Court File and Parties

DATE: January 4, 2023 FILE No: 18-1478

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

-AND-

François GAUTHIER

Before: Justice Michael G. March

Evidence heard on: November 8, 9 and 15, 2021 and August 12, 2022 Submissions of Counsel heard on: October 5, 2022 Reasons for Judgment released on: January 4, 2023

Counsel: Goher Irfan, for the Crown Mellington Godoy, for the Accused

March, M.G., J. :

Introduction

[1] François Gauthier (“Gauthier”) stands charged that on July 3, 2018, he:

a) operated a motor vehicle in a manner dangerous to the public and thereby caused bodily harm to Brian Van Den Bosch (“Van Den Bosch”) contrary to then section 249(3) of the Criminal Code (“the Code”),

b) drove while his ability to do so was impaired by drug and thereby caused bodily harm to Van Den Bosch contrary to then section 255(2) of the Code,

c) operated a motor vehicle in a manner dangerous to the public and thereby caused bodily harm to Cory Eckford (“Eckford”) contrary to then section 249(3) of the Code, and

d) drove while his ability to do so was impaired by drug and thereby caused bodily harm to Eckford contrary to then section 255(2) of the Code.

[2] At the outset of trial, Gauthier’s counsel made admissions with respect to:

a) the accused’s identity as the driver of the subject Nissan motor vehicle,

b) the jurisdiction of this Court to try the accused, and

c) the date, namely July 3, 2018, being the day upon which the alleged offences were committed.

The Evidence

Brian Van Den Bosch

[3] When he testified on November 8, 2021, Van Den Bosch was 29 years of age. He was employed as a Project Coordinator for his employer. He graduated from university with a bachelor’s degree in engineering (civil).

[4] On July 3, 2018, Van Den Bosch left his home in Ottawa to drive to his worksite in Chalk River, Ontario. Unfortunately, en route, he was involved in an early-morning head on collision with another vehicle.

[5] Van Den Bosch recalled that he was travelling westbound on Highway 17 approaching the Bruce Street exit into the Town of Renfrew. Once past the intersection, Van Den Bosch began to utilize a passing lane. He realized that there was a car ahead of him. He assumed it was heading westbound like he was.

[6] By the time Van Den Bosch realized that the vehicle in front of him was getting closer and not stopping, it was too late. He swerved to avoid the oncoming vehicle. He blacked out. The next thing he remembered was being in his vehicle sitting on its side on the road surface.

[7] He believed that he car ahead of him was a beige sedan. He did not think that it had its running lights on. As Van Den Bosch put it, “I really thought it was the back end of a car.”

[8] Van Den Bosch remembered that the day in question was a clear mid-summer day. He estimated that the time of the collision was 6 AM.

[9] He testified that he thought the posted speed limit for that area of Highway 17 was 90 km/h.

[10] Following the accident, Van Den Bosch was in and out of consciousness. He had what he described thereafter as “little flashes” of memory. He did recall being loaded into an Ornge helicopter to be taken to hospital in Ottawa.

[11] In terms of the injuries he suffered, Van Den Bosch listed two broken vertebrae at T12 and L1. The first was what he described as a “burst fracture”. The second was a minimal compression fracture. He also had a ruptured spleen. He remembered glass being embedded in his arms and legs. He received a couple of stitches to treat a cut to his calf. He was placed on concussion protocol for several days following. He could not eat any food for three days. He had tubes going in and out of his body. He recollected that he spent some 6 to 8 days in hospital.

[12] Upon release, he was fitted with a “TSLR” brace. He described it as a fiberglass corset. He wore the brace for approximately three months. He explained that he needed someone to help him get in and out of it.

[13] Van Den Bosch reflected that his condition improved over the next 5 to 6 weeks. However, it was not until mid-November 2018 that he was able to return to his full-time duties at work.

[14] He began to follow a regular regime of physiotherapy, osteotherapy, acupuncture and massage. Unfortunately, he stated he has plateaued. For the first 2 ½ years post-accident, he progressed steadily, but now he must accept and deal with chronic back and neck pain.

[15] In addition, he began seeing a psychologist in early 2019 for his ongoing anxiety and sleep issues.

[16] He noted that if he exerts himself, his left hip and left wrist act up.

[17] When shown a photograph made Exhibit 1 at Gauthier’s trial, Van Den Bosch was able to identify the white 2016 Subaru Forester he was operating at the time of the collision. The vehicle was “unrecognizable” and “totalled”, as Van Den Bosch put it. It was his first time seeing a picture of the aftermath of the accident.

[18] Under cross-examination, Van Den Bosch confirmed that he was attempting to overtake the vehicles ahead of him once he drove beyond the intersection of Highway 17 and Bruce Street. The traffic light had turned green. He was able to move into the left passing lane.

[19] He emphasized that he was looking at the road ahead. He was not playing on his phone. He was not drinking coffee. In short, he was not distracted. However, he did concede that he believed he was looking at the back of a vehicle on the highway ahead of him.

[20] He added that it was difficult to estimate the distance he assessed the vehicle to be away from him. He thought it was between 200 and 300 m and travelling in the same direction as he was.

[21] When he realized that vehicle was coming toward him, he was parallel to another vehicle to his right, that he was in the process of passing. He had not cleared the other vehicle to his right.

[22] He estimated that he had travelled perhaps 100 to 200 m beyond the Bruce Street and Highway 17 intersection in a westerly direction on Highway 17 at that point. He explained that he was not going more than the posted 90 km/h speed limit, because the car to his right he was attempting to pass was going slow. Nevertheless, he did allow for the possibility that he had exceeded 90 km/h while in the passing lane attempting to overtake the other vehicle to his right.

[23] He was reminded that in the statement he gave to police on July 19, 2018, he conceded that he did not know his exact speed. He was wearing his seatbelt. He was not travelling daily from Ottawa to work in Chalk River. He would go up to the job site typically on the Monday and stay for the work week.

[24] Van Den Bosch did acknowledge that at times while making the commute to Chalk River, he would periodically fix his cruise control at 10 to 15 km above the speed limit.

Michael Provost

[25] When Michael Provost (“Provost”) testified on November 8, 2021, he was 58 years of age. He was living in Kanata, Ontario and had sold his home in Cobden. On the day in question, July 3, 2018, he had been staying at his brother’s trailer in Cedar Haven Park near Cobden.

[26] He recalled that he left to go to work that day around 5 AM. He was working in Ottawa, where he was the Senior Director of Property Management for a large investment trust. His destination that morning was Bell’s Corners.

[27] The route he typically took to work saw him travel from Cedar Haven up the Foresters Falls Road where it intersects with Highway 17. He would then head eastbound toward the City of Ottawa.

[28] On this particular morning, Provost recalled that the weather was beautiful and sunny. As he approached the intersection of Foresters Falls Road and Highway 17, he noticed a Nissan type vehicle travelling in the wrong lane. He ventured that if he had been 6 feet beyond the stop line for the intersection, he would have been clipped by the Nissan. He described it as an older model - goldish brown in colour.

[29] He stated that the path of travel for the Nissan was in the left-hand lane going eastbound on Highway 17. In other words, it was not where it ought to have been.

[30] Provost estimated that the speed at the time he first saw it was faster than 50 km/h. He later saw it swerving from side to side on the highway, and travelling at speeds of up to 110 km/h.

[31] Provost explained that he did not call 911 right away. He then observed the Nissan to go into the other lane again.

[32] He was able to assess for some time the manner in which the vehicle was driving, as it is quite a stretch between Cobden and the Bruce Street exit off of Highway 17 into Renfrew. He watched the Nissan overtake a tractor-trailer at one point. He estimated the Nissan’s speed in doing so was 110 km/h.

[33] He was able to calm himself a bit before calling 911, but it was too late. The accident occurred. He was sufficiently close behind the Nissan at the point of impact that his own vehicle was struck by debris.

[34] Provost’s reaction was to pull to the right side of the highway to attempt to make the area safe for oncoming vehicles. He noticed in addition to the Nissan that two other vehicles were involved in the collision, a white Subaru and a greyish colour GMC Sierra pickup truck.

[35] He saw a fellow with a blue hard hat emerge from the back of the Nissan. Provost asked him if he was okay. The fellow nodded that he was. The fellow spoke French. Provost told him to sit down and indicated to him where he should.

[36] Provost was worried that the man in the Subaru was going to die. Provost thought the vehicle he was driving would have to be flipped to get it off his arm. Provost was concerned however that if the driver of the Subaru had suffered a neck injury, he should not be moved.

[37] Provost then went to the aid of the driver of the pickup truck, the Sierra. The airbags had deployed. He opened the driver’s door and Eckford was able to exit. Provost was able to see that fuel, oil and battery acid were leaking onto the surface of the roadway from Eckford’s truck. Provost saw only cuts and bruises on Eckford.

[38] Provost remembered that emergency personnel were then arriving on scene. He remained thereafter for 15 to 20 minutes. Before he left, he gave a statement to police.

[39] He clarified that he lost sight of the Nissan only momentarily when it passed the tractor-trailer. Approximately one minute later, the accident occurred.

[40] Over the course of roughly 10 minutes, Provost watched the Nissan’s erratic driving. He described its path of travel was being “all over”, crossing lanes of traffic from left to right.

[41] Provost ventured that he was probably trying to get the license plate of the Nissan, but sadly, by the time he called 911, it was too late.

[42] Provost described the event as happening “so fast”. Following the collision, he was able to see smoke erupt from the Sierra, and the Nissan to slide up against the guardrail of the highway. He remembered the road surface to be littered with debris, car parts and gravel.

