Court File and Parties

Court File No.: 14-11573 Location: London, Ontario Date: June 19, 2015

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Ruth Burger

Counsel:

• F. Ball for Crown
• R. Ellis for Ruth Burger

Before: Justice Jonathon C. George

Reasons for Decision

Background

[1] Two people were injured. Two children, one a newborn baby, lost their lives, and in the most tragic of circumstances. What has made this case particularly difficult is the fact there is no good explanation for what happened. The public, and certainly those most directly impacted want answers; and people are likely looking to this proceeding for those answers.

[2] Despite my best intentions, I can say, with some certainty, I am likely to disappoint. I forewarn everyone. Especially so if the hoped for outcome is that I impart a greater understanding of why this happened.

[3] The discourse respecting the facts will be intertwined with the citing of laws and applicable legal principles, some of which will sound arcane, and marked by a strange, seemingly secret language designed to be understood only by a few. This is undoubtedly how, to some, the law, courtroom proceedings, lawyers, and judges appear. I will try my best to avoid that, and to be as clear and direct as I can. My hope is that, regardless of the decision I come to, people will at least understand it, and understand how I arrived there.

[4] The suffering of innocents and loss of life generally, especially for those so young, is difficult to comprehend. I can't even begin to imagine what Addison and Rhiannon's family are going through now or what they have had to endure over the course of the past year. Of course the greatest tragedy and biggest heartbreak lies with them - Addison and Rhiannon's parents and loved ones, and although I am to be dispassionate and removed from emotion, this must be acknowledged. At the same time I am mindful of how this has had to have been so difficult for Ms. Burger and her family. The burden that must come with knowing that something you did caused death and injury must be overwhelming, not to mention the angst associated with awaiting the outcome of a criminal trial.

Charges & Facts

[5] Ruth Burger is charged with 4 counts under the Criminal Code of Canada - two counts of criminal negligence causing death and two counts of criminal negligence causing bodily harm. These are indictable offences and the defence elected to proceed without a jury and without the need for a preliminary hearing. The trial lasted two days - much shorter than was anticipated. Several Crown witnesses testified, including London Police (LPS) Constable Trevor Macdonald. Ms. Burger testified in her own defence. Twenty exhibits were filed, including a mechanics report, crash data retrieval (CDR) information extracted from Ms. Burger's vehicle, and the report of former police officer Don McKinnon.

[6] There were several admissions, and the issue was narrowly focused to whether or not Ms. Burger legally caused Addison Hall and Rhiannon Bozek's death, and Dana Bozek and Miah Bozek's injuries. If there is a finding of guilt respecting one count, there will necessarily be the same finding on all counts. Conversely, a not guilty finding on one count would require an identical finding on all counts. In other words, respecting criminal negligence, it is an all or nothing proposition. The only caveat is, dangerous driving is a lesser included offence of criminal negligence, an offence which involves the application of a different legal test. That distinction will become apparent as I continue.

[7] Respecting the facts, very little is disputed. Much of the Crown's case was admitted. A horrible thing happened, and tragic consequences ensued. Ms. Burger was operating her husband's red Monte Carlo on the date in question, and at the relevant time. This vehicle crashed into the front entrance of the Costco department store in the south end of London causing, in a factual sense, the deaths and injuries.

[8] Ms. Burger's explanation is that her foot got caught under the brake, and that she couldn't remove it, causing her to accelerate with no ability to apply pressure on the brake. This is the only explanation provided, and represents the only factual issue for me to determine.

[9] If I accept that version, or conclude it raises a reasonable doubt, I must acquit Ms. Burger. If I don't accept it, and find it to be incapable of belief, I must still, based on the evidence I do accept, determine whether the Crown has proved each element of each offence beyond a reasonable doubt.

Initial Findings

[10] These are the facts I do accept, which for the most part were presented on consent:

• At approximately 12:00 noon on July 25, 2014 Ruth Burger left the Costco store.

• She was driving a 2004 Monte Carlo, which was registered to her husband.

• Weather conditions were good. It was partly cloudy; 23 degrees Celsius and the roads and parking lot were dry.

