Court of Appeal for Ontario

Date: November 10, 2025

Docket: COA-22-CR-0056

Judges: Paciocco, George and Wilson JJ.A.

Between

His Majesty the King Respondent

and

Keith Wheeler Appellant

Counsel:

• Michelle Psutka, for the appellant
• Luke Schwalm, for the respondent

Heard: May 14, 2025

On appeal from the convictions entered by Justice Brian W. Abrams of the Superior Court of Justice, on March 16, 2022.

Paciocco J.A.:

I. OVERVIEW

[1] On September 29, 2018, Ms. Jennifer Stansel died after her Kawasaki all-terrain vehicle ("ATV") flipped on a rural two-lane lakeside road. The engine of her ATV was inoperable at the time, and her partner, the appellant, Mr. Keith Wheeler, was using his Arctic Cat ATV to tow her ATV while she steered and operated its brakes. As the result of her death, police charged Mr. Wheeler criminally. His trial took place before a judge sitting alone.

[2] Five witnesses testified at Mr. Wheeler's trial: two police officers who initially responded to the accident scene; one police officer who interacted with Mr. Wheeler at the station; one police officer who was a collision reconstructionist and qualified as an expert (Cst. Steve Roy); and one independent civilian who witnessed the accident and observed Mr. Wheeler's conduct after it occurred (Mr. Daniel D'Aoust).

[3] Based on this evidence, the trial judge convicted Mr. Wheeler of both impaired driving causing death and criminal negligence causing death. Mr. Wheeler appeals both of his convictions, seeking an acquittal on the latter charge and a new trial on the impaired driving causing death charge, where impairment would not be in issue. He also appealed his five-year sentence but did not pursue his sentencing appeal, which I would dismiss as abandoned. I would also dismiss the conviction appeals for the following reasons.

II. THE ACCIDENT AND THE CONVICTIONS

[4] Mr. Wheeler used a fabric sling as a tow strap when towing Ms. Stansel's ATV. It measured 1.76 metres, or about 5 feet, 9 inches in length. Mr. Wheeler did not contest that the accident occurred when the tow strap became caught by the right rear tire of his ATV after he drifted approximately five feet to the left, while Ms. Stansel maintained her path forward. This created an "offset" between the two ATVs, such that Ms. Stansel's ATV was no longer directly behind Mr. Wheeler's ATV and was instead behind and to the right. In a finding not challenged on appeal, the trial judge concluded that Mr. Wheeler's drift to the left caused the two ATVs to become misaligned, which led to the tow strap getting caught. When this occurred, Ms. Stansel's ATV was drawn quickly into Mr. Wheeler's ATV, causing her right front tire to collide with his right rear tire, flipping her ATV, and leading to her fatal injuries.

[5] While Ms. Stansel lay on the roadway, Mr. D'Aoust heard Mr. Wheeler say, "we didn't drink that much" and "fucking alcohol" before retrieving a mostly empty bottle of liquor and beer bottles from the storage compartment of his ATV and throwing them in the lake. The police witnesses observed Mr. Wheeler exhibiting various signs of impairment shortly after the accident.

[6] The trial judge concluded that Mr. Wheeler's ability to operate the ATV was impaired by alcohol. He also found that Mr. Wheeler's driving was a marked and substantial departure from the standard of a reasonable driver in the circumstances and was therefore criminally negligent. Since Mr. Wheeler's driving and intoxication were significant contributing causes to Ms. Stansel's death, causation was proven and the convictions now under appeal followed.

III. THE ISSUES

[7] I would state Mr. Wheeler's grounds of appeal as follows and approach them in the following order. The first three grounds of appeal apply to both convictions under appeal, the fourth only to the criminal negligence causing death conviction:

A. Did the trial judge err in finding the tow setup to be inherently dangerous?

B. Did the trial judge misapprehend the evidence in finding that Mr. Wheeler was driving with a lack of caution and in assessing his driving conduct?

C. Did the trial judge err in finding that causation was established?

D. Did the trial judge err in finding a marked and substantial departure, to support the criminal negligence finding?

[8] Notably, Mr. Wheeler does not take issue on appeal with the trial judge's finding that his ability to operate the ATV was impaired by alcohol. However, during submissions, his counsel stressed the trial judge's finding "that the Crown has proven a degree of impairment that meets the de minimis threshold". I do not take this as a finding by the trial judge that Mr. Wheeler's impairment was minimal. The trial judge was simply expressing the view that the definition of impairment identified in R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), at p. 95, aff'd, [1994] 2 S.C.R. 478, which he had earlier cited, had been satisfied.

[9] Indeed, the trial judge commented explicitly, "I find that the accused was impaired beyond the de minimis threshold." Although he did not specify Mr. Wheeler's degree of impairment beyond expressing this conclusion, he found that Mr. Wheeler had an odour of alcohol on his breath, was unsteady on his feet, shuffled when he walked, had an abnormal gait, and that his eyes were watery and glassy to "some degree". It is also evident from his decision that he found that the impairment contributed to Mr. Wheeler's lack of concentration and to the ATV veering left, findings that I will address below. It is obvious from the trial judge's factual findings that he did not find Mr. Wheeler's impairment to be de minimis. Mr. Wheeler's ability to operate the ATV was impaired, and he should not have been driving, let alone towing another vehicle. It was in this context that the tragic accident occurred.

