Her Majesty the Queen v. Ronald David Taylor, 2012 ONSC 6948

HAMILTON COURT FILE NO.: CR-10-2738

DATE: 2012-12-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Ronald David Taylor

Accused

K. Rogers, for the Crown

J. Manishen, for the Accused

HEARD: October 11, 12, 13, 14, 17, 18, 20, 21, 2011; March 19, 21, 2012; June 18, 19, 20, 21, 22, 25, 26, 27, 28, 2012; October 9, 10, 11, 2012.

THE HONOURABLE JUSTICE C. A. TUCKER

REASONS FOR JUDGMENT

ISSUES

[1] Has the Crown proven beyond a reasonable doubt that Ronald David Taylor was criminally negligent in the placement and operation of a motor vehicle on Highway 403 causing, as a result, the death of Jeyakumar Nadarasa contrary to section 220(b) of the Criminal Code of Canada? We know Mr. Nadarasa died as a result of his vehicle striking a tow truck. We also know Mr. Taylor was the person who operated and placed that tow truck on the travelled portion of the highway. I must determine whether Mr. Taylor’s conduct showed a wanton or reckless disregard for the safety of others, and if the Crown has proven Mr. Taylor’s actions to be a marked and substantial departure from what a reasonably prudent person/tow truck operator would have done in the same circumstances.

OVERVIEW

[2] On January 24, 2009 Mr. Taylor parked his flatbed tow truck partly on the median and partly in the fast lane of the 403 highway after he had towed a Mrs. Hancox’ vehicle out of the centre ditch. The tow truck left Mrs. Hancox’s vehicle on the side of the left lane facing the oncoming traffic behind it. Mr. Nadarasa’s vehicle was travelling in the fast lane and struck the tow truck in the rear. He died immediately upon impact due to blunt force trauma causing decapitation.

EVIDENCE

[3] The driver of the car that collided with the tow truck was Mr. Jeyakumar Nadarasa, a 32-year old who lived in Mississauga. By the agreed statement of facts we know that Mr. Nadarasa woke at his residence on January 23, 2009, drove his wife to school and worked all day. He returned to work after dinner until 1:00 to 1:30 a.m. on the morning of January 24. Mr. Nadarasa’s “players circle” card revealed that he played table games at a casino in Brantford from 3:00 a.m. until approximately 8:15 a.m on January 24. He was the sole occupant of a 2009 black Buick sedan when it collided with a 2004 GMC flatbed tow truck owned by CRG Towing Inc. and operated by the defendant, Mr. Taylor. Mr. Nadarasa died immediately upon impact. There was no alcohol found in his urine or blood. From the evidence of the accident reconstructionist, Peter Shouldice, we learned that Mr. Nadarasa was travelling at 120 kilometres an hour on impact; he was on cruise control; and he did not brake or steer the vehicle prior to impact with the tow truck.

[4] Kelly Hancox was travelling eastbound in a Ford Focus on the 403 at approximately 7:45 a.m. on January 24, 2009, in moderate traffic when she was forced into the median ditch by a vehicle which came into her lane just east of the Wilson Street exit in the City of Hamilton. She swerved, lost control and travelled into the median separating the eastbound lanes from the westbound lanes of traffic. She called her husband, Michael Hancox, and Canadian Automobile Association “CAA” for assistance. She was not injured and remained in the vehicle waiting for the CAA to arrive. Mr. Taylor arrived at the scene. Mr. Taylor hooked chains to the front of her car which was pointed west and to the front of his truck, gave her instructions on how to steer, reversed his vehicle and pulled her out of the ditch. At trial she could not recall whether the tow truck lights were on but in a statement given to the police on that day she had advised them that the lights on the tow vehicle were always on.

[5] As Mr. Taylor was unhooking the chains, Mrs. Hancox’s husband, Michael Hancox and a family friend, Mr. Columbo, arrived and parked their vehicle on the right eastbound shoulder of the highway and walked across the road to her car. Although she said her husband parked directly across from the accident, Mr. Hancox said in his evidence that he parked ahead of the scene by 40 to 50 feet and on the shoulder in what he described as a safe zone. Her husband, Mr. Columbo and Mr. Taylor entered into a discussion. She recalled that a second tow truck arrived at the scene and parked on the right-hand shoulder of the eastbound lanes near her husband’s vehicle and the operator of that truck came across the highway and spoke with the other men. From her position behind the tow truck she could not see oncoming traffic. She said her vehicle could not fit on the narrow right-hand shoulder so Mr. Taylor’s much larger vehicle could not have done so. She overheard Mr. Taylor mention a plan to stop the traffic and turn her car around across the highway. During this discussion she had heard no brakes or horns, just saw people moving out of the fast lane to avoid the truck. She then heard a loud bang.

[6] After the noise, a car flew past them and landed in the ditch. Mr. Hancox said the car was airborne as it passed their view and landed on its roof in the median beyond where his wife had been stranded. He said the car’s occupant was found to be dead on the highway as he and Mr. Columbo walked toward the vehicle in the ditch to see if there were any other passengers. Meanwhile Mrs. Hancox called 911. Mr. Hancox told his wife that the driver was dead as she was making that call. After the 911 call Mrs. Hancox spoke with Mr. Taylor, who was in his truck with the door open speaking to his dispatcher, Andrew Raven. According to Mrs. Hancox, Mr. Taylor said that he may have, or had just lost his job.

[7] She wondered at his concern about the loss of employment given that a death had occurred but acknowledged that at that point Mr. Taylor may not have been aware of Mr. Nadarasa’s demise.

[8] Mrs. Hancox’s recollection of the events was not detailed or specific. She was not sure about the time as she was not wearing a watch but estimated the accident occurred at 7:45 a.m. as she was on her way to begin work at 8:00 a.m. She said the accident happened a long time ago and she could not recall if the tow truck lights were on. She did not recall if she told the CAA she was in the median. She acknowledged that the highway was not busy. She did not remember any flares or pylons being set up by the tow truck operator. She said Mr. Taylor was very quick in removing her from the ditch. She said that part of the tow truck was always over the line on the highway. Although she told the fireman who was first on the scene that Mr. Taylor did not move his vehicle, she said she did not know if the tow truck operator moved his vehicle after the collision.

[9] We learned Mr. Taylor’s version of that fateful morning from his statement given to the police the day of the accident. At that point he had been charged with criminal negligence causing death and he had spoken with duty counsel. He did not testify at his trial. During the interview Mr. Taylor is obviously upset at being charged but co-operates fully and answers all questions put to him. He said he began work at 7:00 a.m. and the CAA computer screen on his truck dash alerted him to Mrs. Hancox’s dilemma and that it took him about 10 to 15 minutes to arrive at the scene.

[10] Mr. Taylor said he had his rotator lights on the whole time he was on the scene. He went as far onto the shoulder as he could safely because he did not know where the road dropped off and he did not want to pay $500 to get his own tow truck pulled out. He said after he pulled Mrs. Hancox’s vehicle from the median, the tow truck was partially on the shoulder and on the live lane. He said the location of the tow truck was on a curve but not, as he described it, a blind curve. Mr. Taylor said that there was enough of a view and that the driver who struck the vehicle should have been able to see his truck. He said traffic was light and that road surface was dry. He said that traffic was not impeded by his vehicle because they had time to move over, although he acknowledged a couple of vehicles honked because he was blocking partially the live lane. He did not hear any brakes or any horns from the Buick. He just heard the crash and saw the Buick go flying by. He said the sun would have been in the driver’s face.

[11] He said after he pulled the Focus out another tow truck operator arrived at the scene, who we now know was Mr. Brian Menear who parked across the highway with his lights on as well. Mr. Taylor went to speak to Mr. Menear and told him he just needed to get the car turned around. He estimated that it took 10 minutes in total from his arrival at the scene to tow the Focus out and to check out the undercarriage of that car, at which point Mr. Hancox had arrived.

