Court File and Parties

Date: December 7, 2023 Information No.: 21-8095

Ontario Court of Justice

Between: His Majesty The King

— And —

Skeeter Ba Thain

Before: Her Worship Justice of the Peace H. DeBacker

Counsel: Mr. Walter Costa, for the Prosecution Ms. Victoria Yang and Mr. D. Joel Dick, for the Defendant

Matter Heard: September 14, 2023

DeBacker JP.:

Decision on Trial and Decision on 11(b) Charter Motion

[1] Ms. Skeeter Ba Thain is charged on the 27th day of January 2021 at the Municipality of Leamington, did commit the offences of did drive a motor vehicle on a highway, to wit: Essex County Road 18, Leamington, carelessly, to wit: without due care and attention or without reasonable consideration for other persons using the highway, and did cause death to Pah Gae, contrary to Section 130(3) of the Highway Traffic Act; and further count 2, same driving event and charge, did cause death to Paw Day, contrary to Section 130(3) of the Highway Traffic Act; lastly count 3 same driving event, did cause bodily harm to Paw Ler, contrary to Section 130(3) of the Highway Traffic Act.

[2] On the 14th day of September, 2023 heard was both a Charter 11(b) delay motion as well as the trial. After conclusion of submissions on the Charter motion, the court required time to thoroughly consider all the lengthy detailed information and arguments presented. Rather than adjourn to return at yet another future date, on agreement of all parties, since all were ready to proceed with trial, the trial proceeded and was concluded, except for this decision. The court will first address its decision of this trial on its merits, then will subsequently address the Charter motion.

[3] It was not in dispute and it was agreed by both prosecution and defence that Ms. Skeeter Ba Thain was the driver of a blue sedan motor vehicle on the 27th day of January, 2021 upon Essex County Road 18, in the Municipality of Leamington. Ms. Ba Thain’s motor vehicle came into collision with a semi-trailer upon Essex County Road 18 within her lane of traffic. There were four occupants in Ms. Ba Thain’s vehicle. Most tragically, two persons, close friends and co-workers of Ms. Skeeter Ba Thain lost their lives. Ms. Ba Thain’s sister, the third passenger, suffered serious bodily harm as did Ms. Ba Thain herself.

[4] The issue in dispute was whether Ms. Ba Thain drove carelessly; without due care and attention or without reasonable consideration for others. The more narrowed issue in dispute was the visibility or lack of visibility of the semi-trailer Ms. Ba Thain collided with.

[5] The collision occurred after 7 p.m. on the 27th of January, 2021 in the dark of winter. Essex County Road 18 is a rural highway with no street lights nor any other artificial lighting. It is an 80 kilometre zone. The prosecution presented a video of the location taken by police collision reconstructionist Bortolon. Bortolon’s video was taken during daylight hours. Bortolon’s video did not in any way, by any realm of imagination, exemplify the lighting or lack of lighting that would have been present or lacking at the time the collision occurred which was night-time, in the heart of winter. His evidence however did prove beyond any reasonable doubt the rural setting of the location, the lack of artificial lighting and 80 kilometre zone.

[6] Exhibits 2 and 7 photographs depict the vehicles involved. The court heard fire and rescue services responded to extract and care for the injured. Fire and rescue services set up high-powered lighting for these tasks. Fire and rescue services left the high-powered lighting in place for police to continue with and conclude their investigation. Exhibits 2 and 7 do not in any possible way depict the lighting or lack of lighting at the scene when the collision occurred. These photographs were taken under high-powered, artificial lighting that was absent at the time of the collision.

[7] Specifically, the semi-trailer’s description is relevant. This semi-trailer was not the common closed-boxed type, where the box itself often has reflective properties or colours, along with reflective strips along both the top and bottom lengths horizontally and both the forward and rear sides vertically as depicted in police-created Exhibit 6. Rather, the semi-trailer involved was a flat-bed style with a short, open-air, permanent perimeter enclosure. The perimeter enclosure was black with 10 to 12 light-coloured narrow vertical posts evenly spaced along the length of the trailer. The load carried by the trailer, was much larger than and exceeded in height more than double, the perimeter enclosure. This load appeared to bulk up and out from the trailer base. This load was entirely, snugly tarped up, in black tarp. There were no reflective strips of reflective tape anywhere along the load itself. Not horizontally along the top. Not vertically along the front or rear of the black-tarped load. There was one narrow horizontal strip of reflective tape along the base of the permanent open-air-style semi-trailer.

