R. v. McNeil, 2026 ONCJ 298

CITATION: R. v. McNeil, 2026 ONCJ 298

DATE: March 3, 2026

ONTARIO COURT OF JUSTICE

(East Region)

BETWEEN:

HIS MAJESTY THE KING IN RIGHT OF ONTARIO

(Prosecutor)

• and –

KOLE McNEIL

(Defendant)

REASONS FOR DECISION

3 March 2026

J.P. C. Peltzer

Legislation

Highway Traffic Act, R.S.O. 1990, Chapter H.8, s. 172(1)-(2), (23) and s.200(1)(a)

Races, Contests and Stunts, O Reg 455/07

Legislation Act, 2006, SO 2006, c 21, Sch F, ss. 64(1)-(2)

Cases

Ontario (Ministry of Labour) v. Wal-Mart Canada Corp., 2016 ONCJ 267

Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC)

R. v. Hamilton (City), 2002 16893 (ON CA), [2002] O.J. No. 283 (C.A.)

R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742

R. v. Kippax, 2011 ONCA 766

R. v. Sault Sainte Marie (1978), 1978 11 (SCC), 40 C.C.C. (2d) 353 (S.C.C.)

R. v. Rio Algom Ltd. (1988), 1988 4702 (ON CA), 46 C.C.C. (3d) 242 (Ont. C.A.)

R. v. London Excavators & Trucking Ltd. (1998), 1998 3479 (ON CA), 125 C.C.C. (3d) 83 (Ont. C.A.).

R. v. Hill (1973), 1973 36 (SCC), 14 C.C.C. (2d) 505 (S.C.C.)

Witnesses

Officer Jonathan Cerutti

Mr. Jeremy Davis

Mr. Luke Gilchrist

Mr. Jason Cole

Mr. Aaron Halladay

Mr. Asher Gallant

Ms. Leah Covert

Mr. Gavin Wallace

Officer Anthony Colageli

Officer Cameron Mack

Officer Steven Roy

Mr. Kole McNeil

A- Summary of the case

1In the late evening of July 31^st, 2024, Kole McNeil was spending time with friends while driving his parents blue Jeep northbound on Days Road in Kingston. Having turned westbound on Bath Road the group observed two motorcyclists, Jeremy Davis and David Bagi, at the intersection facing eastbound. At some point, based on a derogatory comment made by McNeil to the motorcyclists, McNeil performed a U-Turn on Bath Road and accelerated eastbound at a high rate of speed in order to catch-up to the eastbound motorcyclists who were now approaching a red light at the intersection of Bath Road and Gardiners Road.

2Once the eastbound lane light turned green at Bath Road, McNeil again accelerated quickly in his outside lane and immediately moved into the left lane in front of the motorcyclists, at which point motorcyclist Bagi (with his passenger Ms. Paula Peruelo) gave chase, quickly closing the gap with the Jeep ahead of them.

3Witnesses testified that both drivers moved between lanes in the following moments with Bagi tailing the Jeep only a few meters off McNeil’s rear fender. Within seconds, McNeil swerved sharply to avoid a cyclist, Jason Cole, who was also travelling eastbound in the outside lane. Bagi did not have the same vantage point as the Jeep and hit the cyclist causing him to lose control. Cole was seriously injured by the impact with the motorcycle. Bagi, and his passenger Peruelo, then slid at high speed across the centreline into the westbound lane and into an oncoming motor vehicle. Bagi suffered fatal injuries on scene, whereas Peruelo, having survived the initial impact, passed shortly afterwards.

4The passengers in the Jeep were shocked by what happened, with several observing sparks and hearing the collision behind them. They implored McNeil to stop. McNeil continued eastbound ultimately leaving the scene and continued with his plans to drive his friend’s home. At some point the Jeep was checked for damage. When none was observed, McNeil concluded that he was not involved in the accident, notwithstanding what had occurred. The passengers had been monitoring police/ambulance calls in real time on an application called Pulsepoint and were fully aware that Police/Fire/EMS were on scene and that there were injuries.

5Within 24 hours Kingston Police issued a press release requesting information on the collision, including advising the public that there were two fatalities. McNeil’s father told him that he was not involved in the collision. The other passengers were also informed, directly or indirectly that McNeil’s father was going to take care of it and that they were not to speak to the police. McNeil and his passengers remained silent until a picture of the blue Jeep was broadcast on the 8^th August 2024, at which point some of the passengers contacted police and gave statements. Given the break in the case, McNeil and his father then contacted police and the Jeep was seized.

