Court File and Parties

Court File No.: 12-11230

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Cole Charles Rickett

Preliminary Inquiry before Justice Lloyd Dean

April 4th, 5th and May 9th, 2013

Counsel:

• L. Defoe for the Crown
• P. Ducharme for the Accused

RULING ON COMMITTAL

Introduction

[1] The accused stands charged with one count of impaired operation of a motor vehicle causing death, pursuant to section 255(3) of the Criminal Code ("C.C.") and four counts of impaired operation of a motor vehicle causing bodily harm, pursuant to section 255(2) C.C. He also stands charged with one count of operating a motor vehicle with a blood alcohol level over the legal limit, causing an accident resulting in death, pursuant to section 255(3.1) C.C. and four counts of operating a motor vehicle with a blood alcohol level over the legal limit, resulting in bodily harm, pursuant to section 255(2.1) C.C.

[2] A preliminary hearing was conducted over the course of three days (April 4th, 5th and May 9th, 2013). The Crown called six witnesses and the defence elected not to call any evidence.

Facts

[3] Following is a brief overview of the facts. The accused was operating a motor vehicle southbound on County Rd. 11 when he struck a motor vehicle driven by Suman Dutta. Mr. Dutta had been driving westbound on South Talbot Rd. but rolled on with his wife and three children as passengers in the vehicle. Mr. Dutta had stopped his motor vehicle at the intersection of South Talbot Rd. and County Rd. 11. Upon proceeding into the intersection to continue westbound on South Talbot Rd., his vehicle was struck on the passenger side. The collision resulted in the death of Mr. Dutta's spouse and injuries to his three children and himself.

[4] The intersection of South Talbot Rd. and County Rd. 11 was controlled by a stop sign and an overhead flashing red light for east and westbound traffic. There was an overhead flashing amber light at the intersection for south and northbound traffic on County Rd. 11. The accident occurred at approximately 2:30 PM.

[5] The accused was arrested at the scene for impaired driving as a result of observations made by the first officer on scene. Later, at the hospital, the accused provided samples of his breath. The results of those samples were analysed by a toxicologist. The toxicologist determined the accused's alcohol level in his body at the time of the accident would have been between 160 and 215 mg of alcohol in 100 ml of blood.

[6] An Ontario Provincial Police reconstructionist estimated the accused to be operating his motor vehicle at 86 km/h at the time of impact. The posted speed limit for southbound traffic on County Rd. 11 at that intersection was 80 km/h.

Position of the Parties

[7] For the purposes of the preliminary inquiry, it is conceded by defence that the accused was impaired and his blood alcohol level exceeded the legal limit.

[8] The defence argument centres around the issue of causation. Counsel provided a factum of law on the issue of causation and relies on it to support its position that the Crown has failed to provide sufficient evidence that shows the actions of the accused were a significant contributing factor in the death of Mr. Dutta's wife and the bodily harm suffered by Mr. Dutta and his three children. There are a number of cases cited in the factum which the defence relies on.

[9] It is the Crown's position that at the preliminary inquiry stage the Crown's case is to be taken at its highest. Crown counsel, through written submissions, argues there is sufficient evidence before this court to have the accused stand trial on all counts as they stand, with the exception of counts five and ten. On those counts the Crown seeks committal on the lesser and included offences of operation of a motor vehicle while impaired and exceeding 80 mg of alcohol in 100 ml of blood while operating a motor vehicle.

[10] In its written submissions Crown counsel reviews what she considered to be the sufficient evidence, when viewed in its entirety and taken at its highest, that supports a committal to stand trial. The Crown also made reference to several cases in her written submissions.

The Law

Test for Committal

[11] Section 548(1) C.C. requires me to consider the whole of the evidence in determining whether committal should be ordered.

[12] My role, as a judge at a preliminary inquiry is important, but limited. I do not decide whether the accused is guilty. It is not for me to determine if the evidence would result in a finding of guilt.

[13] The question to be asked by a preliminary inquiry judge under s. 548 C.C. is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty: U.S.A. v. Sheppard, [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424 (S.C.C.), at page 427.

[14] The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, [1986] 1 S.C.R. 802, at pp. 842-43; R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 161. The nature of the judge's task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown's case is based entirely on direct evidence, the judge's task is straightforward. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial as the only conclusion that needs to be reached is whether the evidence is true. Where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence to determine whether a reasonable jury properly instructed could return a verdict of guilty. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does he assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. This task of limited weighing never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, 157 C.C.C. (3d) 21 (S.C.C.). This limited weighing means that inferences to be drawn from circumstantial evidence need not be compelling or even easily drawn in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve. If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. If a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it. Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable: see R. v. Munoz, [2006] O.J. No. 466 (S.C.J.), paras. 21 and 22. The preliminary inquiry is not the proper forum for weighing competing inferences or for selecting from among them. Any doubt as to inferences to be drawn from the evidence must be resolved, at the preliminary inquiry stage, in the Crown's favour. An instructive decision reviewing the law in this regard is provided by Justice C. Hill in R. v. Coke, [1996] O.J. No 808 (S.C.J.).