[8] Exhibits 2 and 7 depict the position of the vehicles and semi-trailer involved. Firstly, the semi-tractor was positioned almost entirely within the opposite westbound lane of travel from Ms. Ba Thain. The driver of the commercial semi-tractor was said to be reversing the semi-trailer and semi-tractor on an angle into a long driveway or laneway, which driveway was at a common perpendicular angle with Essex County Road 18 on the opposite side of the roadway from its direction of travel. The semi-trailer’s front end was attached to the semi-tractor in the westbound lane. The rear sets of tires of the semi-trailer were completely within the driveway or laneway on the opposite side of travel for the unit. Said another way, to Ms. Ba Thain’s right, the semi-trailer’s tail end was well within the driveway. To Ms. Ba Thain’s left, the semi-trailer’s front end was attached to a semi-tractor in the opposite lane of travel. The semi-trailer completely and entirely blocked Ms. Ba Thain’s lane of eastbound travel.

[9] Absence or presence of lighting or illumination. Because the semi-tractor was positioned within the opposite westbound lane of travel than Ms. Ba Thain, the tractor’s headlamps would have projected towards Ms. Ba Thain as she approached. There was no evidence whatsoever on the presence or absence of hazard-warning lights projecting from the semi-tractor. Neither officer gave evidence regarding hazard-warning lights. This court finds: hazard-warning lights were not illuminating from the semi-tractor at the time of the collision. This court therefore further finds: there would have been nothing overly unusual from Ms. Ba Thain’s view of the semi-tractor itself, which would have had headlamps illuminated towards Ms. Ba Thain from an opposite, approaching lane, completely within its own, opposite, approaching lane. The only spark of unusualness would have been the speed or lack of speed of the semi-tractor. Ms. Ba Thain herself was not speeding. It was determined, though investigative methods, she travelled the speed limit precisely, 80 kilometres an hour.

[10] As she travelled along, Ms. Skeeter Ba Thain did not grasp a semi-trailer completely blocked her lane of travel until it was far too late, then the collision ensued.

[11] Was the semi-trailer that completely blocked Ms. Ba Thain’s lane of travel visible to her as she approached? The prosecution contended the semi-trailer was visible and that Ms. Ba Thain failed to respond and stop in sufficient time because she drove without due care and attention or reasonable consideration for others.

[12] The court heard the semi-trailer was equipped with periodic amber lights that ran horizontal along the lower frame rail of the trailer. However, there was no evidence presented at trial whether those amber frame-rail lights were on or off at the time of the collision. There were red-tail lights at the rear of the semi-trailer. Ms. Ba Thain would not have had a view of the rear of the semi-trailer by any stretch or means. The only certain method available to Ms. Ba Thain to identify that there was a semi-trailer completely blocking her lane of travel was that one narrow strip of reflective tape along the frame-rail of the semi-trailer. Was that one and only strip of reflective tape visible to Ms. Ba Thain? Was that one and only strip of reflective tape enough warning to any approaching driver, for that driver to comprehend the danger and respond adequately?

[13] It was suggested the semi-tractor’s driver was in the process of reversing into a laneway or driveway. That factor did not appear to be in dispute. The entire semi-trailer was a very dark, slow-moving mobile mass. The evidence confirmed the semi-trailer’s angles would have moved and changed during reversing maneuvers. However, there was no evidence presented that could confirm, nor did confirm, at what angles and distance would that one narrow strip of reflective tape be visible to an approaching driver, and/or at what angles and distance would that one narrow strip of reflective tape not be visible to an approaching driver? The only evidence was, that the effectiveness of the one narrow strip of reflective tape could be affected by the angles. Further, the officers did not dispute under cross-examination, that the projective headlamp lighting from the semi-tractor could have had a negative effect upon the visibility of the illumination of that one narrow strip of reflective tape to any approaching driver.

[14] Careless driving is a strict liability offence. R. v. Shergill, 2016 ONCJ 163. In R. v. Shergill in answer to the question, ‘Can the fact of an accident alone establish the actus reus of careless driving?’ Justice Epstein said at paragraph 23:

“a contextual analysis must be undertaken in each case. … If, in the circumstances, 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, then the actus reus has been made out.”