IV. ANALYSIS

A. DID THE TRIAL JUDGE ERR IN FINDING THE TOW SETUP TO BE INHERENTLY DANGEROUS?

[10] The degree of inherent dangerousness in the activity that Mr. Wheeler undertook is relevant to the degree of negligence his conduct showed, to the issue of his impairment, and to the question of causation. It therefore bears on both charges under appeal.

[11] During oral submissions on appeal Mr. Wheeler conceded that towing a disabled ATV is an inherently risky activity. However, he maintained the submission made in his appeal factum that "the trial judge erred in finding that the tow setup was inherently dangerous." His point, of course, is that the trial judge's "erroneous" conclusion that the tow setup was inherently dangerous exaggerated the degree of risk that he had undertaken. Mr. Wheeler also argued, relatedly, that the trial judge erred in treating his decision to use such an inherently risky tow setup as evidence of impairment. Since Mr. Wheeler is not appealing the trial judge's finding that he was impaired, this latter point is material only to the extent it may bear on the question of whether his impairment was a significant contributing cause of Ms. Stansel's death. I will therefore address this latter submission when addressing his "causation" ground of appeal, below. Here, I will address only the former submission, that the trial judge's finding that the tow setup was inherently dangerous was arrived at in error.

[12] Mr. Wheeler raises three objections to this finding. He argues that the trial judge: (1) erred in finding that Cst. Roy was not qualified to provide opinion evidence about the tow setup; (2) materially misapprehended Cst. Roy's testimony; and (3) erred in law by relying upon and preferring inadmissible lay opinion evidence of Mr. D'Aoust that the tow strap was too short. I find none of these submissions to be persuasive. I will begin by describing the material facts relating to these grounds of appeal.

The Material Evidence and the Trial Judge's Reasoning

[13] Mr. D'Aoust was standing on a bridge watching three men fish below when he noticed the ATVs approaching the bridge from his left. He "didn't pay them no mind" until he heard Mr. Wheeler yell as Mr. Wheeler was passing an estimated 10 to 12 feet behind him. In describing his observations, Mr. D'Aoust commented that the tow strap was "pretty short" or a "short tow strap" which he estimated to be six to seven feet in length. After Mr. D'Aoust narrated events he had witnessed, the Crown asked him about his experience with ATVs. Mr. D'Aoust explained that he had belonged to an ATV club for over ten years. After further prompting by the Crown, he testified that he has both towed ATVs and been towed by them in his ATV, and he said, "every time we tow people, we – I had a – a 25-foot tow-rope … so that he – he has a chance in the back to put the brakes on". The Crown then asked Mr. D'Aoust why he would tell the court that Mr. Wheeler's tow strap was short. Mr. D'Aoust said, "because you never know what's going to happen with the guy in the front."

[14] At this juncture, Mr. Wheeler's trial counsel objected, submitting that Mr. D'Aoust was offering an opinion that the rope was "too short for the job" and that a lay witness should not be opining on the "appropriateness of the length of the tow strap" because it is not within the common knowledge of a lay person. The Crown agreed that Mr. D'Aoust was not an expert and submitted that Mr. D'Aoust was not being offered as an expert, but that he is "not just a person in the street" and has "quite specific experience." The Crown further submitted that "the hope or the intention was to perhaps have him apply his experience and knowledge to his impression or interpretation of the scene as it unfolded before him." The trial judge said:

I take this witness' evidence is, "I made an observation, the observation is that the tow strap was shorter than I would have used". I don't accept it for the opinion that as a result it was unsafe. Mr. Weinstein [Mr. Wheeler's trial counsel], you can rest assured that – that I can sort out as between what is a properly qualified opinion evidence versus what is an observation made by the witness based on his own experience are two different things, and that I will apply the proper test when I go through the evidence.

[15] Cst. Roy, also a Crown witness, was formally qualified to give expert evidence. During the voir dire into his expertise, Cst. Roy described himself as a "collision reconstructionist" and said a reconstructionist's role is to "stick to the – the events leading to and during the collision." When asked for a more detailed indication of the scope of his qualifications, he described tasks related to recording details of the collision scene (e.g., scene photography, scene mapping, roadway drive factors and coefficient of friction values) and the dynamics of the events (e.g., time and distance analysis of vehicle and occupant positioning, causation of vehicle damage, the amount of time that would lapse for someone to react to certain stimuli).

[16] At the end of the voir dire the trial judge qualified Cst. Roy to give expert testimony as a "collision reconstructionist" and said that "the scope of his opinion is framed within the conclusions reached on pages 22 and 23 of the [collision reconstruction report]", which was made an exhibit.

[17] During his examination in chief Cst. Roy described the tow strap, including its length of approximately 5 feet, 9 inches, and explained that the total distance it would permit between the two ATVs was moderately longer, approximately 6 feet, 8 inches, because the tow strap was attached to a protruding winch on Ms. Stansel's ATV. He also said, after prompting by the Crown, that he had operated ATVs throughout his youth. The Crown asked Cst. Roy to comment on the "suitability" of the setup, which the Crown described as "the loop of the strap on the ball end of the Arctic Cat trailer hitch, and the other loop end through the winch hook". Cst. Roy answered by offering his view that the "sling was strong enough, since under all this load, it – it remained fairly intact without tearing or giving way". He then agreed with the proposition that the setup is "doable and/or suitable as long as proper precautions were taken." He explained that precautions were needed "to not let the tow line get snagged or caught by one of the rear wheels, otherwise, this exact scenario could happen". He commented generally that the drivers would have to work together to prevent offsets.