• Factual causation is admitted. Ms. Burger operated the vehicle that crashed through the front entrance of the store. As a result of this, Addison Hall and Rhiannon Bozek lost their lives, and Danah Bozek and Miah Bozek suffered injuries which legally constitute bodily harm. Of note, Danah Bozek was pregnant with Rhiannon at the time of the accident. Rhiannon was delivered shortly thereafter, then succumbing to her injuries.

• Ms. Burger was not suffering from any physical or mental health condition that contributed to or caused the driving in issue.

• She was not wearing flip flops or high heel shoes. She was wearing close toed, heel supported, slip on shoes, the construct of which played no part in informing the manner of driving.

• There was no mechanical failure in the vehicle that would have caused or contributed to the accident.

• Ms. Burger's vehicle was forward parked into a space, facing away from the store. She would have had to, and indeed did, reverse the vehicle from this position.

• From the point the vehicle exits the parking space, to the point it enters the building, it is in reverse.

• The distance travelled from this parking space to the front entrance was 58.7 meters (approximately 196 feet, or 64 yards).

Crash Data Retrieval

[11] The LPS, with the assistance of a GM representative, downloaded what has been described as 'crash data', essentially information contained within what I will call the vehicle's black box. It details what actions were taken, and by inference some not taken, in the seconds before the accident. This crash data retrieval (CDR) was conducted by LPS officer Emmett Murchland, and was presented and interpreted at trial by LPS officer Trevor MacDonald. There are no continuity issues respecting this evidence, and no dispute over Officer MacDonald's ability to analyze it. These are the findings:

1. Over the last five seconds prior to the crash the vehicle was travelling at the following speeds, at the noted intervals:

• 7 mph or 11 km/hr 5 seconds prior
• 14 mph or 22 km/hr 4 seconds prior
• 22 mph or 35 km/hr 3 seconds prior
• 27 mph or 43 km/hr 2 seconds prior
• 29 mph or 46 km/hr 1 second prior

2. The engine speed, also known as RPM's, was noted as follows, at the same intervals:

• 2816 - 5 seconds prior
• 2944 - 4 seconds prior
• 2368 - 3 seconds prior
• 3200 - 2 seconds prior
• 3136 - 1 second prior

3. The engine's percent throttle (extent to which the gas pedal is compressed) is noted as follows, at the same intervals:

• 100% - 5 seconds prior
• 71% - 4 seconds prior
• 84% - 3 seconds prior
• 97% - 2 seconds prior
• 100% - 1 second prior

4. CDR information reveals that brake pressure was not applied at any point over the last 8 seconds. Not even slightly.

[12] The reason information relative to the engine covers a span of 5 seconds, and respecting the brakes 8 seconds, is because of a manufacturer setting that could not be altered.

[13] This data isn't difficult to interpret. Over the course of the last five seconds, Ms. Burger's foot was, at all times and to varying degrees, pressing on the gas. Officer MacDonald testified that at least four seconds is missing from the point Ms. Burger placed her foot on the brake in order to shift the gear into reverse, to the 8 second mark when the CDR begins to record brake pressure. At least this is what I think his interpretation was, as it could very well be, and it just wasn't entirely clear to me upon my review of the evidence, that the missing 4 seconds is from that point, or the point the brake is applied in order to shift, to the 5 second mark when the recording of engine data begins. In either case, at least 4 seconds is missing. Missing in the sense the officer believed that information could have been helpful in conducting a complete analysis of the entire period. Regardless, from the point she leaves the space to the five second mark (when the vehicle is travelling at 11 km/hr), the speed level is appropriate and not excessive. This really narrows my focus to the last 8 seconds, when we know the car is in motion and after her foot had been removed from the brake, and particularly to the last 5 when her speed is increasing.

[14] As to perception/reaction time, Constable MacDonald testified that the average driver requires 2.5 seconds from the point they recognize something ahead, to react. On cross examination, he elaborated indicating that if after this initial reaction an additional variable is introduced, the average person will respond in 1 to 1.5 seconds. This topic wasn't really developed to any significant degree, by either side. Such evidence, in greater detail, may have been of some assistance, but this would be dependent on the facts. In this matter, however, given my findings which I will soon indicate, it would have been of limited value.