[12] He said it is his practice to park halfway in the lane if he cannot get right onto the shoulder. During the interview, he expressed concern about being out of a job and unable to obtain work while the charges were pending. He was very upset at being told he was charged because he had “no legitimate reason” for being on the live lane of the highway because he believed the reason that he was on the highway was legitimate, to assist a client of the CAA. It is clear from his attitude in his statement that, although he was parked in the live lane, he believed that his vehicle was clearly visible and avoidable by oncoming traffic. He said Mr. Nadarasa should have been able to see at least one set of lights or the seven ton hunk of metal that was his tow truck. After the crash he acknowledged he ran to his truck to call his supervisor and advise him of the accident. He said he did that because the other men had run towards the Buick and he knew someone was calling the police. He does not mention moving the vehicle after the collision, nor is he asked about this action by the interviewer.

[13] Mr. Hancox’s testimony was more specific as to detail than his wife’s but even he recalled things differently at the trial than he had testified to at the preliminary. At trial he mentioned hearing honking horns from passersby and rude gestures from other drivers. He however acknowledged that he had previously testified he had only mentioned one honking horn to which Mr. Taylor responded by pointing out his yellow flashing lights to the annoyed driver. He recalled Mr. Taylor crossing the road to speak to Mr. Menear. He acknowledged that Mr. Taylor said he would slow the traffic so that he could drive the Focus across the highway. He noticed the set of flashing lights on the cab of Mr. Taylor’s truck as he approached the scene. He saw the lights as he came around the bend approximately 150 yards away but also said less than 200 yards away. He saw no cones, markers or warning signs at the scene. He said traffic was relatively light but that there was still a good flow of traffic. He arrived at approximately 8:35. He and Mr. Columbo were able to walk across the lanes of traffic after he parked his vehicle to reach the scene although this task took a minute or two to accomplish as they waited for a few cars to pass.

[14] He said some drivers had to take evasive moves to get around the tow truck and drivers were showing their dissatisfaction with that. Mr. Hancox said the tow truck was positioned about halfway into the fast lane. He noted that the sun was very bright and it affected his ability to see vehicles. He said visibility was good and he recalled no brakes or squealing of tires prior to the collision. He was surprised on his arrival to see that not only was the tow truck already there but also that his wife’s vehicle had already been extracted.

[15] He was also surprised that his wife’s vehicle had been towed out onto the shoulder when he would have expected it to have been towed across the road to a safe position. He testified that he had previously seen on two occasions other cars towed from a ditch and in both cases triangular markers were used to mark the scene. He acknowledged that he generally slows down when he sees tow trucks because he said one cannot anticipate what has occurred resulting in the tow truck being on the scene.

[16] Mr. Hancox said the lights on the tow truck were orange but the plastic was faded from the sun and the lights were not as effective as they could have been.

[17] Mr. Columbo, a family friend who travelled with Mr. Hancox to the scene that morning, was called as a defence witness. He said it was a clear, sunny day with a bit of glare with no visibility issues. He saw the tow truck from 100 to 200 yards away. He recalled one person honking as they went by the tow truck because he only noticed the lights turned on the tow truck at that point. Mr. Taylor pointed out the “big flashing lights” to the driver. He said the lights were rotating and yellow. He said traffic was very light when he walked across the road, an act which he described as fairly easy. He estimated that the tow truck was only a couple feet on the highway. He was surprised by how far the tow truck was in the live lane when shown a photograph of it. He agreed it was inherently dangerous to have parked the vehicle in that position. He said the discussion about moving the Focus took two to three minutes and although he did not count the passing cars, he thought perhaps he saw five. He only heard one honk. He did not hear any brakes or screeching of tires prior to the collision. He saw the Buick in the air, then landing on its roof and he thought it had clipped the tow truck. The road was fast, not inclined with a gradual curve to it.

[18] He agreed that there were no cones, flares or advance warning of the tow truck and he would have expected those items. He also said that it is inherently dangerous to drive the wrong way in the fast lane. He said people have to be prepared for accidents or construction on the highway. He had no recollection of the tow truck being moved. He said the collision occurred within five to six minutes of his arrival on scene.

[19] Mr. Brian Menear, a tow truck operator, learned about the Focus in the median from the OPP scanner in his truck. According to Mr. Menear, Mr. Taylor came across the road to request his help in slowing the traffic so that he could get the Focus across the highway. Mr. Menear had pulled up on the right shoulder across and slightly ahead of the position of the CAA driver’s truck. Mr. Menear saw Mr. Taylor unhook chains from the front of the car having pulled the car out.

[20] Mr. Menear said the flatbed was in the left-hand lane pretty much taking up the whole of the lane. Mr. Taylor asked him to assist in moving the Focus. He recalled that his response to the request of Mr. Taylor was that he told him that he could not believe that Mr. Taylor had pulled the car from the median without the presence of OPP. He would have called the OPP because of the curve and the live lane.

[21] He said the roads were dry and the traffic flow was light to moderate for that time of the morning. He testified that, after calling the OPP, he would have parked on the shoulder and waited for them to arrive before trying to recover the car because it was a dangerous situation. He said he saw other vehicles moving to avoid the truck prior to the collision.

[22] He said the accident occurred two minutes after he arrived. The Buick Allure struck the tow truck while he was talking to Mr. Taylor. He did not see the Buick prior to the accident or hear any brakes or squealing of tires or see any other cars.

[23] He called the OPP after the accident and his 911 call was made an exhibit on the trial. Mr. Menear is very upset during the call, hysterical and sad, and critical of Mr. Taylor in his decision to place his tow truck in the live lane without taking proper steps. On the 911 call, Mr. Menear told the operator that they needed an ambulance. He said that the CAA flatbed was blocking the fast lane.

[24] According to Mr. Menear there was no room for the Buick in the live lane where his truck was located originally. Mr. Menear testified that Mr. Taylor moved the truck immediately after the accident by backing it up 10 feet and pulling it more into the shoulder and median. By doing so Mr. Taylor moved his truck much closer to the shoulder of the road. He said Mr. Taylor prior to the accident was taking up the whole of the eastbound lane with the exception of two wheels over the line. Mr. Menear told Mr. Taylor not to move the truck because the police would have to conduct an investigation of the accident. Mr. Taylor told him he just wanted to get the truck over. He agreed the light bar on the tow truck in a picture shown to him appears not to be visible or brilliant.

[25] He had not noticed if the lights were on Mr. Taylor’s tow truck. He said his estimation of where the tow truck was located on the road was based upon his observation as he drove on the highway up to it, while he was moving, and agreed it was an approximation of the location. He was not asked to show the location of the tow truck on the roadway that day. It was also his testimony that the tow truck took up a little more than half the lane before the accident.

[26] He said he would have used a crash truck, pylons, flares, triangles, anything to give notice to the oncoming traffic of the hazard. He would use a crash truck if any part of his truck impeded a lane.

[27] Mr. Menear was declared by the court to be a hostile witness and the Crown was allowed to examine him at large. His failure to respond originally to questions had nothing to do with the case at hand. After being declared hostile Mr. Menear was direct, helpful and co-operative in his responses.

[28] Mr. Menear has no formal training as a tow truck operator, nor, he testified, is there any licensing process for the same. He acknowledged that various tow truck drivers have different methods and that he has seen tow trucks pull cars out of the left lane without providing blocking of any kind. He agreed that with observation of traffic flow you could hook a car and get it out; and he and other drivers he has observed have done that.

[29] In 2009 he did not have cones or triangles but he did have flares and a lime green safety vest in his truck and he said that there are no prescribed guidelines as to when to use them. He also said the “fastest” tow is one you should consider. He said he always has the people out of their car prior to towing. He said he has never parked in a live lane without a police presence.

[30] He does not believe that he turned his roof lights on until after the accident and acknowledged that the roof lights are the warning lights.

