Court File and Parties

Ontario Court of Justice

Date: 2018-11-08

Court File No.: Ottawa 17-A10919

Between:

Her Majesty the Queen

— and —

Alexandre Dionne

Before: Justice Julie I. Bourgeois

Counsel:

• J. Neubauer, counsel for the Crown
• M. Day, counsel for the defendant

Reasons for Judgment

BOURGEOIS J.:

Introduction

[1] Mr. Alexandre Dionne is charged that on February 18, 2017, he drove his motor vehicle on Ogilvie Road in a dangerous manner to the public and as such caused bodily harm to Ms. Ann Dobbins, pursuant to s. 249(3) of the Criminal Code of Canada. The Crown elected to proceed by Indictment and Mr. Dionne elected to be tried by this Court.

[2] At the start of the trial formal admissions were filed as Exhibit 1 and include the following:

1. At the time of the collision, Mr. Dionne's driver's licence included a condition that he wear vision-correcting glasses while driving; and

2. The collision caused bodily harm to Ms. Ann Dobbins. More specifically, the collision caused a neck injury (a carotid arterial tear) which created a blood clot. The blood clot then dislodged from the carotid artery and travelled into the brain, causing Ms. Dobbins to suffer a stroke within 15 hours of the collision. As a result, Ms. Dobbins underwent emergency neurosurgery and required other extensive medical care. She continues to suffer the effects of her stroke.

[3] During the five day trial, eight witnesses were heard, including Mr. Dionne and both Crown and Defence counsel presented organized and able submissions.

[4] Ultimately, very little of the bulk of the evidence is actually in dispute and can be succinctly summarized as follows:

[5] Ms. Dobbins was in her car on Bathgate Drive at around noon when her traffic light turned green. Mr. Dionne was driving his car westbound on Ogilvie Road at a speed of 78 to 76 km per hour in a 60 km per hour zone when his traffic light turned red. He did not stop for the red light and collided with Ms. Dobbins' vehicle on the driver's side. During the last half second prior to the start of the collision, he applied the brakes and his speed was 62 km per hour at the start of the collision. The traffic was light to moderate at that time, the involved cars were mechanically sound, and the weather and road conditions were good and not considered to be a factor in this collision.

[6] Mr. Dionne dialed 911 for assistance from police and ambulance moments following the collision. He was apologetic to Ms. Dobbins. Ms. Dobbins recalls Mr. Dionne telling her, "I'm sorry, I didn't quite catch that red light." Ms. Dobbins felt fine at that time and did not attend the hospital. Mr. Dionne suffered a broken hand and was transported to the hospital. Cst. Kirtz attended the scene and ultimately served Mr. Dionne with a Provincial Offence Notice for failing to stop at a red light.

[7] Later that night, Ms. Dobbins was urgently transported to the hospital having suffered a severe stroke. It is only as a result of the very serious repercussions to Ms. Dobbins' health that the Collision Unit of the Ottawa Police Service, as part of its mandate, was called upon to investigate this matter and Mr. Dionne was later criminally charged.

[8] A number of Google maps of the area and photographs were filed to provide a better perspective. Also filed were calculations of speed and distance travelled during part of the traffic light cycle prior to the collision.

Summary of the Evidence

[9] One issue remains to be determined in this case. I will only review the additional evidence relevant to that issue of whether Mr. Dionne drove in a manner that was dangerous to the public as defined by s. 249 of the Criminal Code.

[10] Ms. Tremblay was driving on Ogilvie Road, in the left lane, when her attention was drawn to the speed of a car approaching behind her and following at a distance she considered too close to her car. She believed she was going at approximately 65 km per hour and the other car, Mr. Dionne's, at 80 km per hour. She did not see any other vehicle around. She described the driver then changing lanes to the right in a quick motion prior to the intersection with the parking entrance of the Montana's restaurant. As Mr. Dionne passed her car, she described observing him nodding, in the sense of his head moving up and down approximately four to five times in the period of approximately five seconds, when she was able to observe him as he was driving by her car. She described it as if Mr. Dionne was looking down at something on his lap such as a cell phone perhaps and then looking back up to the roadway, giving her the impression of someone texting or reading something on a cell phone while driving. She does not recall whether Mr. Dionne was wearing glasses at this point.