[43] Provost added that at that time in the morning, there is a significant amount of commuter travel on Highway 17. He himself had been making the commute since 2009. He recalled nevertheless that it was not “that busy” on the highway that morning leaving Cobden. However, the traffic was picking up as he approached the Bruce Street exit into Renfrew.

[44] Provost knew that the posted speed limit for that area of Highway 17 is 90 km/h.

[45] Under cross-examination, Provost agreed that at times while travelling eastbound on Highway 17, depending on the twist or turn the roadway took, the sun could be “in your face”.

[46] Including the time that Provost had lost sight of the Nissan, he estimated he had been following it for roughly 15 to 20 minutes. He clarified that travelling up to or over 110 km/h in that area of Highway 17 would be “excessive” for him. He added that he was attempting to keep pace with the Nissan.

[47] At the end of this period of observation, the last minute or so of which he was unable to see the Nissan, Provost explained that he was on the phone to 911 trying to alert the operator as to the erratic driving he was witnessing. Specifically, Provost saw it going from “shoulder to shoulder”.

Cory Eckford

[48] When Eckford testified on November 8, 2021, he was 30 years of age. He was living just outside Cobden with his wife and newborn son. He was employed in his eighth year as a powerline technician for Hydro One.

[49] On July 3, 2018, Eckford recalled that he was on his way to work eastbound on Highway 17. Around 5:45 or 5:50 AM, he left home. He was destined for Carleton Place.

[50] Near the Bruce Street and Highway 17 intersection, Eckford remembered that a silver tan car passed him. He looked to his left to hear the revving of the engine of that car. He then saw ahead a white vehicle approaching his location in the westbound passing lane of Highway 17. The silver tan car then collided with the white vehicle. Eckford next “t-boned” the white SUV.

[51] Eckford testified that at the time of these collisions, the roadway was clear and dry.

[52] He first noticed the silver tan car about 8 to 9 minutes previously when it was still behind him. He described its driving pattern as “sporadic”. It would get close to him to the point of tailgating, but then it would back off.

[53] On the morning in question, Eckford was driving a GMC Sierra pickup truck. As he approached the point of impact, he described three lanes of travel for vehicles. Ahead of him, to his extreme left on the roadway, was the westbound lane of Highway 17. Adjacent to it in the middle was the passing lane for westbound vehicles. To the right of the passing lane was the lane in which he found himself that morning, the eastbound lane of Highway 17.

[54] Eckford explained that a double yellow line separates the westbound passing lane from the eastbound lane.

[55] He recalled that morning he had set his cruise control for 101 km/h in his Sierra. His vehicle was equipped with ‘On Star’. The operator who communicated with him post-collision knew that an accident had occurred.

[56] In describing the conduct of the driver of the silver tan vehicle following the accident (i.e. Gauthier), Eckford said Gauthier was going back and forth to check on the driver of the white SUV and him. Eckford commented that Gauthier was “loopy”. Eckford ventured that this could have been as a result of his adrenaline post-accident.

[57] Eckford testified that Gauthier did not speak English. He seemed confused. Eckford described his appearance at the time as being of middle height, medium build, dark hair and a scruffy beard. Eckford was able to point Gauthier out in court.

[58] Eckford recalled that both Gauthier and he were taken to the Renfrew Victoria Hospital. Eckford’s ankle was x-rayed. He suffered a sprain, as well as minor scratches on his arms. His midsection was bruised badly by the seatbelt he was wearing.

[59] Eckford explained that his truck was a “write off”.

[60] When presented with a photograph of the collision site, Eckford was able to identify all three vehicles involved, namely his truck, the silver tan vehicle and the white SUV.

[61] Under cross-examination, Eckford remembered that on that fateful morning, the sun was coming up. At times, it would be in his eyes.

[62] He estimated that the silver tan vehicle was behind him for roughly 8 to 9 minutes prior to impact.

[63] By “sporadic”, he meant that the silver tan vehicle would come up close to the rear of his vehicle, then back off. When it was not tailgating him, it was a safe distance behind for the most part that he had it under his observation.

[64] Eckford confirmed that he did not pass anyone. The area of the highway where the collision occurred was level, straight and flat.

Kyle Sucheron

[65] When Mr. Sucheron testified on November 8, 2021, he was 30 years of age. He is employed as a furniture mover.

[66] On July 3, 2018, he remembered witnessing an accident which occurred around 6 AM near the intersection of the Bruce Street exit into Renfrew on Highway 17. At the time, he was a passenger in a transport truck.

[67] Prior to the collision, Mr. Sucheron saw a sedan, which he believed to be grey in colour, passing his truck. Shortly thereafter, it was involved in a “head on” with a white SUV.

[68] Mr. Sucheron thought that the point of impact was a short distance before the traffic lights, which control the intersection at Bruce and Highway 17. He knew that there was a passing lane for oncoming vehicles to the left of his eastbound lane of traffic.

[69] He observed the grey vehicle cross the centre line of the highway into the lane of oncoming traffic. He believed it was going over the speed limit. Post-collision it went off to the shoulder of the road.

[70] Mr. Sucheron recalled that traffic was fairly busy on Highway 17 that morning. The transport truck in which he was travelling was going approximately 90 km/h at the posted speed limit.

[71] Mr. Sucheron stated that the driver of the transport truck pulled over to the side of the road to make sure everybody was okay. The white SUV was on its side on the roadway. Mr. Sucheron could see that the white SUV had been involved in a further collision with a third vehicle. Both of those were “smashed”. The grey car was in the ditch.

[72] Mr. Sucheron added that the grey car had overtaken the transport truck only a matter of seconds before it collided with the white SUV.

[73] He took a fire extinguisher from the transport truck and gave it to an elderly gentleman, who put the fire out, which had started in the grey car.

[74] Mr. Sucheron described the driver of the grey car as frantic after he exited. He had dark hair, a slim build and was of average height.

[75] When Mr. Sucheron was asked by Crown counsel if he could identify the driver of the grey car, he thought he might be able to recognize him.

[76] Under cross-examination, Mr. Sucheron confirmed he could not be sure of the identity of the driver of the grey car.

Shawn Zimmerling

[77] At the time he testified on November 8, 2021, Mr. Zimmerling was 44 years of age. He was living in Braeside, Ontario. He was working for the past seven years as an Operations and Contract Manager for Dexterra in Petawawa.

[78] On July 3, 2018, Mr. Zimmerling remembered leaving his home around 6 AM to head to work. Shortly afterwards, he was westbound on Highway 17. He was then a witness to an accident near the Toyota dealership.

[79] He had been travelling in the slow lane. Behind him was a blue Trailblazer, which was involved in the collision, as was a white Subaru station wagon and a four-door truck.

[80] While headed westbound, Mr. Zimmerling saw an oncoming vehicle swerve half to three-quarters of the way into his lane. He applied the brakes heavily and went into the ditch. He believed the oncoming vehicle to be a light brown or gold coloured Mazda.

[81] Mr. Zimmerling tried to call 911. He then ran back to the Trailblazer to assist its driver.

[82] He described the scene of the accident as “cars all over the highway”. He could not remember exactly how many vehicles were involved in the accident in total.

[83] He described the weather that morning as an average summertime day. There was no rain. He recalled there was about 10 vehicles in or about the vicinity of the accident at the time it occurred.

Joshua Brydges

[84] At the time he testified on November 8, 2021, Mr. Brydges was 26 years of age.

[85] On July 3, 2018, he was living in Horton Township, Ontario. That morning, he was a witness to a very serious motor vehicle accident near the intersection of the Bruce Street exit into Renfrew on Highway 17.

[86] He had been driving in a vehicle with his wife, Paige Mask. As they were about to pull onto the highway, the beige sedan passed them, and it was followed by a black car. Both were travelling in an eastbound direction.

[87] His wife and he entered onto the highway and headed eastbound as well. Mr. Brydges recalled that it was a beautiful sunny morning.

[88] Approximately 2 to 3 minutes later, Mr. Brydges observed the beige vehicle swerve out to the left, and before it could correct itself, it had a head-on collision with the white SUV.

[89] His wife pulled their vehicle over. Mr. Brydges then ran to the scene of the accident to offer assistance.

[90] Mr. Brydges explained that it was “an older gentleman” who was operating a black car that had been following the beige sedan. The older gentleman gave Mr. Brydges a knife to attempt to cut the seatbelt, which was holding a motorist inside one of the vehicles involved in the collision.

[91] Mr. Brydges described the scene as “a big panic”.

[92] The driver of the beige vehicle tried to speak to Mr. Brydges; however, he did not want to provide him with any information. Mr. Brydges identified the driver of the beige vehicle as the accused, Gauthier.

[93] Mr. Brydges recalled dialing 911 when he saw Gauthier’s vehicle go over to the opposing side of the road.

[94] When the accident occurred, Mr. Brydges estimated that he was some 500 m away. It was traumatizing for his wife and him to see what had happened. Within 3 to 5 minutes, he added, police were on scene.

[95] Under cross-examination, Mr. Brydges confirmed his belief that he saw two cars go by, the beige one followed by the black one, when he entered the highway from Storyland Road.

[96] There was as well a transport and pickup truck following behind, but Mr. Brydges did not believe that there were any cars between the beige and black ones.

[97] Mr. Brydges confirmed that the transport truck, and perhaps three or four more cars, were ahead of his wife and him.

[98] Mr. Brydges then testified that he was perhaps 800 m from the collision site. His wife and he were following along only for about 2 to 3 minutes when the accident happened. He conceded that he is “bad with distances”.

[99] He did not get the name of the person who gave him the knife. He could not cut through the seatbelt.

[100] He described the driver of the beige car as the individual who started the accident. When the driver of the beige car attempted to speak to Mr. Brydges, Mr. Brydges was reluctant to do so. As Mr. Brydges explained it, “He caused it. I did not want him to run”.

