WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2023 05 03 Court File No.: Oshawa Info #2811 998 22Y2810146

Between:

HIS MAJESTY THE KING

— AND —

JS, a young person

Before: Justice S Magotiaux

Heard on: March 13-15, 2023 Reasons for Judgment released on: May 5, 2023

Counsel: F Stephens, counsel for the Crown A Richter, counsel for the defendant JS

MAGOTIAUX J.:

OVERVIEW

[1] This case is every parent’s nightmare come true.

[2] Seven young people got together to have fun and hang out. They were drinking, but not excessively. They went to a party but left together when told to do so by the homeowner. They planned for a sober driver. They looked out for each other. They were singing and enjoying a night in the company of good friends.

[3] On the drive home, tragedy struck. The young woman at the wheel lost control of the truck on a bumpy gravel road with steep hills and dips. The truck swerved and then spun out of control, rolling over and ejecting 6 of the 7 young people, all 6 of whom were not wearing seatbelts. BM was one of the ejected passengers. He died at the scene. The remaining passengers were all injured. The truck was completely ruined.

[4] JS was the driver. The truck had a faulty rear brake and had modifications including a lift and larger tires which departed from the manufacturer’s specifications. The modifications affected the safety of the vehicle.

[5] A police officer in the Collision Investigation Unit, DC Limb, got to the scene at 3:10 am. He could not find much in the way of road markings given the conditions and darkness but did mark and photograph various tire marks and impressions. The truck was towed to a secure police facility. Under controlled conditions, DC Limb extracted the Airbag Control Module (ACM) data from the vehicle. The ACM recorded 5 seconds of data about the speed, braking and acceleration of the vehicle.

[6] JS is charged with dangerous driving cause death and 5 counts of dangerous driving causing bodily harm. She asks the court to exclude the ACM data from evidence on the basis that it was obtained in a manner that violated her right to be free from unreasonable search and seizure under s. 8 of the Charter. Even if the evidence is not excluded, she says the whole of the evidence cannot establish dangerous driving due to the lack of evidence about the specifics of driving, and the significant frailties and uncertainties of the ACM data and its interpretation in the circumstances of this case.

[7] The Crown says that there is no s. 8 breach in obtaining the ACM data because there is no reasonable expectation of privacy in that kind of information. The Crown submits that the agreed facts, the evidence of the youth witnesses and the expert report, considered together, demonstrate that JS was travelling at a significantly excessive speed for the conditions and that her conduct constitutes a marked departure from the standard of a reasonable driver in all of the circumstances.

[8] I will deal first with the Charter argument and then with a brief review of the civilian and expert evidence. Once I have considered the factual backdrop, I will set out the law on dangerous driving and apply the elements of the offence, which are not in dispute, to the evidence in this case. All 5 charges are counts of dangerous driving differentiated only by consequence. The consequences are admitted. The legal analysis in this case comes down to the simple question of whether the evidence establishes beyond a reasonable doubt that JS drove dangerously and in a manner that was a marked departure from the standard of a reasonable driver.

CHARTER

[9] JS argues that she had a reasonable expectation of privacy in the ACM data recorded automatically by the GMC Sierra and that the police violated her s. 8 right to be free from unreasonable search and seizure by accessing the data without authorization. She seeks to exclude the ACM data from consideration at trial.

[10] Before engaging in the s. 8 analysis, I will set out the facts regarding the process of extraction and the nature of the data accessed.

Process

[11] There is no factual dispute about how the data was obtained in this case. The GMC was found just off Sideroad 18 in a severely damaged state. DC Limb arranged for the vehicle to be towed. He testified that his authority for seizing and towing the vehicle was s. 489(2) of the Criminal Code, which permits police acting in execution of their duties to seize things that have been used in the commission of an offence or will afford evidence in respect of an offence.

[12] The vehicle was taken to a secure yard and DC Limb attended at a later date to obtain the ACM data. There are multiple methods to extract ACM data. In some cases, it is possible to connect directly to a port in the vehicle to use the vehicle’s own system to recover the data. That method was unsuccessful in this case. Instead, DC Limb had a mechanic assist him in removing the module from the vehicle and then connected directly to the module to create an image of the stored data using Crash Data Retrieval (CDR) software. The imaging process does not change or delete the data. When the imaging was complete, the ACM was placed back in the vehicle.

Nature of Data Obtained

[13] DC Limb testified that modern vehicles can and do record a wide range of data in aid of their safety systems. It is important to remain focused on the data actually seized in this case to frame the s. 8 analysis.

[14] The GMC Sierra was a 2006 model. The data stored on its ACM and extracted by the CDR spanned 5 seconds only and included measurements of vehicle speed (MPH), engine speed (RPM), percent throttle/accelerator pressure, and on/off switch indicators for the brake pedal and the front driver and passenger seatbelts. There are nuances to these categories of data and their proper interpretation, but those are not relevant to the s. 8 issue.

[15] The ACM in the vehicle in this case was triggered to record data in either a “deployment event”, where the airbags are deployed, or a “non-deployment event”, which is a significant event for the vehicle where the airbags are not deployed. In this case, the airbags did not deploy. The ACM in this vehicle could store data for only one non-deployment event.

