal Jury Instructions:

Preliminary instruction 18: Consider the evidence with an open mind. Make your decision without sympathy, prejudice, or fear. Decide this case by a reasoned assessment of the evidence, not an emotional reaction to it. Pay no attention to the comments of anyone else about the evidence, the persons involved or the decision you should make.

Final instruction 4: You must consider the evidence and make your decision without sympathy, prejudice, or fear. You must not be influenced by public opinion. We expect and are entitled to your impartial assessment of the evidence. That was the promise you made and the oath you took or affirmation you gave after you were accept by the parties as jurors and they have a right to expect nothing less.

12It was imperative to decide these complex legal issues from an intellectual perspective untainted by the sincere and understandable emotions of the participants. The legal analysis has been guided by precedent and the interpretation of facts with reference to the elements of the offence to ensure that reason as opposed to empathy influenced my decision.

Evidence

Witnesses Present for the Events

13Mr. Robson lives in a rural area near Bass Lake which includes a place known as the sanctuary. Growing up, Mr. Robson’s children spent a lot of time with their father and their friends at the sanctuary. They engaged in all sorts of outdoor activities over the years. They had experience operating all terrain vehicles and snowmobiles. During the winter months, a substantial portion of the lake froze over. Family and friends spent time on the lake tobogganing and riding skidoos.

14Mr. Robson’s son Gage lived in Sudbury in 2020. On March 20th, Gage and his friend Nathan Toeppner visited Mr. Robson’s house to work on a car. They were joined by Mr. Robson’s daughter and their mutual friends including Gage’s best friend, Tyler Christine-Bourgeois. Several friends joined them at the house. Most of the young people in attendance were in their late teens or early twenties. After working on the car, they wanted to spend the rest of the day enjoying the winter weather at the sanctuary.

15Mr. Robson was not aware the kids were going to drop by that day. He explained that he wasn’t feeling well, and he had been experiencing some flu-like symptoms. He didn’t want to disappoint the kids, so he agreed to accompany the whole group to spend the day together outside.

16Mr. Robson wasn’t prepared for visitors, so he didn’t have much to offer in terms of food or beverages. The crown’s witnesses had varying recollections of who was drinking what and when. These events took place four years ago. None of the witnesses can be faulted for their difficulty with remembering the details.

17Mr. Toeppner did not recall anyone drinking alcohol at Mr. Robson’s house. In contrast, Tyler’s girlfriend’s memory was refreshed from a statement that she gave shortly after the incident. Ms. Kennedy recalled that she was drinking alcohol with Tyler and a few other of the young men at the Robson home before they left for the sanctuary. She couldn’t remember seeing Mr. Robson drinking alcohol at the house.

18Mr. Robson gathered some food that he had available in the house so they could enjoy the day together. Everyone loaded ATV’s and snowmobiles with supplies, and they headed out to the sanctuary in the early afternoon. They brought a couple of GT racers with them to do some sledding.

19A GT racer is a unique looking plastic and metal sled. It has a board like seat which is set on top of three runners or skis. There is one ski in the front and two in the back. The front ski has a steering column and steering wheel attached to it that allows the rider to direct the sled.

20Nathan Toeppner was the crown’s first witness. He grew up with Tyler and Gage. They were Mr. Toeppner’s best friends. He also considered Gage’s dad, Mr. Craig Robson, to be a friend. The three boys spent their childhood and teenage years visiting Mr. Robson’s home in Bobcaygeon. They enjoyed all sorts of outdoor activities on recreational vehicles and looked forward to spending a fun winter’s day together. Mr. Toeppner explained that:

p. 4 October 7th: We were just supposed to go, the plan was to pull each other on GTs behind the snowmobiles, you know, getting the side by side out there too. It was just a beautiful day, March weather, starting to warm up a little bit. It’s still nice winter weather, sunny day. So, decided we want to go out the sanctuary, have a fire, spend the day out there, play in the snow.

21There were around ten young people at Mr. Robson’s house who subsequently went to the lake. They built a bonfire to stay warm. They spent a pleasant day, socializing, eating, drinking, and engaging in recreational activities. Different people were riding the snowmobiles and GT racers. At some point, the snowmobiles were used to tow people on the GT racers over the ice and snow. A witness recalled Mr. Robson participating in some of the fun.

22While they were at the sanctuary, some of the participants were drinking alcohol. Mr. Toeppner recalled drinking some alcohol. He saw Tyler and Gage imbibing as well but it was “nothing in excess” (p. 7 Oct. 7th). He could not recall whether Mr. Robson was drinking alcohol. Other witnesses who were present, including Tyler’s girlfriend Ms. Kennedy, related that Mr. Craig Robson was drinking alcohol. She thought that he had a beer. Mr. Cole Willis, another young man who was present, was drinking beer. He also remembered seeing Mr. Robson drinking beer at the sanctuary (p. 70 Oct. 7th). During cross-examination, Mr. Willis clarified that he could only recall Mr. Robson with a beer in his hand as opposed to drinking it.

23Ms. Mahoney was friends with Mr. Robson’s son and daughter. She was also present that day. She spent a lot of time by the bonfire where they were making hotdogs and hanging out. She believed that she was the only person who was not drinking alcohol, but she was mistaken. Mr. Robson’s daughter’s boyfriend, Mr. Martin, vehemently denied that he had been drinking and for good reasons.

24Ms. Mahoney made an important observation. She saw Mr. Robson drinking alcohol by the fire. She believed that she saw him drinking out of a “water bottle” that she assumed contained alcohol (p. 4 Oct. 9th). Considering Mr. Robson’s evidence that he had a Gatorade bottle with alcohol in it, Ms. Mahoney’s recollection could have been critical contradictory evidence that he only drank from that bottle after the collision. However, since it had been four years since this incident, Ms. Mahoney added “I honestly don’t really remember”. By her own account, her memory was not reliable.

25Ms. Mahoney confirmed that they brought beer and twisted tea with them. Mr. Clay Martin was another witness. As noted, he was Mr. Robson’s daughter’s boyfriend. He was also good friends with Tyler and Gage. He owned one of the snowmobiles that everyone used to ride on at the lake. He was asked by the crown if he was drinking alcohol, Mr. Martin responded:

Q. Were you drinking?

A. No, sir.

Q. Was there any particular reason you weren't drinking?

A. Because I was in operation of my snowmobile.

Q. Do you recall if Craig Robson was drinking?

A. Yes.

Q. Okay. Was he drinking?

A. Yes.

Q. Do you remember what he was drinking?

A. I believe it was a Twisted Tea. I think I think I saw him have one or two Twisted Teas while we were on it, on the lake.

Q. A Twisted Tea, that's kind of like a - like a cooler, right?

A. That's correct.

26Mr. Willis testified that he interacted with Mr. Robson throughout the afternoon. He did not notice any signs that Mr. Robson was intoxicated, neither did anyone else who testified during the trial even though most of him saw him drinking some alcohol. Regardless of his state of sobriety, it was reckless to operate a snowmobile after drinking any alcohol. Unlike Mr. Robson, Mr. Martin was a responsible young man. He knew that he should not operate a snowmobile, at all, after consuming alcohol. He was older than some of the other young people who were present but considerably younger than Mr. Robson who also would have known that he should not operate heavy machinery while under the influence of alcohol.

27In terms of the activities, Mr. Toeppner described how they spent the afternoon “bombing” around on the two snowmobiles and the GT racers (p. 9 Oct. 7th). Mr. Martin got upset with them because his snowmobile was getting damaged, so they switched to using a snowmobile that belonged to Mr. Robson’s neighbour.

28Gage and Tyler were alternating with driving the snowmobile and pulling each other and other people on the racers. Mr. Toeppner was having fun with them until he fell off one of the GT racers and injured his ankle. This injury would have been obvious to everyone present since Mr. Toeppner related that he could not “walk too good”. He described how he could not participate in any further physical activities because he was “out of the count, so I didn't ride anymore, and I was limping a bit” (p. 10 Oct. 7th). One of three best friends could not participate on the last day that they were all together.

29It is a consideration when assessing the dangerousness of the operation of the snowmobile, that this activity of towing the GT racers with snowmobiles had already caused an injury from falling off the sled. This is one factor when assessing the foreseeability of physical harm.

30Instead of Mr. Toeppner’s injury discouraging the continuation of using the snowmobiles to tow the GT racers, Tyler and Gage wanted to keep going and engage in even more daring conduct. They discussed with Mr. Toeppner using the snowmobile to tow the GT racer over some open water that they found in the ice by the shore:

p. 11 Oct. 7th: So, I know Gage and Tyler and myself, we had – we had kind of talked about doing some water skimming with the GT snow racers. The three of us have all done open water on snowmobiles before. We've all been pulled on GTs before. And so, we kind of made a plan that it would be pretty cool to do that.

31Mr. Toeppner provided more information about the GT racers. They are not particularly sturdy. He described them as “a plastic toboggan with three skis. It’s got a steering wheel” (p. 8 Oct. 7th). He described the conditions of the frozen ice surface as being slushy because it was a relatively warm day with sunshine. In term of the opening in the water, there was water with “a bit of broken ice” near the shoreline where the lake usually thawed in a small bay area. He estimated that the opening was “30 to 40 feet not even”. It was an admitted fact that the water in the bay was only four feet deep.

32Everyone who described the size of the opening in the water provided different estimations of the size of it. Unlike controlled sporting events, no one measured the length or width of the opening before they attempted to skim across it. No one tested the ice surface or density before the opening. Moreover, while it was consistently described as “open water”, it had large chunks of free-floating ice.

33The young men discussed getting Mr. Robson to drive the snowmobile to skip over the open water because “ he would have the most experience on the snowmobile” (p. 12 Oct. 7th). Mr. Toeppner had seen Mr. Robson operating the snowmobile during the day and after the event. He did not notice any issues with his driving at any point. Tyler and Gage were wearing helmets, but they did not have any additional protective gear like life vests or special suits on. They convinced Mr. Robson to drive the snowmobile while towing both of them over the section of open water.

34Mr. Toeppner watched them engage in two passes over the water with Mr. Robson driving the snowmobile while towing Gage and Tyler behind him on the GT racers. The first pass over the water was relatively uneventful. Gage and Tyler were so excited that they walked over to the nearby bonfire to ask Mr. Willis and Mr. Martin to record the second pass. Mr. Martin recalled how he, Cole Willis and Mr. Toeppner left the fire to watch and record them. The second incident of water skimming that ended in Tyler’s death was recorded. The recording was played in court. Counsel also provided stills from the recording that captured the stunt in a series of still frames.