Report of Don McKinnon

[15] The defence filed a report prepared by former police officer Don McKinnon. He examined the vehicle, took several photographs of its interior and exterior, and conducted an experiment to test Ms. Burger's theory and explanation for what occurred. His objective was to determine if it was possible that her foot got caught under the brake pedal while at the same time compressing the gas pedal. The experiment involved a Monte Carlo of similar age and dimensions, which had a pedal cluster identical to the one involved in the crash. He had Ms. Burger wear shoes that were similar to those she wore the day of the accident and to manoeuvre her foot in and around the pedals. This is his opinion, which is located within the report (exhibit 16):

This simple test was to see if it was possible for her foot to get caught under the brake pedal while at the same time be depressing the gas pedal. This clearly showed this was very easily reproduced. This test showed that when the foot was caught behind the brake pedal, as you pulled it back, you would be putting more pressure on the gas pedal.

The test showed that unless you moved the foot to the right, it was not able to pull back.

It is my opinion that Ruth Burger was attempting to back out of a parking space. She would be twisting herself to her right so she could look behind her. (When doing a simulation, without my asking, Ruth automatically, started to twist to her right and look over her right shoulder to see behind. As opposed to looking into the rear-view mirror).

While twisting she somehow managed to slide her foot across from the gas pedal to under the brake pedal. Her foot would immediately get stuck there would also be applying pressure to the gas pedal.

The car would now be accelerating in reverse. Ruth Burger is now trying to control a situation she is not familiar with. The car is accelerating in reverse and she is trying to steer the vehicle as to not hit anyone or anything.

Her foot is still stuck behind the brake, but she is also trying to control the steering.

In a matter of 6-7 seconds she has covered the distance from her parking space to the front of the Costco. She is now at approximately 50 kph. Most people would have difficulty steering a car in reverse at 30 kph. Ruth Burger was beyond her skill set. She was so involved with steering that she was not able to think about other ways to stop the car (turn off the key, or put the car in park or neutral are the logical choices…..but this is not a logical situation…it has never happened to her in the past).

At this point the vehicle strikes the front of the Costco and enters through the doors striking the people were in that area.

Ruth Burger's Explanation

[16] This opinion recites Ms. Burger's testimony, which was that her foot got stuck under the brake. If I accept this and the reasons she advances for not taking any corrective or evasive actions during her trip across the parking lot (which is she couldn't remove her foot), then I must find her not guilty of all offences, including the lesser included offence of dangerous driving. Despite the nuanced and difficult to comprehend components of the applicable legal tests, this would simply amount to, although with tragic consequences, morally innocent behaviour. I would have to then conclude this could have happened to anyone.

[17] Conversely, to reject her testimony would not necessarily require guilt findings. I would still have to answer this question, which is the ultimate issue - has the Crown proved that the fault element can and should properly be inferred in the circumstances of this case?

[18] I reject Ms. Burger's testimony. Her foot simply could not have gotten stuck in the way she described. It belies belief, which is not to suggest Ms. Burger was intentionally attempting to mislead. She may honestly believe this is what occurred. One might ask how I can conclude an untruth is being told, but at the same time conclude there is no intentional lie? There are several possible explanations, but the most likely one is this. That within the human condition there is a craving for logical explanations for bad events. To not have one is to acknowledge a lack of control, and as we all have an innate concern for others and a disdain for suffering, it is extremely difficult to accept the role we play in causing other's pain. Emotions can be powerful, and evocative in its ability to bring about strong memories, perceptions and feelings. Ms. Burger simply wishes this were true, and hopes upon hope there is such a morally exculpating reason.

[19] Why do I reject this explanation? I do so simply employing common sense, which involves a consideration of the various speeds, elapsed time, and most critically the distance. This is a clear repudiation of Don McKinnon's opinion, which wasn't at all helpful.

[20] I have several times reviewed the photographs of the pedal cluster, Ms. Burger's shoes, and her description of how her body was positioned as she reversed the vehicle. Based on that, it is clear she would have had to been leaning to her left (even if just slightly) for her right foot to lie perpendicular to the car's floor, to make her account possible. Her body and foot would have had to been positioned in this way for this scenario to be true. Her evidence, however, suggests she was contorted and slightly leaning to the right.