[31] Mr. Bramwell Gregson was the only eyewitness to the accident and he was called by the defence. I find that the Crown should have called him as a witness and I cannot understand why it did not. Although Mr. Gregson delayed in reporting his eye-witness testimonial by many hours, to the court his testimony is crucial in understanding the many nuances of the scene. I find it is far more critical to the court’s analysis of the situation than the threshold reliability of the accident reconstructionist’s theory about what might be perception reaction time issues when an actual eyewitness reports on such issues. The testimony of Officer Shouldice on such issues was in effect speculation - even as to stopping distance let alone human factors - while what Mr. Gregson provided to the Court was his actual perception of and reaction to the actual scene that day. He was able to report on his visibility that day at the time of the accident, his ability to see the tow trucks, and his opportunity to avoid the collision among many other important details. I will discuss this in more depth in my analysis and decision later.

[32] Mr. Gregson testified that he left his home in London at 7:00 a.m. on January 24, 2009, to attend a meeting in Oakville. He was driving a rental car and initially had some difficulties finding the defrost switch on the vehicle. The weather was bad as he started but gradually improved about Woodstock. He had breakfast at McDonald’s in Brantford at 8:10 a.m. according to a receipt he had observed just prior to his testimony. He described the conditions on that morning to be a gloomy, greyish sort of morning with dry roads. Mr. Gregson was approaching what was to become the accident scene when he saw a truck on the shoulder of the slow lane and a man picking up what he believed to be an animal with a shovel from the centre of the highway. We learned that this was a Ministry of Transportation employee, Mr. Owen, who was filling potholes on the highway. Mr. Gregson said there was very little traffic on the highway.

[33] He saw no warning or lights. He signalled, slowed down and went into the passing lane to avoid Mr. Owen. He had been going 100 kilometres per hour. He slowed down by taking his foot off the accelerator, he believed. He then went back into the slow lane, being the right lane. He then saw two vehicles, one on the right shoulder and one on the left shoulder, which he thought were trucks from about 300 or 400 metres away. He thought they were parked directly across from each other. He is familiar with the road in that area and he said the curve had no effect on his view. He could see clearly. The road he described as straight and level. He thought it was prudent to slow down and he did. He had no idea what was happening. He saw two persons on the right-hand shoulder and one person on the fast lane shoulder in the area of the truck from 300 metres away. He had never encountered such a situation. He slowed to approximately 60 kilometres. He thought he applied the brake. He thought he saw people exchange words and get back into their trucks. He was uncertain of what might be happening so he continued in the right lane. He saw another vehicle which passed him going considerably faster than him in the fast lane. He described this vehicle as dark coloured; he thought it was maroon in colour. As it approached the area of the tow truck on the left shoulder, he saw the tow truck move slightly less than a metre, perhaps half a metre, and then there was impact between the tow truck and the vehicle. He was 40 to 50 metres away at this time. The violent collision occurred only a couple of seconds after the car passed him. He continued driving through the two vehicles.

[34] There was room for a lane change but he said the car would have had to have slowed down much more and make a rapid move because of the truck “moving” into the fast lane.

[35] As he went through the accident scene, he saw a vehicle facing the wrong way in his peripheral vision. He saw no flashing lights on either tow truck, nor any flares, cones or signs. He described the Buick as driving in the centre of its lane, not straddling the lane. He did not see the vehicle brake, or decelerate, or steer and there was no vehicle in the lane beside it. He passed by the scene at approximately 50 kilometres per hour. He did not see the vehicle after impact. He continued to his meeting, had lunch, returned to London and called the OPP at 4:30 that afternoon to tell them what he had witnessed. By that time, Mr. Taylor had been charged with criminal negligence causing death.

[36] He had no thought that the tow trucks were moving. He knew they were stationary because he saw people standing beside them. He had never in 52 years of driving seen two tow trucks abreast on the highway.

[37] He said the tail end of small shards of glass fell on his vehicle as he drove through the scene. He denied being abreast of the Buick when the accident occurred. He said he had one thing in mind and that was to get through the incident. He did not stop or check on the victim although he said he was concerned for the driver. Instead, he continued to his meeting. His evidence was unshaken despite the rigorous cross-examination by the Crown. His testimony was given in a straightforward, no-nonsense fashion that allowed no indecision on his part about the contents of his evidence. I find his evidence was completely believable notwithstanding his failure to immediately report the accident.

[38] Klaus Posthumus was also travelling eastbound at 108 kilometres per hour on the morning of the accident at about 8:30 to 20 to 9. He recalled it was a sunny day but said there was no issue of visibility. He spotted vehicles on the left shoulder parked from about 500 metres away. He realized between 500 metres and 200 metres that the vehicles were stationary and recognized the vehicle as a tow truck at 200 metres when he was almost upon it. He said the tandem wheels of the tow truck were on the shoulder and the balance of the truck was in the passing lane. There were no lights on the truck or any lights at all, nor safety markers or flares at the scene. Mr. Posthumus was in the slow lane and saw two vehicles nose to nose on the side of the road. He was concerned because if there had been more vehicles on the road or cars in both lanes it would be a problem. He did not see vehicles on the right shoulder because he said he was concentrating on the tow truck. He said the traffic was light.

[39] James Lockyer testified that he was travelling eastbound on the 403 at 8:30 a.m. approximately on January 24, 2009. His speed was 105 to 110 kilometres per hour. He said the sun and the grade and the curve of the road between Shaver Road and Wilson Street made visibility difficult even with sunglasses and the use of a sun visor. As he came around the curve, just before the Shaver Road overpass, he initially noticed something ahead but was not sure if it was on the shoulder or moving. About 30 or 50 feet from the object he realized the vehicle was in the fast lane which was the same lane he was travelling in and that it was not moving. There were no flares, no traffic signals. At trial he was not sure if the light on the truck was on or flashing but acknowledged that in a police statement given five days after the accident he said he “saw the lights on.” He only realized it was a tow truck as he passed it. He recalled the other vehicle as being in the centre median and the tow truck as being three-quarters into the fast lane obstructing the lane. He reacted quickly and almost lost control of his vehicle. He laid on his horn and cursed a lot, since the incident really “spooked” him. He thought someone was going to hit the tow truck and that the placement of the tow truck created a dangerous situation.

[40] Franco Castellucci was also on the 403 going eastbound on the day of the tragedy. He did not recall the time that he came upon the tow truck but said he arrived at the 403 from the 401 at 8:03 a.m., which was approximately 20 minutes away from the accident scene. At the Shaver Road overpass he passed the vehicle ahead of him and then he saw the tow truck and pulled back into the slow lane. There were two cars behind him. He could not pick out the exact spot where he first saw the vehicle because it is a continuous curve at that point. He said he expressed concern to his passengers about the placement of the tow truck. He said there were no lights, no flares, no police and stated that the tow truck could cause the death of someone. He said with the curve he could not see that the truck was stationary. He did not see the flatbed tow truck until he was a few hundred metres away from it. He had no problems with the sun affecting visibility as he was wearing polarized sunglasses. He acknowledged that the sun could make it difficult to see lights but said he was close and he did not see lights on the tow truck. He did not see any cars on the right-hand side of the road or any people. He noted that visibility was good.

[41] Richard Andrushko was on the 403 near the Wilson Road exit travelling eastbound between 8:30 and 9:00 a.m. when he observed a tow truck in the middle of the fast lane. He said visibility was significantly impeded by the bright sun, resulting in a shortened vision view. He said the sun affected his ability to see more than the curve of the road and said he first observed the tow truck when he was 200 yards away and only noticed it was not moving at approximately 75 yards. He had to crank his steering wheel, driving erratically to avoid the hazard.

[42] He did not see any lights turned on the light bar of the tow truck. He looked back at the tow truck and he said no lights were visible to him.

[43] Mr. Andrushko was shown a picture of the tow truck at rest and he said the truck he saw was on the road and not on the shoulder. He said he expected flares, cones and a big sign. He said he observed a second vehicle in front of the truck further off onto the shoulder facing the same direction as the tow truck. He was driving 115 kilometres per hour and did not slow when he first observed the tow truck because he assumed it was moving.

