Court Information

Ontario Court of Justice

Date: 2018-07-23

Court File No.: HAILEYBURY 416099912000094A

Parties

Between:

Her Majesty the Queen

— AND —

Alexander Gareau

Judicial Officer and Counsel

Before: Justice of the Peace J. G. McMahon

Heard on: August 17, 2017; August 18, 2017; and March 5, 2018

Finding released: June 26, 2018

Supplementary Reasons released: July 23, 2018

Counsel:

• J. Rumleskie — Counsel for the Crown
• M. Venturi — for the defendant Alexander Gareau

Decision

JUSTICE OF THE PEACE J.G. McMAHON:

[1] Introduction

[1] In the afternoon of January 18, 2012—south of the Town of Temagami—the Pontiac G5 operated by Alexander Gareau crossed into an oncoming lane of traffic and collided with the GMC Sierra pick-up truck operated by Jean Roberge. Both drivers were seriously injured. There were no passengers in either vehicle.

[2] Mr. Alexander Gareau was charged with careless driving, contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"). The matter came before me for a new trial following an appeal. Mr. Gareau pleaded "not guilty". The trial was held over three days. Three civilian witnesses and four police investigators, including one expert witness, testified at trial.

[3] I found Mr. Gareau "not guilty" on June 26, 2018, with supplementary written reasons to follow. I am now providing those reasons.

I. THE SCENE

[4] In the afternoon of January 18, 2012, Jean Roberge was driving his 2004 GMC Sierra pick-up truck ("Sierra") northbound on Highway 11, south of the Town of Temagami. In this area, Highway 11 is a two-lane highway with one northbound and one southbound lane. The time was approximately 2:30 p.m. In examination-in-chief, Mr. Roberge provided the following description (Transcript, August 17, 2017, at p.104):

Q. Okay and what happened after that? So you're driving on Highway 11?

A. Yes, it was a, a nice sunny day and it wasn't long after I was on Highway 11 I noticed, I was coming to a left hand bend and I noticed a quick jolt, which appeared to be the car in front of me, swerving to the right, and immediately after I saw a southbound car crossing into my lane, coming directly at me. So I immediately took my foot off the pedal and slammed the brakes as hard as I could and swerved to the right hand side of my lane. But he was still coming right towards me and hit me head on. Directly in my lane.

[5] The trial evidence established, inter alia, the following:

• The car was a red 2007 Pontiac G5 ("Pontiac"). It was travelling southbound on Highway 11.
• The defence conceded that: Mr. Gareau was driving the Pontiac; the Pontiac was a vehicle as defined in the HTA; and Highway 11 is a highway as defined in the HTA.
• In the area of the collision there is a curve in the highway with a very slight 0.5% negative grade for southbound traffic. The highway curves right for southbound traffic and left for northbound traffic.
• The collision occurred in the northbound lane.
• It was a head-on collision and the front ends of both vehicles were heavily damaged. The Sierra sustained more damage on the left front end.
• Following the collision, the Pontiac came to rest: in the northbound lane; close to and in front (i.e. to the north) of the Sierra; and with its front end pointing in a westerly direction.
• Following the initial collision, the Sierra then collided with a guard rail and came to rest along that guard rail. The guard rail was located on the shoulder of the northbound lane.
• Prosecution and defence agreed that there were no mechanical fitness issues with either the Pontiac or Sierra.

[6] Stéphane Laurin was first to arrive on the scene. He was driving a southbound transport truck and stopped his vehicle some 50 feet north of the collision scene. On arrival he noted smoke and fluids escaping from the Pontiac. He called 911 and then made his way to the vehicles to assist the injured. He estimated that police arrived at least 5, but not more than 10 minutes after his own arrival on scene.

[7] Ontario Provincial Police Constables Steve Morrison and Myles Loach were the first police responders on scene. They received the call to attend at approximately 2:44 p.m. Cst. Morrison testified they arrived at the scene at 2:55 p.m. On arrival he also noticed that the Pontiac was leaking fluids onto the roadway. Cst. Morrison and Cst. Loach closed off the highway to the north and the south of the collision and then made their way to the vehicles to assist the injured. Fire and ambulance services also attended to render assistance. Both drivers were transported to hospital. It appears the highway was closed for a number of hours.