6An investigation ensued which included accident reconstruction and video speed analysis which led the charges before the court.

B- Legislative Framework

7The defendant was charged with violating two sections of the HTA. The first charge relates to stunt driving.

HTA s.172

Racing, stunts, etc., prohibited

172 (1) No person shall drive a motor vehicle on a highway in a race or contest, on a bet or wager or while performing a stunt. 2021, c. 26, Sched. 1, s. 15 (4).

Regulations

172 (23) The Lieutenant Governor in Council may make regulations,

(c) defining the terms “race”, “contest” and “stunt” for the purposes of this section;

Races, Contests and Stunts, O Reg 455/07

8The HTA defines stunt driving in O Reg 455/07 s.3(7) where it states:

s.3. For the purposes of section 172 of the Act, “stunt” includes any activity where one or more persons engage in any of the following driving behaviours:

ss.7. Driving a motor vehicle at a rate of speed that is 40 kilometres per hour or more over the speed limit, if the speed limit is less than 80 kilometres per hour.

HTA s.200

9The second charge relates to failing to remain or return to the scene of an accident.

Duty of person in charge of vehicle in case of accident

s.200 (1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident;

C- Admissions

10Given the evidence at trial, exhibits filed, and concessions made, I have no concerns in the evidence regarding issues of time, date, place, jurisdiction, or identity for the parties.

11Based on disclosure and pre-trial discussions, counsel agreed on several facts that were not at issue in this case. They are as follows: Admissions: (See Exhibit 1)

1- Date: July 31, 2024

2- Time: Sometime between 11:00 pm and 11:30 pm.

3- Jurisdiction: The motor vehicle collision in question occurred on a section of Bath Rd, in the City of Kingston. Bath Rd is a Highway as defined by the Highway Traffic Act of Ontario.

4- Identity: Kole McNeil is the driver of the blue Jeep that was in the vicinity of the accident.

5- The blue Jeep, motorcycle, and e-bike in the vicinity of the accident are motor vehicles as defined by the Highway Traffic Act of Ontario.

6- Qualifications of KPS Expert: Cst. Cameron Mack #371 can be qualified as an expert in Collision Reconstruction.

7- Qualifications of OPP Expert: Cst. Steve Roy #12361 can be qualified as an expert in Collision Reconstruction and Video Speed Analysis (see Exhibit 1).

12The court appreciates these efforts to narrow the issues as it permitted everyone to focus their time and energy on the contentious issues that remained.

13Where the parties evidence diverged was in the areas of 1) specific details of the incident which led to the collision, 2) the meaning of being directly or indirectly involved in an accident, 3) the level of awareness McNeil had following the incident, and 3) his speed of travel on Bath Road.

14To address these remaining issues, one must engage in an interpretive exercise involving both the applicable legislation, caselaw and the facts of the case. Thankfully there is legislation and caselaw which can assist in this process.

D- Guidance on interpreting HTA

15The Legislation Act, 2006, SO 2006, c 21, Sch F s. 64 (1)-(2) states:

Rule of liberal interpretation

64 (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. 2006, c. 21, Sched. F, s. 64 (1).

Same

(2) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act. 2006, c. 21, Sched. F, s. 64 (2).

16One useful case for interpreting legislation is the Ontario (Ministry of Labour) v. Wal-Mart Canada Corp., 2016 ONCJ 267 case which accurately summarized the issue of interpretation when it stated at paragraph 110 that:

Public welfare legislation is often drafted in broad, general terms; as such, Acts are remedial and designed to promote public safety in a wide variety of circumstances. Consequently, public welfare legislation is to be given a liberal interpretation to give effect to its broad purpose and objective. However, a generous interpretation does not equate to a limitless interpretation.

17To draw from another relevant case, in Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), Iacobucci, J. wrote:

It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88). (para. 27)

18R. v. Hamilton also provides some guidance in interpreting legislation relating to public safety when it stated:

Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided. R. v. Hamilton (City), 2002 16893 (ON CA), [2002] O.J. No. 283 (C.A.) at para. 16

19As is often the case, a reasonable balance needs to be sought between the need to maintain and enforce safety on our roads while also appreciating the challenges in operating motor vehicles in varying conditions and situations, and the ongoing considerations of the public’s interest generally in highway safety.