[18] Throughout his testimony Cst. Roy detailed several precautions that he had in mind: (1) the front driver would have to maintain a relatively constant speed with no sudden stops, starts, or steering; (2) the rear driver would have to steer in order to roughly follow the path of the front vehicle and stay relatively parallel to one another; (3) the rear driver would have to apply the brakes as necessary to avoid slack in the tow strap, which must "remain under tension"; and (4) "communication between both drivers to – to make sure that one of them is not caught off guard by a manoeuvre done by the other". He agreed that both drivers must be prudent and attentive during the towing process and that a lapse in attention from either of the two drivers could have caused this collision.

[19] During cross-examination, Cst. Roy reiterated that the tow strap was strong enough to support the weight of the rear ATV and "a sufficient tool for that purpose". He testified that he is not aware of industry standards or suggested safe lengths for tow straps. When it was suggested to him that the tow strap "was not an inappropriate length of sling for this job" he replied, "no, if proper precautions were taken, I would say it would be appropriate, yes". When asked if there was "anything about the tow rig setup that was unsafe or improperly done" he said that depends on "the level of comfort and training of the people using [it]". When asked if he would use a rig like this if he had to tow an ATV, he replied, "Yes. I would have exerted precaution, but had I been – had this been a necessity, I would have – I would have used a tow rig, yes".

[20] During re-examination, Cst. Roy added that he did not have an issue with the tow strap that was used, but he said, "I had issue with the manner at which it was used … with the allowing of the offset or the slack being introduced".

[21] Relying on Cst. Roy's testimony, Mr. Wheeler argued that "there was nothing inherently risky or dangerous in the tow operation that [he] engaged in." The trial judge rejected this submission. In doing so he noted that Cst. Roy was "not qualified to express an opinion on towing, whether in relation to ATVs or otherwise". He then continued:

Further, notwithstanding defence counsel's persistent cross-examination on the point, Constable Roy would only concede that the tow setup was sufficient, which I infer to mean that the tow rope fastened to the trailer hitch of the Arctic Cat and the winch cable clip of the Kawasaki was sufficiently strong enough to enable one ATV to tow the other. Constable Roy would not, in any event of his qualifications concede that the tow setup was appropriate. Further, when I compare the evidence of Constable Roy to the evidence of Mr. D'Aoust on this point, I prefer the latter.

[22] The trial judge then recounted Mr. D'Aoust's experience as an ATV rider and his evidence about the length of tow rope that he always used. After going on to describe the dynamics of the accident, the trial judge offered his explanation for rejecting the defence submission that there was nothing inherently dangerous about the tow setup. He said, with reference to his previous analysis, "bearing all of this in mind, and in response to the defence's submissions that there was nothing inherently dangerous about the tow setup, I find as follows". The first point he identified was "ATVs are capable of towing and being towed with, as Mr. D'Aoust testified, a tow rope that is of sufficient length to allow the operator of the ATV being towed to brake appropriately." He then found that the tow strap that Mr. Wheeler used was not of sufficient length to allow Ms. Stansel time to brake appropriately, to maintain a safe distance once the tow strap was caught by Mr. Wheeler's tire, or to safely avoid an offset once Mr. Wheeler moved to the left.

Did the Trial Judge Err in His Treatment of this Evidence?

1. Did the trial judge err in finding that Cst. Roy was not qualified to provide opinion evidence about the tow setup?

[23] Expert witnesses must have requisite knowledge and expertise in respect of the matters they undertake to testify: R. v. Mohan, [1994] 2 S.C.R. 9, at p. 25. Mr. Wheeler argues that Cst. Roy was clearly qualified to offer an expert opinion on the sufficiency of the tow setup and the trial judge erred in finding otherwise. Indeed, he submits that after the voir dire the trial judge made a finding that Cst. Roy was qualified to give such evidence by directing that the "scope of his opinion" was to be "framed within the conclusions reached on pages 22 and 23 of the [collision reconstruction report]", which were inherently all about the tow strap. Mr. Wheeler argues that the finding in the reasons for decision that Cst. Roy was not qualified to give this evidence is an error because it is inconsistent with the earlier voir dire ruling and contrary to the evidence.

[24] I disagree with these submissions. First, no effort was made to qualify Cst. Roy to give expert evidence relating to the sufficiency of the tow setup. As I described in para. 15 above, Cst. Roy asserted expertise as a "collision reconstructionist" relating to recording the details of the collision scene and analysing and describing the dynamics of the event. He was qualified to describe the role that the tow setup played in the accident, but he never suggested that he could opine on the suitability of the tow setup itself.

[25] I also disagree with the submission that the trial judge qualified Cst. Roy during his voir dire ruling to give opinion evidence about the sufficiency and safety of the tow setup. In pp. 22 and 23 of the collision reconstruction report, Cst. Roy describes the mechanical role the tow strap played in the collision, but nowhere in those pages did he express an opinion about the suitability or safety of the tow setup. The trial judge's ruling cannot be read as qualifying Cst. Roy to give an expert opinion on this issue.

[26] I therefore reject Mr. Wheeler's submission that Cst. Roy was formally qualified to offer an expert opinion on the suitability of the tow setup.

