Court Information

Ontario Court of Justice

Date: March 28, 2017

Court File No.: Municipality of Chatham-Kent 000289

Parties

Between:

Her Majesty the Queen

— AND —

Robert Aurele Roy

Judicial Officer and Counsel

Before: Justice of the Peace H. DeBacker

Heard on: December 15, 2016 and March 10, 2017

Reasons for Judgment released on: March 28, 2017

Counsel:

• F. Creed — Crown counsel for the prosecution
• G. McGivern — Counsel for the defendant Robert Aurele Roy

Judgment

JUSTICE OF THE PEACE DEBACKER:

Charge

[1] Robert Roy stands charged that on or about the 11th day of June, 2015 in the Municipality of Chatham-Kent he did drive a motor vehicle on a highway carelessly, Contrary to Section 130 of the Highway Traffic Act.

Agreed Statement of Facts

[2] On June 11, 2015 at approximately 1:35 p.m., Robert Roy (DOB: 16 December 1981) was driving a black 2011 Chevrolet Cruze northbound on Chatham Street North in Blenheim. Robert Roy was the registered owner of the 2011 Chevrolet Cruze.

At the same time, Jennie Verbeek (DOB: 20 November 1973) was operating a mobility scooter southbound on the sidewalk west of Chatham Street North. She started to cross Chatham Street North in an eastbound direction and was struck by Robert Roy's motor vehicle in the northbound lane. The force of the collision destroyed the mobility scooter and resulted in Jennie Verbeek's death.

The police investigation revealed the following:

1. Prior to the collision, the 2011 Chevrolet Cruze, driven by Robert Roy was in good mechanical condition.

2. There was no evidence that Mr. Robert Roy had been consuming alcohol or that he had alcohol in his body at the time of the collision.

3. There was no evidence that Mr. Robert Roy was on or using his cellphone at the time of the collision.

4. The weather was clear, warm and overcast when the collision occurred.

5. There was no evidence that Mr. Robert Roy was speeding at the time of the collision.

6. Mr. Robert Roy's licence plate on his 2011 Chevrolet Cruze was AYCW 352.

7. There was no crosswalk where Jennie Verbeek was crossing the road and was struck.

Additional Facts

[3] The Court heard from a number of witnesses including Mr. Robert Roy, investigating officers, two civilians, neither of whom directly witnessed the collision, and Michael Currie, Level 4 Collision Reconstructionist. Constable Currie attended the scene, investigated and authored Collision Reconstruction Report which was an exhibit in these proceedings. He gave technical information and evidence related to times and distances. In addition, the Chatham-Kent police borrowed a similar mobility scooter and attempted to reenact the events leading up to the collision. Videos of the reenactments were played in court. It was without dispute, that Mr. Roy indicated to police he believed he was travelling the speed limit, namely 50 kilometres an hour. Reenactments of the event and calculations were completed having Mr. Roy's vehicle travelling at the speeds, 40 kilometres an hour; 50 kilometres an hour, and 60 kilometres an hour.

[4] Chatham Street runs northwest and southeast, however for simplicity, it is referred to as a northbound and southbound highway, one lane in each direction. The collision occurred where Hannibal Street intersects with Chatham Street on the east. McGregor Street also intersects with Chatham Street to the west at this location. Hannibal and McGregor Streets are slightly offset, one from the other. This intersection is in a built-up residential area. Hannibal and McGregor streets have stop signs and stop lines where they intersect with Chatham Street. On the east and west sides of Chatham Street there are cement sidewalks. There is a one metre grass boulevard between the sidewalks and Chatham Street. At this location Chatham Street northbound has a downgrade and Chatham Street southbound an upgrade.

[5] There were no tire or brake marks from Mr. Roy's Chevrolet Cruze. There was no damage within the vehicle. Airbags of the Cruze were not deployed and there were no recorded events on the Chevrolet Cruze's module. Police located a gouge and scratches on the roadway that were used in formulating the location of impact. The scooter was broken into three pieces. A bent seat post of the mobility scooter indicated the scooter was struck on its right side. The Mr. Roy's vehicle came to a gradual stop 42 metres from the location of impact within its northbound lane.

[6] It was determined the mobility scooter would have travelled at a speed of 7 kilometres per hour. Calculating from the location where the mobility scooter would have left the west-side sidewalk and entered McGregor Street to commence crossing Chatham Street to Hannibal Street, to the location of impact, it was determined Ms. Verbeek would have travelled on the roadway for six seconds on her mobility scooter, prior to impact. I am prepared to accept and find as a fact Ms. Verbeek would have travelled for six seconds into the intersection prior to impact.

[7] Mr. Roy testified and I am prepared to find as a fact that he did not see Ms. Verbeek prior to impact. The real evidence of no brake or tire marks on the roadway further supports this finding.