Analysis

[16] There was no warrant or waiver sought in this case, and there are no statutory provisions specifically addressing lawful access to ACM data. The Charter decision turns on whether there is a reasonable expectation of privacy in the data in the circumstances of this case such that s. 8 is engaged at all.

[17] This is not the first case addressing expectations of privacy in data recovered from vehicles after public collisions. There are no decided cases that are binding on me in terms of this specific form of informational privacy, and further, s. 8 claims must always be assessed fresh in all of the circumstances at play in a given matter. But the previous jurisprudence on the topic is helpful in setting out potential routes of analysis.

[18] In Ontario, the case law divides on the issue of whether ACM data [1] attracts a reasonable expectation of privacy, though the recent weight of authority falls in favour of a protected privacy interest.

[19] JS relies heavily on R. v. Attard, 2020 ONCJ 108, to support her position. In Attard, O’Marra J. found that the ACM data was different in quality and detail to information that would be exposed to public view and likened the seizure of such data to the police tracking of a vehicle’s movement in R. v. Wise, [1992] 1 S.C.R. 27.

[20] Attard drew on the earlier cases of R. v. Hamilton, 2014 ONSC 447, and R. v. Glenfield, 2015 ONSC 1504. In Hamilton and Glenfield, the courts found that s. 8 encompasses information outside of the biographical core identified in R. v. Plant, [1993] 3 S.C.R. 281. In each case the judge concluded that the driver reasonably intended for the ACM information to be kept private from the state. Both courts further likened the informational data from the ACM to data obtained from personal devices as described in R. v. Vu, 2013 SCC 60. The court in Attard also categorized the ACM or EDR as an “onboard computer” at para. 63.

[21] Two other cases found that there is a reasonable expectation of privacy in the ACM information. In R. v. Patterson, 2020 ONCJ 536, at paras. 52-53, Latimer J. cited Glenfield and Hamilton and referenced the residual informational privacy right in ACM data separate from the territorial privacy in the seized vehicle and in R. v. Yogeswaran, 2021 ONSC 1242, the court found that the police violated s. 8 by entering the vehicle and extracting the ACM data.

[22] There are other Ontario cases that have reached the contrary conclusion that there is no reasonable expectation of privacy in ACM data.

[23] In R. v. Antsie, 2019 ONSC 976, London-Weinstein J. found that ACM data was not the kind of information that required protection from the state (at para. 42). She noted that driving occurs in public and is a highly regulated activity. The crash data is limited in scope. The vehicle at issue in Antsie was a rental. While the court in Antsie considered the rental agreement which allowed for disclosure of EDR data as a factor relevant to the privacy analysis, that factor was not determinative. At paragraph 46, London-Weinstein J. concluded that the rental relationship was relevant “but, more importantly, it is the nature of the data itself which in my view render it unable to give rise to s. 8 protection.” [Emphasis in original].

[24] R. v. Anastasis, 2016 O.J. No. 7344 (CJ), a case from the Central East Region, also found no expectation of privacy in the ACM data despite reviewing Glenfield and Hamilton: see para. 55.

[25] The Ontario Court of Appeal has not considered privacy interests in ACM data. There are two appellate decisions from outside of Ontario: R. v. Major, 2022 SKCA 80, leave to appeal ref’d [2022] S.C.C.A. No. 426, and R. v. Fedan, 2016 BCCA 26, leave to appeal ref’d [2016] S.C.C.A. No. 178. Both found no reasonable expectation of privacy in crash data. In both cases leave to appeal to the SCC was denied.

[26] The Crown in this case asks me to rely on the reasoning in Major, a recent decision of the Saskatchewan Court of Appeal. Mr. Major drove his pick-up truck into a semi-truck. Three passengers died and three were seriously injured. As in this case, police seized the ACM and accessed data from the 5 seconds pre-collision including measurements of speed, braking and acceleration. The Court of Appeal reviewed the divergent jurisprudence from across the country on privacy in ACM data.

[27] Major adopts the findings in Fedan, which was decided in early 2016. The court in Fedan found that there was no residual expectation of informational privacy in the collision data extracted from the vehicle once the vehicle was seized post-collision pursuant to s. 489(2). The data did not provide any personal information or links to the driver and was not akin to computer data where individual users can control and input a wide range of information. As in many cases following Fedan, Tholl J.A., writing for the Court of Appeal in Major, noted that the data related only to driving activity which occurs in a public and highly regulated context.

[28] There is a distinct fork in the historical road of s. 8 jurisprudence on ACM or equivalent data, which continues to travel along two distinct paths. The Ontario cases are divided, most recently favouring s. 8 protection. The appellate cases are few, and not binding in Ontario, but both find no privacy interest. It is against this divergent backdrop that I conduct the s. 8 analysis in this case.