[27] I also reject Mr. Wheeler's related submission that the decision in R. v. Marquard, [1993] 4 S.C.R. 223, supports this ground of appeal. Marquard stands for the proposition that "[i]n the absence of objection, a technical failure to qualify a witness who clearly has expertise in the area will not mean that the witness's evidence should be struck": Marquard, at p. 244. The Marquard principle addresses whether a decision by a trial judge to admit and rely on expert evidence without having ruled on the expert's qualifications constitutes a legal error. Here the trial judge ruled on the admissibility. The issue at hand is whether the trial judge erred in finding that Cst. Roy was not qualified to give an opinion on the sufficiency of the tow setup. As I have explained, that decision was open to the trial judge on the voir dire evidence.

2. Did the trial judge materially misapprehend Cst. Roy's evidence?

[28] A "misapprehension of evidence" includes "a mistake as to the substance of the evidence, or a failure to give proper effect to evidence": R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538. I agree with Mr. Wheeler that the trial judge was mistaken as to the substance of Cst. Roy's testimony about the suitability of the tow strap. The trial judge took from Cst. Roy's evidence that he would only concede that the tow strap was strong enough for the job. As I described above, Cst. Roy also conceded that the tow strap was "not an inappropriate length of sling for this job" and he said during re-examination that he did not have a problem with the tow setup.

[29] With that said, a misapprehension of evidence will not ground a successful appeal unless it constitutes an error of law or the misapprehension causes a miscarriage of justice by playing "an essential part in the reasoning process resulting in a conviction": Morrissey, at p. 541; see also R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. The misapprehension in this case did not give rise to an error of law and did not play an essential part in the reasoning process. The trial judge made his erroneous statement about Cst. Roy's concession after he had already determined that Cst. Roy was not qualified to give this evidence. It was therefore an alternative basis for rejecting Cst. Roy's evidence as an expert opinion, which did not play an essential part in the reasoning process.

3. Did the trial judge err by admitting, relying upon, and preferring inadmissible lay opinion evidence of Mr. D'Aoust?

[30] Lay witnesses may only testify about facts within their knowledge, observation, and experience: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49. Witnesses are providing opinion evidence when they make inferences from an observed fact: R. v. Abbey, [1982] 2 S.C.R. 24, at p. 42. Opinion evidence by lay witnesses is therefore presumptively inadmissible because it is the trier of fact's responsibility to make inferences from the proven facts: D.D., at para. 49; Abbey, at p. 42.

[31] I am persuaded that Mr. D'Aoust offered opinion evidence when he described the tow strap as "pretty short" and a "short tow strap", which were conclusions he drew from observing the characteristics of the tow strap ("opinions about the length"). He also implicitly communicated his opinion about what he considered to be safe towing practices when he testified about his practice using a 25-foot tow rope to give the rear driver a "chance" to "put the brakes on" and when he explained his practice by saying "because you never know what's going to happen with the guy in the front" ("opinions about safe towing practices"). I will examine these two levels of opinion evidence separately.

a. Opinions about the length

[32] In my view, Mr. D'Aoust's opinions about the length of the tow rope as "short" were admissible. Although the role of lay witnesses is to communicate their factual observations and not their opinions, the limitations of language and the complexity of some observations can make it functionally impossible for a witness to identify or articulate the entire factual basis supporting an observation they have made without resorting to conclusory statements: R. v. Graat, [1982] 2 S.C.R. 819, at pp. 837-38; R. v. K.S., 2019 ONCA 474, at para. 10. Examples include the identification of handwriting, persons, or things; apparent age; the bodily plight or condition of a person; the emotional state of a person; the condition of things; certain questions of value; and estimates of speed and distance: Graat, at p. 835; R. v. H.B., 2016 ONCA 953, 345 C.C.C. (3d) 206, at para. 69. As Dickson J. (as he then was) explained in Graat, at p. 841, lay witnesses can present their relevant, personal observations as opinions where they "are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly". Trial judges therefore have discretion in such cases to admit expressions of lay opinion on this basis, if the probative value of the lay opinion outweighs competing policy considerations: Graat, at pp. 836, 839-40.

[33] I can find no fault in the discretionary decision of the trial judge to permit Mr. D'Aoust to express his observations in the way that he did. Realistically, Mr. D'Aoust, who did not have the opportunity to measure the tow strap, could do no more in describing his factual observations than to estimate its length and describe it qualitatively.

b. Opinions about safe towing practices

[34] In my view, the trial judge did not err in permitting Mr. D'Aoust to describe as a lay witness the care he exercises when involved in towing ATVs, even though by doing so he was by implication disclosing his opinion about what is safe and what is not. As I will explain, a trier of fact can use such testimony as an exemplar of the standards of care observed when engaging in the activity in question, but such testimony cannot be relied upon as proof of which practices are safe and which ones are not. The trial judge did not misuse this evidence.

[35] Since Mr. Wheeler was charged with criminal negligence the trial judge had to determine the standard of care that a reasonably prudent person would observe when towing an ATV, so that he could judge Mr. Wheeler's conduct against that standard: see R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at paras. 21, 38; R. v. Sillars, 2022 ONCA 510, 162 O.R. (3d) 664, at para. 71, leave to appeal refused, [2022] S.C.C.A. No. 431. In R. v. Gardner and Fraser, 2021 NSCA 52, 406 C.C.C. (3d) 156, at para. 73, the Nova Scotia Court of Appeal said the following about the determination of an applicable standard of care:

[T]he content of the standard of care … can be determined … by credible expert opinion evidence or other evidence that permits the trier to draw the necessary inferences. That evidence may include what others do or should do in similar circumstances and any policies or directives relevant to the conduct. [Emphasis added.]