Crown's Case

[8] The crown's case essentially was Ms. Verbeek was visible and on the roadway to be seen for six seconds. The crown's case was Mr. Roy neither seen Ms. Verbeek nor, took any evasive action, because Mr. Roy was not paying attention. He was therefore driving without due care and attention and without reasonable consideration for others using the highway.

Defence's Case

[9] Defence disputed reconstructionist, Michael Currie's, calculation that Ms. Verbeek could be seen by Mr. Roy as he approached from 56 metres away. The crown used and relied upon Constable Currie's determination of a point of possible perception as an integral factor in driving without due care and attention. Defence contends this point of possible perception was based upon an assumption that the roadway was clear from any obstructions. It is quite possible there were obstructions. Particularly, if there was traffic in the oncoming southbound lane and Ms. Verbeek entered the roadway behind a vehicle once it passed her, she would not have been visible to Mr. Roy for the amount of time and distance that the crown's case relies upon.

Finding

[10] Mr. Roy's evidence was sparse yet he was honest and forthright. He was in shock from the event. He is devastated by this event. Mr. Roy honestly could not recall whether there was other traffic that would have impeded his view. He answered this honestly, because it certainly would have been easy for him to answer to the affirmative regarding any obstruction. Mr. Roy recalled travelling in his northbound lane at approximately the speed limit, under completely normal surroundings and circumstances when, without warning, the tragic collision occurred between his vehicle and Ms. Verbeek on her mobility scooter.

[11] It has been established that Ms. Verbeek was on the roadway for six seconds prior to impact. Constable Currie gave evidence that it is scientifically accepted that there is a period of time it takes for a person to perceive and comprehend a situation by senses and the mind. Further, there is a period of time it takes for a person to voluntarily or involuntarily react or respond to a situation or hazard that has been perceived. The perception and reaction times are 1 to 1.25 seconds each.

[12] Technical evidence the court heard would indicate:

• At 40 kilometres an hour a vehicle travels 11.12 metres per second.
• At 50 kilometres an hour a vehicle travels 13.9 metres per second.
• At 60 kilometres an hour a vehicle travels 16.68 metres per second.

[13] Therefore, in six seconds, a vehicle would travel 66.72 metres at 40 kilometres an hour; 83.4 metres at 50 kilometres an hour and 100.08 metres at 60 kilometres an hour.

[14] Further technical evidence provided by Constable Currie, the expert collision reconstructionist, would indicate stopping distances should be factored into the equation. It is my understanding that stopping distances are determined by calculating metres travelled per second at the various speed by 2 to 2.5. Why by 2 to 2.5? It has been demonstrated that under normal driving conditions, any driver who perceived a reason to stop would take 2 to 2.5 seconds to demonstrate and execute that idea. In other words, 1 to 1.25 seconds to perceive and comprehend a situation by the mind and senses and an additional 1 to 1.25 seconds to voluntarily or involuntarily react or respond to the situation or hazard.

[15] Therefore, under normal circumstances, the stopping distance at:

• 40 kilometres an hour is between 22.24 and 27.8 metres;
• 50 kilometres an hour is between 27.8 and 34.75 metres; and
• 60 kilometres an hour is between 33.36 and 41.7 metres.

[16] Lastly, now subtract the stopping distances from the distance travelled in six seconds at the various speeds. The result is:

• At 40 kilometres an hour, between 44.48 and 38.92 metres;
• At 50 kilometres an hour, between 55.6 and 48.65 metres; lastly
• At 60 kilometres an hour, between 66.72 and 58.38 metres.

[17] Why has the Court included all of these calculations and what do they really mean? This evidence was provided as a basis for the crown's case. It further sets out clearly the frailties and clearly demonstrates why, and this is one of two reasons, why this case has not and cannot be proven beyond a reasonable doubt. That is correct, the finding here is not guilty. Here are the reasons for the reasonable doubt:

[18] Simply put in simply terms, if Mr. Roy was travelling 60 kilometres an hour, he would not have had enough time to stop. There is no way to be certain Mr. Roy was not travelling as much as 60 kilometres an hour.

[19] Mr. Roy is a man of very few words. The evidence was, at the collision scene he was interviewed and asked:

"Question: How fast were you going at the time of the collision?

Answer: I was doing the speed limit.

Question: 50 kilometres an hour?

Answer: Yes."

[20] Mr. Roy testified 50 kilometres was his approximate speed. It would have been very easy, if not common, for anyone travelling in an ordinary 50 kilometre zone to actually be travelling 60 kilometres an hour and still hold the belief and feel that they were going the speed limit.