35Mr. Willis, Mr. Toeppner and Mr. Martin were positioned about 10 feet away from the water to watch while they recorded the event. Just prior to the second pass, Mr. Toeppner and Mr. Willis described how one of the skis fell off Tyler’s racer while Mr. Robson was towing them on the ice to get into position. Mr. Willis provided more details:

p. 74 Oct. 7th: they stopped. He was having trouble, obviously, staying on the GT once the track fell off. So, they stopped, he got up, ran back to the track, brought it back to his GT racer, finagled with it for a few minutes, and it looked like he had - he had fixed it back.

36After spending the day using the racers for various activities, they were clearly not in optimal condition especially for performing a stunt over open water with chunks of ice floating in it. One snowmobile was already getting damaged from wear and tear and one of the GT racers had a loose ski.

37Mr. Toeppner explained that during the first successful pass, Tyler and Gage kept all three skis on the ice and over the water. In contrast, just before getting to the water the second time, Mr. Toeppner saw Tyler pull back on the GT racer as he performed a “wheelie”.

38In the recorded stills, Mr. Robson is captured looking back at both young men before they take off. Both sleds were positioned with all three skis on the ice when he looked back. Tyler and Gage were seated but Tyler appeared to be a little bit higher up. As Mr. Robson accelerated forward, he skimmed over the water and ice on his snowmobile. From Mr. Willis’ mistaken perspective, he believed that Mr. Robson was driving beside the ice as opposed to skimming the water while Tyler and Gage steered the racers towards the open water. The video recorded Mr. Robson using the snowmobile to skim over the water.

39Before the sleds hit the open water, Tyler appeared to lean or fall back, pushed himself up off the racer, and the front of his sled was elevated off the ice. As soon as his racer hit the water, he dramatically lost control of the sled and it broke apart. He was violently ejected and disappeared below the surface of the water. Mr. Willis thought the racer “snapped down onto the water” which caused him to be propelled forward. He saw Tyler hit the water “very hard” and “in a split second” he was under the water. In contrast, Gage remained in a seated position and glided over the open water without any apparent difficulty.

40Everyone who was watching ran towards the water to try and find Tyler. Mr. Toeppner described the chaotic scene while he stood by frozen in fear and shock. Gage physically jumped in the water, frantically searching for Tyler. He was screaming his name. Mr. Toeppner was emotional when he described how Tyler was Gage’s best friend, more than that, they were “basically brothers”. Gage was in a state of panic. Mr. Robson got off his snowmobile and ran to the open area. He put his arms in the freezing water desperately pulling chunks of ice out trying to find Tyler.

41Mr. Martin and Mr. Willis also recalled that they were trying to pull the chunks of ice out of the water with Mr. Robson. Despite all the efforts to find him, Tyler had disappeared beneath the ice. Mr. Martin had a distinct memory of how Mr. Robson had to pull Gage out of the water while Mr. Willis was on the phone with 911 (p. 59 Oct. 7th). Mr. Willis felt like he could not even properly articulate what happened because of his heightened emotions in that moment.

42Ms. Kennedy remembered seeing Mr. Robson standing by the water afterwards (p. 41 Oct. 7th). She could not say whether he had something to drink or not since she was not paying close attention to what Mr. Robson was doing at that time. Similarly, Mr. Martin was not focussed on what Mr. Robson was doing while they were pulling out the chunks of ice or afterwards other than the memory of seeing him pull Gage out of the water. Mr. Toeppner was in shock and Mr. Willis related that they were all panicking and understandably unfocussed.

43Mr. Martin thought the police arrived on scene relatively quickly in response to the 911 call. The other young people testified that it felt like it took a long time for the police to arrive on scene. Mr. Toeppner recalled staring off into space while he was waiting for the police, so he was not paying attention to what Mr. Robson was doing. As soon as they heard the police arrive, Mr. Robson voluntarily drove the snowmobile back and forth to the roadside to pick up the officers and bring them to the water.

44Near the end of Mr. Toeppner’s cross-examination, he had an illuminating exchange with counsel (p. 25):

Q. So, is it normal for Craig to be pretty responsible with motor vehicles? In your experience.

A. Yes. We – we like - we like to test limits, but if it – if something's too dangerous, we just wouldn't do it.

45The crown explored this comment further. Mr. Toeppner explained that:

Gage, Tyler and I, we had dirt bikes, quads. Every time it was who can jump faster or jump higher, go faster. We were always trying to push each other's limits, which is why we are such good friends. We all enjoyed the same sports, extreme in a way.

Q. And this testing of limits, was Craig Robson ever involved in that?

A. Not necessarily, no, but like, when we went down to Bobcaygeon, we had dirt bikes, so he would drive us to the track, he would ride dirt bikes with us.

46Mr. Toeppner insisted that he did not think that water skimming, with a large heavy machine that does not float, in variable conditions, while towing, not one, but two young men, was dangerous. He explained that:

Well, like I was going to say, there was risk. But we never - I never clued into the fact of it being so dangerous that someone could get hurt, killed. Like, I don't know, like I said, we let - we'd like to do crazy, extreme things, and I didn't fully think it was that dangerous. I've done open water on snowmobiles before, so has Gage, so has Tyler. And it’s – you come – you - the more you do it, the more it feels not so dangerous, because you're more confident in your ability to do it.

47Mr. Toeppner knew it was risky conduct. He admitted to engaging in different “crazy”, extreme sports with Tyler and Gage while Mr. Robson was present in the past. He had a very high threshold with respect to his assessment of when an activity would be considered dangerous. Considering that he had already been injured by falling off a GT racer while being towed by a snowmobile over ice, he knew full well that someone could get seriously hurt, especially if they chose to engage in even more risky conduct. Accordingly, his opinion about the dangerousness of water skimming while towing GT racers holds no weight.

48Mr. Toeppner was aware that he and his friends used snowmobiles to skip over water and ice in the past. Notably, he did not say that he had ever seen them being towed on sleds by a snowmobile over water. This event was pushing the limits of their past experiences.

49Mr. Martin was asked about the water skimming. He related that he would not have engaged in that activity just like he would not have driven a snowmobile after drinking alcohol. He certainly would not have done both. He knew Gage and Tyler very well. He did not express any concerns to them about what they were about to do because he knew that it would not have made a difference. He explained that:

p. 63 Oct. 7th: They spent a lot of time together doing, you know, a lot of what I would classify as crazy things that I necessarily might not do because I'm a little bit more restricted. Like, they like to drive their snowmobiles fast and, you know, stuff like that. But it didn't – it didn’t surprise me.

And further:

Q. So, you grew up in the general area. Would you say that it's not uncommon for people to drive snowmobiles over patches of open water up in your area?

A. I wouldn't say it's necessarily the area, as opposed to the – the two kids that were involved in the incident.

Q. Okay. Would you say that it's not uncommon or unusual for these two to - to engage in that type of activity?

A. That's correct.

Q. Okay. And do you know any other people that have done this type of thing before or do this type of thing?

THE COURT: Are we talking...

A. Well, I know that there’s a lot of - maybe not behind on GT snow racers, but I know a lot of people in the area like to go across open water on their snowmobiles.

J. AYOTTE: Right, okay.

A. And that is something that was common with those two.

50Ms. Mahoney described Gage and Tyler as “the most daredevil people” that she knew (p. 13 Oct. 9th). The only reasonable inference from these facts is that Mr. Robson was acutely aware that these two young men were risk takers and would push these stunts to extreme or “crazy” conduct.

51The practice of water skimming with snowmobiles was reviewed with the crown’s witnesses. Ms. Mahoney had seen people engaged in water skimming with snowmobiles before. She remembered how excited Tyler and Gage were before they made the second pass. She was worried because she knew that what they were doing was dangerous. She related (p. 14 - 15):

A. Yeah, I mean, I grew up going to the sanctuary with them since I was - I mean, since I met Chloe in grade six. So, I mean, we were always all on our snowmobiles and doing stuff like that there since - since then.

Q. Okay. When the guys - when Tyler and Gage come back all excited and say they just went over water on GTs, do you recall being surprised or shocked that they would do something so dangerous?

A. No.

Q. And I don't mean this - I know it's a terrible event that happened and I don't mean this as a criticism, please don't take it that way. But do you recall - did you say to them, guys, or words to the effect, you shouldn't do this, it's way too dangerous, what are you thinking?

A. Actually, yeah. I had just lost someone about a year prior to a tragic event, so I was very, like, you guys probably shouldn't do this and make sure you're wearing a helmet, and that kind of thing.

Q. Oh, you said that to him?

A. Well, I said that to Chloe, and then Chloe, like, went up to them and told them for me.

Q. Okay. Did you hear Chloe say something to them or do you assume that's what she was doing? That's what she was saying?

A. Well, I saw her walk up to Tyler and say, like, you probably shouldn't do this, because, you know what – like – like, Maddie is a bit traumatized from things that happened, yeah.

Q. But Tyler did it anyway?

A. I mean, there was no stopping those boys, if they wanted to do something they're going to do it.

52Like Mr. Toeppner, Mr. Martin testified that he had seen Tyler and Gage using snowmobiles to skim over open water, but he had never seen them do it while towing each other on a GT racer. In fact, he had never seen anyone in the area where they lived do this before (p. 66 Oct. 7th). Similarly, Ms. Mahoney, who grew up in the area, had seen people skimming water on snowmobiles but not while towing GT racers.

53Mr. Martin had seen videos of individuals engaged in water skimming with a snowmobile while towing sleds online. Counsel relied on the fact that this activity is available to view on the internet as some kind of indication of its regularity or normalcy. I could not disagree more. There are all sorts of dangerous and foolish stunts readily available online for viewers. That does not mean that the behaviour that is recorded is not dangerous. Quite the contrary, people will post all sorts of ridiculous conduct while risking their lives just to gain more viewers, followers, or positive commentary.

54Rather than normalizing water skimming with a snowmobile by recording it, it had the opposite effect. Once Gage and Tyler, two young people who liked to push the limits, knew someone was recording this stunt, it was predictable that they would try to make it more exciting for potential viewers. A reasonable inference from the video was that Tyler chose to make it even more dangerous than it already was in an uncontrolled environment.

55Mr. Martin and Ms. Mahoney recognized how dangerous this activity was for the participants. Ms. Mahoney even tried to talk them out of it through Gage’s sister. Mr. Robson was the adult present and the father of Gage. Instead of warning them not to do it or prohibiting them from using the snowmobile for this purpose, he chose to take an active role by helping them to perform this stunt.

56Mr. Robson knew that other young men came to the water to record the second pass. He also knew that these two young men had a history of pushing each other’s limits when they engaged in “extreme” sports. They liked to try to “one up” each other. In these circumstances, it is not at all surprising, in fact it was foreseeable, that either Gage or Tyler would do something foolish to make the second pass more memorable while being recorded to make it more worthy of a social media posting.

