Reasons for Judgment

Court File No.: CR-23-0000038-00
Date: 2025-03-07
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Aysar Younes

Applicant Counsel: Michael Lunski and Monica Rodrigues, for the Crown
Respondent Counsel: R. Craig Bottomley and Alison Shields, for the Accused
Heard: January 20, 21, 22, 23, 27, and 28, 2025

Justice K. Muszynski

I. Overview

[1] On October 3, 2021, a tragic motor vehicle collision on Highway 2 in Trenton resulted in two fatalities. Aysar Younes is charged with two counts of impaired driving/over 80 causing death and two counts of dangerous driving causing death in relation to the collision.

[2] I released two earlier rulings in relation to this case. Ruling #1 relates to a Charter application brought by Mr. Younes to exclude evidence from trial, including: data downloaded from his cell phone; blood test results; medical records; and information downloaded from his vehicle’s data recorder. [1] I allowed Mr. Younes’ application with respect to his cell phone but dismissed his application to exclude information downloaded from his vehicle’s data recorder, blood test results and medical records. Ruling #2 relates to the applications brought by the Crown with respect to the voluntariness of Mr. Younes’ statement to police and the admissibility of other discreditable conduct evidence. [2] The voluntariness of Mr. Younes’ statement to police was ultimately conceded. The Crown’s other discreditable conduct application was dismissed.

[3] During the trial, I gave a bottom-line oral ruling with respect to the admissibility of portions of the evidence of forensic toxicologist, Cara Shepard, with reasons to follow. The reasons are released concurrently to these reasons for judgment under separate cover as Ruling #3. [3]

[4] Although originally scheduled as a judge and jury trial, Mr. Younes re-elected, and the trial proceeded with judge alone.

II. Agreements / Admissions

[5] Date, jurisdiction, and identity are admitted.

[6] It is admitted that Mr. Younes was driving the GMC Yukon XL (the “GMC”) involved in the collision at the material time, that the vehicle was in good working condition, and was owned by Thamer Younes, Mr. Younes’ uncle.

[7] An agreed statement of facts was filed as an exhibit at trial, wherein it is admitted that Rebecca Beatty was the driver of the Nissan Versa, (the “Nissan”), Anastasia Collins was the passenger in the Nissan, and both Ms. Beatty and Ms. Collins were pronounced dead at the scene as a result of the collision.

[8] The continuity of blood samples is admitted from the time they came into police custody.

III. Positions of the Parties

[9] The Crown submits that the fatal collision occurred after the GMC crossed over the centre lines of traffic and collided head-on with the Nissan. The mechanics of the collision are not seriously challenged by Mr. Younes.

[10] With respect to the impaired driving/over 80 causing death counts, the Crown relies heavily on lab results that conclude Mr. Younes’ blood alcohol concentration (“BAC”) exceeded the legal limit, and the conclusion of the forensic toxicologist that Mr. Younes would have been impaired to drive a motor vehicle given those results. Mr. Younes submits that the Crown has not proven continuity of the blood samples and that I should have concerns about whether the blood tested belonged to Mr. Younes and/or whether there was any contamination that could have skewed the results. The Crown takes the position that the laboratory results are reliable as standard practice was followed and any suggestion of a mix-up or contamination does not have an air of reality and cannot result in reasonable doubt.

[11] As it relates to the dangerous driving counts, the main point of contention is whether the Crown can prove the mens rea component of the offence and establish that Mr. Younes’ driving was a marked departure as opposed to a momentary lapse in attention, which is not worthy of criminal sanction.

IV. Factual Findings and Conclusions

1. The Collision

(a) Lay Witnesses

[12] Witnesses testified that on Sunday, October 3, 2021 they observed a beige GMC Yukon driving in a westbound direction on Highway 2 near the RCAF Road in Trenton, when it drifted over the centre lines into eastbound traffic, colliding with a black Nissan Versa.

[13] The portion of Highway 2 where the collision occurred passes through Canadian Forces Base (CFB) Trenton. There is no dispute that in and around this location, Highway 2 is comprised of two westbound lanes and two eastbound lanes that are separated by two solid, double yellow centre lines but not otherwise by a dividing median. The centre lines are spaced 1.23 metres apart.