[29] The subject matter of the search is the ACM data. JS did not have the ability to control or input any ACM data. This case is a prime example of how little the data actually reveals. There is no biographical information related to the operator, owner or driver of the vehicle: Antsie, at paras. 42-46. The seatbelt indicator could indicate if the driver was wearing a belt, but that information was also available in an inspection of the motor vehicle on scene, as explained by DC Limb. There is information about accelerator pressure, but it does not indicate whether that pressure was applied by the driver or by anything resting on or colliding with the accelerator pedal. The data about “speed” also does not measure speed in a forward direction, it only measures the axle rotation, which says nothing about whether the vehicle was moving in a forward direction or just “spinning its wheels” in the air. The ACM data in this case reflects what various structures in the vehicle were doing, not what people were doing.

[30] JS has an interest in the data, but it is not as strong as in some other cases, such as Hamilton, where the driver asserted his personal knowledge of the creation and storage of data in the ACM and his intention to keep that data private from the state. JS is not the owner of the vehicle and did not testify as to how often she used the vehicle, the nature of permission to use the vehicle, or any conditions of use. As noted in Major, at para. 58, the driver could not “use” the ACM or control it any way, it was just a component of the vehicle that stayed with the vehicle and functioned in its normal operation no matter who was driving. Her connection to the subject matter was present but weak.

[31] JS did not assert a subjective expectation of privacy in the data; there is no indication as to whether she knew that any data existed. She was in present possession of the truck at the time of the collision, and I can infer that she had it with permission, given her friends’ testimony about her habitual use.

[32] Despite the limits on her connection to the vehicle, I am prepared to infer that JS had a subjective, though limited, expectation of privacy in the truck as in Major, at para. 59.

[33] I do not accept that her subjective expectation of privacy was objectively reasonable in the circumstances of this case.

[34] I respectfully part from the reasoning in Glenfield, Hamilton and Attard.

[35] There is no question that the territorial aspects of JS’s privacy interest were extinguished by the lawful plain view seizure of the severely damaged truck. Unlike in Attard, the applicant does not contest that the vehicle was lawfully seized by police and could be examined post-seizure The informational component is the centre of the privacy claim in this case.

[36] The information obtained is not akin to surveillance; it is 5 seconds in duration and has no link to any person or location, or even to time other than relative to an event. The data does not indicate what the triggering event was, so it does not even reveal which 5 seconds are covered by the data. That has become the source of argument in this case.

[37] The information is about manner of driving, a public activity. It cannot be manipulated or controlled by any individual. It reflects the state and movement of several mechanical components for a brief period. The information in this case does not include steering information or cruise control or other details that appear to have been referenced in Hamilton, at para 58 and in Attard, at para. 59, though it does include measurements not observable to a member of the public. At least some of those measurements, speed and seatbelt engagement, would be observable by police in the course of their duties including using technological measurement instruments like radar or speed cameras.

[38] Finally, I do not accept the parallel to an onboard computer and the privacy extant in personal devices. The fact that something is technologically as opposed to manually produced does not bring it within a more protected category of informational privacy on a normative level. Wireless internet signals emanating from homes are not considered private. It was not the waves of sound that were protected in R. v. Duarte, [1990] 1 S.C.R. 30, as suggested in Glenfield, at para. 50, it was the meaning of the data that engaged s. 8 concerns. The meaning or subject matter of the data here is not personal to an individual, it does not hint at patterns over time or at personal choices and lifestyle, and it does not violate the integrity or dignity of the individual or a relationship or communication between individuals.

[39] I find the analysis in Major at para 70 persuasive. In my view, JS could not reasonably have expected to keep the limited data stored by the ACM private. It addressed only the brief functioning of particular mechanical components in an uncertain time with no connection to her as an individual. The truck was in public with multiple passengers and clearly observable. The police have a duty to investigate traffic fatalities: Traversy v. Smith (2007), 52 C.C.L.T. (3d) 109 (ONSC), at paras. 29-31; Highway Traffic Act, R.S.O. 1990, c. H.8, s. 202. In my view, a normative approach favours a lack of objectively reasonable privacy in the limited exposure of data relating to a highly regulated activity, conducted in public, with severe public safety implications.

[40] In the circumstances of this case, as in the appellate decisions of Fedan and Major, and the Ontario cases of Antsie and Anastasis, I conclude that JS had no objectively reasonable expectation of privacy in the limited data obtained from the ACM of her family’s truck after its lawful seizure.

[41] This result is not a categorical finding that ACM data will never engage a reasonable expectation of privacy. The ambit of s. 8 is an ever-moving normative determination made on review of the totality of circumstances. The technology in vehicles is also rapidly advancing and may produce invasive or extensive private information in other vehicles at another time. As noted by Binnie J. writing for the court in R. v. Tessling, 2004 SCC 67, at para. 55, “…technology must be evaluated according to its present capability. Whatever evolution occurs in future will have to be dealt with by the courts step by step. Concerns should be addressed as they truly arise.”

[42] In this individual case, with the information actually provided, in the circumstances described, I find no breach of s. 8.

Section 24(2)

[43] “In the alternative” arguments are rarely particularly helpful, given that they are premised on a different view of the nature of state conduct than has been accepted already in finding no breach. However, the parties did make submissions on the s. 24(2) landscape in this changing area of law and so I will make the following comments relevant to the assessment of remedy under s. 24(2) as defined in R. v. Grant, 2009 SCC 32.