[44] Mr. VanHoek was also travelling eastbound when he noticed a vehicle in the ditch, which he noticed because the headlights were shining back towards him. He made this observation at 500 metres away and saw the truck at about 400 metres but commented that he is bad at calculating distances. There was very little traffic as he travelled at 110 kilometres per hour and once he noticed the tow truck, he moved to the passing lane and slowed to 90 kilometres. He thought it odd that there were no lights, pylons or police presence. He said the front part of the truck was on the shoulder and the back overhanging the traffic lane. He did not see any roof lights turned on. He said he was concerned that somebody was going to get killed. The shining sun, he said, made it difficult to see the vehicle. Mr. VanHoek also said the highway winds, which makes for poor visibility. He acknowledged that he passed the vehicle without difficulty.

[45] Gerald Hackbarth was a witness to the recovery scene. He was driving eastbound at approximately 8:35 a.m. He was following a transport in the slow lane, then moved to pass it but immediately pulled back because there was a tow truck blocking the lane. He could not see around the transport prior to his move given the curve and as a result he had no warning of a hazard. He was upset and scared and said that someone was going to get killed. He said visibility was not an issue. It was sunny and clear and the highway was not particularly busy.

[46] Victoria Hughes-Al Samadi was travelling westbound on the 403 in the back seat passenger side of a vehicle. She does not recall the lane she was travelling in. She saw a car going through the air, twisting in the air and then backwards. She saw it had no roof and it landed on its top in the eastbound median. She also saw a tow truck and a car with two people standing between the vehicles, with the tow truck being west of the car. She could see people “under” the car which was airborne. She did not notice any lights. Her view was for a couple of seconds. She did not see flares or cones. She said the shoulder was narrow given the dangerous curve in terms of highway design.

[47] Robert Owen, an employee for a contractor who did emergency response for the Ministry of Transportation, was fixing potholes on January 24, 2009, on the 403 just west of the occurrence site. He was contacted by the Ministry of Transportation calling for an emergency response unit to come to the site of the incident. He was close so he responded a minute or two later at 8:45 a.m. He testified as to what, in his experience, he believed the Ministry of Transportation’s response would be to such an “emergency”. He said the tow truck and the other vehicle were blocking the left live lane.

[48] He explained the procedures involved in closing a lane of traffic which only the Ministry of Transportation has the authority to do. He described the use of blocker trucks. He would not have used a blocker truck that morning citing the flow of traffic, speed of road, length of the job as factors in deciding what tools are required. He said people often see amber lights and as a result do not take note of them.

[49] Marnie Pailey, an OPP officer, attended the scene. She is also certified as a commercial motor vehicle inspector. She examined the tow truck to ensure everything was working and found nothing wrong with the tires, brakes or lights of the tow truck save and except for the right side rear light assembly damaged by the Buick. She found all lights were functional other than the damaged one and that the headlights were in the “on” position as was the beacon switch and the four-way flashers switch was off. The lights were operational on the beacon bar. The steering wheel was turned to the right. The beacon was not taken for testing. According to her, the Focus had its hazard lights on and headlights off. Although the right front tire was flat, the car was capable of being driven. The Buick steering wheel was straight according to her testimony.

[50] Andrew Raven worked at the company that employed Mr. Taylor. On January 29, 2009, he said he received a call from Mr. Taylor who was upset and said a vehicle had struck the back of his tow truck. Mr. Raven asked about Mr. Taylor, the CAA member and the person who was hit. Mr. Taylor said someone was attending to the injured party, that he and the member were okay and that the police had been called. According to Mr. Raven, Mr. Taylor was very upset. Mr. Taylor made a second call to Mr. Raven advising him that the accident was fatal. Mr. Raven said Mr. Taylor was still very shaken. After this call, Mr. Raven called Mr. Geerdink, a principal of his employer CRG. Mr. Raven said he personally would not have pulled a car from the median without someone behind him. He also said that Mr. Taylor could have pulled the car out from the other direction. He would have asked the OPP to come, or if not he would have used one of his own service vehicles to provide blockage. CAA could have “duplicated” the vehicle by sending a second truck, given that Mr. Taylor was going to tow into a live lane. He said that the assessment or decision about what action to take would be based upon, in part, the amount of difficulty involved and the amount of traffic. He noted that flares are for night time use.

[51] Constable Olleros, an officer with the traffic support unit of the OPP, assisted reconstruction Officer Shouldice at the scene on the day of the collision. She also took photos of the location on the following day at approximately the same time of day.

[52] It is clear from her pictures that the sun is to the right of the highway. She testified that the CAA vehicle was slightly on the yellow line and that the roof beams were activated on her arrival at the scene. Her pictures did not assist the court in trying to determine at what point an eastbound driver could have seen the tow truck.

[53] Detective Constable Mori is a detective constable with the OPP and took pictures of the scene after arriving at the location at approximately 10:20 a.m.. He also took a video of the area in which the accident occurred during that morning. In his video the lights on the tow truck are on and flashing. The pictures also showed the roof of the Buick was still attached to the right rear of the tow truck and that such debris extended almost midway into the lane of traffic.

[54] He noted that the police vehicle portrayed in the video had the same salt on its lens as the tow truck. This made the light more opaque, and that that opaque problem can also arise from the sun breaking down the plastic of the lens. He pointed out that in the video the lights on the police vehicles were more visible than those on the tow truck and from further away.

[55] Richard Geerdink is an owner of CRG Towing. The company, CRG Towing, was a CAA contractor. He has operated a variety of tow trucks, including flatbed, wrecker and light service vehicles. To his knowledge, Mr. Raven had never operated a tow truck. He said there is no training, no licensing or legislation that specifically covers tow truck operators. According to him, anyone with a driver’s licence can operate a tow truck. Mr. Geerdink has taken the “WreckMaster” course discussed below and was certified at a 2/3 level operator although his certificate is now expired. Mr. Geerdink says that an operator has to make his own judgment when assessing a towing job. He enumerated the factors that he felt one would consider in determining how to deal with a stranded driver, the first being the driver’s own safety because the driver has to put himself between the “accident”, his customer and traffic. He also said that one would have to consider the customer, traffic flow and weather conditions. He said you want to get out as quick as you can, as safe as you can. He pointed out that even if called the OPP operates in a big area and it could be some time before they could attend the scene, if at all. Numerous times he said you can get the customer out rather than waiting for the OPP to attend. He personally would assess the weather conditions, the exposure to traffic, any leaking fluid, the location of car and other hazards to determine if the planned operation could be safely carried out for both customer and the operator. He has concern for the safety of the public but said that they have to take some responsibility to notice lights and tow trucks. He says the orange flashing lights are ignored by motorists; they engender no respect as motorists do not move over for tow trucks.

[56] His company is responsible for the maintenance of the vehicles and the safety equipment. The operator is responsible for washing the vehicle and keeping it clean.

[57] The red lens on the truck are stop, turn and tail lights. The vehicles contain triangles and cones, however to display them the operator has to walk into oncoming traffic. There should also be flares in the truck but they are used only at night. He has seen tow truck operators stop traffic but acknowledged it is contrary to “WreckMaster” training.

[58] He arrived at the scene between 9:00 and 9:30 a.m. on January 24, 2012. The sun did not affect his vision and the visibility was completely clear. The road was dry.

[59] He said the tow manoeuvre done by Mr. Taylor was not ideal but given the vehicle’s position, it was not in his opinion a bad call as it got the vehicle out in the quickest way. He might have gone past it and pulled the vehicle up but noted that it would have left the Ford on the road in traffic.

[60] He said he most likely would have done the same thing that Mr. Taylor did and he would have driven the vehicle if it was driveable. He probably would not have put out cones. He would have taken the same actions as Ronald Taylor did. He has seen this manoeuvre done a lot of times and he has done it himself without difficulty. He would not seek a blocker truck given the lack of damage to the vehicle and the light traffic. Mr. Geerdink and his company are being sued as a result of the accident. However I find his testimony was given in a straight forward and clear, believable manner. He has a very dated minor criminal record which I find to be immaterial to assessing his credibility as it did not relate to issues of honesty, and given its age is irrelevant. He provided the court with Mr. Taylor’s “WreckMaster” certificate level 2/3, dated August 2009.