[21] There are other facts which make her version suspect. The distance between the left side of the brake pedal and left edge of the gas pedal is about 6.5 centimetres. The distance between the right edge of the brake to the right edge of the gas is approximately 13 centimetres. Ms. Burger's shoe, at its widest point, is approximately 10 centimetres. The shoe's material is thin fabric with a rubber sole. Having examined the shoes (exhibit 19), I note that they are flexible and pliable. None of this lends itself to Ms. Burger's story.

[22] What pushes it from an improbability into the realm of impossibility is the fact the pedals are flush with each other and that the distance from the bottom of the brake pedal to the floor is 11.4 centimetres. This, in any case and under any circumstances, is ample room to extricate a foot, especially so since we know that on the adjacent, flush, gas pedal she is at all relevant times applying pressure, at two points bringing it to full throttle (meaning complete compression to the floor).

[23] It is this last point which invalidates the part of her story, which Mr. McKinnon accepted, that because her body was turned to the right that the conditions were created for this, given the angle of her foot. This makes absolutely no sense. If you think about it, as I have already pointed out, the opposite would have to be true.

[24] For her story to be even plausible, her body would had to have been turned to her left which would have forced her right foot to face towards the driver's side door. This would make it at least conceivable that the front part of her right foot is trapped, with the back of it being forced down onto the gas pedal. This couldn't have been the case on her version, which is she was turned to her right with her right arm extended onto the front passenger seat, which would have contorted her body the opposite way with her heel closer to the brake and toes, even if just slightly, pointing towards the inside of the vehicle. On this factual issue, I not only reject Ms. Burger's account of what occurred, I conclude it couldn't reasonably be true. It is incapable of belief.

[25] This is the long way of saying two things: first, that her foot could not have gotten caught if her foot was facing directly towards the front of, and in the same line as the vehicle. Second, with her body even slightly contorted to the right it makes no sense, given the positioning of her heel and toes, that there could be a simultaneous trapping of the foot to the extent it forced a complete compression of the gas.

Defence Position

[26] The defence position is the Crown has not answered the question, why, and therefore hasn't proven all elements of the offence beyond a reasonable doubt. The essence of this argument is I need to answer that question, and that, in the event I don't accept Ms. Burger's version (and I don't) this unanswered question represents a gap in the Crown's case. As to the question of why, and so that the position is fully understood and given its proper context, I will reproduce Mr. Ellis' submissions on this point:

So, why? Why not remove the foot from the gas pedal? Why does the CDR data show 100% throttle? If it's an error as sometimes we see in other cases that I'm sure where all parties present in this room have witnessed and media and other locations as recently as last night on the Toronto area; a vehicle went launching through the air because someone mistook the brake pedal for gas. We've all heard of these issues. They're not in evidence at this: so I say that only as a comment on submissions. Why would a careful driver like Ruth Burger simply not remove her foot and jam on the brake? It's a very difficult task the Crown would have to prove the impossible. So, why? Because sometimes the impossible is possible; and sometimes the unforeseen materializes. We have all witnessed that in our life. Sadly and tragically, Ms. Burger and the Hall and Bozek families witnessed that on July the 25th of 2014.

My friend has no scientific or expert report to show that this could not happen in the manner described by Ms. Burger. You do. You have a report of Mr. McKinnon. It is not perfect; it is not exact science; it has its own frailties, but it demonstrates that this can happen and you can carefully consider it. One problem the McKinnon report has and could not benefit by Mr. McKinnon attending here to testify viva voce, and that's why we have not called him is that the gas pedal does not appear physically to be fully depressed to the floor at the time during the experiment. But you'll note that Ruth Burger has very large feet; she has size 10. The Crown's theory; and it is just that, it's a theory. There is no scientific report behind it, there is no one from the Center of Forensic Sciences, which is available to my friend; a resource that is heavily utilized by Crown's throughout the province to say no, this could not happen. Physically impossible; that shoe can't fit to that spot.