[11] She believes the traffic light turned red after he passed her, when he was closer to the Starbucks' entrance as depicted on Exhibit 8. She also estimated that the light had been red for approximately five seconds when he crossed into the intersection and collided with Ms. Dobbins' car. She testified that she looked at his car the entire time after he passed hers and did not see any brake lights coming on prior to the collision with Mr. Dobbins' car. Immediately following the collision, she pulled over to the left turning lane at the intersection and then took a photo of Mr. Dionne outside his car – Exhibit 5. She went to offer assistance to Ms. Dobbins and started crying, then overheard Mr. Dionne say words to the effect that he was not wearing his glasses. She interpreted that to mean while he was driving. She agreed with the possibility that she may not have heard the entire conversation, misunderstood or misinterpreted what she heard. She does not recall if he was wearing glasses at this time. She did not hear him apologize or say to Ms. Dobbins that he did not catch the red light.

[12] Mr. Leclaire testified that he was the passenger in Ms. Tremblay's car when she commented about someone driving a little too fast behind them. As a result, he turned his attention to Mr. Dionne's car. Mr. Dionne passed them, he estimated at a speed of approximately 80 km per hour. He also noticed his head moving up and down as if he was looking down to his lap and up straight ahead. He believes he did so once or twice. He saw the red traffic light at the intersection of Ogilvie Road and Bathgate Drive and saw Mr. Dionne's car colliding with Ms. Dobbins' car. Mr. Leclaire does not recall whether Mr. Dionne was wearing glasses at any time either while he was driving or after the collision. He did not speak to him after the collision but believes he heard him say that he did not have his glasses and he interpreted that to mean while he was driving. He also agreed that he may have misunderstood or misinterpreted that comment.

[13] A representative from Telus communications testified and explained the records filed as Exhibit 12. There were no incoming calls or text messages from Mr. Dionne's cell phone and the only outgoing call is when Mr. Dionne dialed 911 at 12:10:14sec. Also, three separate data sessions were initiated using three different data links or applications: a 1st session between 11:50:29 to 12:10:18; a 2nd between 12:10:18 to 12:14:36 and a 3rd one between 12:14:36 and 12:23:11. It appears the 1st session used the most data and started from a location close to the Guertin Mance/Sacre Coeur site, being approximately 2 km from Mr. Dionne's home address at the time. The other sessions were accessing the Ottawa Ogilvie/Blair site. She explained that the various applications on smart phones run in the background at all times without any input from the user and the smart phone always searches for the optimal site.

[14] The evidence of the Collision Unit investigators can be summarized as follows:

[15] The traffic light cycle at the intersection of Ogilvie Road and Bathgate Drive was working properly. A full cycle takes 90 seconds and is divided as such: the green light for westbound traffic on Ogilvie lasts 26 to 56.9 seconds depending on the presence and demand of vehicles on the cross-roads (either Bathgate Drive or City Park Street); the amber light is displayed for 3.7 seconds and the red lights for all vehicles at the intersection is displayed for 2.3 seconds.

[16] Even though it is almost impossible to re-create the exact circumstances of the timing of the collision, it appears Ms. Dobbins would have taken approximately 3.6 seconds from the time her traffic light turned green, being the 1st car at the stop line, to drive into the intersection to the point of collision. This is based on the average calculated from the tests conducted by Det. Turner under those circumstances.

[17] From the CDR (Crash Data Retrieval) recovered by Det. Bradford from Mr. Dionne's car module, filed as Exhibit 14, it appears Mr. Dionne was driving at a speed of 78 and 76 km per hour during the five seconds prior to the collision and would have applied the brakes within half a second prior to the collision. His speed at the start of the collision was 62 km per hour.