[61] Mr. Geerdink’s tow truck has been in the live lane and he has seen other tow truck operators there. He noted that their main focus is to help the customer; that the positioning may look alarming to non-tow truck operators but it needs to be done. He has done it enough that he has a comfort level with it and he would not think twice about it.

[62] In hindsight, he testified that the action taken by Mr. Taylor was probably a stupid thing to do but he would have done the same thing. He described it as the “norm” of the situation.

[63] He said the recovery effected by Mr. Taylor was not a difficult manoeuvre. He said advance lights would not make a difference although he agreed that WreckMaster teaches advance warnings and lane closures to deal with people’s perception reaction time. He agreed that operators get paid by calls made so that more money is made if more calls are answered. He would get paid 18 to 20 dollars to remove a vehicle from the ditch.

[64] Mr. Geerdink said that if today that same call as that of Mrs. Hancox came in, he would not respond to it.

[65] He said it is a judgment call, made by the operator, based on what he had in front of him; it would not necessarily be the right call. He agreed that “WreckMaster” training is a tool but said nothing replaces experience.

[66] He said Mr. Taylor had an opportunity to wash the vehicle and perhaps remove road salt from the lens given that the call came first thing in the morning at 8:00 a.m.

[67] Officer Peter Shouldice was qualified as an expert in accident reconstruction by the court. He was also allowed to opine on human factors affecting perception reaction time by the court after I found threshold reliability to such evidence. He attended the scene on the day of the accident and prepared an accident reconstruction report.

[68] He noted the following about the scene. There was a painted solid yellow line demarking the edge of the highway. The paved left shoulder was 0.9 metres wide and the right shoulder was also paved and was 3.25 metres wide. There was a grass median ditch filled with hard packed snow. There was a rumble strip just north of the yellow line on the east bound lanes. This meant that the actual curve speed bend, which is the speed at which the curve could be navigated, was 300 kilometres per hour. He noted however that the curve was west of the collision scene. He said that where the accident occurred was on a straight section of the 403. The speed limit was 100 kilometres per hour. It was daylight, traffic was light and the road was dry on his arrival. He prepared a scale diagram of the site. He pointed out that the location of the rust from the tow truck, which had simply dropped to the ground on impact, was a good indication of where the tow truck was located when it was struck by the Buick.

[69] Accordingly, his conclusion was that the tow truck was closer to the centre of the lane than it was when he arrived on the scene. He could not say exactly where it had been, just that it was further to the right prior to the accident. Mr. Taylor told him that after the collision he had moved the truck, however, Officer Shouldice took no notes of the conversation nor did he ask Mr. Taylor exactly where the truck had been prior to the move. In the officer’s sketches he locates the vehicle in the centre of the lane but there is no evidence to support that conclusion other than his interpretation and recollection of what was said to him by the defendant and some of the physical evidence at the scene.

[70] Officer Shouldice also did not provide any data concerning sight lines in his report. He did not have the evidence of Mr. Gregson in making his report. In fact, he spoke only to the officers at the scene and read only the witness statements of the Hancoxes, Mr. Menear and Mr. Columbo. I believe it would have been a much more useful report especially in terms of assessing a number of things including “human factors” had he had information of all the witnesses to assist him in his report and testimony.

[71] The Buick struck the underside of the tow truck, which was not blunt but had a point so the right rear corner of the flatbed cut the roof of the Buick off, decapitated the driver and tore the head rest off the seat of the car. A piece of the Buick remained attached to the tow truck where the front left side of the car struck the tow truck. According to Officer Shouldice the rest of the vehicle continued in motion turning and ending on its roof in the median. He reported that the condition of the lens on the tow truck and dirt on the glass made it difficult to see in the sunshine. There was no evidence that the tow truck moved on impact. A scratch caused by the Buick debris attached to the tow truck showed that the truck was moved at least 5.2 metres after the accident. He concluded that the tow truck backed up some distance and moved forward to the left. He also said that from the debris the truck had to be closer to the centre of the lane, but acknowledged that debris can be stopped by other debris so it cannot be relied upon to an exactitude.

[72] He said the tow truck’s amber lights were on during his investigation. The tires on the Buick were properly inflated and not a factor in the collision. The driver’s airbag had deployed.

[73] He retrieved the data from the airbag control unit of the Buick which, although not a “black box”, provides a myriad of information as to speed, engine RPM, brake switch status, throttle position and seat belt status of the vehicle. The control unit recorded a deployment event which occurred first and then a non-deployment event which would have occurred after the vehicle went into yaw. The unit noted that the Buick was travelling at 75 miles an hour or approximately 120 kilometres per mile four seconds before the collision. The cruise control was activated and remained on through the collision. The brake was off so the brakes were never applied. There were no tire marks before the Buick hit the tow truck. This supports the finding that the vehicle had not braked prior to the collision.

[74] Officer Shouldice said the sun would be a contributing factor to the crash because it would lower the contrast between the tow truck and the background. He pointed out that in the video taken by Officer Mori you could sometimes see the tow truck lights were on and sometimes you could not. The gradual upward curve would also be a factor because of the right hand curve with the tow truck at the top of the incline. He measured the distance from the overpass at Shaver Road to the truck and found it was 500 metres.

[75] Based upon the witnesses’ statement he had read and his observations, he reached certain conclusions about the accident based on his training and experience. He was of the opinion that the accident was caused in part by the tow truck being parked stationary in the live lane without flares or cones to give advance warning, combined with the gradual curve upward of the road, the sun and speed at which Mr. Nadarasa was travelling in his vehicle.

[76] According to his calculations, the Buick from the stopped tow truck travelling 120 kilometres per hour, would only require 4.6 seconds to stop and the driver had 12 seconds to do so after seeing the truck from 400 metres away. Officer Shouldice, by calculations done shortly before the trial at the scene said the truck would have been visible 400 metres away to oncoming traffic. He said the following human factors may have affected the perception reaction times of other drivers once they saw the tow truck such as: not knowing it is an immediate hazard; “neutralizing” the risk by a driver assessing that a car on the side of the road is not a hazard; and lack of contrast between the truck and the background. In addition, Officer Shouldice said that a driver anticipates that vehicles ahead of him are moving in relative velocity between his vehicle and another vehicle, and he noted the task of driving itself, which uses up reaction time together with eccentricity of vision. “Context” is another of the factors he testified could impact upon reaction time; you do not expect to see a stopped truck in a live lane. He also agreed that there are numerous sources of information about human factors in perception reaction time because it encompasses a lot of different subjects. He acknowledged that a Mr. Muttart who had developed the concept of human factors in perception reaction time has many other human factors that could be considered, such as response time. He noted that it was only a few days prior to his testimony that he had provided a list of the human factors he believed relevant to this case. He agreed that fatigue would definitely play a role with the crash given lack of the driver’s sleep history and the crash but pointed out that it is hard to define or measure fatigue. I would suggest that it is difficult to objectively measure or define any other human factors which might affect the perception reaction time of any particular individual.

[77] He noted that the left-hand shoulder could accommodate a motor vehicle but the right-hand shoulder could not. If the deceased had steered one metre away from the tow truck he would have avoided the collision and the time required would have been 1.5 seconds at 120 kilometres per hour. He said “not much” of the Buick hit the tow truck which would suggest to me that the truck was not in the centre of the fast lane but more to the median side of it.

[78] He agreed that his calculation of visibility of the tow truck was not done at the time but based upon him returning to the scene shortly before the trial and making a mental note of where he believed the truck was at the time. However, he said his margin of error would only be 10 to 20 metres either way.

[79] He did not measure the gradient and agreed he should have done so. He did not measure the candle power of the light bar on the tow truck. The steering wheel of the Buick was in a straight position on his examination, not turned left or right.