[15] In summary, if there is sufficient evidence upon which a reasonable jury, properly instructed could convict the preliminary inquiry judge must commit the accused to stand trial. Guilt or innocence is to be determined at trial.

Causation

[16] It is appropriate for me to review some of the leading cases surrounding the issue of causation.

[17] The seminal case of R. v. Smithers, [1977] S.C.J. No. 58 (S.C.C.), in the context of a manslaughter case, expressed causation being proved by the Crown as establishing that the accused's act was a contributing cause of death outside the de minimis range:

The second sub-question raised is whether there was evidence on the basis of which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the death. In answer to this question it may shortly be said that there was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish.

[18] In 2001 the Supreme Court commented on whether the Smithers test was still applicable with respect to causation. In R. v. Nette, 2001 SCC 78, [2001] S.C.J. No. 75 at paragraph 71 the majority ruling delivered by Arbour J. stated:

71 The causation standard expressed in Smithers is still valid and applicable to all forms of homicide. In addition, in the case of first degree murder under s. 231(5) of the Code, Harbottle requires additional instructions, to which I will return. The only potential shortcoming with the Smithers test is not in its substance, but in its articulation. Even though it causes little difficulty for lawyers and judges, the use of Latin expressions and the formulation of the test in the negative are not particularly useful means of conveying an abstract idea to a jury. In order to explain the standard as clearly as possible to the jury, it may be preferable to phrase the standard of causation in positive terms using a phrase such as "significant contributing cause" rather than using expressions phrased in the negative such as "not a trivial cause" or "not insignificant". Latin terms such as "de minimis" are rarely helpful.

[19] In a case involving an impaired driver causing the death of a pedestrian, the Alberta Court of Appeal in the case of R. v. Rhyason, 2006 ABCA 367, [2006] A.J. No. 1498 at paragraph 30 stated:

30 As regards impairment, the test is whether there was some impairment of the ability to drive, and that impairment was caused by the consumption of alcohol. Proof of the impairment of the ability to drive can take the form of behaviour that deviates from normal behaviour: Andrews at para. 29. The test for causation is whether the appellant's impairment is more than a de minimis factor contributing to death: R. v. Smithers, [1978] 1 S.C.R. 506 as applied to impaired driving cases involving death by R. v. Colby, 1989 ABCA 285, 100 A.R. 142 (C.A.).

[20] In the context of a case involving dangerous driving causing death, the Ontario Court of Appeal in R. v. Kippax, [2001] O.J. No. 5494 stated at paras. 21-26:

21 To determine whether a person can be held responsible for causing a particular result, in this case death or bodily harm, we must determine whether the person caused that result not only in fact but also in law: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44.

22 Factual causation involves an inquiry about how the victim died or suffered bodily harm, in a medical, mechanical or physical sense, and an accused's contribution to that result: Nette, at para. 44.

23 Factual causation involves a determination of whether A caused B. The answer to the question of whether A caused B is resolved in a criminal case by the evidence of witnesses, those who testify about facts and others who offer relevant opinions: R. v. Smithers, [1978] 1 S.C.R. 506, at 518. The factual determination of whether A caused B has nothing to do with intention, foresight or risk: Smithers, at p. 518.

24 To prove factual causation, the Crown does not have prove that an accused's conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the death or injuries. The Crown need only prove that an accused's conduct was a significant contributing cause of the death or injuries or, said another way, that the accused's conduct was "at least a contributing cause ... outside the de minimis range": Smithers, at p. 519; Nette, at paras. 70-71; and R. v. Hughes, 2011 BCCA 220, 305 B.C.A.C. 112, at paras. 56 and 64.

25 Factual causation, as the term itself would indicate, is a question of fact, reviewable only in accordance with a standard of palpable and overriding error: Hughes, at para. 65; and R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18.

26 Legal causation, on the other hand, has to do with whether an accused should be held responsible in law for a prohibited consequence of his or her conduct, for example, death or bodily harm: Nette, at para. 45. In legal causation, the inquiry is directed at the question of whether an accused should be held criminally responsible for the consequences that occurred: Nette, at para. 45; R. v. Shilon, 240 C.C.C. (3d) 401 (Ont. C.A.), at para. 32. In the analysis of legal causation in negligence-based offences, like dangerous driving, reasonable foreseeability of harm is a relevant consideration: Shilon, at para. 33.

[21] Combining the test that must be met by the Crown at the preliminary inquiry stage with the burden on the Crown with respect to causation, in the case at bar the issue before me is whether there is some evidence upon which a reasonable jury properly instructed could find that the accused's conduct was a significant contributing cause of the death and/or injuries suffered by members of the Dutta family.

Relevant Facts to the Issue Before the Court

[22] As stated earlier, for the purposes of the preliminary inquiry it is conceded by defence counsel that the accused was impaired and his blood alcohol level exceeded the legal limit.