[18] Further evidence of the Collision Unit Investigators is the estimation of the location of Ms. Dionne's car when the traffic light turned red, the projections made from the tests done by Detective Turner and the estimated location of Mr. Dionne's car from Ms. Tremblay's evidence. The calculation made from the Crash Data Retrieval (C.D.R.) recovered from Mr. Dionne's car module by Detective Bradford were also considered. Exhibits 15A, B and C were produced in an attempt to pinpoint where Mr. Dionne's car would have been at the time of the amber and red light and the distance Mr. Dionne would have travelled during such timeframes.

[19] Mr. Dionne also testified. He stated that he has been wearing his glasses for a few years now and was indeed wearing them when driving that day, as always. He explained that as a result of the collision and the airbag deploying, he lost them and did not have them when he exited his car after the collision. As he was being treated by the paramedics at the scene, he noticed his car being towed and asked a firefighter if he could retrieve his glasses from his car.

[20] He also explained that he has been diagnosed with and prescribed medication for general anxiety disorder in 2010. He described the various levels of anxiety and associated symptoms. One of those symptoms during a less severe or mild episode is a feeling of having something stuck in his throat, but this would not affect his ability to drive.

[21] Mr. Dionne testified that he was going to meet family members for lunch at a sushi restaurant on Montreal Road. He had looked up the address on Google maps the night before from his laptop at home. He was not familiar with the east end of the city and had never driven on Ogilvie Road. Before leaving that day, as he was waiting in his driveway for the snow removal operation to be completed, he verified again the Google maps from the history synchronized to his phone. He understood there were two main intersections after exiting at the Blair Road exit, Ogilvie Road and then Montreal Road. However, after exiting on Blair Road, he mistakenly turned left at the 2nd intersection but that was Ogilvie and not Montreal Road.

[22] Ultimately, he realized he had taken a wrong turn. He realized he needed to be further north and that Ogilvie Road ran roughly parallel to Montreal Road and that St-Laurent Blvd was further west. But he did not know where the restaurant was specifically on Montreal Road in relation to where he was. He started to become somewhat anxious.

[23] He testified he was trying to look for land marks such as street names or businesses to orient himself. He admitted this was not the best idea or perhaps not even logical since he had never driven on Ogilvie Road. But he knew he could turn northbound on St-Laurent Blvd and Aviation Parkway to reach Montreal Road.

[24] He noticed the 1st intersection was City Park Street and saw the shopping mall on the left. He recalled passing a vehicle, Ms. Tremblay's. He thought that car was driving below the speed limit as he assumed the speed limit on Ogilvie Road was 70 km per hour, being a similar type of road as the ones he is more accustomed to use in Gatineau and he had not seen any posted speed limit on the segment of Ogilvie Road he was on. He also recalled speeding up to pass Ms. Tremblay not to cut off another car coming behind him.

[25] The 2nd intersection had no street name sign posted; he recalls looking in his mirror to double check if he had missed the sign. He also recalled seeing the green light at the 3rd intersection, looking ahead at Bathgate Drive at this point. He testified that he saw a strip mall on the right. He remembers thinking he could pull over in that strip mall and look at his map if he did not recognize that cross Road at the 3rd intersection. In cross-examination, he testified that he might have seen the amber light but his brain had not registered it. He could not be certain about this element.

[26] As he was approaching that 3rd intersection, he was trying to read the street name posted on the light pole but was unable to read it. He did not realize why at the time. As depicted in photographs Exhibits 19 and 16, there was a hydro pole in front of it. He described leaning forward in an attempt to read that street sign, having both his hands on the steering wheel. He also believes his right hand was injured as a result of hitting the key in the ignition as the bruise on his hand suggests and the key was bent after the collision, as depicted in photographs Exhibits 22 and 23.

[27] He was at the stop line when he realized Ms. Dobbins' car was in front of him and a collision was inevitable. He testified he tried to brake but it was way too late. He tensed up, flinched and his vision filled with the airbag. He kicked open his driver's door to exit and saw Ms. Dobbins' car. He wanted to call 911 and instinctively reached for his phone in his pocket but realized it was in his car so he retrieved it.

