COURT FILE No.12-371 : Kemptville, North Grenville Township

DATE: February 21, 2013

Citation: R. v. Gowan, 2013 ONCJ 80

ONTARIO COURT OF JUSTICE

BETWEEN:

Regina

— V —

Robert Gowan

Before Justice of the Peace B. Mackey

Heard on February 5, 2013

Reasons for Judgment released on February 21, 2013

Monica Heine ..................................................................................................... for the prosecution

Paul Jansen ................................................................................... for the defendant Robert Gowan

JUSTICE OF THE PEACE B. Mackey:

[1] This is a Careless Driving trial in the Provincial Offences Court - Kemptville -involving the tragic death of an eighteen year old boy in a designated school bus on June 19, 2012. Neither party disagreed with the Incident Synopsis as noted in the OPP Technical Collision Investigation Report (SP12148355) dated June 19, 2012 at 3:03 P.M. regarding the accident.

[2] The Incident Report noted that: “A blue, 2002 Dodge Caravan, was westbound on County Road #18 driven by a 24 year old female. A grey, 2010 Grand Caravan (school purpose vehicle), driven by an 81 year old male, was approaching eastbound on County Road #18. The grey Caravan encroached into the west lane, striking the blue Caravan in an off-set, frontal collision. The blue Caravan was pushed rearward coming to rest in the north ditch. The grey Caravan came to rest across from both lanes in the middle of the roadway.

[3] An 18 year old male passenger in the school van died as a result of this incident. The student was not wearing a seat belt at the time of the collision.

[4] Shauna Jones was the driver of the blue van in the westbound lane along with her daughter, Raea Burrill. Neither was seriously hurt in the collision.

[5] The driver of the grey (school bus) van Robert Gowan was also not seriously hurt. He had two passengers at the time of the collision: Charles Thompson and Cameron Beauregard (deceased).

[6] The OPP technical report noted that “The collision occurred in an area with a clear, unobstructed view of the roadway for both east and westbound traffic. The area of impact was located in the middle of the westbound lane. I (referring to the OPP officer) identified this area from the gouges and scrapes into the road surface which are indicative of the maximum engagement between the two striking vehicles. The blue Caravan was westbound in the westbound lane. It left two distinct tire marks which slightly angled toward the right gravel shoulder. I identified these tire marks as braking marks. The braking marks end at the area of impact. A fluid trail, several gouges and scratches, lead back to the final rest of the blue Caravan. I thoroughly checked the eastbound lane leading to the area of impact for any tire marks or other pre impact marks from the grey Caravan but there was nothing that could be attributed to this van.”

[7] Miss Jones in the blue van testified in Examination-in-Chief that she noticed the grey van at a distance travelling on the yellow dividing line that frames the middle of the two lane roadway. She indicated that she slowed her vehicle using her brakes and moved over to the right of the lane as the grey school van gradually drifted into her lane. She further indicated slamming on her brakes prior to the collision.

[8] Under Cross Examination, Miss Jones stated that she moved over as far as she could without going into the gravel shoulder running parallel to the asphalt roadway.

[9] Defence counsel questioned Miss Jones on her statement to the police which read, “I saw that he was close to the line so I started slowing down then all of a sudden he was in my lane. I put my brakes on and we collided...” regarding her use of the word “sudden given that she is now referring to the movement as ‘gradual’.” In Re-examination the Crown sought to establish that Miss Jones gave that statement soon after the accident and while at the hospital taking pain medications. This same logic would hold for the defendant.

[10] OPP officer Stewart Unhola, the Technical Collision Investigator, was sworn in as an expert witness. Officer Unhola testified that the only tire skid marks were in the westbound lane and associated with the blue van driven by Miss Jones. There were no physical signs of the grey school van braking prior to the collision. He noted the damage to the blue van was on the driver’s front and side area. Similarly, the main damage to the grey school van was the driver’s front and side consistent with the grey van drifting into the opposing lane, slightly offset.

[11] Electronic data was only available on the grey school van. It confirmed that the grey van’s brakes were applied a split second prior to the accident with a last split second steering wheel change to the right. The grey van’s data records show a change in driving at 0.4 seconds prior to impact.

[12] Of note, the grey school van was using its cruise control. The data indicated otherwise, but also noted no change of 76 kph which confirmed the driver’s evidence. The court accepts the evidence that the cruise control was on at the time prior to the collision.

[13] Officer Unhola confirmed that the blue van’s speed was declining and that the impact of the collision pushed the blue van backward to the final location in the ditch area off the roadway whereas the grey van stopped almost at once as evidenced by the gouge marks.

[14] The driver of the grey school van has been driving for over sixty years including 26 years as a school bus driver.

[15] Mr. Gowan stated in Examination-in-Chief that he picked up three teenage males and dropped one off prior to the collision. He indicated that Mr. Thompson, as always, sat in the front passenger seat and Mr. Beauregard was in the far back row seat of the seven seat van. He said that he “glanced over my shoulder and seen him laying (sic) in the seat behind me.” His evidence is that Mr. Beauregard had moved from the far back seat to the seat (Captain’s chair) behind the driver and was laying in it (which infers activating the position lever to lower the back rest). The defence argument here is that something caught Mr. Gown’s attention; he looked back to his right and saw Mr. Beauregard right behind him. When he looked back at the road he saw two headlights and there was no time for evasive action. The airbags properly activated.

[16] Mr. Thompson was never called as a witness and his comment in the statement to the police in the technical report only notes him looking up from his computer to see the two cars collide.