[14] Courtney Andrews testified that she was driving in the left, westbound lane of Highway 2 and heading towards the Metro store in Trenton where she was scheduled to work a shift commencing at 12:30 p.m. Ms. Andrews testified that the weather was gloomy, and it may have just rained. As she was approaching CFB Trenton, at approximately 12:25 p.m., she noticed a large, beige SUV that was travelling in the same lane approximately 100 ft. ahead of her, merge slowly into the left, eastbound lane of traffic and collide with a smaller vehicle that was travelling in the opposite direction. According to Ms. Andrews, before the beige SUV merged into oncoming traffic, she did not notice anything out of the ordinary about how it was being driven. Ms. Andrews travels this road often and confirmed that the speed limit had been 80 km/hr until shortly before the collision location, when it reduced to 60 km/hr. She estimates that she was travelling between 70-80 km/hr and testified that the SUV was going a similar speed. Ms. Andrews does not recall seeing the SUV attempt to steer away from the smaller vehicle or brake.

[15] Robert Radway was driving from Belleville to Trenton in the right, westbound lane of Highway 2 in and around the location of RCAF Road. He was moving houses and was driving a red, Dodge Ram pickup truck with a box trailer attached to the back. Mr. Radway was shown six video clips obtained from CCTV cameras at CFB Trenton that recorded footage of vehicular traffic along Highway 2 leading up to the collision location. Mr. Radway identified his vehicle and the SUV that he testified was involved in the collision. Although he originally believed that he was travelling at the same speed as the SUV, from reviewing the video footage, Mr. Radway observed that the SUV passed him shortly before the location of the collision. Mr. Radway estimates that he was driving at between 60-70 km/hr. His estimate is based on his normal practice to not drive any faster than 10 km/hr over the speed limit.

[16] At trial, Mr. Radway could not recall observing the collision but testified that he remembered seeing debris go up in the air and a westbound SUV roll over into the eastbound lane. The Crown applied pursuant to s. 9(2) of the Canada Evidence Act to cross-examine Mr. Radway about an inconsistency between his trial evidence, that he could not recall observing the collision, and his statement to police. There was no opposition by the defence. On cross-examination by the Crown, Mr. Radway reviewed his statement and agreed that he told police that he observed the SUV cross the centre line of traffic. Mr. Radway agreed that if this is what he reported to police, it would have been true. Up until the collision, Mr. Radway did not observe anything exceptional about the way the SUV was being driven.

[17] Paulo Martins and Angela Fox-Martins were driving eastbound on Highway 2 heading to Belleville from Trenton where they had been shopping with their granddaughter, who was in the back seat. Mr. Martins testified that he was driving his 2004 Volvo in the left, eastbound lane directly behind a small, black hatchback. Mr. Martins estimates that he was 150 ft. behind the hatchback when he observed a large SUV, that was travelling in the opposite direction, cross the centre line and collide with the hatchback. He agreed that the collision itself occurred “in the blink of an eye” without the driver of the hatchback having the opportunity to swerve out of the way. Leading up to the collision, Mr. Martins did not observe the hatchback to swerve or make any sudden movements. He estimates that he was driving at 60 km/hr and testified that he believed the hatchback was travelling roughly at the same speed. After the collision, the hatchback was spun around and ended up facing towards the west. The SUV flipped over and ended up on the driver’s side. Mr. Martins was able to bring his vehicle to a complete stop approximately 6 ft. away from the resting position of the hatchback.

[18] Ms. Fox-Martins testified that she had been turning towards her granddaughter in the backseat when she heard her husband yell “hold on”. She turned forwards and observed a big vehicle travelling in the opposite direction, coming towards the car ahead of her and observed the vehicles collide. Leading up to the collision, Ms. Fox-Martins observed the silhouette of the driver of the bigger vehicle, she did not see the driver texting or using a cell phone. Ms. Fox-Martins gave evidence that her husband was able to stop their vehicle approximately 4-5 ft. from the small vehicle that had been hit, which had been spun around and was now facing their direction. She observed the bigger vehicle roll over. Ms. Fox-Martins testified that the bigger vehicle was in the wrong lane.

(b) Police Investigation

[19] P/C Hamilton and P/C Dowling are both Ontario Provincial Police (OPP) officers who were dispatched to respond to the collision at Highway 2 near CFB Trenton. They arrived on the scene together at 12:30 p.m. The evidence of P/C Hamilton and P/C Dowling was consistent in that they testified:

• There were no other first responders at the scene when they arrived;
• They observed that two vehicles had been involved in the collision—a smaller Nissan and a larger SUV;
• The two vehicles were in the eastbound lanes of traffic;
• The SUV was on its side;
• It was lightly raining when they got to the scene and the roadway was wet;
• The road was flat and straight at this location.