[36] This is not a case that required expert opinion evidence to resolve the standard of care. Expert evidence is needed only where "ordinary people are unlikely to form a correct judgment about [the standard of care] without guidance from an expert": Sillars, at para. 75; see also R. v. Clare, 2013 ONCA 377, at para. 10. Since towing ATVs is not an expert activity, but is engaged in by ordinary people, a witness need not be an expert to provide such evidence.

[37] It is not uncommon for evidence relevant to the applicable standard of care to include first-hand factual testimony by participant witnesses describing the level of care they observe when engaged in such activities and why they would do so. For example, in Sillars the trial judge permitted two participant witnesses with experience in canoeing to comment that they "would not canoe on the Muskoka River in April because of the dangerous water conditions": Sillars, at para. 73. This court considered that testimony in rejecting the suggestion that a finding of criminal negligence was unreasonable: Sillars, at para. 76. In Doering, the accused was allowed to describe how his conduct conformed to his usual practices to show that he had not behaved negligently: Doering, at para. 90.

[38] In my view, Mr. D'Aoust's testimony that he always used a 25-foot tow rope to allow the rear ATV driver a chance to control their speed and to brake was therefore admissible for the permissible purpose of assisting the trial judge in identifying the applicable standard of care, and that is how it was used. When Mr. Wheeler's trial counsel challenged Mr. D'Aoust's testimony as straying into expert opinion evidence, the Crown made clear that it was not offering Mr. D'Aoust's testimony as expert evidence relating to the appropriateness of the length of the tow strap. And the trial judge was equally clear when addressing the same objection that he was receiving this evidence only to confirm Mr. D'Aoust's observation that the tow strap was shorter than what he would have used. He said explicitly that he does not accept Mr. D'Aoust's evidence "for the opinion that as a result it was unsafe".

[39] I accept that there is language in the reasons for judgment that may lead to the suggestion that the trial judge ultimately relied on Mr. D'Aoust's testimony as opinion evidence that Mr. Wheeler's conduct was unsafe, but those reasons must be read in the context of the trial judge's undertaking not to misuse the evidence in precisely this way. Moreover, it is plain in his detailed reasons that the trial judge did not base his conclusion that the tow setup was unsafe on Mr. D'Aoust's opinion, but rather on his own evaluation of the evidence, based primarily on the collision reconstruction evidence that Cst. Roy presented. The trial judge's analysis when rejecting Mr. Wheeler's argument that there was nothing inherently dangerous about the tow setup includes two important considerations: the length of the tow strap used did not practically allow Ms. Stansel to avoid the offset, and once the offset occurred, Ms. Stansel had practically no opportunity to avoid the accident. Both these findings were available to the trial judge based on the admissible expert evidence that Cst. Roy provided about the distances and angles of hypothetical offsets and the time to impact once the tow strap became caught.

[40] Finally, although the point he was offering could have been made more clearly, I would not find error in the trial judge's comment that, "when I compare the evidence of Constable Roy to the evidence of Mr. D'Aoust on this point, I prefer the latter". [1] In my view, when the trial judge said this he was not choosing to defer to one opinion over another relating to the inherent riskiness of the tow setup; instead he was expressing that he accepted Mr. D'Aoust's practice of using a tow strap of sufficient length to allow the rear driver to brake as representing what an ordinary prudent person would do, over Cst. Roy's testimony that he saw nothing inappropriate in the tow setup if proper precautions are taken. In substance, the trial judge was simply saying that he preferred the standard of care Mr. D'Aoust observed to the standard of care that Cst. Roy described. It is noteworthy, in this regard, that Cst. Roy's testimony emphasized the need to observe multiple precautions when using this tow setup, thereby exposing its inherent danger and weakening Cst. Roy's testimony that he would use a similar setup as an exemplar of a prudent standard of care.

[41] For these reasons I reject Mr. Wheeler's submission that the trial judge erred in admitting and relying upon inadmissible opinion evidence, and I find no error in the trial judge's evident conclusion that the tow setup was inherently risky and dangerous. I would deny this ground of appeal.

B. DID THE TRIAL JUDGE MISAPPREHEND THE EVIDENCE IN FINDING THAT MR. WHEELER WAS DRIVING WITH A LACK OF CAUTION AND IN ASSESSING HIS DRIVING CONDUCT?

[42] Mr. Wheeler claims that the trial judge misapprehended the evidence in finding that he drove with a lack of caution. He also argues that the trial judge misapprehended the evidence relating to his manner of driving by not giving proper effect to the evidence. I will address the alleged misapprehensions in turn before concluding that neither "misapprehension" occurred.

1. The lack of caution finding

[43] The trial judge based his conclusion that Mr. Wheeler was driving with a lack of caution in part on his finding that Mr. Wheeler engaged in "unexplained yelling" toward Mr. D'Aoust. Mr. Wheeler argues that the trial judge did not give proper effect to the evidence in coming to this decision, and that he misused evidence about how intently Ms. Stansel was concentrating when they crossed the bridge.