[44] First, the officer who extracted and viewed the data did receive training on the accessibility of ACM data and was able to articulate that he believed he did not require a warrant because the data was not personal in nature. He further testified that he recalled that he had been instructed on the privacy issue and told that a British Columbia case supported the direction that police officers were not required to obtain a warrant for this kind of data after lawful seizure because the data did not reveal any personal information relating to the owner or driver. He explained the section of the Code that provided his authority for the seizure. He had also received a message regarding Major from an email group of officers interested in this area in the weeks preceding the trial. In my view, his evidence demonstrates attention to Charter rights and ongoing communication in a group aimed to keep up on case law regarding lawful authority.

[45] I appreciate that there are a significant number of Ontario cases with a contrary result. None are binding. None are from Durham Region such that they comment directly on DRPS conduct, and the only one from this region, Anastasis, found no reasonable expectation of privacy in the data for reasons similar to Fedan (which I can assume is the BC case the officer vaguely recalled). It would certainly have been better if the officer’s training included flagging of the controversy in this area of law.

[46] Counsel for JS is correct that as mixed law develops, it is incumbent on police to recognize potentially viable privacy claims and consider adapting practices. Police may wish to consider that their practices leave them vulnerable if they proceed without warrant where some courts have required one. But it is not fair to say that police should be required to get warrants in any situation where there is debate on Charter boundaries and a warrant is available and would not be particularly difficult to obtain, as suggested in counsel’s comments. The constitutional question of expectation of privacy is not influenced by the relative ease or difficulty of obtaining prior judicial authorization. The bottom line is privacy: if it is properly engaged, it does not matter how inconvenient it may be to protect it. Nor do I find that this is a case like Attard, at para. 85, where the trial judge found that the officer knew of contradictory case law in his own region and deliberately disregarded it in favour of results he preferred in other cases.

[47] If I am wrong and extraction of ACM data does constitute a breach of s. 8, I would not find that the officer’s misjudgment was at the serious end of the spectrum. He turned his mind to privacy interests and was able to provide support for his chosen course of conduct with reference to the law on expectation of privacy in these exact circumstances. His review of the law was not complete, and he did not recognize the controversy, but I cannot say that he was reckless or negligent as to Charter rights of the defendant. Unlike in Attard, there was no apathetic attitude or wilful blindness. I would find that the first stage of the Grant test for exclusion of evidence would favour admission.

[48] The degree of intrusion on JS would also be slight in this case, favouring admission. There was no interference with her person and the information obtained related to the mechanics and motion of the vehicle, which did not belong to her, and did not relate to the driver in particular. It was a 5 second snapshot of information, which could largely have been observed from other sources including the physical structure of the vehicle (e.g. seatbelt mechanisms engaged), road markings, passenger accounts, and witness accounts. JS was not a fully licenced driver and could expect her driving conduct on public roadways to be closely scrutinized and regulated for safety purposes. The police are required to investigate traffic fatalities and would have easily had grounds for a warrant had one be required or sought here, so the outcome would not have differed.

[49] Finally, the evidence is real evidence and can be scrutinized and challenged fairly by counsel at trial, as it was here. It goes to the core issue at trial; defining the manner of driving. The public has a strong interest in truth-seeking when it comes to the horrible loss of life and injury resulting from collisions on public roads. I am mindful that JS is a young person and there is a need for attention to her circumstances in balancing all of the factors. However, I would find that the public confidence in the administration of justice would be diminished if the evidence was excluded.

TRIAL

[50] The issues on the trial proper are not complicated. The facts are mainly uncontested aside from an issue with regards to the opinion of the reconstructionist and the law is not controversial. I will outline the salient facts and legal principles before applying the law to the facts.

The Events of October 24, 2021

[51] The parties collectively managed this trial so as to minimize the trauma re-lived by those involved. I am grateful for their professionalism.

[52] I heard from 5 of the 7 young people who were in the truck that night, and 3 young men who heard the crash and came to assist. Their evidence collectively established the events of the night, including the essential moments just before the crash.

[53] JS and her friends gathered at her home that night and had a few drinks. At some point they decided to go to a party at a rural home. JS drove them all in the GMC truck.

[54] The group stayed at the party for some time and then gathered to leave when the property owner shut down the event.

[55] JS drove back along the same route she had taken to the party. The passengers were largely on their phones and listening to music. The GMC had 7 occupants, 3 in the front and 4 in the back. There were only 6 seatbelts. Initially, no one wore a seatbelt on the drive home.

[56] As the vehicle went over a hill on Sideroad 18, TS, who was sitting in the front passenger seat, noticed that the vehicle seemed to be going too fast. He said something like “slow down”, a few times, and he put on his seatbelt. As they went over the next hill, he felt scared and felt a sensation in his stomach.

[57] Another passenger, GM, also felt that they were going pretty fast, but he didn’t recall feeling scared. MO, who was also in the front seat, in the middle, said they were going a bit fast but she wasn’t sure of the speed.