Police Witnesses

57Based on the timeline of events, the second pass over the water happened sometime after 5:00 p.m. Police officers were close to the scene because they were responding to a different incident. They received information from dispatch at 5:23 p.m. to attend for an emergency at Bass Lake.

58Two officers were able to get there in ten minutes. They arrived on scene at 5:33 p.m. They were greeted by Mr. Robson who had driven to the roadside on his skidoo. They had a brief conversation. One of the officers got on the back of the skidoo while Mr. Robson drove him to the section of water. Mr. Robson dropped one officer off and he returned to pick up the second officer. He transported him to the scene as well.

59Neither officer noted any issues with Mr. Robson’s sobriety when he greeted them. He had no difficulty operating his snowmobile back and forth to the scene. Once the officers were at the water, they noted a “large opening of water”. Many people had gathered by it. They were very upset, yelling and screaming. The officers became concerned for their safety, so they had them back away and onto the nearby land. Police and other first responders were not able to locate Tyler.

60The officers observed the GT racers with yellow rope attached to them. One of the racers was damaged and missing a ski. Neither of the officers noticed any evidence of alcohol consumption on the ice by the open water.

61PC Marcoux interacted with the witnesses after they were safely directed away from the edge of the water and ice. He noticed that Gage was very wet because he had been in the water until he was pulled out by someone. Gage was so distraught that he kept going back to the water and had to be redirected. PC Marcoux realized that no one had spoken with Mr. Robson. As a result, PC Marcoux began speaking with him at 6:13 p.m. which would have been about an hour after the incident.

62Mr. Robson was visibly upset. During their conversation, PC Marcoux detected an odour of alcohol coming from his breath. A demand was made for Mr. Robson to provide a sample of his breath into an ASD that was back at the officer’s cruiser. They walked back to the cruiser arriving at 6:27 p.m. Mr. Robson registered a failure on the device. He was arrested for operating the snowmobile with an excessive amount of alcohol in his system. He was cooperative and compliant with the officer throughout his dealings with him. Mr. Robson was searched incident to arrest. PC Marcoux found a phone, wallet, tools, cigarettes and a lighter. He did not locate any alcohol or bottles on his person.

63Other than stumbling one time while getting into the cruiser, neither of the officers at the scene observed any symptoms of impairment. The fact that Mr. Robson stumbled slightly, once, while standing on a snowy surface after a long, emotional, and harrowing afternoon is not evidence that is corroborative of anything.

64There were some delays at the station while Mr. Robson tried to get in touch with counsel of choice. He ultimately provided two breath readings. The first sample at 9:07 p.m. registered a reading of 74 mg of alcohol in 100 ml of blood. The second sample at 9:29 p.m. registered a reading of 65 mg of alcohol in 100 ml of blood. Mr. Robson was released unconditionally from the station. The police intended to follow up with the Centre of Forensic Sciences to get an expert opinion about what Mr. Robson’s readings would have been at the time of driving when Tyler went under the water.

65A properly qualified collision reconstruction expert was called as a witness by the crown. He attended the scene that night. He took photographs of the area, the snowmobile and the two GT racers. The sleds had metal tubing as the frame and plastic ski runners. There was nylon rope attached to the steering columns of both sleds. One sled was damaged and missing the left rear ski. He was not able to take measurements of the length of the opening in the water because it was unsafe to get too close to the edges.

66The following day, a drone was flown over the whole area to obtain aerial photos. The expert examined tracks around the water and noted sets of track heading towards the south side of the open water and reappearing on the north side. He examined the video taken of the incident. He described how the tracks and video showed that the snowmobile was driven over the open water while pulling the two GT racers.

67Despite having the video of the collision, the expert did not perform any calculations of the speed that the snowmobile was travelling because he was not trained to complete this kind of evaluation. In addition, unlike vehicles, snowmobiles do not have any kind of control modules that record details before, during or after a collision.

68Counsel suggested that a logical inference from the video and the examination of the scene is that the speed of the snowmobile that was operated by Mr. Robson did not cause the GT racer to crash since one of the GT racers made it across safely. The expert agreed with him. He also agreed that he witnessed the decedent engaged in some type of “horseplay” just before hitting the open water. Both riders of the GT racers had the ability to steer the sleds over or away from the water, but the expert could not proffer an opinion as to what speed they would have lost the ability to navigate the sleds. He explained that, at a given speed, the riders of the sleds would not have been able to steer them.

69It was very apparent during the trial that there were many variables that influenced the dangerousness of this stunt:

• The absence of protective gear other than helmets or the inability of any emergency personnel to quickly respond to the scene; and
• The lengths and strengths of the ropes used for towing; and
• The state and durability of the sleds and snowmobile; and
• The height and weight of the participants; and
• The speed the snowmobile was travelling prior to an attempt to hydroplane; and
• The length, width, depth, current and state of the water and the effect of the free-floating ice; and
• The sobriety, expertise, or experience of the participants.

70This was not a controlled environment where any of these variables were considered, measured, or meaningfully assessed beforehand. There was no protective equipment other than helmets. There were no emergency services available if something went wrong.

71Counsel asked the expert about his opinion of the cause of the accident. They had this exchange at p. 61 Oct. 8th:

Correct, okay. Officer, the - what you described as the horseplay the - that Tyler was engaging in before he hits the open water; were you able to form any opinion as to whether that caused the accident?

A. No.

Q. So you said before, that in your opinion, the cause of the accident was a snowmobile pulled the GTs across the water?

A. Correct.

Q. But put another way, the GTs going across open water are what caused the accident, right?

A. Well, the GTS were being pulled by an object. They were being pulled by a snow machine.

Q. Right.

A. And they had to be pulled at a certain speed to be able to traverse across that open water. They wouldn't be able to do it on a level surface by themselves.

72While counsel highlighted with the expert that the riders of the sleds could have avoided going over the water if they wanted to, it is obvious that each participant played a role in the outcome. Mr. Robson voluntarily played a vital role in this stunt by operating the snowmobile at a speed that had to be fast enough for the snowmobile and two people being towed behind it to hydroplane across water.

Forensic Toxicologist

73Doctor Mayers is a qualified and respected forensic toxicologist. He reviewed the facts and breath tests results. He performed mathematical calculations to determine Mr. Robson’s blood alcohol concentration at the relevant time of operating the snowmobile. He provided a rough estimate of the time of operation to be between 5:15 p.m. and 5:23 p.m. which was the time of the call to dispatch. He provided an opinion that:

A. Based on the lowest of the two readings, and with certain conditions that I place upon any projection of this nature, I would project that the blood alcohol of the individual would have ranged between 80 to 145 milligrams of alcohol in 100 milliliters of blood. I did say there are conditions, and there are four, I will certainly get into those if – if required, but they are, as everyone can see, on my report.

74I will not review the toxicological evidence in detail. Counsel carefully explored each of the “conditions” that influenced the range. Some of the factors could result in the readings being below 80 and some factors could result in the readings being above 145. Based on this evidence alone, even without assessing the credibility of Mr. Robson’s evidence about drinking after the fact, I am left with a reasonable doubt about whether the blood alcohol content was above or below 80 mg of alcohol in 100 ml of blood at the time of operating the snowmobile.

75Doctor Mayers evidence was relevant in another respect. Even if Mr. Robson’s blood alcohol content was less than 80, he explained that does not mean that his ability to operate the snowmobile was not negatively impacted (p. 29 Oct. 9th):

First, I – I would define scientifically that impairment is a diminished ability to do a task. That's what a scientist means when we call impairment. We don't seek to enter into any sort of fine, legal type of analysis. And there are two things that are important to impairment. One is obviously a blood alcohol concentration, and the other is the complexity of the task. Driving motor vehicles are - is by definition, a complex task, so we have to deal with the blood alcohol. And my opinion, and opinions differ, but my opinion is an individual's ability to operate a motor vehicle would be impaired at 50 milligrams of alcohol in 100 milliliters of blood and at greater than that. There are a variety of reasons for that, but we can actually demonstrate impairment in some individuals with very specific and - and sophisticated and controlled scientific experiments at – at much lower concentrations than that. They've been demonstrated at - at 15 milligrams of alcohol in 100 milliliters of blood, but I don't think there's sufficient evidence from the totality of the scientific literature to allow me to conclude that an individual would be impaired at that concentration.

And further:

if you combine complexity with - with blood alcohol concentrations, that's when we comment on impairment and excessive speed, or higher speeds increase the complexity of the task, and ethically it would be dangerous to do it. Notwithstanding all of that, closed course studies have demonstrated that impairment in individuals is present at blood alcohols below 50. Even in the most experienced drivers who are recruited for studies, we can demonstrate that the individuals, even in this elite group, are demonstrating impairment at 40 or 50 milligrams of alcohol in 100 milliliters of blood. And there are various aspects that - that may be impaired in these individuals; unlike the laboratory, we can't control for the exact aspect of impairment or indicia of impairment. [emphasis mine]

76Considering the complexity of the task that Mr. Robson was engaged in, which required skill, speed and concentration, he should not have had any alcohol whatsoever in his system. The fact that he consumed alcohol, even if he didn’t feel the effects, impacted his ability to responsibly operate the snowmobile. Mr. Robson’s informed choice to perform this complex stunt knowing that all three of them had been drinking alcohol made it so much more hazardous.

Mr. Robson’s Evidence

77Before reviewing the defence evidence, I note that the crown introduced Mr. Robson’s criminal record during cross-examination. He had convictions as youth for a property offence and a robbery. In addition, he was convicted of careless use of a firearm in 1995, a mischief in 2007 and a breach of probation in 2018. Notably, the balance of his criminal antecedents was a series of convictions for drinking and driving related offences: 1994 driving with more than 80 mg of alcohol in 100 ml of blood, 2005 driving while impaired and failing or refusing to provide a breath sample and, more recently, 2018 driving while his ability to operate a motor vehicle was impaired by alcohol.

78Considering the dated nature of the honesty offences, I did not find any of these convictions to be probative of Mr. Robson’s credibility. Furthermore, if this was a jury trial, the other convictions for the related offences would likely have been excluded if counsel brought an application pursuant to the Supreme Court’s decision in R. v. Corbett, [1988] 1 S.C.R. 670. I will not consider the prior discreditable conduct that is presumptively inadmissible. Mr. Robson’s criminal record has not impacted my assessment of his credibility.

79Mr. Robson’s older children, Chloe and Gage, are from a different relationship. While they did not live with him, they grew up spending a lot of time at his home in Bobcaygeon. They enjoyed many outdoor activities with their family and friends especially at the sanctuary. He fondly remembered spending almost every Sunday engaged in some kind of motorized sport including snowmobiling. They used to have the kids on hoods taken from a car and tow them around with the skidoos for fun. Gage and Tyler visited him frequently to work on cars and to spend time together. Tyler was his son’s best friend for more than a decade.