[28] He recalled people coming to assist and telling him he had ran the red light. He had also assumed he was at fault as he was trying to read the street sign. He spoke to the 911 operator and the recording of that call was filed as Exhibit 24. He also spoke to Ms. Dobbins once she was out of her car. He was relieved to see her standing and was apologetic to her while she was reassuring to him. He disagreed with the suggestion that he was in "damage control mode" immediately following the collision and accepted that he was at fault when he was told he failed to stop at the red light.

[29] He testified even though he did not know the speed limit, he felt he was following the speed of the traffic on Ogilvie Road that day. He told the 911 operator he had no difficulty breathing and that he was travelling at approximately 70 km per hour at the time of the collision. He acknowledged telling Det. Bradford in his statement during this investigation that he thought he was travelling at 60 km per hour after learning that the speed limit on Ogilvie Road was 60 km per hour. He explained that he was not trying to be untruthful with the officer but rather trying to assess his travelling speed from the general speed of the traffic that day. He realized that his assumption of what the speed limit was on Ogilvie Road was wrong. Indeed, Exhibit 10 depicts the location of the posted speed limit on the east side of the intersection at Blair Road and the west side of Bathgate Drive, past the Ford Sterling dealership on Ogilvie Road. There is a distance of approximately 977 metres between those two speed limit signs.

Factual Findings

[30] The following factual findings are made: In the end, it is not a contested fact that Mr. Dionne was wearing his glasses while driving. They were knocked off his face as a result of the collision. I also accept his evidence that he was not trying to explain the collision by saying he did not have his glasses at the time of the collision. There was no such comment to Ms. Dobbins and the witnesses were fair in accepting the possibility they misinterpreted the comment they believe they heard about his glasses. It is only logical that he would have lost his glasses as a result of the airbag deploying. There is no reason to reject his evidence on this point. The totality of the evidence on this element does not support the inference or allow the drawing of the conclusion that he was attempting to minimize his responsibility.

[31] I accept Mr. Dionne's evidence that he was not using the Google Map application on his smart phone. The Telus records tend to at least partly reflect this. But also, if he was, he would have known not to turn left on Ogilvie Road but rather at the next intersection on Montreal Road. He would have also known that turning right on Bathgate Drive would have brought him very close to his destination, as demonstrated in Exhibit 18. But I specifically accept his evidence that he was not manipulating his cell phone moments prior to the collision. His evidence about the injury to his hand coupled with his bent key tend to reflect that he was not holding or touching his phone but rather the steering wheel. Of course this does not mean his phone was not on his lap while he was looking down at it but, the totality of the evidence, including the limited observations the witnesses were able to make when he had passed them earlier and the discrepancy in their evidence does not support such a conclusion. Both witnesses describe being able to see his head moving up and down: once or twice by Mr. Leclaire, the passenger and closest to Mr. Dionne's position; or 4 or 5 times, by Ms. Tremblay, the driver, during the limited time he passed their car, a period of approximately five seconds. However, neither witness was able to observe, for example, whether he was wearing glasses or not. Their evidence is not without frailties (for example, Ms. Tremblay recalls this day being grey when the photo she took moments following the collision depicts a clear blue sky; although she kept watching Mr. Dionne's car after he passed her, she did not see the brake lights come on, however the CDR data determined the brakes were applied).

[32] Whether he was moving his head to clear his throat or not as he was becoming anxious does not add much to the analysis in this case. He might very well have been anxious as a result of having lost his way to the restaurant. The collision might very well have created such a surge of adrenaline and a shock creating an emotional state stronger than the mild anxiety he had started to feel. Ms. Dobbins, Ms. Tremblay and Mr. Dionne all described being in shock but every one of them reacted differently. In the end, his evidence that he was not looking at his phone, but rather at the street sign just moments prior to the collision cannot be rejected.

[33] However, Mr. Dionne's evidence is especially more convincing when considering Exhibit 19, the photographs of the intersections on Ogilvie Road from Blair Road to Bathgate Drive, and more specifically Exhibit 16, depicting a hydro pole planted right in front of the street sign at the intersection of Bathgate Drive and Ogilvie Road.

