ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 2009-15
DATE: 20120209
BETWEEN:
HER MAJESTY THE QUEEN – and – James Cook Defendant
Counsel:
Wesley Beatty, for the Crown
Killian May, for the Defendant
HEARD: September 13-16; September 20-22; September 24; September 28; September 30; November 10; November 12; November 22-23; November 25; December 6, 2010; January 10-12; January 26-28; February 2; February 7-9; February 11; March 8; March 11; March 24-25; April 7; April 18-19; May 20; May 24; May 27; June 6; June 9-10; June 20-21; July 14-15; September 7; November 29, 2011; February 9, 2012
J.S. O’NEILL
REASONS
[ 1 ] PART A: The Charges Before the Court
[ 2 ] 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 case 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 .
[ 3 ] The criminal trial commenced on September 13, 2010 and it continued thereafter over the course of 44 trial dates. Written submissions were filed with the court, and thereafter, oral submissions were made by both Crown counsel and Defence counsel. At the close of submissions, I reserved my decision pending the release of written reasons.
[ 4 ] PART B: Overview
[ 5 ] In Defence counsel’s first written submission dated November 7, 2011, he set out under Part 1 a brief summary of the underlying facts in this case. I reproduce below portions of that summary as it relates to largely uncontested events which occurred on the date in question.
[ 6 ] 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.
[ 7 ] 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.
[ 8 ] 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.
[ 9 ] 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.
[ 10 ] 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.
[ 11 ] 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.
[ 12 ] 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.
[ 13 ] PART C: The determination with respect to Count #3
[ 14 ] Exhibit 1 filed at trial is a prohibition order of Justice J.G. Lebel dated August 15, 2007. The order prohibited James Cook from operating a motor vehicle on any street, road, highway or other public place for a period of one year commencing August 15, 2007.
[ 15 ] The accused called defence evidence at trial but he himself did not give evidence.
[ 16 ] Sergeant Alexander spoke with James Cook at the Huntsville Hospital at approximately 5:05 a.m. on January 5, 2008. A voir dire was held on December 10, 2009 in relation to the legal issue involving the voluntariness of certain utterances and statements indicated to have been made by the accused to Sergeant Alexander at that time. I released my Ruling on December 11, 2009 and I concluded in those Reasons that “the statements given at the Huntsville Hospital are proven voluntary by the Crown”.
[ 17 ] Sergeant Alexander’s notes of his hospital interview were entered as exhibit 1 on the voir dire. I reproduce below from pages 2 and 3 of my voir dire ruling the following questions asked by Sergeant Alexander and the answers or utterances given by James Cook:
Question, Jamie what can you tell me about the accident? Answer, the last thing I remember was we were going down a ditch near the Petro Can, the next thing I knew I woke up and my leg hurt. I didn’t know where I was. Question, do you remember who was driving the snow machine at the time of the accident? Answer, Zach was driving, he drove when we left Rumford’s, he asked me and I told him okay, I had a few beers so I let him drive. Question, did you drive the snow machine that night? Answer, yeah, I drove from my house to Rumford’s, I had one beer at my house then three or four at Rumford’s, so I let Zach drive. Question, who is the owner of the snow machine? Answer, it’s mine, I bought it about 24 hours ago. It was for sale at Festing Toyota in Hunstville, I got it through Dale Tryon, the guy that had it for sale was his friend. Question, is there any insurance coverage on the machine? Answer, No. Question, had you changed over the ownership? Answer, No. Question, you knew you shouldn’t be driving because of the prohibition orders. Answer, Yeah I know but I wasn’t driving when the accident happened. Question, yeah, you said you drove from your house to Rumford’s? Answer, yeah, I guess so.
[ 18 ] I am satisfied from the utterances and answers given by James Cook to Officer Alexander coupled with the prohibition order of Justice Lebel, that the Crown has proved beyond a reasonable doubt the essential elements of count #3 in the Indictment. I reach this conclusion without determining the issue with respect to who was the driver of the snow machine in relation to counts # 1 and #2. In other words, the offence contrary to section 259(4) of the Criminal Code of Canada is sufficiently made out on the basis of Mr. Cook’s acknowledgment that he drove the snow machine to the Rumford residence on January 4, 2008. Count #3 speaks to driving which occurred on January 5, 2008. The Indictment can be amended to conform with the driving of January 4, 2008 but to the extent that it references “on or about the 5 th day of January” I am satisfied beyond a reasonable doubt that the offence is made out.
[ 19 ] Part D: The Determination with Respect to Count #1
... (continues verbatim through the remaining numbered paragraphs)
J.S. O’NEILL
Released: February 9, 2012
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – James Cook
REASONS
JUSTICE J.S. O’NEILL
Released: February 09, 2012