[44] These alleged misapprehensions relate to Mr. D'Aoust's testimony that when the ATVs were crossing the bridge behind him, he heard Mr. Wheeler yell something loudly enough to be heard over the sound the vehicles were making. He testified that when he turned in response, Mr. Wheeler was looking at him and not at Ms. Stansel, while Ms. Stansel was concentrating by holding onto the handlebars of her ATV and looking straight ahead.

[45] The trial judge found there was no explanation for Mr. Wheeler's yelling, and he inferred that this conduct showed a lack of concentration by Mr. Wheeler. He rejected the suggestion that the yell could have been to alert Mr. D'Aoust, as Mr. D'Aoust posed no obstacle to the movement of the ATVs. He also rejected the possibility that Mr. Wheeler may have been communicating with Ms. Stansel when he yelled, because he found this to be inconsistent with the fact that Mr. Wheeler was looking at Mr. D'Aoust and not Ms. Stansel, and with Ms. Stansel's focus on her steering at the time. The trial judge's finding that Mr. Wheeler was yelling rather than concentrating on his driving contributed both to his conclusion that Mr. Wheeler was impaired, and that his impairment caused Ms. Stansel's death. He said:

In my view, the accused's unexplained yelling, when coupled with his apparent lack of concentration, as compared to Ms. Stansel's obvious focus, militates in favour of finding some degree of impairment.

Immediately before making the causation finding, he referred to this finding again, saying:

Instead of concentrating fully on the task at hand, particularly on Ms. Stansel, his focus was elsewhere, as articulated above.

[46] I am not persuaded that the trial judge misapprehended the evidence in finding that Mr. Wheeler was not concentrating fully on the task when towing Ms. Stansel. Although Mr. D'Aoust testified that he did not know whether Mr. Wheeler was yelling at him, it was open to the trial judge to arrive at this conclusion based on Mr. D'Aoust's testimony that Mr. Wheeler was looking at him and not Ms. Stansel after he yelled, and in the absence of any explanation for why Mr. Wheeler would have had to do so.

[47] In support of his challenge to this finding, Mr. Wheeler argued that the trial judge ignored an alternative explanation for the yelling arising from Cst. Roy's testimony that communication between the drivers and shoulder checks by the front driver are precautions required to safely operate this tow setup. I do not agree. First, Cst. Roy was not testifying about what Mr. Wheeler did, but about what a prudent person should do. The fact that a prudent front driver would maintain communication with the rear driver is not evidence that Mr. Wheeler did so. More importantly, the trial judge did not ignore this possibility. He made a different finding that Mr. Wheeler was not communicating with Ms. Stansel based on Mr. D'Aoust's firsthand description of the events.

[48] Mr. Wheeler also argues that the trial judge committed a reasoning error by using Ms. Stansel's concentration as evidence that he was not concentrating. I agree that her level of concentration is not evidence that Mr. Wheeler was not concentrating, but I do not agree that the trial judge engaged in such reasoning. He relied instead on Ms. Stansel's concentration because it was an indication that she and Mr. Wheeler were not communicating when Mr. Wheeler was yelling. Appropriately, the trial judge also relied on her level of concentration to infer that Ms. Stansel made a conscious choice to not follow Mr. Wheeler when he inexplicably moved to the left into the oncoming lane, a point I will return to below. Finally, he contrasted Mr. Wheeler's "apparent lack of concentration" and Ms. Stansel's "obvious focus" when concluding that Mr. Wheeler's demeanour "militates in favour of some degree of impairment". In my view, the comparison between Ms. Stansel's demeanour and Mr. Wheeler's demeanour was unnecessary, and indeed, unhelpful, in finding that Mr. Wheeler's lack of concentration was indicative of his impairment, but I can find no fault in the trial judge's base reasoning. Without question Mr. Wheeler's apparent lack of concentration was evidence available to him as a sign of Mr. Wheeler's impairment, which, in any event, was not contested before us. In my view, the trial judge did not materially misapprehend or misuse this evidence, as Mr. Wheeler alleges.

2. The manner of driving

[49] In convicting Mr. Wheeler, the trial judge relied upon his manner of driving, specifically "mov[ing] from his own lane of travel, a position of safety, into the opposite lane of travel", while approaching a blind corner, thereby permitting the ATVs to fall out of alignment, and taking "Ms. Stansel with him to the scene of the accident". This finding influenced both the marked and substantial departure finding and the causation analysis, both of which I address below. Mr. Wheeler argues, in effect, that the trial judge misapprehended the evidence relating to Mr. Wheeler's driving by failing to consider innocent explanations for the movement of his ATV to the left; inappropriately speculating that Ms. Stansel chose not to follow him; and failing to give proper effect to his overall driving conduct, including his driving before the accident, the speed of the ATVs, and the driving conditions at the time of the collision.

a. The movement of the ATV to the left

[50] Mr. Wheeler emphasized before us that the movement to the left after his ATV left the bridge was gradual – a move that Mr. D'Aoust testified to be about five feet to the left over the course of 15-20 seconds. He also argued that there were innocent explanations for this drift left open on the evidence but that the trial judge failed to properly address them. The first such explanation arose from Mr. D'Aoust's suggestion that Mr. Wheeler may have been attempting to avoid a small ditch that was running along the road. The second explanation, originally proposed by Mr. Wheeler's trial counsel, is that Mr. Wheeler may have moved to the left to check for oncoming traffic around the blind corner. I do not agree that the trial judge failed to consider or unreasonably dismissed these explanations.