[101] Mr. Brydges testified that he saw a 10 foot high explosion of flames when the beige car hit the SUV. In total, Mr. Brydges believed that four cars were involved in the accident.

Paige Mask

[102] When Ms. Mask testified on November 8, 2021, she was 26 years of age and living in Renfrew.

[103] On July 3, 2018, she testified that she was driving with her boyfriend and brother on her way from Eganville to Renfrew. Along the way, she observed a silverish/greyish sedan going fast. It was swerving in and out. It went into the oncoming lane, a passing lane, and crashed into a white SUV. There was an explosion thereafter.

[104] There was smoke, and a little bit of fire, but not much.

[105] She situated the point of impact as near the beginning of the Toyota dealership.

[106] She pulled over and attempted to have traffic approaching the accident scene to turn around.

[107] She believed the accident had occurred a couple of years ago.

Cst. Childerhose

[108] When Constable Childerhose testified on November 8, 2021, he had seven years of experience as a police officer. Three years earlier on July 3, 2018, he had been stationed at the Arnprior OPP detachment. At 6:30 AM when he started his shift that day, he was made aware of a collision that had occurred approximately an hour before.

[109] His partner, Cst. Burns, and he went to the scene of the motor vehicle accident. He had no real involvement there, but by 7 AM, he was at the Renfrew Victoria Hospital.

[110] While at the hospital, he made observations of the accused, Gauthier, who was laying on a stretcher. Gauthier was wearing blue jeans and work boots. Constable Childerhose saw a large unknown object protruding from his pants pocket. The officer thought it “looked odd . . . what was in [Gauthier’s] pocket”.

[111] Later at 9:32 AM, while at the Renfrew OPP detachment, Constable Childerhose assisted Constable Moore in weighing marijuana.

[112] Constable Childerhose separated out 3 grams of the 51 gram total amount of marijuana found. The three gram representative sample was to be sent to Health Canada for scientific analysis to determine the actual nature of the substance.

[113] The officer had no recollection of having any verbal interaction with Gauthier, but he did hear him say to himself, “Tabernac”.

[114] Under cross-examination, Constable Childerhose clarified that he received the marijuana as well as a blue-and-white container from Constable Moore.

[115] Constable Childerhose added that he placed the blue-and-white container in an evidence bag to be stored in the property room of the police detachment. He sealed the bag. He placed an ID number on it which would contain details such as the name of the accused, and the police occurrence number.

[116] Constable Childerhose believed that both the marijuana and the white substance had been properly secured. The officer pointed out that the property “vault” can only be opened by its manager.

[117] The officer could not remember seeing Gauthier’s hard hat at the hospital.

Sgt. McLeod

[118] When Sgt. McLeod testified on November 9, 2021, he had been a member of the OPP for some 13 years.

[119] On July 3, 2018, he was performing general law enforcement duties. At 5:10 AM, he stopped Gauthier for speeding along Highway 17 at its intersection with Doran Road. Gauthier was travelling at 128 km/h in a 90 km/h posted speed limit zone.

[120] At the time, Gauthier was operating a gold 2003 Nissan Maxima.

[121] In conversing with Sgt. McLeod, Gauthier volunteered that he had been visiting his girlfriend near Timiskaming. The accused left there around midnight and had been driving for some time.

[122] Sgt. McLeod issued a speeding ticket to Gauthier for an offence contrary to section 128 of the Highway Traffic Act. The officer asked the accused to slow down. Sgt. McLeod also gave Gauthier a warning about his windshield cracks and his failure to carry a valid insurance card for his vehicle.

[123] Under cross-examination, Sgt. McLeod confirmed that he carried on his conversation with Gauthier in English.

[124] Gauthier was permitted to leave the scene of the traffic stop at 5:28 AM. During the 18 minutes or so that Sgt. McLeod had detained Gauthier, the officer could not be certain about how much time he spent conversing with the accused.

[125] For the most part, Gauthier remained in his vehicle. However, at one point, Sgt. McLeod recalled that Gauthier had exited his vehicle to change his pants.

[126] Sgt. McLeod did not observe any sign of impairment in Gauthier’s ability to operate a motor vehicle. Nor did the officer notice anything suspicious in plain view. Overall, Gauthier was polite and cooperative in his dealings with the officer.

Cst. Moore

[127] When Constable Moore testified on June 9, 2021, she had been a police officer for over nine years.

[128] At 6:04 AM on July 3, 2018, she received a call over her police radio regarding a motor vehicle collision on Highway 17 near the Bruce Street intersection. She was the closest officer to the accident scene.

[129] When she arrived on site, she saw several motorists outside their vehicles. Four vehicles were damaged. Other emergency responders were also present.

[130] Constable Moore saw a male party, who was severely injured, being removed from a white Subaru Forester. The male was bleeding from his face. He had extensive swelling around his left eye. He was conscious. He was able to identify himself as “Brian”.

[131] Constable Moore only spent a minute or two speaking with the male.

[132] The officer then observed another vehicle, a gold Nissan Maxima in the ditch adjacent to the highway. It had a Québec marker, “K89-PZF”. There was a male standing beside it. This individual identified himself as “François Gauthier”. The officer ascertained that he was “okay”. She understood that he was on his way to Gatineau, Québec.

[133] Next Constable Moore observed a third male party standing by a black GMC Sierra. He identified himself as “Cory Eckford”. His vehicle was extensively damaged.

[134] The officer clarified that the Sierra belonging to Eckford was in the eastbound lane of Highway 17. The Forester was on its side partially in the westbound lane and the eastbound passing lane of Highway 17. The Maxima was in the southside ditch of Highway 17 entirely off the road surface.

[135] The fourth vehicle damaged in the accident was a Chevrolet Trailblazer in the westbound lane of Highway 17. It had been operated by Mitchell Cherry. Mr. Cherry appeared uninjured to the officer.

[136] From the accident scene, Constable Moore attended at the Renfrew Victoria Hospital. She remained there between 6:27 and 7:54 AM.

[137] The officer spoke to a nurse she knew, one Tammy Holt. The nurse pointed out a bag of Gauthier’s clothing and belongings. Constable Moore looked in the bag and found, amongst other things, a speeding ticket, marijuana, a small white grinder, and trace amounts of a white powdery substance in the grinder. The officer took possession of the items, and requested that another officer attend at the hospital to conduct, if necessary, a drug recognition evaluation (“DRE”) of Gauthier, assuming he did poorly on a standard field sobriety test (“SFST”) she had in mind for him.

[138] Constable Moore attempted to read the SFST demand to Gauthier. However, she realized that Gauthier was limited in his abilities in English. She did not speak French herself. She did nevertheless add that while he attempted to read the demand in French out loud at her request, he would begin to fall asleep or pass out.

[139] When Detective Constable St. Cyr, a francophone officer, later arrived at the hospital, Constable Moore learned that Gauthier’s treating physician would not allow either an SFST or a DRE to be conducted.

[140] Constable Moore handed over to Constable Childerhose the marijuana and white substance located in Gauthier’s belongings.

[141] Constable Moore understood that another fellow officer, Constable Burns, had been tasked with seeking a Production Order for Gauthier’s medical records, and a Warrant to Search for vials of blood taken from him at the hospital by medical staff.

[142] Under cross-examination, Constable Moore conceded that she spent less than five minutes interacting with Gauthier at the accident scene. The officer indicated as well that Gauthier’s behaviour was consistent with someone who had been involved in a car accident. Constable Moore did not notice any signs of impairment of Gauthier’s ability to operate a motor vehicle. Nor did she see a white substance around his nostrils.

[143] The officer confirmed as well that she did not examine the interior of Gauthier’s Maxima. She only visually inspected the exterior of his vehicle. She described it as “severely damaged”. Its front end was “totalled”.

[144] Based on the information received from the nurse at the hospital, Constable Moore decided to seize property belonging to Gauthier. She did not recall seeing any bag belonging to him on scene. However, she believed that the one she saw and seized at the hospital was a backpack. She could not distinctly remember its colour, but she thought that it was perhaps black. She did not take the backpack itself, only its contents.

[145] In addition to the marijuana, the grinder and the trace amounts of the white substance, she confirmed as well that there was a speeding ticket in what appeared to be clothing belonging to Gauthier.

[146] Constable Moore did not deal with any of the items seized from the backpack after they were handed over to Constable Childerhose.

[147] Constable Moore indicated that she expected a member of the Renfrew OPP Street Crime Unit to send the substances along to Health Canada for analysis. She acknowledged that the trace amounts of the white substance were not analyzed.

Det. Cst. St. Cyr

[148] When Det. Constable St. Cyr testified on November 9, 2021, he had been a police officer for some eight years.

[149] On July 3, 2018, he was working in plain clothes as a member of the Renfrew OPP Street Crime Unit. Part of his duties included performing the SFST on a person whose ability to operate a motor vehicle was suspected to be impaired by drug.

[150] He was dispatched by Sgt. Linton shortly after 8 AM to attend at the Renfrew Victoria Hospital. At 8:20 AM, he spoke with Constable Moore, who was seeking the assistance of one of her francophone colleagues.

[151] At 8:25 AM, before attempting to converse with Gauthier, Detective Constable St. Cyr first spoke to Dr. Amanda Lowe, an emergency room physician. The doctor refused to “medically clear” Gauthier to perform the SFST. Accordingly, Detective Constable St. Cyr recommended to Constable Moore that obtaining a Production Order for the accused’s medical records may be a suitable alternative.

[152] Thereafter, Detective Constable St. Cyr did not recall interacting with or even observing Gauthier.

Cst. O’Dacre

[153] When Constable O’Dacre testified on November 9, 2018, he had some eight years of policing experience.