[34] I do not share the Crown's view that his driving was somewhat aggressive in the manner he approached Ms. Tremblay's car. The evidence on this point simply does not allow for such a conclusion. He was driving faster than her. He testified he thought she was actually driving slower than the speed limit as he explained he had assumed the speed limit was 70 km per hour. Ms. Tremblay was familiar with that road and knew the speed limit was 60 km per hour and she testified travelling at 65 km per hour. She does not qualify Mr. Dionne's driving as aggressive or even abrupt but did describe it as speeding at approximately 80 km per hour and really close to her bumper from what she could observe in her rearview mirror and then switching lanes and describing it with a movement of assurance. But she did not see any other vehicle behind her. Mr. Dionne testified that there was another car coming further behind him and he accelerated to change lane not to interfere with that driver's path. One could not conclude that his driving, as a result was aggressive but it was faster than Ms. Tremblay.

The Law

[35] Charron, J., writing for the majority in R. v. Beatty, 2008 SCC 5, discussed the distinction between the civil responsibility and the criminal blameworthy conduct of a driver in the context of the operation of a motor vehicle (see para. 6-9; 20). This is a similar situation in many aspects of the case. There can be no doubt here, by failing to stop at a red light, Mr. Dionne's manner of driving fell below the standard of care of a reasonably prudent driver. But as stated at para. 18, "the more difficult question is whether [Mr. Dionne's] act of negligent driving also attract criminal liability for the offence of dangerous operation of a motor vehicle causing [bodily harm] under s. 249 [3] of the Criminal Code."

[36] But as Charron, J. stated at para. 20, "An act of negligent driving will not necessarily constitute the offence of dangerous driving." To prove this offence, the Crown bears the onus of proving, beyond a reasonable doubt, both the actus reus and the mens rea of the accused. Charron, J. explained at para. 6: "Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with the conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender's mental state."

[37] The modified objective test adopted by the Supreme Court requires the Crown to prove a "marked departure" from the civil norm. Charron, J. explained at para. 7:

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 a 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.

[38] As further explained at para. 33:

The Court in Hundal, however, made it clear that the requisite mens rea may only be found when there is a "marked departure" from the standard of care expected of a reasonable person in the circumstances of the accused. This modification to the usual civil test for negligence is mandated by the criminal setting. It is only when there is a "marked departure" that the conduct demonstrates sufficient blameworthiness to support a finding of penal liability.

[39] In discussing the modified objective test as it relates to the mens rea in this context, she explained at para. 8 that "where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risk arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal."

[40] It is also in this context that we can find the discussion at para. 34 and 38 in relation to the branding of a person as a criminal.

[41] At para. 37, Charron, J. also explains the mens rea element and the exculpatory defences in these words:

The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity.

[42] To better explain this point she quotes from Cory, J. in Hundal:

It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident.

[43] She then continues:

However, because the accused's mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. On these occasions, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted.

[44] Guidance in assessing the conduct was also provided at para. 40:

The standard against which the conduct must be measured is always the same – it is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the accused found himself in when the events occurred in order to assess the reasonableness of the conduct.

[45] Also as Charron, J. stated at para. 46, it is the manner in which the motor vehicle is operated that is at issue and not the consequence of the driving. The consequence may assist in the assessment of risk involved in the manner of driving but not in answering the question whether or not the manner of driving was dangerous to the public.

[46] As summarized by Cromwell, J in R. v. Roy, 2012 SCC 26 at para. 35:

To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to the conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving.

[47] Cromwell, J. then went on explaining the mens rea element in these words: "The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances." (para. 36)

[48] He further explained at para. 41 and 42:

In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.

Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

[49] Counsel for both Crown and Defence also provided cases where these principles were applied to various factual situations: R. v. Burger, 2017 ONCA 101; R. v. Patel, 2017 ONSC 4048; R. v. Peric, 2015 ONSC 1598; R. v. Auguste, 2018 ONSC 3965; and R. v. Davidson, [2012] M.J. No. 280.

Analysis

[50] Mr. Dionne intended to drive to a restaurant on Montreal Road to meet family members for lunch. However, he made a wrong turn from Blair Road and was driving westbound on Ogilvie Road, one of the main commercial and residential arteries in the east end of Ottawa. It was around noon on Saturday, February 18, 2017. The traffic at that time was light to moderate.