[27] This position overstates the Crown's burden, suggesting two things that are not correct in law. First that the Crown has to, with scientific certainty, negative every theory advanced by the defence. Second, that scientific evidence (in whatever form that would take, relative to the placement of a shoe) usurps the primary task of the trial judge which is to make such ultimate determinations, invariably involving the use of basic common sense. This will always be the case unless an issue is so complex that an expert's guidance is necessary to understand the full scope of that issue. This is not such a case.

[28] Nor does it recognize the accepted function of a trial judge to, when appropriate, draw inferences. Of course, inferences must be reasonable and drawn from the evidence; and, of course, just because an inference is reasonable doesn't necessarily mean it is the one a judge must accept. For instance, if there are competing reasonable inferences, with any one favouring the defence, the benefit of the doubt must go to the accused. The point is, there should not be a singular focus on trying to explain the why, no matter how comforting knowing that might be.

Driving Offences Generally & Relevant Criminal Code Sections

[29] Driving offences in Canada cover a broad spectrum. At the low end there is driving without due care and attention, often referred to as careless driving. This offence is created by provincial statue and is not a criminal offence. If charged, to attract a conviction the Crown must establish beyond a reasonable doubt that the driver failed to use the care and attention that a driver of ordinary care would have used in the circumstances. Although a modest period of incarceration is available, the typical consequence is a fine, capped at $2000, and a permissive (not mandatory) license suspension.

[30] In the middle part of the spectrum is dangerous driving. This is a criminal offence. To establish dangerous driving the Crown must prove beyond a reasonable doubt that the driving constituted a marked departure from the standard of a reasonable person. The test incorporates the notion of negligence but requires a judge, in measuring and characterizing the driving, to consider the circumstances surrounding it (i.e. driving conditions, weather, traffic levels). The fault requirement is elevated from carelessness, but is less than criminal negligence. The maximum jail term for dangerous driving causing death is 14 years, although there is no mandatory minimum. Criminal Code driving prohibitions typically follow.

[31] At the highest end of the spectrum is criminal negligence, where the test is whether the manner of driving shows a wanton or reckless disregard for the lives and safety of others. The maximum penalty for criminal negligence causing death is life imprisonment. This is a difficult, challenging, and constantly evolving area, although the state of the law does now seem to be settled. However, this newfound clarity in how to articulate the test and fault requirement has not reduced the challenges in application.

[32] In assessing the law and applying it to these facts, I will interchangeably, and at times simultaneously, address criminal negligence and dangerous driving.

[33] These are the relevant statutory provisions:

Section 219(1) of the Criminal Code provides that:

Everyone is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

Section 249 of the Criminal Code provides that:

(1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

Section 662(5) provides that:

For greater certainty, where a count charges an offence under section 220, 221 or 236 arising out of the operation of a motor vehicle……….and the evidence does not prove such offence but does prove an offence under section 249 or subsection 249.1(3), the accused may be convicted of an offence under section 249 or subsection 249.1(3), as the case may be.

[34] What separates criminal negligence from dangerous driving is the requirement that the conduct, in this case driving, show wanton or reckless disregard for the lives or safety of others. The Crown was right, in its submissions, to point out that in dealing with cases of penal negligence there is to be a uniform standard applied to all; that fault may be inferred from the conduct; and that a momentary lapse may, in certain circumstances, be sufficient to make out a case.

Assessment of Facts

[35] Having rejected Ms. Burger's explanation, and as the Crown cannot prove she intentionally set upon a particular course of action, my focus is on what Ms. Burger initially did as she began to drive, and with what she did not do after that. And whether, in the circumstances, this driving amounts to a criminal offence. This involves careful scrutiny of the driving itself, the conditions, and an assessment of whether the omissions (what she didn't do), all taken collectively, constitutes a departure from what the reasonable, prudent person would have done in similar circumstances.

[36] The actus reus of the offence has been established. The manner of driving in that parking lot was a marked and substantial departure from what we would expect from the reasonable driver. The remaining question is has the Crown proved the requisite fault element beyond a reasonable doubt?

[37] Ms. Burger, as a licensed driver, who chose to operate her vehicle in a public space, owed a duty to other drivers, pedestrians, and specifically those people walking in and around the Costco store that day.