[154] On July 6, 2018, he received an email from his Staff Sgt. requesting that he obtain blood samples at the Renfrew Victoria Hospital. Constable O’Dacre attended at the hospital and inquired about the existence of any samples belonging to Gauthier. One Christine Campbell of the Laboratory Medical Section of the hospital informed the officer that there were five vials of blood, and one of urine, which the hospital deemed no longer necessary for medical retention.

[155] At 9:48 AM, with Ms. Campbell’s assistance, Constable O’Dacre placed seals obtained from the Centre of Forensic Sciences (“CFS”) onto the vials of blood and the one of urine.

[156] Preprinted on the vials of blood and urine were Gauthier’s name and date of birth.

[157] At 9:50 AM, Constable O’Dacre departed from the hospital.

Dr. Daryl Mayers

[158] Dr. Mayers is a forensic toxicologist employed by the CFS. Dr. Mayers has been qualified on numerous occasions to provide opinion evidence on the effects of alcohol and drugs on the human body. His written expert report was filed on consent as Exhibit 3 at Gauthier’s trial.

[159] Dr. Mayers scientifically analyzed a vial of blood taken from Gauthier in an attempt to detect the presence of drugs. In doing so, he made findings as follows:

a) methamphetamine - 0.33 mg/L

b) amphetamine - 0.032 mg/L

c) carboxytetrahydrocannabinol - detected

[160] Dr. Mayers also analyzed a urine sample taken from Gauthier. However, Dr. Mayers’ findings were limited in that the analysis could only detect the presence of a drug, but not its concentration. Again, methamphetamine, amphetamine, carboxytetrahydrocannabinol and an additional drug, ephedrine/pseudoephedrine, were detected.

[161] Dr. Mayers explained that methamphetamine is a stimulant. It impacts the human body by increasing alertness and diminishing appetite. Its desired effect by recreational users is to bring about a feeling of euphoria.

[162] Additionally, methamphetamine can cause agitation, rapid and confused speech and/or an inability to follow conversation. It may also affect coordination. Specifically, it can create difficulties with balance. It also skews one’s sense of time.

[163] Physiologically, methamphetamine increases heart rate, blood pressure and body temperature. It may also result in the dilation or widening of the pupils in the eyes.

[164] In the case of overdose, all of these physiological effects increase in intensity. Pseudo-hallucinations and delirium can result.

[165] Dr. Mayers clarified however that he would be incapable of pointing to any specific effect on an individual without testing him or her. Methamphetamine’s effects can vary and will depend on the person’s level of tolerance to the drug.

[166] As the presence of the drug diminishes, it can lead to the depression of the central nervous system. In essence, as its stimulant effect wears off, sedation and sleepiness will increase.

[167] Dr. Mayers was clear in his opinion. With a single serum sample, such as what he tested in this instance, it would not be possible to say what the effects would be on the person from whom the sample was taken based on the measure of its methamphetamine concentration.

[168] Having read witnesses’ observations of Gauthier’s driving on July 3, 2018, Dr. Mayers offered that the accused’s weaving and drifting in and out of lanes of travel on the highway could be attributable to the use of methamphetamine and amphetamine. A person under the influence of those drugs loses judgment of his or her driving abilities. There is diminished impulse control, which can lead to speeding. Users of the drug as well are known to take risks which they would not assume in a drug-free state. Furthermore, rapid flight of ideas and thoughts are not uncommon side effects too of the drug.

[169] However, Dr. Mayers could not say that this would always be the effect of the use of methamphetamine and amphetamine. One needs to consider the individual’s susceptibility and tolerance to the drug. Scientifically, it would be difficult to pinpoint a concentration at which the ill effects of methamphetamine and amphetamine would definitely manifest themselves.

[170] Dr. Mayers went on to explain that the absorption level of methamphetamine, if taken orally, is typically 2 to 3 hours. By contrast, if it is smoked or taken intravenously, a person can reach the maximum absorption levels very quickly.

[171] Dr. Mayers also emphasized that tetrahydrocannabinol (“THC”) was not detected in the blood tested. Carboxytetrahydrocannabinol, a metabolite of THC consumption, was. Carboxytetrahydrocannabinol has no psychoactive, impairment effects.

[172] Dr. Mayers pointed out that THC is unlikely to be detected where a hospital tube is used to draw the blood sample. THC tends to be very adherent to the type of material used to manufacture such tubes. Accordingly, THC may have been in Gauthier’s blood at the time it was drawn on July 3, 2018; however, it may also not have been.

[173] Under cross-examination, Dr. Mayers confirmed that methamphetamine can be detected in blood in the range of 0.1 to 9.5 mg/L. At 9.5 mg/L, a person would undoubtedly be considered in a state of overdose.

[174] Tolerance, Dr. Mayers reemphasized, is a key factor to be taken into consideration in determining the impairment effect of the drug on an individual.

[175] Dr. Mayers added that all individuals are subject to a crash phase where the effects of the drug have largely diminished. They then begin to fall asleep and their abilities to perform the multitask functions of operating a motor vehicle would be impaired.

[176] Dr. Mayers did allow for the possibility that a person could be “perched” - that is to say, he or she is no longer having either a stimulant or crash effect from the drug.

[177] Dr. Mayers elaborated that methamphetamine is slowly eliminated from the human body. It has a half-life of 15 hours in some individuals. Dr. Mayers ventured that it would be possible for a heavy user to not consume methamphetamine for a day or a day and a half, and still have the presence of the drug in his or her system.

[178] In other individuals, the half-life of methamphetamine may only be five hours.

[179] Dr. Mayers also pointed out that the elimination rate for methamphetamine is not linear like alcohol.

[180] When it was suggested that it would not be possible to opine on the level of impairment the concentration of methamphetamine detected in Gauthier’s blood would have on his ability to operate a motor vehicle, Dr. Mayers candidly agreed.

[181] In sum, Dr. Mayers explained that the difficulty lies in the lack of experience the scientific community has in studying the effects of certain drugs such as methamphetamine and amphetamine. Whereas the effects of alcohol on the human body have been studied for a century or more, the same cannot be said for certain drugs, such as methamphetamine and amphetamine.

[182] Under re-examination, Dr. Mayers opined that one cannot say with any certainty at what minimum concentration per litre of blood any specific user of methamphetamine or amphetamine, or both, would become impaired in his or her operation of a motor vehicle. Individual testing is necessary to determine the sedative effect of the drug to arrive at any such conclusion.

[183] Simply put, an individual could be impaired in their ability to operate a motor vehicle if he or she were at the same concentration of methamphetamine per litre of blood as was detected in Gauthier’s body, but that individual will not necessarily be impaired.

Cst. Burns

[184] When Constable Burns testified on November 15, 2021, she had some 16 years’ experience as a police officer.

[185] On July 3, 2018, at approximately 6:30 AM., she was dispatched to the scene of a motor vehicle collision. The accident had occurred on Highway 17 near Renfrew. Constable Burns attended briefly, but was then tasked to go to Renfrew Victoria Hospital. She arrived at 7 AM.

[186] The officer noticed, upon locating Gauthier on a stretcher at the hospital, that he had a bulge in the pocket of his jeans. He was also wearing a neck brace. There was dried blood on his face. She also saw a white, powdery substance on his nose, which had dried around his right nostril.

[187] Constable Burns testified that Gauthier was quite drowsy. His eyes were closing when she was in the process of speaking to him.

[188] She was present when Cst. Moore made the SFST demand of Gauthier. However, she noted that Gauthier was unable to complete the test for various medical reasons.

[189] Constable Burns along with Constable Childerhose seized the items, namely the marijuana and the white powdery substance, which they suspected may have impaired Gauthier’s ability to drive. Constable Burns “wrote the warrant” to obtain the blood and urine samples taken from Gauthier by hospital staff.

[190] Constable Burns also followed up with the Ottawa Civic Hospital and obtained the medical records for Van Den Bosch from that institution.

[191] Under cross-examination, Constable Burns confirmed that she was only at the accident scene for a short period. She did not recall whether she observed the interior of the gold Nissan operated by Gauthier. Nor did she assess the extent of the damage occasioned to three other vehicles involved in the accident.

[192] Constable Burns confirmed that she did see the white powdery substance on the inside and outside of his right nostril. However, she did not think to take a photograph of it. She thought it could be a drug.

[193] She did not know if the airbags on Gauthier’s Nissan deployed post-accident. Nor did she know if talcum powder or corn starch were a possibility to explain the white substance she saw around Gauthier’s nasal area.

[194] She did acknowledge that the white powder was not scientifically tested.

[195] She emphasized that she was aware that a large amount of marijuana was also seized from the bag of items belonging to Gauthier. She did not know where exactly it was found prior to it being placed in the bag. She stated she was responsible for seizing all items of interest to police.

Medical Records

[196] On consent, medical records for both Van Den Bosch and Eckford were made Exhibits 5 & 6 respectively at Gauthier’s trial. The records established that both men suffered “bodily harm” as defined in section 2 of the Code.

François Gauthier

[197] With the assistance of French/English interpreters, Gauthier testified in his own defence.

[198] He lives at present in Gatineau, Québec. At the time of the accident on July 3, 2018, he was residing in nearby Cantley, Québec.

[199] Gauthier explained that on weekends, he would go to visit his girlfriend, who was living in Timiskaming. He had been there with her and her children the weekend before the accident.

[200] Gauthier stated that he acquired his 2003 Nissan with a 3L engine the weekend before travelling to Timiskaming. He bought it from a work colleague. He paid $800 for it. He then had it inspected by a mechanic prior to setting out on the long road trip to visit his girlfriend.