[20] P/C McAllister was employed with the OPP and working with the Traffic Incident Management and Enforcement (TIME) team on October 3, 2021. At approximately 12:45 p.m., he received a notification that there had been a collision in Quinte West that he would be required to attend in his role as a technical collision investigator. P/C McAllister arrived at the scene of the collision at 2:13 p.m. He observed that it was overcast, 17˚C, with light drizzle. The road was wet. P/C McAllister testified that his main assignment was to photograph the scene and assist P/C Prent, a technical collision reconstructionist, in carrying out his investigation.

[21] P/C McAllister observed that both vehicles involved in the collision were still in their final resting positions in the eastbound lanes of Highway 2. The Nissan was pointing in a westerly direction and had severe front-end damage. The SUV was a GMC Yukon. It also had heavy front-end damage and was laying on the driver’s side and facing in a south easterly direction. P/C McAllister was also involved in assisting P/C Prent in removing the airbag control modules (ACMs) for both vehicles.

(c) Expert Opinion of P/C J. Chris Prent

[22] The Crown called P/C Prent, a technical collision reconstructionist with the OPP, to give opinion evidence in the area of collision investigation and reconstruction. P/C Prent has been an officer with the OPP since 1992 and has been a level 4 collision reconstructionist since 2005. P/C Prent has been qualified by this court, and others, on numerous occasions to testify and provide opinion evidence in relation to collision reconstruction. Mr. Younes accepts that P/C Prent is qualified to give opinion evidence on collision investigation and reconstruction. I agree and find that P/C Prent is qualified to give opinion evidence as described.

[23] The evidence of P/C Prent focused on the following areas: observations about the roadway and vehicles generally; location of the vehicles at impact; analysis of ACM data; driver perception/response time; and overall conclusions.

[24] In forming his opinion, P/C Prent considered measurements he took at the collision scene, observations he made about the physical damage to the vehicles, electronic data collected from the ACMs of each vehicle, his notes, and photographs of the collision scene. He did not consider witness statements in reaching his conclusions.

(i) General Observations

[25] P/C Prent’s involvement in this investigation started at 12:45 p.m. when he was alerted that he would be needed at the scene of a collision. He arrived at the collision scene at approximately 2:00 p.m. The vehicles involved in the collision, the GMC and the Nissan, were in their resting positions in the eastbound lanes of traffic on Highway 2. Specifically, P/C Prent testified that the Nissan was in the right, eastbound lane facing westbound. The GMC was partially in the right, eastbound lane and partially in the left, eastbound lane. The GMC had come to rest, pointing in a southeast direction, laying on the driver’s side.

[26] The speed limit on Highway 2 reduces from 80 km/hr to 60 km/hr through CFB Trenton. For westbound vehicles, there is a traffic sign 1.8 km west of the collision scene alerting drivers to a speed change to 60 km/hr up ahead. At 1.3 km west of the collision scene, there is a traffic sign alerting drivers that the speed limit is 60 km/hr.

[27] P/C Prent testified about the conditions of the roadway at the collision location. He noted the presence of two eastbound lanes, separated by a white, dashed line, and two westbound lanes, separated by a white, dashed line. Separating the eastbound and westbound lanes of traffic are two yellow, solid lines that are 1.23 meters apart. On either side of Highway 2, there are raised concrete curbs, small strips of grass, and chain-linked fences. The roadway is straight and level at this location. The condition was described by P/C Prent as being good with no concerns with respect to hazards or with visibility of lane markings. When P/C Prent arrived at the scene, he observed the roadway to be wet or damp due to rain.

[28] After examining both vehicles, P/C Prent concluded that the tires of both vehicles were in good condition and of appropriate size. Further, he was able to observe that seatbelts had been used by the driver of the GMC and both occupants of the Nissan.

(ii) Location of Vehicles at Impact

[29] In reaching his conclusion on the location on the roadway of the initial impact between the two vehicles, P/C Prent examined the collision scene, including the final resting place of the vehicles, markings on the roadway, and the debris field. P/C Prent explained that there is a moment of “maximum engagement” where vehicles will contact one another. When this occurs, it tends to leave scrapings on the roadway. In this case, P/C Prent observed rust transfer from the undercarriage of the Nissan where it was compressed down on the pavement. He also observed evidence of vehicular fluids on the roadway, which typically occurs due to the explosion of reservoirs at impact as well as the debris field. He observed components of the Nissan that travelled in an eastbound direction and components of the GMC that travelled in a westbound direction.

