ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 2009-15
DATE: 20120517
BETWEEN:
HER MAJESTY THE QUEEN – and – James Cook Defendant
Wesley Beatty , for the Crown
Killian May , for the Defendant
J.S. O’NEILL
REASONS FOR SENTENCING
[ 1 ] PART A: The Charges Before the Court
[ 2 ] None of us wanted to be here today, in this courtroom on May 17, 2012. Not Mr. Cook, Andree Sequin, and his family members. Not Mr. and Mrs. Decoste, and their family members. Except that we all know that Zachary Decoste wanted to be here today.
[ 3 ] And that’s what makes this a sad and tragic day, in the lives of two different families. Yet it is a day that these families must live through, and that all of us, whatever our role or position is, must work through and so in this courtroom today, we must begin the process of sentencing Mr. James Cook for the offences that he has been found guilty of and convicted of.
[ 4 ] On June 16, 2009 an Indictment was filed with the Superior Court of Justice at Parry Sound. The Indictment contained three counts which are reproduced below:
James Cook stands charged:
THAT, JAMES COOK, on or about the, 5 th day of January in the year 2008 at the Township of Armour, in the Northeast Region, in the Province of Ontario, did while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and thereby did cause the death of Zachary DECOSTE; CONTRARY to section 255(3) of the Criminal Code of Canada ;
AND FURTHER THAT JAMES COOK, on or about the 5 th day of January in the year 2008 at the Township of Armour in the Northeast Region, in the Province of Ontario, did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood did operate a motor vehicle; CONTRARY to section 253 (b) of the Criminal Code of Canada ;
AND FURTHER THAT JAMES COOK, on or about the 5 th day of January in the year 2008 at the Township of Armour in the Northeast Region, in the Province of Ontario, did operate a motor vehicle while disqualified from doing so; contrary to section 259(4) of the Criminal Code of Canada .
[ 5 ] On February 9, 2012, following a 44 day trial, guilty findings were made against Mr. Cook in relation to counts 1, 2 and 3, and convictions were entered and registered with respect to counts 1 and 3. A stay of proceedings was entered with respect to count 2 based on the Kienapple principle.
[ 6 ] In my reasons for judgment delivered on February 9, 2012, I set out in brief the overview with respect to the events from the evening and early morning in question which I reproduce at this time:
[ 7 ] On January 4, 2008 Zachary DECOSTE and the accused, James Cook, left the Cook residence and proceeded together on Mr. Cook’s snowmobile to Steve Rumford’s residence. They arrived at approximately 10:00-10:30 p.m. Mr. Cook had voluntarily consumed beer both at his home earlier in the day, and while at the Rumford residence.
[ 8 ] In the early morning hours of January 5, 2008 the accused and Zachary DECOSTE left the Rumford residence on Chetwynd Road in Sundridge and proceeded back in the direction towards the Cook residence at 31 McLaren Lane in Sundridge. While travelling along Muskoka Road northbound in Strong Township at a point just north of Pevensey Road, the snow machine came over a rise in the road and proceeded down an incline towards a right turn. The turn was not negotiated correctly. As a result the 1998 Skidoo Mach 800 snowmobile exited the roadway and came into collision with a large maple tree located west of the westerly boundary of the roadway.
[ 9 ] Zachary DECOSTE was killed as a result of the ensuing collision while the accused James Cook sustained a fracture to his left femur and other bodily injuries.
[ 10 ] At approximately 1:39 a.m. the accused telephoned 911 and spoke with operator Christina Myles. The transcript of the 911 call and ensuing conversation was filed as exhibit 6 at the trial and I reproduce the initial portions of the conversation between the accused and Christina Myles:
Christina Myles: Ontario Provincial Police what is your emergency?
Jamie Cook: I don’t even know where I am all I know is I crashed my snowmobile and my leg really hurts. There’s nobody around and I’m fucking I’m dying.
Christina Myles: Okay and is anybody with you?
Jamie Cook: I don’t know. I don’t remember.
Christina Myles: You don’t remember?
Jamie Cook: I don’t remember. I was a passenger.
Christina Myles: You were a passenger?
Jamie Cook: I was a passenger in a snowmobile accident.
Christina Myles: Do you know, know where the driver is?
Jamie Cook: I have no idea I can’t see anything I’m laying on my back. I can’t move my leg. Oh I’m really hurt bad bad. Like how long do you think before somebody can get here I can’t even move.
[ 11 ] Devon Barclay Cassels, James Cook’s common law spouse arrived at the scene at approximately 1:51 a.m. Sergeant Gary Alexander of the Almaguin Highlands OPP detachment arrived at 2:04 a.m. Subsequently, EMS personnel arrived at the scene.