[38] I reject completely the idea that this was just a bad accident with tragic circumstances, for which Ms. Burger is not accountable beyond the civil standard of negligence. With that, I am then considering where, on the spectrum I discussed earlier, this fits? Was it mere carelessness? If it was, I would have to find Ms. Burger not guilty on all four counts and decline to consider the lesser included offence of dangerous driving. Or is it more than that?

[39] Having determined there were no contributing physical or mental ailments; no vehicle deficiencies; that the weather conditions were perfect; that Ms. Burger owed a duty of care to others; and that the actus reus of the offence has been established, what else do I know? On the evidence I know, and specifically find that:

• the Costco parking lot was a familiar place to Ms. Burger. She had been there before many times.

• the parking lot was paved with asphalt.

• the distance travelled from her parking spot to the front entrance was 58.7 meters, where she passed 18 parking spaces, proceeded through a yellow marked pedestrian walkway, and across a sidewalk area between red bollards.

• it was the middle of summer, mid-day, with several cars and pedestrians present.

• the vehicle's gear shift could only have been moved if Ms. Burger was depressing the brake, and it would only have started while either in the park or neutral positions. That is, at first her foot must have been on top of the brake, and not underneath.

• the car's horn functioned properly.

• the brakes were fully functional.

• the parking brake was in working order.

• that the route from Ms. Burger's parking space to the front entrance was a direct, straight line.

• that the small black scuff mark found on top of Ms. Burger's right shoe isn't indicative of anything relevant to my consideration. It could have been caused by the rubber or metal that envelopes a brake pedal, but I am not sure, and given my findings otherwise, is of little import.

• that her footwear played no part in causing the bad driving.

• that at the five second mark (before the crash) the vehicle's speed is 11 km/hr, reaching a peak speed of 46 km/hr one second before.

• that she didn't do, nor did she even consider, taking any evasive or corrective action while reversing, including using her left foot to apply the brake, to engaging the gear shift and moving to either neutral or park, to driving the car into a barrier or structure so as to avoid entering the building, honk the horn, turn the ignition off, or apply the parking brake which would have been to her left between the floor and steering wheel.

[40] With the exception of the parking brake, I believe these were all available and reasonable options. I am cautious about overstating the reasonableness of the parking brake appreciating it is not designed to be employed as a sudden, high speed application. It is what its name implies.

[41] I accept this would have been a foreign experience for Ms. Burger, as it would be for any one. She is not unique in this sense. I also accept, to state the obvious, there was no specific intention to crash the vehicle and cause harm. However, at some point something bad happened, and while it clearly got to a point where Ms. Burger did not know how to respond, I find that a deliberate act placed her into that position. What do I mean by this?

[42] I find on the evidence that for an unknown reason (perhaps unknown even to Ms. Burger) she, at least once, while intending to slam on the brakes applied pressure to the gas pedal, to the point it was compressed right to the floor. Matters are complicated in that Ms. Burger, and I find unreasonably, holds out no possibility that anything but what she says happened, happened. But what must have precipitated this? She had to have, initially, pushed down too hard on the gas, with no confusion that it was the brake, and that the only possible way for her foot to have slid under the brake, if that ever happened at all, was for her to be reversing out of her parking space and down the aisle too fast. At least at the start, as she began to drive her vehicle, she made this decision.

[43] While it's true she made utterances at the scene, and even suggested in her testimony, that she doesn't know what happened and didn't think what she did do was possible, she simultaneously maintained she was consciously and deliberately trying to keep the car straight, with great success by the way and presumably with the goal to avoid other cars and people, and that she was consistently throughout those several seconds attempting to extract her foot from under the brake. This explanation is inconsistent with the whole idea she doesn't know what happened and had lost control with no ability to turn her mind to things I conclude a reasonable person would have. If she truly had no opportunity to consider avoidance options, an acquittal would be required. But I do not accept that.

[44] To do so would be irresponsible, ignorant of the facts as I have found them to be, contrary to the law (given those findings), and would create for the Crown an insurmountable hurdle effectively making a criminal fault finding impossible in cases like this. Of course, if she had done (or even considered) one of the several available corrective actions, if the road or weather conditions were bad, were there a mechanical failure, or if I accepted Ms. Burger's testimony, things would have been different.