The Collision

[58] TS recalled that as the truck approached the final hill, JS applied the brakes and the truck began to skid on the gravel. He said the truck swerved to the side, then corrected, swerving to the other side as it went down the hill. The truck then twisted, went off the road, up an embankment, and then started to roll. GM agreed that the truck seemed to fishtail one way and then the other before flipping and rolling multiple times.

[59] In the course of the rollover(s) 6 of the occupants were thrown from the truck. The one passenger who was wearing a seatbelt was later extracted from the vehicle by firefighters.

[60] At the time of the rollover, JS’s blood alcohol concentration was 12 mg of alcohol in 100 ml of blood. It was low, but above the legal limit for her conditional licence.

The Aftermath

[61] Several young people were enjoying a bonfire outside near Sideroad 18 when they heard the collision. They ran out to the road and saw the wreckage. They called 911 and tried to locate all occupants of the vehicle and to offer what assistance they could.

[62] Police, fire trucks and ambulances arrived on scene. They attended immediately to the vehicle’s occupants.

[63] BM died from the head injuries he suffered in the collision.

[64] The 5 other passengers were airlifted or transported to hospitals in Toronto with injuries ranging from stable to critical. There is no question that the injuries they suffered, which are detailed in the agreed statement of facts, make out serious bodily harm. There was no evidence as to JS’s condition.

[65] The truck rested upright but was severely damaged, as detailed below.

[66] DC Limb was a Level 4 Investigator with the Collision Reconstruction Unit of Durham Police. He attended the scene just after 3:00 am. There were still multiple police and emergency vehicles on scene and there were tire tracks and discarded items on the road from the EMS attendance and action. It was dark but dry outside. DC Limb observed the GMC in its final resting place and walked the stretch of road making observations and noting particular areas or items of interest which were then photographed. He took various measurements on scene. He left just after 7:30am when the sun was starting to rise.

[67] When DC Limb went back to make further observations two days later, the road had been regraded, so there were no remaining marks.

[68] Over the next few days DC Limb went to the storage facility and extracted the ACM data as described above. Using the data and his observations, and a report prepared by a DRPS mechanic, DC Limb prepared a Reconstruction Report which was admitted on consent at trial.

Road Conditions

[69] DC Limb described and measured and photographed the stretch of road where the truck skidded and rolled. It was a straight rural road with a significant slope and no lighting. It had a loose gravel surface. The conditions were dry and clear. DC Limb thought the road was in good repair, though the photographs show depressions throughout. There were no shoulders. The sides of the road had embankments and ditches and some displaced gravel. The speed limit was 80 km per hour but was not posted.

[70] Two young men who came to assist after the crash described the condition of Sideroad 18. JE testified that he had driven that stretch of road before. He described it as pretty bumpy throughout, with a hill that “comes out of nowhere”. He recalled feeling a sensation in his stomach as he drove over that hill, even at a normal speed, when his mom was the driver.

[71] TT described that stretch of Sideroad 18 as very hilly, with a lot of loose gravel. He said it was a road that should be driven with caution especially in the dark. NR also said the road required caution and was soft and had quite a few elevation changes and loose gravel. He too noted that sometimes there was a sensation when cresting the hill because of the sudden drop. He also noted that in driving a truck over the potholes on that road, the back of the truck tends to swing or bounce to the side.

[72] The young people who testified said that there was very little traffic on the road at that time and location. There was one home some distance from the landing place, but it is not a busy spot.

Expert Qualification

[73] DC Limb was called as an expert witness to give opinion on the cause and course of the collision, including interpretation of the ACM data (subject to the Charter argument addressed above).

[74] The parties agreed that the data from the ACM was properly authenticated and met the requirements of the Canada Evidence Act for admissibility of electronic evidence. I agree with these concessions.

[75] There was limited questioning and argument on one area of expertise, and the reliability of the foundational data, which was raised as a concern with this kind of data in Major. In Major, there was no information as to whether the EDR recorded data accurately (para. 93). The EDR data was the basic building block of the CDR analysis software (the same software used here). There was therefore no basis, in evidence, upon which the judge could determine the reliability of the foundational evidence used by the expert (para. 95).

[76] In this case I had a more robust foundation for the reliance on CDR software. DC Limb explained his extensive training on the download and use of CDR data, alongside many other data forms and sources used in evaluating speed estimate and accident reconstruction. DC Limb said that he had been trained on the use of CDR data and, importantly, had engaged in comparisons to test the accuracy of CDR data as against other methods of speed determination.

[77] At the end of the evidence, the parties reasonably agreed that there was an available evidentiary foundation for qualification of the expert on the area of interpretation of ACM data produced through the CDR and invited me to accept their position that his expertise was made out sufficiently to allow the evidence to be admitted. I agree with the conclusion that, unlike Major, there is, in this case, a solid evidentiary basis to conclude that DC Limb has the necessary training, knowledge, skill and experience to qualify him as proposed.