[80] He could not pinpoint the position of the truck prior to the collision just that the rust marks showed that the truck was more in the lane when it was hit than after the accident. He read only the statements of Mr. Hackbarth, Mr. Castellucci and Mr. Lockyer and acknowledged that all three avoided the tow truck.

[81] Terry Humelsine was qualified by the court to give expert evidence as to industry standards and practices in the towing industry and whether in his opinion Mr. Taylor’s actions met the standard of care of a reasonable tow truck operator. He has been a tow truck operator and has done towing, transport and recovery of vehicles for over 50 years. In 1991 he and a partner created WreckMaster Inc., a company which educates operators on towing and recovery by delivering certification courses on that subject.

[82] Mr. Humelsine advised the court that there are no national written standards for operators, all that is required is a truck and a licence. There are no regulations governing tow truck activities in Canada, other than in Alberta. The purpose of the “WreckMaster” course is to provide the operator with all the information needed to consider to make the best informed decision on how to best approach the incident when the situation arises.

[83] He pointed out that efficiency is a factor for a number of reasons, including the fact that the longer an operator is “out there” on the highway the greater his risk of injury.

[84] He said that whatever has been done over and over so that it becomes a practice becomes an industry standard in the absence of regulations.

[85] In his opinion, Mr. Taylor’s actions fell within the standard of care of a reasonable tow truck operator. Mr. Humelsine said that Mr. Taylor’s actions were the fastest, simplest, easiest way of recovering the car.

[86] Mr. Humelsine also said that Mr. Taylor’s actions were within the range of industry practices by saying to the effect that if one went through this scenario 100 times, 98 percent of tow truck drivers would have recovered and done it in the same way. He has seen people killed on a closed highway. According to Mr. Humelsine’s testimony, in the time it takes to wait for help to arrive, the vehicle could be recovered. Secondary accidents can occur from motorists watching people in the ditch. He pointed out that if you can walk across the highway, it would be a reasonable decision to plan to drive the Focus across the highway. He could not understand why the light bar could not be seen although it was not clear. He said he has seen many light bars in a condition a lot worse than that of Mr. Taylor’s. Mr. Humelsine said the operator would have every reason to believe that the tow truck could be seen given the size of the vehicle and the light bar being turned on.

[87] He said the average operator would have the expectation that the truck would be visible from a reasonable distance. When asked about the alarm expressed by passing motorists, he said the motorists would be more concerned than the tow truck driver because they are seeing the actions taken by the tow truck operator for the first time. The operator has different concerns.

[88] When Mr. Humelsine asked about an operator stopping or slowing traffic, he acknowledged that he had done that in the past but he would not do it now. Now he would wait until the OPP arrived but still opined that Mr. Taylor’s proposed plan of action fell within the industry standard or practices.

[89] Mr. Humelsine testified that some people want regulation of the towing industry while others see it as a measure that could be costly and time consuming. He said to “close” a highway to cross it, taking seconds to do so, has been done for years but this “incident and outcome” does not happen very often. The fact that Mr. Taylor planned to drive the vehicle across the highway did not affect his opinion that he was a reasonable tow truck driver. Mr. Humelsine saw it as Mr. Taylor’s assessment that such was an acceptable risk in the circumstances.

[90] He said he has been honked at even when there are cones. He also said the time to put on a safety vest is not well spent. Passing traffic would see his lights, not him. He testified that sunlight glare can be avoided by looking lower.

[91] Mr. Humelsine said amber lights are perceived as common and therefore attract less attention. He acknowledged that drivers have an inability to judge closing speeds or relative velocity which leads to rear end accidents if the disparity exceeds 20 kilometres per hour. The slower the speed of the lead vehicle, the greater the chance of an accident. This he said is why rotating lights are required among other things including conspicuity. The more conspicuous the vehicles the better it increases the perception of distance for oncoming traffic.

[92] He acknowledged that the stop, turn and tail lights and the four-way flashers could also be on while the amber light is on although this is not normal use as manufactured and that tow truck drivers are taught to use amber. The four-way flashers could send a different signal to oncoming traffic than the flashing light bar causing confusion.

[93] Mr. Humelsine said that he is not at ease on the road even if the road is shut down. Sixty to seventy tow truck operators die on the road each year, the vast majority of which are operating a flatbed. He said recovery would take five to six minutes. He acknowledged that the vehicle could have been pulled out facing the direction of traffic but that would have involved a much greater period of time for recovery.

[94] The bottom line is that Mr. Humelsine would not have effected the recovery as Mr. Taylor did; he would have waited for the OPP and lane closures. However, he acknowledged that in the practical day to day world of tow truck operators, Mr. Taylor’s actions fell within the standard of a reasonable tow truck operator.

ANALYSIS AND DECISION

[95] I return to the questions that I must answer in making my decision. Was Ronald Taylor criminally negligent in the placement and operation of a motor vehicle resulting in the death of Jeyakumar Nadarasa? Did he show a wanton or reckless disregard for the lives and safety of others? Is what Ronald Taylor did or failed to do a marked and substantial departure from what a reasonably prudent person would do in the same circumstances? Was Mr. Taylor aware of the risks and danger to others but went ahead anyway; or did he give no thought to the possibility that any such risk existed?

[96] To prove that Mr. Taylor is guilty of criminal negligence causing death, the Crown must prove beyond a reasonable doubt that:

(a) Mr. Taylor placed his tow truck on Highway 403; and

(b) Mr. Taylor showed a wanton or reckless disregard for the lives and safety of others when he did so; and

(c) Mr. Taylor’s conduct caused Mr. Nadarasa’s death.

[97] As I said at the outset of this decision, there is no issue either with the conduct of Mr. Taylor or that such conduct caused the death of Mr. Nadarasa. These have been proven beyond a reasonable doubt. I acknowledge that exactly where the truck was placed on the live lane is in question but that it was on the live lane is not. I only need to determine whether his actions in law showed a wanton or reckless disregard for the safety of others. The conduct and the consequences are clear; the only issue is fault. Has the Crown proven that essential element beyond a reasonable doubt?

[98] Crown counsel does not have to prove that Mr. Taylor meant to kill Mr. Nadarasa or anyone else. The Crown has to prove that his actions amounted to a reckless or wanton disregard for the life of another. This proof must go beyond showing mere carelessness on Mr. Taylor’s part. The Crown must show that his actions on that day were a marked and substantial departure from what a reasonably prudent person would do in the same circumstances. Defence urges, and I agree, that the reasonably prudent person in these circumstances must be that of the reasonably prudent tow truck operator. How else can we gauge the standard? The reasonable car driver is not called upon on an hourly basis to recover vehicles from locations as dangerous as the median on a 400 series highway. I need to understand the standards involved in such an operation in order for the court to properly assess the calculation of risk involved in these circumstances. Nor can I determine without such criteria whether or not the actions taken here were a marked and substantial departure from that perceived norm, or if actions taken are an example of a reckless or wanton disregard for others. At the same time, I acknowledge the position of the Crown to the passersby. Were the actions taken by Mr. Taylor that of a reasonable person? Would a reasonable driver of any type park his vehicle in the live lane of traffic on a highway?

[99] The Crown may prove Mr. Taylor’s guilt by showing that his actions were a “marked and substantial departure” by either evidencing that he was aware of the risk but that he went ahead anyway or, alternatively, by proving that he gave no thought to the possibility that any such risk occurred.

[100] The Crown must demonstrate some degree of awareness on Mr. Taylor’s part of the threat to the lives and safety of others.