[201] He needed to have some immediate repairs done prior to embarking on his journey to Timiskaming. A tie rod had to be replaced immediately. A ball joint on the same side of the vehicle as the tie rod needed to be fixed as well. Another tie rod, he understood from discussions with his mechanic, could wait six months before it would require replacement.

[202] Gauthier paid another $500 or $600 for the work done on his vehicle.

[203] Gauthier did drive the vehicle for two or three of the days during the week prior to heading to Timiskaming. He noticed that one of its tires would lose air every 2 to 3 days. It was not a big leak. It would not get below 20 psi. The recommended psi for the tire was 32.

[204] Gauthier explained that he had about four years driving experience prior to July 3, 2018, the day of the accident.

[205] He recalled that it was the Canada Day long weekend when he did go to visit his girlfriend and her two children. He left work at roughly 3 PM in Ottawa on the Friday. He estimated that it took five hours to travel to Timiskaming by car depending on the amount of traffic there was upon leaving the city.

[206] When Gauthier arrived at his girlfriend’s place, he learned that her children were at their father’s residence for what was supposed to be a weekend visit. His girlfriend and he consumed alcohol and drugs. He estimated that he had roughly 3 to 4 beers on the Friday evening, June 29, 2018.

[207] He also smoked some cannabis. His girlfriend gave him some amphetamines as well.

[208] On Saturday, June 30, 2018, Gauthier recounted that his girlfriend had her children in her care. After taking them to the fireworks, they were given back to their father. Gauthier and his girlfriend then attended a block party. His girlfriend bought 10 pills (amphetamines). They each took five over the course of the night. Gauthier explained that if the effects of the drug were not strong, after an hour or so, they would take another pill.

[209] Over the course of the entire weekend, Gauthier estimated that he had smoked around 5 to 6 joints of marijuana.

[210] Around 5:30 AM on Sunday, Gauthier fell asleep. He was no longer feeling the effects of the amphetamines. However, he estimated that he slept 12 to 13 hours before waking up.

[211] He believed that his girlfriend picked up her children around noon. Thereafter, they did not use any drugs or drink any alcohol. Nor did his girlfriend or he continue to use amphetamines on that Sunday, July 1, 2018.

[212] Gauthier added that when he was younger, perhaps 10 years or so ago, he would use amphetamines more regularly. However, by July 2018, he had limited his use of them to 2 to 3 times a year.

[213] On Monday, July 2, 2018, Gauthier stated that he again abstained from the use of any alcohol or drugs. He decided he would go directly from Timiskaming to work in Ottawa for 6:30 AM as usual. He could not remember exactly when he went to bed.

[214] To make it to work on time, Gauthier reckoned he would have to leave between midnight and 1 AM.

[215] Gauthier recalled that he did leave at around midnight. He planned to stop and sleep along the way if he was tired. He felt good and well rested before he left. He had just eaten a substantial meal.

[216] En route to Ottawa, at approximately 2:30 or 3 AM, Gauthier stopped at the marina in Deep River and slept for 2 to 3 hours. He knew he needed rest for the work day ahead.

[217] When he awoke and saw the time however, he realized he would be at least two hours late for work.

[218] When he resumed his journey to Ottawa, he set his cruise control at 128 km/h. He estimated he was driving at this speed for roughly 30 minutes before he was stopped by police. He provided his driving documents to the officer. He remembered asking if he could change his clothes to get into his work attire. The officer permitted him to do so.

[219] Gauthier acknowledged that he received a speeding ticket.

[220] Thereafter, he stopped at a gas station in Pembroke to fill his tank and to put air in the tire. He also checked the oil. It was an opportunity to stretch his legs and to have some breakfast as well.

[221] When Gauthier returned to the highway, the day was dawning. The traffic was flowing at around 100 to 110 km/h. His motor vehicle was running fine.

[222] However, 15 or 20 minutes later, he took a curve and crossed the mud and dirt tracks left by a tractor coming out of a field. When he went over them, he heard a bang. He had tried to avoid them, but there was another vehicle in the oncoming lane. The tracks, he remembered, took up both lanes making it difficult to avoid running over what had been left on the road surface.

[223] Gauthier explained that he was unable to determine what the remnants from the tractor were made of. He reckoned he could not have avoided them in any event. He did park his vehicle a short while later off to the side of the road to inspect the undercarriage. He noticed that there were rocks, clay and dirt caught up in it.

[224] He tried to dislodge the mess as best he could. He believed it may loosen and fall off as he drove further along the highway.

[225] He began to test the effect it had on the vehicle by doing maneuvers. He would let go of the steering wheel on flat open stretches, while keeping his hands hovering above it, all the while travelling at a speed of 100 to 110 km/h, to see if the wheel alignment was still good. He then noticed that after roughly 15 seconds, his car would veer to the left. He knew it could not have been caused by an underinflated tire.

[226] On all three occasions Gauthier tried this maneuver, his car would drift left. It was running strangely. Mud was flying around everywhere. Gauthier could hear the sound it was making in the wheel wells.

[227] Gauthier explained that he was testing the vehicle to see if it was breaking down.

[228] He elaborated that whenever he let go of the steering wheel, he would count the number of seconds it would take for all four wheels of his vehicle to cross over into the opposing lane. There was no approaching traffic on those occasions.

[229] In one such instance, Gauthier noticed that there was a vehicle behind him, but he estimated that it was at a distance of roughly half a kilometre from him.

[230] He reaffirmed that he would not do the maneuver if there was anything in front of him.

[231] He testified that he began to have moments of panic. He was aware that traffic would be increasing in volume as he approached Ottawa. His visibility was reduced due to the rising sun. Furthermore, he noticed that the temperature in his car was beginning to increase. He thought it may explode. He understood that at a later point, his vehicle actually caught fire.

[232] Gauthier did not try to stop or park his vehicle. He knew he had to, but he believed he could not do so because the traffic was becoming heavier in both directions along the highway. It was starting to get busy.

[233] He noticed a transport truck behind him. He passed it earlier before starting the maneuvers. He was not certain if that was the vehicle which left the marks on the highway, and which had caused problems for his vehicle. There were cars in front of him as well. They were passing him continuously along the highway going in the opposite direction.

[234] When asked about Provost’s evidence, who 10 minutes before the accident, had seen him swerving left to right, and throwing up gravel, Gauthier reckoned Provost must have been watching him do his maneuvers.

[235] Gauthier felt heat coming out of the vents of his vehicle more and more. He was trying to keep calm. About 3 to 5 seconds later, the hood of the vehicle lifted. He heard a very irregular sound come from the motor. He estimated he was travelling at 100 or 110 km/h at the time because he was in the flow of traffic. He was aware that there was a truck in front of him and behind.

[236] Gauthier emphasized that when the hood flew open, he thought he was going to die. He could only see out two small strips on the extreme left and right sides of his windshield. Some glass from the top of the windshield fell onto him. He knew the glass must have come from the windshield because his sunroof was open.

[237] Gauthier held onto the steering wheel. He thought it was the end. He tried to go to the right as he believed he ought to have, but the car kept going the opposite way.

[238] He could see cars coming toward him. He thought he was going to have a head-on collision. The cars were passing so close to him. He was just waiting for impact. His eyes were closed for about three seconds, but none came.

[239] Gauthier explained that what he believes now is that, out of reflex, he may have tried to hang on to the steering wheel to brace himself, which in turn may have caused him to mistakenly step on his accelerator.

[240] One way of getting out of an accident was to accelerate to create enough space to be able to slow down.

[241] After two seconds, he looked in his rearview mirror. He could still see the transport truck behind him, and the dotted line of the highway. He did remember overtaking a black truck that had been in front of him, and then next to him while the hood of his vehicle was up.

[242] Gauthier clarified that he saw the black truck out his window beside him. The lines of the highway he could still see along the gaps of the windshield, which the hood did not obstruct. Gauthier stated that the cars were going by him so fast, he knew he would hit one of them.

[243] He believed nevertheless that he remained within his lane still. The cars ahead of him continued to pass him on his left. He could not see anyone ahead of him.

[244] When the other lane opened up, Gauthier explained that he started to accelerate. He had been in the right-hand lane before the highway expanded into three lanes of travel.

[245] Gauthier testified that it was then the impact occurred. His memory stops there. He reiterated that he had been in the extreme right lane. He saw nothing in front of him. He never saw the vehicle with which he collided. He only saw vehicles passing on his left.

[246] Gauthier could not remember the accident itself. After he passed the black truck, he saw only the dotted lines, and the speed he was driving. He could no longer keep accelerating, so he let go of it. He was panicked.

[247] Gauthier repeated that he did not remember the impact at all. He passed by motor vehicles in other lanes, not his own.

[248] The sun had risen in front of him. He was headed east. He believed he lost consciousness three seconds or so after the hood lifted.

[249] He remembered waking up at the Civic Hospital in Ottawa around 6 PM, some 12 hours later. He had no memory of being at the accident scene.

[250] He felt as though his entire body was in pain. The doctors were looking at his spine. They had a board on his back. The doctors gave him a sedative for his spine and to relax him.

[251] When asked by hospital staff, he was prepared to provide samples of his blood or his urine.

[252] Gauthier could not recollect speaking to police at the accident scene or afterwards. He maintained nevertheless that his memory was good leading up to the accident. He explained that this was so because “I have it black-and-white in my head.”

[253] Gauthier estimated that it took him two weeks to physically recover to the point he was before the accident.

[254] Mentally, Gauthier described the impact of the accident upon him as quite serious. It affected him psychologically. He appreciates that he was accused of criminal wrongdoing, and feels badly that others were injured in the accident.

[255] He could not understand how he escaped the collision alive. He saw the state of his car following the accident. It was a total loss.

