Ontario Court of Justice

Date: August 18, 2016

Court File No.: Municipality of Leamington 15-8035

Between:

Her Majesty the Queen

— AND —

Leslie Grosse

Before: Justice of the Peace H. DeBacker

Heard on: June 17, 2016

Reasons for Judgment released on: August 18, 2016

Counsel:

• N. Lamphier, Counsel for the Prosecution
• J. Dobrowolski, Counsel for the Defendant

JUSTICE OF THE PEACE DEBACKER:

Charges

[1] Leslie Grosse is charged with two counts on Information Number 15-8035.

[2] Leslie Grosse on or about the 29th day of April, 2015 at the Municipality of Leamington did commit the offence of drive a motor vehicle on a highway carelessly, Contrary to Section 130 of the Highway Traffic Act.

[3] Leslie Grosse on or about the 29th day of April, 2015 at the Municipality of Leamington did drive a motor vehicle on a highway to wit: Highway 3, Leamington, Ontario while his driver's licence is suspended under an Act of the Legislature or a regulation made thereunder, Contrary to Section 53(1) of the Highway Traffic Act.

Admissions

[4] There were a number of admissions at the onset of the trial. It was admitted that Leslie Grosse was the driver of a motor vehicle on Highway 3 in Leamington, Ontario on the 29th day of April, 2015. It was admitted that Mr. Grosse was driving while his licence privileges were suspended and a guilty plea was entered to Count 2. Mr. Grosse was operating a 2000 Honda minivan transporting six passengers from the workplace, Lakeside Produce, when most tragically, the van rolled several times and two male passengers died.

Focus and Issue

[5] Focus of the trial was the conduct of the driving just prior to when the vehicle began to roll over. The issue was whether or not the driving was careless driving.

Facts

[6] Highway 3 is the main arterial highway that connects Leamington and Windsor. In the area of the event, it is a two lane 80km highway. It is paved asphalt in good condition with one lane eastbound; one lane westbound. There is a slight curve heading westbound however there was no evidence that slight curve was of any factor. It was a completely dry, clear day with good visibility, no obstructions, shortly after 5 p.m. There is a gravel shoulder on both sides of the highway and there was evidence the gravel was a factor in the event. Alcohol or drug use was not a factor.

[7] A number of witnesses testified. Hassan Smith, passenger in middle location of the far back seat; Lydia Wilson, passenger on the right-passenger side in the middle seat; John Gabie, passenger in the front passenger seat; Leslie Grosse, the driver himself; Lauren Markou, driver of an approaching vehicle; first responder Constable Duguay and Constable Bortolon, on-scene investigator who authored report and took photographs.

[8] From the evidence of all witnesses, the following are this Court's finding of facts. Leslie Grosse drove the Honda van with six passengers from the workplace, Lakeside Produce. He entered Morse Road and travelled north on Morse until its intersection with Highway 3 where he first stopped at the stop sign. Mr. Grosse then proceeded westbound on Highway 3 from Morse Road with an intention to transport himself and fellow workers from Leamington to Windsor. Cst. Bortolon did not measure however, estimated the distance from Morse Road to the event with the van to be roughly one kilometre.

[9] As Mr. Grosse proceeded westbound he got the vehicle up to speed limit speed. The driver's window was part-way down. A yellow and black striped bee entered the driver's window. Mr. Grosse was wearing eye glasses. He was concerned the bee was near his glasses and may go under his glasses. Mr. Grosse swatted at the bee and made contact with the bee with his hand. This contact, and push of the bee with his hand, landed the bee against the windshield on the passenger's side. The bee continued to fly around between the front passenger, driver and windshield area of the van. John Gabie, front passenger, too swatted at the bee a couple of times. John Gabie and Hassen Smith both testified Mr. Grosse was no longer paying attention to his driving, he was rather, focusing on the bee, from the time the bee entered the van. Mr. Grosse himself testified the bee took all of his attention while he continued to swat at it well beyond and after his initial reaction to it.

[10] The witnesses, including Mr. Grosse himself, estimated that Mr. Grosse's attention upon the bee rather than driving and the roadway went on for between one to three minutes. Even though this time estimate appears excessive, it is evident Mr. Grosse's attention upon the bee lasted for the duration of the time from when the bee entered the van until Mr. Grosse lost control.