[51] First, the failure by the trial judge to consider the first of those explanations is not a basis for concluding that he disregarded this evidence. He may simply have concluded that it was not worth mentioning. Given the problems inherent in this suggestion, that explanation is likely. There was no evidence before the trial judge that the ditch, which Mr. D'Aoust described as shallow and separated from the road by a couple of feet of grass, posed a peril to vehicles which remained in their designated lane. Based on the photographic evidence in the record, the rock cut that Mr. D'Aoust described is either not along the material stretch of road or is insignificant, because it cannot be readily identified. But more importantly, Mr. Wheeler did not make a minor correction. Based on forensic evidence about the location of the collision, the trial judge found that his vehicle drifted into the oncoming lane as it was approaching a curve in the road. This is a movement to the left that clearly went beyond what would be required to avoid the ditch.

[52] The trial judge addressed the second proposed explanation, that Mr. Wheeler may have moved to the left so that he could see around the corner. He made a reasonable determination that was open to him that this suggestion was "bereft of merit". In the trial judge's view, if Mr. Wheeler moved to the left for this reason, it would itself have been an inherently dangerous operation because it would "only invite an accident of a different kind: a head on collision", and any such manoeuvre "would be complicated by the fact that the accused was towing another vehicle".

b. Ms. Stansel's decision not to follow

[53] I do not accept Mr. Wheeler's submission that the trial judge engaged in speculation when inferring that Ms. Stansel chose not to follow Mr. Wheeler as his ATV moved to the left. The trial judge explained his reasoning based on the evidence, which showed that despite how closely she was concentrating, Ms. Stansel stayed in her lane instead of following Mr. Wheeler's ATV to the left. It was open to the trial judge to infer that her choice was deliberate.

[54] In any event, this was not an important finding. Whether Ms. Stansel drove negligently or perfectly is immaterial to whether Mr. Wheeler's conduct was criminally negligent in the circumstances of this case. Given that Mr. Wheeler's negligent conduct arose from his impairment while engaged in an inherently dangerous towing operation without fully concentrating and while permitting his vehicle to drift to the left, there can be no realistic suggestion that Ms. Stansel's driving was an intervening event that would absolve Mr. Wheeler of liability, particularly given his awareness that she too had been drinking. The material point is that he manoeuvred his vehicle to the left when a sober reasonable driver would have been at pains to keep the vehicles in alignment.

c. The pre-accident driving and the driving conditions

[55] I do not agree with the submission that the trial judge failed to give proper effect to Mr. Wheeler's overall driving conduct, including his driving before the accident, the speed of the ATVs, and the driving conditions at the time of the collision. He addressed each of these considerations explicitly.

[56] I agree with the trial judge's conclusion that there was no evidence about how well Mr. Wheeler was driving prior to the events leading up to the accident. Mr. D'Aoust's concession that Mr. Wheeler successfully negotiated a tight turn as he approached the bridge discloses nothing about whether Mr. Wheeler did so with skill and attention, or whether he managed to negotiate that turn despite poor driving.

[57] More importantly, this is not a case where the allegedly negligent conduct could be nothing more than a momentary lapse of attention. As I have explained, the trial judge found that the accident occurred while Mr. Wheeler was engaged in an inherently dangerous towing operation while impaired, after he exhibited a lack of concentration despite the risks involved, and then permitted his vehicle to gradually drift into the oncoming lane while approaching a curve in the road, therefore allowing the ATVs to fall out of alignment. These shortcomings are not ameliorated by the fact that the accident occurred on a dry, low traffic, county road in good lighting.

[58] I would therefore reject this ground of appeal.

C. DID THE TRIAL JUDGE ERR IN FINDING THAT CAUSATION WAS ESTABLISHED?

[59] Mr. Wheeler argued that the trial judge erred with respect to both charges in finding that the Crown proved causation. He linked those arguments to the alleged misapprehensions of evidence that I have identified above relating to the trial judge's findings about Mr. Wheeler's lack of caution and manner of driving. He submits that had the trial judge given proper effect to the evidence, there would have been a reasonable doubt about causation. I have already found that there were no material misapprehensions of the evidence, which undercuts Mr. Wheeler's primary submissions about causation.

[60] As indicated above, Mr. Wheeler also submitted during oral argument that the trial judge erred in finding that engaging in the inherently risky and dangerous towing situation was itself evidence of impairment. I have already made the point that this finding, whether erroneous or not, is immaterial on appeal to the question of impairment because Mr. Wheeler takes no issue on appeal with the finding that his ability to operate the ATV was impaired by alcohol at the time of the accident. I undertook to consider this submission in assessing the causation findings and do so now.

[61] In my view, the trial judge did not err in making this finding. Alcohol impairs not only physical movements, but also judgment. The trial judge was entitled to conclude that Mr. Wheeler's decision to undertake "an inherently risky and dangerous towing situation" despite his alcohol consumption is evidence of his impaired thinking, and hence evidence of impairment, which is how I understand his reasoning.