[256] Under cross-examination, Gauthier confirmed that when he left Timiskaming at midnight to head to Ottawa after the Canada Day weekend, it was July 2 going into July 3.

[257] He had often done the trek between those two places. For the year prior, he had been doing that trip every two weeks. He knew the route well.

[258] Over the course of the previous year, Gauthier testified that he would travel at night to avoid the traffic in Ottawa.

[259] Gauthier estimated that he woke up at 5 PM on July 2, 2018. He believed he had slept some 8 to 10 hours beforehand for sure. His girlfriend had supper prepared.

[260] He stated that he did not have any alcohol during supper. He maintained that the last time he had any alcohol or drugs was on Canada Day (i.e. July 1) itself.

[261] His girlfriend’s children were present at her place until 8 PM on July 2, 2018, when their father came to collect them. His girlfriend and he then went back to bed to spend time together. They made love. He left at midnight.

[262] He offered that he stopped in Deep River because his eyes needed to rest. He did not feel tired when he woke up. Nor did he hurry to make it to work on time. He was taking into consideration the safety of others on the highway. He stated he could have arrived at work at noon.

[263] Gauthier believed he had been driving to a point roughly halfway between Deep River and Pembroke when he was stopped by police and given the speeding ticket. He believed he continued driving for roughly an hour or an hour and a half thereafter before being involved in the accident.

[264] When Gauthier stopped in Pembroke to fill his tank with gas, he explained that it was empty. He needed to do so. He texted his employer to say at that point that he would be a minimum of two hours late for work. He denied that he had any need to hurry.

[265] Gauthier’s habit was to smoke cannabis between 3 to 4 times a month.

[266] It was roughly 15 minutes east of Pembroke that he ran over the mud and dirt tracks on the highway. He believed he was travelling 100 to 110 km/h when he did so.

[267] Gauthier could not say where exactly where he stopped to check the mechanical fitness of his vehicle. It was on the side of a field. Until he ran over what was left on the road surface, his vehicle had been operating well.

[268] Roughly 15 to 20 minutes after checking out his vehicle and resuming his journey, Gauthier became involved in the accident. He did not attempt to stop over that time frame. Nor did he attempt to slow down.

[269] Gauthier conceded that he was giving up control of his vehicle to a degree when he did his three maneuvers. He did allow his vehicle on those occasions to cross over completely into the opposing lane of traffic. He maintained nevertheless that he was doing so in complete safety.

[270] He agreed that even though he knew his vehicle was veering to the left, he did not cease driving to Ottawa. His car would behave similarly when one of its wheels was low on air by some 10 pounds psi or so.

[271] Gauthier added that when he passed the transport truck, he turned on his hazard lights. He did so to the signal to the driver of the transport that his truck was throwing up mud from its tires.

[272] Gauthier was firm in his belief that his car caught fire. He could feel the temperature rising under the vehicle’s rug. He could smell burnt plastic. He sensed the heat coming out of the vehicle’s vents. The hood lifted. This chain of events occurred within the 40 to 60 seconds prior to the collision. All the while, Gauthier believed he was in his proper, right lane.

[273] Gauthier testified that he was thinking about stopping, but even if he wanted to, he could not, due to the increased traffic surrounding him. The accident happened, but it is not what he wanted to have happen.

[274] Gauthier clarified that he did not want to change lanes. The car did.

[275] He thought there would be an impact. For those three seconds when he had his eyes closed, he was waiting for the gates of Paradise to open. He believed he was going to have a head on collision. He was trying to slow down, but every time he attempted to, his car veered to the left.

[276] He added that in his rearview mirror, he could see the 18 wheeler coming behind him at full speed. He also observed the cars coming in the opposite direction. They were passing to his left. He could hear them. The last one, he reckoned, cleared him by only one centimetre.

[277] He was bracing his steering wheel for impact. As far as he knew, when it occurred, he was in his own lane. He did allow for the possibility that when he let off the accelerator, his vehicle may have veered into the lane of oncoming traffic.

[278] From memory, Gauthier stated that as soon as he opened his eyes, he noticed he was going 125 km/h. This was his last recollection, not the impact itself.

[279] He reiterated that he did not recall speaking to police, nor anyone else, at the accident scene. The first person he remembered speaking to post-collision was a doctor at the Civic Hospital.

[280] Gauthier stated he was wearing his work clothes when he went to the hospital.

[281] He denied that he was tired when the accident occurred.

[282] He disagreed that the hood of his vehicle did not open pre-collision.

[283] He allowed for the possibility that his car did not catch fire, but if it did not, he maintained it was not far from it.

The Position of the Crown

[284] The Crown submits that all elements of the offence of both counts of dangerous driving causing bodily harm to Van Den Bosch and Eckford, as well as both counts of impaired driving causing bodily harm to both men, have been made out on the evidence adduced at Gauthier’s trial.

[285] The actus reus of the dangerous driving offence set out in section 249 of the Criminal Code involves the operation of a motor vehicle “in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at the place.”

[286] The Crown contends that there is a direct causal link, legally and factually, between Gauthier’s driving and the motor vehicle collision which resulted in injuries to Van Den Bosch and Eckford meeting the definition of bodily harm in the Code. The accused’s conduct must be seen as a “significant contributing cause” of the injuries or, said another way, his conduct was “at least a contributing cause . . . outside the de minimis range.”

[287] Reasonable foreseeability of harm is a relevant consideration in determining whether an accused should be held responsible in law for the consequences of his conduct. If the other requirements for criminal negligence, including the fault element, were proved beyond a reasonable doubt, legal causation is made out.

[288] In examining the requisite mens rea, the Crown urges me to consider the totality of the evidence, including the evidence of the accused in objectively determining whether or not Gauthier’s conduct constituted a “marked departure from the norm”.

[289] The Crown emphasized the employment of the two-stage approach set out in R. v. Roy, 2012 SCC 26 at para. 36 as follows:

“The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.”

[290] The Crown points out that the actus reus of the offence of impaired operation of a motor vehicle is the act of doing so while one’s ability is impaired by alcohol or drug to any extent ranging from slight to great.

[291] Evidence of impairment after driving is highly relevant since the inference that the same condition existed at the time of driving is routinely drawn. Furthermore, continuing to drive an unsafe vehicle over an extended period can be evidence of impairment.

[292] The Crown further argues that impaired operation is a general intent offence. The Crown need only show that the accused intended to operate a motor vehicle after the voluntary consumption of alcohol or other drug, which affected the ability to drive that vehicle.

[293] On the day in question, Gauthier was driving in an area of Highway 17 with a moderate traffic level in a manner that was dangerous to the public according to the Crown. Eckford had his cruise control set at 101 km/h. His vehicle was overtaken by Gauthier’s. The accused was therefore speeding.

[294] The Crown contends that Provost’s evidence was most compelling. Provost remarked that Gauthier’s motor vehicle was “all over the road”. Provost was so concerned he called 911. His period of observation continued over a significant span of time.

[295] The Crown adds that Gauthier had plenty of opportunity not to continue to drive. He was aware of the troubles he was having with his car, but he continued to operate it anyway. This was a marked departure from the standard expected of the reasonable driver.

[296] The Crown submits that Gauthier’s continued driving in the face of mechanical difficulties was indicative of impairment of his mental judgment.

[297] Even though Gauthier was stopped by police earlier with no sign of impairment observed of his person by an experienced police officer at 5:10 AM, there remained the opportunity for him to abuse drugs prior to the collision which occurred at 6 AM.

[298] Detective Constable Burns observed the white powdery substance around the right nostril of Gauthier.

[299] A consideration of the totality of the evidence leaves open to the court the finding that Gauthier’s ability to operate a motor vehicle was impaired by drug beyond a slight degree.

The Position of the Defence

[300] The defence submits essentially that Gauthier’s driving was not dangerous. Rather, the manner in which he was operating his motor vehicle, and the accident which resulted, were the product of dangerous circumstances.

[301] Defence counsel agrees as to the essential elements which constitute the offences of dangerous driving causing bodily harm and impaired driving causing bodily harm.

[302] The defence emphasizes that to prove the mens rea for the offence of dangerous driving, the Crown must demonstrate that the lack of care exhibited by the accused’s manner of driving must be serious enough to merit punishment (see Roy, para. 28).

[303] The defence contends that Gauthier unavoidably ran over clay and dirt on the road surface. He thereafter checked his vehicle to ensure he could continue to drive it.

[304] Occasionally, he would let go of his steering wheel with palms hovering over it. He was mindful of what he was doing. It was not dangerous. His behaviour did not rise to the level of a “marked departure” from the conduct one would expect of a reasonable driver. In other words, the maneuvers and his decision to continue to drive were perhaps questionable, but they do not amount to dangerous driving.

[305] The hood of Gauthier’s vehicle popped open immediately prior to the accident. His vision was blocked. He did the best he could to avoid a collision.

[306] With respect to impaired operation, the defence argues that the totality of the evidence is ambiguous. The Crown has not met its onus of proving Gauthier’s ability to operate a motor vehicle was impaired even to a slight degree.

[307] Defence counsel adds that the bad driving evidence was explained by the accused when he addressed the nature of the car troubles he was experiencing, the controlled maneuvers in which he engaged to test his car, and the mechanical failure when the heat rose and the hood lifted, as the cause of the accident.

[308] Defence counsel points out that Gauthier’s behaviour post-collision was completely consistent with someone who just been in a serious accident.

[309] With respect to the expert evidence led by the Crown, the defence emphasizes that there is, according to Dr. Mayers, a wide variation in the effects that methamphetamine and amphetamine can have on one’s ability to drive. Methamphetamine can certainly cause impairment at the concentration in which it was found in Gauthier’s blood, but there is individual variability depending on one’s tolerance for the drug. Motorists with that concentration of methamphetamine in their bloodstream would not necessarily be impaired. Put otherwise, a driver could be impaired at that concentration, but not would be.