80On the morning of March 20th, Mr. Robson was at home with his wife and youngest children. Nathan Toeppner, Gage, Tyler, and his girlfriend stopped by without any prior notice. The wanted to work on Nathan’s car in the garage. Some of their other friends also dropped by later. They decided to go out to the sanctuary.

81Mr. Robson was feeling ill and didn’t want to go with them. He felt bad because his son had travelled all the way from Sudbury to visit him, so he decided to spend the day with them. He was not prepared for visitors. He pulled together what he had around the house to have snacks and lunch outdoors. It was only around noon, so Mr. Robson had not consumed any alcohol. In terms of the alcohol that they brought with them, he related:

p. 19: I know there was Twisted Teas, a case, and I don't know if they went and got them in between getting to the - to the lake, or they were put on the four-wheeler and brought out to the lake at that point. So, there was a case of Twisted Teas, anyways, brought to the lake. I know there was Twisted Teas, a case, and I don't know if they went and got them in between getting to the - to the lake, or they were put on the four-wheeler and brought out to the lake at that point. So, there was a case of Twisted Teas, anyways, brought to the lake.

82In addition to the 24 case of twisted teas, Mr. Robson explained that he wanted to bring something for him to drink “just to be social”. He found a bottle of Gatorade in the fridge, emptied out some of the liquid and added some vodka. He estimated that he “dumped half the Gatorade out, and I just topped it up, roughly three quarters full, and I put a lid on it” (p. 20). He did not measure how much vodka that he put into the bottle. He was wearing a big ski coat. He put the bottle in his pocket.

83Once they arrived at the sanctuary, Mr. Robson built a bonfire. They socialized while he cooked some food. The kids enjoyed snowmobiling, sledding, and pulling each other on the GT racers. He did not recall engaging in any of those activities because he was under the weather, and he was busy cooking and socializing. He conceded that he may have at one point but, it’s been so many years, he doesn’t remember driving any of the recreational vehicles until the water skimming.

84Mr. Robson, his children, and their best friends were very familiar with the lake and the surrounding area. The part of the lake with the open water was in the bay. In March, it was not uncommon to have a bit of a thaw and the ice would melt there because of a current in the water. The moving water was quite shallow, at most four and a half feet deep. A person could easily stand up in it, with their upper body and head above the water. The depth is regulated by a dam because it is a fish sanctuary.

85In terms of using a snowmobile to cross open water, Mr. Robson related that he had significant experience with driving in this manner. He attended an annual event to learn from others and watch people skimming water. These activities took place on “safe ice” with people doing laps over open water. He also explained the speed and maneuvers necessary to successfully cross the water (p. 11):

Q. What can you tell us, if anything, about speed in relation to driving a snowmobile on open water?

A. The speed necessary or?

Q. Yeah.

A. I always - it'd be a minimum speed of 35 miles an hour, depending on the length of the crossing and also the power of the sled to keep it up at 35 to propel the water...

Q. Okay.

A. ...with the track, to keep it up like a jet ski.

Q. And – and how do you know that 35 is the speed; is that through your experience, or has someone told you that?

A. It's from the - it's from actual professional people, and it's kind of a guideline when we ski or anything on water; 35 is a magic number.

86He was very clear that the essential speed was 35 miles an hour which is just over 56 kilometres an hour. The necessary speed depends on the length of the opening (p. 11). No one measured the opening in the water. Mr. Robson explained that the ropes needed to be at least 40 to 48 feet long to ensure that whatever the snowmobile is towing over the open water does not get caught in the “wake” or displacement of water caused by the snowmobile (p. 35 and p. 54). He did not measure the length of the ropes. He didn’t even tie them to the snowmobile, the young men tied the racers. Mr. Robson certainly had no time to calculate the speed that he needed to achieve to adjust for pulling the weight of two young men. Finally, he agreed with the crown that the direction of the current in that open water was an additional factor (p. 56).

87Other than the speed that he maintained, Mr. Robson had not taken any of the necessary preparatory steps to measure or check the ropes, measure or check the opening and surrounding area or account for the free-floating ice and the additional weight of two young men.

88During cross-examination, Mr. Robson conceded that he was aware that the professionals who performed this stunt would not consume alcohol in advance (p. 45). He volunteered that, during these events, they often tied floatation devices to the snowmobiles in case they sank so they could find them in the water. Clearly, he was cognizant of the risks that the snowmobile would not successfully skim the water.

89He estimated that snowmobiles weigh about 300 pounds. Unless they are operated at a high enough speed in the right conditions, it would be like “throwing a rock in the water” (p. 46). Nevertheless, he insisted that it was “not dangerous to me, as I grew up doing this type of thing, and I still do it, up to this day” (p. 47). It was shocking to hear Mr. Robson testify that he has continued to tow people over open water with his snowmobile even after Tyler died while engaged in this stunt. It demonstrated a lack of insight into the seriousness of these events and his role in Tyler’s death.

90Mr. Robson and his son had been using snowmobiles to skim water for many years. Mr. Robson also asserted that he and his son had used snowmobiles to skim water while towing sleds. He claimed that they had engaged in this activity “tremendously” while Gage was growing up (p. 13). Considering Mr. Martin’s and Ms. Mahoney’s experiences and that none of the others knew them to tow racers over open water, I found this aspect of Mr. Robson’s evidence to be exaggerated. I do not believe that Gage engaged in water skimming with GT racers as frequently as Mr. Robson claimed, if at all, especially since he also related that he had no idea what, if any, experience Tyler had with performing this manoeuvre. Tyler and Nathan were often with Gage when he visited his dad.

91Mr. Robson estimated that he had towed a GT racer over open water between 30 to 50 times in the past. He did not provide any evidence about how many times he towed two GT racers at the same time. He claimed that they never wore life preservers because the water was not deep, and they did not fit over their snowmobile suits.

92Nathan Toeppner, Gage and Tyler spent a lot of time together at the sanctuary with Mr. Robson. He noted that:

Q. Or this week. Okay. And what, if any, experience taking part in this activity at the sanctuary, do you know that Gage and Tyler - Gage or Tyler or Nate did before?

A. I know that they've done lots of GTing, I – I can't speak for Tyler crossing water. I've heard stories, but I'm not going to say that they were true. But yes, Gage for sure.

93Mr. Toeppner was not able to engage in the fun activities that day because he fell off a GT racer that was being towed by a snowmobile over ice. Despite being at the fire with Mr. Toeppner and spending the afternoon with him, Mr. Robson denied that he was aware that he had been hurt while being towed on a GT racer (p. 51). Mr. Robson had a purportedly good recall of other events that day. I do not believe that he did not notice that one of Gage’s best friends was not joining in the activities that he enjoyed and that he was limping.

94Mr. Robson was confidant about his son’s abilities to successful glide over open water on a GT racer but, by his own account, he had never seen Tyler do it. Throughout the day, he heard Tyler bragging that he was the GT racer champion. He knew that Tyler liked to perform stunts (p. 41):

A. Through conversation, I have heard Tyler speak of it and he said he's done it numerous times. I had to – I - by his stories, I assume that, yes, he has.

Q. Okay.

A. Because he was the GT - he was telling everybody he was the GT hero, did this, did that and...

THE COURT: He was the GT what?

A. Hero, like, the guru of....

J. AYOTTE: Q. What did you take – what did you understand – what did you think he meant by, when he called himself the GT hero?

A. Just stunts.

Q. All right.

A. Any kind of like, out of the average GT riding, there was jumps and - and water and just above normal, I would say.

95During cross-examination, Mr. Robson admitted that he knew Tyler considered himself to be a “daredevil”. He had never towed Tyler across open water, so he did not know how Tyler handled himself. He reluctantly admitted that, despite being with Tyler and Gage enumerable times at the sanctuary, he had never seen Tyler being towed on a racer by a snowmobile over open water (p. 47 – 49). Mr. Robson agreed “one hundred percent” with the crown that these two young men were looking for an adrenaline rush (p. 51). He understood that Tyler had performed “stunts” before using a GT racer (p. 41).

96Mr. Robson was asked about alcohol consumption before the incident. He recalled that shortly after they arrived, “they all dove into the Twisted teas” including himself (p. 24). He recalled drinking one Twisted Tea while he was cooking the food. He had a second one some time afterwards. He admitted that he had seen both Tyler and Gage “socially drinking” alcohol over the course of the afternoon (p. 58).

97Mr. Robson confirmed that Mr. Martin got fed up with the way people were using his snowmobile (p. 28). Mr. Martin expressed concern that it would get damaged, and he had to ride it home. Tyler and Gage started using a different snowmobile that belonged to Mr. Robson’s neighbour. Mr. Robson was very clear during his examination in chief that the boys were the ones who tied up the GT racers to the snowmobile (p. 28). Mr. Robson did not measure or examine the rope before the stunt he participated in.

98Tyler and Gage approached him at the fire and asked him to tow them over some open water they found in the bay. He explained that:

I was going to take them to that spot where they had already - they had found it right, and so we wanted to tow across here. And so being at the fire, I said, okay, I'll take you, I'll take you.

99According to Mr. Robson, he had not been out on the lake that day, and he had not seen the open water himself. Nevertheless, he agreed to tow them over the water without even assessing the conditions beforehand. In addition, Tyler was not properly attired for skimming water. He had on Mr. Robson’s snowmobile coat, construction pants and steel toed work boots (p. 57). Mr. Robson agreed it would be difficult to swim with these clothes and boots on.

100They drove by the water, and he looked at the “scenario” and he was “speculating the distance” (p. 31). He was clearly prepared to perform this stunt without any special preparation:

We go over here just to get squared up and right about there, we stop. This is where I would look back to make sure everything is kosher, helmets, that they are ready, ropes are tight. And I would, after then, look back, wait for a nod, and I would execute across.

101After the first pass, Mr. Robson described the young men as “ super stoked. They are just - I just remember them, the - they were just so excited and proud and stoked, and they were telling everybody, like, it was so amazing”. Contrary to his earlier evidence that water skimming while towing GT racers was routine for Tyler and Gage, it was evident that this was an extraordinary event for them. It was late in the day, around 4:30 p.m. Mr. Robson was tired, and he wanted to go home. Between the first and second pass, while Gage and Tyler gathered the other young men to film it, Mr. Robson recalled that he had another Twisted Tea.

102After reviewing the evidence as a whole, I do not believe Mr. Robson that there was much time between the first and second pass. The boys clearly expressed that they wanted to film the second pass and went to get their friends for that purpose. In addition, Mr. Robson described himself slowly consuming Twisted Teas over the course of the afternoon which is consistent with the observations of the other witnesses. I accept that Mr. Robson drank a third alcoholic beverage, but I do not believe that he changed his drinking pattern and very quickly consumed that third drink between the two passes. Rather, between their time of arrival at the sanctuary and the first pass over the water, I find that Mr. Robson consumed at least three Twisted Teas before engaging in the water skimming.