[78] Although I am satisfied that DC Limb met the threshold for admissibility of expert evidence, there was one particular area of concern with regards to his understanding of the role of an impartial expert. DC Limb was asked numerous times whether he knew for certain which event was recorded in the data on the ACM. He said he believed it was the point at which the truck “tripped” and explained that his opinion was based on the assumption that the recorded event will be the most severe event experienced by the vehicle. He was confronted with the possibility that the event recorded in the 5 second capture was actually the rolling and landing of the truck. He agreed that was possible. Then it was put to him again that he did not know that the tripping event was the event recorded and he again said that he believed that the tripping event was the recorded non-deployment event. The question was repeated three times with an emphasis on the certainty of opinion. Three times the officer refused to answer and repeated his belief. Finally, he admitted it was possible that he was not correct. He also had to be pressed numerous times before admitting that his belief that the most serious non-deployment event would be the one that is saved on the module was not supported by any evidence or by the specifications set out in the CDR software manual for this specific vehicle. That kind of obstinance in the face of obvious possibilities is not reflective of the detached and objective expert that courts require to rely fully on opinion evidence.

[79] I have determined that DC Limb was properly qualified and his opinion was admissible. I will comment on the reliability of his conclusions below.

The Collision Report and Related Testimony

[80] There were several components to the Reconstruction Report. DC Limb considered the road and weather conditions, the physical examination of the vehicle, roadway evidence, a mechanical report, and the ACM data.

[81] The physical examination revealed that the 2006 GMC was extremely damaged. One wheel assembly was entirely separated and had come off at some point in the collision. All three other tires were flat. The windshield and windows had been blown out and shattered save for the back driver’s side. The top of the vehicle had scratches and a severe deformation suggesting at least one impact with the roadway. The bumper was smashed in and there was grass and debris in multiple areas on the frame. The airbags did not deploy.

[82] The mechanical report concluded that the vehicle would not have passed a safety examination. The truck had been modified by a lift kit and non-standard tires, which effected the safety specifications of the vehicle. Both the larger tires and the lift kit raised the centre of mass of the truck, making it more likely to roll. The change in tire size affected the accuracy of the measurement of speed of the vehicle such that the speed displayed on the speedometer would be lower than the actual speed of the vehicle.

[83] More significantly, the left rear brake was leaking fluid which affected the brake shoe. The officer characterized it as “unfunctional”. He agreed that it may have taken longer to slow the vehicle given the deficiency. That feature was not factored into his analysis of likely driving pre-collision.

[84] The ACM data was presented in a chart that showed the vehicle speed, engine speed, and indication of whether the brake pedal was engaged for the 5 seconds prior to the event that triggered the system. Calculations were applied to change the speed from mph to kmh and to increase the speed to reflect actual speed with the larger tires on this vehicle. The resulting data is summarized as follows:

Time	Speed (kmh)	Engine Speed (rpm)	Throttle %	Brake Switch
-5	130.86	1920	0	Off
-4	123.98	1856	16	Off
-3	149.81	3520	100	On
-2	151.53	3200	10	Off
-1	48.21	1536	0	Off

[85] Putting together all of the data reviewed, DC Limb concluded that the truck lost control while travelling down a steep slope at a very high rate of speed. It then travelled off the road through a small ditch and hit an embankment, where it started rotating back across the road, causing gravel to fan out. The truck then “tripped”, with the front driver’s side digging into the ground, which caused the vehicle to roll, land on the passenger side and keep rolling until its final resting place upright.

[86] As will be discussed further below, DC Limb believed that the “tripping” of the vehicle is what triggered the safety system and the storage of 5 previous seconds of data. Using that conclusion, he calculated distances backwards and, using speeds from the ACM, determined that JS was driving at up to 151 km per hour down the hill.

[87] Cross-examination exposed significant problems with the ACM data. First, the data is stored relative to a non-deployment event, which can be any significant event for the vehicle that does not set off airbags. Although DC Limb believed it was the tripping that triggered the recording, he agreed it could have been a later event such as the upside down impact or the final jolt as the truck landed. The time from which the statistics are gathered is therefore unclear.

[88] A second problem with the data is that any calculations of distance and speed depend on the truck being on the ground travelling in a straight forward direction. Based on witness accounts and observations of the truck, it was fishtailing or swerving and skidding side to side and was sideways or upside down for at least two but possibly more rollovers. Measurements of axle rotation (which is how speed is measured in the ACM) do not correspond to forward trajectory if the vehicle is skidding sideways or the tires are not on the ground.

[89] In sum, it is not possible to tell with any degree of certainty which 5 seconds of time were measured relative to the final resting place of the truck, or what position the truck was in for each of the 5 second interval measurements provided.

THE LAW

[90] The parties have no quarrel over the applicable law for the offence of dangerous driving. The Crown must prove beyond a reasonable doubt that:

a) the driving was dangerous when considered in all of the circumstances, and

b) the driver’s conduct demonstrated a marked departure from the standard of a reasonable driver in similar circumstances: R. v. Beatty, 2008 SCC 5, at para. 43; R. v. Roy, 2012 SCC 26, at paras. 28, 33-36.

[91] The conduct element, dangerousness, is decided with reference to the nature, condition and use of the place of driving, and the amount of traffic that was present or might reasonably have been expected at the time: Roy, at para. 28.