[23] With regards to the symptoms of impairment, the arresting officer, Officer Whitelaw, observed the accused moving slowly when he was removing his wallet from his pants. That was peculiar to the officer. The officer indicated the accused stared past him, "a 1,000 yard stare", during their interactions. The officer asked the accused if he was okay and the accused responded he was. The officer observed the accused to have red and glossy eyes, an odour of alcohol on his breath, unsteadiness on his feet and was swaying side to side. Officer Whitelaw gave evidence that the roads were dry and it was a clear day.

[24] A toxicologist testified the accused blood alcohol level at the time of the accident as being 160 to 215 mg of alcohol in 100 ml of blood. The toxicologist in his affidavit, filed as an exhibit, gave his opinion that impairment with respect to driving becomes significant at 50 mg/100 ml and increases from then onward. The opinion was based on a critical review of the relevant scientific literature. He testified that driving is a complex task that requires a number of essential faculties, both mental and physical, in order to operate a motor vehicle safely. They can include factors such as divided attention, choice reaction time, decision making, judgement and perception of speed and distance, alertness and coordination, vigilance, etc.

[25] For the purposes of the preliminary, Constable Bortolon of the Ontario Provincial Police was, on consent, qualified as an expert in the area of accident reconstruction. His report was filed as an exhibit.

[26] Constable Bortolon's report stated the area of the accident was a posted 80 km/h zone. Constable Bortolon determined the speed of the accused vehicle to be 86 km/h at the time of impact. There was a flashing amber traffic signal for southbound traffic on County Rd. 11 above the intersection at County Rd. 11 and South Talbot Rd. The accused was driving southbound on County Rd. 11 towards that intersection at the time of the accident. The officer testified there were some obstructions at the intersection that made it difficult for traffic heading southbound approaching that intersection to see vehicles stopped at the stop sign on South Talbot waiting to proceed westbound through the intersection. He did not observe any signs on the roadway of any type of emergency braking, steering or accelerating marks by either of the involved vehicles prior to impact. He testified there was definitely no major evasive action taken by either vehicle. He indicated that if the accused had made some type of emergency steering or braking prior to the collision, marks likely would have been left on the roadway.

[27] Constable Bortolon testified the average person has a 1.5 second perception reaction delay, meaning it takes an average person 1.5 seconds to perceive something as a hazard. That is to say, to realise something is in front of you and to do something to avoid it, whether it be to steer or start to brake. He gave evidence to skid a vehicle travelling 86 km/h to a stopped position takes three seconds. Therefore, he testified, that gives you 4.5 seconds to stop the vehicle to avoid the hazard. He conducted several test scenarios based on the information observed at the scene, including the setup of the intersection. In one of the scenarios he estimated there to have been a 5.28 second time frame and if that was the case the driver of the pickup may have been able to stop his vehicle before hitting the other vehicle. The officer further testified that if the accused had just over three seconds (3.04) to stop his vehicle, it's quite possible to steer to avoid something within a three second time line.

[28] The officer indicated in his testimony that there are several factors that could affect how the scenario plays itself out, such as the severity (how hard) the brakes are applied, whether the brakes were working properly, the type of braking system, the severity of any corrective steering and it also depends on the person and how they are reacting at the time. It was Constable Bortolon's opinion that the accused could not have avoided the collision with emergency braking. There was no evidence given by the officer regarding whether the accused had applied his brakes before impact or whether the severity of the impact would have been lessened.

[29] With respect to the flashing amber light at the intersection, Officer Whitelaw testified to him that means to slow down.

[30] Mr. Dutta testified that he had stopped at the stop sign on South Talbot Rd. When he looked to the north he saw vehicles travelling south, but they were off in the distance. He then proceeded into the intersection and was struck by the accused vehicle, only seeing it perhaps a split second before impact.

Conclusion

[31] When applying the law with respect to the test for committal and the law regarding causation to the evidence heard at the preliminary inquiry, I am satisfied the Crown has produced sufficient evidence that the accused impairment by alcohol and/or having alcohol in his body in excess of the legal limit was a contributing cause, more than de minimis, to the death and bodily harm suffered by the victims. Put another way, I am satisfied the Crown has produced sufficient evidence that a reasonable jury properly instructed could find that the accused impairment and/or alcohol level were a significant contributing factor to the death and injuries suffered by the victims. For example, a reasonable jury properly instructed could find that the accused impairment and/or alcohol level caused him to not keep a proper lookout, to him not approaching the intersection appropriately given the flashing amber light or to him not taking any evasive action at all such as applying the brakes or steering to avoid the collision, thereby significantly contributing to the death and/or injuries suffered.

[32] The accused will be committed to stand trial on all counts as charged, with the exception of counts five and ten. On count five he will be committed to stand trial on the offence of impaired driving contrary to s. 253(a) C.C. and on count ten of exceeding the legal limit of alcohol in his body while operating a motor vehicle contrary to s. 253(b) C.C.

Dated: July 15, 2013

Justice Lloyd Dean