[310] Further, when Gauthier was pulled over by police less than an hour prior to the collision, Sgt. McLeod observed no signs of impairment about the accused’s person. Nor did Constable Moore when she had him under her observation at the scene of the accident and at the hospital thereafter.

The Law

Elements of the Offence of Dangerous Driving

[311] In R. v. Roy, 2012 SCC 26, Cromwell J., speaking for a unanimous panel of the Supreme Court of Canada, set out the necessary elements to be proven by the Crown to make out the offence of dangerous driving. He stated:

[28] In Beatty, the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles. In brief, the Court decided as follows. 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 is 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 that 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)

[312] Cromwell J. elaborated on the actus reus for the offence as follows:

[35] To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving.

[313] With regard to mens rea, Cromwell J. carefully articulated what the necessary mental element to the offence must encompass. He explained the inquiry to be made as follows:

[39] Determining whether the required objective mens rea has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused’s actual state of mind (para. 43).

[40] Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

[41] In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.

[42] Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

Elements of the Offence of Impaired Operation by Drug

[314] For over thirty-five years, the law regarding the essential components to the offence of impaired operation of a motor vehicle by alcohol or drug has been well settled. In R. v. Toews, [1985] 2 S.C.R. 1031, McIntyre J. held at para. 7:

The mens rea for driving while impaired is the intent to drive a motor vehicle after the voluntary consumption of alcohol or a drug. The actus reus is the act of driving where the voluntary consumption of alcohol or a drug has impaired the ability to drive.

Bodily Harm

[315] Section 2 of the Code defines “bodily harm” as follows:

“any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.

[316] The threshold for the Crown to meet in proving “bodily harm” is not a particularly high one.

The Presumption of Innocence, Reasonable Doubt and the Assessment of Credibility

[317] In R. v. Duffy, 2016 ONCJ 220, Vaillancourt J. articulated eloquently the principles to be observed and respected by all judges in Canada presiding over criminal trials. He offered the following guidance on the presumption of innocence, proof beyond a reasonable doubt and the assessment of witness credibility:

[8] Chief Justice Dickson of the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103 wrote about the presumption of innocence and s. 11(d) of the Charter commencing at paragraph 27:

[27] Section 11(d) of the Charter constitutionally entrenches the presumption of innocence as part of the supreme law of Canada. For ease of reference, I set out the provision again:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[28] To interpret the meaning of s. 11(d), it is important to adopt a purposive approach. As this Court has stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344:

The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms ….

To identify the underlying purpose of the Charter right in question, therefore, it is important to begin by understanding the cardinal values it embodies.

[29] The principle of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s. 11(d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, per Lamer J.) The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other and social, psychological and economic harms. In light of the gravity of the consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused’s guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.

[30] The presumption of innocence has enjoyed longstanding recognition at common law. In the leading case, Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (H.L.), Viscount Sankey wrote at pp. 481-482:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Subsequent Canadian cases have cited the Woolmington principle with approval (see, for example, Manchuk v. The King, [1938] S.C.R. 341, at p. 349; R. v. City of Sault Ste Marie, [1978] 2 S.C.R. 1299, at p. 1316).

[9] In R. v. Lifchus, [1997] 3 S.C.R. 320, Cory J. at paragraph 27 observed that:

First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. The two concepts are forever as closely linked as Romeo and Juliet or Oberon with Titania and they must be presented together as a unit. If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. Jurors must be reminded that the burden of proving beyond a reasonable doubt that the accused committed the crime rests with the prosecution throughout the trial and never shifts to the accused.

[10] In R. v. W.(D.), [1991] 1 S.C.R. 742, at paragraphs 27 and 28, the Court noted that:

[27] In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, [1988] 2 S.C.R. 345 at p. 357.

[28] Ideally, the appropriate instructions on the issue of credibility should be given, not only during the main charge, but on the recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

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 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.

[11] Justice Iacobucci, writing for the majority, in R. v. Starr, [2000] 2 S.C.R. 144 noted at para. 242 that:

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard approximately between these two standards.

Issues

[318] Given the differing versions as between the manner of driving observed by Provost and Eckford, and as later explained by Gauthier in his testimony, the evidence raises the following core issues in this trial:

a) Do I believe Gauthier’s evidence that he took appropriate steps to deal with mechanical issues which his vehicle began to experience, and which ultimately resulted in a serious multi-car collision?

b) If I do not believe his evidence, does it raise a reasonable doubt?

c) Even if I am not left in doubt by Gauthier’s evidence, on the basis of the evidence which I do accept, am I convinced in his guilt beyond a reasonable doubt?

d) In other words, am I persuaded beyond a reasonable doubt that Gauthier operated a motor vehicle in a manner dangerous to the public, and thereby caused bodily harm to Van Den Bosch and Eckford?

e) Equally, am I persuaded beyond a reasonable doubt that Gauthier operated a motor vehicle while his ability to do so was impaired by drug, and thereby caused bodily harm to Van Den Bosch and Eckford?

Analysis

Do I believe Gauthier’s Evidence?

[319] For several reasons, I do not.

[320] Firstly, the vehicle Gauthier was operating to travel from Ottawa to Timiskaming and back was barely roadworthy. It needed immediate repair upon its acquisition. Gauthier knew that it would require some further, major work in the near future with the replacement of a tie rod. Nevertheless, Gauthier continued to press this vehicle beyond its limits when the warning signs began to manifest themselves.

[321] The wheel alignment for the car was clearly off. It worsened after Gauthier ran over the mud and dirt left on Highway 17 by the tractor which he concluded had crossed the road surface after leaving the field. The maneuvers Gauthier conducted ought to have made that plainly obvious to him. By his own admission, he was testing his vehicle to see if it was breaking down. Yet he persisted in his journey to Ottawa during the early morning hours of July 3, 2018. He could have pulled over especially as he noticed his car was beginning to overheat to the point of exploding. He knew he would be late for work by at least a couple of hours. His insistence upon continuing to drive the vehicle in the state in which it was created a risk which was truly criminal in nature. Gauthier was a veritable accident waiting to happen.

[322] Secondly, I disbelieve Gauthier’s testimony that he felt well rested for his return journey to Ottawa, when he set out shortly after midnight on July 3, 2018. If he were, he would not have needed to stop at the marina in Deep River at 2:30 or 3 AM, where he slept for 2 to 3 hours.

[323] As a result, Gauthier knew he would be late for work. I find that that is exactly why he set his cruise control for 128 km/h in a 90 km/h zone of Highway 17 when he left Deep River to resume his trip. I can infer as well that he did not heed the warning of Sgt. McLeod to slow down. Rather, he continued to drive over the speed limit on his way to Pembroke to refuel, and thereafter, to be less late for work than he otherwise would be.

[324] Thirdly, I reject Gauthier’s evidence that he would only let go of his steering wheel on flat open stretches of Highway 17. This is not what Provost observed. Provost saw Gauthier headed eastbound in the wrong lane of a major highway at one of its intersections.

[325] Fourthly, I do not accept that the hood of Gauthier’s vehicle flew open in the seconds prior to its impact with Van Den Bosch’s. That is not what Eckford witnessed as Gauthier passed him, and when Eckford’s cruise control was set at 101 km/h. Moments earlier, Gauthier had passed a transport truck. I find that Gauthier was looking to use a passing lane intended for westbound travellers as his own to overtake other motorists as he approached the Bruce Street intersection with Highway 17 near Renfrew. In so doing, he crossed a double yellow line and placed himself and others in extreme danger knowing other vehicles might be accelerating towards his, should they use the passing lane for its intended purpose.

[326] Fifthly, I do not believe Gauthier’s testimony that he had no recollection of his interactions with others at the collision scene. Gauthier was able to identify himself when asked in English, not his mother tongue, to do so by Constable Moore. He clearly understood the officer’s question and was able to articulate where he was headed. I accept Eckford’s evidence that Gauthier was going back and forth between Van Den Bosch’s vehicle and Eckford’s vehicle to check on their well-being, or lack thereof. I rely on Mr. Brydges’ testimony that Gauthier tried to talk to him to get information on the severely injured motorist, Van Den Bosch, but that Mr. Brydges was unwilling to provide information to Gauthier, because he did not want the accused to run. I find that Mr. Sucheron accurately described Gauthier as being “frantic” knowing that his conduct had caused the accident.

[327] Sixthly, I find that the amount of cannabis, 51 grams in total, found amongst Gauthier’s belongings at the Renfrew Victoria Hospital was excessive for someone who claims to only smoke the substance three to four times per month.

[328] For these reasons, I must reject Gauthier’s evidence.

Does Gauthier’s Evidence Raise a Reasonable Doubt?

[329] Having rejected Gauthier’s evidence, I find that it cannot and does not raise a reasonable doubt in my mind.

On the basis of the evidence accepted by me as trier of fact, am I convinced beyond a reasonable doubt that Gauthier is guilty of either dangerous driving causing bodily harm, or impaired driving causing bodily harm, or both?

[330] I am persuaded beyond a reasonable doubt that Gauthier operated his motor vehicle on July 3, 2018 in a manner dangerous to the public and thereby caused bodily harm to Van Den Bosch and Eckford.

[331] I am not so convinced that Gauthier operated his motor vehicle that fateful day while his ability to do so was impaired by drug even to a slight degree.

[332] I shall explain why I have arrived at these conclusions in greater depth below.

Dangerous driving causing bodily harm

[333] I find that the evidence of Provost was most compelling. His testimony, which I accept in its totality, makes out all elements of the offence of dangerous driving causing bodily harm.