[30] P/C Prent did not observe tire marks on the roadway that would be consistent with braking pre-collision but did observe tire markings associated with wheels rotating and sliding post-collision. With the GMC specifically, P/C Prent testified that a rim gauge on the roadway post-impact indicates that the GMC would have rotated counterclockwise, “tripped” and then rolled over before finally resting on the driver’s side.

[31] P/C Prent concludes that the collision took place in the left, eastbound lane of Highway 2.

(iii) Analysis of ACM Data

[32] P/C Prent testified that ACMs are installed in modern vehicles to control the deployment of airbag and seat belt components. If there is a sudden deceleration event, the ACM will start recording data to decide whether it reaches a level of severity that it justifies deployment of an airbag. This decision will include an internal analysis of factors including vehicle speed, engine speed, automatic brakes systems, and transmission. Following a deployment event, the data recorded by a vehicle’s ACM can be downloaded. The decision-making event (i.e., the decision to deploy an airbag) occurs when a situation arises that reaches the level of severity that deployment is justified (i.e., a collision). In this case, airbags in both vehicles deployed. P/C Prent removed the ACMs of each vehicle, downloaded, and analyzed the data.

[33] With respect to the Nissan, the ACM recorded five seconds of data prior to the decision-making event. P/C Prent testified that the extracted data confirms the following about the actions of the Nissan leading up to the collision:

• At 5 seconds before the decision-making event, the Nissan was travelling at 71 km/hr, the accelerator pedal position was at 14%, the brake switch was off, and the steering wheel position was at -2 degrees, which is basically straight.
• At 4 seconds before the decision-making event, the Nissan was travelling at 71 km/hr, the accelerator pedal position was at 12.5%, the brake switch was off, and the steering wheel position was at zero degrees, or completely straight.
• At 3 seconds before the decision-making event, the Nissan was travelling at 71 km/hr, the accelerator pedal position was at 8%, the brake switch was off, and the steering wheel position was at zero degrees, or completely straight.
• At 2 seconds before the decision-making event, the Nissan was travelling at 71 km/hr, the accelerator pedal position was at 6.5%, the brake switch was off, and the steering wheel position was at zero degrees, or completely straight.
• At 1 second before the decision-making event, the Nissan was travelling at 70 km/hr, was no longer accelerating, the brake switch was on, and the steering wheel position was at -12 degrees, to the right.
• At 0.5 seconds before the decision-making event, the Nissan was travelling at 55 km/hr, was not accelerating, the brake switch was on, and the steering wheel position was -52 degrees, to the right.
• At the time of the decision-making event, the Nissan was travelling at 54 km/hr, was not accelerating, the brake switch was on, and the steering wheel position was at -34 degrees, to the right.

[34] Further, P/C Prent testified that the impact caused the Nissan to experience a change in velocity from front to rear and from left to right.

[35] Since the GMC is a slightly older model of vehicle, the ACM only recorded data from 2.5 seconds to 0.5 seconds before the decision-making event, which includes the following information:

• At 2.5 seconds before the decision-making event, the GMC was travelling at 98 km/hr, the accelerator pedal position was at 19%, and the brake switch was off.
• At 2 seconds before the decision-making event, the GMC was travelling at 98 km/hr, the accelerator pedal position was at 19%, and the brake switch was off.
• At 1.5 seconds before the decision-making event, the GMC was travelling at 99 km/hr, the accelerator pedal position was at 19%, and the brake switch was off.
• At 1 second before the decision-making event, the GMC was travelling at 99 km/hr, the accelerator pedal position was at 19%, and the brake switch was off.
• At 0.5 seconds before the decision-making event, the GMC was travelling at 99 km/hr, the accelerator pedal position was at 19%, and the brake switch was off.

[36] With respect to velocity, P/C Prent testified that the GMC experienced a reduction in forward motion consistent with a frontal impact and a latitudinal force applied from left to right.

(iv) Driver Perception/Response Time

[37] The time that it takes a person to formulate a response to a problem is called perception response time. It is generally accepted, in the context of collision reconstruction, that a person requires between 1.5-2 seconds to formulate a response to a problem.

[38] In this case, P/C Prent concludes that, the driver of the Nissan started reacting to a situation at 1 second prior to the deployment of the airbags based on the engagement of the brake switch at that time and the steering to the right. Based on the speed of travel, and assuming a hard brake was applied, the Nissan would have required 3.34 seconds to stop the vehicle. The driver of the GMC would have required 4.45 seconds to stop.