20With these principles in mind, I will first address the stunt driving charge.

E- Did Mr. McNeil’s driving amount to stunt driving on Bath Road?

21To decide if stunt driving occurred several issues need to be determined, starting with the legislation itself.

1-Legislation

HTA s.172 Racing, stunts, etc., prohibited

172 (1) No person shall drive a motor vehicle on a highway in a race or contest, on a bet or wager or while performing a stunt. 2021, c. 26, Sched. 1, s. 15 (4).

22Where is a “stunt” defined? It can be found in the Regulations.

HTA Regulations

172 (23) The Lieutenant Governor in Council may make regulations,

(c) defining the terms “race”, “contest” and “stunt” for the purposes of this section;

Races, Contests and Stunts, O Reg 455/07

23The HTA defines stunt driving in O Reg 455/07 where it states:

s.3. For the purposes of section 172 of the Act, “stunt” includes any activity where one or more persons engage in any of the following driving behaviours:

ss.7. Driving a motor vehicle at a rate of speed that is 40 kilometres per hour or more over the speed limit, if the speed limit is less than 80 kilometres per hour.

2 – Evidence of Speed in this case

24Given the admissions in Exhibit 1, the Court can focus on the remaining issues relating to the stunt driving offence.

25At trial, there was conflicting evidence regarding the speed at which the Jeep was travelling. Davis, the second motorcyclist, stated a range of speeds and estimated the Jeep was going 85-100 km/h at times. He said that they were passed by the Jeep after the light and that it took several seconds for David to catch-up to the Jeep.

26Mr. Luke Gilchrist, a pizza delivery driver, travelling westbound on Bath Road said the Jeep “flew through the intersection” at Gardiners Road and that he had never been passed that quickly before. When he was passed by the Jeep near Gardiner’s Road, he estimated it was going 120-140 km/h.

27Mr. Jason Cole, the cyclist who was hit while going eastbound on Bath Road, observed the headlights of the Jeep approaching fast. He estimated the Jeep ‘s speed to be about 100 km/h based on his observations of the headlights in the dark. He testified that he became panicked as the Jeep approached him much quicker than he expected and it was moving between lanes as it approached him in the dark.

28Mr. Aaron Halladay was driving westbound at the time and observed the Jeep travelling at a high rate of speed with a motorcycle tailing it. He estimated the Jeep and motorcycle were doing about 70-80 as they were travelling faster than other traffic on the road. He could also hear their engines accelerating at the time.

29Officer Cameron Mack, an expert in accident reconstruction, attended the scene and took measurements and recorded observations in order to understand what happened, where the vehicles travelled, and what speeds each vehicle was going at any point in time. Exhibit 9, the Accident Reconstruction Report, and Exhibit 10, the Supplementary Report, were both filed into evidence, which I accept.

30Significant time at trial was spent having Officer Mack explain the process of video speed analysis and how it is an emerging field in accident reconstruction. He also confirmed the accuracy of his speed calculations by using a squad car and Lidar, using known speeds and distances, which confirmed his findings. He also sought out assistance from another expert, Officer Stephen Roy, and based on his input generated a Supplementary Report (Exhibit 10) which provided greater accuracy for his video speed analysis calculations. Given the reports, Officer Mack concluded that the Jeep was travelling at the following minimum speeds in a 60km/h zone:

• 1690 Bath Road - Pre-collision – 83 km/h

• 1580 Bath Road – Collision location – 106 km/h

• 1556 Bath Road – Post- collision – 116 km/h

31Officer Stephen Roy, an expert in accident reconstruction, provided evidence regarding the science and process involved in video speed analysis. He reviewed Officer Mack’s ARR and provided feedback to Officer Mack which resulted in the creation of the Supplementary Report in Exhibit 10. Officer Roy’s methodology was filed as Exhibit 15 and discussed at length how to take measurements, determine frames, and calculate minimum speeds with the greatest possible accuracy given the technology and videos available at the time. He agreed with the speeds determined in Officer Mack’s Supplementary Report (Exhibit 10).

32Kole McNeil gave evidence that he was not racing or speeding, although he was aware the motorcycling was gaining on him. In cross-examination he stated that he looked at his speedometer and was going 60-75 km/h or “slightly over”. McNeil did not waiver in his assertions about his speed under further questioning from counsel.