[101] Mr. Taylor’s actions after the death of Mr. Nadarasa have been portrayed by the Crown in a negative, critical light. He moved the tow truck immediately after the collision. This could be seen as a consciousness of guilt or an attempt to alter a crime scene. It could also equally, I suggest, be interpreted as his realization that his lights and “the 7 ton hunk of metal” were insufficient to give passing motorists notice of his presence and his location on a live lane. The Crown would suggest that his reckless disregard for others is evidenced by his failure to run over to the victim. However, as noted in his statement, this also could have found to have been a logical, practical choice on his part. There were three other people attending to the accident victim and a fourth person contacting 911. He would know that he must alert his dispatcher and employer about the accident. Mr. Taylor, according to Mrs. Hancox, was more concerned about his loss of employment than the loss of Mr. Nadarasa’s life. He expresses concern during his interview by the police about his lack of employment as well. However, two things should be noted here. First, he was not, I find on a balance of probabilities, even aware that Mr. Nadarasa was dead at the time of his comment which may have been made by him and overheard by Mrs. Hancox, and secondly, the reality, I find, is that his job was lost as a result of the tragic accident. I acknowledge that Mr. Nadarasa or others could have been badly injured and that Mr. Taylor should have been aware of that possibility, however, although his actions and words cannot be condoned by this Court, neither in the circumstances can they be condemned.

[102] There is also the reaction of Mr. Taylor, in his police interview after being charged, to the tragic death of Mr. Nadarasa in which he said, “Some asshole ran into the back of me and killed himself and now I am being charged.” I note that he went on to say, “Well I should not say asshole, I don’t know the guy but, somebody ran into the back of my service vehicle and I’m being charged. What about the lady that was in the ditch. If she hadn’t been there I wouldn’t have gotten, my truck wouldn’t have gotten hit.” I must, however, consider this response in terms of Mr. Taylor’s perception of events. He had been told that he was charged because he had no legitimate reason for being where he was on the highway, while he believed that assisting a woman in the median of a four-lane highway was a legitimate reason. He also believed that oncoming traffic should have been able to see him and in the circumstances avoid him given “the at least one set of the lights or the 7 ton hunk of metal that is a tow truck”. I find that Mr. Taylor’s post offence conduct is in keeping with his interpretation of the situation that the actions he had taken were reasonable in the circumstances based upon his assessment of the situation and his stress given his perception of the events after hearing he is charged with a very serious criminal offence.

[103] Although not raised as consciousness of guilt or otherwise, I do note that Mr. Taylor expressed concern that the reason he parked “partially” in the live lane as he described it was to avoid a $500 charge he would incur if his vehicle had to be towed. I measure that, however, against his comment that he could not tell where the road drops off and he went as far away from the shoulder as he could do so safely. I also note that Officer Shouldice’s measurements would indicate that the shoulder could not accommodate a vehicle. This reinforces the evidence of Mrs. Hancox that the shoulder could not contain her Ford let alone a tow truck and the evidence of Victoria Hughes-Al Samadi who questioned why the shoulder design was such that it could not provide space for a disabled vehicle.

[104] Mr. Taylor had obviously made a number of assessments of the situation of Mrs. Hancox’s vehicle that morning. He described the location as a blind curve where there was enough of a view that he believed that Mr. Nadarasa should have been able to see his truck there. He described the traffic as light. He said cars were not impeded by him being there, that they had enough time to move over. He said other vehicles moved over; although he acknowledged that a couple honked because he was partially blocking the live lane. He commented that Mr. Nadarasa just went “right into the backend” of his tow truck without him hearing any brakes or horn. He also said the road was dry. He said he was on the live lane 5 to 10 minutes when the accident occurred.

[105] I find as a fact that many of the witnesses who observed the accident saw the presence of the tow truck as a high risk situation. At least three of them said that they thought and/or expressed to passengers that there was going to be an accident as a result – someone was going to be killed. Mr. Menear, an experienced operator, was horrified by the accident as he expressed in his 911 call. Mr. Humelsine and Mr. Geerdink both commented that to someone who is not a tow truck operator, the situation would be an appearance of concern. They explained this would be due to their lack of experience with such situations. I find that, notwithstanding their alarm, all of the passersby, save and except for the unfortunate Mr. Nadarasa, were able to avoid colliding with the tow truck. I also find that there were no secondary accidents which would indicate that even prior to the arrival of the fire trucks and the police that the volume of traffic was such that the oncoming traffic could avoid not only the tow truck but the post collision debris on the road. I note, of course, that the tow truck had been moved from where it was prior to the collision but found that at that point it was by far no longer the only potential hazard on the road.

[106] Mr. Menear and Mr. Raven were both of the opinion that the actions taken by Mr. Taylor in recovering Mrs. Hancox’s car was wrong in that Mr. Taylor’s vehicle was parked in the live lane without the presence of the OPP, cones, flares or other markers. I find that the OPP had been called prior to Mr. Taylor attending the scene, albeit he did not wait for them to attend. All who testified agree that flares are not of assistance during the daytime. Mr. Geerdink testified that he would have done the same manoeuvre as Mr. Taylor. Mr. Humelsine stated that he would have expected the vast majority of recoveries to have been done the same way. Mr. Geerdink and Mr. Humelsine expressed the concern for the tow truck operator out in traffic trying to block lanes with cones, which would take the same time during which the entire recovery operation could have been completed. Both also commented in their evidence that in the time expended waiting for the police to arrive, recovery could have been effected. As noted before, Mr. Humelsine commented that he has seen people killed on a closed highway where vehicles have travelled into the closed area.

[107] I note Mr. Geerdink’s testimony was that Mr. Raven had very limited experience if at all as a tow truck operator. I found, however, that neither Mr. Raven nor Mr. Geerdink, or for that fact was Mr. Menear, qualified as any kind of expert so I take all their testimony as that of the average person commenting in the circumstances of this situation as viewed by their personal perspectives based on their own towing and life experiences.

[108] In many ways, Mr. Humelsine’s testimony is much the same as the other operators except he has a great deal more experience, over 50 years. He also has analysed and researched the entire subject of the issue of tow truck recoveries on an objective basis. He is a creator of “WreckMaster”. Its creation shows his concern for the establishment of a standard for operators. It also provides for a critical analysis of their work done for the operators. As his life’s work, he has inquired into, considered upon, provided advice to manufacturers, examined research and established criteria as a result to enable tow truck operators to assess and determine the proper course to take while towing and/or recovering vehicles. I found from his work and experience that he could provide the court with his opinion. This was that the best course of action that day would have been to wait for the roadway to be closed prior to recovery of the vehicle. However, he was of the opinion that not only would that not necessarily prevent a terrible tragedy or other accident as occurred here, but also the actions of Mr. Taylor would be the choice or procedure followed by the overwhelming number of operators at the present time.

[109] I find that although visibility issues arose for drivers that day either from the curve or the angle of the sun or the salt covered light rotators on the tow truck, it is obvious from the testimony of Mr. Gregson that not only were the tow trucks visible, they were an obvious hazard. According to Mr. Gregson, the vehicles were also obviously stopped as he saw the people around them. The other witnesses for the Crown testifying as to the “hazard” created by Mr. Taylor’s vehicle described the scene prior to the actual accident. At the time of the tragedy there was not only Mr. Taylor’s vehicle with flashing yellow lights on one side of the road, but there also was Mr. Menear’s truck across the road also with flashing lights. There was the vehicle driven by Mr. Hancox and the towed-out vehicle of Mrs. Hancox. In addition, at least three and up to five people were on the side of the roadway which would and did provide perspective as to whether the vehicles were moving. I find Mr. Nadarasa would have observed the scene as Mr. Gregson depicted prior to the accident including the people on the roadway.

[110] I find that neither Mr. Hancox nor Mr. Columbo found the placement of the tow truck so shocking that either of them demanded that he immediately move it even after they hear other drivers report by horn that they have issues with its placement. I acknowledge that they were only on the scene for a few minutes prior to the tragedy but so was Mr. Taylor.

[111] Their tolerance of the placement of the tow truck to me would be indicative of their assessment of the situation and acceptance of the same, which I find that as an average driver they did not see the situation as a marked and substantial departure from the actions of a reasonable person. Of course, I need to consider that the two would defer in part to the scene “expert”, the tow truck operator, Mr. Taylor, or even deferring to the first person on the scene or in the “crisis” circumstances not evening considering the risk.