[92] The horrible consequences of the driving in this case increases the seriousness of the offence, but they do not prove that the conduct was dangerous: Beatty, at para. 46; R. v. Stennett, 2021 ONCA 258, at para. 87. People can drive dangerously and have the fortune not to cause harm, and people can cause harm without objectively dangerous driving. The focus is on the risks created by the manner of driving. I cannot jump to the conclusion that the driving was dangerous because of the terrible consequences in this case: Roy, at paras. 34-35.

[93] Driving that is objectively dangerous (the physical element) is not necessarily a marked departure from a reasonable standard (the mental element).

[94] The fault element of dangerous driving is determined on a modified objective standard, which means that I must consider what a reasonable person would do in equivalent circumstances, but I do not consider the exact personal characteristics of the driver such as age and education: Beatty, at para. 39; Roy, at para. 38.

[95] The fault element can be established in circumstances where the only departure from a reasonable standard of care is momentary excessive speed: Stennett, at para. 93; R. v. Chung, 2020 SCC 8, at para. 19; Roy, at para. 41. It is important not to isolate one factor or create strict lines of categorical conduct that is or is not dangerous or a marked departure: Chung, at para. 27. The assessment must be made individually in each case with reference to all of the circumstances at play. Brief inattention or carelessness would not represent a marked departure from a reasonable standard, but brief periods of excessively and obviously risky behavior could: Roy, at para. 37; Stennett, at para. 80.

[96] As explained in Roy, at para. 36, it can be helpful to approach the fault analysis as a consideration of whether the reasonable driver would have foreseen risks in the situation and taken steps to avoid them. If so, then the court considers whether the defendant’s failure to attempt to avoid risks rises to the level of a marked departure from the standard of a reasonable driver in the circumstances.

APPLICATION

[97] I am satisfied that JS drove too fast for the circumstances. The evidence of the passengers demonstrates that the speed was noticeably and uncomfortably high, significant enough for one person to engage his seatbelt and another to put away his phone. That evidence satisfies me that there was excessive speed. The circumstances that night demanded some degree of caution with regard to speed. It was dark, and the road was known to be hilly and uneven. JS drove on that very road hours earlier and was aware of its condition.

[98] As I have noted, excess speed alone can amount to dangerous driving. However, in this case, I do not find that the Crown has proved that the speeding was so excessive as to amount to dangerous conduct in all of the circumstances, nor can I find other driving conduct that could be assessed as dangerous given the lack of certainty of what happened in the truck prior to the rollover.

[99] The lack of clear evidence of what happened at the top of the hill and leading up to the final resting spot leaves me with a reasonable doubt about whether JS’s conduct meets the required degree of dangerousness. The passengers reported feeling like the truck was going fast or too fast but could not fix the speed at which JS was travelling nor could they say that it exceeded the legal limit, which was confirmed to be 80 km per hour. The civilian witnesses also described a stomach sensation arising on that particular hill even when travelled at a reasonable speed, as well as potholes or depressions which can cause a light truck to bounce in the back.

[100] The ACM data does not assist with speed in the sense of assessing forward trajectory of the vehicle while driving before the vehicle flipped in the air. The Crown is correct that the ACM data is not unreliable in the sense that it is false. I accept that the data accurately records and reflects the functioning of various vehicle mechanisms. The problem is in the interpretation. DC Limb admitted that ACM data must be interpreted in conjunction with other information such as road markings, witness accounts, and physical evidence in order to give it meaning in terms of drawing conclusions about human behavior. Alone, it is difficult to take any meaning from the data. For example, at -5 seconds there is a high speed but no throttle pressure. Then at -4 seconds, the throttle pressure increases and the speed decreases, without evidence of brake activation. There is an indication that the brake was pressed at -3 seconds, but the speed thereafter at -2 seconds is faster, which is odd given the braking, though perhaps explained by acceleration. Overall, the numbers leave me with many questions and many potential answers.

[101] I heard at trial that the speed calculations from the ACM are drawn from the tire rotation speed. But I also heard from the occupants that they believed the truck rolled over more than once, and DC Limb confirmed that it likely rolled at least twice and also skidded sideways, so the measured tire rotation may not have occurred while the tires were in contact with the road or moving in a forward downhill direction. This would undermine all of the calculations DC Limb made about where the vehicle was when certain speeds were reached (i.e. at the top of the hill and under control).

[102] The uncertainty in timing of the recorded data also impedes my ability to assess the driving conduct. DC Limb ultimately admitted, albeit reluctantly, that there were at least 3 non-deployment events that could have triggered the recording of data. He also agreed, very reluctantly, that he could not be sure which event produced the data preserved in the ACM and offered in court. He assumed that it was the moment that the truck “tripped” on the side of the road before it rolled. That would mean that the data retrieved represented the 5 seconds of driving as the vehicle descended the top of the hill and before it flipped. If that were true, the measured speed of 149 km per hour, 3 seconds before the system was triggered, would be the speed at which JS was driving down the hill, nearly twice the limit, with full throttle pressure and little to no braking in the surrounding seconds. Such driving, if proved, would in my view constitute dangerous conduct.