[334] Provost witnessed an older model Nissan vehicle, goldish brown in colour, travelling in the wrong lane on Highway 17 at its intersection with Foresters Falls Road. He believed, without any form of embellishment or exaggeration in my view, that if the nose of his vehicle had protruded six feet further into the intersection, it would have been clipped by the Nissan.

[335] Later, he saw the Nissan swerving from side to side on the highway, and travelling at speeds up to 110 km/h.

[336] Provost was able to assess the manner of driving by the operator of the Nissan over “quite a stretch” between the Village of Cobden and the Bruce Street exit off Highway 17 into the Town of Renfrew.

[337] Provost was aghast at what was unfolding before his eyes. He had to calm himself before calling 911. Unfortunately, by the time he did so, it was too late. He watched the Nissan over the course of roughly 10 minutes. He acknowledged that he lost sight of it for approximately one minute after it passed a transport truck. It was within that one minute, or very shortly thereafter, that the Nissan caused a multi-car collision.

[338] Provost was close enough to the point of impact between the Nissan and the white Subaru, and thereafter in quick succession, the collision involving the grey GMC Sierra and the Subaru, that his own vehicle was struck by debris.

[339] Provost watched a fellow, Gauthier, who spoke French, emerge from the Nissan.

[340] Provost was familiar with that area of Highway 17 between Cobden and Renfrew. He had been commuting between Cobden and Ottawa for almost a decade before July 3, 2018. He knew that portion of the highway to be travelled by a significant number of commuters during work days. He acknowledged that traffic was not “that busy” on the morning in question; however, traffic was picking up.

[341] Provost confirmed that the sun was coming up, and depending on the contour of the highway, it could be in the eyes of an eastbound motorist. Importantly, he did not offer that the rising sun could have been a contributing factor to the cause of the accident.

[342] Provost’s evidence described what is every motorist’s nightmare. Gauthier was “all over” the road. He was crossing the lanes of traffic from left to right, and back again. Mr. Zimmerling testified that an oncoming vehicle, which must have been Gauthier’s, swerved half to three-quarters of the way into his westbound lane just prior to its collision with Van Den Bosch’s. Mr. Zimmerling was forced to drive into the right ditch to avoid a collision. I do not accept Gauthier’s attempt at an innocent explanation for this manner of driving. He was not doing maneuvers to check on the mechanical fitness of his car.

[343] I find rather that due to the urgency Gauthier was feeling in trying to get to work on time, or to be less late than he might otherwise be, he chose to drive fast and was checking the roadway for opportunities to overtake vehicles ahead of him. Indeed, he managed to pass a tractor trailer in the moment prior to his impact with the white Subaru driven by Van Den Bosch. He next passed Eckford’s GMC pickup. The collisions involving Gauthier’s, Van Den Bosch’s and Eckford’s vehicles occurred almost immediately thereafter in a lane of traffic where Gauthier was not supposed to be.

[344] Gauthier’s speed at the point immediately prior to collision was, on his own evidence, 125 kms per hour, or 35 kms per hour above the speed limit. His driving was plainly dangerous having regard to all prevailing circumstances at the time Provost had him under observation. The manner in which Gauthier operated his vehicle was hazardous to himself and all users of the highway in his vicinity. He was looking to pass in a lane designed for opposing traffic to overtake slower moving vehicles. To do so would be inherently dangerous. Opposing vehicles would be accelerating toward him. Further, Gauthier would be accelerating toward them.

[345] Unfortunately, Gauthier had not heeded Sgt. McLeod’s warning. He may have slowed down somewhat, but he followed at times too close to Eckford’s vehicle – again an indication of a motorist looking to overtake a vehicle in front of him.

[346] Gauthier persisted in this behaviour even when he knew his vehicle was being pushed to its limits. A reasonable driver in his circumstances would have accepted the reality that he would be late for work. Driving fast was not a viable solution. It would endanger others. It constituted a marked departure from the conduct of a reasonably prudent driver who may have found him or herself in circumstances similar to Gauthier’s.

[347] Gauthier drove in the manner he did trying to make up time because he did not leave his girlfriend’s home in Timiskaming earlier, or he overslept in Deep River, or both. These were the reasons he was driving as quickly and hazardously as he was. Sadly, it led to particularly dire consequences for Van Den Bosch, but those consequences are not my focus. I arrive instead at my finding that Gauthier’s driving was dangerous mainly on the strength of the testimony offered by Provost, and to a lesser extent on the evidence of Eckford, the GMC driver, overtaken by Gauthier seconds before the accident.

[348] Simply put, Provost saw a driver who was all over the road. Eckford saw Gauthier overtake his vehicle while speeding in a lane for motorists approaching in an opposing direction. Those motorists were permitted to use this lane to pass. Gauthier was not.

[349] Nor did Eckford see the hood of Gauthier’s vehicle lift or be in an upright position as it went by his.

[350] Ms. Mask as well saw a sedan ahead of her vehicle, swerving in and out, go into an opposing lane and crash into a white SUV.

[351] Under these circumstances, Gauthier was much more than a dangerous driver. He was a menace to every innocent user of Highway 17 between Cobden and Renfrew. I can very safely infer he was driving quickly and passing other motorists because he was late for work. Indeed, he set his vehicle on cruise control 38 kms per hour above the speed limit after he woke up in Deep River to make up time. He was undeterred by his speeding ticket. He changed his clothes at the traffic stop because he was in such a rush to get to work.

[352] Furthermore, the evidence I accept from Gauthier is that his vehicle was in a state of serious disrepair before the work was done on it to allow him to embark upon a long, return journey to Timiskaming. A tie rod would have to be fixed in the near future. Air had to be added to one of his car’s tires regularly.

[353] Rather than drive his vehicle gingerly to take into account its age and dubious mechanical state, Gauthier drove it hard. A reasonable driver would have foreseen the risk of pressing an aging vehicle to its breaking point. A reasonable driver would not look to pass whichever vehicle was ahead of him or her. Unreasonably and dangerously, Gauthier did.

[354] Upon my review of all evidence surrounding Gauthier’s manner of driving, the conduct he exhibited in the ten minutes or so he was under Provost’s observation pre-collision, and briefly under Eckford’s for a few moments before the collision, attracts penal sanction. To be blunt, I am more than satisfied beyond a reasonable doubt that Gauthier drove dangerously and caused bodily harm to Van Den Bosch and Eckford in so doing.

Impaired driving causing bodily harm

[355] Evidence of methamphetamine and amphetamine use was discovered in the bloodstream of Gauthier shortly after the motor vehicle collision in question. However, the testimony of the Crown’s own expert was fatal to its case in attempting to prove the offences of impaired driving causing bodily harm.

[356] Dr. Mayers’ evidence was clear. His expert opinion was that Gauthier’s driving could have been affected by the use of either methamphetamine or amphetamine or both, but not that it necessarily would have been – even to a slight degree.

[357] The scientific analysis of Gauthier’s blood by Dr. Mayers only disclosed previous use of marijuana. Carboxytetrahydrocannabinol, a THC metabolite only, was detected in the accused’s system – a substance which does have psychoactive impairment effects. Marijuana was therefore a nonfactor in terms of being a drug capable of impairing Gauthier’s ability to operate a motor vehicle at the material time.

[358] Although I need not go further to find that the evidence of drug impairment adduced at Gauthier’s trial falls short of proving his guilt beyond a reasonable doubt, I was also troubled by the observations made by Sgt. McLeod. A trained police officer of some 13 years of experience at the time he stopped Gauthier for speeding, alive to the possibility that this motorist for whom he was issuing a ticket may be impaired by alcohol or drug, saw no signs of such impairment.

[359] While I accept the Crown’s contention that Gauthier could have used methamphetamines or amphetamines between the time of the traffic stop and the collision with Van Den Bosch’s vehicle, I am still left with an absence of evidence from another experienced police officer, Cst. Moore. She saw no signs of impairment by drug or alcohol exhibited in Gauthier’s conduct either at the scene of the accident or thereafter at the hospital. Her decision to proceed with an SFST was borne out of reason to suspect only that Gauthier had been impaired by drug based on what hospital staff told her was found amongst his belongings.

[360] I place no great reliance on the evidence of Cst. Burns, who saw a white powdery substance around the right nostril area of Gauthier. This observation may suggest Gauthier had snorted methamphetamine or amphetamine a short period before he was involved in the collision, but in the face of Dr. Mayers’ expert opinion, this observation of Gauthier made by the officer does not establish that the accused’s ability to operate his motor vehicle was impaired by drug. It does not even come close.

[361] Proof of impairment of one’s ability to operate a motor vehicle while impaired by a drug, even to a slight degree, must still meet the heavy onus of proof beyond a reasonable doubt placed on the Crown to secure a conviction against an accused.

[362] In this case, the totality of the relevant impairment evidence establishes only a possibility that Gauthier’s ability to operate his motor vehicle pre-collision on July 3, 2018 was impaired by drug. As was made clear by Dr. Mayers’ testimony, the effect of methamphetamine and amphetamine use on a person is subject to variability depending on his or her tolerance to the drug. Without individual testing having been performed on Gauthier, it was impossible for Dr. Mayers to say what, if any, effect those drugs had on Gauthier.

[363] Upon a review of the impairment evidence proffered by the Crown, I must acquit Gauthier on the impaired driving causing bodily harm offences.

Conclusion

[364] Having carefully considered the totality of the evidence adduced at Gauthier’s trial, I am satisfied he is guilty of two counts of dangerous driving causing bodily harm.

[365] I find him not guilty on the two counts of impaired operation causing bodily harm.

[366] I wish to thank counsel for their very helpful submissions.

DATED: January 4, 2023

M.G. March, J.