[21] Again, why all the numbers? Constable Currie's, expert report and testimony was if Mr. Roy was travelling 60 kilometres an hour, Mr. Roy would not have had enough time to stop. He based that on his own finding and projection which provided for a distance of 56.5 metres that it is alleged Mr. Roy would have had prior to the collision to see Ms. Verbeek crossing. The significance of the calculations and specifically the very last above calculation is: at 60 kilometres an hour, the distance travelled accounting for the time to perceive and stop, is greater than the distance from where the expert surmised Ms. Verbeek could have been seen crossing the street. In other words, there was no possible way Mr. Roy could have seen Ms. Verbeek and reacted in time to stop if he was travelling 60 kilometres an hour.

[22] Even if these mathematical calculations are incorrect in any way, the evidence was clear and confirmed by the expert, that at 60 kilometres an hour Mr. Roy would not have been able to stop in time to avoid the collision.

[23] Furthermore on this point, there was real evidence that it took Mr. Roy 42.6 metres to stop. Curiously enough, that is the distance Constable Currie indicated one would take to stop from a speed of 60 kilometres an hour. This evidence further supports the finding that it is certainly possible Mr. Roy was driving 60 kilometres an hour, which did not afford him enough time to stop.

[24] The second cause of reasonable doubt was: the distance of 56.5 metres, it was asserted Mr. Roy would have had to perceive Ms. Verbeek, I find cannot be relied upon. The reason is obvious. The crown's case relies upon an assertion that Mr. Roy had a free an unobstructed view of Ms. Verbeek. I cannot accept this assertion as factual beyond a reasonable doubt. In fact, it certainly is possible, if not likely, that other traffic obstructed Mr. Roy's view of Ms. Verbeek. Ms. Verbeek would sit lower to the roadway than an ordinary motor vehicle and, even with her extended orange flag would be very hard to spot if there was any vehicular traffic obstructing Mr. Roy's view of her. It is quite possible Ms. Verbeek may have entered the roadway after a vehicle travelling southbound on Chatham Street passed her location, which would have obstructed Mr. Roy's view of her significantly. It is just as possible a vehicle could have made a turn southbound onto Chatham Street from McGregor Street, again obstructing Mr. Roy's approaching view. There are a number of possibilities that I believe are all real and should not be ignored. It was midday, lunch time, up-town in the Town of Blenheim, on a beautiful day in June. It stands to reason there were pedestrians and vehicular traffic about during this time.

[25] Numerically, the distances and times in seconds up to the collision would be reduced significantly had there been any other vehicles obstructing Mr. Roy's view of Ms. Verbeek. I have already found that without any obstruction of Mr. Roy's view, the crown's case was too big a stretch to prove, given that Mr. Roy could have been travelling 60 kilometres an hour. With any obstructions, it would have been an impossible situation that Mr. Roy faced. In fact, an obstruction could account for why Mr. Roy did not see her and the collision happened as it did.

[26] We will never know why Ms. Verbeek, and I am not placing blame upon her, this was a tragedy through and through. To be thorough, it should be stated that we will never know why Ms. Verbeek left the safety of the south side of the roadway and entered upon Chatham Street in an easterly crossing direction when she had a stop sign which required her to yield and proceed only when safe to do so. Why would she proceed on an assumption that an approaching driver would stop and yield to her with very little warning in order to cross safely? I believe the possibility and possibly even a likelihood exists that Ms. Verbeek's perception of Mr. Roy's approaching vehicle could have been obstructed by other vehicular traffic just as well. This event was a true tragedy and a true accident.

Legal Analysis

[27] For the reasons already articulated, it is not necessary to set out case law in great detail. Only to say that I have reviewed and considered all case law and arguments presented. I am mindful of the principles in R. v. Shergill [2016] O.J. No. 1503. I am also mindful that Justice Hogan on appeal in R. v. Lattimore [2015] ONCJ 589 found the Justice of the Peace was in error when he failed to account for other real possibilities because those possibilities were not probabilities, particularly in light of the fact that no one saw the deceased just prior to impact.

[28] Lastly, I rely upon R. v. Lifchus, [1997] 3 S.C.R. 320 where Justice Cory said:

"The onus resting upon the crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence. It is one of the principal safeguards, which seeks to ensure that no innocent person is convicted."

"More is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guilty must acquit."

"Even if you believe the accused is probably or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt."

"On the other hand, the crown is not required to prove its case to an absolute certainty since that is virtually impossible and such would be an unrealistically high standard which could seldom be achieved."

Clearly, proof that establishes the accused is probably guilty is not sufficient to establish proof beyond a reasonable doubt. In our case, even if it was probable Mr. Roy travelled 50 kilometres an hour and had a clear and unobstructed view that would not constitute proof beyond a reasonable doubt. Reasonable doubt is logically connected to the evidence or lack of evidence. There was no evidence capable of confirming Mr. Roy had a clear and unobstructed view.

Disposition

[29] This case has not been proven beyond a reasonable doubt and the finding will be not guilty.

Released: March 28, 2017

Signed: Justice of the Peace H. DeBacker