[11] Mr. Grosse started to veer the van off the roadway. The passenger tires entered onto the gravel shoulder and travelled some distance. This movement occurred slow and gradual. He did not attempt to slow or brake or even notice he was entering the gravel at this point. Passenger, John Gabie commented to Mr. Grosse, "just leave it", referring to the bee, as Mr. Grosse began to veer off the road. Gabie further told him, "watch what you've doing". Passenger Hassan Smith called out, "Leslie, pay attention to the road, you're drifting over" as the vehicle proceeded into the gravel shoulder.

[12] Once half the van and the passenger tires were well onto the gravel shoulder, Mr. Grosse yanked the wheel too far back to the left in an attempt to get back onto the roadway. Cst. Bortolon testified tire marks showed the tires were side-slipping in an arching fashion. The tires themselves were heading westbound while simultaneously being pulled down north into the gravel shoulder drop-off. The driver then sharply overcorrected right and was back into that pulling gravel shoulder. The tires continued to arch. Simultaneously, the weight within the vehicle kept transferring back and forth to the outside tires. Passenger Lydia Wilson referred to it as the vehicle wobbling back and forth. Her evidence was the wobble started to happen while the driver was still swatting at the bee. Mr. Grosse made yet another sharp left overcorrection movement which placed the vehicle in the middle of both lanes facing southbound. The tire arching was so significant at this point the front tire's rim gouged the pavement. The sudden weight transfers and quick movements exacerbated by the gravel pull caused the vehicle to flip or roll three to four times. The driver had clearly lost control.

[13] Lauren Markou was approaching in the opposite direction eastbound only two semi tractor-trailer lengths away when she noticed the van driven by Mr. Grosse enter the north gravel shoulder. As Mr. Grosse overcorrected to the left, Ms. Markou applied her brakes as she thought he would hit her vehicle as they were very close by now, only one car-length apart, however she managed to pass the van when it entered the gravel for the second time and during the second overcorrection by Mr. Grosse, before his third overcorrection which placed the van into the oncoming lane. It was a very close call indeed. Ms. Markou watched the van flip several times through her rear-view mirror.

The Law of Careless Driving Applied to the Above Facts

[14] Driving without due care and attention is a strict liability offence where, once the actus reus is made out, it is open to the defendant to demonstrate he took reasonable care to avoid the event. Were Mr. Grosse's actions of swatting at the bee a matter of momentary inattentiveness or reflex? Or were his swatting actions beyond reflex and did those actions together with not paying attention to the roadway make out careless driving? How far do these circumstances weigh on each side of the questions.

[15] In R. v. Globocki (1991), 26 M.V.R. (2d) 170 (Ont.Ct.Prov.Div.), Justice MacDonnell, as he was then, assessed to what extent the defendant departed from the standard of appropriate care. He stated:

"It is apparent from a reading of the section that reference to a standard of care lies at the heart of an assessment of whether the offence of careless driving has been proven. In each case, it is necessary to consider whether and to what extent the defendant departed from the standard appropriate to the factual circumstances facing the defendant."

In R. v. Globocki the defendant was found not guilty of careless driving. Ms. Globocki struck a pedestrian who was crossing a four-lane roadway. Ms. Globocki did not see the person until the last moment. There was evidence that the defendant's brakes had been applied before the collision. Further, there was no persuasive evidence to show that Ms. Globocki did not react appropriately after the pedestrian moved from the curb lane into the path of the defendant's car. There was no established departure from the standard of care expected in the circumstances.

[16] In both R. v. Aecon Construction and Materials Limited, [2007] ONCJ 661 and R. v. Lackie Bros. Limited [1982] (Ont.Ct.J.), materials that had been used many years without incident and there was not the slightest indication of collapse or failure, it was held that, completely unforeseen and unexpected circumstances weighed heavily in the circumstances and the defence of establishing all reasonable care to avoid the event, also referred to as due diligence, was established. Although applied in a different Act than today's matter, the principle of unforeseen and unexpected circumstances was applied in the circumstances of a strict liability offence.