II. THE PRE-COLLISION EVENT

[8] As noted above, Mr. Roberge described a pre-collision event, which would have preceded the actual collision. More specifically he stated that "…I noticed, I was coming to a left hand bend and I noticed a quick jolt, which appeared to be the car in front of me, swerving to the right, and immediately after I saw a southbound car crossing into my lane…".

[9] Mr. Roberge testified that the time between that "quick jolt" and the actual collision was very brief which he qualified as more than one second including two to three seconds in duration. He also confirmed that he did not notice any problem driving before the "quick jolt".

[10] In cross-examination, however, Mr. Roberge's uncertainty about the nature and details of the pre-collision event came to light. For example, he could not identify the colour or type of vehicle ahead of him and he agreed that he was not certain which vehicle had swerved. Even though he believed that the sudden movement came from the right of the northbound lane, he agreed that he was not able to precisely pinpoint from where in the roadway the swerving action originated. He said he was a fair distance away from the "quick jolt" ahead of him, but he could not estimate the distance in feet.

The testimony of Perlitta Collings

[11] Perlitta Collings testified at trial. She would have been involved in the in the pre-collision event. She testified to the effect that in the afternoon of January 18, 2012: she was driving a pick-up truck northbound on Highway 11; she saw a red southbound car coming towards her in her lane; she swerved to the left into the opposing southbound lane to avoid a collision; the red car would have travelled past her in the northbound lane; and she then swerved back into the northbound lane. When she looked back—by way of her mirror—she saw a vehicle resting up against the guard rail, but she did not see the red car after it travelled past her.

[12] In my view, Perlitta Collings' evidence was not reliable. Her memory had changed and evolved in the passage of time since January 18, 2012. Cross-examination revealed a number of inconsistencies among her statement to police in 2012, her testimony at the last trial in August 2015 and her testimony in the present trial. In addition, her testimony –in the present trial—was not reconcilable with other trial evidence, notably on two principal fronts.

[13] First, as noted above, Mr. Roberge said he noticed a "quick jolt" ahead of him and then immediately saw the Pontiac cross from the southbound lane into his northbound lane. According to Ms. Collings, the Pontiac would have already been in the northbound lane when it travelled past her. For greater certainty, Mr. Roberge did not testify that the Pontiac was in the northbound lane crossed into the southbound lane and then crossed back into the northbound lane. The two versions are not reconcilable especially when you consider the speed with which Mr. Roberge reports the events unfolded. I prefer Mr. Roberge's evidence on this point.

[14] Second, the trial evidence was abundantly clear that—following the collision—the Sierra came to rest along the guard rail and the Pontiac came to rest close to and in front (i.e. to the north) of the Sierra. This evidence cannot be reconciled with Ms. Collings testimony that when she looked back she saw a vehicle along the guard rail, but she did not see the red car.

[15] The difficulty in reconciling Ms. Collings' testimony with other trial evidence, the inconsistencies in her evidence over time and the evolution of her memory had the cumulative effect of eroding and undermining the reliability of her testimony.

Conclusion with respect to the pre-collision event

[16] I accept that a pre-collision event caught Mr. Roberge's attention and preceded the collision. There was, however, an absence of reliable evidence about what precisely happened. Mr. Roberge was uncertain, Ms. Collings' testimony was not reliable and there was no physical evidence of the pre-collision event (see para. 21, below). In these circumstances, the pre-collision event cannot therefore serve as a source of evidence of careless driving by the defendant.

III. RECONSTRUCTING THE SCENE

[17] Constable Dan Jones was one of the O.P.P. accident reconstructionists assigned to this case. He arrived at the scene at approximately 7:08 p.m., some 4.5 hours after the collision. He conducted his investigation and prepared a Reconstruction Report, which he said was completed on March 14, 2012.