[62] Moreover, this finding was not central to his causation analysis, even if made erroneously. In R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 28, Karakatsanis J. explained, for the Court, that the standard of causation that applies to the offence of criminal negligence causing death requires that the "dangerous, unlawful acts of the accused [were] a significant contributing cause of the victim's death". The parties agreed, correctly, that the same causation standard applied at the time of Ms. Stansel's death to the offence of impaired driving causing death. [2] That is the standard the trial judge applied. He found that the offset between the vehicles that led to the tow strap becoming caught occurred when Mr. Wheeler drifted to the left, a manoeuvre he found to be indicative of Mr. Wheeler's impairment. That was a logical and available inference. This offset caused the strap to become entangled, the ATVs to collide, and Ms. Stansel's ATV to flip, which led to her death. It necessarily follows that both the negligent drift and Mr. Wheeler's impairment were significant contributing causes of Ms. Stansel's death. This is enough to establish causation for both charges, whether Mr. Wheeler's decision to use the inherently dangerous setup is evidence of impairment or not.

[63] I would therefore reject this ground of appeal.

D. DID THE TRIAL JUDGE ERR IN FINDING A MARKED AND SUBSTANTIAL DEPARTURE, TO SUPPORT THE CRIMINAL NEGLIGENCE FINDING?

[64] Mr. Wheeler argues that the trial judge (1) erred in finding that his conduct was a marked and substantial departure from the standard of a reasonable driver, and (2) provided inadequate reasons on this issue. The first submission is dependent on finding the claimed misapprehensions of the evidence that I have rejected. I need not say more about it.

[65] With respect to the second submission, in my view, the reasons provided were sufficient.

[66] I recognize that the trial judge's discussion under the heading "Criminal Negligence Causing Death" is brief, but understandably so. The parties before him agreed that the two central issues were "impairment" and "causation" and Mr. Wheeler's trial counsel conceded during closing submissions that although Mr. Wheeler's "course change to the left" on its own was insufficient to establish a marked and substantial departure on the authorities, he said: "if you add in impairment, you'll get there." The trial judge found impairment, triggering the concession made.

[67] Mr. Wheeler now argues that this concession is not sufficiently clear to qualify as a formal admission pursuant to the decision in R. v. Rudder, 2023 ONCA 864, 169 O.R. (3d) 561, at paras. 45-46. However, the Rudder decision is about formal factual admissions, not concessions made during submissions by a party relating to whether applicable legal standards are met. Rudder has no application here. Given the position that Mr. Wheeler's trial counsel took in his submissions, the trial judge cannot be faulted for giving less detailed attention to the criminal negligence issue than he otherwise might have.

[68] More importantly, when his reasons for judgment are read in their entirety, the trial judge's reasoning pathway is clear, permitting appellate review, and thereby satisfying the requisite standard: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24-25, 46; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 79. In simple terms, the trial judge found that Mr. Wheeler departed markedly and substantially from the standard of care of a reasonable person when he took an "obvious" and "serious risk" by: (1) operating his ATV to conduct an inherently dangerous towing operation while impaired by alcohol; (2) failing to give this task his full concentration; and (3) "mov[ing] from his own lane of travel, a position of safety, into the opposite lane of travel" while approaching a blind corner, thereby permitting the ATVs to fall out of alignment, and taking "Ms. Stansel with him to the scene of the accident". I do not accept that the reasons were insufficient.

[69] Mr. Wheeler augments this submission by arguing that the trial judge failed to address the degree from which Mr. Wheeler's conduct departed from that of a reasonable driver in the circumstances. He relies on the direction in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30, where the Court emphasized that the distinction between a mere departure from the norm and a marked departure from the norm is a matter of degree, noting that "[t]he trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness" (emphasis in original). This requirement does not mean a trial judge must address this issue explicitly. In my view, so long as it is evident from the reasons, read in the context of the evidence and submissions, that the trial judge assessed the degree of departure and was satisfied that it was markedly beyond mere carelessness, there is no basis for appellate intervention. That is the case here.

[70] In a case where trial counsel effectively conceded that the departure was marked if Mr. Wheeler was found to be impaired, which he was, the trial judge set out the "marked departure" standard, and in the course of his decision identified a series of problematic features of Mr. Wheeler's behaviour, including his engagement in an inherently dangerous towing operation while his ability to operate the ATV was impaired, his lack of caution, and his problematic and dangerous drift to the left. In my view, this is sufficient to satisfy the requirement expressed in Roy.

[71] I would deny this ground of appeal.

V. CONCLUSION

[72] I would dismiss Mr. Wheeler's conviction appeal in its entirety. I would dismiss his sentence appeal as abandoned.

Released: November 10, 2025

"D.M.P."

"David M. Paciocco J.A."

"I agree. J. George J.A."

"I agree. D.A. Wilson J.A."

Footnotes

[1] Given that the trial judge had concluded that Cst. Roy's opinion was not admissible as an expert opinion, he must have been proceeding on the basis that his opinion was nonetheless before him as a lay opinion about what he would do when towing ATVs.

[2] This case was decided before s. 320.14(3) of the Criminal Code, R.S.C. 1985, c. C-46, was enacted. This provision, which does not apply in this case, establishes an arguably lower causation standard in which the causation element for impaired driving causing death is satisfied if the accused causes the death of a person while operating a vehicle, while they are impaired or have excess blood levels: R. v. Kelly, 2025 ONCA 92, 175 O.R. (3d) 577, at para. 31.