33Given the conflicting evidence at trial on the issue of speed I must perform an R. v. W.(D) analysis of the evidence (see R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742). In this case I accept the evidence of the civilian witnesses that the Jeep appeared to be speeding, although their estimates are just that: estimates, from observations made at night, from varying vantage points and distances. Unlike the civilian witnesses, Officer Mack took measurements based on his training and expertise and arrived at precise speeds (minimum speeds as per video analysis procedures) where he concluded the highest minimum speed the Jeep travelled during this incident was 116km/h, as it continued eastbound on Bath Road following the collision incident. I accept this calculation as accurate and reliable.

34Mr. McNeil’s evidence of speed, although fairly specific (60-75 km/h) and having stated he looked at his speedometer at the time, I find not credible. It not only contradicts the specific calculations of Officer Mack, but it also contradicts the evidence of speed observed by the other witnesses significantly. In this case McNeil was certain about his range of speed but could not recollect any of the commotion in the Jeep following the collision or specific details about conversations and interactions both before and after the collision. What I mean is that the evidence of the other passengers was that everyone in the Jeep was distraught about what they had just witnessed behind them, some were crying, some were pleading with McNeil to stop, but he said he had no recollection of this other than some people were upset and quiet about the near miss of the cyclist Cole. It seems incredible that he would have a clear recollection of speed but little to no recollection of the mayhem in his vehicle at the time.

35I find that I must reject his evidence of speed as not credible or reliable in the circumstances. The selective nature of his recollections seem to invite exculpatory conclusions and starkly contradict the remaining evidence of speed that I do accept, specifically Officer Mack’s, which I accept without reservation. I find beyond a reasonable doubt that McNeil travelled at a minimum of 116km/h in a 60km/h zone while travelling eastbound on Bath Road at the time immediately following the collision, therefore committing the offence of stunt driving under s.172 of the HTA. There is also no evidence of due diligence to consider in relation to this offence.

F- Did Mr. McNeil fail to remain at the scene of an accident?

36To determine whether Mr. McNeil failed to remain at the scene of an accident that he was directly or indirectly involved in, a nuanced and detailed assessment of the evidence and caselaw is necessary starting with the legislation itself.

1-Legislation

HTA s.200(1)(a) Duty of person in charge of vehicle in case of accident

s.200 (1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a) remain at or immediately return to the scene of the accident;

2 – What does directly or indirectly involved in an accident mean?

37Merriam-Webster Online defines “involved” as: having a part in something, being included in something, or actively participating in something.

38The assessment for someone being directly or indirectly involved in an accident requires further assessment, thankfully the caselaw and the rule of liberal interpretation assist in this process. Again, the balance here is that being directly or indirectly involved in an accident cannot mean everyone everywhere at anytime with any nexus to an accident otherwise it risks creating an absurdity which is to be avoided. Its meaning must have some limits in order to be meaningful.

39Here, the Court of Appeal case of R. v. Kippax, 2011 ONCA 766, is informative even though it relates to a decision about causation in a criminal case. Relying on the assessment in R. v. Kippax and applying it to the evidence in this case I find the following:

40Firstly, that McNeil was a person in charge of the Jeep he was operating as there is uncontested evidence of this fact.

41Secondly, that he was directly involved in the accident, and by accident I include both the interaction with the pedestrian cyclist and the motorcycle collision that followed. I find him to be directly involved because without his presence there at that time and his interactions with the cyclist and motorcyclist the collisions would not have occurred. I appreciate that I am not required to make a finding of causation, like in R. v. Kippax, as that is not the test, but one clearly can be directly or indirectly involved in an accident without being the cause of it. For me this is the most reasonable and accurate conclusion to make and is consistent with the language in the Act.

42In the alternative, if I were to accept the defense submission that contact was essential and that by not actually making contact with the pedestrian cyclist there was no involvement thus no need to stop and report, I find it would create the very absurdity that the caselaw seeks to avoid. For example, if a driver ran a red light at an intersection or drove in such a way that others on the road reacted to them and as an immediate result collisions occurred while the original driver continued on their way unscathed, how could one conclude that they were not directly or indirectly involved in the mess of collisions he/she left behind?