[18] Cst. Jones was qualified, at trial, to provide expert opinion evidence as an accident reconstructionist despite the fact that he stopped doing reconstructionist work in 2014. For greater certainty, as I evaluated his evidence, I did not find that his years away from the field diminished the weight of his expert opinion. However, a reconstructionist is not a witness to the events. The value of an expert opinion depends on the quality of information he or she is provided or can obtain. For the reasons I will develop, Cst. Jones was provided and relied upon incomplete information and information which differed from other trial evidence. The reliability of his analysis and opinion was consequently undermined.

The physical evidence

[19] As part of his post-collision investigation, Cst. Jones inspected the collision scene. He did not find any pre-collision evidence on the roadway with respect to the Pontiac. There was only one element of pre-collision evidence on the roadway with respect to the Sierra despite the evidence that Mr. Roberge took evasive actions by braking and swerving to the right. It was a pre-collision tire mark made by the right front tire of the Sierra, but Cst. Jones could not determine what type of mark it was (e.g. skid mark or deceleration mark or rolling tire mark or low tire make).

[20] He did, however, find one post-collision tire mark for the Pontiac and two post-collision tire marks for the GMC truck that were consistent with the location where each vehicle came to rest.

[21] He did not find any evidence on the roadway in relation to the pre-collision event, but added that he would not expect to find such evidence unless a vehicle had lost control.

Data from the Sensing Diagnostic Modules

[22] The Pontiac and Sierra were both equipped with a Sensing Diagnostic Module ("SDM"). The SDM contains an algorithm which is enabled when a collision is impending. The algorithm determines whether to deploy the supplemental restraint system (e.g. air bags) before a collision. The algorithm relies on data from various systems in the vehicle.

The SDM is a valued source of information because it records vehicle data beginning a few seconds before the algorithm is enabled and the impending collision.

[23] The SDM in the Sierra indicated, inter alia, that:

• 4 seconds before the algorithm was enabled—the accelerator was released and the throttle percentage fell to zero;
• within 1 second before the algorithm was enabled—the brake switch was activated; and
• between 5 and 1 seconds before the algorithm was enabled—the vehicle speed decreased from 51 to 48 mph.

[24] The SDM in the Pontiac indicated, inter alia, that:

• the cruise control was de-activated between 1 and 0 seconds before the algorithm enabled;
• the throttle percentage decreased from 34% to 16% between 1 and 0 seconds before the algorithm was enabled;
• the engine's rotations per minute dropped significantly between 1 and 0 seconds before the algorithm was enabled;
• the change of velocity arising from the collision, referred to as the "Delta V", confirmed that the collision was very violent; and
• the steering wheel angle was between 0 and 15 degrees from 5 to 0 seconds before the algorithm was enabled.

[25] The Pontiac SDM did not provide speed data. In the seconds that he saw the Pontiac cross into his lane and head directly towards him, Mr. Roberge was not able to estimate the speed of the Pontiac in kilometers per hour. In my view, there was insufficient reliable trial evidence to establish the speed of the Pontiac or that that speed of the Pontiac was in any way excessive in the circumstances.

[26] The Pontiac SDM did not provide any braking data. Other data did, however, indicate that the defendant initiated an action to de-activate the cruise control which would have had the effect of reducing the Pontiac's throttle percentage and the engine RPMs. Cst. Jones stated that the cruise control could be de-activated by turning it off manually or by applying the brakes. Whether the Pontiac actually slowed before the collision could not be empirically determined in the absence of additional evidence, including reliable speed data.

[27] At first glance, the Pontiac steering wheel angle data would appear to indicate limited steering to avoid the collision and corroborate Mr. Roberge's testimony that the Pontiac came directly towards him. The steering wheel data was, however, of limited value. Information about the ratio between the steering wheel angle and the front axle—which determines how much the wheels of the vehicle actually turn—was not available at trial.

[28] The SDM data from both vehicles would offer some corroboration that the events unfolded rapidly. Mr. Roberge would have activated his brakes within 1 second of the SDM algorithm enabled. The defendant de-activated his cruise control between 1 and 0 seconds of the Pontiac's algorithm enabling. The rapid unfolding of events ties into the concept of perception reaction.