[45] What import do my findings have? Was the driving careless, dangerous, or was it criminally negligent conduct?

The Law – Guidance from Higher Courts

[46] Generally speaking, determining the fault element is the most difficult aspect of cases like this. Courts have long struggled with this issue. The one positive is, in terms of how to properly articulate the test, much of the murky area has been clarified.

[47] In conducting the mens rea assessment, I am mindful of the guidance higher courts have provided. In R. v. M.R., [2011] O.J. No. 1017, at paragraphs 30 and 31, the majority directs that:

…..the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all. In most cases, the mental element can be inferred from the accused's conduct or omission.

On a charge of criminal negligence causing death, the Crown must prove objective foreseeability of the risk of bodily harm which is neither trivial nor transitory.

[48] Related to the fault requirement, but more to, against what standard should the impugned driving be measured, I am also mindful of the court's comments in R. v. Hundal, [1993] S.C.J. No. 29 where Justice Cory writes that:

First, driving can only be undertaken by those who have a licence. The effect of the licensing requirement is to demonstrate that those who drive are mentally and physically capable of doing so. Moreover, it serves to confirm that those who drive are familiar with the standards of care which must be maintained by all drivers. There is a further aspect that must be taken into consideration in light of the licensing requirements for drivers. Licensed drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to other members of the public who use the roads. As a result, it is unnecessary for a court to establish that the particular accused intended or was aware of the consequences of his or her driving. The minimum standard of physical and mental well-being coupled with the basic knowledge of the standard of care required of licensed drivers obviate that requirement. As a general rule, a consideration of the personal factors, so essential in determining subjective intent, is simply not necessary in light of the fixed standards that must be met by licensed drivers.

[49] The Supreme Court provides further guidance on the appropriate standard for criminal negligence in R. v. Creighton, [1993] 3 S.C.R. 3, where Justice McLachlin, as she then was, writes the following:

…..that for crimes of negligence, the appropriate standard is that of the reasonable person in all the circumstances of the case. The criminal law is concerned with setting minimum standards of conduct; the standards are not to be altered because the accused possesses more or less experience than the hypothetical average, reasonable person.

[50] What else is relevant in terms of measuring Ms. Burger's conduct and determining fault? First, despite her evidence that she "doesn't know what happened" or can't "understand how this occurred" she does know she was turned to her right, with her arm extended onto the passenger side seat, with her left hand on the wheel. This is relevant because she was able to do this as she drove in what appears to be a complete straight line, in reverse, for almost 60 meters, reaching speeds of 46 km/hr.

[51] To my question about how to properly characterize the driving, the J.F. decision of the Supreme Court is where I must look R. v. JF, 2008 SCC 60, [2008] 3 S.C.R. 215. This passage from the joint memorandum of law presented by counsel captures the essence of the court's direction:

….Fish J. makes clear that a "marked and substantial departure" is something different from a "marked departure". The fault element for relatively less serious offences, such as dangerous driving and failing to provide the necessaries of life, is a marked departure. Criminal negligence is considered a more serious offence; to make out a charge of negligence, the Crown must prove a marked and substantial departure from the norm of a reasonable person in the circumstances.

[52] Ms. Burger is accountable for her driving. This wasn't an unavoidable event. It was driving that exceeded the minimum standard attracting civil liability. It also went beyond carelessness. I am just not able, on these facts, and given my findings, to conclude this driving was simply lacking in due care and attention. In fact the opposite is true. On her own evidence she was at all times attentive and mindful of the need to stop what she was doing, which makes it difficult to understand how she didn't consider even just one of the many options available to her. It is actually somewhat frightening in that she barrelled through that front entrance, with her vehicle's momentum only being stopped by the physical structure itself. I can't help but wonder how long her vehicle, which was in effect a missile, would have kept sailing into and through that busy store if only glass (and no concrete barrier) stood between it and the large open space inside. As horrific as the outcome was, it could have been far worse.