[112] I acknowledge that most of the passerby witnesses who observed Mr. Taylor’s truck for the most part described it as a hazard, and in their observations believed that someone “would” or “could” be killed. All, however, who gave such pre-accident testimony were able to avoid the tow truck. The scene encountered by Mr. Nadarasa, as I accept it as described by Mr. Gregson was different in a number of material respects from the evidence of Messrs. VanHoek, Posthumus, Lockyer, Andrushko and Castellucci. Firstly, they report only the tow truck for the most part. They do not report seeing vehicles on the “right” lane. None reported a second tow truck, which I find was present at the time of the collision. None reported any persons in the road near the vehicles. Mr. Gregson saw persons outside the vehicles. Although he reports them returning to their vehicles prior to the accident, he does see them and as a result is aware that the vehicles are stationary. He does not note the tow truck lights rotating, but observes both vehicles across the road from each other. It was the two tow trucks that makes the situation especially remarkable for him as he, in 50 years of driving, had never encountered such a hazard. He drove not only to avoid Mr. Taylor, but also Mr. Menear. Again, I find this evidence is the closest we have to explain to us what the actual situation was as Mr. Nadarasa approached the scene and to gain perspective on the actual risk created by the presence of Mr. Taylor’s truck on that day.

[113] Mr. Gregson was able to assess and deal with the risk created not only by Mr. Taylor and to deal with the concern created by the second tow truck of Mr. Menear on the other side of the highway. I acknowledge that he obviously did not take into account that Mr. Taylor’s tow truck was blocking the passing lane because he interpreted the collision as occurring because the tow truck moved into the path of Mr. Nadarasa’s car prior to the accident. He also denied that there were any cars, including his own, which prevented Mr. Nadarasa from moving out of the passing lane, a statement which I accept as true. I accept it because I find Mr. Gregson to be believable. His inaccurate report of the tow truck of Mr. Taylor moving which caused the collision and his report of no lights on the tow trucks can be easily explained by the crisis circumstances he is put into by the presence of two tow trucks and the subsequent collision.

[114] Accordingly, I find from a driver’s immediate perspective at the time of the collision, the tow trucks were visible and avoidable, were seen as stationary and were not obscured by the curve, the gradient, the sun or anything else usually affecting perception reaction time.

[115] I turn to the law having done my analysis of the evidence as I find it.

[116] I briefly mention some principles of law. R. v. Roy, 2012 SCC 26, a decision of the Supreme Court of Canada, provides among other things guidelines for the trial judge in assessing the actus reus and the mens rea of dangerous driving.

[117] At para. 35 the court points out:

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 a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving.

and at para. 36:

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. It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

[118] The reason for the moral blameworthiness aspect is best expressed, I find, in the quote in R. v. Roy at para. 32, that is from R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 at para. 35.

As Charron J. put it on behalf of the majority, at paras. 34-35:

If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.

[119] With these principles in mind, I conclude my analysis and reach my decision.

[120] Mr. Taylor’s evidence through his video-taped statement showed his perspective or state of mind in the circumstances which is relevant to my decision. I find that he believed that his actions were reasonable. He believed that the tow truck was visible due to its lights, its size and its placement on a level straight highway with good visibility and light traffic. The light traffic he believed would allow persons to avoid his truck. His belief is so strong that he is upset and surprised I find at being charged. He understood it to be industry practice to park partly on a live lane when an operator could not get onto the shoulder. He acknowledges the honking of other vehicles but heard no brakes. He was there only a brief period of time and we learned from the evidence that the recovery could have been effected in a short period of time. I acknowledge that the collision occurred in a short period of time after his arrival on the scene.

[121] Numerous witnesses, as I have discussed, were alarmed by the placement of the tow truck some saying they had to swerve to avoid a collision while at least one honked his horn in annoyance. Mr. Humelsine’s evidence was that Mr. Taylor’s actions fell within the standard of care. Mr. Gregson was able to see, slow and avoid the tow trucks even after the collision had occurred with Mr. Nadarasa’s vehicle. Other witnesses testified that the day was clear, the traffic was light and that visibility for most people was not an issue. Officer Shouldice’s evidence was that given the point at which the vehicle would have been visible, there was adequate time to have braked and avoided the collision. He acknowledged further that swerving could have been effected in even a shorter period of time. In noting this I am in no way attaching any responsibility for the accident upon the unfortunate Mr. Nadarasa for two reasons; one, the consequences of the conduct are not part of my analysis at this stage and two, that there is no contributory negligence on his part that can be taken into my assessment or is relevant to the offence charged. I note the visibility and braking distance only to point out that a “reasonable driver” could have seen the vehicle and could have avoided it just as Mr. Taylor believed. This supports his understanding of his actions on that day as being within the norm.

[122] Accordingly, having regard to all the circumstances, I find there is reasonable doubt as to whether the actus reus of the offence have been made out. However, even if I am incorrect in my analysis, I go further and I also find that the required mens rea has not been proven beyond a reasonable doubt. In other words, not only did I find that recovery was not “reckless or wanton” but also that Mr. Taylor’s actions that day do not represent a marked and substantial departure from that of a reasonable person.

[123] Firstly, I note Mr. Humelsine’s advice that 98% of tow truck operators would have effected the recovery in the same way and that Mr. Taylor’s actions fell within the standard of care. Mr. Menear’s and Mr. Raven’s evidence was that they would not have acted in such a fashion but I attach greater weight to the evidence of Mr. Humelsine given his qualifications. Although the level is not “perfection” nor is that the test, Mr. Humelsine would not have effected the recovery in that way. He would prefer a higher standard to be established or the industry to be better regulated. However, he found Mr. Taylor’s actions in all the circumstances and conditions that day to be acceptable and accordingly not morally blameworthy, nor a marked or substantial departure from that of a reasonable tow truck operator. Mr. Taylor averted to the risk as is obvious by his interview in which he believes that his vehicle should have been seen and avoided. His understanding is supported by Mr. Columbo saying that his response to a honking driver was to point out the “big flashing lights”. His actions in moving the tow truck as I noted could equally be his realization that his subjective belief that he could effect this recovery without harm to others was incorrect as with his consciousness of guilt.

[124] He readily admitted to Officer Shouldice when asked that he had moved the vehicle. This supports my finding that he was trying to avoid any further accidents rather than any consciousness of guilt.

[125] There were actions which if taken might have avoided the tragic consequences but in all the circumstances I find Mr. Taylor foresaw a risk, assessed it and took steps to try to reduce it. His actions in all the evidence do not constitute, I find, a marked departure from the standard of care expected of a reasonable person in Mr. Taylor’s circumstances.

[126] The alarm of passersby is understandable. They are confronted by a sudden situation which required immediate action. However, their concern in itself is not sufficient to establish a substantial and marked departure or moral blameworthiness of the action taken by Ronald Taylor. Each day on the 400 series highway with speeds of 120 kilometres per hour every driver must be alert to unforeseeable hazards which must be dealt with quickly. The perspective of the tow truck operator is different in that he deals with the risk every day so he could understand the alarm while not assessing the risk to be outside the normal range. Any reasonable driver could, I find, in these circumstances believe that a short period of time of being stopped in a live lane, on a level highway with little traffic could very well assume the risk that Mr. Taylor did believing it to be an acceptable risk.

[127] On January 24, 2009, a terrible tragedy occurred. Mr. Jeyakumar Nadarasa died in a horrific accident. He was only 32 years old on that day that was his last. His loved ones and friends will forever be without him. Mr. Taylor’s placement of his truck on the live lane of traffic resulted in his loss. The Crown, however, has not proven its case beyond a reasonable doubt for the reasons I have set out above. I find Mr. Taylor is not guilty of criminal negligence which caused Mr. Nadarasa’s death.

Tucker, J.

Released: December 7, 2012

HAMILTON COURT FILE NO.: CR-10-2738

DATE: 2012-12-07

ONTARIO

SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

– and –

Ronald David Taylor

REASONS FOR JUDGMENT

Tucker, J.

Released: December 7, 2012