Likewise, in paragraph 24, Justice Epstein said:

“If the fact of an accident may give rise to reasonable inferences other than that the defendant was driving carelessly, then it will not establish the actus reus.”

R. v Shergill further confirmed, the proper focus must be on the conduct of the defendant’s driving at the precise time of the incident that gave rise to the collision.

[15] This court will make the following findings of fact regarding the contextual circumstances of the collision involved: For certain, the semi-trailer was a flat-bed open-air style semi-trailer. For certain, its load carried that night was a snugly wrapped mass in black tarp. For certain, there was no horizontal reflective strip along the top of the black-tarped load. For certain, there were no front nor rear vertical reflective strips on the black-tarped load. For certain, there was only one reflective strip which ran horizontal along the base of the flat-bed semi-trailer. For certain, it was a dark night in a rural area with no artificial lighting. For certain, the black-tarped load itself would be as dark or darker than night, and not visible to an approaching driver during the dark of night. For certain, full blockage of Ms. Ba Thain’s otherwise free and unobstructed lane of travel was completely and definitively an unexpected hazard.

[16] Regarding visibility of the semi-trailer to Ms. Ba Thain as she approached, this court finds: there was no evidence presented that could confirm the semi-trailer’s amber side lights were on at the time of the collision. In addition, there were a number of factors present that diminished the effectiveness of any reflection visible for Ms. Ba Thain’s view of the semi-trailer’s single narrow reflective strip as she approached. The angle or angles of the slow-moving semi-trailer as well as the semi-tractor’s headlamps pointed directly at Ms. Ba Thain from the opposite lane of travel.

[17] In conclusion, this court finds: There exists other rationale for the collision other than Ms. Ba Thain’s driving falling below a standard expected of reasonably prudent drivers. Rather, another plausible explanation exists. Firstly, there were no hazard-warning lights to alert any approaching driver of the obstacle, during the dark of night in the heart of winter. Secondly, the court cannot conclude the semi-trailer’s amber side lights were on, leaving one, sole narrow reflective strip of tape on the semi-trailer as the only means to alert any approaching driver of the hazard. The one narrow strip of reflective tape was insufficient, given the effect of the mobility of the semi-trailer’s mass and the semi-tractor’s headlamps, to alert Ms. Ba Thain as she approached a completely unexpected hazard with virtual to no warning. Ms. Ba Thain, the court finds the actus reus of careless driving has not been proven against you. This Court finds you are not guilty to these three charges are they are hereby dismissed.

[18] Lastly, counsel Ms. Victoria Yang brought a Section 11(b) Charter delay motion. The trial was held 2 years, 7 ½ months after the collision date. Importantly, the time between the charge date and trial was 2 years and 3 months = 27 months. Disclosure and lack of cooperation by police to provide disclosure was the main cause of delay. There were far too many communications between Ms. Yang, the prosecutors; and Ms. Yang and the police directly, to recount. Disclosure sought was not only mere or trifling, it was significant and reasonable. There were discrepancies in police-sourced information regarding what evidence a dashboard camera mounted on the semi-tractor may have held. Ultimately, it was determined police lacked the know-how to obtain the dashboard camera video. It became necessary for defence to hire their own forensic engineer, whose report issued November 24, 2022, some 17 months after the charge date.

[19] Officer Bortolon attended the collision scene on the date of the collision, namely January 27, 2021. Presumably he authored his report shortly thereafter. Defence counsel did not receive the complete and full report until March 2023. I am aware of R. v. Gandhi 2016 ONSC 5612, [2016] O.J. No. 4638, nonetheless, lack of action by the authorities, was disheartening given there was no explanation for it and that loss of lives and serious injuries were sustained.

[20] Ms. Victoria Yang presented solid argument in the Charter delay motion. The presumptive ceiling of 18 months set by Supreme Court of Canada in R. v. Jordan (2016) SCC 27 was well exceeded. This court finds a Charter breach existed. The defendant has been prejudiced. She has suffered psychological harm awaiting conclusion of this important matter. The delay falls primarily at the feet of the prosecution. This court would have granted the Charter motion for delay, however, I have already found the defendant not guilty on all counts.

Released: December 7, 2023

Justice of the Peace H. DeBacker