[17] In Cross Examination, Mr. Gowan noted that Mr. Beauregard picked his own seat and normally moves around. Mr. Gowan said that he did not know when Mr. Beauregard moved seats, but something, a noise of some sort, caught his attention and he “looked in the mirror” and saw him behind him. He then turned his head to look at him seeing him “from the waste up” and “leaning way back.” A further comment was that “something moved that caught my attention.” When he looked back he was in the other lane and the accident happened immediately.

[18] He was questioned regarding his police statement and the change from something in the field to his right catching his attention to looking back at the student. He explained that he was in shock at the hospital. He noted that he could not recall who he spoke to at the time or going to the Kemptville and then the Ottawa hospitals.

[19] Defence counsel also noted that the officer’s evidence showed that a person could take two seconds to react to a situation and that in the case of Miss Jones, in the blue van, adding in the skid marks indicated approximately three seconds from response to the collision.

[20] The Crown referred to the test regarding due care and attention regarding momentary inattention or a simple error of judgement analysis. The prosecutor stated that there is no evidence of the student moving from the far back to the middle seat.

[21] The Crown reiterated that Miss Jones saw the grey van crowding the yellow line and gradually moving into her lane and she responded by slowing her vehicle and moving to the right. It was noted that the accident technical evidence shows some 148 metres between the two cars when Miss Jones reacts.

[22] The Crown essentially argues that Mr. Gowan took his eyes off the road for too long and is therefore guilty based on an extended time of movement into the opposing lane of traffic.

[23] However, Defence counsel notes that the blue van’s skid marks run for only 17.5 metres indicating a rapid decline. Additionally, the blue van, given the 2 second normal response time to such an event, would have travelled approximately 41 to 47 metres at the speed range of 70-80 kph prior to the braking skid marks. The grey van travelling at 76 kph would have travelled with the estimate of 3 to 4 seconds prior to the accident approximately 63 to 85 metres. The separation between the two vans at the point of response by Miss Jones would then be approximately 122 to 149 metres.

[24] The court confirms that, given the viva voce evidence and the submitted written documents at trial that the grey van was travelling at the consistent speed of 76 kph until the very last split second prior to the accident. We also know that the blue van was travelling in the 70 kph to 80 kph range as acknowledged by Miss Jones at the time of first response.

[25] The “Time and Distance Calculations” in Exhibit 2 (a) confirm that the blue van skidded for 17.5 metres from application of the brakes until the point of collision. This distance at the estimated speed of the blue van would take approximately 1 second.

[26] Given that the average driver takes approximately 2 seconds to respond to an event such as this collision, we also know that the total time for the blue van’s response to the point of collision was on average 1 plus 2 for 3 seconds with a potential range of 2.8 to 3.9 seconds.

[27] This would indicate to the court that the grey van had been drifting noticeably into the opposing lane for probably 3 seconds with an outside chance of it being 4 seconds.

[28] The retrieved data also indicated that the grey van steering changed at 0.5 seconds prior to impact with application of the brakes at 0.3 to 0.2 seconds prior to impact.

[29] The Court in considering Regina v. W (D) recognizes the issue of assessing credibility at trial. Nevertheless, Mr. Gowan’s credibility is not at issue here, nor is the credibility of the witnesses given the evidence at trial. The focus is on the evidence and the accepted facts which lead the court to consider the time it took for Mr. Gowan to look back at the student who, the court accepts, moved from the far back row seating to the middle row captain’s chair immediately behind the driver. This is based on the OPP evidence at the scene of the collision.

[30] The court also accepts from the OPP data and interpretation that it took approximately three seconds from the time Miss Jones reacted to the grey van encroaching on her lane until the collision occurred regardless of what she may have noticed before that time. One can infer that within this timeframe, Mr. Gowan took his eyes off of the road and that he looked elsewhere. This appears to be a combination of looking at his rear view mirror and then at the passenger immediately behind him due to noise and movement. Therefore the issue before the court is whether-or-not this represents a reasonable time frame to substantiate a momentary inattention defence or not.

[31] As noted, there is no evidence before the court to contradict the statement that the young man was initially in the farthest rear row seating and that he inexplicably moved from that seat to the captain’s chair directly behind the driver, particularly given where he was found. It is clear that the young man did not have his seat belt on at the time of the collision. There is also no evidence to contradict the statement that he reclined the captain’s chair.

[32] It is therefore not unreasonable that the driver may notice him in the captain’s chair or that a noise, possibly the seat being put back into a different position, may have caught his attention. Once being established it then allows the court to logically assume that a driver might, as indicated by Mr. Gowan, look back at the young man for a short period of time.

[33] The court does not find the statement by Miss Jones regarding Mr. Gowan’s vehicle drifting for some time into her lane conclusive. The evidence suggests that the grey van was running along the centre line of the road, on his side, and then drifted into her lane over the time and distance indicated in the OPP Technical Report. To assume that he was in her lane for a longer period of time would require an assumption of a longer period of evasive action which is not supported.

[34] This clearly meets the test of momentary inattention and therefore does not meet the legal requirement for a conviction.

[35] The court therefore finds Mr. Gowan not guilty of the charge of careless driving.

[36] The court must speak to three other matters that are concerning regarding the transportation of young people. First, the court was surprised to hear that Mr. Gowan routinely uses cruise control for his bus vehicle. This locks the vehicle into a set speed until either disengaged or the brake pedal is depressed. It appears to the court that this has an inherent flaw when transporting young people on contract or as an employee given the slightly slowed response time to emergency situations. Second, the court was surprised to hear about a young person moving about in the van. This raises other issues given that the vehicle is in motion. Thirdly, the fact that a young person did not have his seat belt on during transportation is obviously dangerous. These are observations and did not form part of the consideration, except contextually, regarding the “due care and attention or without reasonable consideration for other persons using the highway...” analysis.

Released: Released February 21, 2013

Signed: “Justice of the Peace B. Mackey”