43The accident in the case should not limited to McNeil’s interaction with the pedestrian cyclist but include the whole scenario that ensued at 1580 Bath Road including those moments and movements immediately before and after the collision. McNeil’s and Bagi’s driving and evasive actions make both of them inextricably part of what unfolded mere seconds after McNeil swerved to avoid cyclist Cole. McNeil was directly involved, if not a significant cause, of the accident that occurred. Any other interpretation of this would lead to an absurdity and would run afoul of a purposeful interpretation of this section of the Act as public welfare legislation.

44Even if one took a more limited/restricted view of the accident and concluded that there was no accident in relation to the cyclist Cole because there was not contact, as suggested by counsel, I would arrive at the same conclusion that McNeil was at a minimum still directly involved in the accident involving Cole and Bagi, which would have triggered that same obligation to remain on scene; the result would be the same. Even without direct contact, the video of 1580 Bath Rd shows the Jeep passing within inches of Cole having a buffeting effect on him and he pitched, jerked and changed direction as the Jeep passed him just before making contact with the motorcycle.

45It is also uncontested that McNeil did not remain at the scene and continued on his way following the collision.

46Given this, I find that the offence of failing to remain under s.200(1)(a) has been made out beyond a reasonable doubt as McNeil was directly or indirectly involved in an accident and failed to remain or immediately return to the scene as required.

3-Is Mistake of Fact an available defense in this case?

47The mistake of fact branch of the defence of due diligence applies when the defendant reasonably believes in a mistaken set of facts that, if true, would render the act or omission innocent. See R. v. Sault Sainte Marie (1978), 1978 11 (SCC), 40 C.C.C. (2d) 353 (S.C.C.)

48To succeed, evidence must be led to show what the defendant reasonably believed. See R. v. Rio Algom Ltd. (1988), 1988 4702 (ON CA), 46 C.C.C. (3d) 242 (Ont. C.A.).

49Unlike with criminal or mens reas offences, the subjective belief of the defendant is not sufficient to satisfy this defence. It must be objectively reasonable. See R. v. London Excavators & Trucking Ltd. (1998), 1998 3479 (ON CA), 125 C.C.C. (3d) 83 (Ont. C.A.). Also, the gravity and potential harm that should arise if advice provided by his father and passengers be wrong is a factor when considering the reasonableness of relying on the advice. See R. v. London Excavators & Trucking Ltd. (1998), 125 C.C.C. (3d) 83 (Ont. C.A.).

50The actus reus of the offence of failing to remain at the scene of an accident contrary to s. 200 (1)(a) Highway Traffic Act is not negatived merely because the defendant did not know the extent of the damage caused in the accident. In addition, an honest belief in a lack of damage is irrelevant, since the offence does not require mens rea. See R. v. Hill (1973), 1973 36 (SCC), 14 C.C.C. (2d) 505 (S.C.C.).

51The defense submitted that in this case, 1) given the lack of contact between Jeep and the cyclist, 2) McNeil’s apparent unawareness of what transpired between the remaining vehicles in his wake until well after the incident, that McNeil should benefit from a mistake of fact defence, inferring that he was not involved and that had he known the extent of what transpired he would have stopped. These submissions lean towards the notion that McNeil subjectively believed that no accident occurred therefore remaining on scene was not necessary. In light of these submissions one must look a little closer at McNeil’s evidence on the issue of what he believed/observed at that time.

52In cross-examination McNeil’s evidence on this issue was that he did not remember comments made in the Jeep by the passengers at the time and that “he had not thought a lot about it since that night”. He said the vibe in the Jeep was “shook-up” but only in relation to the cyclist and the near miss. He repeatedly stated that he had no memory of being asked to stop or seeing or hearing anything in relation to the motorcycle collision that occurred right behind his Jeep. He also stated that he felt relief about his dad’s advice that he was not involved notwithstanding becoming aware two days later from the press release, and friends, that there were two fatalities and police were looking for witness information.

53His evidence was that if the press release made mention of the Jeep he would have contacted police, although in reality the press release described the whole scene save and except for the Jeep, so it would have been plainly obvious this related to what he was involved with and that he had relevant information to provide. He stated that he would have stopped if he hit someone. He also reiterated several times that he didn’t stop because he didn’t see anything, that he would have called police if the Jeep was mentioned in the press release, and that his friends did not ask him to contact police.

54Again, on the issue of mistake of fact and whether it was a reasonably held belief I also need to look at the evidence of the passengers as to what they observed, what they said, and didn’t say, at or shortly after the time of the collision. What raises issues with the veracity of McNeil’s stated beliefs and recollection was the glaringly contrary evidence of the passengers in relation to his testimony on this point.