[29] Perception reaction is the time required to perceive and start reacting to a threat, but not necessarily complete the reaction. Cst. Jones testified that perception and reaction time depends on the personal characteristics of the driver and the circumstances he or she is facing, but that the accepted range is between 1.5 to 4 seconds. He agreed that there are cases where the driver does not have sufficient time to react. With respect to the present case, Mr. Roberge's testimony on how fast things happened in concert with the SDM data would appear to indicate that both the defendant and Mr. Roberge began to react within the established range.

[30] In cross-examination, defence counsel challenged the accuracy of the SDMs. Neither counsel presented case law on the issue. I accept the data as accurate. Each SDM appears to have performed its function. They received data, they recorded data, the algorithms enabled and the air bags were deployed in what was a serious collision. Accuracy would be supported by proper functioning. Based on the evidence before me, defence counsel did not, by cross-examination or otherwise, weaken confidence in the accuracy of the SDMs.

[31] In addition, there is relevant case law on the accuracy of measurement in regulatory traffic matters. This case law recognizes a rebuttable common law presumption on the accuracy of a measurement made by a device whose purpose is to make such measurement. The presumption can be rebutted by adduced evidence or cross-examination that sufficiently calls the accuracy into question: R. v. Bland (1974), 6 O.R. (2d) 54 (C.A.); R. v. R.W. Tomlinson Limited, [2010] O.J. No. 6172 (Ont. C.A.); R. v. B. Gottardo Construction Ltd., 2004 ONCJ 56. Application of this case law to the present case leads to the same outcome. Based on the trial evidence, defence counsel failed to rebut such a presumption.

Weather Conditions

[32] There are differences between weather conditions and road conditions, but they are interrelated and often reported together. Weather conditions more commonly refer to atmospheric conditions such as temperature, fog, visibility, precipitation or wind speed. Weather conditions can obviously impact directly on driving. Weather conditions also impact on road conditions. In addition to road conditions in the sense of physical characteristics (e.g. gravel road, asphalt, pot holes, width, etc…), roads can be dry, wet, icy, snow covered or a combination of such elements.

[33] With respect to weather conditions, Cst. Jones would have relied on the following information:

• It was cloudy, cold, -14°C and there was light snow both at the time of the collision and at the time of his investigation.
• His Reconstruction Report (at p. 5) states that it was dark and cloudy at the time of the collision.
• His Reconstruction Report also included hourly weather data from Earlton, Ontario, for the day of the collision.

[34] Trial witnesses offered the following testimony on the issue of weather conditions for the time of the collision:

• Mr. Roberge testified that it was sunny.
• Cst. Morrison remembered it as being partially cloudy, clear visibility, cold and no precipitation, but such information was not in his officer notes. In his Motor Vehicle Accident Report, he reported the environmental conditions as "clear".
• Cst. Loach described the weather as fair, not snowing, visibility clear and no precipitation during the drive from the Town of Temagami to the scene of the collision, but such information does not appear to have been in his officer notes.
• Mr. Laurin indicated he had no issues with the weather or visibility while driving up to the scene of the collision.

[35] Witness testimony therefore calls into question some of the weather information provided to Cst. Jones for the time of the collision. None of the witnesses stated it was snowing at the time of the collision. It is doubtful that it was dark at 2:30 p.m. in the afternoon. Earlton is located at more than 100 kilometres from the collision scene and the relevance of this weather data to the present case is doubtful.

[36] Cst. Jones was of the opinion that weather conditions were not a contributing factor in the collision. I agree that the weather conditions would not have had a negative impact on driving at the material time. I, however, reached this conclusion based on the witness testimony and independently of the expert evidence and opinion. Despite the differences among the witness testimony—none of the witnesses pointed to weather as impacting driving at the material time.

Road Conditions

[37] With respect to the road conditions—Constable Jones offered, inter alia, the following.

• When he arrived at the scene, the roadway was wet, but there was an icy section where he believed a fire truck had applied water at the scene.
• His Reconstruction Report (at p. 5) identified:
  • the road surface as newer asphalt and in good condition; and
  • a wet and bare surface at the time of the collision.
• The degree of slipperiness of the roadway, known as the coefficient of friction, could not be determined largely because of ice that had formed on the roadway after the collision.