[ 12 ] Zachary DECOSTE was located under the snow machine near the base of the maple tree. He was subsequently moved from his location and transported by ambulance from the scene. James Cook was removed from the scene in another ambulance and taken to the Huntsville Hospital.
[ 13 ] Constable Gallagher arrived on the scene as did Sergeant Emmerson. Various photographs were taken of the area in question. Constable Gallagher used surveying equipment to generate a diagram from various measurements which he made. An autopsy was conducted on January 7, 2008 and it was determined that Zachary DECOSTE’s death was caused by chest compression. In March 2008 a report was completed by Constable Gallagher with the assistance of Constable Smith. In May 2008 the accused was charged with the offences before the court.
[ 14 ] In my reasons, in considering whether James Cook’s ability to operate a snow machine was impaired by alcohol, and whether impaired ability to operate a motor vehicle caused Zachary Decoste’s death, I concluded as follows at paragraphs 450 to 452 inclusive, and 457 to 461 inclusive as follows:
In his written submissions, defence counsel pointed to the cross examination of Officer Gallagher who stated that he would not disagree with a suggestion that the downward slope near the scene of the accident, with the turn to the right might warrant a cautionary road sign. Counsel submitted that the danger of the downward slope and the corner to public users at large leads one to a conclusion that “impairment, as a result, is of less value as a significant cause of the accident.”
I do not agree with this submission. Sergeant Alexander testified that the snow mobile route in question was used by others. Mr. Cook drove to the Rumford residence that evening and he may well have been familiar with the route in question. He lived in the area of the scene of the collision and he would have been familiar with Muskoka Road in the area in question.
(452) The question or test is not whether a downward sloping hill should require a roadside sign or whether a highway should be marked with a new sign or a different sign. The question is whether at the date and time in question was James Cook’s ability to operate his snow machine impaired by alcohol. Having regard to his blood alcohol readings, the opinion of Mr. House on page 2 of his report, the steering marks in the roadway and the fact that Mr. Cook resided in the general area of Muskoka Road North near the scene of the collision, and as well having regard to the nature of the driving of the snow machine witnessed by Catherine Still in Burk’s Falls and the collision itself, I conclude that the Crown has proved beyond a reasonable doubt that Mr. Cook’s ability to operate the snow machine was impaired by alcohol.
Counsel submitted that given Officer Gallagher’s answers with respect to whether or not the downward slope near the scene of the accident might warrant a cautionary road sign and absent any evidence regarding the physical ability of the driver, or evidence of impairment demonstrated by steering, braking, and reacting to changed circumstances, a reasonable doubt has been raised with respect to whether James Cook’s impaired ability to operate a snow machine caused Zachary Decoste’s death.
I do not agree with this submission. The collision occurred on a rural road covered by snow in the early morning hours of January 2008. Admittedly, it occurred at the turn in the road located at the bottom of an incline. However, evidence presented at trial through photographs indicates that there were a number of snow mobile tracks located on Muskoka Road to the north and south of the accident scene. And I repeat that Sergeant Alexander testified that the route most likely taken by the Cook snow machine between the Rumford’s residence and the Cook residence was the route which he described and which would pass along Muskoka Road 3 at the scene of the accident. Mr. Cook would be familiar with this area as he was a local rural resident.
I have already concluded that the Crown has proved beyond a reasonable doubt that Mr. Cook’s ability to operate a motor vehicle was impaired by alcohol. The snow machine itself left the traveled portion of the roadway, vaulted over the west snow bank and struck the maple tree to the west of the roadway. As I have found, Mr. Decoste was ejected or disengaged from the snow machine and came to rest at the base of the tree where the snow machine, after colliding and rolling up the tree, fell down upon him.
Mr. Cook’s blood alcohol readings when he operated the snow machine between 1:20 a.m. and 1:30 a.m. were 120 to 168 milligrams of alcohol in 100 millilitres of blood, substantially greater than the legal limit. I adopt the statement outlined at page 177 of the Crown’s submissions which I reproduce below:
“Where a driver who has been found to be impaired loses control of the vehicle with no innocent explanation other than conjecture not grounded in evidence, the causative line between the impaired driving and a death flowing from the resulting collision emerges in my opinion beyond a reasonable doubt.”
- There are many rural roads and snowmobile trails in Ontario with downward slopes turning to the right and to the left. Some of the trails run alongside maintained roadways. Muskoka Road North is a maintained road regularly travelled upon. Vehicles travelled to and from the accident scene on the date and time in question. I am satisfied beyond a reasonable doubt, in this case, that Mr. Cook’s impaired ability to operate the snow machine was at least a contributing cause of Zachary Decoste’s death, as defined or understood within the parameters of the law.
[Text continues unchanged through paragraph 59 as in the original decision.]
J.S. O’NEILL
Released: May 17, 2012