103Mr. Robson claimed that he tried to dissuade Tyler and Gage from going over the water again. They asked the neighbor, but he said no to them. Mr. Robson felt like he was “begged and pleaded to do it”. According to Mr. Robson, this conversation took place by the fire. None of the other witnesses were asked by counsel whether they heard Tyler and Gage cajoling Mr. Robson into going again. They weren’t asked if they saw anyone drinking alcohol between the two passes. Contrary to Mr. Robson’s evidence, each young person described a brief interlude when Gage and Tyler ran over to the fire to get their friends. They were excited and asked the other guys to film them. That was it.

104Mr. Robson described a much longer gap in time. According to him, they all had to get “suited up again” and they checked the ropes before heading out (p. 35). Neither Tyler nor Gage wore any protective gear other than helmets so there was nothing to get suited up in. Mr. Robson showed little to no concern with the state of the ropes before the first pass, so I don’t believe he was concerned before the second pass.

105Even though Mr. Robson claimed to recall these specific details, he denied that he witnessed the ski fall off Tyler’s GT racer immediately before the second pass. All three young men who were watching from the side of the water saw that ski fall off. They witnessed Mr. Robson stopping the snowmobile while Tyler put it back on.

106Mr. Robson’s memory had inexplicably convenient gaps and/or additions. Considering Mr. Robson’s evidence that he made sure that Tyler and Gage were safely on the racers and ready to go before the second pass, I do not believe that he didn’t notice or doesn’t remember the ski falling off the GT racer minutes before Tyler plunged to his death. Before he made that second pass, I find as a fact that Mr. Robson was aware that Tyler’s racer was not in good condition after a day of wear and tear.

107After he saw them seated on their racers and ready to go, Mr. Robson focussed his attention forward and on getting the snowmobile up to a speed in excess of 35 miles an hour. Once he made it across the water, he slowed down and looked back. He saw Gage frantically yelling and screaming on his racer. Gage jumped off and ran towards the water. Mr. Robson looped around and noticed that the ropes were all tangled up. At first, he thought that they were pulling a prank on him because he knew the water was shallow. However, Gage was so panicked that he realized this was a serious situation.

108He ran to the water’s edge and shoved his upper body into the freezing cold water. He was pulling ice out of the way while searching for Tyler. At the water’s edge, Mr. Robson was cold and wet:

p. 39: My son's distraught, yelling all over the place.

Q. What - what's Gage doing at this point?

A. Screaming at the top of his lungs, “Tyler.” And I figured I had to either dive in or stick my head into the ice. I, at that point, took my coat off, I laid it on the ice, and I was frozen and at that point, remembered I had that next mixed drink, and I knew that I was going to jump in the water. So, I - I drank my drink and thought, I'm going to dive in the water. And then in that interim, my son jumped in the water.

109Mr. Robson claimed that he finished the ¾ full bottle of Gatorade and vodka within three seconds. He needed some “liquid courage” before submerging himself in freezing water, but his son jumped in while he was finishing off the bottle (p. 39).

110There are a multitude of issues with the credibility of Mr. Robson’s account. Based on all the other witnesses and the fact that everyone was aware that Tyler was at risk of drowning, I find that Gage jumped into that water immediately after getting off the racer to look for his best friend. Gage was so invested in saving him, he had to be pulled out of the water by his father. The police had to keep him away from the water. I do not believe, at all, that Mr. Robson had time to search around in the water, pull chunks of ice out of the way, remove his coat and then drink the Gatorade before Gage jumped in the water. I also do not believe that he was drinking the alcohol to build up the courage to jump in the water.

111While I do not believe Mr. Robson’s account of when and why he drank the Gatorade with vodka, I am left with a doubt about whether he consumed it before or after the second pass. Different people react differently to a traumatic situation. I cannot completely reject his evidence that he chugged some alcohol, after the incident, when he was cold, wet, and frightened. No one at the side of the water was paying any attention to what Mr. Robson was doing after the Tyler disappeared.

112Mr. Robson eventually rescued his son from the water. He heard someone on the phone with 911. He got on the snowmobile and headed up to meet the officers. He did not try to avoid the police in any way. Rather, he greeted them and escorted them to the scene. The police did not find any evidence of alcohol consumption near the open water. During the search incident to his arrest, the police did not find the empty bottle of Gatorade on his person. The crown asked Mr. Robson what he did with that bottle. He explained that he put it in the trunk of his snowmobile before he went to pick up the police officers (p. 63).

113Gage was a lost soul after his best friend’s death. He had difficulty coping with the loss and the Covid crisis made his mental state even worse. He was “bouncing” around between different places. Gage was driving a car with Ms. Kennedy when it crashed and he died at the scene.

114In summary, I find that Mr. Robson’s memory lapses about inculpatory facts like Nathan’s injury and the ski falling off the racer before the second pass were not credible. Before he chose to engage in this activity, he knew that one of the best friends had already been hurt and the racers were damaged. Despite not being able to recall these facts, Mr. Robson asserted that he had a very clear recollection of what, when and how much he had to drink over the course of a laid-back afternoon. I do not believe that he drank between the first and second pass or that he chugged the bottle to get the courage up to jump in the water. He had a least three Twisted Teas before he drove the snowmobile over the water.

Legal Analysis

General Principles

115The crown bears the burden to prove Mr. Robson’s guilt beyond a reasonable doubt. In a case that involves a factual determination of the credibility and reliability of the crown’s witnesses and the evidence called by the defence, I am guided by the analysis set out by the Supreme Court of Canada in the seminal decision of R. v. W.(D.), [1991] 1 S.C.R. 742, at para. 28:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

116More recently, in R. v. A.J.K., 2022 ONCA 487, at para. 22 and 28 to 29 (Ont.C.A.), the Ontario Court of Appeal observed that:

Much ink has been spilled over W.(D.). This case involves a straightforward application of these principles. It is simply a methodology that triers use to determine whether the prosecution has met its burden of proving each element of the offence beyond a reasonable doubt. In cases like this one, involving "conflicting testimonial accounts", the methodology can be helpful in ensuring that triers keep the burden squarely on the Crown.

And further:

The fact of the matter is that this was a case involving starkly different versions of events that stood in dramatic opposition to one another. This meant that the credibility and reliability of the complainant's and appellant's accounts would be fundamental to the resolution of the issues at trial. The trial judge clearly knew this. Indeed, he said that in the very next sentence following upon the impugned comment: "[T]he credibility and reliability of the evidence of the complainant and the defendant are live issues for me to determine."

The experienced trial judge also knew that his reasoning could not devolve into a simple credibility contest, one where he could choose between the two accounts given. How do we know this? He said so: "[M]y verdict must not be based on a choice between the evidence of the defence and the evidence of the Crown." [emphasis mine]

117A reasonable doubt can arise from the defence evidence or from evidence favourable to the defendant in the crown’s case. More than a decade ago, in R. v. B.D., 2011 ONCA 51, at para. 114, the Ontario Court of Appeal summarized the law on this issue and provided very clear directions on how to proceed with the analysis:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favorable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice. In that event, they must acquit.

118When assessing the strengths and weaknesses of the witnesses’ evidence, it is important to distinguish between the concepts of credibility and reliability. In R. v. H.C., 2009 ONCA 56, at para. 41, the Court of Appeal explained that:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately:

i. Observe;

ii. Recall; and

iii. Recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

119There are some inconsistencies in the witnesses’ accounts that may impact the assessment of either the credibility and/or the reliability of their evidence. However, an honest witness can be mistaken about some details for a myriad of reasons. In the oft-cited decision, R. v. A.M., 2009 ONCA 56, at paras 12 to 14, the Court of Appeal stressed that:

Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.

Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses. [citations omitted]

120While a witness may not be credible or reliable with respect to certain aspects of their account that does not mean, inexorably, that I can’t accept other parts of that witness’ evidence. I am entitled to believe all, some, or none of a witness’ evidence.

121I made findings of fact throughout my review of the evidence. Before reviewing the testimony, I instructed myself with respect to the decision in R. v. G.C., 2022 ONCA 2, at para 38. The Court of Appeal detailed how and when it is appropriate for a court to take judicial notice of understandable issues with a person’s memory after traumatic events:

After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people. Although he used different language, I would express these as:

• observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;
• a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’s overall reliability or credibility;
• it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’s testimony concerning events…

122While this decision is relied on primarily when assessing witnesses’ evidence in sexual assault cases, the ratio applies to any witness, including the accused, recalling a particularly traumatic incident. In addition, I was guided by the comments of the Court of Appeal in R. v. L.O., 2015 ONCA 394, at para. 34 that:

An isolated, minor inconsistency in a sea of otherwise consistent descriptions of the relevant events would have far less impact on L.F.’s credibility and reliability than would several material inconsistencies going to the heart of her allegations.

123I appreciate that these traumatic events occurred more than four years ago which has impacted the memories of all the witnesses. Nevertheless, for the reasons outlined in the summary of the evidence, I find that there were aspects of Mr. Robson’s evidence that went “to the heart” of his defence that were not credible.

The Impaired Driving Count

124During submissions, the crown made the informed decision to pursue a finding of guilt with respect to 320.14(1)(b) for operating the snowmobile with a blood alcohol concentration that exceeded the legal limit as opposed to impaired driving. This was an appropriate choice considering the dearth of evidence that Mr. Robson’s ability to operate the snowmobile was impaired by his consumption of alcohol. Within a short period of time after the incident, he drove back and forth on his snowmobile to transport two police officers to the scene. Neither of the officers noticed any symptoms of impairment neither did any of the other witnesses.

125While no one noticed any signs that Mr. Robson’s ability to operate the snowmobile was impaired by alcohol, it was very irresponsible for him to agree to engage in a stunt that required skill and concentration while under the influence of any alcohol. As Dr. Mayer observed, alcohol consumption below the legal limit negatively impacts a person’s ability to perform complex tasks. Mr. Martin understood that it is too dangerous to operate a snowmobile under the influence of alcohol. I find that Mr. Robson knew that he should not have been driving the snowmobile while under the influence of alcohol which was exacerbated by the fact that he wasn’t feeling well. Mr. Robson’s disregard for their safety was further heightened by his awareness that both young men had also been consuming alcohol.