[103] However, if DC Limb is wrong about the triggering event, and it was actually the point at which the top of the vehicle crashed into the roadway, or the point at which the truck landed with force in its final resting spot that constituted the non-deployment event recorded in the system, then the data does not in fact say anything certain about what JS did or did not do when driving the truck over and down the hill. The data could represent spinning of wheels in the air with no forward trajectory at all. The momentary full pressure on the accelerator could be caused by a panicked driver, but ineffectual given the truck was not on the road. Or, as admitted by DC Limb, the throttle pressure could possibly have been caused by the impact of an object or the foot of the middle front passenger as the vehicle spun and flipped. Certainly, once a vehicle is rolling or flipping off the road, there is no reasonable way to respond that will fix the situation.

[104] Without knowing what the driving was preceding the rollover, it is also difficult to assess the degree of departure from the reasonable standard of care. I do know that JS got behind the wheel with alcohol in her system and too many passengers and not enough seatbelts. She did not make her passengers wear seatbelts. She drove fast enough over the steep and familiar hill to cause her friend to remark and call for caution. But going some immeasurable degree faster than is comfortable is not conduct that appears to me to be a marked departure on its own.

[105] There is no evidence in this case that she deliberately engaged in risky behavior, for example trying to scare passengers, or show off, or race. Such evidence is not required but can go a long way to establish the fault element. In the absence of that kind of evidence, I can infer the mental element and marked departure from the driving itself. But as I have noted, I have no reliable information that conclusively establishes what the driving was, other than feeling too fast and the skidding and swerving over potholes and into an embankment. I don’t know at which point the driver lost control, and what role the faulty brake may have played in the success of her corrective measures.

[106] Put another way, the risks in the situation that led to the rollover were not entirely foreseeable. The fact that the vehicle had been modified by a lift kit and larger tires changed the accuracy of the speed data displayed to the driver, so the speedometer would have registered a speed lower than the actual speed of the vehicle. The lift kit and tires also raised the centre of gravity of the truck, making it more prone to rollovers. More significantly, and unknown to the driver, the faulty rear brake could reasonably have impaired the ability of the driver to respond effectively to any risks presented by the conditions of travel, for example hitting a pothole in the dark on a steep hill.

[107] TS said that when he made the comment about speed, as they got to the second hill, JS braked. When she was alerted to speed being a concern, JS may well have applied brake pressure in a reasonable fashion, but the brakes may not have responded in a proper effective manner. She would not have known that the brake was damaged. It is reasonable and probable that the damaged brake would have decreased the effectiveness of the normal driver response of slowing to avoid collision. I don’t know how significant the impact of brake damage on one side would be, or whether it caused any other result, such as sideways movement on the road, but DC Limb did agree that it would decrease the efficiency of braking. He did not factor it in to his conclusions on the driving, nor did he factor in the impact of the destroyed wheel. Once a wheel came off, the measurements of speed and engine power would not have the same meaning. It is entirely unknown when the wheel flew off, though it was found up the road from the truck’s resting place.

[108] Speeding alone can constitute dangerous driving, but I am left with uncertainty and therefore reasonable doubt about her speed and any attempts she may have made to steer or brake when entering into the stretch of the crash.

[109] In all of the circumstances, I can conclude that JS was careless and ought to have driven more slowly in those conditions, using proper safety features. She and her passengers and their families have paid terribly for that lapse. However, given the uncertainty of what she did and what risks the road and truck itself posed, I cannot find beyond a reasonable doubt that her conduct was a marked departure from the standard a reasonable driver would employ in like circumstances.

CONCLUSION

[110] Having considered the whole of the evidence, I conclude that the Crown has not proved beyond a reasonable doubt that JS drove dangerously. JS made some bad decisions that night: to drive without seatbelts with too many passengers, and to drive too fast down a dark, hilly, gravel road. But without any precise indication of speed prior to the truck rolling, and without an understanding of the impact of the brake malfunction or the specific path or mechanism of the crash, I cannot conclude that her driving was dangerous in all of the circumstances, or that it met the high criminal standard of a marked departure from the standard of a reasonable driver.

[111] Given the uncertain meaning of the ACM data, I don’t know what speed the vehicle travelled under JS’s control or whether any of her actions or corrective actions failed to meet a reasonable standard of diligence. JS must therefore be acquitted of the charges before the court.

[112] There is no satisfaction in this decision. Nobody wins. There is only tragic loss all around: the loss of young life, the horrible recovery from serious injury, and the never-ending impact on the wide circle of victims and loved ones. I am grateful to the counsel involved for their professional and focused manner of proceeding to spare those involved unnecessary pain.

Released: May 5, 2023 Signed: Justice S Magotiaux

[1] I have referred to the data at issue as “ACM” or Airbag Control Module data because that is how it was identified in this case. The same kind of brief pre-collision data is sometimes referred to as “EDR” (Event Data Recorder) information or “CDR” data, so named for the proprietary Crash Data Retrieval software that is used to extract it from the vehicle.