(v) Overall Conclusions

[39] Based on his observations of the scene and vehicles, his analysis of the ACM data, and his calculations, P/C Prent concludes:

• The GMC was travelling eastbound on Highway 2 in the left lane, travelling at a speed of 98-99 km/hr in the 2.5 – 0.5 seconds leading up to the collision.
• The Nissan was travelling eastbound on Highway 2 in the left lane, travelling at a speed of 71 km/hr in the 5 – 1.5 seconds leading up to the collision.
• The GMC did not maintain a lane, came across a strip of paved asphalt, separated by two yellow solid lines, and collided with the Nissan in the left, eastbound lane.
• At least up until 0.5 seconds before the collision, there is no indication that the driver of the GMC engaged the brake or reduced the speed of the vehicle.
• At one second before the collision, the driver of the Nissan engaged the brake, reducing the speed of the vehicle and steered to the right.
• The driver of the Nissan did not have adequate time to respond to the threat of a collision before the impact occurred.

(d) Analysis and Conclusion, Mechanics of the Collision

[40] As noted previously, Mr. Younes did not seriously challenge how or where the collision occurred.

[41] I find that the collision took place at 12:25 p.m. In reaching this conclusion, I accept the evidence of Ms. Andrews that the collision occurred shortly before her 12:30 p.m. shift. This timing is also consistent with the calls to police and the attendance of police at the scene at 12:30 p.m. shortly after the collision took place.

[42] The lay witnesses had different vantage points but gave consistent evidence that the collision occurred after the westbound GMC driven by Mr. Younes crossed over the solid yellow lines separating the westbound and eastbound lanes of Highway 2 and into the path of travel of the Nissan, which was travelling in the left eastbound lane. I found the lay witnesses to be credible. They readily admitted when they could not recall a certain fact and did not appear to exaggerate or overstate events.

[43] P/C Prent did not speak to any of the lay witnesses or review their statements but reached the same conclusion based on his expertise and review of the scene. I find the evidence of the lay witnesses and P/C Prent to be consistent, credible, and reliable in this regard. Accordingly, I find that the collision occurred in the left, eastbound lane of Highway 2 after the westbound GMC, driven by Mr. Younes, crossed over the solid yellow lines into the eastbound lane and struck the Nissan.

[44] With respect to the speed of the GMC, Ms. Andrews and Mr. Radway, who were travelling in the same direction as the GMC, testified that prior to crossing the centre lines the GMC appeared to be travelling with the flow of traffic and there was nothing remarkable about the way it was operating. They estimate that they were driving no more than 10 km/hr over the speed limit based on their usual practice and testified that the GMC would have been travelling at roughly the same speed. However, from reviewing the CCTV feed, it is readily observable that in the seconds leading up to the collision, the GMC passed Mr. Radway’s truck. The estimates of speed by the lay witnesses can be contrasted with P/C Prent’s testimony based on his review of the ACM data. According to P/C Prent, in the seconds leading up to the collision, the GMC was travelling at a speed of 98-99 km/hr in an area where the speed limit had recently dropped from 80 km/hr to 60 km/hr.

[45] Based on P/C Prent’s evidence, there is no reason to question the veracity of the ACM data. Further, the Court of Appeal for Ontario has recently confirmed that ACM data is “completely objective” and highly reliable. [5] I do not find Ms. Andrews and Mr. Radway’s evidence to lack credibility with respect to their estimate of the GMC’s speed based on their usual driving habits. Rather, when contrasted with the CCTV video and ACM data, I find their evidence to be less reliable than that of the ACM. To the extent that there is a conflict between the evidence of the lay witnesses and the ACM data, I find the ACM data to be more reliable and find that the GMC was travelling at a speed of 98-99 km/hr, nearly 40 km/hr over the speed limit, immediately before the collision.

[46] The evidence of the lay witnesses is consistent that they did not observe the GMC to brake prior to the collision. This is consistent with the ACM data that did not record any braking activity by the GMC in the seconds leading up to the collision and the absence of tire marks on the roadway. I accept the testimony of the lay witnesses that the GMC drifted or merged over the centre line in the “blink of an eye”. I further accept the evidence of the lay witnesses, that before the GMC drifted out of its lane into oncoming traffic, they did not observe it to be swerving or weaving.

[47] I accept the evidence of P/C Prent based on the ACM data that the Nissan was travelling at 71 km/hr shortly before the collision, and that one second before the crash, the driver of the Nissan activated the brake and steered the vehicle to the right. I accept this as evidence that the driver of the Nissan, Ms. Beatty, was responding to a threat, namely, the GMC entering into her lane. I accept the evidence of P/C Prent with respect to human factors and perception/response time and find that, by the time the GMC came over the centre line there was nothing Ms. Beatty could have done to avoid the crash.

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