55Asher Gallant, who sat in the passenger seat, said that they looked back at what happened and saw another car collide with the motorcycle. He said he specifically saw the motorbike leave the ground, smash, roll and that there was consensus in the car to pull over except for McNeil. He also stated that there were checking the Pulsepoint app moments after the collision and heard in real time what was happening on scene. He said McNeil was stunned but was also relieved that his Jeep was not damaged. He concluded that what he saw was shared with everyone in the Jeep.

56Leah Covert said that everyone but her looked back and saw what happened. She also stated that Asher, Kole and Gavin all yelled that they saw sparks. She heard Wallace tell McNeil to pull over and stop. She stated that they didn’t stop because they were overwhelmed and scared.

57Gavin Wallace saw the cyclist Cole, saw the motorcycle slide into the SUV, heard a bang/screech, told McNeil to stop the Jeep and call police because they were involved in an accident. He reiterated that himself and Leah asked McNeil to stop and he replied that they weren’t a part of what happened. Wallace said he repeated his request to stop the Jeep and McNeil again said that we were not stopping. He concluded his evidence saying no matter how hard we tried to convince Kole he would not stop.

58Again, the requirement for a mistake of fact defence to succeed is that the mistaken belief must be honestly held, and objectively reasonable in the circumstances on a balance of probabilities. Given the conflicting evidence between the passengers and McNeil on the issue of what was observed, and what was said and done at the proximate time of the collision I find that McNeil was fully aware of what transpired to the rear of his Jeep most likely by making the observations himself, or in the alternative, as was conveyed to him in detail numerous times during the awkward drive home afterwards.

59It is impossible in my mind that he was not aware of what happened and therefore his belief in a mistake of fact that his successful avoidance of cyclist Cole somehow absolved him of any obligation to stop is both incredible and objectively unreasonable. I find that he purposely chose not to stop, knowing full well what occurred behind him, notwithstanding the pleas of his friends because he either 1) panicked in the situation, 2) was afraid of what would happen to him, or 3) some other reason not conveyed to the court that only he is aware of.

60His actions in the days following the collision where he actively avoided the police investigation and advised others to do the same, with the assistance of his father, leads me to conclude that it was most likely an avoidance of accountability that fuelled the fail to remain and not any lack of knowledge or misconception of what transpired.

61Given my findings on this issue, the defence of mistake of fact has not be made out on a balance of probabilities on an objective, or quite frankly even on a subjective standard, therefore the offence has been made out beyond a reasonable doubt.

In Obiter

62First, I feel that it is necessary to take a moment and reflect on the tragedy of this case. People make mistakes everyday. Some mistakes have minor consequences, others have fatal consequences. Here, in addition to Jason Cole suffering significant injuries, two young people, David Bagi and Paula Peruelo, lost their lives in a tragic way as a result of poor choices made by McNeil and Bagi in the moment. Nothing I say will bring them back. I hope that starting from today that everyone affected by this tragedy will find some peace and healing so that they can move forward with their lives and fully appreciate the frailty and evanescence of our time in the Sun.

63Secondly, the behavior of Kole McNeil, and his father, post collision has caused me great concern. McNeil’s father took proactive steps to advise the passengers in the Jeep that they were not to go to the police and that he would take care of it. These requests to remain silent went against the passenger’s better judgement and the advice of their parents. I find that this interference in the initial weeks of the investigation was prejudicial and self-serving and may amount to obstructing justice under s.139(2) of the Criminal Code. Based on the evidence of conversations between the parties at trial it was likely that they may have been successful in their efforts to subvert the investigation if video of the Jeep had not surfaced and if the passengers had not broken rank and called the police. I trust that the authorities have reviewed the case in light of this evidence and have used their discretion appropriately.

64This leads into my final thought in obiter, which ties into my previous comment. The facts of this case, in light of the evidence at trial, and the case of R. v. Kippax, make me wonder whether other charges would have been appropriate in the circumstances, including Careless Causing Death, or of Dangerous Operation of a motor vehicle under the Criminal Code. I appreciate that it is not my role to review the discretion of investigators but I trust that the decision to only pursue the regulatory charges before the Court today was the result of diligence and balance on the part of the police service and not the result of any advocacy or interference from others with an interest in the case. I trust that this was not the case.