[53] I reject the idea this was a bad, unavoidable accident that just happened to have tragic consequences. This characterization misses the mark and would be far too cavalier.

[54] Once Ms. Burger began driving, there was no variable introduced which would have required her to make a snap decision. I'm specifically thinking of how another car, pedestrian, or animal might have abruptly appeared giving reason to brake, slam onto the gas, or divert her car. These are but examples; none of which she encountered. There was no bad weather, illness, or mechanical failure. Consider also the distance travelled. This is what is most remarkable about this case and is what distinguishes it from so many others where bad accidents happen in a quick moment. This is important, and cannot be overstressed.

[55] While we can't expect perfection, and while it's true Ms. Burger did not have the benefit of judicial reflection, the line must be drawn somewhere. And that line has to be below the driving exhibited here, keeping in mind the context which is she did nothing to avert the risk she, and she alone, created, with no intervening event or outside influence.

Driving Beyond Civil Negligence & Mere Carelessness; But What Is It?

[56] The question remains whether Ms. Burger's driving was, viewed objectively, a marked departure from the standard expected of a reasonable person in the same circumstances, or a marked and substantial departure in that it was wanton and reckless? The term wanton means heedlessly, ungoverned or undisciplined (R. v. Waite, 28 C.C.C. (3d) 326). Reckless means "heedless of consequences; headlong; irresponsible". This is a question of where to place the driving on the spectrum. The Crown makes a compelling argument that this driving was criminally negligent, but in the result I conclude it wasn't. But this was close. Far closer than those who view this as just a bad, tragic and unavoidable event, would care to believe.

[57] To sustain a finding of guilt for criminal negligence I would have to conclude that Ms. Burger deliberately set upon a course of action in driving recklessly across the lot, heedless of the risks and potential harm she was creating. In that case I would have to be satisfied beyond a reasonable doubt that she specifically recognized a risk(s), and then chose to ignore it. This would be an excessive characterization given that my findings to this point relate narrowly to, first the decision to apply the gas in the way she must have as she reversed out of the parking space, and second the fact she did nothing at all to correct the situation she created, essentially not being cautious in circumstances that warranted utmost care and prudence. In light of this, I must conclude Ms. Burger's driving was dangerous.

Regina v. Beatty

[58] Although counsel didn't refer to this case, I was reminded of the issue confronting the court in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, a British Columbia case that resulted in an acquittal at trial, conviction at the British Columbia Court of Appeal, and ultimately a restoration of the acquittal by the Supreme Court. In that case the accident which gave rise to the dangerous driving charge occurred when the accused's vehicle, for no reason, suddenly crossed the solid centre line into the path of an oncoming vehicle, killing all three occupants. By all accounts, before this sudden movement across the line, the vehicle had been operated in a proper manner. There were no mechanical issues with the car, and intoxicants were not a factor. The accused testified at trial indicating he didn't know why this had happened, the best guess being he must have either lost consciousness or fallen asleep.

[59] The central issue was whether this momentary act of negligence was sufficient to constitute dangerous driving causing death. The trial judge concluded that these few seconds of negligent driving could not, without more, support a finding of guilt. The Supreme Court held the same view.

[60] Returning briefly to the mens rea requirement, the court in Beatty, at paragraphs 6 - 7, indicates that:

Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender's mental state.

….as the label suggests, this test for penal negligence "modifies" the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a "marked departure" from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

[61] Again, this is a question of degree.

Conclusion

[62] The Beatty case captures it exactly, there being no better way to provide context to my reasoning, than to weight and contrast Ms. Burger's driving (as I have found it to be) with Mr. Beatty's. In other words, I believe that to fall asleep is akin to the examples I cited earlier (i.e. sudden variables; intervening events) which, if any one of them were present, may have cast Ms. Burger's driving in a completely different light. But in any one of those instances, the driver would be civilly negligent, and probably careless. Ms. Burger's driving was more than that; it was dangerous, and the Crown has established that fact beyond a reasonable doubt.

[63] For each of counts one through four, I find Ms. Burger guilty of the lesser included offence of dangerous driving; in the case of counts one and four causing death, and in the case of counts two and three bodily harm.

June 19, 2015

Justice Jonathon C. George