[17] There is a common principle in the cases, R. v. Globocki; R. v. Aecon Construction and Materials Limited and R. v. Lackie Bros. Limited, that being unforeseen; unexpected circumstances occurring suddenly without foresight or warning. Similar circumstance here was when the bee entered the open window, it was unforeseen and without warning. Mr. Grosse's initial reaction to first swat at the bee, where the contact he made with it sent the bee into the windshield, was a reflexive reaction. His first initial reaction or swat is without blameworthiness because it was a reflex action and occurred in a fleeting moment. This conclusion is specifically with respect to the very first initial swat and contact with the bee only.

[18] The heart of the issue of the trial was did his repetitive focus upon the bee as it maneuvered around the front of the vehicle, instead of focus upon driving and the roadway itself, were those continual actions careless and outside the standard of care owing the circumstances? Where they outside the period of momentary inattentiveness?

[19] Justice MacKay referred to the standard of care in R. v. Beauchamp (1953), 106 C.C.C. (Ont.C.A.) as:

"what an average careful man would have done in like circumstances. ….that standard is not one of perfection."

Recent case law R. v. Shergill [2016] O.J. No. 1503 repealed Justice MacKay's comments wherein he placed careless driving into a category of being culpable and deserving of punishment, a mens reas category. R. v. Shergill is herein recognized, considered and being followed. Careless driving is clearly a strict liability offence. The comments in R. v. Beauchamp, [paraphrased] "what an average careful person would have done in like circumstances, not held to the level of perfection," are still valid.

[20] This Court finds Mr. Leslie Grosse guilty of careless driving. Mr. Grosse continued to respond to the bee. He completely focused upon the bee for an extensive period of time. His complete void of focus on the roadway and driving, after that initial swat, continued right up until he completely lost control. His focus on the bee instead of driving even continued to occur during the initial and continual veering off the roadway into gravel. The degree of Mr. Grosse's inattentiveness went beyond what is expected of reasonable, average, careful drivers and did in fact fall below the standard of care owing in the circumstances. There was no longer any imminent threat or surprise caused by the bee after that initial swat and contact which placed the bee within the windshield away from the driver. Mr. Grosse's continual actions were no longer reflex or momentary. His continual attention upon the bee rather than driving does in fact make out and prove the actus reas for driving without due care and attention. He did not take reasonable care and steps in the circumstances. A reasonable person should have forgotten about the bee and let the passenger deal with it or, if he was that concerned, slow and pull safely off the roadway to extinguish the bee. Instead, Mr. Grosse kept focusing and swatting at the bee, while his speed remained steady, without regard for steering or keeping on and within his lane of travel. There will be a finding of guilt and conviction to register.

[21] In addition, Mr. Grosse entered a guilty plea to driving while licence suspended at the onset of the trial. Certified documentation from the Ministry of Transportation entered as Exhibit 5, does in fact prove Leslie Grosse's licence privilege was under suspension at the time. There will be a finding of guilt and conviction to register to drive while licence suspended as well. I am referring to it as 'licence privilege' because Exhibit 5 and Mr. Grosse himself indicate he was never licenced. Mr. Grosse testified once, as a younger man, he took a driving test and did not pass that test. He never retested. He never, ever did have a valid driver's licence.

[22] A person cannot avoid regulatory or provincial consequence by not having a driver's licence. A record would be kept by the Ministry and, as I understand it, same can ultimately result in a suspended status, which is the situation here. Lastly, I do find this to be an aggravating factor. The facts in this case have established and proven Mr. Grosse guilty of careless driving regardless of whether his driver's licence was valid or suspended. However, I do find Mr. Grosse's suspended and never licenced status to be an aggravating factor because Mr. Grosse had no business or reason to be driving, having never been licenced. His inexperience and lack of driving expertise was a contributing factor for which he is entirely responsible for.

[23] Tragically, human error occurs and will continue to occur upon highways, since we are all imperfect humans prone to error. Even more tragically, mitigation of human error remains outstanding. This would have been a far worse outcome if the oncoming eastbound vehicle driven by Lauren Markou was a fleeting moment later in passing, she would have been meeting rather than passing the rolling-over vehicle. Double, separated lanes would remove this consequence far too frequently catastrophic in nature. In addition, paved shoulders, at the very least, for such a frequented arterial Highway 3, would further go a long way in mitigating human error with tragic consequences. The evidence in this case demonstrates this conclusion.

Released: August 18, 2016

Signed: Justice of the Peace H. DeBacker