126In terms of the breath readings that the police obtained and the extrapolation or reading back performed by the expert, the lower end of the range was at 80 mg of alcohol in 100 ml of blood. I am left with a doubt, after reviewing the whole of the evidence, that Mr. Robson’s readings at the time of operation were in excess of this amount because:

• The expert conceded that there were factors that could have impacted both the lower and higher end of the range that he provided during his evidence; and
• Mr. Robson could have consumed some alcohol shortly before these events that was not yet been absorbed into his system; and
• While I do not believe Mr. Robson’s reasons for chugging alcohol after the event, I am left with a doubt about whether he consumed some alcohol shortly before and/or after the event that impacts the readings.

127Accordingly, Mr. Robson is acquitted of count 2. While I cannot find Mr. Robson guilty of impaired driving, it is a substantially aggravating fact that he was operating the snowmobile at high speed while towing two young men while under the influence of a quantity of alcohol.

Dangerous Operation

128The operation of recreational vehicles, like any conveyance, is a privilege. When engaged in the legal analysis with respect to the nature of the driving, I rely on the guiding legal principles set out in section 320.12 of the Criminal Code:

It is recognized and declared that:

(a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety; and

(b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians.

129These principles apply equally to the operation of any conveyance including snowmobiles. Snowmobiles are heavy machines capable of reaching high speeds that may endanger the lives of the riders or the public when operated dangerously by the driver. It is a provincially regulated activity. Drivers are subject to the rules and regulations set out in the Motorized Snow Vehicles Act, R.S.O. 1990, c. M.44. The Act includes speed limits when operating a snowmobile and restrictions on towing people.

130Mr. Robson is charged with dangerous operation contrary to section 320.13 of the Criminal Code which states that:

Dangerous operation

320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

131This activity occurred in an isolated area with a group of friends and family present. The crown submitted that Mr. Robson’s operation of the snowmobile was dangerous to the two people that he was towing and the nearby observers. In R. v. Lester, [2000] O.J. No. 3661, at para. 16 (S.C.J.), the Court held that:

In addition, the Crown must prove that the driving was dangerous to either the public actually present at the time of the offence or the public that might reasonably have been expected to be present: Regina v. Mueller (1975), 29 C.C.C. (2d) 243 (Ont. C.A.). The term "public" included any passenger in the accused person's vehicle and any police officer investigating the alleged offence.

132Considering the bystanders filming this stunt and the two young men being towed by Mr. Robson, the crown established that there were members of the public who were “actually present” at the scene and potentially at risk. Accordingly, there was no issue that the crown satisfied this element of the offence. Similarly, counsel conceded that a snowmobile is a conveyance. The submissions were focussed on whether the crown proved that the operation of the snowmobile was dangerous having regard to all the circumstances.

133Before reviewing the law with respect to the mental and physical elements of the offence, I will address one aspect of counsel’s submissions. When asserting that snowmobile water skipping is not necessarily dangerous, counsel relied on the fact that it is a recognized, organized, outdoor sport and there are enumerable videos online with people engaged in this sport.

134There are all sorts of dangerous sports that occur in controlled environments, with emergency personnel on standby, safety measures in place with specialized equipment and gear. That does not mean these activities are lawful, wise or in any way appropriate when they take place outside of these conditions. Race car drivers cannot drive at excessive speeds, veering in and out of lanes and passing other drivers on public highways. UFC fighters cannot engage in combat outside a bar.

135The internet is replete with videos of people engaged in foolish and dangerous stunts as they strive for attention and followers. There are television shows devoted to sharing videos of these inherently and obviously risky behaviours. The fact that other people routinely engage in tricks or different maneuvers with snowmobiles does not assist or impact my assessment. Rather, it is the individual circumstances found to be present in this specific case that will dictate the outcome of these proceedings.

136One of the circumstances that I will consider is that Tyler, Gage, and Mr. Robson were consuming alcohol which would be prohibited for participants in organized driving events. Even though I have acquitted Mr. Robson of having an excessive amount of blood alcohol in his system at the time he was driving, I can still consider his consumption of alcohol when assessing whether the crown has proven the offence of dangerous driving. The Court of Appeal held in R. v. McLennan, 2016 ONCA 732, at paras. 25 to 27 that:

When dealing with a dangerous driving charge, it is not inappropriate in considering whether a driver's conduct is a marked departure from that of a reasonable driver in similar circumstances, to consider whether or not that person has consumed alcohol and if so to what degree before operating the motor vehicle -- as I have said it goes to mindset and a willingness to assume risk.

For these reasons I do not accept the submission that it was not open to the jury to consider the fact of alcohol consumption on the dangerous driving charge -- nor that if they did, the verdicts are inconsistent.

In short, the charges address different conduct. Alcohol consumption, short of impairment, is a relevant factor for the trier of fact in considering the mens rea element of the offence of dangerous driving. [emphasis mine]

137In terms of the elements of the offence that the crown must prove beyond a reasonable doubt, Justice Paciocco provided a helpful summary of the physical and mental elements of dangerous operation in R. v. Romano, 2017 ONCA 837, at 68 to 72 (Ont.C.A.):

As explained in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28, summarizing R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43, the "dangerous driving" element of the offence of "dangerous driving causing death" itself has two distinct elements, the actus reus and mens rea components:

The actus reus of the offence is driving in a manner 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 was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from the norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [Emphasis mine]

The Supreme Court of Canada has been clear that in examining the actus reus element of dangerous driving, the focus should be on the manner of driving, not the consequences of driving, or the cause of those consequences. This is because it is an offence to drive dangerously even if no-one is injured; the act or conduct that the offence of dangerous driving addresses is driving in a manner that puts the public at risk that his may happen: Roy, at para. 34. As Charron J. stated in Beatty, at para. 46:

As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 294(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. [Emphasis in original.]

The same holds true, in my view, in assessing the mens rea of dangerous driving offences. This, again, is because the focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. There must be a meaningful inquiry into the manner of driving, not into the degree of departure from the norm that the consequence demonstrates.

In Beatty, Charron J. did, at para. 46, recognize a limited role that consequences can play in assessing dangerousness and, by inference, in assessing whether a departure is marked:

The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.

Simply put, when asking whether the manner of driving has been dangerous, or represents a "marked departure", a consequence that has occurred can verify the nature of the risks that existed, but that consequence should not be used in determining whether the manner of driving was dangerous or in marked departure from the norm. Judging whether driving was dangerous by exploring whether the accused is at fault for an accident that occurred obscures the proper focus on the manner of driving, and duplicates causation considerations that arise when, as in this case, an aggravated form of dangerous driving is charged.

Moreover, in assessing the dangerousness of the driving the relevant risk to be considered is not the risk that the specific accident event would materialize. As the statutory definition of dangerous driving in s. 249(1) of the Criminal Code makes plain, what is of interest is danger to the public generally.

138Mr. Robson was operating a snowmobile, not a watercraft. The possibility of sinking or someone ending up in the water was obvious. He was towing two young men on sleds that had been used for leisure activities throughout the day. He could not possibly have been in the position to assess the safety of towing them without checking the state of the snowmobile, the sleds, considering the weights of Gage and Tyler, and cautiously measuring the length of the ropes and any strengths or weaknesses.

139The distance across the open water had not been measured. Different witnesses provided varying estimates of the width and length of the open water. Without that information, none of the participants could be sure that it was a safe distance to traverse on the snowmobile. Moreover, the water was full of chunks of hazardous free-floating ice. Mr. Robson had to accelerate very quickly to reach a high speed to ensure that the snowmobile skipped across the surface of the water as well as the two GT racers. If any of the chunks of ice were forced upwards at that speed or someone, an injury or even death was inevitable. The first pass over the water was dangerous enough.

140Before the second pass, the GT racers were not in an ideal state at the end of a busy day of using them for sledding. One of the skis on Tyler’s racer fell off before the fateful second pass. While Mr. Robson asserted that he did not recall the ski on Tyler’s sled falling off, I find that he knew, at that time, that he stopped the snowmobile so Tyler could fix the sled before the second pass.

141Mr. Robson was aware that this stunt required very specific preconditions to be successful and less hazardous. He had not undertaken any steps to ascertain measurements, weights, distances, the state of the equipment or protective gear. There were three young men standing close to the open water to film the second pass. He was focused on getting a heavy recreational vehicle to speed fast enough that it should skip over the surface of the water while towing two young men on sleds. He knew it was not a clear path. A snowmobile is not buoyant. To quote Mr. Robson, it would sink into the water like a “rock” if it was not hydroplaning which would obviously endanger the lives and safety of everyone engaged in this stunt. In all these circumstances, I find that the manner of driving the snowmobile was incredibly dangerous. The crown has proven the actus reus of dangerous operation of a conveyance beyond a reasonable doubt.

142In addition to the manner of the driving, by his own account, Mr. Robson was tired after a day outside. He wanted to go home. He was not in an ideal mental or physical state because he had not been feeling well and he had been drinking. Additionally, he knew that both the young men had been consuming alcohol which would have impacted their judgement. Mr. Robson knew that Tyler was a daredevil and that he had been bragging about his abilities on a GT racer. He knew that other young men had gathered to film the stunt which would only encourage bravado while performing the second pass over the water.

143Regardless of Mr. Robson’s prior experiences at successful water skipping on snowmobiles while towing a sled, there were far too many variables for this stunt to have been safe for any of the participants. The crown has proven beyond a reasonable doubt that Mr. Robson’s choice to perform this daring stunt, informed by these surrounding circumstances, represented a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances.

144As noted in the declaration and recognition of this section of the Criminal Code, the protection of society is well served by holding Mr. Robson accountable for operating this conveyance dangerously because his conduct posed “a threat to the life, health and safety” of the public.

Causation

145While I have determined that Mr. Robson is guilty of dangerous operation, I must consider whether he should be held legally liable for Tyler’s death. The additional elements that the crown must prove beyond a reasonable doubt are outlined in subsection 320.13(3):

Operation causing death:

Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person. [emphasis mine]

146The issue to be resolved is whether Tyler’s death was caused “as a result” of Mr. Robson’s dangerous operation of the snowmobile. This has been a challenging determination because of the complexity of causation issues and the emotionally charged facts.

147Mr. Robson was cajoled into performing the passes over the water by two excited young men. He did not intend to kill or even harm Tyler. He cared about this young man. Everyone present was traumatized by the crash and not being able to save Tyler despite their best efforts. Mr. Robson’s son Gage was devastated by the death of his best friend. Tragically, Gage died a month later. It is difficult in these cases to prevent emotions and empathy from impacting the outcome. However, legal decisions are guided by precedents and principled reasoning. The analysis must be a calculated and unaffected by any personal sentiments of “sympathy” or “prejudice”.

148Mr. Robson made one pass over the water while towing both young men with no difficulties. He was lucky. There were differences between the first and second pass. The GT racer had more wear and tear. Tyler appeared to perform what looked like a “wheelie” by raising the GT racer in the air. That made this activity much more dangerous for him. During the second pass, Gage smoothly transitioned over the water. In stark contrast, as soon as Tyler’s racer met the open water, he was ejected and tumbled violently until he disappeared below the surface of the shallow water.