[38] The information Cst. Jones relied upon was at odds with that of other witnesses:

• Mr. Roberge stated that he could see asphalt, the lines on the road, some wet surfaces and some snow packed areas on the day in question. He, however, added that he did not find it slippery and had no concern or trouble driving that day.
• Mr. Laurin indicated that he had no issues while driving up to the scene of the collision. He agreed it was clear and dry. He, however, testified that he slipped and fell when he first stepped out of his transport truck, which was parked off the southbound lane, some 50 feet north of the collision scene. He was wearing anti-slip work boots at the time. He added that he also walked down the southbound lane from his transport truck towards and beyond the scene of the collision—for a couple hundred yards. He testified that the roadway was slick and that he did not have sure footing. He agreed that the problem was unique to that particular area. He described it as something on the road—some sort of film. He thought it was gasoline or diesel, but he expressed uncertainty as to what it actually was. He added that he advised police and fire personnel so they would not fall, but he felt dismissed by police.
• Cst. Loach described the road conditions as being bare where tires would be in contact with the pavement and a light dusting of snow between those bare tracks. He stated that he did not find the scene slippery, but he agreed that his officer notes did not include information about such things as road conditions or his footing. He denied that Mr. Laurin advised him that it was slippery.
• Cst. Morrison testified that—at the time of the collision—each lane of the highway was bare where the tires would be in contact with the pavement and that there was ice between those tracks. This description was in his officer notes. He, however, reported the road condition as "poor" and the road surface as "wet" in his Motor Vehicle Accident Report. He did state that he was running while on scene and had no issues with respect to his footing, but such details were absent from his officer notes. Mr. Laurin testified that he did not notice police running on the scene.

[39] It merits noting that Cst. Jones did not consult civilian witness statements in preparing his report. At the time of his report, he was also not aware that Cst. Morrison had observed ice on the roadway or that a witness (i.e. Mr. Laurin) had slipped and fell at the scene. He agreed that he would have liked to know of this relevant information.

Conclusions with respect to road conditions

[40] There are serious discrepancies in the testimony on the issue of road conditions. Cst. Jones concluded that road conditions were not a contributing factor in the collision. The trial evidence cannot sustain such an absolute conclusion.

[41] At trial, defence counsel raised the issue of the reliability of officer testimony in the absence of related officer notes. Police have a duty to prepare comprehensive, detailed and contemporaneous notes: Wood v. Shaeffer, 2013 SCC 71, [2013] S.C.J. No. 71, at para. 67. There are cases where police testimony on a material issue has been held as unreliable or of diminished reliability in the absence of contemporaneous notes on the issue: R. v. Moore, 2016 ABPC 269; R. v. Lozanovski, 2005 ONCJ 112. The idea is that material facts and issues that result from police investigation must be noted rather than simply remembered. In my view, this is of particular relevance in the present case where the events date back to 2012. Weather and road conditions were material to this police investigation. As a result, the reliability of the testimony of Cst. Loach and Cst. Morrison with respect to particular weather and road conditions was diminished by the absence of police notes about those particular conditions.

[42] More importantly, I accept and prefer the evidence of Mr. Laurin. He was first on the scene. I found his testimony to be clear, straightforward and compelling. It also withstood the test of cross-examination. The last few exchanges in cross-examination reveal the character of his testimony (Transcript, March 5, 2018, at p. 82):

Q. This, this film or whatever it was on the road?

A. I didn't observe a film. That's just my speculation.

Q. Okay.

A. That's just, I'm just a truck driver who stopped to help two guys who got into an accident.

Q. Fair enough. I'm just wondering why you, you think there was something on the road?

A. Because I fell on my ass.

[43] More specifically, I accept Mr. Laurin's testimony that: the southbound lane was slippery from, at least, 50 feet north of the collision scene to the collision scene and then south of the collision scene; the slippery road condition was limited to that approximate area; and that the road conditions (in the southbound lane), north of the described slippery area, did not negatively impact on driving.