[51] The speed limit on Ogilvie Road is 60 km per hour however there was no posted sign on the segment of the road he travelled. He erroneously thought the speed limit was 70 km per hour and was driving at 76 and 78 km per hour 4.5 seconds prior to the collision. He was looking for street signs to orient his way back to Montreal Road. He did not recognize the street name at the first intersection; there was no street sign indicating the name of the street at the second intersection; he saw the green light at the third intersection and he also noticed a strip mall where he could stop to find his way back to Montreal Road using an application on his smart phone; he cannot say whether he actually observed the amber light but if he did, his brain did not register it; he does recall starting to look for the name on the street sign at the third intersection but could not read it. At that time, he did not understand why he could not read that street sign. The evidence reveals a hydro pole was installed in front of that street sign, obstructing it. Once he realized Ms. Dobbins was in front of him, he was at the stop line and applied the brakes half a second prior to the start of the collision and his speed at the start of the collision was 62 km per hour. All traffic lights at that intersection are red for 2.3 seconds. From the time Ms. Dobbins' traffic light turned green to the point of collision into the intersection, a few other seconds are added and estimated to be perhaps 3.6 seconds. However, Mr. Dionne applied the brakes half a second prior to the collision.

[52] This is not a case of simply adding the seconds and the metres travelled during the time prior to the collision. Of course, not stopping at a red light is dangerous but as stated by Cromwell, J. in Roy, supra: is it "the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited?"

[53] In this case, the driving prior to the traffic light turning red was not negligent; the speed cannot be said to have been a contributing factor. In fact, an important contributing factor in this case appears to have been the obstructed street sign at the intersection of Bathgate Drive and Ogilvie Road. Mr. Dionne was not familiar with that area of the city and had never driven on Ogilvie Road. He required the street signs to orient his way. He could not reasonably foresee that the street sign at Bathgate Drive would be obstructed by a hydro pole right in front of it. Of course his attention was divided between his driving and his attempt of reading the street sign at this third intersection. Of course, a reasonable person would have foreseen the risk of divided attention and taken steps to stop looking at the street sign and look at the traffic light to be in a position to stop at the red light. But can it be said to be a marked departure from that expected of a reasonably prudent driver in the same circumstances?

[54] Mr. Dionne was not deliberately doing something a driver ought not do while driving; he was paying attention to street signs. It certainly appears his inattention was prolonged or caused by nothing else than that obstructed street sign and caused him this momentary lapse of attention, of a few seconds, to the red light ahead of him. This is not a situation as in Patel, supra, for example, where the distraction caused by a passenger led to a "substantive inattentiveness". Mr. Dionne was looking at a street sign to orient himself and that street sign was obstructed by a hydro pole. Did he fail in his duty to be attentive to the traffic light? Of course.

[55] Should he have slowed down when the green light turned amber? Of course. But the evidence, the data, the calculations and the exhibits from it, coupled with his evidence does not make his manner of driving dangerous at this point. He is making observations of his surroundings: the mall on the right hand side, passed the third intersection; his thought process identifying a place to stop should he not recognized the cross-street at that intersection; he is driving within his lane. But he is also driving 16km or 18km above the speed limit. At this point, none of these elements affect the manner of his driving. It is also at this point that he testified trying to read that street sign. He certainly should have also started slowing down. But under the circumstances in this case, this was a momentary lapse of attention and not a marked departure from that expected of a reasonably prudent driver.

[56] To answer the questions posed by Cromwell, J. in Roy, supra: (1) In light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid the collision is possible? Perhaps. But the onus is on the Crown to have this question answered in the affirmative, beyond a reasonable doubt. More clearly, (2) was Mr. Dionne's failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in his circumstances? I cannot conclude that Mr. Dionne's manner of driving in this case, under the circumstances, was markedly beyond mere carelessness.

[57] When considering all of the circumstances and the evidence in this case and applying the teachings of our Supreme Court in Beatty and Roy, I find Mr. Dionne not guilty of dangerous driving.

Released: November 8, 2018

Signed: Justice Julie I. Bourgeois