149The crown submitted that but for Mr. Robson’s dangerous operation of the snowmobile, Tyler would not have died. Counsel emphasized that but for Tyler’s intervening independent act of raising the sled up before it reached the open water, he would have made it safely over just like Gage did. Determining causation is not as simple as choosing what would or would not have happened “but for” one event.

150The leading authority on causation issues is R. v. Maybin, 2012 SCC 24. The Supreme Court provided guidance when deciding whether “ an intervening act by another person will sever causal connection between the accused's act and the victim's death, thereby absolving accused of legal responsibility”.

151The Supreme Court explained that causation issues can be complicated because the trier of fact must wrestle with distinct concepts of factual and legal causation as well as more nebulous concepts like whether a person should be held morally responsible for the consequences of their conduct. The analysis should proceed as follows (at paras. 15 and 16):

Factual causation is "an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result" (Nette, at para. 44). The trier of fact usually asks: "But for" the action(s) of the accused, would the death have occurred? Factual causation is therefore inclusive in scope.

Legal causation, however, is a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility. Arbour J. noted that legal causation is "based on concepts of moral responsibility and is not a mechanical or mathematical exercise" (Nette, at para. 83). She stated, at para. 45:

Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished.

152Determining factual causation is not difficult in this case since it “ is not limited to the direct and immediate cause, nor is it limited to the most significant cause ”: (Maybin, at para 20). If Mr. Robson had not driven the snowmobile over the open water while towing two people on sleds, Tyler would not have died that day. Factually, if it were not for Mr. Robson’s actions, Tyler would not have been ejected from the racer.

153The more difficult query is legal causation. I must determine whether Tyler’s intervening act of leaning back on the racer broke the chain of causation such that Mr. Robson should not be found legally responsible for his death. A related inquiry is whether Mr. Robson is morally responsible for the death of this young man.

154When evaluating the issue of legal causation, the Supreme Court acknowledged in Maybin, supra, at paras 28 and 29 that “the difficulty in formulating one test to determine when an intervening cause interrupts the chain of causation lies in the vast range of circumstances in which this issue arises.” The assessment is factually driven and case specific. Accordingly, it is difficult to find applicable precedents. In addition, the guidance from the Supreme Court of Canada was to focus on moral responsibility which is not easily ascertainable:

Neither an unforeseeable intervening act nor an independent intervening act is necessarily a sufficient condition to break the chain of legal causation. Similarly, the fact that the intervening act was reasonably foreseeable, or was not an independent act, is not necessarily a sufficient condition to establish legal causation. Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test articulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim's death?

Depending on the circumstances, assessments of foreseeability or independence may be more or less helpful in determining whether an accused's unlawful acts were still a significant contributing cause at the time of death. Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent. [emphasis mine]

155In Maybin, the Supreme Court summarized how to assess foreseeability and the impact of independent intervening acts:

38 I conclude that it is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct. Nor does it assist in addressing moral culpability to require merely that the risk of some non-trivial bodily harm is reasonably foreseeable. Rather, the intervening acts and the ensuing non-trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the appellants. If so, then the accused's actions may remain a significant contributing cause of death.

And further:

49 Whether an intervening act is independent is thus sometimes framed as a question of whether the intervening act is a response to the acts of the accused. In other words, did the act of the accused merely set the scene, allowing other circumstances to (coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party?

50 When the intervening acts are natural events, they are more closely tied to the theory of foreseeability, and the courts ask whether the event was "extraordinary", as in Hallett. When the intervening acts are those of a person, exercising his or her free will, the focus is often on the independence of the actions.

And further:

57 Was the bouncer's intentional assault an independent act? The answer depends upon whether the intervening act was so connected to the appellants' actions that it cannot be said to be independent. If the intervening act is a direct response or is directly linked to the appellants' actions, and does not by its nature overwhelm the original actions, then the appellants cannot be said to be morally innocent of the death.

156Not surprisingly, there are no cases with similar facts that are dispositive legal precedents. Quite the contrary, most of the applicable decisions were determined by the unique facts. Therefore, they are all factually distinguishable. Nevertheless, they were helpful. There are multiple decisions that have considered whether a defendant was guilty of causing the death or bodily harm of another person as result of driving a conveyance dangerously:

• R. v. Trakas, 2008 ONCA 410: The appellant was driving his truck dangerously in pursuit of a person who was driving another vehicle. That person was responsible for helping someone to steal his motorcycle. The appellant was on the phone with the police during the chase. A police officer was dispatched to the area. The officer stepped into the roadway because he intended to put down a spike belt. He was struck by the appellant’s vehicle. The officer died from his injuries. The appellant was charged with criminal negligence causing death. The jury found him guilty of the included offence of dangerous driving. The appeal was dismissed.

The Court of Appeal considered the trial judges charge to the jury and observed at para 44 that, “in Nette, Arbour J. explained that criminal causation, in addition to factual causation, requires legal causation, which involves asking whether the accused "should be held criminally responsible for the consequences that occurred" based on a consideration of "whether the result can fairly be said to be imputable to the defendant". She quoted from G. Williams' description of this further test as "a moral reaction" in Textbook of Criminal Law (2nd ed. 1983) at pp. 381-82.”

• R. v. Shilon, [2006] O.J. No. 4896, 2006 ONCA 837: this was the companion case to Trakas. The driver of the getaway vehicle was also charged with criminal negligence causing death as well as other offences. The accused was discharged of this count after a preliminary inquiry. The Court of Appeal found that the preliminary hearing judge erred by discharging the accused for the following reasons:

Factual causation at para 21: In determining whether a person can be held responsible for causing death, it must be determined whether the person caused death both in fact and in law. Factual causation demands an inquiry into how the victim came to his or her death, in a medical, mechanical or physical sense, and the contribution of the accused to the victim's death. Legal (imputable) causation is concerned with the question of whether the accused person should be held responsible in law for the death that occurred.

Legal causation at para 30: For the reasons given by the reviewing judge in relation to remoteness, set out above, I do not accept the respondent's contention that the actions of the driver of the pick-up truck are too remote to permit the conclusion that there was some evidence that he was a cause of death in fact. In my view, it is an available inference that the pick-up truck driver's actions were "a significant contributing cause" 1 of the police officer's death and that his unlawful driving influenced the actual accident well beyond serving as its backdrop. In short, I reject the respondent's argument that Trakas' driving was so independent of that of the driver of the pick-up truck that the latter's actions are fairly viewed only as part of the history of the setting in which the death took place.

The Court of Appeal concluded:

38 In my view, where conduct is inherently dangerous and carries with it a reasonably foreseeable risk of immediate and substantial harm, the test for legal causation will have been met. On the facts of this case, there is some evidence of both criteria.

39 As the defence conceded for the purposes of the proceedings below, the driver of the pick-up truck drove in a criminally negligent fashion. Not only was the driving inherently dangerous, it clearly carried with it the reasonably foreseeable consequence of immediate and substantial harm. Trakas' actions were reasonably foreseeable - they were a predictable consequence of the actions of the driver of the pick-up truck. Indeed, the preliminary inquiry judge stated that the officer's death was an entirely foreseeable consequence of the conduct of the driver of the pick-up truck.

40 Accordingly, it was an available inference that the police officer's death occurred in the ambit of the risk created by the actions of the driver of the pick-up truck and that the driver ought reasonably to have foreseen such harm.

And finally:

43 I accept that independent voluntary human intervention in events started by an accused may break the chain of causation. However, on any realistic appraisal of the facts, and as was found by both levels of court below, Trakas' conduct was directly linked to that of the driver of the pick-up truck. Glanville Williams writes of intervening cause where the responsible actor is not acting under "mistake, intimidation or other similar pressure". Was Trakas acting free of "similar pressure"? It was the conduct of the driver of the pick-up truck that provoked Trakas' driving. It was the driver of the pick-up truck who created and continued the highly charged situation in which Trakas, the victim of a premeditated theft, responded predictably to catch the thief and recover his property. In my view, the question of whether Trakas' actions are sufficiently independent as to sever the chain of causation is a question best left to a properly instructed jury.

• R. v. K.L., 2009 ONCA 141: A young driver tried to pass the car in front of him by driving well in excess of the speed limit. As he was trying to pass, the driver in front of him had to swerve to avoid a cyclist on the side of the road. The appellant braked and tried to maneuver away from the other car. There was a mechanical defect in the car due to a poor repair job which caused him to lose control and strike the cyclist, killing him. The question was whether the shoddy work of the mechanic broke the chain of legal causation. He was found guilty of dangerous operation causing death. The Court of Appeal upheld the conviction since “ there was no intervening act to break the chain of causation between the appellant's conduct and the prohibited consequence”. I found this passage to be applicable to the facts in this case:

19 …the task of the trial judge was not to determine, as between the reckless mechanic and the dangerous driver, who was more responsible for the death of the deceased. What the trial judge was required to decide and did determine was whether the appellant's conduct was at least a contributing cause of the deceased's death outside the de minimus range. Provided the appellant's operation of the car was at least a contributing cause of death, outside the de minimis range, the prosecutor need establish no more to satisfy the causation requirement. It is as immaterial here that death was in part caused by a defective braking system as it was in Smithers that death was in part caused by a malfunctioning epiglottis. [emphasis mine]

• R. v. Malkowski, 2015 ONCA 887: The appellant was driving dangerously near a residential area when he struck a 13-year-old pedestrian who was running across the road at 8:00 p.m. at night. The Court of Appeal upheld the trial judge’s finding that “ even if the victim's actions could be characterized as an intervening act, in the circumstances of this case, the appellant's dangerous driving remained a significant contributing cause of her death and therefore the test for legal causation was satisfied”. The Court of Appeal emphasized that:

Maybin makes it clear that foreseeability and intervening act are merely analytical aids in assessing legal causation; they are not new standards of legal causation, and they may or may not be helpful in a particular case depending on the factual context. Moreover, the time for assessing causation is the time of the accused's dangerous and unlawful act and not the time of any intervening act.

Notably, the Court of Appeal in upholding the conviction commented that it “ would not characterize the victim's conduct as being an independent act, unrelated to the appellant's conduct”.

• R. v. Romano, 2017 ONCA 837: The appellant was an undercover police officer speeding to catch up to his surveillance team. He struck and killed a person who was jaywalking, at night, while wearing dark clothing. The Court of Appeal explained that:

34 The doctrine of intervening acts applies where an event independent of the accused's conduct occurs that severs the chain of factual causation between the accused and the consequence. It operates by undercutting the moral blameworthiness that could otherwise be ascribed to the accused. In effect, the intervening act deprives the factual causation contribution of the accused of its significance.