[44] The trial evidence, however, was not sufficient to establish why the southbound lane was slippery. Witness evidence on road conditions was too divergent to pinpoint a source. Mr. Laurin was certain it was slippery, but he was uncertain as to the source. As noted above, Cst. Jones was unable to measure the coefficient of friction (i.e. the degree of slipperiness) of the highway at the scene.

IV. THE LAW

[45] R. v. Shergill, [2016] ONCJ 163 ("Shergill") introduced needed clarity to the law of careless driving. In denying leave to appeal the decision to the Ontario Court of Appeal, MacFarland J.A. stated that he was not persuaded that the judge had made "any error in law in his treatment of careless driving": R. v. Shergill, 2016 ONCJ 163, [2016] O.J. No. 4294, at para. 14.

[46] In my view, what flows from Shergill can be summarized as follows:

• Careless driving (s. 130 HTA) is a strict liability offence: Shergill, at para. 12. It is a regulatory offence that is distinguishable from the criminal mens rea offence of dangerous operation of a motor vehicle (s. 249 Criminal Code): Shergill, at para. 20.

• Inadvertent negligence (i.e. simple negligence) is the fault element or gravamen of careless driving: Shergill, at para. 26. Stated otherwise—a mere departure from the reasonable person standard is sufficient to constitute careless driving. In contrast, the criminal offence of dangerous operation of a motor vehicle requires a more significant degree of fault—a "marked departure" from the reasonable person standard: Shergill, at para. 21.

• The prosecution is not required to prove that the defendant's driving represents a breach of duty to the public deserving of punishment: Shergill, at para. 22.

• The language of the careless driving provision (s. 130 HTA) defines the actus reus (i.e. the prohibited conduct) as to drive "a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway": Shergill, at para. 11.

• The test to establish the actus reus can be framed as follows: has the prosecution proven—beyond a reasonable doubt—that the conduct of the driver fell below the standard expected of a reasonably prudent person in the circumstances?

• The reasonable person standard is an objective standard: Shergill, at para. 13. It is not a standard of perfection: R. v. Beauchamp, [1952] O.J. No. 495, at para. 18. The standard is "what an ordinary person would do" in the circumstances: R. v. Kinch, at para. 50. Beauchamp, at para. 19—remains good law:

…It must also be borne in mind that the test, where an accident has occurred, is not whether, if the accused had used greater care or skill, the accident would not have happened. It is whether it is proved beyond reasonable doubt that this accused, in the light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances? The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on the circumstances in each case.

• Each case will be determined on its own facts. A contextual analysis is always required to assess the relevant circumstances in order to determine the standard of care expected of a reasonably prudent person in those circumstances: Shergill, at para. 23.

• Depending on the circumstances of the case:

  • the fact that an accident occurred—without nothing more—can establish the actus reus of the offence if "the only reasonable inference to be drawn from the fact of an accident is that the defendant was operating his or her vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway.": Shergill, at para. 23.
  • momentary inattentiveness can constitute careless driving where "the degree of inattentiveness displayed by the defendant goes beyond what one would expect of a reasonably prudent driver in such circumstances…": Shergill, at para. 28.
  • a pattern of good driving prior to the time of the allegation can be relevant, but it is not determinative. "What is required is an analysis of the conduct of the driver at the time the offence is alleged to have been committed measured against the expectation of the conduct of a reasonably prudent driver.": Shergill, at para. 30.

• The defendant will avoid conviction where a reasonable doubt exists with respect to, at least, one of the constituent elements of the actus reus. Where the prosecution proves the actus reus (beyond a reasonable doubt), the defendant can avoid conviction by establishing—on a balance of probabilities—a defence of reasonable mistake of fact or that he or she exercised reasonable care in the circumstances.

[47] The focus of the analysis must always be on whether the driving fell below the required standard of care and not on the consequences of the driving (e.g. collision, injuries): R. v. Kinch, at paras. 51-53. "It is the wrongful act or omission of the offender which renders him liable, not an unhappy result.": R. v. Ashton [1995] O.J. No. 1795 (Dist. Ct.), at para. 6.

The unique nature of the actus reus of careless driving

[48] The case law confirms that the failure to meet the driving standard of a reasonably prudent person is part of the actus reus of careless driving: Beauchamp, at para. 19; Shergill, at para. 13. The requirement for the prosecution to prove that the defendant's conduct was negligent is rather unique for a strict liability offence and one that easily leads to confusion.

[49] The practical effect is that, in many if not most cases, the defendant will avoid conviction where there exists a reasonable doubt as to whether he or she was driving below the standard expected of a reasonably prudent person: R. v. Skorput, [1992] 72 C.C.C. (3d) 294 (Ont. Prov. Div.); R. v. Lattimore [2015] ONCJ 589, at paras. 7 and 8. From the perspective of the defendant—raising a reasonable doubt is less demanding than proving due diligence on a balance of probabilities. In Skorput, at p. 300, the Court explained the mechanics of this distinctive feature of the offence of careless driving:

Careless driving is a regulatory offence as that term is understood in light of Sault Ste. Marie and Wholesale Travel. As was stated above, in the prosecution of a regulatory offence the Crown ordinarily establishes a prima facie case upon proving that the defendant committed the actus reus of the offence. At that point, the burden of showing that reasonable care was taken shifts to the defendant. However, careless driving is somewhat of an anomaly in that the failure to take reasonable care is part of the actus reus of the offence. In R. v. Beauchamp (1953), 106 C.C.C. 6, at page 13, the Ontario Court of Appeal stated that the test of careless driving is:

...not whether, if the accused had used greater care or skill, the accident would not have happened. It is whether it is proved beyond reasonable doubt that the accused, in light of the existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances.

To establish a prima facie case of careless driving, sufficient to convict a defendant who elects to present no evidence, the prosecution must establish beyond a reasonable doubt a departure from a standard of care. The onus of establishing an absence of negligence only arises once the Crown establishes a prima facie case.

In substance, the Crown must prove a departure from a standard of care. It is only when that is proved that an onus shifts to the defendant to show that he was not negligent. In McIver, McKay J.A. accepted as correct the proposition that the defendant bears the burden of establishing his 'defence' of lack of negligence or fault on a balance of probabilities. However, he also adopted the submission that even if the defendant fails to establish lack of negligence there could not be a conviction unless the prosecution proved its case beyond reasonable doubt. In many cases of careless driving, the effect of this will be to make the onus on the accused to establish due diligence academic. If the prosecution's case is that the defendant's driving demonstrated an absence of due care and attention, and the defence is that the defendant was being reasonably careful - i.e. that he was not negligent - any defence evidence which raises a reasonable doubt as to that issue will produce an acquittal. In that event, it would be a moot question whether the defence of due diligence was proved on a balance of probabilities. [Emphasis added]

The legal principles governing circumstantial evidence

[50] Circumstantial evidence is often a central element in careless driving trials. In the present case, there was both direct and circumstantial evidence.

[51] In R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, a unanimous Supreme Court clarified the applicable legal principles where the prosecution's case depends on circumstantial evidence. Existing case law on careless driving must be viewed in the light of both Shergill and Villaroman before it is relied upon.

[52] The traditional expression of the rule is that the trier of fact "must be satisfied not only that the circumstantial evidence was consistent with guilt but rationally inconsistent with any other conclusion than guilt": Villaroman, at para. 13. Stated otherwise—the trier of fact "must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty": R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; cited in Villaroman, at para. 18.

[53] With respect to the analysis of circumstantial evidence, the process of drawing reasonable inferences from such evidence and its relationship to reasonable doubt, Villaroman confirms, inter alia:

• There is a real danger of jumping to incorrect conclusions based on circumstantial evidence: at para. 27.

• With respect to reasonable doubt—"it is "logically connected to the evidence or absence of evidence": Lifchus, at para. 36": at para. 28.

• "A certain gap in the evidence may result in inferences other than guilt": at para. 36.

• An inference "must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense": at paras 36 and 30.

• "In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts": at para. 35.

• "…a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence": at para. 36.

• "If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.": at para. 35.

• "When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt…the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused"…": at para. 37.

• "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.": at para. 37.

• "…the line between a "plausible theory" and "speculation" is not always easy to draw.": at para. 38.