35 In Malkowski, this court recognized that although the standard of legal causation remains "whether the accused's dangerous and unlawful acts are a significant and contributing cause of the victim's death", a finding against legal causation will generally occur in one of two situations. Either the independent intervening event is not reasonably foreseeable, and/or the intervening act is an independent cause of the consequence that is significant enough in relative weight to sever or break the chain of causation between the act of the accused and the consequence: Malkowski, at para. 14. On either standard, the trial judge was correct to find here that there was no air of reality to the prospect that Ms. Abogado's jaywalking could qualify as an intervening act.

The Court concluded:

37 … Mr. Romano admitted during his testimony that, given the speed at which he was travelling, he really could not notice pedestrian traffic in time to do anything to avoid pedestrians entering the roadway. On Mr. Romano's own testimony, his driving could not properly be said to be nothing more than the setting in which Ms. Abogado's jaywalking brought about the collision. Nor could his driving be seen as merely part of the history of the event, with the jaywalking being the active cause of the collision: see Maybin, at paras. 46-51. Put somewhat differently, if Mr. Romano's driving was judged by the jury to be dangerous, it was inevitable that the speed that made his driving dangerous, and Ms. Abogado's presence on the roadway, each contributed significantly to the accident. As this court stated on the broadly comparable, albeit more aggravated facts in Malkowksi, at para. 21:

[W]e would not characterize the victim's conduct as being an independent act, unrelated to the appellant's conduct. The appellant was driving at a speed of 152 km/h shortly after 8 o'clock at night in a place where both motorists and pedestrians were entitled to expect vehicles to have slowed down. The fact that the victim would attempt to cross the road but found herself unable to do so in safety is not a matter that is unrelated to the appellant's conduct; rather, it is a direct materialization of the danger he created by driving in the way he did.

• R. v. Berto, 2021 ONCA 839: The appellant drove into a crowd of people after a fight. He stopped and the crowd reacted negatively, so he backed up to get away from them. He ran over a nearby pedestrian and seriously injured him. The trial judge held that the driving was one transaction. The Court of Appeal agreed and explained at para. 47 that “an intervening act is an event independent of the accused's conduct, that severs the chain of factual causation: Romano, at para. 34. This generally occurs in one of two situations: when either (a) the independent intervening act is not reasonably foreseeable, and/or (b) the intervening act is an independent cause that is significant enough to sever the chain of causation between the accused's act and the consequence.” The Court of Appeal held that the appellant created the “dangerous situation and nothing broke the chain of causation”. He was found guilty.

157One distinguishing feature in this case, compared to all these decisions, is that the decedent was actively engaged with the accused in the dangerous activity and made a seemingly independent choice that contributed to his own death. This factor may, in certain circumstances, lead to a decision that legal causation was "effectively overtaken by the more immediate causal action of another party acting independently".

158In R. v. O’Leary, 2017 ONCA 71, the appellant and another person were drag racing in separate vehicles on a highway. The other racer was not wearing a seat belt. He lost control of his vehicle, drove into oncoming traffic and he struck another vehicle. The racer was killed, and the other driver was seriously injured in the collision. The trial judge found that “ the risk of immediate and substantial harm was reasonably foreseeable”. Mr. O’Leary was convicted of dangerous operation causing death to the other racer and bodily harm to the other driver. The Court of Appeal upheld the conviction stating that the finding of causation was “unassailable”:

The racing, a joint venture by the appellant and Mr. Dodd, was a factual "but for" cause of the accident and the death and injuries that resulted. Not every factual cause is a legal cause. The trier of fact must be satisfied that the accused's actions constituted a significant contributing cause of death: R. v. Maybin, 2012 SCC 24, at para. 60.

There was no evidence in this case of any unforeseeable intervening act capable of breaking the chain of causation. As explained in Maybin, at para. 38 [quote omitted].

Mr. Dodd's failure to wear a seatbelt may well have contributed to his death. That failure could not, however, constitute an intervening act severing the legally causative effect of the racing. It cannot be argued that Mr. Dodd's failure to wear a seatbelt should absolve the appellant from the clearly foreseeable consequences of his own actions.

159In R. v. Menezes, [2002] O.J. No. 551, Justice Hill thoroughly reviewed the hazards of road racing and the predictable consequences of harm to the participants who assumed the risk or to an innocent bystander. I found some of his insightful observations to be particularly applicable to the facts in this case:

84 Not infrequently, hand-in-hand with the high-speed feature of the racing conduct, the participating drivers engage in unsafe lane changes, tailgating, jockeying for position, tagging and horseplay, high-risk passing manoeuvres, and other assorted stunts endangering non-participating members of the public. In-tandem travel on the streets at speeds well above the posted limit, especially at night, as one can easily imagine, increases the prospects of split-second misjudgment, misreaction, and miscalculation by the participants as to steering, braking, and safe curve speed and time-distance estimates - these are motorists, not professional racecar drivers, unlawfully using normal thoroughfares for purposes entirely at odds with safe passage.

85 Expected outcomes at safe speeds, become the unexpected and the unmanageable at excessive speeds.

86 Those participating in the high speed venture, encouraged by one another to pursue their immature objective(s), are themselves as much at risk as non-participating members of the public - at risk for loss of control and in turn injury or death flowing from participation in the singular hazard of the race.

And further:

92 The causation inquiry, other than in sentencing, is generally unconcerned with contributory negligence. As well, a wrongdoer cannot escape the thinskull rule - a wrongdoer must take the victim as found: Nette v. The Queen, supra at 518; Creighton v. The Queen, supra at 377-8. In examining the traceable origin of the chain of events causing death, remoteness may become an issue. If the act of the accused is too remote to have caused the result alleged, causation is not established. If the accused's actions are fairly viewed as only part of the history of the setting in which the prohibited result unfolded, without more, causation is not proven: Regina v. Cribbin (1994), 89 C.C.C. (3d) 67 (Ont. C.A.) at 80 per Arbour J.A. (as she then was). However, where the unlawful driving can be said to "still demonstrably influence the actual injury accident beyond serving as its backdrop", causation is established: Regina v. F.(D.), supra at 364.

93 Likewise, if the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused from any responsibility for the consequence: Nette v. The Queen, supra at 507. Put differently, do independent factors exist which might reasonably be said to sever the link that ties the accused to the prohibited result? Or is the chain unbroken with the effect of the accused's actions subsisting up to the happening of the event or consequence? Is there a supervening cause such as to insulate the accused from the legal consequences flowing from the death? (Regina v. Cribbin, supra at 80).

And further:

105 Those at risk from the unreasonable and unjustified danger of an escapade of competitive driving, whether a spontaneous or planned event, include the occupants of other vehicles, cyclists, pedestrians, passengers in the racers' autos, and the co-participants themselves. There is one danger. Each driver bears equal responsibility for its continued lifespan subject to withdrawal or intervening event. As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created. This surely includes a risk of bodily harm or death to a co-principal arising out of miscalculation or other judgment error by that individual in the course of, and related to, pursuing the jointly maintained, and unlawfully conducted, dangerous activity. So, for example, where one of the race participants over-corrects in a curve at the excessive speed of the venture and loses control resulting in his own death, that consequence is a reasonably foreseeable result in the context of the hazardous course of conduct jointly undertaken and not simply an unconnected fortuitous or coincidental event. The consequence was, in legal contemplation, as a result of the act of both.

160After reviewing all these cases, the unwavering precedential guidance is that the assessment of legal causation commences with consideration of the dangerousness of the defendant’s act. When three individuals jointly engage in a dangerous act, each one of the participants assumes the risk of death or injury to the others unless one of them has withdrawn from the joint activity or an unexpected event severs the chain of causation.

161Mr. Robson engaged in a dangerous stunt while towing two young men on sleds. None of them undertook any preparatory steps or planning. None of the participants were wearing specialized protective gear other than helmets. None of the equipment that was worn or used was subject to careful safety checks or regulated in some way. All three participants had been drinking alcohol. Mr. Robson was aware that some other young men had gathered to watch at the side of the water, and they were filming them. He also knew that Tyler was a daredevil.

162This was a recipe for disaster which was tragically realized with the death of a young man. It was reasonably foreseeable that any one of them could have been injured or killed performing this stunt while operating a very heavy machine pulling two sleds at a high speed in unpredictable conditions. It was foreseeable that Tyler and/or Gage would have engaged in horseplay or tried something more dramatic during the second pass while they were being video recorded. All three of them, including Tyler, jointly participated in a chain of events that led to Tyler’s death. Although Tyler contributed to his own demise, that does not absolve Mr. Robson of legal or moral responsibility for his role in causing this avoidable death.

163The crown has proven factual and legal causation beyond a reasonable doubt. Accordingly, Mr. Robson is found guilty of dangerous operation causing the death of Tyler Christine-Bourgeois.

Conclusion

164This was an emotionally exhausting trial for all the participants. Every one of the survivors and Tyler’s family are suffering with grief. The fact that this matter took four years to proceed to trial prolonged and exacerbated that anguish.

165I accept that Mr. Robson never meant to harm either of the young men. He certainly did not anticipate that Tyler would die by drowning in shallow water. The same can be said for drunk drivers. They do not set out with a plan to harm or kill people. They are often devastated by the consequences of their misdeeds. They are still held responsible for the effects of their misconduct because these tragedies are foreseeable and sadly predictable outcomes. While Mr. Robson could not have anticipated the exact mechanism of death being drowning in a few feet of water, all three of them knew that bodily harm or even death could result when performing a dangerous stunt in these conditions.

166Throughout these reasons, I referred to the actions performed by Tyler before he crashed into the water as intentional. I can understand why his family may want to believe that it was accidental. A ski was loose on his racer. No one knows what Tyler was thinking or experiencing in those last few moments of his life. However, I considered several facts that informed this conclusion. Everyone described Tyler’s disposition to be a daredevil and his excitement that day. The presence of people recording the second pass and the influence of alcohol consumption were fuel for more attention. In the still pictures of Tyler’s movements, it appeared that he purposefully raised himself up and leaned backwards. The GT racer seemed to be intentionally lifted off the ice in the front and it maintained that position for a sustained period until it met the water. There was no attempt to steer the racer away from the water, if it could at that speed, or tumble off the sled before the second pass. The ski that went flying off the racer was not the one that was loose beforehand. Tragically, Tyler made a choice that contributed to his demise.

167I have found that Mr. Robson is not “morally innocent” of Tyler’s death. Mr. Robson’s moral responsibility for Tyler’s death is attenuated by Tyler’s conduct which escalated an already dangerous activity. The appropriate time to address this potentially mitigating consideration will be during the sentence hearing as opposed to the assessment of legal responsibility.