• "… to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative…": at para. 41.

V. ANALYSIS AND CONCLUSION

[54] Villaroman reminds us that reasonable doubt can be grounded in the evidence or the absence of evidence, including a gap in the evidence. In this trial, both the evidence and the absence of reliable evidence on certain fronts left me with a reasonable doubt as to whether Mr. Gareau drove in a careless manner on January 18, 2012.

[55] For the purposes of clarity, I wish to repeat but a few examples of where there was an "absence of reliable evidence": the speed of the Pontiac; the Pontiac's braking data; what happened in the pre-collision event; the source of the slippery roadway; and the inability to measure the coefficient of friction. Such absences have a cumulative impact on the analysis.

[56] The following evidence was clear—the southbound Pontiac crossed into the northbound lane where it collided with Mr. Roberge's Sierra. Obviously, the Pontiac should not have been in the northbound lane. This, on its own, can certainly prompt a strong inference that the Pontiac was in the northbound lane on account of problem driving. However, any temptation to stop the analysis at this point must be defeated.

[57] The legal framework governing careless driving directs us to conduct a contextual analysis in each and every case and to focus the analysis on the driving conduct and surrounding circumstances rather than the consequences of the driving.

[58] The fact that a collision occurred is not necessarily determinative of the ultimate question—has the prosecution proven (beyond a reasonable doubt) that the defendant's driving fell below the expected standard of a reasonably prudent person in the circumstances? Careless driving does not always result in collisions or injuries, but it is still unlawful and subject to prosecution. Sometimes, however, driving with reasonable care can still result in tragedy. Each case will be determined on its particular facts.

[59] The results of my analysis and application of the governing case law—with a focus on the driving conduct and the relevant circumstances—can be summarized as follows.

[60] The defendant was driving the Pontiac in the southbound lane of Highway 11 in the afternoon. There were no mechanical fitness issues with this vehicle. At the end of the trial, I was satisfied that the weather conditions (i.e. atmospheric conditions) did not have a negative impact on driving. I was also satisfied that the road conditions did not have a negative impact on driving, in the southbound lane, as the defendant approached what would become the collision scene.

[61] In Shergill, at para. 30, the Court reminds us that the focus must be on the driving at the time of the alleged offence and not the driving prior to that time. While earlier proper driving is not determinative of the driving at the time of the allegation, the Court confirmed that earlier proper driving "may negative any suggestion of a prolonged period of improper driving": Shergill, at para. 30. In the present case, there was insufficient reliable evidence that the defendant was speeding or of any problem driving before the events unfolded. The evidence rather confirms quickly unfolding events during which the Pontiac crossed into the opposing lane of traffic.

[62] As the defendant neared what would become the collision scene, he was travelling down a very slight negative grade and into a right curve in the highway. I accept the evidence of Mr. Laurin with respect to the slipperiness of the southbound lane, including the area just north of the collision scene. At that point, road conditions became a factor in driving. Based on the evidence before me, I was, however, unable to determine the source of the slipperiness.

[63] There was a pre-collision event, but an absence of reliable evidence about what precisely happened. Immediately following the pre-collision event, the Pontiac left the southbound lane and obviously failed to navigate the right curve in the highway. It crossed into the northbound lane where it collided with Mr. Roberge's Sierra. The events unfolded in a matter of seconds. There is no reliable evidence that the Pontiac was speeding just before or as it crossed into the northbound lane. In addition, there was an absence of sufficient evidence with respect to the presence of factors that would have alerted the defendant that the southbound lane would become slippery just north of the collision scene.

[64] After considering the totality of the circumstances, I determined that it was certainly more than plausible and reasonable to hold the view that the Pontiac could have crossed into the opposing lane on account of circumstances (notably slippery road conditions) other than the careless or negligent driving conduct of the defendant. I was therefore left with a reasonable doubt as to whether Mr. Gareau drove "without due care and attention or without reasonable consideration for other persons using the highway".

[65] I, accordingly, found Mr. Gareau "not guilty" of the offence of careless driving. This completes my reasons.

Released: July 23, 2018

"J.G. McMahon"